EMPLOYMENT DISCRIMINATION, LET ME COUNT THE WAYS

Posted by Attorney Roger L. Pettit in Employer-Employee Relationship, Business Management / Comments

Employers are by now aware that discrimination in the workplace is unlawful. The original list of protected characteristics has expanded from the original race and national origin, protected in some form since the Civil Rights act of 1866, and now includes sex, age, disability, genetics, and in some jurisdictions, sexual orientation, family status, and transgender status. But just how savvy is the employer of a small business of the ways in which discrimination against these protected groups may be committed?

The Business and Labor Reports (BLR) identifies at least 7 ways in which discrimination can occur, some not so easy to recognize. In BLR's HR Daily Advisor tip of June 23, 2011, it lists 7 ways in which courts have allowed evidence that bears upon whether the employee has been the subject of workplace discrimination:

1. Overt-"My crew will never get along with an African American";
2. Stereotyping-"Men aren't going to project the image we want at the receptionist desk";
3. Patronizing- "Jenny would be good with our customers, but being away from her kids may be a distraction to her";
4. Avoidance discrimination- "I will just ignore the Hispanics that work for me so that I don't get in trouble if I say something wrong";
5. Favoritism- "I know that the guys will always pitch in when we need to work overtime, so scheduling is a lot easier if I don't have to work around the gals

   babysitting problems";

6. De Facto- "I don't know why, but the preferred candidate was always better than the (pick a protected class that the hiring authority doesn't want)";
7. Reverse  discrimination- "Our company is on a kick to increase the number of women in production, so they are to get preference in the next hiring cycle."

These forms of discrimination are very subtle and engaging in these various activities is most often well intentioned and without wanting or intending to disadvantage a qualified employee of a protected class. The  antidote to falling victim to lawsuits that may arise from these behaviors is to train your managers and supervisors to recognize these behaviors in themselves and provide oversight to the hiring and firing decisions as well as monitor the treatment of all employees in the workplace, so that corrective action can be taken before it is too late.

But even following the recommended best practices may not be enough. I will also add to the list, the most pervasive type of discrimination-"Perception discrimination." Perception discrimination occurs only in the mind of the employee, usually after the employee has suffered an adverse job action. Even the most conscientious employer may be perceived to have engaged in discrimination by employees who are unhappy with their circumstance, warranted or not. The problem with perception discrimination is that it may lead to the filing of a legal claim, which adds to the expense of running a business.

Attorney Roger L. Pettit