A Job the Man Can Do Better? - questions and answers regarding employment law

Workforce, Dec, 2000 by Matthew T. Miklave, A. Jonathan Trafimow

Q: An at-will employer hires someone as an information systems assistant. She really isn't doing the job very well, but she is a good data-entry employee. In the meantime, a new info systems assistant is hired, and if he works out well, they would like to replace the female with him. They would offer the female a lesser job of data entry at lower pay. Is that illegal?

A: Well, the issue seems to be just how curious you might be to find the answer to the question. The "is it legal?" question can really be answered only after a trial and when all appeals have been exhausted. If you are the winner, then it was legal. If you are the loser, well ...

The fact is that, in most states and with some exceptions that do not seem to apply here, an employer can fire (or replace) an employee for a good reason, a bad reason, or no reason at all, so long as it is not for an illegal reason or in breach of a contract. It would seem only natural to us to be concerned about a sexual discrimination claim in this case (female employee "cannot" do the job, but male employee "can").

Just because the employees are of a different gender does not mean you lose the case; it does mean that you probably will have the burden of going forward with evidence to justify why one employee (the woman) "could not" do the job when the other employee (the man) "could." So how do you prove this to the judge or the jury? That is your challenge. If your "proof" is sufficient that most every reasonable person would say you are correct, then you are in pretty good shape. Usually, however, if you have not played your cards right, you will find that your evidence is less than compelling, and then you could be in for trouble.

Bias Against "Regular" People

Q: Is it legal for a small (less than 50-person) private company to offer its highly compensated executives more vacation time than "regular" employees, or is this discriminatory?

A: Not all "discrimination" is illegal. Every day, when we pick one pair of socks instead of another, we "discriminate" on some basis. Thus, we can "discriminate" legally for a whole lot of reasons. The law prohibits discrimination on the basis of age, race, sex, disability, religion, and so on (those things that the law identifies as "protected characteristics" or "protected traits"). If an employee could prove that your "discrimination" was based on a protected characteristic and was unjustified, then it would be illegal.

Driving Us Crazy

Q: Until a month ago, our insurance company would get motor vehicle reports on employees who would be driving company autos (before they were hired). Now they say that under the Fair Credit Reporting Act, they will not be able to get them for us. I have located a company that will do it for us, but want to know what I need to get from the applicant before requesting the report. Also, if we get a bad record and do not hire the person, what then?

A: The Fair Credit Reporting Act (FCRA) addresses notice, consent, and disclosure requirements with respect to "consumer reports" (usually dealing with an applicant's or employee's credit history) and "investigative consumer reports" (discovering information about a consumer's character, general reputation, and mode of living through interviews with neighbors, friends, and associates). Under FCRA, if an employer is seeking either a "consumer report" or an "investigative consumer report," the employer must secure written authorization from the employee/applicant, must provide notice if it intends to take adverse action on the basis of a report, and must provide a copy of the report. Because FCRA is broadly worded, it probably applies to background checks such as the one you describe. Keep in mind that many states have "mini-FCRA" statutes that include greater restrictions than those required by FCRA.

Lunchtime Mass

Q: I just received a request to allow a group of employees to use one of our conference rooms on a regular basis for Bible study during lunch. Before I say yes or no, I'd appreciate your thoughts. One concern I have is that if this request is granted, management will have to be prepared to allow all such requests in the future, i.e., we can't say that some religious groups can meet but others can't.

My other concern is labor relations. Should I be concerned that if this type of group is allowed to meet, I might also have to provide space for a group of employees who want to get together to talk organizing strategy?

A: You are right to be concerned about opening up your conference rooms, and you would be wise to speak to your private labor and employment relations attorney for guidance. Once an employer allows employees to use its facilities for meetings that are not work-related, then the employer might be prohibited from regulating the content of the meetings. In essence, the employer would be making a decision as to which group could use the conference rooms based on the content of their meetings. Many laws could come into play that would affect how you regulate the groups that use your space, including Title VII, the National Labor Relations Act, and, if you are a public employer, the First Amendment.