Hiring and Firing

A Guide for Managers to Protected Groups


We hear a lot about "protected groups," but what does this mean? To state it simply, a supervisor or manager cannot consider certain characteristics or activities under federal, state, or local law with regard to any employment decision, policy, or practice. For example, a retail store could not reject an applicant with hair loss due to chemotherapy for fear that customers would not be comfortable working with her. While an exhaustive list of all protected groups is beyond the scope of this article, the most common are discussed below, and they generally apply to job applicants and existing employees alike.

AGE

Under the federal Age Discrimination in Employment Act of 1967, you cannot discriminate against an individual because he is "older." How does the law define older? Beginning at age 40. Ouch. Sorry, that's Congress' conclusion, not mine. When does protection end? Death.

What constitutes age discrimination? For example, a job requires that a candidate work long and hard hours. It would be unlawful to assume an older person wouldn't be able to work the hours, and you cannot deny him the job because you fear it will be too hard for him. Conversely, the fact that he is older doesn't mean you must or should expect less of him.

Also important to know: Absent very narrow circumstances, there is no permissible mandatory retirement age. Are employees under 40 protected? Not under federal law. You'll have to wait. Some states, however, have laws that protect younger employees.

GENDER

Title VII of the Civil Rights Act of 1964 prohibits an employer from discriminating against an applicant or employee because of his or her gender. While Title VII's prohibition on sex discrimination was enacted primarily to protect women, it also safeguards men. Gender stereotyping counts as a form of sex discrimination, too. In other words, you don't have to be a man to hold a job that requires toughness any more than you have be to a woman to hold a job that requires nurturing.

PREGNANCY

After Title VII became law, some employers were still discriminating based on pregnancy. The rationale: There are pregnant and nonpregnant women, so discrimination based on pregnancy does not equal discrimination based on sex. Come on, guys. If an employer treated prostate cancer more harshly than other cancers, most would believe the employer was discriminating based on sex, because only men have prostate issues. So substitute prostate for pregnancy, and you'll see that pregnancy discrimination really is sex discrimination. Even the Supreme Court got it wrong, so Congress enacted the Pregnancy Discrimination Act (PDA), which makes it unlawful for an employer to make decisions based on the fact that an applicant or employee is pregnant (or not).

RACE/COLOR

Title VII of the Civil Rights Act of 1964 also prohibits an employer from discriminating against an applicant or employee because of her race or color. While the government enacted Title VII's prohibition on race discrimination principally to protect African Americans, it also protects all other races, including Caucasians. And even if two individuals are of the same race, differences in skin color cannot be considered. For example, Title VII prohibits a light-skinned African American from discriminating against a dark-skinned African American. Always remember that customer preference does not justify invidious discrimination based on race or color. Even if your customers discriminate, you can't. Find new customers.

NATIONAL ORIGIN

Under Title VII of the Civil Rights Act of 1964, an employer also cannot discriminate against an applicant or employee based on his national origin. Accordingly, you cannot consider where someone was born or where his parents or grandparents were born. Keep in mind that national origin differs from citizenship. It relates to an individual's "roots," not whether he or she is a U.S. citizen now. Y'all be careful of making decisions based on accent, too. Courts may view this as proxy for national origin discrimination. For example, if you can't understand the individual who applies for a call center job, then focus on the inability to understand, not the accent giving rise to the inability.

CITIZENSHIP

While Title VII does not address citizenship, the Immigration Reform & Control Act of 1986 does. Under IRCA, you cannot discriminate against an applicant or employee because she is not a U.S. citizen. Remember, U.S. citizenship is only one way an individual can establish eligibility to work in the U.S.

DISABILITY

Under the federal Americans with Disabilities Act of 1990 (ADA), as amended in 2008, an employer cannot discriminate against an applicant or employee because he currently has, previously had, or is perceived or regarded as having, a disability as defined under federal law. But what if the disability appears to be job-related? For example, can you reject an applicant for a driver position because she is blind? No. But you can reject her because she cannot drive. Focus on skills and abilities—not disabilities.

The same counsel applies to performance management. Focus on the deficiency in performance without stating or guessing what may be the underlying cause. Ask a poorly performing employee who looks sad if he is depressed, and he may no longer be depressed, since your question may just have given him a viable "regarded as" disability claim.

