How to Document Harassment in the Workplace

by Ruth Mayhew

Harassment can create a hostile work environment.

Workplace harassment is a serious violation of federal and state anti-discrimination laws. Many employers expect their employees to be vigilant in preventing workplace harassment. Documentation of the harassment is essential, both for substantiating a harassment complaint or for defending allegations of harassment. Whether you’re a staff member or in a leadership role with the company, document the harassment that you witness and pass it along to your HR department or the company’s director for proper handling.

 

1. Read your employee handbook and company policies on the action you should take when you witness workplace harassment. If you’re a supervisor or manager, you may have specific guidelines for documenting it. If so, follow them closely so you can provide a complete description to your HR department or company director.

 

 

2. Review what constitutes workplace harassment. If you have notes and materials from employer-provided training, re-read them for examples. Also, read applicable employment laws, such as Title VII of the Civil Rights Act of 1964. Title VII prohibits discrimination based on non-job-related factors, such as color, national origin, race, religion or sex.The U.S. Equal Employment Opportunity Commission enforces Title VII, as well as other anti-discrimination laws that protect employee rights. Harassment consists of unwelcome conduct, behavior or actions directed at an employee or group of employees based on the non-job-related factors protected by Title VII. Avoid confusing harassment with occasional ribbing or attempts at humor that occur in most work environments.

 

3. List pertinent information for every instance of harassment that you witness. Include the names of employees engaged in harassing behavior and the names of employees who witnessed it. If the harassing conduct was directed at an individual, highlight that employee’s name.

 

 

4. Describe the gist of the harassing comments or remarks if you cannot record them verbatim. Refrain from attributing precise statements to participants unless you can remember the exact words spoken. Complete your description of the harassment incident with the approximate time, location and circumstances that led to the incident. Also, note any responses to the harassment, such as employees who attempted to squash it or employees who egged on the behavior.

 

 
5. Photocopy your notes and retain the originals. Provide your human resources department leader with a photocopy. If your company doesn’t have a dedicated HR department, present a copy of your documentation to the highest-ranking manager of the company.
 
 
 

Prevent Employment Discrimination and Lawsuits

 

In employment discrimination lawsuits, the business always loses, even if that loss is a diminished public reputation. Consequently, creating a work culture and environment for employees that encourages diversity and discourages employment discrimination in any form is critical for your success.

Retaliation Discrimination Lawsuits Are Most Common

Statistics from the Equal Employment Opportunity Commission (EEOC) show claims regarding retaliation discrimination topped the list again in 2018. Illegal retaliation occurs when someone complains about discrimination (or other illegal behavior), and the company punishes the complainer.

Here’s the complete breakdown from EEOC from 2018 complaints:

  • Retaliation: 39,469 (51.6% of all charges filed). Historically, retaliation complaints are the most common ones filed with the EEOC.
  • Sex: 24,655 (32.3%). Employment discrimination by gender rose to the second most commonly filed complaint.
  • Disability: 24,605 (32.2%)
  • Race: 24,600 (32.2%)
  • Age: 16,911 (22.1%)
  • National Origin: 7,106 (9.3%)
  • Color: 3,166 (4.1%)
  • Religion: 2,859 (3.7%)
  • Equal Pay Act: 1,066 (1.4%)
  • Genetic Information: 220 (.3%)

Sexual Harassment Charges Increase

The agency also received 7,609 sexual harassment charges—a 13.6% increase from 2017 and it attributes the increase to the #metoo movement pushing harassment into the spotlight. The EEOC reports obtaining $56.6 million in monetary benefits for victims of sexual harassment in 2017.

Overall employment discrimination claims filed with the EEOC have been declining since 2017. If the economy takes another downturn and people have trouble finding work, those numbers may return to the historic levels they reached earlier in the decade.

    • Distraction: The organization’s staff will spend months gathering and preparing documents while an internal investigation is conducted, and time is invested in fighting the claim.
    • DepressionEmployee morale will suffer under the constant pressure of a lawsuit.
    • Blemished reputation: An employer known as an employer of choice for recruiting and retaining desirable employees—whether found guilty or innocent—may be under a cloud.
    • Actual attorneys’ fees: These can cost as much or more than an eventual settlement, if the employer is found guilty.

Jury awards are expensive for employers. Class action lawsuits, which are also increasing, generally result in lower per-claimant awards but can cost an employer millions of dollars in cash and untold millions in unattributed fallout.

Employees who do not believe their complaint was adequately addressed by their employer during a normal internal complaint process—or in situations where the harassment or discrimination behavior continues—may file a claim with the EEOC. Only a tiny fraction of charges filed with the EEOC result in a lawsuit, says diversity communications consultant Gail Zoppo. So, even if the EEOC issues a “right to sue,” to an employee, the individual may have to invest significant resources in legal counsel, and only 1% of employees win their case.

