In one recent court case, an employee complained that she was regularly harassed by co-workers because of her national origin.

She was originally from Mexico and spoke Spanish as her first language. Other employees had problems with her limited English — she claimed they would often respond to her comments by yelling, “What? What?” or “I do not understand you.”

The woman complained to her boss about how she was being treated, but no action was ever taken. The manager’s reaction: They were just voicing legitimate complaints about her communication skills.

But she didn’t see it that way — she sued the company for allowing a hostile work environment.

The court agreed. The employee demonstrated she knew enough English to do her job. Her co-workers clearly weren’t making legitimate complaints, they were taunting and harassing her.

The company failed to have the case thrown out and will now face a costly jury trial.

The lesson for managers: If it looks like employees are giving someone a hard time because of anything related to race, religion, gender or ethnicity, it’s your duty to step in and stop it.

Cite: Navarro v. U.S. Tsubaki, Inc.

In many situations, yes, as long as the documentation is in order. But here’s a case where a manager’s flexibility went too far — and got the company in big trouble:

A male bus driver was fired after dropping a student off at an unauthorized stop, in violation of the school district’s policy.

The problem: A few other drivers, all female, had broken the same rule but were never disciplined.

So the male driver sued, claiming he was fired because of his gender.

His manager argued the decision was partially based on the man’s previous performance — during his tenure, he’d been involved in one accident, and the school district had gotten several complaints about him from students’ parents.

His unauthorized stop was just the final straw.

What did the court think?

The judge sided with the employee. He presented a lot of evidence of how frequently the policy was broken. One female driver was caught making unauthorized stops on a regular basis for two years, without any disciplinary action.

The man did have problems in the past, but the school district couldn’t prove the rule had ever been taken seriously by management when female employees were involved.

The lesson for managers: You don’t have to treat every employee exactly the same, even when they violate the same policy. In some cases, such as when there’ve been previous behavior problems, the company might decide to fire an employee while only warning the other.

But firing someone while taking absolutely no action against anyone else is likely to lead to a discrimination lawsuit.

Cite: Dinkins v. Suffolk Transportation Services.

A recent case is a reminder that working in HR is often like herding cats — once you’ve got managers doing one thing right, there’s a chance they’re making mistakes in another area.

In this case, the manager kept all his documentation in order, but still managed to cause big trouble for the company.

An employee was disciplined for several behavior and performance issues. Over the course of a year, she was:

• given a negative review for failing to get work done on time
• warned about her attendance
• suspended for falsifying time records, and
• warned in writing for not following the employer’s procedures.

Eventually, she was suspended again for failing to perform some of her job duties and placed on a performance improvement plan. The company gave her one more chance to correct the problems.

In her next review, her manager described her performance as “marginal.” The supervisor brought the situation to his boss and the employer’s HR manager, who made the obvious decision: The employee was fired.

Sound reasonable? The employee didn’t think so. She claimed her boss disciplined her and gave her negative reviews because of her age and sex. She pointed to several comments he made to her, including, “Women are good for one thing and that is sex,” and, “They’re too old to do their jobs well anymore,” referring to two of the woman’s co-workers.

Didn’t make decision

The employee took the issue to court. The company tried to have the case thrown out, arguing that the manager wasn’t involved in the final decision to fire her. He brought the problems to the attention of his supervisor and HR, and they made an unbiased decision based on his documentation.

But that didn’t matter to the judge. Even if the final decision-makers weren’t biased, the woman wouldn’t have been fired without the actions her manager took. And, based on his discriminatory comments, the court believed she’d been repeatedly disciplined because of her age and gender.

The court refused to toss the case, and the now company will have to defend itself in a costly jury trial or pay an expensive settlement.

Stay out of trouble

Here are some steps HR can take to prevent one rogue supervisor’s biases from causing big legal trouble for the company:

• Investigate. As this case shows, sometimes it’s not enough for a decision-maker to rely on a front-line manager’s assessment. It’s often necessary to ask for the employee’s side of the story before taking any action.
• Train regularly. Managers need to understand how the things they say can be interpreted by employees — supervisors have gotten in trouble over less outrageous comments than the examples in this case.
• Follow up. After training, make sure supervisors who still give the impression of bias are disciplined.

