Gavin Howe
Workplace policies are designed to outline expected behaviour and procedures, and employers are generally expected to abide by their own policies. However, in some cases, work policies can violate the law. This can occur when policies are discriminatory, resulting in a disproportionately negative impact on certain groups or individuals. Discrimination based on race, colour, religion, sex, national origin, age, disability, or genetic information is prohibited by law. Workplace harassment, including sexual harassment, is also illegal and can create a hostile work environment. Employees who report violations are protected by whistleblower laws and can seek remedies if they face retaliation. Additionally, labour laws cover various other areas, including wrongful discharge, workers' compensation, safety violations, and family and medical leave.
| Characteristics | Values |
|---|---|
| Discrimination based on race, color, religion, sex, national origin, age, disability, or genetic information | Illegal |
| Discrimination based on sexual orientation and gender identity | Illegal |
| Harassment and sexual harassment | Illegal |
| Whistleblowing | Protected by law |
| Fair Labor Standards Act | Employers must pay minimum wage and overtime pay |
| Wage and Hour Division | Administers labor standards protections |
| Employment contract | Employers can't modify or terminate employment for prohibited discriminatory reasons |
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What You'll Learn
Discrimination in recruitment and hiring
Discrimination in hiring can be subtle or blatant, but it poses significant barriers to fair employment opportunities. One clear sign of a discriminatory hiring process is when employers express a preference for candidates of a particular race or colour, either overtly through job postings or subtly through biased interview questions. Another example is word-of-mouth recruitment, where an employer relies on their existing workforce, which may result in a homogeneous group of new hires. Unnecessary requirements, such as specific educational backgrounds or irrelevant tests, can also be discriminatory if they disproportionately exclude certain groups.
Additionally, it is illegal for employers to require employees to take a test before making decisions about assignments or promotions if the test excludes people based on the protected characteristics mentioned above, unless the employer can demonstrate that the test is necessary and related to the job. Similarly, when deciding on discipline or discharge, employers may not take into account an employee's race, colour, religion, sex, national origin, age (40 or older), disability, or genetic information.
If a job applicant believes they have been discriminated against during the hiring process, they should act promptly as there are time limits to file a charge with the EEOC, usually within 180 days. They can seek legal assistance to understand their rights and the best course of action, and the EEOC will initiate an investigation into the claim. For federal employees, there are additional protections, such as the right to refuse unlawful orders and whistleblower protections.
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Discrimination based on protected characteristics
Work policies can indeed violate the law, and it is important to be aware of the rights of employees and applicants to ensure legal and ethical practices. One critical aspect is discrimination based on protected characteristics. Federal laws and organizations like the Equal Employment Opportunity Commission (EEOC) in the US and the Equality Act 2010 in the UK offer protection against discrimination.
This means that employers cannot use neutral employment policies that disproportionately negatively impact individuals based on these characteristics unless the policies are necessary for the business's operation. For example, an employer cannot rely solely on word-of-mouth recruitment, resulting in a homogeneous workforce. Similarly, employers must reasonably accommodate employees' religious beliefs and practices, such as allowing shift swaps for religious services, unless doing so causes difficulty or expense.
Harassment, including sexual harassment, is also prohibited and is considered unlawful if it creates a hostile work environment or leads to adverse employment decisions. Additionally, federal laws protect employees who report violations, fraud, or abuse from retaliation, and employees have the right to refuse unlawful orders.
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Harassment and sexual harassment
Harassment can take many forms, including slurs, graffiti, offensive or derogatory comments, or other verbal or physical conduct. Sexual harassment is also considered unlawful and can include unwelcome sexual advances, requests for sexual favours, or other conduct of a sexual nature. While the law does not prohibit simple teasing or offhand comments, harassment becomes illegal when it is frequent and severe, creating a hostile or offensive work environment, or resulting in adverse employment decisions such as demotion or termination.
In the United States, the Equal Employment Opportunity Commission (EEOC) enforces laws that prohibit employers from implementing neutral employment policies that disproportionately negatively impact applicants or employees based on race, colour, religion, sex (including transgender status, sexual orientation, and pregnancy), national origin, age (40 or older), disability, or genetic information. For example, an employer requiring job applicants to take a test must ensure that the test is necessary and related to the job, and they cannot exclude people based on the protected characteristics mentioned above.
Additionally, federal law protects employees who report violations of law, fraud, waste, or abuse. These whistleblower protections ensure that agencies cannot legally fire, demote, or remove employees for speaking out. Employees have the right to refuse unlawful orders and can appeal to the Office of Special Counsel (OSC) and the Merit Systems Protection Board (MSPB) if they face negative consequences for refusing to comply with an unlawful order.
