For employers in South Carolina, allegations of discrimination in the workplace present significant risks. Not only can substantiated allegations lead to civil liability, but accusations of disparate treatment of similarly-situated employees can harm companies’ public reputations and wreak havoc on their corporate cultures as well.
With the deaths of George Floyd, Breonna Taylor, and others making headlines throughout much of 2020, combatting racial discrimination has been a central topic of discussion. While these cases involved police officers’ encounters with private citizens, employers are also increasingly facing pressure to review and reconsider their anti-discrimination policies. With this in mind, here is what South Carolina employers need to know about discrimination in the workplace in 2020:
Employers Must Take Proactive Steps to Prevent Discrimination in the Workplace
When it comes to preventing discrimination in the workplace, employers must take proactive steps to protect their employees. Companies need to have documented policies and procedures in place, and they cannot simply turn a blind eye to potential concerns.
When faced with allegations of employment discrimination, companies need to affirmatively demonstrate that they have taken affirmative steps to educate their employees, provide adequate reporting channels, and foster an environment of inclusiveness and compliance. Those who cannot may be at a greater risk of facing civil liability and other consequences when employees come forward with complaints.
Employers Must Investigate All Allegations of Workplace Discrimination
In addition to taking affirmative steps to prevent workplace discrimination, employers must take affirmative steps to respond to allegations of discrimination. This means taking all allegations seriously and investigating to gather sufficient evidence to reach an informed conclusion before taking (or deciding not to take) responsive action.
Employers should not simply assume that all complaints are valid, but they should assume that all complaints could potentially be valid. Dismissing discrimination complaints out of hand is a mistake that can irreparably compromise employers’ ability to defend themselves before the Equal Employment Opportunity Commission (EEOC), in court, and in the court of public opinion.
New Laws and Court Decisions Have Established Additional Anti-Discrimination Obligations for South Carolina Employers
Among everything else that has happened in 2020, the South Carolina legislature and the U.S. Supreme Court have taken notable actions that have created additional obligations for employers with regard to anti-discrimination compliance.
On June 15, 2020, the U.S. Supreme Court held that Title VII of the Civil Rights Act of 1964 prohibits discrimination in the workplace based on an employee’s sexual orientation or transgender status. As we discussed in the wake of the Supreme Court’s decision in Bostock v. Clayton County, 590 U.S. ___ (2020), employers in South Carolina should review their anti-discrimination policies and revise them as necessary to ensure that they adequately address the new protections afforded to gay and transgender employees.
Shortly after the U.S. Supreme Court issued its decision in Bostock, Governor McMaster signed South Carolina’s Lactation Support Act into law. The Act, which went into immediate effect, prohibits employers from discriminating against employees who choose to express breast milk in the workplace. The law imposes additional affirmative obligations for employers as well.
Anti-Discrimination Policies Cannot Focus Solely on Race and Color
While many of 2020’s headlines have focused on racial disparities in the United States – and rightfully so – employers must not focus their anti-discrimination efforts solely on preventing race-based and color-based discrimination. Employers in South Carolina have broad-based obligations to prevent and combat discrimination in the workplace. As Bostock and South Carolina’s Lactation Support Act show, these obligations extend well beyond any one class of protected employees.
With this in mind, and given recent events and the rise of social media as a platform for widely disseminating expressions of discontent, employers in South Carolina will be well-served to review their current anti-discrimination policies and procedures comprehensively. Among other focuses, this should involve:
- Ensuring that the organization’s anti-discrimination policies cover all protected classes of employees;
- Ensuring that practices and procedures effectively implement anti-discrimination policies on an organization-wide scale;
- Ensuring that employees have appropriate channels for reporting discrimination in the workplace without fear of reprisals;
- Ensuring that necessary training (initial and/or refresher) has been provided to all pertinent employees; and,
- Ensuring that appropriate mechanisms are in place to trigger internal investigations in response to allegations of workplace discrimination.
“Reverse Discrimination” is a Concern, Too
When crafting and implementing anti-discrimination policies and procedures, South Carolina employers must be cognizant of the concept of reverse discrimination as well. In essence, this involves overemphasizing an anti-discrimination policy to the point that it results in discrimination against employees who fall outside of a particular protected class.
While some employees may receive more favorable treatment than others because of their protected status, employers’ policies must generally promote equal opportunity regardless of protected class. For example, an employer may favor veterans, the disabled, or older employees. But employers cannot offer more favorable employment benefits and opportunities to minorities, women, or gay and transgender individuals. Many employers like to tout their affirmative action policies. Employers should be aware that affirmative action is a term of art referring to obligations of certain federal contractors. Giving preference to minority candidates in hiring would be illegal for most employers. Casting a wide recruiting net and recruiting candidates from sources of likely minority candidates is not illegal and is a good way to diversify an organization’s workforce.
Employers Need to Make Informed Decisions about Preventing and Combatting Workplace Discrimination
While anti-discrimination compliance may seem relatively straightforward on its face, there is a lot that goes into meeting an employer’s obligations in this arena. In 2020, employers must be especially cognizant of their obligations, and they must make informed decisions based on the advice of experienced legal counsel. If you have questions about anti-discrimination compliance and would like to speak with an attorney, we encourage you to contact us .
Speak with a South Carolina Employment Lawyer at Gignilliat, Savitz & Bettis, LLP
Gignilliat, Savitz & Bettis, LLP is a South Carolina employment law firm that exclusively represents employers. If you need more information about your organization’s obligations with regard to preventing and combatting discrimination in the workplace, our employment lawyers can help. Please call 803-799-9311 or inquire online today.