How Employers Can Prevent Employment Discrimination

Employers need to adopt several serious guidelines for the prevention of discrimination in the workplace. Don’t wait until you are the target of a lawsuit before taking a few simple steps that could have prevented years of pain.

Employers who put strong measures in place to prevent and address employment discrimination, harassment, and retaliation may avoid EEOC charges and lawsuits.

Further, their employment discrimination policies, preventative measures, and practices to create a healthy workplace culture, can work in their favor. The employer may escape significant damage if they demonstrate these actions:

  • Implement and integrate a strict policy that makes employment discrimination of any type unacceptable in your workplace. The policy needs to cover employment discrimination, harassment, and retaliation. The policy should include a process for reporting any incidents of employment discrimination, harassment, or retaliation to the company. Preferably, employees are given several methods for reporting incidents in case their supervisor is involved in the employment discrimination matter.
  • The policy should communicate how an employee complaint will be handled with an outline of steps. The employment discrimination policy should spell out disciplinary action that will be taken with offenders.
  • The policy should discuss the nature of retaliation, and stress that retaliation is also a form of discrimination. Finally, the employment discrimination policy should contain an appeal process for employees who are dissatisfied with the outcome of their complaint.
  • Train your managers in the implementation of the anti-discrimination policy with the expectation that prevention is their responsibility. A manager’s role is to create a work environment and culture in which employment discrimination, harassment, and retaliation do not occur.
  • Managers must recognize signs and symptoms that discrimination, harassment, or retaliation is occurring and know how to address these illegal actions. Managers must thoroughly understand the company’s policy and know how to recognize work situations that might escalate into employment discrimination, harassment, or retaliation situations.
  • Employment discrimination, harassment, retaliation, bullying, anger, and potential violence should all be addressed together as unacceptable in your workplace. Effective training must teach that all of these concepts and behaviors integrate, intersect, and are woven together to create a supportive, nondiscriminatory, employee-friendly work environment.
  • Mandatory employee training should address many of the same issues as the managers’ training relative to employment discrimination. Cost-effective online training solutions are available for portions of this employee training. All employees must sign off on a training record to indicate they are aware of and understand the employer’s policy and complaint process.
  • Establish cultural expectations and norms. Creating a work environment that is free of employment discrimination—and all forms of harassment and retaliation—should be integral in employee job descriptions, the goals in the performance development planning process, and in employee review and evaluation.
  • Act in a timely manner. Respond to an employee complaint about employment discrimination, harassment, or retaliation in a timely, professional, confidential, policy-adhering manner. Address the employee complaint all the way through to appeal, when necessary.

As with any employment situation that could result in litigation, document all aspects of policy training, complaint investigation, hiring and promotion practices, management development, and employee preventative training. Your good faith efforts to prevent employment discrimination, harassment and retaliation may serve you well—increasingly important in the litigious future.

 

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How do I Prevent Discrimination in the Workplace?

by Kimberlee Leonard

Reviewed by Michelle Seidel, B.Sc., LL.B., MBA

Updated February 12, 2019

How do I Prevent Discrimination in the Workplace?

Small business owners have so many things on their plate such as, keeping up with routine office changes, so that preventing discrimination in the office might not be a top priority. However, you are required by law to protect employees from discrimination. You can prevent a lot of problems and keep your team performing optimally, if you take a few simple measures to prevent discrimination in the workplace.

With the right systems and protocol in place, you’ll find that not only can you prevent discrimination and other negative behaviors, but also you can cultivate a strong company environment, which helps the bottom line.

Write the Rules Down

Clearly established written rules are the first step toward preventing discrimination at work. Every business should have an employee handbook, which explains benefits such as holidays, benefits eligibility, and the rules for issues such as tardiness. Policies on not allowing discrimination should be part of the handbook that every employee receives upon getting hired and then signs an acknowledgment of receipt.

Cover a Broad Range of Potential Discriminatory Acts

Discrimination is not limited to simple racial issues; it spans various issues, such as religion, gender, age, disability and citizenship, to name a few. The policy should cover a broad range of potential discriminatory acts. An example of an anti-discrimination policy statement is, “It is the policy of our company to provide a safe, healthy work environment, free from discrimination and harassment against any person based on race, color, creed, religion, sex, age, gender, disability or marital status.”

Set the Complaint Protocol

The discrimination policy should also set protocol that employees need to follow if they wish to lodge a complaint. This protocol starts with advising a team manager or a human resources manager. The protocol needs to outline how discrimination complaints are handled, from investigation through disciplinary action.

