How to Defend Yourself in a Ethnic Discrimination Lawsuit

Three Methods:Arguing Procedural or Technical DefectsArguing Job- or Business-Related DefensesMaintaining Anti-Discrimination Policies

If you receive an ethnic discrimination complaint your first step should be contacting an attorney with experience defending employers in discrimination lawsuits. Your attorney will evaluate your case and work with you to build your defense; however, there are steps you can take to help defend yourself against an ethnic discrimination lawsuit. Being proactive and keeping written records of all anti-discrimination policies and complaints can give you a step up in litigation.[1][2]

Method 1
Arguing Procedural or Technical Defects

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    Evaluate the complaint against you. The complaint may contain mistakes or inconsistencies that you can use as a defense against the plaintiff's claim.
    • Check the deadline. If the complaint was filed in federal court, you must file your answer to the lawsuit within 20 days.[3]
    • If the employee hasn't met the legal requirements to file a suit, you may be able to have it dismissed on those grounds.[4]
    • For example, an employee filing an ethnic discrimination lawsuit typically must have a Right-to-Sue letter from the EEOC before he or she can initiate a lawsuit. If this letter isn't present, or the employee has not filed a charge with the EEOC, you may be able to get the lawsuit dismissed.[5]
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    Research federal and state administrative requirements. If an employee files a lawsuit against you alleging ethnic discrimination, it likely isn't the first time you've heard of the problem.
    • Typically an employee must go through the dispute resolution processes provided by state and federal government agencies before he or she can file a lawsuit in court.
    • If the employee previously filed a charge with the EEOC, you should review the information contained in the charge and the investigation that followed. You may have a defense if the employee's lawsuit exceeds the scope of the original charge, or if he or she alleges discriminatory acts that were not included in the original charge.[6]
    • If you haven't already, make sure you have a full copy of the EEOC or state agency file on any discrimination charges the employee has filed and provide those to your attorney.[7]
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    Analyze the jurisdiction of the court where the complaint was filed. Even if the employee has the right to file a lawsuit, he or she still must file in the correct court with proper jurisdiction over the dispute.
    • For example, if the employee filed his or her lawsuit in state court, you may be able to have the case moved to federal court if you are covered by federal law.[8]
    • If the court is far away from your business, you should review whether the court has personal jurisdiction over your company, or whether a closer court might be a more convenient venue. These are defenses you must raise in your initial response to the complaint, or you lose the right to raise them later.[9]
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    Determine when the employee first notified you of the problem. State and federal law require employees to notify you of a potential discrimination claim before filing suit.
    • Both state and federal law require the employee not only to notify you of discrimination, but also to give you a reasonable amount of time to investigate and handle the issue. If you did not receive adequate legal notice of the claim, you have a defense against the ethnic discrimination lawsuit.[10]

