What Defenses Does an Employer Have to a Charge of Discrimination?

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Employer defenses for discrimination.In America, there are many laws that exist at both the federal and state level that protect workers from discrimination in the workplace. And on October 1, 2019, Maryland workers gained even more protections than provided by federal and previous state laws. Maryland law now protects people who work at small companies with only one employee as well as independent contractors. With these and other recent expansions of employee protections, employers must be proactive regarding issues of discrimination and harassment. The best defense is a good offense. So contacting an experienced employment legal matters attorney may be the most important thing you do to protect your business.

The Best Defense Is a Good Offense

We live in a litigious society. So there is no way to completely insulate yourself and your company from lawsuits. However, there are many things you can do as a business owner to greatly decrease your chances of ending up in court defending against claims of discrimination.

Be Clear and Write it Out

The very first thing that employers should do is take the time to develop comprehensive policies regarding workplace discrimination. Consult an attorney who can guide you through federal and state laws that affect your company. With professional guidance, be sure to cover all critical aspects of employee behavior that the company will not tolerate. Put it all down in writing in an employee manual or handbook that everyone receives when they are hired. This handbook should also spell out the procedure employees should follow if they believe they are the victim of discrimination. The handbook should convey a zero-tolerance policy for workplace discrimination and a clearly defined procedure for reporting and investigating complaints.


It is imperative that you fully train your staff on discrimination issues in the workplace. Many discrimination incidents happen at the mid-management level, when employees feel that supervisors single out minorities, etc., for harsher treatment than others. Therefore, mid-level supervisors should be regularly trained and sensitized to the importance of remaining fair and impartial when dealing with all employees. Higher-level supervisors should be trained to take all complaints seriously, regardless of whether they perceive the complainant as the type of person who always has something to gripe about. Ignoring such allegations can be the fastest route to court, so train your staff accordingly.

Follow Your Own Rules

Once you set out company policies, be sure to follow your own rules. Sometimes, supervisors and business owners are so busy running the company that they tend to sweep allegations of wrongdoing under the rug. This is a grave mistake. Take all allegations seriously from their inception. Investigate promptly and fully as soon as an employee expresses concern. Being proactive and attentive to employee needs goes a long way in establishing a fair workplace where employees feel valued. And employees who feel valued and heard are less likely to take you to court.

Document Everything

When performing your investigations, be sure to document absolutely everything. Keep detailed notes and records of all interviews, evaluations, investigations, and assessments. Also be sure to keep the employee informed as to what actions you are taking. After you complete the investigation, be sure to inform the employee in writing as to the findings and conclusions you reached and why.

Actual Defenses

Despite your best efforts, the time may come when you must actively defend against claims of discrimination. Here are some of the most common defenses available.

Valid Business Purpose

The law recognizes that some policies have a valid business purpose, but when applied, can appear to be discriminatory. For instance, if a company has a requirement that all warehouse workers be physically able to lift 50 pounds, that requirement may negatively impact more women than men. The intent behind the rule can be completely neutral yet still have a more negative effect on women trying to land the job than men.

The key here is whether the “facially neutral” reason behind the rule is legitimate. In other words, if there is a genuine business concern behind the rule, then the law allows the rule to stand. However, if there is a less discriminatory way to achieve the same goal, a court could find that the allegedly valid business reason is pretextual and subject to discrimination claims.

Non-Discriminatory Motive

When an employer takes action against an employee who then claims discrimination, the employer can fight the claim by alleging a non-discriminatory motive. For instance, suppose that Kelly is the only African-American working at her job. One day her boss, Jake, fires her. Kelly then files a discrimination claim against the company and Jake. She alleges that Jake always treated her worse than other employees and that her race was the reason Jake fired her.

If the company can prove that Jake fired Kelly for valid reasons, the claim will likely fail. If Jake produced evidence of habitual tardiness, for example, that could prove that he had a non-discriminatory motive in letting Kelly go. However, if there is no evidence of past issues, reprimands, or warnings given to Kelly for poor work performance, the reason looks pretextual and Kelly may have a valid claim.

Employer Did Not Know

If the complainant employee failed to follow clearly defined procedures to report the alleged discrimination, then the employer may have a valid defense. This is especially true of harassment claims. The bottom line is that employers cannot remedy a situation that they are not aware of.

Contact the Professionals

The lawyers at the Smithey Law Group are here to help your business comply with current employment laws. We want to help you keep your business protected against claims of discrimination, harassment, or any other allegations of wrongdoing. If you get sued, we know what defenses work and how to best protect your rights and your business interests. So call us at 410-919-2990 or contact us online to schedule your initial consultation with one of our lawyers today.

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Joyce Smithey, a seasoned employment and labor law attorney, has over 22 years of experience representing both employers and employees in Maryland and D.C. Her practice, rooted in a deep understanding of employment law, spans administrative hearings to federal litigation. Joyce's approach is comprehensive, focusing on protecting client interests while ensuring legal compliance. A Harvard graduate, her career began in Fortune 500 companies, transitioning to law after a degree from Boston University School of Law. Joyce's expertise is recognized by numerous awards, including Maryland’s Top 100 Women. At Smithey Law Group LLC, which she founded in 2018, Joyce continues to champion employment rights, drawing on her rich background in law and business.

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