Intro

You may hear the word “discrimination” used rather broadly in everyday speech. People who feel wronged may say things like, “He discriminated against me because he doesn’t like people who speak their mind” or “It’s so unfair that we have to go stand outside to smoke; this company really discriminates against smokers.”

Statements like these get at only one important aspect of discrimination: It involves making a distinction between groups of people. But, as you probably know, discrimination is illegal only when the basis for the distinction has been declared offlimits by Congress, courts, or a state or local legislature. Not every decision, even every unfair or biased decision, is discriminatory. For discrimination to be illegal, it must be based on a “protected category,” such as race or religion.

This chapter will cover:

• laws that prohibit discrimination
• what discrimination is, and
• how and when discrimination may occur.

This information will help you recognize the signs of discriminatory behavior. In later chapters, you’ll learn what steps you can take to prevent discrimination and how to handle discrimination that has already taken place.

Laws Prohibiting Discrimination

There are many different laws, both federal and state, that protect employees from discrimination in the workplace. The most prominent federal antidiscrimination laws are:

• Title VII of the Civil Rights Act of 1964 (Title VII). This law prohibits discrimination on the basis of race, color, religion, sex, and national origin. Title VII applies to employers who have 15 or more employees.
• Genetic Information Nondiscrimination Act (GINA). This law prohibits discrimination on the basis of genetic information (beginning November 21, 2009). GINA applies to employers who have 15 or more employees.
• The Age Discrimination in Employment Act (ADEA). The ADEA prohibits discrimination against those age 40 or older on the basis of age.
• The Americans with Disabilities Act (ADA). The ADA protects workers with disabilities from discrimination in the workplace, and requires employers to offer reasonable accommodations to help those workers do their jobs.
• The Equal Pay Act (EPA). This law is designed to ensure that men and women receive equal compensation for their work. The jobs don’t have to be exactly the same to require equal pay, but they must involve “equal work,” meaning equal skill, effort, and responsibility and similar working conditions.
• The Civil Rights Act of 1866, 42 U.S.C § 1981 (Section 1981). Section 1981 prohibits discrimination on the basis of race in the making, enforcing, and performance of contracts. It also prohibits discrimination on the basis of ethnicity, if that discrimination is racial in character (for example, discrimination based on physical characteristics or skin color violates Section 1981; discrimination based on surname or accent generally doesn’t). Section 1981 applies to all contracts, including employment agreements, partnership agreements, and the like.

Most states also have their own laws prohibiting employment discrimination, and many extend greater protections than federal law. For example, they may apply to smaller employers or apply to other protected classes (such as marital status or sexual orientation). Finally, some local or county ordinances may also provide additional protection.

CAUTION: If your company had 15 employees anytime in the last two years, Title VII may apply. Technically, Title VII applies only to entities with 15 or more employees for each working day in 20 or more calendar weeks in the current or preceding year. If your company’s workforce fluctuates around 15 employees, talk with a legal adviser about whether the law applies to your company. Even if Title VII doesn’t apply, your state’s antidiscrimination laws may; state laws often apply to smaller employers. (See the chart in Appendix B for more information.)

Omitted from sample chapter: "Which Antidiscrimination Laws Apply to Your Company?" chart

Common Questions

Q: We are a multistate employer, and our handbook says that we do not tolerate discrimination based on sexual orientation. An employee is now complaining of sexual orientation discrimination in a state that does not prohibit it. Do we have to do anything about it?

A: Yes. Arguably the company obligated itself, in its handbook, to protect employees from sexual orientation discrimination, regardless of where it occurs and whether it is illegal. And it’s good business practice, too. Following this policy uniformly shows the company’s sincere commitment to treating employees fairly and protecting them from discrimination no matter where they work.

What Is Discrimination?

In general, antidiscrimination laws are designed to keep an employer from making employmentrelated decisions that disadvantage employees based on the categories identified above (or other categories state or local governments find worthy of protection). It is illegal to discriminate when hiring, creating or applying policies, training, promoting, firing or laying off employees, or in any other terms and conditions of employment.

TIP: Conduct may be inappropriate even if it isn’t illegal. This section explains how courts and legislatures define discrimination, including what an employee must prove in order to win a discrimination lawsuit. That doesn’t mean, however, that you should ignore any behavior or conduct that falls short of these standards. For example, a supervisor might be able to show that the younger employee he promoted was truly the best qualified candidate for the position, even if that supervisor made inappropriate ageist remarks that led an older employee to mistakenly believe that the decision was based on age. That the older employee would find it hard to prove illegal discrimination doesn’t make it acceptable for a supervisor to make biased comments. This is a situation where discipline is in order for violating company policy, even if no law has been broken.

