Workplace discrimination remains an important issue for employers. Here’s how to protect yourself | Expert Opinion

Workplace discrimination guidelines have been changing under President Donald Trump’s administration.

The Equal Employment Opportunity Commission has been rolling back Biden-era guidelines — particularly with regard to Diversity, Equity and Inclusion (DEI) policies. But avoiding discriminatory practices remains a top concern among employers, both when hiring and terminating employees.

Taking several important steps can ensure that your business is not on the wrong side of a discrimination claim.

Avoiding claims of discrimination can be mostly accomplished by focusing on job descriptions, said Claude Schoenberg, a labor attorney based in Bala Cynwyd.

Schoenberg says that a good job description fully lays out what’s required of an employee to adequately perform their job. “It becomes your Bible and it takes a lot of the subjectivity out of the conversation,” he said.

It is clear about the physical nature of the work such as moving large boxes, lifting heavy items, operating equipment, or working outdoors in all kinds of weather. A good job description details every single required job function, so if any of these functions are not being completed, the employer has the right to take action.

“If you have employees for whom there is no job description, then develop one. It’s a critical document and it cannot be vague,” Schoenberg said. “If you don’t have that job description, then you are vulnerable to claims alleging things that you may not have said or done.”

Some jobs make this tricky, Schoenberg warns, such as roles that require wearing a specific type of clothing at work, or positions that are only open to one gender (such as a male attendant in a men’s locker room).

“You should always have an attorney review your job descriptions before using them,” he said. “And there should be a very detailed job description for every single employee at your company, from hourly workers to your top managers and executives.”

But job descriptions do not broadly protect employers from any kind of discrimination claim, said Christina M. Reger, a labor attorney at Loutel Law in Newtown.

“They’re helpful in things like disability accommodation disputes, but not as a catch-all defense against all age, gender, and race claims,” she said.

Anti-discrimination rules should be a “critical part of every company’s handbook,” Reger said, and must be communicated to employees regularly. She recommends ongoing training for managers so they can identify any potential issues.

“Policies should be living and broad without listing specific protected classes one-by-one, which would help avoid constant updates and prevent misunderstandings when language changes,” she said.

To help enforce these rules, Reger also recommends having a clear complaint procedure and an external source for complaints. This could include an outside attorney with a dedicated email or phone line for complaints, or a third-party human resources consultant.

“Many small employers get burned because the complaint path is not credible,” she said. “You want complaints going to an external source, not directly to the EEOC.”

The EEOC’s new policies are pushing back against corporate DEI practices that became mainstream in recent years. Instead, the EEOC is encouraging employers not to discriminate based on factors such as skin color, religion, and sexual orientation. The agency now says all employees should be treated equally regardless of these factors and hiring practices should reflect the same.

The change in policy can be confusing, but Schoenberg reminds his clients that when it comes to discrimination in the workplace, the EEOC only sets guidelines. Depending on the political environment, the EEOC has been known to flip-flop. But court rulings are binding.

“The EEOC’s own regulations do not have the force of law,” he said. “Employers should focus on actual statutes and court interpretation — not the administration’s latest guidance.”

Before terminating an employee, Reger suggests the employer do a “retaliation/discrimination risk check.” This involves running through a checklist of documentation — recent complaints, leave, accommodation requests, protected status signals — and documenting the legitimate reason for termination.

Employers should “also strongly consider severance pay if it can help reduce the risk of a lawsuit,” she said.

Schoenberg advises companies to get Employment Practices Liability Insurance (EPLI) as a “backstop.” Most general liability policies don’t cover employment practices, he said, and employers should not assume that they’re covered if a discrimination lawsuit is filed against them.

All of this points toward treating employment as a life cycle from hiring to termination.

“The more you document that life cycle, the better off the employer is,” said Schoenberg.