Managing Workplace Romance...Or Not?

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Managing Workplace Romance...Or Not?

In the spirit of romance on this Valentine’s Day, now might be a good time for your organization to take a good hard look at your policy on “workplace romance”. Do you have a policy in place? How does it define the limits to relationships between employees? Has this issue come up recently among your employees? Should you consider implementing one?

With several surveys pointing towards a change in employee’s attitudes towards dating in the workplace and romance in the air this week, let’s take a look at how employees feel about this potentially charged issue and what that might mean for employers.
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What is Discrimination?

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Discrimination in the workplace refers to when an individual or group of individuals are treated less favorably than others solely because of their race, sex, pregnancy or marital status, age, disability, religion, sexual preference, trade union activity, or other class or characteristic protected under federal or state legislation. It is illegal for employers to discriminate against individuals from protected classes in the workplace if they are current or prospective employees, such as job candidates.

Laws Covering Discrimination

There are a number of important federal laws that cover discrimination of protected individuals. Some states have additional bases on which discrimination is prohibited. Federal laws governing discrimination in the workplace for private employers in 2012 included:

The Equal Employment Opportunity Commission (EEOC) is the federal agency that is responsible for enforcing these laws and handling discrimination claims. It frequently provides guidance and information about recent cases and claims to help employers enforce these laws in the workplace.

Discriminatory Employment Practices

Under these laws, it is illegal for employers to discriminate against individuals in protected classes for employment decisions related to hiring and firing; compensation; assignment or classification of employees; transfer and promotion; layoff or recall; job advertisements; recruitment; testing; use of company facilities; training programs; fringe benefits; retirement plans; disability leave; and other conditions, terms or benefits of employment.

This means that employers cannot make employment decisions based on any factor protected under law. For example, employment discrimination could occur if an employer pays equally-qualified employees different salaries based on their sex or race, excludes potential employees from the hiring process based on their religious affiliation or race, lays off an employee based on them being in a protected class, denies a promotion to an otherwise qualified employee who can perform the essential functions of the job because he or she has a disability; or states preferred characteristics which are protected under law in a job ad.

Additionally, individuals covered under this legislation are protected from four types of discriminatory practices including:

  • harassment on the basis of their protected class;
  • retaliation from their employer based on filing a charge of discrimination, participating in an investigation or opposing discriminatory practices;
  • employment decisions based on stereotypes, assumptions, or myths about the abilities, traits or performance of individuals within a certain class;
  • denying employment opportunities to a person because of marriage to or association with an individual of a particular class

Disparate Impact and Treatment

Discrimination can be manifested in either disparate treatment or disparate (otherwise known as "adverse") impact. Both types of discrimination against protected classes are prohibited under federal law.

It is unlawful for employers to use practices that have disparate impact on a protected class unless the characteristic can be deemed a “bona fide occupational qualification.” In cases of disparate impact, employers do not intentionally and explicitly have policies or practices in place that exclude or discriminate against individuals in protected classes. Policies or practices that seem neutral, however, can adversely impact a protected class. A common example of disparate impact is testing all job applicants on a particular skill or ability and disproportionately eliminating African Americans based on the results, even though this practice is not intentional.

Disparate treatment is also illegal, but differs from disparate impact in that it is intentional discrimination. With disparate treatment, an employer intentionally treats individuals of a protected class differently than other employees or job applicants to control an outcome.

Your Responsibilities As An Employer

Employers are required to post notices describing the federal laws prohibiting job discrimination based on race, color, religion, sex (including pregnancy), national origin, age (40 or older), disability or genetic information. Employers must also keep certain records, regardless of if a charge has been filed with them, including certain workforce data in the annual EEO-1 report. In addition to these obligations employers should:

  • Develop and implement a clear policy prohibiting discrimination in the workplace and retaliation against an employee making a discrimination complaint
  • Train supervisors and managers on employment discrimination
  • Refrain from asking about protected characteristics in the hiring process
  • Regularly evaluate hiring and selection practices for adverse impact
  • Conduct compensation audits to assess pay equity
  • Document objective, performance, and job-related reasons for all employment decisions

For more information about workplace discrimination, ERC members can access our HRresources or contact ERC's HR Help Desk at hrhelp@yourerc.com. Not a member? Join today and access tons of HR resources, posters, forms, information, guidance, and legal trends and updates to help keep you compliant.

 

Please note that by providing you with research information that may be contained in this article, ERC is not providing a qualified legal opinion. As such, research information that ERC provides to its members should not be relied upon or considered a substitute for legal advice. The information that we provide is for general employer use and not necessarily for individual application. The data used in this article reflects the current laws in 2012.

Additional Links & Resources

Prohibited Employment Policies/Practices (Source: EEOC)

Federal Laws Prohibiting Job Discrimination Questions & Answers (Source: EEOC)

Guide for Employers: The Charge Handling Process (Source: EEOC)

Discrimination in the Workplace (Source: HR Hero)

Drug Testing Policies in the Workplace

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Drug testing has become a hot button political issue with the 2012 report by the  National Conference of State Legislatures that 28 states across the country have either considered or passed legislation establishing drug testing requirements for individuals enrolled in various types of public assistance programs, including unemployment benefits. The constitutionality of many of these laws is currently in question, but what do drug testing policies look like outside of the realm of the State?

While some limited data on drug testing policies and practices in the workplace does exist, ERC’s 2012 Drug Testing Policies and Practices Survey provides data about drug testing policies for 163 organizations right here in Ohio. In addition, the report offers a detailed look into the frequency with which organizations have encountered failed drug tests, many of which result in rescinded job offers to otherwise qualified job applicants or even termination for existing employees.

Drug testing policies were common, with 78% of employers reporting that they would not hire an otherwise qualified applicant based on a failed drug test. This policy was applied to hourly positions (78.6%) slightly more often than to salaried positions (77.5%), a trend that continued across all breakouts regardless of industry or organizational size.

Although these hiring polices around drug testing were slightly more common for hourly than salaried positions, the survey found much larger differences in the reported testing failure rates among the hourly (33.5%) than the salaried group (13.2%). By and large, employers reported that their failure rates have remained the same from 2011, both for pre-employment testing as well as for drug tests performed on existing employees.

To download the full survey report of 163 participating Ohio organizations, please click here.

Additional Resources

ERC members save on drug testing with Preferred Partners.