Discrimination can take these forms:

• Disparate treatment. This is the textbook form of discrimination: intentionally treating people differently because of a protected characteristic. It can mean denying a job to someone because of his or her race, or giving promotions to men over equally qualified women based on gender.
• Disparate impact. Conduct that is fair on its face but affects a disproportionate number of employees in a protected class is also discriminatory. Unless the employer has a very good, job-related reason for the different treatment—for example, a strength requirement (which may disproportionately affect women) because the job regularly requires heavy lifting—the practice or policy won’t pass legal muster. Even if an employer has a valid business reason for the practice, it may still constitute discrimination if an alternative exists that would not disproportionately affect the protected class.
• Failure to accommodate. When an employer is legally required to accommodate an employee (such as an employee with a disability or an employee whose religious practices require a change to workplace rules) and fails to do so, this is also a form of discrimination.

Discrimination doesn’t often present itself in an extremely obvious way, like a supervisor admitting he won’t promote women, refused to hire someone because of his race, or won’t consider anyone older than 50 for certain positions. The rare occasions when something like this happens are called “smoking gun” cases, because employees have direct evidence of the discrimination that an employer will have a hard time refuting.

Much more often, however, an employee will have only an inkling or hunch that something isn’t right. The employee may look at several different pieces of suggestive information (called “circumstantial evidence”) and decide that discrimination is the logical conclusion. For example, an employee who claims that she didn’t receive a promotion because of her gender might present evidence that her supervisor made sexist statements shortly before denying her the promotion, offered the promotion to a man whose qualifications were not as strong, and has a history of promoting only male employees.

An employee can’t win a discrimination case simply by claiming that he or she experienced discrimination on the job. If an employee’s discrimination case goes to court, the employee will have to show that:

• He or she was qualified for the job in question. An employee or applicant can’t claim discrimination unless he or she had the necessary skills, qualifications, experience, and so on to do the job.
• The employee is a member of a protected class. Although this may seem like a fairly straightforward requirement to meet, it isn’t always. For example, an employee who claims discrimination based on religion will have to show that the religious belief in question is “sincerely held.”
• The employee or applicant suffered an adverse action. It isn’t enough for an employee to claim that someone is prejudiced toward, or holds particular beliefs about, certain groups of people. The employee must also show that his or her job was affected negatively by these biased beliefs. For example, a female employee couldn’t sue simply because her manager is a member of a private, male-only golf club; she would have to show that she suffered a negative employment action based on her gender.
• There’s some reason to suspect that the employer had an improper motive. Essentially, it’s up to the employee to show that there is some connection between his or her membership in a protected class and the adverse action the employer took. In other words, an employee who is fired and happens to be Black doesn’t have a legal claim; an employee who is fired because he is Black does.

An employee doesn’t necessarily win the case just by showing these elements, however. The employer has the opportunity to show that it took the job action for a legitimate business reason—for example, you didn’t hire a qualified applicant because another applicant was more qualified. If you’re able to do that, the employee will have to show that your rationale wasn’t the real reason for the action (in legal terms, that it was just a “pretext” for discrimination). For example, if the employer claims that it never promoted anyone with fewer than two years of experience, and an employee bringing a gender discrimination case shows that several men with less experience were promoted, that might be proof of pretext.

Sex-Based Discrimination

Discrimination on the basis of sex means making decisions or adopting policies that appear to be neutral but disproportionately affect one gender. An employer discriminates when it gives men the plum assignments or gives women more paid leave than men, for example.

But there are more subtle ways to discriminate based on sex, too. For example, sexual harassment is a type of sex discrimination, as explained in Chapter 2. Here are some other forms sex discrimination may take.

Sexual Stereotyping

Sexual stereotyping, that is, holding men and women to different standards based on historic or traditional sex roles, is also sexbased discrimination. In one famous case, a female manager in an accounting firm was denied promotion to partner due to her “interpersonal skills,” among other reasons. The partners making the decision wanted her to walk, talk, and dress more femininely and to wear make-up and jewelry. The Supreme Court recognized that this challenge to her “interpersonal skills” was really just another way of saying she didn’t conform to the partners’ stereotype of how a woman should look and act.

Common Questions

Q: An employee complained that her supervisor always gives lead projects to men. When I asked the supervisor about it, he told me that it’s because he happens to be more comfortable working with the men in the department. He doesn’t mean to discriminate; it’s just a personality issue. Is this discrimination?

