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A NEW JERSEY SUPERIOR COURT judge earlier this year upheld a verdict awarding $6.5 million in compensatory and punitive damages and more than $600,000 in attorney's fees to Martha Mogull, a former vp of CB Commercial Real Estate. The decision is one of the largest gender discrimination verdicts against a company in the commercial real estate industry.The Mogull case underscores the liability faced in gender discrimina tion cases not only by companies in commercial real estate but in all industries as well. The case also demonstrates the issues faced by companies that knowingly or unknowingly maintain a glass ceiling policy, whereby a woman reach es a certain status in the company and is not allowed to advance any further.No one will disagree that merit, not gender, should determine an employee's advancement, but in reality, management may continue to permit obstacles that discriminate, assuming women will not come forward for fear of repercussions or termination.
However, cases like Ms. Mogull's are demonstrating a shift in attitudes and are sending a message that companies had better institute a mo re thorough and vigorous anti-discrimination policy or be prepared to pay a hefty price.To protect themselves from liability in discrimination litigation, businesses should establish several fundamental policies that provide a mech anism by which employees can come forward and address such issues. Past trends of disguising the problem as "poor performance" or ignoring it altogether are not steadfast courses and often adversely affect the company.The first s tep a company must take to protect itself is to establish a zero-tolerance policy, whereby the specific discriminatory incident is addressed immediately and rectified expediently.
If it is determined that the accused is in violatio n of the corporate policy, it will result in disciplinary action deemed appropriate to the particular incident(s)-oftentimes employee termination.Upon implementation of the zero-tolerance policy, the company should inform all emplo yees that any kind of discrimination will not be permitted and that the company will do everything in its power to bring those who violate the policy to swift justice. The policy must include the company's definition of discriminat ion, underscore the sanctions and outline the appropriate procedures for complaints and investigations. Most importantly, the managers and employees must have a shared understanding of the program's implications and objectives.
In creating its policy, a company also must make the complaint process as easy as possible for the employee-meaning all managers should be trained to identify discrimination and correct it according to company policy. This way, employe es won't feel maligned, as they can choose among several managers when reporting a specific incident. This policy also ensures employees will not have to present their cases to supervisors who may be the ones accused of the discrim ination.The company must make sure any investigation or remedial action related to the incident is conducted in a prompt, responsive and fair manner and that all steps in the process are appropriately documented.
This means a neutr al party interviews the accused, the complainant, supervisors and related witnesses. The neutral investigator should be fair, and a written report should be filed that outlines the findings of the investigation and the supporting e vidence. Both parties also must be advised of the conclusions and the basis for them.Once the proper action is determined by the neutral investigator, the evidence should be presented to an advisory council experienced in handling discrimination cases.
If found to be in violation of company policy, the employee in question must be properly addressed according to published corporate policy. Such an action will re-establish a healthy working environment and wi ll send a message that the company will not stand for discriminatory actions now or in the future.The Mogull verdict should warn companies that they are extremely vulnerable to gender discrimination lawsuits and their financial rep ercussions. As more and more women continue to challenge the gender discrimination that impedes them from excelling in the workplace, companies will be forced to address discriminatory practices or face serious litigation. To prote ct themselves from such a situation, companies must develop policies that address discrimination in areas such as race, religion, age, nationality, disability and gender. The best way for a company to create a discrimination-free w orkplace is to implement a zero-tolerance policy and enforce it. Then, if brought to litigation, the company will be able to appropriately document the incident and protect itself from liability.
Bruce Atkins, an attorney at Contant, Scherby & Atkins in Hackensack, N.J., represented the plaintiff in the Martha Mogull gender discrimination verdict against CB Commercial Real Estate.