GENETIC INFORMATION

As noted above, the ADA covers current, prior, and perceived disabilities. Where's the shortfall? Potential future disabilities. In 2008, Congress passed, nearly unanimously, the Genetic Information Non-Discrimination Act to fill that gap. It takes a lot for Congress to agree on anything, so pay attention. You can't ask about, or consider, an individual's genetic information. In other words, the fact that an individual may be prone to a certain illness, or even that the employee will certainly develop the illness, is of no moment now.

RELIGION

Title VII of the Civil Rights Act of 1964 also prohibits an employer from discriminating against an applicant or employee because of her religious beliefs, practices, or observances. "Religion" is defined broadly. For example, it includes not only Christianity, Judaism, Buddhism, and Islam but also such faiths as Scientology and religions more common outside the U.S., such as Daoism. Remember, even if you have not heard of the faith, it still may qualify as a protected religion. In addition, an employer cannot discriminate against someone because she has no religious beliefs at all. You also cannot discriminate against someone because he wears religious garb, such as a hijab or kippah, to work. And, under some circumstances, you may have to accommodate an employee's schedule to allow for certain religious holidays or observances.

MARITAL STATUS/PARENTAL STATUS

Federal law does not specifically prohibit an employer from making employment decisions based on marital status or parental status. Marital and parental status, however, are covered by some state and local laws. Moreover, even in those states or local jurisdictions that don't protect from discrimination based on marital and parental status, it's still dicey to ask about, or make decisions on account of, these factors. Such questions may constitute "proxies" for gender discrimination or an indirect way to determine an individual's sexual orientation or likelihood of getting pregnant. Stay away from the personal and focus solely on the professional. If a job requires travel, you can ask all applicants for the position whether they can travel as required by the job. You can't ask applicants whether they have kids, a spouse who can help, or child care at his disposal. Ask the female candidate whether she has kids and whether they will prevent her from traveling, and she may not need the job after she cashes her settlement check.

SEXUAL ORIENTATION

Federal law does not specifically prohibit an employer from making employment decisions based on sexual orientation. However, 21 states plus the District of Columbia and more than 200 cities and local municipalities prohibit employers from considering an applicant's or employee's sexual orientation. Sexual orientation is relevant in finding a life partner, not in seeking someone who can work for you.

PROTECTED LEAVE

An employer cannot discriminate against an employee because she has taken a leave of absence protected by federal, state, or local law. This includes, for example, military leave, whether voluntary or involuntary, as well as leave covered by the federal Family & Medical Leave Act. Some states (California, for one) have enacted laws allowing absences to enable an employee to vote, attend a school conference, or seek help from domestic violence, to name just three. You may not consider these absences in deciding whether to hire someone.

PROTECTED COMPLAINTS

An employer cannot retaliate against an employee because the employee has made a complaint protected under federal, state, or local law. For example, if a sales associate has filed a race-discrimination complaint with his employer, that employer may not use that fact as the basis for declining to promote him to sales manager. This protection applies even if the employee's complaint turns out to lack legal merit—as long as the employee made the complaint in good faith and reasonably believed the conduct about which he complained was unlawful, the employee is protected from retaliation. It may not feel good to be accused of doing something wrong, particularly if it turns out you did not. But don't give the complainant a viable claim by retaliating against him in any way.

UNION AFFILIATION

An employer cannot discriminate against an individual because he is a union member or because you believe that he has pro-union sympathies. Note, however: Supervisors or managers as defined by the National Labor Relations Act generally cannot support or belong to a union.

OTHER PROTECTED GROUPS

Federal, state, or local laws protect various other characteristics, such as:

a. Bankruptcy status

b. Political affiliation

c. Physical appearance

d. Gender identity

e. Off-duty use of lawful products (such as cigarette smoking)

Always ask yourself if the factor truly relates to an individual's ability to perform the essential functions of the job. If the answer is "no," then don't take it into consideration, even if the law neglects to protect it.

Author's Note: This article should not be construed as legal advice or as pertaining to specific factual situations.

Jonathan_segal
Jonathan A. Segal is a partner at Duane Morris in the employment, labor, benefits and immigration practice group. He is the managing principal of the Duane Morris Institute, a provider of employment instruction via seminars and webinars.

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