The Essential Guide to Handling Workplace Harassment & Discrimination
Deborah C. England, Attorney
October 2012, 2nd Edition
The harassment and discrimination desk reference for every HR professional and manager
Employees filed more than 95,000 discrimination, harassment and retaliation claims against their employers in 2008, with the biggest jump occurring in age discrimination and retaliation claims. In these tough economic times, it's evident that more employees are considering taking their grievances to court.
Enter The Essential Guide to Workplace Harassment & Discrimination, the essential reference for human resources professionals, managers and supervisors who are responsible for addressing and preventing harassment and discrimination problems in the workplace. Taking into consideration the practical realities of applying the law in everyday situations, this guide answers common questions that you're likely to encounter regularly.
Though you'll read thorough explanations, in plain English, of the important legal principles that professionals must understand in order to deal with discrimination in the workplace, you'll also get samples, quizzes and audio scenarios that will help you to apply these principles in real-world situations. Find guidance on:
- what harassment is and how to stop it
- when and how discrimination occurs
- how to draft and communicate effective policies
- how to conduct training
- how to handle employee complaints and investigate claims thoroughly
- how to protect the company with proper documentation
- what to expect if an employee files a charge or lawsuit
The Essential Guide to Workplace Harassment & Discrimination is packed with legal strategies and information for busy managers, giving you the tools to protect your employees -- and the company -- from workplace harassment and discrimination.
“(Nolo’s)…material is developed by experienced attorneys who have a knack for making complicated material accessible.” - Library Journal
“When it comes to self-help legal stuff, nobody does a better job than Nolo.” - USA Today
- Litigation Calendar
- Intake Form—Employee Complaint
- Policy Distribution Log
- Policy Prohibiting Discrimination and Harassment
- Acknowledgment of Receipt of Policy
*Audio files are not available with the ebook
Deborah C. England
Deborah England is a litigator with 20 years of employment law experience. She has published numerous articles and essays on employment and civil rights law, and frequently speaks on these topics before legal and HR professional organizations. England makes her home in the San Francisco Bay Area.
Deborah England's Profile on Google +
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- What Are Harassment and Discrimination?
- How Harassment and Discrimination Affect the Bottom Line
- How This Book Can Help
PART I: Preventing Harassment and Discrimination
1. What Is Discrimination?
- Laws Prohibiting Discrimination
- What Is Discrimination?
- When and How Discrimination Occurs
2. What Is Harassment?
- Which Laws Apply to Your Company?
- What Is Harassment?
- Who Is a Harasser?
- Who Can Be Harassed?
- What Is Not Harassment?
3. Policies Prohibiting Harassment and Discrimination
- Benefits of an Effective Policy
- Elements of an Effective Policy
- Complaint and Investigation Procedures
- Communicate the Policy to Employees
- Review the Policy Regularly
- Benefits of Training
- Combined Training Session for Supervisors and Employees
- Separate Sessions
- How to Conduct Training
- Who Conducts Training
- Diversity Training
PART II: Dealing With Harassment and Discrimination Claims
5. Investigating Complaints
- Receiving a Complaint
- Conducting an Investigation
- Concluding Your Investigation
- What Your Documentation Should Look Like
- What Documents You Should Have
- Document Management
7. After the Investigation
- Dealing With the Aftermath of a Complaint
- Getting Others Involved
8. Dealing With Government Agencies
- The Role of Fair Employment Agencies
- The Complaint Process
- Preparing for an Agency Investigation
- Your Role in Dealing With Investigative Agencies
- Why Employees Sue
- How Lawsuits Work
- Alternatives to Litigation
- Your Role in a Lawsuit
- If You Are Sued Personally
A. How to Use the CD-ROM
- Installing the Files Onto Your Computer
- Using the Word Processing Files to Create Documents
- Listening to the Audio Files
- Files on the CD-ROM
B. State Laws on Discrimination and Harassment
- State Laws That Prohibit Discrimination and Harassment
- State Enforcement Agencies
- Policy Prohibiting Discrimination and Harassment
- Acknowledgment of Receipt of Policy
- Policy Distribution Log
- Intake Form—Employee Complaint
- Litigation Calendar
What Is Discrimination?
