Industry News | September 22, 2009

A New Kind of Lawsuit

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If your managers and supervisors are bored with the annual training on how to avoid discrimination claims from disgruntled employees and job applicants, perhaps this will interest them: Courts are increasingly awarding monetary damages in cases against individual restaurant employees for employment discrimination. This means that managers could be responsible for tens or even hundreds of thousands of dollars in damages if found liable.

According to Richard M. Escoffery, partner at the labor and employment law firm Elarbee Thompson, disgruntled employees usually file lawsuits against their employer. Increasingly, though, employees are suing the managers who made the employment decision that is being challenged.

“There are a number of federal and state laws that employees may choose to sue under for employee-related claims,” Escoffery says. “For example, Title VII of the Civil Rights Act of 1964 is the leading federal employment-discrimination law. It prohibits discrimination based on race, sex, national origin, color, or religion. There’s also the Age Discrimination Employment Act. It’s very rare that a manager will say, ‘I’m firing you because you’re black,’ or ‘I’m firing you because you’re old.’ Intentional discrimination is very rare. However, just because your managers aren’t intentionally discriminating doesn’t mean they aren’t going to be found liable.”

To avoid personal liability claims, education is the first line of defense. Knowing the law and the restaurant’s written policies are crucial for all employees in managerial roles. Managers should also avoid knee-jerk reactions such as firing an employee on the spot simply because of heightened emotions. Employers must remind their managers to make difficult employment decisions with a cool head.

“Managers should avoid saying or doing anything that creates a perception that they are acting in their individual capacity instead of on the employer’s behalf,” says employment law specialist Reginald W. Belcher, a shareholder at Turner Padget Graham & Laney.

A plaintiff’s most compelling evidence is usually comparator evidence in which he compares the way he was treated to the way another employee outside of the protected category was treated.

“Consistency is key,” Escoffery says. “If you’re not consistent in the way you handle employee situations, you’re likely to get a claim filed against you. Inconsistency often equals liability.”

By Denene Brox

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