Workplace Discrimination: How free of prejudice are we – really?

Workplace Discrimination may be masquerading as something else

Discrimination at work is not going away—it just looks different.  In recent years, we, as a people, have become more aware at the insidious menace inappropriate discrimination can be.  Fifty years ago, some of our behaviors were not only acceptable but common and normal, where now those behaviors would be considered, at the least, in poor taste and, for the most part, illegal.  Gender bias is still a big problem in business, but racial bias has been less of a problem in recent years.  Religious intolerance in the workplace is also a big problem and the zeal that can come with such bias can be quite extreme and rationalized.  Workplace discrimination exists, like it or not.

The Right-to-Work Laws

Twenty-two of the United States have in their statutes what is known as Right-to-Work Laws.  The original purpose of these laws was to deal with compulsory unionism.  Conversely, in twenty-eight states, there is a requirement to be a member of a union as a pre-requisite to be employable in many occupations.  Each state is a little different, but the other side of that law typically is that an employer has the ability to hire (and fire) without regard to union membership (or anything else) and employees have the right to work at a job without being forced to join a union—but they work entirely at the pleasure of the employer, or “at-will.”  The Right-to-Work states are the southern states, the south-central and plains states, and the Rocky Mountains states.  The industrial Northeast, the Midwest and the Pacific states are all forced-unionism states.

The “Right-to-Fire” side of the law

One form of workplace discrimination has always been a byproduct of these laws but in tough economic times it can be used to get rid of older, higher-paid workers and replace them with younger and cheaper labor—including undocumented workers—with impunity under the law.  In this instance, we can think of them as a “right-to-get-rid-of-someone” law.  An employer can establish a policy declaring all employees under five years or three years or whatever to be “probationary” and can be released from their job “at will.”  That means that the employer, even a government body, does not have to have a reason, a case, an incident or any other “just cause” to support the firing—the employee is simply “let go” without a reason or explanation.  That can happen up to the fifth (or third, or whatever is indicated) anniversary.  An employer can also determine how it counts years.  An employee could actually have been successfully employed for more than the time indicated if it falls short of how the years are counted.  For example, an employee hired in January where the organization counts its years from July to June would work the first six months and it doesn’t count.

If it is wrong in one case, is it ever right?

That seems palatable, but what if the employee happens to be a pregnant woman, or a sixty year-old effective, experienced worker who has earned his way up the pay scale?  That may be immoral, and it almost certainly is unconstitutional by state and federal standards, but the lower courts that decide impropriety only deal with the statutes and the statutes typically do not venture into discrimination territory.  It would take a state’s supreme court to rule the practice unconstitutional and that is prohibitively expensive for most of us.  Lower courts simply do not do that.  All kinds of discrimination in the workplace can be masqueraded under such laws when the real reason may be something much more sinister.

Religious intolerance in the workplace

In some cases, certain discriminatory practices, such as religious discrimination have been upheld by the courts.  For example, in our May, 2008 newsletter, one article, “Religious Hiring: Can you?,” we cited a New York case involving the Salvation Army where the supreme court ruled that the Salvation Army could have a policy against hiring/retaining people whose sexual orientation or faith was in conflict with its own.  In that case, the court decided that religious intolerance in the workplace was sometimes appropriate.  A similar case in Mississippi, again with the Salvation Army, went the other way because some of their activities in that state were tax-supported.  In Colorado, the legislature has entertained a bill prohibiting faith-based employers from discriminating on faith-based issues, but the effort died with the targeted organizations stating they would withdraw tax-supported human needs services if the bill passed.  Colorado still has a statute exempting faith-based organizations from compliance with such discriminatory practices.  Right to work?  It is a hot issue.

Age discrimination is not always about “age”

Age discrimination exists but is often hidden under the guise of expense-cutting.  It has become a larger issue due to the economic downturn in the recent two to three years.  Lifelong employees can be “relieved” of their jobs, and their retirement, just as they are arriving at the top of the pay scale and ready to start cashing in on the retirement benefits they have spent a lifetime earning and with virtually no legal recourse—a career ended, and a retirement ruined.

As Human Resource professionals, we have a responsibility to learn to recognize all forms of discrimination, no matter how it may be masquerading, and do everything we can to fight it with fairness, consistency and even-handedness.  As we carry out our responsibilities in the various organizations, we adjust to the corporate environment and way of thinking.  Still, our professionalism comes to take what appears to be legal and appropriate when it is simply an excuse to cover-up something else.