Employment lawyers who frequently defend discrimination claims will tell you that direct evidence of unlawful discrimination does not often exist. Typically, discrimination claims live or die on whether the employee can make it appear that she was disparately treated, rather than on any comment or action which screams discrimination on its face.

Apparently, however, there are some employers out there with managerial or supervisory employees that still are giving it their all to subject their employers dangerously close to liability.

In recent months, several reported discrimination cases – including one in the 4th Circuit, which covers West Virginia – have recounted obvious ‘red-flag’ comments by supervisors or managers that would lead even the fairest judges or jurors down the primrose path of ruling against their employer.

For example, in one case, a Chief Executive Officer held several meetings with his management personnel during which he stressed that the business should be a “youth oriented company” and that the corporation was “missing the boat by not hiring younger, more vibrant people.”

In another case, when asked why a woman wasn’t given a position driving a truck, a manager stated that a decision had been made that the company “could not let a woman have that position.” When the woman was later given the position, the Operations Manager at the facility questioned why the company let her have the job because “this is not a woman’s place.”

While most managerial employees know to use care not to make remarks like this, these examples illustrate that such remarks are still made in the workplace. And they are stark reminders of the need for employers to consistently train and re-train their supervisors and managers at the highest levels so they know not to make comments of the variety which could make an unlawful discrimination claim a lot easier.

Training on liability avoidance – including guidance on what to say and not to say — needs to happen when a supervisor or manager is first hired or appointed such a position, and needs to be re-affirmed frequently during that person’s tenure. Going through these principles on an annual basis is not always enough. While training more frequently than once a year is important for any employer to avoid employment-practices liability, it is particularly critical in industries that are traditionally dominated by one gender, like manufacturing — or trucking, as the example above illustrates.

Without such training, the employees that can bind you legally could be making the very same kind of comments above — comments that the two employers involved almost assuredly cringed when they first heard. Probably in litigation.

Mario Bordogna represents clients in all aspects of labor and employment law in state and federal courts. Mr. Bordogna concentrates his practice in the areas of employment litigation, employment discrimination, workers’ compensation, employment counseling, and labor–management relations.
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