When a loss prevention leader considers the risk of security lawsuits, it’s likely that he or she is thinking about a customer lodging a claim of unfair targeting by store agents based on race, or an overzealous apprehension that results in injury. But new data from the US Equal Employment Opportunity Commission, denoting the frequency of charges against employers on behalf of employees, suggests this risk also deserves a focused review.
As can be seen from the latest EEOC news, cases come in many forms. In July, for example, the EEOC sued Fanatics Retail Group, a leading retailer of officially licensed sports merchandise, charging that its workplace was racially divided, and that the company subjected minority employees to racial slurs, in violation of Title VII of the Civil Rights Act of 1964. Discrimination “has no place in the workplace,” said Michael Farrell, EEOC district director, in announcing the suit. “We hope that our lawsuit will send a message, not only to the defendant but to the entire manufacturing and retail industry, that the EEOC will not tolerate this kind of misconduct.”
In September, a suit by the EEOC claimed that Walmart discriminated against pregnant female employees at a Wisconsin distribution center by denying their request to easier work. On Sept. 27, the online legal journal Law360 wrote: “The [EEOC] is closing out its fiscal year with a cascade of enforcement actions, including lawsuits accusing Dollar General of not adequately addressing sexual harassment by a store manager towards a subordinate, and alleging a Bath & Body Works manager shamed a vision-impaired worker into quitting.”
Claims of racial discrimination and other bias are not uncommon in retail, including those lodged by security and loss prevention agents. Indeed, data examining the broader security industry suggests that security personnel actually file about as many lawsuits against their employers as they spark because of something they did or did not do.
EEOC news reflects trends in the broader legal environment. While recent court decisions have made it more difficult for plaintiffs to win multimillion-dollar judgments against corporations, there have been a series of verdicts that have sided with workers against employers. The current legal environment, which includes expanded protections for whistleblowers, raises the possibility that employees who worry they are in trouble over job performance might lodge a complaint so as to make any subsequent action against them—even scheduling changes—smack of retaliation.
The prospect of litigation filed by loss prevention staff makes it important for LP departments to act quickly and resolutely when faced with offenses by department staff that warrant termination and to ensure that supervisors follow established procedures for documenting performance issues, which offers the best chance for beating back such claims.
Under Title VII of the Civil Rights Act of 1964, it is an unlawful employment practice for an employer to discriminate against any individual with respect to his or her employment (compensation, conditions, etc.) because of race, color, religion, sex, or national origin. This includes an employee’s claims of a hostile work environment based on race or national origin discrimination.
A security officer who is 40 years old or older is also a member of a protected class under federal law and can bring a claim of age discrimination. As the workforce ages, it is expected that age-based claims will crop up more often, so LP department need to carefully document performance issues to deflect claims that an officer’s age was a factor in his or her termination.
It can be a gray area. Title VII does not establish a general civility code for the workplace. Accordingly, behavior that may be boorish, juvenile, or annoying is not the stuff of a Title VII hostile work environment claim.
So when does bad behavior become illegal?
Clearly, LP executives need to warn supervisors against permitting repeated racially derogatory jokes and comments, especially after an officer makes a complaint. But supervisors need to be put on notice that even a wayward glance at an LP agent’s pregnant belly or a single comment about an officer’s accent may be enough to support a job bias claim in today’s legal environment.
Discrimination is a common claim nationwide, but complaints from officers can include a hostile workplace, safety and health violations, harassment, and retaliation. Although each is unique, they usually have at their origin a breakdown in the relationship between a security supervisor or manager and a LP officer.
While problem supervisors who ignore complaints can be the cause, the problem is more often that supervisors—feeling daily operational pressures—brush aside complaints in the hopes that the matter will resolve itself. To a supervisor, a delay in investigating a complaint may seem like necessary work prioritization. To the complaining officer, it can seem like a rebuke and quickly cause a breakdown in the relationship from which it is difficult to recover.
LP departments need to train supervisors on protocol (for handling an officer’s complaint of sexual harassment, for example). Directors must also take a realistic look at whether supervisors have the necessary room to respond aggressively to all complaints or if they are under such intense work pressures that they’re inclined to brush aside such issues. Performance reviews are a critical tool for limiting liability, as a documented history of performance problems is the surest way to refute a claim that a firing was due to age, race, or some other bias.
EEOC News and Enforcement Trends
A few years ago, the EEOC adopted a new enforcement strategy to identify broad patterns of discrimination across a large company, industry, profession, or geographic area. This means that any organization may find its policies and practices getting attention from systemic investigators or units without a specific discrimination claim prompting it.
Besides examining EEOC compliance in light industry and regional issues, the agency’s enforcement shift suggests it’s wise to consider the following action items:
- Examine how LP department staff is considered for promotion and whether there seems to be a channeling of employees to promotion opportunities. The more objective criteria are for promotions, the less likely they are to be seen as discriminatory.
- Review whether there is some residual bias leftover from when LP was even more male-dominated than it is currently. Look for historically biased job practices, in areas such as who is selected for different training opportunities.
- Be wary that force reductions don’t have a disparate impact on older officers.
- Assess whether your assessments of officers’ performance have built-in protections against claims of discrimination. These include: use an evaluation form that is consistent across all security staff of a similar job category; give officers who do similar jobs similar performance standards; select performance measures that are meaningful to the job and realistic; provide supervisors clear measures for evaluating officers’ performance; give notice to employees who are not meeting expectations an opportunity to defend himself of herself.