A: It could be. Discrimination doesn’t have to be a series of calculated decisions intended to harm one group of people: It just means treating people in the same situation diff erently because of a protected characteristic. Th e supervisor’s personal comfort level with the men who report to him doesn’t justify giving them the lead assignments. It looks like his personal preference is clouding his professional judgment—and female employees are suff ering as a result. Whether or not gender is playing any role in his decisions— that is, whether he is comfortable only around men generally or he just happens to be more comfortable with these particular fellows— this situation needs to change.

Dress Codes

In most cultures, including ours, men and women traditionally dress and appear distinct from one another. For example, it is customary for women to wear skirts, but not men. Courts have generally allowed dress codes or grooming standards that recognize these social diff erences, but not if such codes impose a greater burden on one gender or the other. For example, it is probably okay to have a rule that men can’t wear their hair longer than collar length.

CAUTION: Dress codes can cause problems if they impose a burden on an employee based on membership in another protected class. For example, “no-beard” policies may be illegal as applied to African American males who suffer from pseudofolliculitis barbae, which causes a painful skin condition from shaving. So, your company may have to make an exception in such cases if it has a grooming standard.

Favoring a Paramour

Everyone is affected in an environment where the boss dates a subordinate. It can quickly and easily create feelings of distrust and discomfort and, worse, can put the company at legal risk.

As explained in Chapter 2, workplace relationships can lead to claims of sexual harassment, particularly if the relationship ends or one member of the relationship has less power at work than the other. These relationships can also lead to claims of discrimination where, for example, a supervisor gives her boyfriend better work assignments than she gives his peers. While a court may not find the existence of a relationship alone to be illegal discrimination against others (because everyone not in the relationship is equally affected, men and women alike), it’s not a risk worth taking—and it’s a bad business practice. No one wants to believe a relationship with a supervisor or manager is a prerequisite to professional success. If you allow this type of behavior to happen in your company, you will likely face high turnover and general feelings of dissatisfaction. For more information on handling workplace relationships, see Chapter 2.

Pregnancy Discrimination

Treating employees differently on the basis of pregnancy, childbirth, or medical conditions related to pregnancy or childbirth (including abortion) is also prohibited, sex-based discrimination. This doesn’t mean the employee must be pregnant to be protected, however. For example, a federal court recently allowed a pregnancy-based lawsuit to proceed when an employee alleged she was fi red because she was undergoing in vitro fertilization to try to become pregnant.

Your basic duty is to treat a pregnant employee just as you would any other employee who is in a similar position in his or her ability or inability to work. Put another way, you should treat pregnant employees as you would any other employee with a temporary disability. If you’d give an injured employee a fl exible schedule to attend medical appointments, for example, do the same for pregnant employees.

Common Questions

Q: I have a pregnant salesperson whose job requires her to travel a lot. She’s had a lot of complications in the pregnancy and I am worried about whether it’s safe for her to travel. I have an administrative position opening up—she won’t make commissions anymore, but at least she’ll be close to home and she won’t have to take any unnecessary risks. Can I offer her the position?

A: You can offer her the position, but you can’t require her to take it. Even though your intentions are good, forcing the employee to take the position would be discriminatory. Because the position you want her to take sounds like it pays less and is less prestigious, requiring her to take it would be demoting her because she’s pregnant, a clear violation of the law. It’s up to her and her medical care provider to decide whether she has to stop traveling.

Sexual Orientation Discrimination

Federal law doesn’t explicitly prohibit discrimination based on sexual orientation. However, many states do offer this explicit protection. (See Appendix B for information on the law in your state.)

However, federal laws do prohibit discrimination based on sex stereotyping, as discussed above. So, treating people differently because they fail to live up to gender norms—for example, because a man acts effeminately or a woman acts macho—can be illegal sex stereotyping.

Gender Identity Discrimination

In recent years, many states and local governments have begun to include “gender identity” in their list of protected classes. Gender identity refers to one’s self-identified gender, as opposed to one’s anatomical gender at birth. (See the chart in Appendix B for the rule in your state.) An employee need not have undergone sex reassignment surgery to be protected by these laws.

To date, federal law does not explicitly protect employees from gender identity discrimination. However, as we’ve noted, employers can’t discriminate based on stereotypes about how men and women should behave, and that could include stereotyping employees whose self-identified gender doesn’t match their gender at birth.

Common Questions

Q: Our bookkeeper, Jim, just announced that he is undergoing a sex-change transition, wants to be called Jamie, and insists on being treated as female from now on. He’s just started the medical transition and won’t be fi nished for many months or longer. It’s a big hassle to change all our records, fi gure out bathroom arrangements, and make sure Jim’s coworkers and supervisor are handling this in a way that doesn’t off end him. Can’t we treat him like a man until he isn’t one anymore?