Cite: Lanahan v. Southern Nevada Health District

An employee sued over the state of her company’s bathrooms.

The employer provided single-occupancy unisex facilities. The woman complained that the bathroom she had access to was frequently dirty and “sometimes occupied when she wanted to use it.”

She repeatedly made complaints and asked the company to install gender-segregated restrooms, but nothing was done by the company.

The employee filed a claim for gender bias, saying the lavatory’s condition created an uncomfortable situation for female employees.

The company argued that her complaint wasn’t severe enough to create an adverse employment action or a hostile work environment. Moreover, men were just as affected as women by the bathroom situation.

Who won?

The court agreed with the employer and flushed the case.

Cite: Dauer v. Verizon Communications, Inc.

Though it was only signed a few weeks ago, the Lilly Ledbetter Fair Pay Act has already caused big legal problems for some companies.

Signed by President Obama on January 29, the Ledbetter Act gives employees more time to sue when they believe they’re victims of pay discrimination. The Supreme Court had previously ruled pay bias suits had to be filed within 180 days of the discriminatory decision.

But the new law gives employees a new 180-day window to sue every time they receive a paycheck in which they claim they are discriminated against.

The act was effective immediately — and applies retroactively to lawsuits still pending as of May 28, 2007, the day before the Supreme Court’s decision.

It’s already made it tougher to prevent discrimination suits:

In one case, three women sued their employer, claiming they were unfairly demoted because of their gender.

The demotions occurred in 1990 — so the company argued the employees missed out on the statute of limitations.

But the court issued a ruling on February 2 — four days after the Ledbetter Act was signed. And, since the demotions resulted in a loss of pay that continued to the present day, the court ruled the new law applied to their lawsuit.

The judge noted that just a week earlier, the case would have been tossed on those grounds. But not anymore.

Eventually, the case was thrown out because the company proved the demotions were based on non-biased factors (Cite: Bush v. Orange Counry Corrections Dept.).

In another recent case, an employee believed he was being paid less than his colleagues based on his race and gender. He sued.

The company tried to have the case dismissed because his pay was set several years before — well outside the statute of limitations. But the judge let the case go forward, applying the Ledbetter Act to his claims (Cite: Rehman v. State University of New York at Stony Brook).

What can HR do now?

Given the law’s immediate impact, what steps can HR take now to prevent lawsuits based on decisions that occurred far in the past?

Some experts recommend conducting a self-audit to uncover anything that could look like pay discrimination.

First, examine company policies on starting salaries and raises. Many companies don’t have a formal policy, giving individual managers wide discretion in pay decisions — which could turn out to be a liability under the new law.

Next, consider analyzing pay data to make sure no employees have been harmed by unfair decisions that violated your policy. Then, your company can remedy the situation without having to go to court.

In one recent case, a supervisor caught an African-American employee setting off firecrackers at a job site. The supervisor notified upper management, and the employee was fired for a blatant violation of their safety policy.

Seems like a pretty simple case, right? Wrong.

The employee sued for discrimination. Two white employees were caught doing the same thing and weren’t reported by the supervisor.

The company’s defense: The decision-makers were never aware of the other safety violations. The employee was fired based on his manager’s report. If the company knew about the other employees’ conduct, they would’ve been fired, too.

But that didn’t matter to the judge. The front-line manager discriminated against the employee by taking action against him and not his white co-workers. Therefore, the company was liable.

Cite: Madden v. Chattanooga City Wide Service Dept.

A group of employees were laid off, including five African-American women.

On their last day, the women’s boss watched them as they gathered their effects and searched their belongings as they went out the door.

His goal: To make sure no confidential company information was being taken.

But the women felt he went overboard. Some co-workers even asked the supervisor if the employees were being arrested.

