Novartis, the U.S. subsidiary of a Swedish Pharmaceuticals corporation, was sued by 5,600 of its female employees in a class action gender bias law suit. The women sued Novartis for showing a pattern of discrimination against women employees from 2002 to 2007. The Plaintiffs were awarded $250 million in punitive damages by a jury of plus further damages that can total upwards of $1 billion if all of the 5,600 plaintiffs opt in for compensatory damages. According to Bloomberg.com this is the largest employment discrimination verdict ever, but only the second largest verdict this year.
What does this mean for Massachusetts employers? Pundits believe that this law suit will up the ante for discrimination suits everywhere, meaning that attorneys are more likely to take on class-action employment discrimination suits and juries are more likely than ever before to award big bucks to plaintiffs. In this environment, therefore, it is extremely important for employers to take offensive steps to stop discriminatory practices before a disgruntled employee files a lawsuit.
If you are a Massachusetts employer with six or more employees, you have a potential lawsuit on your hands if any of your written or unwritten company policies discriminate based on any of the following factors: race, color, religious creed, national origin, ancestry, sex, age, criminal record (applications only,) handicap (disability,) mental illness, retaliation, sexual harassment, sexual orientation, and genetics. Massachusetts employers are also legally required to provide maternity leave to biological and adoptive parents.
One of the most high-risk times for an employer with regard to discrimination claims is after the termination of an employee. When terminating an employee, especially an employee within a protected age group such as age, be sure that it does not appear that you are laying that person off because of their membership in that protected group. For example if you are in the midst of a layoff you want to make sure it does not appear that you are laying off older employees in favor of younger ones.
One of the most effective tools employers have in their toolbox to ward off successful discrimination claims is the severance package. Make sure that there is a valid release in the language of the severance package that relieves the employer from any potential claims made by the employee subsequent to termination.
In sum, employment discrimination claims are likely to increase thanks to the mega punitive damages awarded last month to the class of former female Novartis employees. You, as a Massachusetts employer, should take proactive steps to protect your employees from discriminatory practices, which will help to insulate your business from a successful discrimination claim.
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