A: Definitely not. Part of Jim/Jamie’s transition is living as a woman, the gender with which she identifi es. It’s no more of a burden for your company to change Jamie’s records than to add new employees or adjust records to refl ect changes for other employees. Demanding that you be allowed to treat Jamie “like a man” could be considered gender stereotyping and may also violate your state law if it protects against gender identity discrimination.

Race Discrimination

Race discrimination occurs when an employer makes a job decision based on an employee’s race or adopts a policy that appears neutral, but disproportionately aff ects members of a certain race. For example, in the Supreme Court case that fi rst established the concept of “disparate impact,” an employer required laborers to have a high school diploma. Th is disproportionately screened out Black employees. Even if the employer’s intent wasn’t to discriminate, the policy had this eff ect. An employer with a policy that has a disproportionate impact like this will have to show there is an important and legitimate workrelated reason for it—here, that a high school diploma was necessary for the job of laborer.

Common Questions

Q: My employer, a garbage collection company, conducts background checks on all applicants, including getting credit information. Recently, the company rejected an applicant for a driver position after learning that he had bad credit (due to some late credit card payments). He’s African American and was otherwise qualifi ed for the job. I’m convinced his race had nothing to do with the rejection, but he fi led a charge of discrimination with the state human rights commission. Are we at risk?

A: Maybe, because credit report information, while neutral on its face, could have a disproportionate negative impact on African American applicants, as the U.S. Supreme Court has recognized. And your company will have a hard time showing that an individual’s credit report is necessary to being a garbage truck driver. Better to drop the practice and avoid the problem.

National Origin and Citizenship Status

An employer cannot discriminate on the basis of national origin (also sometimes called ancestry), either. National origin refers to the country in which someone was born, where his or her ancestors came from, or the nationality group to which he or she belongs. It does not have to refer to a country. Citizenship elsewhere is not in and of itself a protected status.

English-Only Rules

Some employers would like to require that everyone in the workplace speak English. Unless they’re necessary for a job, however, these Englishonly rules are illegally discriminatory. If there is a business necessity for the rule—speaking only English to Englishspeaking customers, for example—and employees have advance notice of it, such a rule is usually allowed. But rules that are unnecessarily restrictive (not allowing employees on their break to speak their native language, for example) can cause problems.

Common Questions

Q: An employee in our accounting department is excellent at what he does, but has a very thick accent that makes it diffi cult for people to understand him. Th is isn’t usually a problem, except when he has to give a presentation at the monthly manager’s meeting. Would it be discriminatory to demote him to a junior position that doesn’t require the presentations?

A: In all likelihood, yes. Discriminating against someone because of an accent can be considered national origin discrimination.

Th at doesn’t mean you can never take an adverse action against an employee because an accent aff ects his work. When an accent materially interferes with an employee’s job performance, it isn’t discriminatory to take appropriate action. But it doesn’t seem that you would meet that standard here. Th e employee’s accent doesn’t interfere with his primary job tasks; it only interferes with his ability to communicate at a monthly meeting, and there might be other solutions that can overcome this. For example, consider asking the employee to bring handouts to the meetings or to prepare presentation materials that communicate the bulk of relevant information, so that others can read along as he speaks.

Besides the possible legal risks if you demote the employee, you risk losing a potentially dissatisfied high performer who might soon look for a job elsewhere. Replacing a competent employee could prove much more costly than trying to fi nd a solution to the situation you’re currently in.

Age-Based Discrimination

Employers can’t discriminate against employees based on age. Th e ADEA protects employees age 40 and over from agebased discrimination. It is also illegal to discriminate against older workers in favor of younger employees who are themselves in the protected class—meaning it’s illegal to hire a candidate who is 45 years old instead of a better qualifi ed candidate who’s 65—based on age.

One part of the ADEA regulates benefi ts off ered to older employees. Th e Older Workers Benefi t Protection Act (OWBPA) prohibits employers from denying benefi ts to workers over 40. Because it costs more to provide certain benefi ts to older workers, the OWBPA does permit employers to reduce benefi ts based on age as long as the cost of providing the benefit to older workers is the same as the cost of providing the unreduced benefit to younger workers. However, this defense applies only to certain benefits and only in certain situations.

Common Questions

Q: We recently promoted a younger employee into a more senior tech nical position that requires detailed knowledge of a computer appli cation he learned in college. An older coworker has worked at the company for years and says he should have been off ered training in the application; if he had been, he claims he would have been the best choice for the promotion. He says this is age-based discrimination. Is it?