Hold a Team Training Session

It isn’t enough to have the policy written and distributed. Hold a team training session on what constitutes discrimination or harassment. Training is designed to break down historical misconceptions of what is and is not acceptable language or behavior. Training often involves role-playing and reviewing words or actions that are triggers for different people.

In addition to holding a training in a meeting environment, hold team-building exercises and events that help your employees interact and understand each other better. This might include a diversity potluck that invites everyone to bring a dish from their cultural background.

Review Company Policies at Meetings and Keep Records

Keep meetings positive but do take the time to review the company policies on discrimination. Make sure to keep a record of the training and what was discussed. Should an issue arise, you need to have documented everything you do to prevent discrimination, including reviewing policies and ongoing training.

Be Consistent With Action

It is important that managers and leaders in your company handle complaints and allegations of discrimination consistently. The protocol is established in the employee manual, and managers need to follow it. Provide additional training to those in positions of receiving complaints by subordinates to understand how to effectively handle the issue. This involves how you speak with the person making the complaint, and how you speak to the accused.

Use Fair Language

Language must be fair and non-accusatory, while taking all complaints seriously and, with the proper investigative actions. Disciplinary action must follow protocol and be consistent for all employees, whether the employee is the janitor or the vice president of operations. All action must be documented in human resource files.

Consistency is Crucial

Consistency shows that you expect everyone to be treated fairly and by the same standards regarding discrimination. It also protects you legally. No one can come back and say you allowed one person to get away with a similar behavior, with only a warning and no disciplinary action.

 

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Great Resources for Hispanic Women in Business

 

 

Since 1997, the total number of Hispanic business owners has increased by 82%. Of the 1.4 million companies owned by women of color in the United States, Latina business women control 39 percent of these businesses. The following links are for resources specifically geared to the interests of Latina and Hispanic business women.

Hispanic Business News (HBN)

Latina and Hispanic Female Entreprenuers

 

GraphicStock

This wonderful site serves as a nation-wide director of Hispanic business owners. You can post a resume, search for jobs, and read up on the latest news on developments in industry and business of interest to Hispanic business owners.

Hispanic Business Women’s Alliance (HBWA)

HBWA’s mission is, “To help Hispanic women entrepreneurs, professionals, consultants, executives, inventors, and investors–throughout North America, Latin America, the Caribbean, and Spain–utilize our international portal to do business directly, communicate effectively, and collaborate with each other for their mutual benefit.”

HBWA is an online community of Hispanic women entrepreneurs, professionals, consultants, executives, inventors and investors located throughout North America, Latin America, the Caribbean, and Spain interested. Through HBWA you can connect with other Hispanic businesswomen to ​network for customers, capital, special expertise, technology, products, production capacity, or distribution channels.

Hispanic Online Marketing

Hispanic Online Marketing is Captura Group’s blog featuring best practices, case studies, and research for Hispanic online marketers.

Latin Business Association (LBA)

The posted mission of LBA is to, “To build economic wealth and opportunity for Latino and Latina Business Entrepreneurs.” Established in 1976, LBA is the largest organization in the U.S. representing and promoting the interests of Latino business owners. This is a membership-based organization that offers a comprehensive business directory of members from a diverse business population including financial, manufacturing, professional and technical industries.

LATINA Style Magazine – Business Series

LATINA Style (LSM) is a premier magazine that focuses on the needs of the Latina professional and business owner. LSM has now has produced an interactive business development program, the LATINA Style Business Series, that “brings together Latina business owners with key corporations and government agencies that provide the goods and services needed by these outstanding entrepreneurs to create or expand their business.“

Over 10,000 Latina entrepreneurs have participated in the Business Series since its inception in 1998 with the guidance of the U.S. Small Business Administration.

LATINA Style Magazine

LATINA Style (LSM), launched in 1994, was the first national magazine published addressing the needs and interests of Latinas. LSM covers beauty, business, investing, relationships, and as well as many other topics of interest to Latinas and Hispanic women. Compare LATINA Style subscription prices.

MercadeoBrillante.com

This online digital magazine is produced entirely in Spanish. MercadeoBrillante.com is dedicated to helping Hispanic entrepreneurs grow their businesses with cost-effective marketing and sales strategies.

National Hispanic Business Association (NHBA)

The NHBA is dedicated to helping Hispanic undergraduate business students develop the real-world skills and relationships needed to launch successful professional careers.

NHBA is a national network of undergraduate student organizations dedicated to helping Hispanics launch successful business careers. Through our family of 41 chapters, they provide career development, professional networking, and community building opportunities to their undergraduate members.

National Hispanic Business Women’s Association (HBNA)

NHBWA is a nonprofit organization established in 1997 to “empower and encourage women and business owners to develop and increase their business through educational seminars and speakers, by offering mutual support, the sharing of information, business referrals, and networking.”