Laws Prohibiting Discrimination....................................................... 10
What Is Discrimination?................................................................... 13
Sex-Based Discrimination........................................................... 17
Race Discrimination.................................................................... 22
National Origin and Citizenship Status........................................ 23
English-Only Rules..................................................................... 24
Age-Based Discrimination........................................................... 25
Religious Discrimination.............................................................. 26
Discrimination Based on Disability................................................... 29
Genetic Discrimination.................................................................... 33
When and How Discrimination Occurs............................................ 34
Hiring ......................................................................................... 34
Decisions During Employment.................................................... 37
The End of Employment............................................................. 41
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 off-limits 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.
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 “State Laws That Prohibit Discrimination and Harassment,” in Appendix A for more information.)
Genetic Information Nondiscrimination Act (GINA). This law prohibits discrimination on the basis of genetic information. 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.
Which Antidiscrimination Laws Apply to Your Company?
Not every antidiscrimination law applies to every employer. For the most part, whether your company has to follow these laws depends on its size and location. Federal antidiscrimination laws (listed below) apply only to employers with more than a minimum number of employees—and this minimum number is different for each law.
Race, color, national origin, religion, sex
Employers with 15 or more employees
Age (against employees age 40 and older only)
Employers with 20 or more employees
Americans with Disabilities Act
Physical or mental disability
Employers with 15 or more employees
Equal Pay Act
Sex (applies only to
Civil Rights Act of 1866 (Section 1981)
Immigration Reform and Control Act
Citizenship status, national origin
Employers with four or more employees
Genetic Information Nondiscrimination Act
Employers with 15 or more employees
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 employment-related 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.
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.
Lessons From the Real World
Supervisor’s sexist comments could be offered at trial as evidence of bias in layoff decisions.
Boeing laid off two women who scored low on reduction-in force-assessments. Although the trial court ruled in Boeing’s favor, the federal appeals court reversed based on evidence of sexist comments by one woman’s supervisor and circumstantial evidence that the same supervisor deliberately set a woman up to fail the assessment because of her sex. The appeals court held that a coworker’s testimony about the supervisor’s comments could lead a jury to believe that Boeing’s stated reason for termination (the poor RIF assessment scores) was not true.
EEOC v. The Boeing Co., 577 F.3d 1044 (9th Cir. 2009).
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.
Being a Jerk Isn’t Illegal
Not every type of discrimination is illegal discrimination. Differences in personality, temperament, and taste can lead to friction in the workplace. And the law doesn’t demand that employers force employees to like each other. If unfair treatment arises out of a personality dispute that is not based on membership in a protected class, it is not illegal. That means the “undiscriminating jerk”—the manager who treats everyone badly—isn’t discriminating illegally if he’s mean to everyone just because he’s, well, mean. Even obvious favoritism or bias, such as refusing to hire fans of a particular baseball team, isn’t illegal as long as it isn’t actually based on race, gender, or some other protected status.
Of course, that doesn’t mean the company has to put up with obnoxious behavior and foolish rationales for employment decisions. After all, it can affect employee morale and productivity. You’ll probably want to put a stop to it; although the company shouldn’t risk legal liability for it, it’s hardly conducive to a good work environment.
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, that is, holding men and women to different standards based on historic or traditional sex roles, is also sex-based 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.
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 differently because of a protected characteristic. The 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 suffering 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.
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 differences, 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.
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.
Lessons From the Real World
Employee fired after dating a coworker could proceed with her lawsuit.
It is a bad idea to punish a paramour to ease workplace tensions. Hyannis Air Service fired pilot Tiffany Ann Nicholson to get rid of her as an object of sexual competition among the male pilots after it came to light that she had had a prior relationship with one of the male pilots and was rumored to be involved with another. The federal appeals court reversed a trial court ruling for Hyannis Air Service and held that Nicholson was entitled to a trial on her discrimination claim.
Nicholson v. Hyannis Air Service, 580 F.3d 1116 (9th Cir. 2009).
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 fired 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 flexible schedule to attend medical appointments, for example, do the same for pregnant employees.
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.
The federal health care reform law (and some state laws) requires certain employers to provide breaks for women who need to breast-feed or express breast milk. The federal law requires employers with 50 or more employees to provide a private area, other than a restroom, for nursing women to express breast milk. These employers must allow nursing women to take breaks for that purpose for one year after birth, as needed. Employers with fewer than 50 employees are not subject to the requirement if it would impose an undue hardship by causing significant difficulty or expense relative to size, financial resources, nature or structure of the business. (29 U.S.C. § 207 (r).)
In addition, California, Connecticut, Georgia, Hawaii, Illinois, Indiana, Maine, Minnesota, New York, Oregon, Rhode Island, and Tennessee also require employers to provide breaks for nursing women to express breast milk in a private area. See Appendix A at the end of this book for a summary of state laws on breast-feeding breaks.
