We hear so much buzz about age discrimination in the workplace. So you might assume it gets the most workplace discrimination complaints.
In 2008, more than 24,500 cases of age-related workplace discrimination cases were reported to the Equal Employment Opportunity Commission under the Age Discrimination Employment Act.
Employees over the age of 40 are protected from age discrimination under the act. Since 2008, the numbers have steadily declined. And in 2018, just under 17,000 cases were reported.
According to Insurance Journal, in 2017, the top four workplace discrimination types filed to the Equal Employment Opportunity Commission were:
- Retaliation — 49% of all charges filed
- Race — 34%
- Disability — 32%
- Sex — 30%
How to prevent workplace discrimination claims
For starters, watch your words and know who’s listening because some words carry offensive undertones. Sometimes what seems like a casual conversation can actually create legal ramifications at healthcare organizations, said Helene Horn Figman, P.C., an employment law specialist and attorney in private practice in South Easton, Mass.
She gave some examples of inappropriate comments. “Calling a head nurse pops, or gramps, or asking them, ‘Are you having a problem using that new phone?’ Kidding not kidding comments can be considered age-related,” Figman said.
Even though ageism didn’t top the commission’s list, plenty of lawsuits have been filed over alleged misconduct where older nurses felt singled out compared to the younger ones.
In one case, the commission got involved after a hospital terminated 29 employees over age 40 based on performance issues.
It was alleged management made remarks like, “younger nurses could dance around the older nurses.” The suit was settled out of court for $400,000.
Regardless of what type of workplace discrimination complaint a nurse files, the HR team needs to have a game plan in place to handle such delicate matters.
Take promotions, for example. Figman said failure to promote someone older can be a double-edged sword.
Sometimes years of experience can give tenured employees a distinct advantage for getting the promotion — other times the better candidate just happens to have had fewer birthdays and an innovative mindset.
“Just because you’re a baby boomer does not mean you are entitled to a head nurse position,” Figman said. “We have to look at whether the person most qualified was not promoted. Someone may have innovative ideas, like how to schedule resources, or other experiences that enhance their qualifications.”
If a nurse files a complaint, she suggested looking at a cross section of promotions to determine if they were disproportionally given to millennials, Gen X or Y groups or baby boomers.
“Then the HR team would need to have meetings with those managers to investigate,” Figman said.
It would require pulling files, looking at any interview notes to see which attributes were given to each employee.
Policies and training drive employee behavior
Figman said most states require an anti-sexual harassment policy and it’s the HR team who typically distributes it annually.
“The policies themselves outline what should happen when reporting a sexual harassment complaint internally and who it should be reported to, like the HR administer or supervisor,” she said.
Sometimes the operations department handles such complaints, she said. It’s a good practice to include a back-up person in case the complainant needs to report their boss or say, the operations manager.
When employees blow the whistle on workplace discrimination, retaliation is one of their biggest fears.
In a recent article published in HR Morning about #metoo fallout for one of the tech giants, employees reported being “pushed out, sidelined or punished” for reporting abuse and discrimination.
Sexual harassment plays out in various forms, according to Figman. Here are some examples:
- Quid pro quo, which is a sexual favor in exchange for something
- Threats, such as suggesting career limitations if some sexual act is not offered
- Hostile work environment
- Persistent unwanted sexual advances
- Inappropriate touch, such as a shoulder massage
- Sexually explicit emails, jokes, lude pictures or cartoons
- Jeering and whistling
- Bragging about recent sexual activities
For the employee’s sake, there should be some language that says “you will not be subject to retaliation” in the anti-sexual harassment policy, Figman said.
“The policy should explain what is prohibited and give examples of sexual harassment,” Figman said.
For example, male nurses may feel harassed based on gender, she added.
In addition to disseminating annual anti-sexual harassment policies, it’s a good idea to follow up with employee training, Figman said.
Whether in a lunch-and-learn format or coffee talk, training teaches employees how to recognize sexual harassment and learn what is acceptable vs. unacceptable behavior, like displaying suggestive objects at the office. She mentioned one case where a boss kept a whip in the office.
If the complaint warrants an investigation, Figman offers a few words of wisdom.
“Investigations have to be done very carefully,” she said. “Don’t make promises. You need to be neutral and respectful.”