Base Employment Decisions on Merit, Not on “Protected Classifications”

Wisely, the federal and California workplace anti-discrimination protections do not include ineffectiveness, ineptness, uselessness, or incompetence.

However, across the spectrum of personnel decisions – including recruitment, testing, hiring, pay scale, benefits, promotions, discipline and termination – management may not discriminate on any “protected classification.” In no particular order, the vast majority of California workers (including employees, interns, volunteers, and independent contractors) are shielded from such unequal treatment due to:

· the person’s (or his/her associate’s) age (40 and over),

· ancestry,

· national origin (including language use restrictions and use and possession of a driver’s license issued to persons unable to prove their legal presence in the U.S.),

· color,

· race and traits historically associated with race (including hair texture and “protective hairstyles” such as braids, locks and twists),

· religion or religious creed (including religious beliefs and observances and religious dress and grooming practices),

· gender (including gender expression and gender identity such as transgender or transitioning),

· pregnancy, childbirth, breastfeeding, and/or any related medical conditions,

· sexual orientation (heterosexuality, homosexuality and bisexuality),

· disability (mental or physical, including HIV and AIDS),

· requests for disability or religious accommodation,

· medical condition (including cancer or a related medical condition or genetic characteristics not presently associated with symptoms of disease),

· family care or medical leave,

· genetic information (including genetic tests, participation in clinical research or manifestation of disease),

· marital status (including registered domestic partner status),

· military or veteran status, and

· engagement in protected activity (whistleblowing).

The discrimination does not have to be direct or overt.  Violations may be circumstantial, e.g., a discriminatory policy against older or disabled people by recruitment campaigns and ads for “active,” “dynamic,” or “energetic” candidates.

Management’s frontline protections against such claims should start – and will hopefully end – with sound policy, regular training and prudent practice.

See also,

• Workplace Rhythm & Cues – Our Employee Handbook & Forms for 2021 Including Updated COVID-19 Guidelines (January 21, 2021)
• ·Discrimination: Old Definition New Meaning – The Supreme Court’s “Unexpected” Expansion of Equal Rights for Gay and Transgender Employees (June 24, 2020)
• Abolishing Workplace Bigotry: A Work in Progress (March 5, 2020)
• Boss Sauced – Senior Manager – Must Prevent Supervisor Harassment, Discrimination (September 23, 2019)
• Be Kind to Mommies – Pregnancy Discrimination Is a Really Bad Idea (June 21, 2019)

For further assistance, please contact Tim Bowles, Cindy Bamforth or Helena Kobrin.

Tim Bowles
Helena Kobrin
May 21, 2021