HBNA offers opportunities to California students who wish to pursue higher education and a career in business.

NHBWA also offers scholarships to help achieve a higher education. 48 scholarships have already been awarded and a total of 61 scholarships by the end of our current fiscal year 2008.

United States Hispanic Chamber of Commerce (USHCC)

Since 1979, the primary mission of the USHCC’s has been to identify business opportunities for Hispanic-owned businesses in the public and private sectors. In the past 30 years, the USHCC has been an advocate for the nation’s more than 2.5 million Hispanic-owned businesses.

USHCC has an extensive network of more than 200 local Hispanic Chambers of Commerce and Hispanic business organizations. USHCC holds two important annual events for Hispanic business owners: the Annual National Convention and the Annual Legislative Conference. In addition, every two years, the USHCC issues its Legislative Policy and Priorities to the White House and Congress.

 

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Information on Resources for Black Business Women

BY

New black-owned businesses were up 45 percent between 1997-2002. The 1.2 million black-owned businesses generated $88.8 billion in 2002. (U.S. Census Bureau)

Since 2002, black women continue to start and maintain successful businesses contributing significantly to the global economy – even though they often face tremendous challenges in doing so.

The following is a list of great resources and networks for women of color who are interested in business. Whether you are just starting out or already have a thriving business, networking and meeting other women is always a smart business decision.

8(a) Business Development Program

Mixed race baker admiring cupcake in commercial kitchen

 

Jose Luis Pelaez Inc / Getty Images

8(a) Business Development Program is a program created to help small minority businesses compete in the marketplace and assist such companies in gaining access to federal and private procurement markets. The Mission: “To be responsive to the needs of small businesses seeking business development assistance.”

Black Enterprise provides a wealth of information related to business, specifically consumer markets, and also maintains an online Franchise Center and other resources for African American entrepreneurs.

In addition to business information, Black Enterprise offers lifestyle, career information. They publish a magazine and have TV shows that address the needs and concerns of black. Black Enterprise even has apps for black entrepreneurs using the iPad.

Black Women Connect

Purpose: “Black Women Connect is an online community and social network for African American women who are career-driven and business savvy. Users connect for jobs, business building, professional networking, and girl talk.”

The website is highly active and well-done. A must visit for black women interested in starting or growing a business.

Black Women Enterprises

Mission Statement: “The mission of BWE is to identify and remove the barriers that impede the success of black women business owners from participating in government and private sector procurement, promote equal access to capital, educate, advocate, reverse industry trends that foster business failure among black women business owners, serve as a referral resource, and serve as a clearinghouse for all information related to businesses owned by black women. Although BWE’s core mission is to serve Black Women Business Owners, we do not discriminate. All are welcome to join.”

National Black Chamber of Commerce

Purpose: The National Black Chamber of Commerce is dedicated to economically empowering and sustaining African American communities through entrepreneurship and capitalistic activities within the United States.

National Minority Business Council (NMBC)

NMBC is a nonprofit organization that is dedicated to providing business assistance, educational opportunities, seminars, purchasing exchanges, mentoring, business listings and related services.

SME Tool Kit for Black Business Owners

IBM and IFC created a free, small business toolkit specifically for women and minority entrepreneurs to provide business information, tools, and training services usually reserved for Fortune 1000 companies.

The Journal Network

African American business magazine dedicated to educating and empowering Black professionals and small business owners by providing news and commentary on issues that affect the growth of business and the advancement of professionals.

 

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Socially and Economically Disadvantaged Definitions in Small Business

If you are forming a business and are looking for resources, funding, or even to establish a particular business identity (i.e., woman-owned business or minority-owned business) to gain an advantage, you need to understand the basic definition of qualifying individuals under the Small Business Act.

    • Socially disadvantaged individuals are those who have been subjected to racial or ethnic prejudice or cultural bias because of their identity as a member of a group without regard to their individual qualities.
    • Economically disadvantaged individuals are those socially disadvantaged individuals whose ability to compete in the free enterprise system has been impaired due to diminished capital and credit opportunities as compared to others in the same business area who are not socially disadvantaged. In determining the degree of diminished credit and capital opportunities the Administration shall consider, but not be limited to, the assets and net worth of such socially disadvantaged individual.

You Could Be Classified If You Are a Minority

This coverage extends only to socially and economically disadvantaged citizens of the United States, or those who have been lawfully admitted permanent U.S. residency.

Other individuals that are not specifically mentioned or identified in the act may be still considered on a case-by-case basis. Individuals specifically mentioned include:

  • Black Americans
  • Hispanic Americans regardless of race, culture, or origin
  • Asian-Pacific Americans and Subcontinent Asian Americans
  • Native Americans including Native Hawaiians, Eskimos, Aleuts, and American Indians

Women Are Presumed to Be Included Under the Act

Women are presumed to be included under the act because of the social and, therefore, economic disadvantages they frequently encounter. However, additional definitions of ‘woman-owned‘ provide for their own requirements.

