United States: NASCAR's Racing To Defend Race Discrimination Lawsuit—Is Your Company Ready?

Earlier this week, news broke that NASCAR is being sued for alleged racial discrimination. NASCAR insists the case has no merit, but only time will tell the outcome. When the rubber meets the road, will your business be ready to defend against a race discrimination lawsuit? Fortunately, there are steps every business can take to protect itself.

Policies and Training

Before an employee gets the green flag to file a race discrimination lawsuit, he or she must go through an administrative process with the Equal Employment Opportunity Commission (EEOC) or its counterpart on the state level by filing a charge of discrimination. As part of its investigation, the first thing the agency will ask the employer to provide is a copy of its employment policies and procedures. To avoid crashing into the wall on your first lap, your best defense against discrimination claims is to implement a strong EEO policy. You must also train your crew chiefs and pit crew on the policy's contents, holding them accountable for violations, and keep up the pace with current law by regularly reviewing and updating your policies.

In addition to a general EEO policy that prohibits discrimination, your company should adopt a separate, more involved anti-harassment policy. According to the EEOC, the policy should include:

  • A clear explanation of prohibited conduct, including examples;
  • Clear assurance that employees who make complaints or provide information related to complaints will be protected against retaliation;
  • A clearly described complaint process that provides multiple, accessible avenues of complaint;
  • Assurance that the employer will protect the confidentiality of harassment complaints to the extent possible;
  • A complaint process that provides a prompt, thorough, and impartial investigation; and
  • Assurance that the employer will take immediate and appropriate corrective action when it determines that harassment has occurred.

Measuring Job Performance

Of course, if you want to kick your defense of an employment discrimination lawsuit into high gear and stay on track, thorough documentation is essential. Often, one of the best ways employers can throw a wrench into allegations of racial bias is to evaluate employees' job performance on a regular basis. In doing so, employers should make sure that performance appraisals are accurate and consistent (i.e., that other employees with comparable job performances receive comparable ratings, and that appraisals are neither artificially low nor artificially high due to the supervisor's bias). Whenever possible, employers should steer clear of subjective employment decisions based on managers' personal stereotypes or hidden biases and rely instead on the use of neutral and objective criteria to evaluate job performance.

Hiring and Promotion

To gain traction and prevent allegations of race discrimination from spinning out of control, employers should be proactive and keep EEO principles in mind when recruiting, hiring, and promoting employees. That means adopting practices designed to widen and diversify the pool of job candidates, including openings in upper level management.

In recent years, the EEOC's enforcement efforts have gone into overdrive, targeting overly broad hiring criteria and the use of criminal background checks that disproportionately disadvantage certain minority or racial groups. To keep running on all cylinders, you should ensure your company's hiring standards are valid predictors of successful job performance and justified by business necessity. For example, if educational requirements disproportionately exclude certain minority applicants, they may be illegal unless they are considered important for job performance or business needs. Sure, your driver may need a valid license and substantial racing experience to pre-qualify for a race, but does that member of your pit crew who changes tires really need a college degree in mechanical engineering?

Sometimes, despite your best efforts, your business may be the target of a racial discrimination lawsuit. But, hopefully, if you follow these steps, you'll soon be racing toward the checkered flag and cruising down victory lane.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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