A Guide for Managers to Protected Groups

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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 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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