For example, a woman-owned business must be majority owned and/or operated by women. Additional information about the Small Business Administration’s requirements for a business/business owner being regarded as economically disadvantaged is on the SBA’s website.

It is also important to remember that, although the Small Business Administration does adhere to the SBA definitions, they still require all applicants to prove that they meet the definition. In other words, being a woman, or person of color, does not entirely prove an economic disadvantage, so be prepared to offer financial data as well as general information about your business.

Being Regarded as a Disadvantaged Business Could Qualify You You for Special Opportunities 

If you have great connections and resources, you may think identifying as a woman-owned business (WOB) or minority-owned business (MOB) is not essential. However, before you write off seeking resources, associations, programs, or certifications, you should know that merely being an officially recognized WOB or MOB has its advantages.

The designation may help you qualify for government contracts (federal, state, and even local municipalities) that you would otherwise have a more challenging time qualifying for simply because the majority of government contracts still go to male-owned business.

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Microloans for Women in Business

8 Microlenders That Specialize in Helping Female Entrepreneurs

BY

 

Microloans—also known as microcredit—allows disadvantaged borrowers to access the funds necessary to build a small business. These loans help encourage these small entrepreneurs and ease poverty.

Starting your own business can be challenging for a woman entrepreneur, especially if you don’t have a strong track record yet and you’re without collateral when starting out. But many local, state, and national resources are available to female and minority business owners if you know where to look.

These organizations provide microloans—those under $50,000—to women and other marginalized groups. Some eligibility restrictions apply, particularly for loans that are limited to specific geographic areas. Check with organizations directly to stay on top of their most updated offerings. This information was effective as of August 2018. 

Kiva

Woman leading meeting of young professionals in conference room

 

Hero Images/Getty Images

San Francisco-based Kiva is an international nonprofit started in 2005. It aims to reduce poverty by connecting people through microlending. The loans are crowdfunded, with backers contributing donations as small as $25. It offers loans of up to $10,000 at zero percent interest.

Kiva’s microloans are available to borrowers in more than 80 countries and can be used to start or grow a business. Borrowers repay the loans through Kiva, and the lenders can then decide whether to reinvest their funds in another borrower.

business woman using smartphone with reflections in glass

 

MoMo Productions/Stone/Getty Images

Nobel Prize winner Muhammad Yunus, the founder of the successful Grameen Bank women’s microloan program in Bangladesh, founded Grameen America in 2008. The organization gives women in poverty financial education and guidance with the goal of establishing credit. Women in the program also receive a $1,500 microloan to start a business.

Woman hanging an open sign in the window of a cafe.

 

 PeopleImages / Getty Images

Accion is a private, nonprofit organization that provides microloans of up to $50,000 and other financial services to low- and moderate-income entrepreneurs. They include women who are otherwise unable to access bank credit for their small businesses.

In addition to loan programs tailored for female business owners, Accion has programs for other marginalized people as well, including veterans, people of color, Native Americans, and people with disabilities.

You do have to give proof of sufficient cash flow to repay the loan, however. You cannot have any recent bankruptcies or current liens against the property.

Elizabeth Street Capital

Woman working on her laptop in her business' warehouse.

 

 Hero Images / Getty Images

Elizabeth Street Capital is a partnership between the Tory Burch Foundation and Bank of America. The organization partners with community development financial institutions (CDFIs) to provide access to affordable loans for women in underserved communities. Elizabeth Street Capital also offers mentoring support and networking opportunities.

SBA Office of Women’s Business Ownership

Two female mechanics working in their business garage.

 

Hero Images / Getty Images 

The U.S. Small Business Administration (SBA) has an Office of Women’s Business Ownership that helps female entrepreneurs through programs coordinated by SBA district offices. Services include getting access to credit and capital.

The SBA provides funds to nonprofit community-based intermediary lenders that have experience managing and lending. Borrowers work directly with these preselected intermediaries. Loans of up to $50,000 are available to help small businesses start-up and expand.

Each intermediary lender has its own guidelines and eligibility requirements, but SBA microloans are generally not approved for payment of existing debts or to purchase real estate.

The Loan Fund

Business people signing contract in new office

 

Hero Images / Getty Images

The Loan Fund is a private, tax-exempt organization that provides loans, training, and business consulting to entrepreneurs, business owners, and nonprofit organizations throughout the state of New Mexico and the entire Navajo Nation. The organization offers microloans of up to $50,000 to small businesses, although they’re not specifically for women.