Sexual Orientation Discrimination
Federal law doesn’t explicitly prohibit discrimination based on sexual orientation in private employment. However, many states do offer this explicit protection. (See Appendix A 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 A 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, the EEOC has ruled that Title VII’s prohibition of sex discrimination also bars discrimination on the basis of gender identity and transgender status. And, as noted above, 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.
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 finished for many months or longer. It’s a big hassle to change all our records, figure out bathroom arrangements, and make sure Jim’s coworkers and supervisor are handling this in a way that doesn’t offend 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 identifies. It’s no more of a burden for your company to change Jamie’s records than to add new employees or adjust records to reflect 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 occurs when an employer makes a job decision based on an employee’s race or adopts a policy that appears neutral, but disproportionately affects members of a certain race. For example, in the Supreme Court case that first established the concept of “disparate impact,” an employer required laborers to have a high school diploma. This disproportionately screened out Black employees. Even if the employer’s intent wasn’t to discriminate, the policy had this effect. An employer with a policy that has a disproportionate impact like this will have to show there is an important and legitimate work-related reason for it—here, that a high school diploma was necessary for the job of laborer.
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 qualified for the job. I’m convinced his race had nothing to do with the rejection, but he filed 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.
The Immigration Reform and Control Act of 1986 (IRCA) bans discrimination based on national origin and citizenship by any employer with four or more employees or by any employer not covered by Title VII, such as those employing seasonal workers. All employees who are authorized to work in the United States (such as those holding valid “green cards”) are protected by this provision. Employers may legally choose to hire a U.S. citizen rather than an equally qualified lawful permanent resident. However, employers may not choose a U.S. citizen over an equally qualified lawful permanent resident for termination. And, an employer may not have a blanket policy of always selecting U.S. citizens over qualified, lawful permanent residents or others who are authorized to work in this country.
Some employers would like to require that everyone in the workplace speak English. Unless they’re necessary for a job, however, these English-only rules are illegally discriminatory. If there is a business necessity for the rule—speaking only English to English-speaking 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.
Q: An employee in our accounting department is excellent at what he does, but has a very thick accent that makes it difficult for people to understand him. This 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.
That doesn’t mean you can never take an adverse action against an employee because an accent affects 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. The 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 find a solution to the situation you’re currently in.
Employers can’t discriminate against employees based on age. The ADEA protects employees age 40 and over from age-based discrimination. It is also illegal to discriminate against older workers in favor of younger employees who are themselves in the protected class. In other words, it’s illegal to hire a candidate who is 45 years old instead of a better qualified candidate who’s 65, based on age.
Q: We recently promoted a younger employee into a more senior technical position that requires detailed knowledge of a computer application he learned in college. An older coworker has worked at the company for years and says he should have been offered 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. The 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 offer it only to younger workers). And there’s nothing to prevent the older employee from seeking that training himself, to increase his career opportunities.
One part of the ADEA regulates benefits offered to older employees. The Older Workers Benefit Protection Act (OWBPA) prohibits employers from denying benefits to workers over 40. Because it costs more to provide certain benefits to older workers, the OWBPA does permit employers to reduce benefits 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.
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.
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.
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 offended. 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 offends employees or disrupts the workplace simply because the offending 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. This 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 defined 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 affect the employee’s safety and ability to do the job.
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.
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.
Lessons From the Real World
A cashier’s insistence on wearing facial jewelry for religious reasons imposed an undue hardship on her employer.
Three years after being hired by Costco, Kimberly Cloutier began wearing an eyebrow ring. The next year, Costco modified its dress code to prohibit all facial jewelry. Cloutier protested, claiming that her eyebrow piercing was part of her religious belief as a member of the Church of Body Modification, which requires that members display piercings at all times.
After firing Cloutier for refusing to comply with the dress code, Costco offered to let her return if she would cover the piercing with a Band-Aid while at work, an accommodation that Cloutier herself had earlier suggested. Cloutier refused.
The court noted that the accommodation offered by Costco was reasonable, which Cloutier had essentially conceded when she offered it originally herself. The court held that Costco had a legitimate interest in its public image and that exempting Cloutier from the dress code would have imposed an undue burden on the company.
Cloutier v. Costco Wholesale Corp. 390 F.3d 126 (1st Cir. 2004).
