Employers who think they are safe from accusations of discrimination in the workplace merely because an employee is not a member of one of the protected classes may be treading risky ground. While Federal protected classes apply to any employee, there are some extra protected classes that apply to Federal Government employees. On top of that, some states have additional protected classes that apply to employees in that particular state.
“There are several categories that have been created only recently and/or are being created in the states that may eventually become part of the federal protected categories, including genetics, military status, sexual orientation, gender identity, and unemployment status,” says Cynthia Calvert, an employment lawyer, author and founder of Workforce 21C. “Some state and local jurisdictions have protected classes that are far-reaching, including personal appearance, smoking, domestic violence, political opinion, and source of income.”
Law’s Long Arm
But even the existing protected classes under Federal law are broad. Some employers may not realize how far-reaching they are. “Everyone is a member of at least two protected classes under federal law, based on their race, color, sex, national origin, religion, age, disability, and/or prior EEO activity,” says John Mahoney, chair of the Labor and Employment Law Practice Group at Tully Rinckey PLLC.
“Some state laws protect classes beyond those, such as sexual orientation and personal appearance. In the federal government, employees are also protected from discrimination based upon their marital status, political affiliation, and whistleblower status,” adds Mahoney.
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Relationships and Associations
Even without the addition of more protected classes state and federal laws prohibit discrimination based on more than just inclusion in the existing classes. Illegal discrimination can also occur where employees experience negative employment conditions based merely on their association with those in a protected class, without necessarily being part of that class themselves.
“Each of these Federal laws provide for protection of an individual with whom the qualified individual is known to have a relationship or association, such as a parent or caregiver, or on the basis of advocacy for that class of persons,” explains New York employment attorney Maya Risman. “For example, the ADA guidelines provide that an employer may not make decisions based on a belief that an employee would have to miss work in order to take care of a disabled person. Although not technically part of a protected class, for purposes of each respective statute, the complainant qualifies via his/her association with the qualified individual. The associated individual still bears the burden of proving, by a preponderance of the evidence, a prima facie case of discrimination,” says Risman.
“I see all the time people being fired for having a disabled child,” says Donna Ballman, employment attorney, blogger and author of Stand up for Yourself Without Getting Fired. “They are protected under the ‘association’ provision of the Americans with Disabilities Act. That is, you can’t be fired for your association with a person with a disability. They could also have FMLA protection if they need intermittent leave to care for a sick child,” she says.
Proceed with Caution
“I suggest anyone who is firing or disciplining an employee for absenteeism or attendance be very careful to look at the underlying reasons,” says Ballman. “If it’s due to a disability or the disability of a loved one, they might have to give some leeway. If the person qualifies for intermittent FMLA, that might be a solution nobody has offered the employee to take some pressure off. I find many employers and employees forget about intermittent leave. FMLA is a great way to keep employees who are going through difficult times. It’s also the law.”
The employment law landscape changes as quickly as each new case appears in the news. It’s important for employers to stay abreast of case law as it develops and be aware of the effect that management decisions can have on a company.
“Given this, making sure that supervisors are equipped to manage effectively and fairly is a pressing issue for employers,” says Calvert. “If supervisors are trained to base decisions on evidence and consistent standards and not assumptions, communicate well, evaluate without bias, develop talent fairly, reward fairly, and support their employees, they should be able to steer through these unknown waters safely.”