The program is restricted to people who live and own businesses in New Mexico.

Women’s Economic Ventures

Businesswoman using laptop in office

 

Morsa Images / Getty Images

This organization provides low-interest business loans to women-owned businesses in Santa Barbara and Ventura Counties in California. Loans for startups range from $250 to $25,000. Business expansion loans up to $50,000 are available to women who have been in business for at least a year and a half.

These loans are only available to people who have lived in Santa Barbara County or Ventura County for at least one year.

Wisconsin Women’s Business Initiative Corporation (WWBIC)

Young female boutique owner signing documents.

 

Buero Monaco / Getty Images

The WWBIC offers microloans from $1,000 to $100,000, and sometimes more, to women in Wisconsin who are small business owners. They also offer education, seminars, business assistance, and referral services in addition to lending programs for women and men.

This organization’s programs are limited to Wisconsin-based small businesses.

Qualifying for a Microloan

Most microlenders are nonprofit organizations. Although they tend to be more flexible than large banks and might require less documentation, you must typically be able to demonstrate a history of sound financial behavior.

 

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What to Expect from a Wrongful Termination Settlement For Employees and Businesses

Wrongful termination is firing an employee for illegal reasons or by violation of company policy. A wrongful termination settlement is the result of the process––the decision of the court or an out-of-court settlement.

Illegal actions. Illegal reasons are violations of law, often anti-discrimination laws. Both federal and state governments have these anti-discrimination laws.

Violation of company policy or contract. For example, a company might include something in its policy manual or an employment contract that says a new employee is guaranteed a 60-day probationary period. If the company fires an employee after 30 days, that would probably be considered a violation. If the contract is implied by the company’s actions, an employee might have a reason to file a wrongful termination lawsuit.

Retaliation. It’s also illegal to fire an employee in retaliation. Often an employer retaliates by firing an employee for being a whistleblower. For example, an employee informs OSHA (the Occupational Safety and Health Administration) about something the company is doing that endangers employees and the company retaliates by firing the employee. Employers also can’t retaliate against an employee who files a workers compensation claim.

When is Firing an Employee Not Wrongful Termination?

When an employee is hired, it’s usually considered employment-at-will. In other words, the employee doesn’t need a reason to leave and the employer doesn’t need a reason to fire.

Exceptions to employment-at-will include an employment contract or a union contract. Some states also recognize “just cause” or “good faith and fair dealing” principles of public policy when considering whether someone has a wrongful termination case.

Companies may do things employees don’t like, but these are not reasons for a wrongful termination lawsuit. For example, unfairness, favoritism, and personality conflicts won’t get an attorney interested in a case.

What Determines the Amount of Settlement?

If the employee wins the lawsuit, the damages––the amounts paid to the plaintiff (claimant)––are then figured out. Several factors come into play here:

Amount of Lost Wages and Benefits. Wages paid to the former employee from other sources may be deducted from this amount, and future wages may also be considered if the employee has been restricted from getting other jobs. The court also looks at costs to the employee from loss benefits, like health care coverage and retirement plan contributions.

Amounts for lost wages and benefits can be calculated, based on records of the employer. But other factors are also considered in setting these costs. For example, in setting a lost wages amount, the court often takes into consideration the employee’s willingness or ability to apply for other jobs.

Emotional Distress or Anguish. This factor is more difficult to determine because it’s hard to set a specific amount. The psychological effects of discrimination, for example, can be devastating and long term. If the employee is going to a psychologist or other mental health professional, these costs can help determine the value for settlement.

Punitive Damages. In some cases, the actions of the company against the employee are especially outrageous or willful. A jury usually sets these amounts as a way to punish the bad behavior of the company.

Cost of Wrongful Termination Lawsuits

Cost to Former Employee. Legal fees are the biggest costs to an employee filing a wrongful termination case against an employer. Since the typical employee doesn’t have a lot of money for an attorney, the fee may be on contingency, which means that the attorney doesn’t get anything unless the case is won. Then the attorney gets a percentage of the award. This fee is usually around 30% of the settlement amount.

If the attorney doesn’t want to wait for the contingency payment, they may ask for a retainer or a combination of a small retainer plus a contingency fee.

Using an attorney for a wrongful termination lawsuit means a greater possibility of increased settlement amounts, but also increased costs.

Cost to Employer. The biggest cost to companies for this type of case is attorney fees. The company may have other internal costs for the time of employees involved in the lawsuit or who have to create documents and cost estimates. If the company has liability insurance the insurance company usually take over the case.

Court costs are usually paid by the losing side in the wrongful termination lawsuit. Even if the lawsuit doesn’t reach a trial, those costs still need to be paid. They vary based on the complexity of the case.

