The idea of “forbidden” employment practices may seem like a draconian approach to labor law and policy, but the truth is there are some activities at work that are just plain illegal. It might come as no surprise that many prohibited employment practices are related to employment discrimination. This is because discrimination at work can underlie a wide spectrum of seemingly legal work activity, such as favoritism and the use of social media.
1. Playing favorites in the employment process
If you think your supervisor has a bad habit of playing favorites in the workplace you’re not alone. Recently, the Merit Systems Protection Board (MSPB) released a report entitled, “Preserving the Integrity of Federal Merit Systems: Understanding and Addressing Perceptions of Favoritism,” which surveyed nearly 17,000 federal employees. The report found that over 28 percent of federal employees believed their employers engaged in some form of favoritism.
Normally favoritism would be simply a social practice that is looked down upon in the workplace, but in some instances it can also be against the law. Title VII of the Civil Right Act of 1964 prohibits the practice of discrimination in hiring and promotions as well as nearly every other aspect of employment. When favoritism crosses the boundary of corporate social strategy to illegal discrimination, an employer can be held liable for choosing one qualified candidate over another.
2. Using social media to discriminate in hiring decisions
Social media can be a useful tool in the hiring process, but when it’s used to select or exclude one race or protected class from employment, it can lead to employment discrimination claims. As outlined in a previous post, the use of social media to exclude Muslims from employment is already in action among some employers, and already facing tough litigation in the courts.
3. Failing to accommodate pregnant or nursing mothers
The Pregnancy Non-Discrimination Act (PDA) is the governing authority for pregnant women at work. The law states that employers must make reasonable accommodations for pregnant and nursing mothers including extra break time or access to a private and secure space for nursing. Employers can also run into legal issues for treating pregnant women differently from other workers, especially when choosing not to hire simply because an applicant is pregnant.
4. Retaliating against employees who complain about discrimination
Retaliation claims have risen over the past decade and the courts recognize that retaliation and discrimination complaints often go hand-in-hand. This is because the common reaction from employers when workers complain about employment discrimination or harassment is some form of retaliatory action. Title VII requires that employers refrain from retaliating against workers involved in discrimination proceedings, against those who request time off to attend discrimination proceedings as well as against those who complain about discrimination. Employees should be aware of next steps to take when retaliation is a factor.
5. Refusing to hire based on religious dress
Disney and Abercrombie are two companies to recently feel the heat due to claims of Title VII discrimination based on religious dress. These cases involved each employer asking workers to change their religious attire or stating that the attire is unsuitable for company image. In each case, courts have ruled that the companies did indeed violate Title VII, which prohibits discrimination based on religious beliefs and requires employers to reasonably accommodate religious practices, such as wearing special attire at work, unless doing so would result in undue hardship.
6. Paying female employees less than male employees
Though still the norm, paying women less than men is an illegal employment practice according to the Equal Pay Act (EPA). Enforced by the EEOC, the EPA prohibits differences in salaries between women and men of equal qualifications. As noted in a previous post, women still earn less than men on average, receiving only 77 to 84 cents on the dollar compared to men. Although the wage gap has narrowed since women began entering the workforce in large numbers during WWII, equal pay for women is still a hot issue in employment law.
7. Using criminal background checks to discriminate
Though the use of criminal background checks in employment has become a widespread practice, its prominence in the workplace is currently being questioned. Challenges to the use of criminal background checks have gained support from the Equal Employment Opportunities Commission, which notes that background checks often lead to racial discrimination. New federal legislation is also in the works to prevent credit checks in employment due to their tendency to cause discrimination against women, minorities and underprivileged Americans.
8. Refusing to hire the long-term unemployed
The number of Americans unemployed for six months or longer are on the rise and so is discrimination against the unemployed in hiring. As a result, a number of states are preparing legislation to address the growing phenomena keeping many able-bodied citizens out of work for longer and longer periods of time. Congress, too, has also considered federal law that would prohibit discrimination based on employment status as well as prevent employment advertising favoring the employed over the unemployed.
9. Consistently refusing to promote employees of one race or gender
A landmark settlement case, notable for its large settlement amount to the tune of 2.2 million, has taught the nation about the prohibited practice of race discrimination in promotions. The case involved an African-American Bank of America worker who sued the company alleging violations of Title VII’s race discrimination provisions. It expanded into a class action lawsuit involving 1100 black job candidates with claims spanning over two decades.
Today’s Complex Workforce Requires Knowledge of Prohibited Practices
Knowledge of prohibited employment practices is top priority for supervisors, managers and CEOs, and it’s also important for employees. Not knowing when your employment rights have been violated can be just as damaging as having your rights violated. Knowing your rights as well as how to enforce them can go a long way in today’s diverse and complex workforce.