Exceptions for Religious Employers
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. In 2012, the U.S. Supreme Court decided that Title VII includes a “ministerial exception” for religious employers. The Court ruled that the First Amendment bars employment discrimination lawsuits by employees terminated from ministerial positions with religious organizations. The Court cited the constitutional prohibition on the establishment of religion, noting that exempting religious organizations from employment discrimination laws ensures that the government will play no part in filling ministerial positions within such organizations.
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.
Only qualified people with disabilities are protected under the state and federal laws prohibiting disability discrimination. A person is qualified if he or she has the qualifications for the job in question and is able to perform the essential functions of that job with or without accommodation (discussed below). So, the employee has to meet the employer’s requirements for the job, including education, skill level, experience, and other merit-based standards. And, the employee must be able to perform the job’s basic duties and requirements. As discussed below, if the employee can meet these standards only with an accommodation, the employee is still qualified for the job.
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.)
Even if his condition qualifies as a disability, it prevents him from performing an essential job function: flying in a helicopter. Therefore, he likely isn’t qualified for the job, as defined by the ADA.
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 voice-activated software, or providing qualified readers. A requested accommodation is unreasonable if it imposes an undue hardship on the employer, as discussed below.
Lessons From the Real World:
A single failure to accommodate leads to victory for an employee.
An Albertsons checkout clerk had cancer of the larynx. As a result of radiation treatment, the clerk suffered from a very dry mouth and drank a lot of water. As a result, the clerk needed to take frequent bathroom breaks, which Albertsons knew about and had agreed to allow after engaging in the interactive process with the employee. One night, the floor lead, who did not know of the accommodation, denied the clerk’s request for a break and the clerk urinated on herself at the check-out stand. A jury awarded the clerk $200,000 for the failure to accommodate her disability and an appellate court upheld the verdict.
A.M. v. Albertsons, LLC, 178 Cal.App.4th 455 (2009).
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.
Physical capacity tests violate the ADA. When the accommodation an employee needs includes time off from work, some employers have required returning employees to take physical capacity tests upon returning from leave. While your company may wish to make sure that an employee can perform physical aspects of his or her job after returning from an ADA leave, some courts have viewed such tests as medical examinations, which violate the ADA. Your company is allowed to ask the employee to provide a fitness for duty certification from his or her doctor, stating that the employee is able to return to work, however.
An employer does not have to provide an accommodation if doing so would create an undue hardship. An undue hardship means significant difficulty, 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.
Federal law bars discrimination on the basis of an individual’s genetic information. The Genetic Information Nondiscrimination Act (GINA) 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.
Many states also have statutes that prohibit genetic discrimination, and some of these laws provide more protection for employees than GINA does.
In order to comply with GINA (and any applicable state laws), an employer should:
Make sure that company policies prohibit the gathering, use, and/or disclosure of genetic information.
Make sure that employee genetic and medical information is maintained in confidential files, completely separate from other employee records, and that access to genetic and medical information is strictly limited to only those who are authorized. Most importantly, ensure that managers, supervisors, and others with authority to make decisions about employees’ terms of employment do not have access to such information.
Include language on forms for employee medical care providers (such as those issued for ADA or FMLA leave requests) warning the providers not to disclose genetic information on the forms. (You can find suggested language at the EEOC’s website, www.eeoc.gov; under the Employers tab, choose “Genetic Information,” then “Questions and Answers for Small Businesses: EEOC Final Rule.”)
Train managers and supervisors what questions not to ask, what information not to seek, and what not to do on social networking or other sites in order to avoid learning genetic information.
Make sure any company wellness or other programs do not inadvertently or otherwise violate GINA.
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.
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).
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 “fit 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.”)
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 confirmation 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.
Q: During an interview, a colleague nonchalantly asked the candidate what her necklace symbolized. The 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: This 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.
Listen to sample interviews. You can find examples of “good” and “bad” interviews, in audio form, at this book’s online companion page. See Appendix B to find out how to access the page and what you’ll find there.
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 an improper motive at work.
Your company may be liable if a biased manager influenced the decision. Your company may be liable for discrimination if a supervisor or manager with biased intent influenced the decision maker to take action against an employee, even if the biased manager didn’t make the final decision. In this situation, the Supreme Court has found that the biased manager’s discriminatory intent played a role in the action taken against the employee, even if the actual decision maker didn’t know about it or intend to discriminate. Courts have also found that the discriminatory comments of HR managers or supervisors who were not directly involved in making decisions about a particular employee can be introduced as evidence to support the employee’s discrimination claim in court. This is one reason why thorough training of supervisors and managers is so important, as explained in Chapter 4.
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, if 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.