Did I discriminate?
I recently received a notice from the California Department of Fair Employment and Housing saying that one of my employees is claiming that they were the victim of workplace discrimination. Do I need to hire a lawyer? As an employer, how do I avoid potentially discriminating against employees?
The California Fair Employment and Housing Act provides that all people may seek, obtain and hold employment without discrimination due to that person’s inclusion in an extensive list of protected classes. These classes include race, religious creed, color, national origin, ancestry, physical disability, mental disability, medical condition, genetic information, marital status, sex, gender identity, gender expression, age and sexual orientation.
Sometimes it’s quite easy to avoid discrimination, but other times you may not even realize it’s happening. It’s easy for most people to perceive race and age discrimination, and such discrimination is clearly unacceptable.
However, discrimination laws regarding some of the other protected groups may not be as obvious. For example, telling someone that you’re looking to hire an energetic new employee “in their 20s” could constitute age-based discrimination against a job applicant in their 40s.
Discrimination doesn’t just occur when you hire or fire someone. Any substantial, adverse employment action based on one of the protected classes can constitute discrimination, including being passed over for a raise or promotion, being given bad or unfavorable assignments, or being paid less than others in the same job. Minor things are probably not actionable, such as if your boss favors one employee or can be unreasonable at times.
Often the easiest way to avoid discrimination claims is to make accommodations for your employees. If an employee asks to not be scheduled on a specific date because of a religious holiday, you should probably honor the request without much thought.
If you have a grooming policy, be careful that it doesn’t conflict with employees’ religious beliefs. For example, if an employee lets you know that they need to wear a head covering and your policy says “no hats or head coverings,” you may need to make an adjustment to accommodate that employee.
Train your managers to not immediately say “no” when an employee asks for an accommodation and make sure managers can identify a request for accommodation. Discuss what your employee’s needs are so that you can find a solution that works for the employee and the company.
Whether you make a reasonable accommodation will also depend on whether it creates an undue hardship on your business. If it would cause an undue hardship, you should speak with legal counsel before deciding whether to make an accommodation.
Mary Luros is a business law attorney with Hudson & Luros LLP in Napa, and can be reached at firstname.lastname@example.org. The information provided here is not legal advice, nor does it form an attorney-client relationship with the author. The author makes no representations as to the reliability or accuracy of the above information.