A: It doesn’t sound like it. Th e company cannot make decisions based on a person’s age, but can make decisions based on a person’s qualifications. Here, the younger applicant was more qualified. While there’s certainly nothing to prevent you from offering specialized training to help a current employee promote, you’re not legally required to do so (of course, you can’t off er it only to younger workers). And there’s nothing to prevent the older employee from seeking that training himself, to increase his career opportunities.

See an expert: The OWBPA also regulates the waiver and release of employment claims by older employees. A release that doesn’t meet these requirements is not valid, and your company can’t enforce it. Whenever your company wants to secure a release from any employee, consult with an employment attorney to make sure the release satisfies the OWBPA requirements.

Religious Discrimination

Title VII also protects employees from discrimination based on their religious beliefs. Discrimination based on religion occurs when an employer treats an employee differently, based on religion, or takes action that disproportionately affects employees of a particular religious faith. Discrimination against employees because they don’t adhere to a particular, or any, religious faith is also illegal.

An employee’s religious beliefs don’t have to be associated with a mainstream religion, such as Islam or Catholicism. According to the EEOC, a belief is protected if it is “‘religious’ in the person’s own scheme of things.” So long as the belief is “sincere and meaningful,” occupies a place in the believer’s life “parallel to that filled by … God,” and concerns ultimate issues of life, purpose, and death, it is irrelevant that it may not be affiliated with any particular religious group.

Common Questions

Q: An employee who describes himself as an evangelical Christian approaches coworkers on breaks to discuss his and their religious beliefs. A couple of employees told their supervisors they’re off ended. I know we’re not supposed to interfere with his religious beliefs, but he’s bothering other employees—what about their beliefs?

A: You aren’t legally required to put up with conduct that off ends employees or disrupts the workplace simply because the off ending employee’s conduct is part of a religious practice. But you do need to examine whether his religious practice can be accommodated in some way that doesn’t impose a hardship on your company and its other employees. For example, you could propose that he advise his coworkers that they can come to him to discuss religion during breaks, away from their workspaces. Th is would permit him to engage in his religious practice but would also prevent him from confronting other employees about religion if it offends them.

Religious observances are defi ned broadly as well, and include, for example, attending worship services, praying, wearing religious clothing or symbols, displaying religious objects, adhering to certain dietary rules, proselytizing or other forms of religious expression, or refraining from certain activities.

Under Title VII, the employer has a duty to accommodate the employee’s religious practices and observances, as long as doing so doesn’t create an undue hardship. An undue hardship means an accommodation that imposes more than a “de minimis,” or very slight, burden on the employer. For example, an employer might be required to relax a uniform requirement if doing so wouldn’t aff ect the employee’s safety and ability to do the job.

The EEOC advises employers to “ordinarily assume that an employee’s request for religious accommodation is based on a sincerely held religious belief.” But, if an employee requests a religious accommodation that you have an objective basis for questioning, either as to its religious nature or the sincerity of a particular belief or practice, you may ask the employee for additional supporting information.

There is an exception to Title VII for religious entities, which may limit employment “connected with carrying on its activities” to members of its own faith. However, that doesn’t give religious organizations free reign to discriminate on other bases, such as sex or race.

Common Questions

Q: One of my employees recently told me that her religion requires a vegan, not just vegetarian, diet. When the company orders food for working lunches, she wants a vegan option included. Do we have to comply with this request?

A: Whether you must provide such a meal depends on two things: (1) whether her diet is practiced as part of a sincerely held religious belief, and (2) whether her request for a vegan meal is reasonable and doesn’t create an undue hardship for you. If you doubt that her beliefs are sincere or that they are truly religious in nature, you are allowed to ask her for further information that substantiates the practice. For example, if she had decided to become a vegan for health or ethical reasons, rather than because of her religion, you would not be required to accommodate her request.

The more common question most employers have is whether the request accommodation is reasonable. If it’s going to create an undue hardship for the company, you do not have to agree to it. But the cost of an occasional single, vegan meal probably doesn’t qualify. Your best bet is to provide the meal; it will protect you legally, and the employee will appreciate it.

Discrimination Based on Disability

Under the Americans with Disabilities Act (ADA), an employer cannot discriminate against a qualified employee with a disability. A qualified worker is someone who is able to perform the job in question, with or without reasonable accommodation.

Person With a Disability

Under regulations promulgated by the EEOC, which enforces the ADA, an employee has a disability if he or she has a mental or physical impairment that “substantially limits a major life activity” (such as seeing, hearing, breathing, sleeping, reading, standing, sitting, walking, thinking, or learning). A major life activity also includes major bodily functions (such as immune, neurological, digestive, respiratory, eliminatory, and circulatory functions). A major life activity is substantially limited even if the limitation can be mitigated or corrected with medicine or devices (such as diabetes is by insulin treatments).