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Whistleblower protections
Whistleblower laws exist to protect employees who report illegal or unethical behaviour occurring in their organisation. Whistleblowers are protected by law from retaliation by their employers. Retaliation can include firing or laying off, demoting, denying overtime or promotion, reducing pay or hours, or any other type of adverse action that would dissuade a reasonable employee from raising a concern.
In the United States, the Department of Labor enforces whistleblower and anti-retaliation laws through five agencies. These laws apply to both current and former employees. The Uniformed Services Employment and Reemployment Rights Act (USERRA) protects service members' reemployment rights when returning from a period of service in the uniformed services, including those called up from the reserves or National Guard. USERRA also prohibits employer discrimination based on military service or obligation.
The Office of Federal Contract Compliance Programs (OFCCP) enforces anti-discrimination laws for contractors and subcontractors doing business with the federal government. These laws prohibit discrimination on the basis of race, colour, sex, sexual orientation, gender identity, religion, national origin, disability, or status as a protected veteran. The OFCCP also prohibits discharging or discriminating against applicants or employees who inquire about, discuss, or disclose their compensation.
The Military Whistleblower Protection Act (MWPA) protects members of the armed forces from reprisal for making protected disclosures. Protected disclosures include reporting violations of law or regulation, or a substantial and specific danger to public health and safety. The Whistleblower Protection Act also prohibits agencies from taking any action affecting an employee's eligibility for access to classified information in reprisal for making a protected disclosure.
Federal employees who refuse to obey unlawful orders are also protected by whistleblower laws. This includes refusing orders that violate the Constitution, laws, agency rules, or federal regulations. Employees who believe they have been retaliated against for making a protected disclosure can submit a complaint to the Office of Special Counsel (OSC) and the Merit Systems Protection Board (MSPB), which can order reinstatement, back pay, and payment of legal fees.
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Employment contracts and handbooks
An employment contract is a formal, legally binding agreement between an employer and an employee. It outlines the terms of the relationship, including the job role and responsibilities, hours, salary, benefits, and other specifics of the employment arrangement. Both parties are required to sign the contract, and once they do, they are legally bound to adhere to its terms and can be held accountable in a court of law if they fail to meet their obligations. Contracts have a clear start and end date and are tailored to individual employees.
On the other hand, an employee handbook is a document that organizations use to communicate important information about their workplace policies, procedures, and culture. It covers a wide range of topics such as company values, rules, expectations, employee rights, and how to handle issues like requesting time off, dress code, or safety and harassment concerns. Handbooks are not typically legally binding, but they are important in ensuring everyone understands what is expected of them, creating a fair and organized workplace. They are written for a wider audience and do not require signatures, although it is beneficial if employees sign an acknowledgement form stating that they have received the handbook and that it is not an employment contract.
It is crucial for employers to carefully word their handbooks to avoid creating unintentional contractual obligations. Including a clear disclaimer that states the handbook is not a contract and that employment is not guaranteed for any specific duration can help prevent this.
In summary, while both contracts and handbooks are essential in defining the relationship between employers and employees, they serve different purposes. Employment contracts are legally binding agreements with specific terms, while employee handbooks provide general guidance on company policies and culture.
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Frequently asked questions
Workplace discrimination can take the form of an employer relying too much on a mostly homogeneous workforce for recruitment, resulting in a lack of diversity among new hires. Discrimination can also be evident when an employer refuses to give employment applications to people of a certain race, bases hiring decisions on stereotypes and assumptions about a person's race, colour, religion, sex, national origin, age, disability, or genetic information.
Unlawful behaviour in the workplace includes sexual harassment, unwelcome sexual advances, requests for sexual favours, and other conduct of a sexual nature. Harassment can also take the form of slurs, graffiti, offensive or derogatory comments, or other verbal or physical conduct. Harassment is unlawful if it creates a hostile work environment or results in an adverse employment decision.
The Fair Labour Standards Act prescribes standards for wages and overtime pay, affecting most private and public employment. The Federal Mine Safety and Health Act of 1977 holds mine operators responsible for the safety and health of miners, provides for the setting of mandatory safety and health standards, and mandates miners' training requirements. The Davis-Bacon Act requires the payment of prevailing wages and benefits to employees of contractors engaged in federal government construction projects. The McNamara-O'Hara Service Contract Act sets wage rates and other labour standards for employees of contractors furnishing services to the federal government.
If you believe your employer is violating the law, you should consult a lawyer or legal advice. In some cases, employees who call out violations of law, fraud, waste, or abuse are protected by whistleblower protections. Employees who refuse an unlawful order can appeal to the Office of Special Counsel and the Merit Systems Protection Board, which can provide remedies such as job reinstatement and payment of back wages.