One that those considering a wrongful termination lawsuit don’t consider is the long time it takes for the case to be resolved (usually several years) and the mental and physical toll it takes on the parties.

Should you start a wrongful termination lawsuit against your employer? This article includes some questions to ask yourself, to see whether the benefits are greater than the costs.

How a Wrongful Termination Suit Might be Resolved

Most wrongful termination lawsuits don’t involve a trial because they are settled out of court. That happens because of the high cost in time and money of going to court and the unpredictability of the outcome. Employers are often eager to settle because of the adverse publicity of a public lawsuit. That doesn’t mean they won’t take the case to court if the employee is not willing to negotiate.

In many cases, the employer’s insurance company is involved, and they work hard to get the parties to agree to a settlement.

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Should I Settle Out of Court? Why You Might Want to Take a Settlement Agreement

Couple signing legal document

Going to trial can be lengthy, difficult, and costly. So, many lawsuits end up being settled out of court. In fact, of major case categories, tort cases (including personal injury and negligence) tend to have the highest settlement rates, followed by contract cases, employment discrimination cases, and then constitutional tort cases. One study from the Eastern District of Pennsylvania reported that the highest settlement rate for tort cases was 87.2%. If you’re considering whether to settle out of court or not, here’s a breakdown of how it works to help you decide, plus a sample settlement agreement template.

Many court cases are settled just before trial and, of course, a significant amount of money has probably already been spent getting ready for it. This money may go toward:

  • Billed time for attorneys
  • Costs for investigation
  • Depositions
  • Court filings

To put these costs into perspective, a study at the University of Denver cited this example:

“…while a simple automobile case may resolve quickly after case initiation and incur less than $10,000 in fees, the total costs of such a case can also exceed $100,000 per side if the case goes to trial.”

To Settle or Not to Settle?

Consider these points in making a decision to settle:

    • Stress and time away from work: The “stress factor” is different for everyone, but if the case is taking you away from your work and it’s costing you money, or the stress is eating away at you, it might be wise to settle.
    • Cost of the trial: Paying an attorney is a big part of the cost. The trial process can take months, if not years, eating up your time as a participant and causing stress. The costs may include attorney fees, costs of pretrial motions, discovery, depositions, and interrogatories.
  • Judge vs. jury trial: Jury verdicts are more uncertain than having a judge. For instance, studies have found that juries tend to be more empathetic to defendants in certain situations than a judge might be. If you are the plaintiff in a jury trial, you might want to settle if the trial has been given to a jury.
  • The certainty of the outcome: Probably the biggest reason many cases are settled before the trial is that the outcome of a trial is difficult to predict. Why spend all that time, money, and effort if there’s a possibility you won’t win the case? You or the other party can appeal a trial verdict, but a settlement ends the dispute and is binding on both parties.

Another Possibility for Settlement: Mediation

As a way to get to a settlement agreement, the parties in a lawsuit can agree to mediation. In mediation, the two parties meet with a trained mediator who works to reach an agreement. At any point in a lawsuit before trial, the two parties can agree to mediate; if mediation comes to a stalemate, the lawsuit can continue.

How Does a Settlement Agreement Work?

A settlement agreement is a contract, so it must meet the terms necessary for a contract, including mutual agreement and consideration (something given by both sides).

The various sections in a typical settlement agreement may include:

  • Names of the parties to the agreement
  • An introduction that explains the reasons for the contract, also known as the “whereas” section
  • The “no admission of liability” clause that says the settlement doesn’t include an admission of wrongdoing by either party
  • A “promise to pay” section that states the settlement amount that one party agrees to pay to the other party
  • The invoicing and payment schedule with details on the money transfer
  • The “mutual release” clause, which states that both parties agree not to make any claims against the other party; the details in this section are an attempt to cover all possible situations.

Law Office of Bryan A. Chapman

Contact:

Bryan A. Chapman, Esquire

(202) 508-1499

bchapman@baclaw.com

http://www.baclaw.com

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Filing a Discrimination Claim – Virginia

Employment discrimination is the practice of unfairly treating a person or group of people differently from other people or groups of other people at work, because of their membership in a legally protected category such as race, sex, age, or religion.  Each state has passed laws and rules to protect your workplace rights: this page covers Virginia employment discrimination.  The purpose of the Virginia Human Rights Act is to protect workers in Virginia from unlawful discrimination in employment. Read below to learn more about Virginia employment law and how the law protects you.

1. What kinds of discrimination are against state law in Virginia?

The Virginia Human Rights Act makes it illegal for an employer to discriminate on the basis of race, color, religion, national origin, sex, pregnancy, childbirth or related medical conditions, age, marital status or disability (physical or mental).