Method 2
Arguing Job- or Business-Related Defenses

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    Analyze the job description and required qualifications. You may be able to defend your action on the basis that the plaintiff wasn't qualified for the position, regardless of his or her ethnicity.
    • If you have written job descriptions or qualifications, these documents can be used as evidence of a non-discriminatory reason for your actions, particularly if the employee is claiming you didn't hire or promote him or her because of ethnic discrimination.[11]
    • The bona fide occupational qualification defense is one employers frequently use. Under this defense, you can argue that although you did discriminate against the person, it was because that particular quality was a legitimate requirement to perform the job.[12] While this defense may be helpful with other claims such as age discrimination, it isn't typically useful in cases of ethnic discrimination, because a person's ethnicity seldom has anything to do with his or her job.
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    Review the plaintiff's personnel file and other documentation. If the plaintiff previously worked for you, records of disciplinary infractions or other performance problems can be used to justify your actions.
    • Detailed records of violations of established policies, including any instances of insubordination, can provide proof that the reason you disciplined or terminated the employee was unrelated to his or her ethnicity.[13]
    • Even if the plaintiff never worked for you, and is filing a lawsuit arguing you didn't hire him or her due to ethnic discrimination, personnel files and records from previous employers may help your case. Talk to your attorney about getting these records.[14]
    • The plaintiff's educational or medical records also may be relevant under certain circumstances. For example, if the plaintiff is claiming mental or emotional damages, his or her medical records will indicate the degree of emotional pain and suffering.[15]
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    Show consistent enforcement of job qualifications or performance requirements. The court may disregard your defense if you made exceptions for some employees.
    • General payroll and employment records may serve as proof of consistent enforcement. For example, if an employee alleges you are paying her a lower salary because she is of Middle Eastern descent, you can defend against this claim by showing that other employees at her level of experience and with her educational background are paid the same salary as she is.[16]
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    Demonstrate the necessity of neutral practices. If one of your policies adversely affects employees of a certain ethnicity, you must prove that you have a legitimate business reason for it.
    • For example, you may have been sued for ethnic or religious discrimination by an employee who alleges that your dress code discriminates against her by not allowing her to wear a hijab or head-scarf. You could successfully defend against this claim by proving that the particular dress code was required by safety standards for the job she was expected to perform.[17]
    • Requiring sales associates to be fluent in English is another example of a neutral practice or policy. If language fluency is necessary for sales associates to do their job, you won't be liable for ethnic discrimination if you declined to hire someone because he or she cannot speak enough English to perform the job.[18]

Method 3
Maintaining Anti-Discrimination Policies

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    Produce an up-to-date employee handbook. Many states require all employers to have a written employee handbook with information about company policies.[19]
    • Your handbook should include strong statements against discrimination in the workplace, and provide specific examples of discriminatory acts that are prohibited.[20]
    • Written handbooks should be given to each employee as soon as possible after the date of hire. Make sure each employee understands that the information in the handbook supersedes any statements made by supervisors or other employees.[21]
    • Make sure you provide a copy of your employee handbook to your attorney so he or she can evaluate its use in defending against your ethnic discrimination lawsuit.[22]
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    Provide regular training. Requiring continuing education for employees and supervisors can be a strong defense against an ethnic discrimination claim.
    • Contact the local offices of federal or state agencies to arrange for speakers to come to your business for training sessions.[23]
    • For example, the U.S. Equal Employment Opportunity Commission (EEOC), which enforces a number of federal anti-discrimination laws, will provide a representative at no cost to you to explain to your employees the protections provided by federal law and the process of filing a claim.[24]
    • Include a uniform anti-discrimination orientation program that must be completed by all employees. This program can ensure that each employee has the same information and understands your standards of conduct.[25]
    • Keep in mind that prevention of claims often is the best defense. If you can prove you had strong anti-discrimination policies in place and properly educated employees, you stand a greater chance of defeating a discrimination lawsuit.[26]
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    Communicate anti-discrimination policies to all employees. If you are covered by federal law, you must display certain posters detailing your employees' rights to a discrimination-free workplace.[27]
    • Keep in mind that employees often report discrimination to state or federal agencies because they feel they have nowhere else to turn.[28] Maintain an open environment and make sure employees know how to report ethnic discrimination in the workplace.
    • Because you are liable for discriminatory conduct by any employee, not just supervisors, it is imperative that everyone who works for you understands that harassment or intimidation of co-workers on the basis of ethnicity or other protected traits is prohibited.[29]
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    Enforce policies consistently. Your anti-discrimination policy will have little value – either to your employees or as a defense to a discrimination lawsuit – if it isn't enforced the same in all circumstances.[30]
    • Designate more than one employee or supervisor to handle complaints, and make sure all reports are investigated promptly.[31][32]
    • Handle all complaints the same and discipline all employees appropriately if you find evidence they are engaging in discriminatory behavior.[33]
    • Maintain written records of all complaints of discrimination and any ensuing investigation.[34] When defending against an ethnic discrimination lawsuit, these records will prove that you handled the complaint promptly and investigated it thoroughly.

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Categories: Civil Litigation