The First – And Most Important – Enforcers Of America’s Anti-Discrimination Laws

By DAN NORWOOD

managers, and employees on its obligations under the ADEA to prevent age discrimination from happening again in the future. The award not only fully compensated Nolan for all her lost pay and benefits but also awarded her liquidated damages for those losses, which the ADEA allows when the employer’s unlawful conduct is willful.

This case is the most recent example of why I have said for many years that it is not the state or federal employment discrimination agencies, or even employee-side attorneys, like myself, who are the First Enforcers of our employment discrimination and retaliation laws. It is the HR professionals in a company, organization or government agency who guarantee that every American citizen has a shot at reaching the American Dream.

The Triple Benefits of Ending Discrimination in Employment

When President Lyndon Johnson signed the Civil Rights Act of 1964, he said there would be triple benefits derived from this important new law prohibiting discrimination against citizens based upon their race, color, sex, national origin, or religion. The first benefit would be that every American citizen would be able to get and keep the best job possible based upon their qualifications and skills. Second, employers in America would be employing the best individuals available to help their organization succeed. And third, as a result, America would be more successful. Three years later, when he signed the Age Discrimination in Employment Act of 1967, he reminded us that those same triple benefits would also be derived from that newest anti-discrimination law.

The Role of the Courageous Human Resources Professional in Ending Discrimination in Employment

It is the courageous human resources professionals who stop discrimination in employment from occurring at their workplace who will help save our nation from more of the painful harms that we have experienced in our history due to discrimination. If every HR professional courageously does his or her job of questioning and educating every member of management in their company, organization or agency, from the lowest level supervisor to the highest level executive, about the anti-discrimination laws in the United States prohibiting discrimination against individuals in hiring, promotion, discipline or other terms and conditions of employment because of their race, color, sex, sexual orientation, national origin, religion, age or disability, employment discrimination in America will end. Indeed, the courage of an individual human resources professional can be just like the courage of that little Dutch boy in the famous story we were told as children who stuck his finger in the hole he saw in a dike and saved a whole nation.

Importantly, our laws prohibiting discrimination in employment also prohibit retaliation against employees who oppose discrimination in employment. Many states now also have what are called whistle blower protection laws that prohibit retaliation against any employee, even a human resource professional, who refuses to participate in or remain silent about illegal activities, which includes employment discrimination. For example, in Tennessee the Public Protection Act, T.C.A. 50-1-304, prohibits the retaliatory discharge of an employee who refuses to participate in or remain silent about illegal activities.

As a labor and employment law attorney who has successfully prosecuted hundreds of employment discrimination and retaliation cases since 1980, I have been an advocate for employees holding positions at every level of a company, organization, or government agency. In every one of those cases I have won at trial my first witness was my client. More importantly, my second witness was always the human resources manager who either failed to detect and prevent the discrimination or retaliation when it was happening or who was a willing partner with the member of management who engaged in it.

HR professionals must never forget their first duty is to the enterprise, not to individual managers or executives who may want to engage in unlawful discrimination or retaliation. They must have the courage to tell those individuals they cannot engage in such illegal activities. By showing such courage, not only will the time and major expenses that come with lawsuits be avoided, but the human resources professional will be ensuring that the enterprise is employing, promoting, and retaining the best person for a job.

During my career, I have had the honor of representing half a dozen human resources managers who had the courage to do their jobs well but got fired for doing so. While I call myself the Working Boomer Advocate because I am mainly focused on being an advocate for regular employee victims of age discrimination, sometimes I must call myself the Human Resources Professional Advocate when I fight for a human resource professional. In one such case I handled a few years ago, my client was the Human Resources Manager of a trucking company who was directed by the company’s vice president not to hire any drivers over age fifty.

Knowing that to follow such a directive would constitute unlawful age discrimination, that courageous human resources professional disobeyed the directive and hired a fifty-eight-year-old applicant who had an excellent twenty-five-year driving record. When that vice president learned this driver had been hired, she immediately fired her on a pretext. Soon after a lawsuit was filed under the Tennessee Public Protection Act, a very good out-of-court settlement of her claim was offered, which she accepted.

In this and other cases I have handled representing First Enforcers, several factors made the difference in them being able to get a quick and full remedy for their unlawful discharge. First, they politely and professionally refused to participate in or keep quiet about the unlawful activity. Second, they kept proof of their refusal in the form of emails, text messages or other documents, or in some cases made secret recordings of conversations, when the employer, organization or agency policies or state laws did not prohibit such recordings being made. Remembering these stories always reminds me of the very essential role human resources professionals continue to play in helping citizens, employers and our country be able to reap the triple benefits promised with the passage of our civil rights laws prohibiting discrimination in employment.

Dan M. Norwood Working Boomer Advocate dan@ workingboomeradvocate.com