DISCRIMINATION IN EMPLOYMENT: AN OVERVIEW FOR LIBRARY MANAGERS
Michael A. Germano
Labor and employment litigation is by far the most common type of lawsuit that businesses, government agencies, and nonprofit organizations are required to defend against. Disputes in the context of employment can result in significant costs, and not just the direct ones related to fines, settlements, or verdicts. Litigation itself is an expensive undertaking. Lawsuits involving labor and employment claims can also produce indirect costs related to lost productivity and work hours as employees are deposed, required to attend hearings, or take the time to produce discoverable documents. Additionally, there is the very real and negative impact to workplace and employee morale caused by claims or even the perception of worker mistreatment. Employment litigation creates a battlefield as employers and employees are drawn into what usually amounts to a protracted dispute that typically has no clear winner. Finally, there is the significant cost to an organization’s reputation when liability for mistreatment of employees is found.
From job posting to interviewing to hiring and termination, there are multiple opportunities for a claim of discrimination to arise. For many managers, especially newly minted ones, the concept of discrimination in employment usually remains on the periphery of job function until something goes drastically wrong.
Employment discrimination represents one of the largest exceptions to the common law rule of at-will employment. The theory behind employment-at-will is based on a leveling of the playing field between employer and employee. Succinctly, employment-at-will recognizes that, though employees can change jobs at any time, employers may require the same level of flexibility in terms of managing workers. Employment-at-will does, however, have significant limitations, mostly in the form of an employer’s right to terminate employment. Specifically, at-will employment can be terminated for any reason as long as that termination does not violate an employment contract; a public policy exception; or a federal, state, or local law. Employment discrimination falls under the third category since there are a variety of laws from federal, state, and local jurisdictions that protect a large number of people with specific characteristics from discrimination in an employment context. Here are the most common areas or characteristics protected by federal and state laws:
In addition, many state and local governments have extended protections to gay, lesbian, and transgender employees and applicants as well as those with medical conditions that may not fall under state or federal laws that define disabilities. The important lesson here is that protection from discrimination in employment can be covered by any jurisdiction in which the employee works including the city, county, state as well as country via federal laws. Additionally, employment discrimination can apply to virtually any incident where one employee is treated differently from another if it appears that different or disparate treatment is due to the employee’s characteristic or status as a member of one of the protected groups.
Unfortunately, fear of litigation has resulted in a significant number of managers assuming there that is an affirmative requirement to hire or retain a person who falls within one of the protected classes of employment, despite that person not being the best qualified or not performing adequately. Nothing could be further from reality. Provided managers act prudently and document their actions at every stage in order to demonstrate their compliance with current discrimination law and the protections offered, an applicant can legally be denied employment or an employee terminated despite being a member of a protected group.
For example, a library manager could deny employment to someone with a disability if the main function of the job required lifting or pushing a heavy book cart. If there is a job-related need that is tied to a main function of the prospective employee’s work, and a disability prevents meeting that need and reasonable accommodation is not realistic, then there is a business necessity limitation on a claim of employment discrimination in hiring. The business necessity exception is narrow, but it does offer a defense against discrimination if there is a reasonable business justification for either intentional or unintentional discrimination. As far as termination for performance goes, there is no discrimination if the termination is based on neutral performance management standards that have nothing to do with the employee’s membership in a protected class. As long as poor or inadequate performance is managed in a fair, legal, and neutral way as well as consistently and clearly documented, a claim of discrimination can be avoided.
As a frontline manager, or one with direct supervisory responsibility, acquainting yourself with applicable labor and employment law before problems erupt is critical. Library managers are no exceptions to this rule. Managers in libraries supervise a wide variety of employees including professionals, paraprofessionals, and staff. Workers can be hourly or salaried, full- or part-time. The diversity of job functions, descriptions, and work requirements all make the likelihood of dispute very real for a manager in a supervisory role over other library employees.
Given the current economic climate with layoffs, furloughs, and reductions in hours becoming all too commonplace, the chances for disputes arising out of perceived or real discrimination are rising. When any job action takes place that affects individuals or groups, it is useful for managers to step back and examine the process from all potential sides. Taking a few moments to examine the impact of making or denying an offer of employment to a candidate, a change in job duties, a restriction in employee benefits or, especially, a termination or layoff is critical to managers who wish to stay on the right side of the law, especially as it relates to employment discrimination. A good rule of thumb, besides the defense of an offense in the form of vigorous self-education, is to practice common sense and think about any negative perception surrounding choices or decisions, especially those that have a negative impact like firing or reducing hours. And along with that commonsense approach, document, document, and then document again.