Also, they claimed a white, male employee was let go the same day and wasn’t subjected to the same scrutiny. They sued the company for race and gender discrimination.

The company tried to have the case thrown out, arguing the monitoring was simply to prevent theft.

But the judge didn’t buy it — as far as the evidence showed, there was no non-biased reason for the manager to treat the women differently than their male co-worker.

Cite: Trustees of Health and Hospitals of the City of Boston, Inc. v. Massachusetts Commission Against Discrimination

The Lilly Ledbetter Fair Pay Act was passed last week by the Senate, after getting approval from the House of Representatives earlier in the month.

The bill now goes to President Obama, who has been a vocal supporter of the new law. He’s expected to sign it on January 29.

It will overturn a 2007 Supreme Court case — Ledbetter v. Goodyear Tire and Rubber Co. – by greatly expanding the statute of limitations for pay bias claims.

Lilly Ledbetter sued Goodyear after learning she’d been paid less than males working the same job.

The Court decided against her, because she failed to file her complaint within the statute of limitations. According to the Court, she had to file within 180 days after the discriminatory decision was made — in this case, when she was hired 20 years ago.

The new law will give employees a new 180-day window to sue every time they receive a paycheck in which they claim they are discriminated against.

One of a manager’s hardest tasks: Dealing with a difficult employee who’s constantly making frivolous complaints. What can supervisors do without being accused of retaliation?

A recent court case involved an employee who didn’t get along with his boss or his co-workers. He claimed his supervisor treated him different than younger, female employees.

Throughout his employment, he filed several complaints with management and HR. For example, he alleged:

• his supervisor refused to take his suggestions during staff meetings
• his work was monitored more closely than other workers’, and
• a performance review that labeled him as a difficult employee was the result of age and gender bias.

HR investigated each complaint, but could find no evidence of discrimination. The conclusion: The employee was “sensitive to feedback” and needed to work out his personal conflict with his supervisor. After each investigation, he was told to improve the relationship and “move on.”

Can manager discipline constant complainer?

The company began outsourcing some of its operations and had to shrink the employee’s department. He was one of the employees chosen to be terminated.

He sued, claiming he was treated unfairly because of his gender and fired in retaliation for his complaints.

The company argued that all of the employee’s complaints were handled properly and the company issued  appropriate responses. The constant complaints were disrupting the workplace, so the employee was asked to improve the relationship with his boss.

Who won the case? Answer: the company. The court ruled the complaints and the termination weren’t connected.

The judge took the situation for what it was: The company disciplined — and then chose to get rid of  — a difficult, poor-performing employee.

The lessons for managers dealing with difficult people who complain:

1. Treat all complaints the same. Assuming someone’s claims are frivolous is an easy way to avoid correcting a real problem. That could get the company sued.
2. Educate employees on what constitutes harassment and discrimination. One way to limit frivolous complaints is to educate people on what is and isn’t against the law.
3. Don’t avoid dealing with difficult people. As this case shows, managers can take action when an employee’s constant complaints disrupt the workplace. Just make sure all the problems are documented.

Cite: Brinkman v. Andersen Corp.

Correcting it quickly can keep the company off the hook. Here’s what happened in one recent court case:

After a truck driver was involved in an on-the-job accident, her manager made the decision to demote her. However, the company’s policy did not call for a demotion after the first such offense.

When upper management learned about the mistake, the employee was put back in her old position and given back pay to cover the amount she lost while working in the lower position.

But before the reversal went into effect (21 days after the demotion), she filed a complaint with the EEOC — claiming she was demoted because of her race — and took the company to court.

Was corrective action enough?

The woman claimed the demotion — even if it was temporary — was an “adverse action” and caused her to suffer depression and anxiety.

The court didn’t buy it. She got her job back, along with back pay. By timely correcting the mistake, the company was able to avoid a discrimination charge.

Note: The key word is “timely.” If the woman was kept in the lower-level job for an extended period of time, that might’ve been enough to constitute an adverse action.

Cite: Jackson v. UPS, Inc.