2. How do I file a discrimination claim in Virginia?

A discrimination claim can be filed either with the state administrative agency, the Virginia Division of Human Rights (DHR) or the federal administrative agency, the Equal Employment Opportunity Commission (EEOC). The two agencies have what is called a “work-sharing agreement,” which means that the agencies cooperate with each other to process claims. Filing a claim with both agencies is unnecessary, as long as you indicate to one of the agencies that you want it to “cross-file” the claim with the other agency.

The Virginia anti-discrimination statute covers some smaller employers not covered by federal law. Therefore, if your workplace has between 6 and 14 employees, you should file with the DHR, as the EEOC enforces federal law which covers only employers with 15 or more employees. If your workplace has 15 or more employees, you may file with either agency.

To file a claim with the DHR, contact its office below. More information about filing a claim with the DHR can be found at the DHR website.

Division of Human Rights
202 North Ninth Street
Richmond, VA 23219
Phone: (804) 225-2292

To file a claim with the EEOC, contact your closest local EEOC office below. More information about filing a claim with the EEOC can be found at the EEOC Filing a Claim page.

Norfolk Area Office
Federal Building, Suite 739
200 Granby Street
Norfolk, VA 23510
Phone: 757-441-3470
TTY: 757-441-3578

Richmond Area Office
400 N. Eight Street
Suite 350
Richmond, VA 23230
Phone: 800-669-4000
TTY: 800-669-6820

Washington Field Office
131 M St., NE
Fourth Floor Suite 4NWO2F
Washington, D.C. 20005
Phone: 1800-669-4000
TTY: 1800-669-6820

EEOC has launched an online service that enables individuals who have filed a discrimination charge to check the status of their charge online.  This service provides a portal to upload and receive documents and communicate with the EEOC, allowing for a faster transmitting period.  Those who have filed a charge can access information about their charge at their convenience, and allow entities that have been charged to receive the same information on the status of the charge.  All of the EEOC offices now use the Digital Charge System.  If you file on or after September 2, 2016, the Online Charge Status System is available for use.  The system is not available for charges filed prior to this date or for charges filed with EEOC’s state and local Fair Employment Practices Agencies. The system can be accessed at the EEOC website. If you do not have internet or need language assistance, you may call the toll-free number at 1-800-669-4000. For additional help, you may also call the toll free number to retrieve the same information provided in the Online Charge Status System.

3. What are my time deadlines?

Do not delay in contacting the DHR or EEOC to file a claim. There are strict time limits in which charges of employment discrimination must be filed. To preserve your claim under state law, you must file with the DHR (or cross-file with the EEOC) within 180 days of the date you believe you were discriminated against. To preserve your claim under federal law, you must file with the EEOC (or cross-file with the state agency) within 300 days of the date you believe you were discriminated against. However, as you might have other legal claims with shorter deadlines, do not wait to file your claim until your time limit is close to expiring. You may wish to consult with an attorney prior to filing your claim, if possible. Yet if you are unable to find an attorney who will assist you, it is not necessary to have an attorney to file your claim with the state and federal administrative agencies.

You may also wish to check with your city or county to see if you live and/or work in a city or county with a local anti-discrimination law, or “ordinance.” Some cities and counties in Virginia have agencies that process claims under local ordinances and may be able to assist you. These agencies are often called the “Human Rights Commission,” “Human Relations Commission,” or the “Civil Rights Commission.” Check your local telephone directory or government website for further information.

4. What happens after I file a charge with the EEOC?

When your charge is filed, the EEOC will give you a copy of your charge with your charge number. Within 10 days, the EEOC will also send a notice and a copy of the charge to the employer. At that point, the EEOC may decide to do one of the following:

  • Ask both you and the employer to take part in a mediation program
  • Ask the employer to provide a written answer to your charge and answer questions related to your claim, then your charge will be given to an investigator
  • Dismiss the claim if your charge was not filed in time or if the EEOC does not have jurisdiction

If the EEOC decides to investigate your charge, the EEOC may interview witnesses and gather documents.  Once the investigation is complete, they will let you and the employer know the result. If they decides that discrimination did not occur then they will send you a “Notice of Right to Sue.” This notice gives you permission to file a lawsuit in a court of law. If the EEOC determines that discrimination occurred then they will try to reach a voluntary settlement with the employer. If a settlement cannot reached, your case will be referred to the EEOC’s legal staff (or the Department of Justice in certain cases), who will decide whether or not the agency should file a lawsuit. If the EEOC decides not to file a lawsuit then they will give you a “Notice of Right to Sue.”

Law Office of Bryan A. Chapman

Contact:

Bryan A. Chapman, Esquire

(202) 508-1499

bchapman@baclaw.com

http://www.baclaw.com

Join Facebook group: I Need A Discrimination Lawyer