When is discrimination legal?

Isn’t “general harassment” illegal?

Should harassment be “sexual” to be illegal? What about hostile environment, verbal and mental abuse? Would these be illegal in a court of law?

Rita Risser’s response:

In California and most states, and under federal law, harassment is only illegal if it is based on sex, race, religion, national origin, or other protected classification. As the U. S. Supreme Court said in the Oncale case in June, 1998, the law does not require “general civility” but only that employers not allow discriminatory harassment. Sad to say, but if a manager treats everyone equally badly, it is not illegal. Of course, it’s not good management and we don’t recommend it.

There is a law in most states called “intentional infliction of emotional distress” or “outrage.” This is for behavior that is outside the bounds of behavior tolerated in a civilized society. In California, these claims are only covered by workers compensation. In other states, the individual may be able to sue for personal injury. But in the case of Paula Jones v. Clinton, she claimed his exposing himself was outrage and the court disagreed. So you can see these claims are difficult to prove.

However, you should talk with an attorney about your specific situation.


Is it legal to ask job applicants their race and gender?

Is it “legal” to require a job applicant to fill in a sign-in sheet requesting name, social security number, RACE, male/female? The sign-in sheet is located on receptionist desk in full view of employees and visitors.

Rita Risser’s Response:

This sounds like a routine applicant tracking form which is required by law of all federal government contractors and subcontractors who are Affirmative Action employers. It is mandatory for such employers (virtually all big companies) to give applicants the opportunity to self-identify their race and gender. However, the applicants must also be informed that it is voluntary for them to complete the form. If an applicant refuses to complete the form, legally the employer should complete it based on the employer’s visual inspection of the employee. (In other words, if the applicant looks like a white female, the employer should note that on the form.)


Is calling her a fat cow illegal harassment?

One of the managers that reports to me (male, age 35) allegedly told some clerical workers that he “was out to get that fat cow fired,” referring to a female manager age 39. One member of her staff heard him, called him to task and brought the case to me (vice president of HR). The female manager has threatened action. What can I do to settle this? Both of these managers are excellent at what they do.

Rita Risser’s Response:

Hmm, I’m not too sure about that last statement! If the man who said this reports to you, he’s a Director or manager of Human Resources. What is wrong with this picture? Top management and HR people should hold themselves to the highest standards. Here you have a top level HR person who not only made an extremely insulting remark, but also discussed a confidential personnel matter with clerical staff who had no apparent need-to-know. Beyond that is the threat to have her fired for no apparent reason.

One comment like this is not enough for an illegal harassment case. But it certainly should violate company policy and certainly should be the subject of a disciplinary action. This man should have no opportunity to make any personnel decisions about the woman, especially whether she is to be terminated from employment. If in fact there is good cause for terminating her, I suggest you hire a lawyer long before you begin the corrective coaching process.


Can employer discriminate based on hair length?

Can an employer discriminate against a potential employee on the basis of hair length or style, even if it will not effect the performance of their duties ?

Rita Risser’s response:

Generally, yes. Although this obviously is discrimination on the basis of sex (women can have long hair, men can’t) legally, the employer is allowed to set its own standard of “professionalism.”

There was one lower court case in Mississippi years ago that said hair regulations were an invasion of privacy. I have not found any court of appeals decisions making such a holding. In California, clearly an employer can legally discriminate in this way — just go to Disneyland and see the hair on the men there!

Can we prohibit men from wearing earrings?

What is the relevent case law and policy on prohibiting males from wearing earrings at work?

Rita Risser’s response:

I was able to find only one case regarding men wearing earring(s), which is Lockhart v. Louisiana-Pacific Corp., 102 Or.App. 593, a 1990 case in which the Oregon Court of Appeals ruled that, “Only those distinctions between the sexes which are based on immutable, unalterable, or constitutionally protected personal characteristics are forbidden. ” The Court said that wearing an earring is not immutable, and therefore an employer could discriminate between men and women in this way.

