Forums
Could this be considered discrimination?
Legal Forum
Could this be considered discrimination?
Discuss employment-law issues such as family leave, overtime, disabilities law, harassment, immigration and termination.
We have a written policy regarding vacation pay, that reads, each employee is eligible for 5 days of vacation pay per year. There is also a verbal policy that says, an employee can earn an additional
0
Cat:Topic ForumsForum:ForumId54
Cat:Topic ForumsForum:ForumId54Discussion:DiscussionId17483
Forums » Topic Forums » Legal Forum » Could this be considered discrimination?
|
Could this be considered discrimination?
posted at 8/2/1999 10:09 PM EDT
|
Posts: 8
First: 6/13/1999 Last: 11/1/1999 |
We have a written policy regarding vacation pay, that reads, each employee is eligible for 5 days of vacation pay per year. There is also a verbal policy that says, an employee can earn an additional bonus week after the second year of employment, thus resulting in 10 days of paid vacation.
When questioning the criteria for earning an extra "bonus week" of vacation after the completion of the second year of employment, the following criteria was stated: It is applicable to technical employees. A reccomendation from their manager is needed. The bonus is usually to compensate the employee for outstanding effort and for unpaid extra time that they may have worked during the year. My concern is that this verbal policy is only applicabel to a certain group of employees, and others not classified under "technical" (i.e. administration, sales or marketing) will never have the option of earning a"bonus week". We have several administration employees who have worked for the company for several years, who have never been given additional time, and feel they are being discriminated against. If an employee elected to file a complaint of discrimination what would our exposure be? Your opinions please. |
|
|
Could this be considered discrimination?
posted at 8/2/1999 10:18 PM EDT
|
|
Posts: 24
First: 6/28/1999 Last: 2/6/2002 |
I believe it's only discrimination if they belong to a protected group, whether your policy has the intent or effect of discriminating. For example, if the technical group consists of white males and the rest of the operation is mixed ethnic, you might have a hard time defending it. Otherwise, the danger is, as you point out, that poor morale may result. I think I'm right on this but you should wait to see what Mr. Carabetta has to say on this point. |
|
|
Could this be considered discrimination?
posted at 8/3/1999 3:55 AM EDT
|
|
Posts: 2217
First: 6/16/1999 Last: 12/13/2001 |
There have been a couple of recent postings highlighting some of the distinctions between disparate treatment and disparate impact liability. Disparate treatment requires intent by the employer to discriminate against persons because of a protected characteristic. Disparate impact imposes liability, even in the absence of discriminatory intent, where a facially neutral policy has a (statistically) disproportionate impact on a protected group and is not justified by business necessity. (Disparate impact is not an available theory under the ADEA in all federal courts; there is a split in the circuits. The availability of disparate impact theories under state FEP statutes varies.)
In your situation, for example, an employee could allege that the company intentionally targeted a group of employees because of a protected characteristic, and denied them the additional vacation opportunities. As a fanciful hypothetical, for example, assume your policymaker said: "I know all of the technical people are young; I want them to have extra vacation time. I also know the older people are administrative, sales and marketing. Older people don't need as much time off because their children are grown. I am creating our company policy based on these stereotypes that I hold." Affected employees over 40 would likely point to such a statement as evidence of intentional discrimination. Under a disparate impact theory, affected employees would acknowledge that your vacation policy is facially neutral. They would then argue, however, that it disproportionately disadvantages a protected group, and is not justified by business necessity. |
|
|
Could this be considered discrimination?
posted at 8/12/1999 5:27 PM EDT
|
|
Posts: 30
First: 8/12/1999 Last: 2/4/2000 |
Discrimination merely means "to distinguish" or "to differentiate." Not all discrimination is illegal.
Unless you are TREATING people differently BECAUSE OF the prohibited factors, or unless your policy is causing an ADVERSE IMPACT upon a certain classification of employees, I wouldn't think that there is actionanble discrimination taking place. |
|
|
Could this be considered discrimination?
posted at 8/12/1999 5:30 PM EDT
|
|
Posts: 30
First: 8/12/1999 Last: 2/4/2000 |
I meant to add this to my previous post only because I am curious: why is your company SOOOOO stingy with the vacation time? I have NEVER heard of any company giving only 5 days of vacation for one work YEAR! |
Forums » Topic Forums » Legal Forum » Could this be considered discrimination?
