Is This Discrimination?

Discrimination occurs when one person is treated differently from another person in the same situation. In some cases, discrimination is blatant. For example, it’s obviously discrimination when someone states clearly that they refuse to work with, hire, or promote people of a certain race, religion, ethnicity, or gender. This behavior is illegal and forbidden by company policies. But when the courts decide whether or not discrimination has occurred, they carefully consider the circumstances surrounding the whole situation. Employees and managers must understand and be able to recognize the difference between discrimination and acceptable business practice.

Company Image

Company XYZ has a dress code, which they say is meant to support the company’s image and convey a professional appearance to customers.  When employees are hired, the code is explained to everyone. However, a certain supervisor often ridicules an overweight employee for being “out of step with the XYZ image.” Even though she wears clothing that is within the dress code, she is given assignments that limit public contact, therefore limit her income from commissions. This could be considered discrimination, because the dress code must be consistently enforced for all employees.

In addition, it could be illegal to enact and enforce a company “image” policy that excludes certain people on the basis of religion, race, ethnicity, or gender. Employees who are otherwise qualified for the job must be given options that allow them to adhere to the code. For example, they must have the option of covering visible tattoos that are prohibited by the dress code, or of modifying the dress code to allow for religious requirements such as beards or head scarves.

Fair Treatment or Age Discrimination?

A worker with many years of experience in one job is moved to a new job in a re-organization. His first performance review notes that he has had difficulties adjusting to the requirements of the new job and recommends that he attend additional training. His supervisor is carefully monitoring his progress and often asks to speak with him privately. The worker feels that he is being discriminated against because of his age.

In this case, the supervisor appears to be following normal procedures in order to address a legitimate performance issue. However, if the circumstances revealed that the supervisor made remarks such as, “Times have changed and we have to make room for younger workers now,” or “You have to be young and quick to do this job well,” the supervisor’s actions could be perceived as discriminatory. There might also be concern if the worker had been singled out and forced to take this new job—in other words, if he was “set up to fail.” The Age Discrimination Employment Act prohibits discrimination against workers over 40 years of age.

Accommodations for Health

A co-worker has been diagnosed with a medical condition and is undergoing treatment. He has been absent often and seems to be finding it difficult to travel, which is part of his regular duties. Your supervisor asks him about his medical condition and suggests that he be temporarily reassigned to a position that does not involve travel. Some of your co-workers are upset by this “special treatment” because they will be asked to travel more and feel that it is really a different kind of discrimination.

Under U.S. employment laws, a person with a medical condition can and should be offered reasonable accommodation, such as flex time, reassignments, or special equipment that will allow them to continue working. Furthermore, your supervisor must protect the medical privacy of your co-worker and is not required to disclose any medical details to other employees. It might help your co-workers to realize that the same privileges would be extended to them in similar situations.

If You See or Suspect Discrimination

Anti-discrimination legislation exists so everyone will have a fair chance. If you or someone you know is experiencing discrimination, they have the right to speak out and be protected. Even though some of the examples in this article involved fair business practice rather than discrimination, any situation that is a concern to an employee should be reported and investigated. Our company wants you to report any actual or suspected instances of discrimination to the Ethics Office or Human Resources, and you can do so without fear of retaliation.

Questions and Answers

When I applied for a job I was given a physical test to be sure I could lift a certain amount and withstand certain physical activity. Isn’t this discriminatory?

No, as long as the employer is testing all prospective employees in the same way, it is acceptable to test applicants to be sure they meet the requirements of the job.

My supervisor regularly uses nicknames such as “dear” or “hon” when talking to his female subordinates. He considers this complimentary. No one has complained, but I notice that the turnover for women is higher than for men in this department. What should I do?

Your supervisor may not intend to discriminate, but employment laws protect employees against actions that have a negative effect regardless of their intention. These are called practices that have the effect of discrimination. You should raise this issue with the Ethics Office or Human Resources.

Our company image policy includes wearing uniforms and no facial hair. I have a mustache because it looks good on me, not because of any religious belief. Can the company force me to shave?

Yes. As long as the company enforces its image policy consistently for all employees and it makes some accommodation for religious beliefs that require certain attire, this is not discrimination. Your personal choice is to follow policy or not to work for the company. One famous example of this is the U.S. Major League baseball team, the New York Yankees. The team requires that the uniform be worn exactly as policy describes and forbids facial hair when not part of a religious belief.

I follow strict religious beliefs. An important meeting was scheduled on a day when I was going to be off from work for a religious holiday. My supervisor ignored my request to move the meeting. Is this discrimination?

One action of this type would probably not be considered discrimination. However, it might be if meetings were consistently scheduled for times when you cannot attend, or if the supervisor was obviously treating you differently in other ways.