This case is based on a long line of cases that have held hair, dress and grooming standards are allowed. In fact, there are dozens of cases allowing employers to require short hair on men, and this has far more impact on your personal life. After all, you can always wear an earring on your own time, but you can’t grow your hair back for the weekend. To give you a flavor of the way courts look at this, here is an excerpt from the Lockhart opinion:

“Perhaps no facet of business life is more important than a company’s place in public estimation. That the image created by its employees dealing with the public when on company assignment affects its relations is so well known that we may take judicial notice of an employer’s proper desire to achieve favorable acceptance. Good grooming regulations reflect a company’s policy in our highly competitive business environment. Reasonable requirements in furtherance of that policy are an aspect of managerial responsibility.”



Does on-site Bible study create hostile environment?

A group of employees have started a Bible study class on-site. Several employees have expressed objections to having religious teaching at the facility. Apparently at one meeting employees said that homosexuals were “an abomination against God” and that they would all “burn in hell.”

Currently, the company allows other lunch time groups for Weight Watchers and yoga.

Must we allow the Bible class to hold its meetings on-site if we allow the other “clubs” to exist? Conversely, if we do allow the Bible class are we violating anyone elses’s rights?

Rita Risser’s response:

Employees often wish to gather together in different kinds of groups. Most employers would like to allow this, but at the same time not create a hostile working environment for others. The mere fact that a Christian group (or Jewish or Muslim or Hindu or …) meets on company premises is not objectionable. But we suggest that if such groups are going to meet on company premises, they must abide by two basic principles:

  1. the group is open to any employee who wishes to participate constructively; that is, if there is a women’s group, for example, men must be allowed to join if they wish; and
  2. the group must conform to the laws prohibiting harassment and discrimination, and to the organization’s own values; the participants must show respect for others; the purpose of the group must be to support its members, not to demean or denigrate other groups.

Thus, the Bible study group is free to discuss anything unless it is against people who are gay, just as a gay, lesbian, bisexual employee group can discuss anything as long as it is not against Christians.

There is some concern in industries that are unionized or undergoing union organizing campaigns that such employee associations may give unions a foothold in the organization. In high tech companies, such as Apple and Sun, the benefits of having employee organizations are considered to outweigh the slight risk of unionization. In other industries, such as telecommunications and manufacturing, concern about keeping a union out may dictate that a company not allow employees to associate on company premises. Of course, employees are always allowed to associate together off-site.

Is promoting a less-qualified employee illegal?

Another nurse with about 30% the qualifications that I have was appointed to a management position rather than me. In these things I exceed: 2 college degrees, 14 years management experience, certification in critical care, 20 years in critical care, and always excellent reviews. Is this legal? How should I respond? All I’ve been told was a phone call to say the other nurse was selected.

Rita Risser’s response:

It sounds unfair, but not everything that is unfair is illegal. Generally, there is only one was to sue as a result of an unfair denial of promotion, and that is if there was discrimination on the basis of sex, age, race, etc. For example, if you are over 40 and the nurse promoted is under 40, it could be age discrimination. If you and the other nurse are the same age, sex, race, etc., it is unlikely that you could sue, unless you live in California. In a recent California Supreme Court case, Scott vs. PG&E, the court held that if the employer has a procedures manual and violates the procedures in making the promotion, the employee may be able to sue for breach of contract. Other states have not yet adopted “wrongful action” but may in the future. Maybe you could be the landmark case!

Can company have inconsistent tardiness standards?

Some of the sections in our organization require somewhat strict reporting times because of the work flow. Others just have a certain number of hours to work. Should the organization dictate a policy for all sections, regardless of requirements, and not leave anything to the supervisors? How much freedom can we give the supervisors?

Rita Risser’s response:

Give the supervisors the freedom they need to do their jobs! Obviously, some sections of the organization have different needs than others. Or it may be that the sections have the same needs, but different supervisors have different styles of handling those needs. Either way, you can have different standards. Only the decision-maker (in this case the supervisor) has to be consistent, and even an individual supervisor can be inconsistent if he or she has a legitimate business reason for the inconsistent treatment.


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