Reducing the Risk of Systemic Discrimination Claims

A Checklist for Employers

Systemic discrimination claims are on the rise. The EEOC has made investigating and litigating issues involving employers’ policies and practices that allegedly have a disparate impact on women, minorities, the disabled and other protected employees a priority. In addition, the OFCCP is continuing to explore potential systemic discrimination issues among government contractors, and plaintiffs’ lawyers are also seeking to take part in this wave of systemic discrimination litigation.

To reduce the risk of defending systemic discrimination claims, employers should ask the following questions:

·  What are our current practices for making pay decisions? All of them, including base salary, bonuses, commissions, equity, and any other form of compensation.

·  Do we train managers on proper pay practices?

·  How is base pay set for new hires, and how is that process documented?

·  What is the process for identifying candidates for promotion and making promotion decisions?

·  Do our job descriptions fully and specifically set forth the requirements of each position?

·  What policies govern pay discrimination and discussions among employees about pay?

·  What do we know about any existing pay disparities or anomalies?

·  Are any positions/locations/levels dominated by one gender?

·  How do we pay independent contractors or other contingent workers?

·  For whom may we be considered a joint employer, and what are our pay practices as to those workers?

To address systemic discrimination risk, employers should also consider the following:

·  Do we have centralized decision making on pay issues?

·  Do we have uniform policies or practices as to pay issues?

·  Do we have any significant statistical disparities?

·  Do we have dominant populations of one gender in a position, department or location?

·  Conducting an audit of pay practices and/or a pay equity analysis;

·  Making changes to hiring and promotion policies and practices;

·  Modifying pay scales/salary ranges as necessary to ensure parity;

·  Imposing compensation adjustments where appropriate;

·  Making voluntary disclosures regarding pay equity.

Copyright © 2016 Jackson Lewis P.C. This publication is designed to give general and timely information on the subjects covered. It is not intended as advice or assistance with respect to individual problems. It is provided with the understanding that the publisher, editor or authors are not engaged in rendering legal or other professional services. Readers should consult competent counsel or other professional services of their own choosing as to how the matters discussed relate to their own affairs or to resolve specific problems or questions. This publication may be considered attorney advertising in some states. Furthermore, prior results do not guarantee a similar outcome.

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