3 Tips to Protect Yourself Against Retaliation and Discrimination Claims When Hiring a Household Employee

employment claims from household employees

Few phrases will get an employer’s attention faster than hostile work environment, discrimination, or retaliation. Regardless of how one may feel about these terms, these claims often earn the scrutiny of employment law attorneys and various regulatory agencies, including the Equal Employment Opportunity Commission (EEOC). The truth is, even the smallest employers – such as households with just one caregiver, nanny, or personal assistant working in the home – can find themselves at the receiving end of a stressful and expensive employment claim. Even baseless claims must be handled to resolution, and the process often takes a year or more. Let’s explore how to handle employment claims from household employees.

What is the EEOC?

The EEOC is responsible for enforcing the federal laws that make it illegal to discriminate against a job applicant or an employee based on their demographic traits, which are referred to as “protected classes”. Under federal law, protected classes include race, color, religion, sex (including pregnancy, gender, and sexual orientation), national origin, age, disability status, and genetic information. This means that employers cannot refuse to hire, pass over for promotion, or take any other disciplinary action (such as terminate employment or take away a preferred shift) for a reason that is based on any characteristic of a protected class. These laws apply to all facets of the employment process – from hiring and firing practices, to interview questions, performance reviews, pay, and benefits.

The EEOC has unilateral authority to investigate matters that are reported to them. If a finding is determined, they are also permitted to facilitate the settlement process as a way to seek resolution. If a settlement cannot be reached, the EEOC may also file a lawsuit on behalf of the aggrieved employee or applicant – and no well-meaning employer wants to be on the receiving end of a federal lawsuit.

What is the best way to avoid a retaliation or discrimination claim?

Being an employer carries inherent risk. Any decision to hire, fire, or otherwise manage employee performance can create employment-related liability if not handled with extreme care. In a landscape where the employment laws are increasingly complex, the best defense is acting proactively. 

While there is no single, bulletproof solution for staying out of hot water, below are three things employers can do to avoid becoming the subject of an EEOC investigation. 

1. Ensure you have up-to-date, clear workplace policies

This may sound simple, but having documented policies that stress zero tolerance for harassment, discrimination, and retaliation of any kind will help demonstrate that you operate in a legal and compliant manner. These policies should be distributed to both new hires and existing employees, and your workers should be trained regularly on the importance of treating others fairly and with respect. These policies should also be stored in a centralized, conspicuous location so that they are easily accessible to all employees. 

It is equally important that the policies you maintain are reviewed annually (at a minimum) and meet all legal standards. Employment laws change rapidly and dated policies may no longer provide the security needed to keep your workplace safe. In instances where state-specific anti-harassment laws have changed significantly, it is often true that having no written policy can be better than a poorly-written or incorrect policy. 

Here’s an example:

Imagine a policy that states an employee will be fired if he or she can’t work overtime on the weekend. This type of policy could be problematic for employees who may have religious observances that would interfere with their ability to work weekend overtime. 

If the employee is fired (whether for this reason or for another performance reason) the EEOC or the employee’s attorney could point to this policy as evidence that the employer regularly engages in illegal business practices by discriminating against employees whose religions require them to rest on the weekends. A better policy would outline that, although it is preferred that employees be available to work overtime on the weekends, any employees who cannot do so would be engaged in an interactive process to assess whether a reasonable accommodation could be made.

2. Follow fair and consistent hiring practices

When interviewing prospective employees, hiring managers should only focus on questions that are tied to the ability of the candidate to perform the job at hand. There are several “getting to know you” questions that may seem friendly and innocent, but are actually rife with legal risk. 

Here are a few examples of risky interview questions and the liability they potentially pose: 

  • Asking a candidate what nationality or race they are, or where their family or ancestors are from. This may lead to a claim of national origin discrimination. There is no “nice way” to ask this question and it should be considered irrelevant for any interview. Instead, try brainstorming other “small talk” questions you can ask in advance.
  • Asking a candidate if he or she has children, plans to have children, or has adequate childcare arrangements. This could be seen as discriminatory. If intending to gauge reliability or attendance of any candidate, a better way to accomplish this is to outline the position’s schedule and ask the candidate if they can work the required hours. If travel is required, provide an estimate of the travel requirements (e.g., one week per month, 20% travel required, etc.) and ask the candidate to confirm whether he or she can meet these requirements.
  • Asking a candidate about his or her disability. This could be viewed as discriminatory against individuals with disabilities. Hiring managers should provide all candidates with a detailed job description and ask the employee to confirm whether he or she can perform the essential functions of the role, with or without reasonable accommodation. If a candidate cites the need for any type of accommodation, it’s important to engage in an interactive process with the individual to determine whether an accommodation can be extended. It’s best to involve an HR expert or seek legal counsel to ensure that this process is carried out in a fair, compliant manner.

3. Ensure you have adequate documentation for disciplinary action

Properly documenting the justifications for an employment decision is a critical step in carrying out a termination or any other adverse employment action (such as a written warning or demotion). To the extent possible, these justifications should include as much quantitative data as possible.

It is important to watch for reasons that could appear too qualitative or subjective in nature. For example, stating that an employee “works too slowly” is subjective and can open up the employer to disputes about what the word “slow” is intended to mean for a worker who also happens to be over 40 (age discrimination) or has a certain intellectual disability (disability discrimination). But if the employer phrases the reason as, “Employee is not consistently meeting the daily requirement of resolving 15 cases daily and is only resolving an average of 7 per day,” this is now much more difficult to dispute and clearly tied to a specific job metric.

It is also important to examine recent performance reviews to ensure there are no contradictory statements, and to complete an internal evaluation to identify the potential for any lawsuit or other claim. Has the employee recently filed a workers’ compensation claim? Has the employee recently complained about his or her wages, or some other employment matter? If so, the timing of this employment action may feel retaliatory in nature, and you would be well-advised to proceed with caution.

While there is no such thing as a risk-free termination, following these simple steps to ensure that you have solid documentation and can justify the reason for a termination in an unbiased, clear manner is critical. Managers and employers are well-served taking the time to evaluate any and all other risks that could arise before taking an employment action. Even the termination meeting itself should be led by a seasoned manager or HR expert to ensure that the messaging is carefully worded. It may also be prudent to have another person present as a witness. 

Don’t become an EEOC statistic

The bottom line is that no matter the situation, employers are responsible for ensuring a safe and effective work environment for all employees. It takes time and effort to keep things running smoothly, but when difficult situations arise, you will be grateful to have these practices in place.

If you are looking for assistance in navigating these types of sensitive employment matters in a way that minimizes risk, reach out to TEAM to learn more about getting full-service access to HR professionals who can help guide you through any employment matters.