Employees are also protected if they have a history of such an impairment, or if the employer regards the worker—even incorrectly—as having a disability. So, for example, an employee diagnosed with epilepsy has a history of that impairment, even if the employee hasn’t had an epileptic seizure at work. And, an employee who is openly gay and is treated differently by an employer who wrongly assumes that he is HIV positive faces discrimination because the employer regards him as having a disability.

Common Questions

Q: I recently interviewed a candidate for the traffic reporter job at our commercial radio station. The candidate told me that he’d recently had a “very close call” while on a heli-ski trip and, as a result of his stress from this scare, he is “disabled” from flying in helicopters. Our traffic reports are made live from our chopper as it flies over the freeways at rush hour. The candidate asked very insistently that we accommodate him by letting him report traffic from the studio or by hiring him into another reporter position. We don’t have any other openings and traffic can’t be reported from the studio. Could he make us hire him?

A: No. Flying in a helicopter is not a major life activity, and he’s only limited from performing the particular job of traffic reporter. There are very few jobs that actually require an employee to fly in a helicopter—although yours sounds like one of them—so he’s not prevented from working more broadly. Thus, his condition is not a disability under the ADA. Check with your company lawyer to see if state law has a broader definition of disability than the ADA.

Reasonable Accommodation

A reasonable accommodation is a measure that would enable an employee with a disability to do the job in question. Reasonable accommodations can include things like adjusting work hours, installing access ramps, providing special furniture or other work equipment, providing voiceactivated software, or providing qualifi ed readers. A requested accommodation is unreasonable if it imposes an undue hardship on the employer, as discussed below.

Common Questions

Q: Our company has a strict policy against employees eating at their desks. An employee who was recently diagnosed with Type 2 diabetes has asked that he be allowed to snack at his desk to keep his blood sugar stable. This seems like a reasonable request, but my boss is worried about other employees demanding to be allowed to eat at their desks. Will we have a problem if we bend the rules for this one employee?

A: No. You are not bending the rules; you are following the law. As long as the employee meets the definition of a qualified employee with a disability (and it sounds like he does), this is a reasonable accommodation. Unless they require a similar accommodation, other employees are not entitled to a waiver of your company’s rule. As an alternative, you may prefer to give the employee permission to leave his desk to snack in private. And you shouldn’t explain the reason for the different treatment to other employees; the information is confidential medical information you aren’t allowed to reveal to people who don’t need to know it.

Undue Hardship

An employer does not have to provide an accommodation if doing so would create an undue hardship. An undue hardship means signifi cant diffi culty, disruption, or expense to the employer.

Whether a needed accommodation is an undue hardship depends on several factors, including the cost of the accommodation, the employer’s ability to absorb the cost, the impact of the accommodation on the work site, the size of the employer, and the type of business. For example, a change that might be reasonable and inexpensive for a large employer may be completely impossible for a small employer.

Genetic Discrimination

A new provision bars discrimination on the basis of an individual’s genetic information. The Genetic Information Nondiscrimination Act (GINA) takes effect on November 21, 2009, and prohibits employment discrimination based on an individual’s genetic tests, genetic tests of family members, or the manifestation of a disease or disorder in an individual’s family members. GINA is not limited to discrimination based on the medical condition of blood relatives; it includes adoptive children and spouses.

When and How Discrimination Occurs

Discrimination has the potential to taint any stage of employment. This section discusses some of the key points in the employment relationship where discrimination commonly occurs. Chapters 3 and 4 cover some steps you can take at each juncture to prevent it.

Hiring

Discrimination can occur at the very earliest stages of the employment relationship—even before the relationship has officially begun. Claims brought by applicants alleging that they were discriminated against in the hiring process are relatively uncommon, perhaps because applicants typically don’t know who else was in the running or even who else ultimately got the job. But, if you give an applicant reason to think that a protected characteristic played a role in your decision, through job postings, interview questions, or otherwise, you could run into some problems. Here are several ways employers, sometimes unknowingly, can create legal liability for themselves in the hiring process:

• Advertisements. Language in job descriptions, postings, and advertisements can violate the law. Usually, employers get into trouble by using words that are really codes for certain protected classes, or by including criteria that aren’t necessary for the job but that screen people out disproportionately (for example, a height requirement for a bus driver, which could screen out women or Asian or Latino men but isn’t really a requirement to do the job).
• Applications. Employers can also cause problems by asking inappropriate questions in their job applications. Applications that ask about an employee’s gender, age, disability, or other protected status may seem benign to you, but they raise red flags about whether you may be making hiring decisions based on these impermissible factors. For example, it’s appropriate for an application to ask for confi rmation that a person is 18 years of age or older, because employees who are not adults are subject to child labor restrictions. But “How old are you?” is not appropriate, because it means you have information that could allow you to make a decision about a person based on age.
• Screening. Applications should be screened based on the applicants’ ability to do the job. It’s important not to focus on protected class information to draw conclusions about an applicant’s suitability for the job—even information voluntarily supplied by the applicant, such as membership in clubs or organizations on a résumé that suggest membership in a protected class.
• Testing. While job-related skills’ testing is permissible, testing that doesn’t serve a job-related function or that is required only of certain applicants raises suspicion. For example, if a company requires only applicants with foreign-sounding surnames to submit a writing sample or requires only applicants with obvious disabilities to show how they would perform the job’s requirements, that would be discriminatory.
• Interviewing. It’s easy to inadvertently ask an improper question that delves into an interviewee’s protected status such as age, ancestry, or religious beliefs—even when you’re talking to a candidate you like and want to hire. Questions like, “What year did you graduate from college?” or “Where are you from?” may seem like simple conversation starters, but they bring you into dangerous territory, exploring age or national origin, neither of which is probably relevant to the job. Keep interview questions job related. For example, instead of asking, “Do you have child care?” you can simply ask, “Are you available to work Monday through Friday, from 8 to 5?” The best practice here is to avoid asking questions if you are legally prohibited from considering the applicant’s answer in your decision making.

Common Questions

Q: I handle hiring for a national pop music publication. We need to hire a photographer. Our CEO has instructed me to post the job on a few websites, seeking, “fresh, new, budding talent.” I’m a little uneasy about this wording, but he says he just wants to be sure we draw applicants who will “fi t in” with the musicians and fans they’ll be photographing. Should I push for a rewording?

A: Yes. The terms “fresh” and “new” look like euphemisms for “young,” and your company cannot target younger employees, even indirectly. Instead, the ad should emphasize the skills you’re looking for—it doesn’t matter what age the person is, if he or she has those skills. (And perhaps you can gently remind the CEO that preeminent rock photographer Annie Leibowitz is hardly a “tween.”)

Common Questions

Q: During an interview, a colleague nonchalantly asked the candidate what her necklace symbolized. Th e candidate replied that it was a gift from her mother, but evaded the question, and she seemed uncomfortable. I happen to know that it is a symbol for a Hindu deity.

The candidate isn’t the most qualified person for the job, and we aren’t planning to offer it to her. But in light of what my colleague said here, I’m a little worried about whether this creates an appearance of discrimination. What do you think?

A: Th is is a good example of a well-intentioned interviewer going a bit astray. The colleague probably didn’t mean to go into off -limits territory, but that’s what happened.

Even though you’d have preferred he not bring up the necklace, his error doesn’t mean you have to hire the candidate if she isn’t the most qualified person for the job. While she’s unlikely to challenge your hiring decision, if she does and you have ample evidence that she wasn’t selected because she’s not the best candidate, you should be in the clear. It sounds like your colleague may need more direction about what kinds of topics are appropriate for interviews, however.

CD-ROM: Listen to sample “good” and “bad” interviews on the CD included in the back of the book.

Decisions During employment

Many employment discrimination complaints arise out of decisions that occur during the course of employment. Unlike job applicants, who know little about the company, how it operates, and how its individual managers and supervisors behave, employees who have been with the company for some time have a basis for comparison. They can more easily recognize when they’re being treated differently from their coworkers, and they may have more experience and facts to suggest that an improper motive may be at work.

Discrimination during employment can occur at many stages, such as:

• Training and mentoring. Opportunities to advance through training and mentoring should be available to all employees, and no one should be excluded or neglected because of race, gender, disability, or another protected trait. It’s easier to recognize overt opportunities, like which employees are tapped for major training programs, than informal opportunities, like which employees are invited to socialize with key clients or assist on important projects, but you need to be aware of both.
• Job assignments. Even assignments that employers claim are designed to protect or help employees—for example, not allowing pregnant women to do physically arduous tasks— can be discriminatory, and are particularly problematic when they’re tied to promotional opportunities.
• Benefits and pay. Pay disparities may be obvious from the beginning, or they may develop over time. Your suspicions should be raised any time two similar employees receive different compensation or benefits—for example, two employees who perform similarly get different raises or bonuses.
• Performance evaluations. Performance evaluations or appraisals are a good opportunity to communicate to employees how they’re doing and what they can do to improve. However, if you treat employees differently or make any statements that suggest discrimination (noting that an employee who is sporadically unavailable for staff meetings due to a disability is not a team player, for example), you could run into trouble.
• Promotions. When it comes time to promote employees, decisions should be made based on jobrelated experience and performance only.
• Imposing discipline. When imposing discipline, make sure it’s done fairly—not just within the department, but within the company. Use your company’s policies to establish appropriate levels of discipline, then apply these guidelines uniformly.
• Change during tenure. The potential for discrimination may also change during an employee’s tenure, for example, if an employee becomes pregnant, develops a disability, ages, or adopts new religious beliefs.

RESOURCE: For more information on conducting performance appraisals, see The Performance Appraisal Handbook, by Amy DelPo (Nolo).

Common Questions

Q: An employee recently complained that his manager always takes a subordinate out to “mentoring” lunches—the manager’s business receipts support this characterization—but none of the other employees in the department get the same treatment. Th e employee who gets asked out to lunch is the only woman in the group. Th ere’s a promotional opportunity coming up, and the employee who came to me wants to apply for it, but he feels like his coworker has an unfair advantage. How should I handle this?

A: He may be right. The manager’s one-on-one mentoring of the only female may put everyone else at a disadvantage: Th ey may not acquire the same skills or institutional knowledge, and that could further aff ect their promotional opportunities. You need to fi nd out why the female employee is getting this special attention. Absent more information, it appears that the supervisor could be singling her out because she’s female. Even if the supervisor’s actions have nothing to do with gender, it’s not a good managerial practice to play favorites like this.

RESOURCE: Need help creating or implementing a discipline plan? Go to The Progressive Discipline Handbook: Smart Strategies for Coaching Employees, by Margie Mader-Clark and Lisa Guerin (Nolo).

Common Questions

Q: An employee claimed that his supervisor disciplined him for tardiness, while the friend he carpools with has had no such repercussions. Th is employee is Caucasian, and his friend in Asian. He believes this is race based.

I looked into it further and it appears he was written up according to company policy. Th ere’s no documentation that his friend, who works in a diff erent department and has a diff erent supervisor, was ever late. Should I stand by the discipline?

A: Before you can make this decision, you have more work to do. If the employee was disciplined according to company policy, the supervisor was doing what he was supposed to. But if another employee in the same circumstance wasn’t disciplined, you need to fi nd out why. Because they carpool together, you can assume that they arrive at work at the same time, as long as one of them doesn’t routinely make an extra stop (for example, to get a latte or make a fi ve-minute phone call home).

As long as they both actually start work at the same time, it sounds like the other employee’s supervisor either doesn’t know what time he arrives or isn’t following company policy. As you can see, either one puts the company at legal risk. Even if neither supervisor is making a decision based on race, inconsistent enforcement of the rules leads to poor morale, hard feelings, and, as you’ve seen, suspicions of discrimination.

Caution: Customer bias is no excuse. It is no defense to a discrimination claim for an employer to claim that its customers or clients insisted that only employees of a certain race, gender, or religion service them, or that only younger or fully able-bodied employees do. If your company is asked to make such discriminatory decisions by a client or customer, firmly refuse.

The End of Employment

The end of an employee’s tenure is the most fraught transition in employment and the one most likely to lead to lawsuits, including allegations of discrimination. Claims may arise out of:

• Termination, layoff, reorganization, or reduction in force. Despite your best efforts, employees who are fired or otherwise involuntarily lose their jobs may question your motives. Even if your company has acted in strict compliance with the law, it may have to justify its decision.
• Resignation. If an employee is forced to resign because of discriminatory treatment (for example, to escape racial slurs or abuse), that may be viewed as a “constructive discharge”— basically, that the employee was forced to quit because any reasonable person in the situation would have. And even if an employee is not forced to resign, he or she may recover damages suffered during employment as a result of illegal discrimination (such as lost pay due to denial of promotion, or compensation for emotional distress).
• Providing a reference. To avoid claims that you said something discriminatory or even defamatory when called by a prospective employer for a reference, you may want to recommend that your company provide only content-neutral information like the employee’s title, rate of pay, and dates of employment.

Tip: Conduct exit interviews of all employees who leave the company, for any reason. Ask departing employees whether they feel that they were treated fairly by the company and if not, why not. Follow up any report of unfair treatment as you would a complaint of discrimination, by investigating the claims of the employee as discussed in Chapter 5. If an employee has responded that he or she felt fairly treated, this can be a useful piece of information with which to respond to a later claim of discrimination.