Connecticut Employment Lawyers Association Weekly (2/25/13)

This week's contents:

Topic of the Week  Favoritism vs. Discrimination

  • Protected class.
  • Pay & Perks.
  • Performance & Promotion.
  • Policy.

 

Favoritism vs. Discrimination at Work: Motivating and Staying Out of Court

I've gotten lots of emails from employees who complain about a boss, or company, that blatantly shows favoritism at work. At the same time I've also seen studies documenting that showing favoritism, extra pay and perks to high performing employees, can improve a company's bottom line. However, favoritism can also lead to charges of discrimination. The favoritism vs. discrimination debate reminds me of a quote from Henry Jordon, who played for the legendary coach of the Green Bay Packers, Vince Lombardi (a.k.a. the guy they named the Super Bowl winning trophy after). Jordon said about Lombardi, "He treats us all the same, like dogs."

Luckily there is an option beyond dogs, favoritism and discrimination for managing a workforce. Here is a mindset to adopt, treat everyone fairly, but not necessarily equally. Or to put it a different way, there is legal discrimination and illegal discrimination. Let's face it, we discriminate all the time; on experience, skills and performance. That's why I've created the 6 "P's" below to provide advice about how to maximize motivation and minimize lawsuits.

Protected class. There are laws to protect people based on the following characteristics at work: race, color, religion, national origin, age, sex, family status and disability. This is not to say that you can't win a discrimination suit if you are not in a protected class, it's just easier if you are. And some states and cities add even more characteristics or groups to this list.

Pay & Perks. Employers have some latitude to show favoritism when it comes to pay and perks based on performance. This makes sense because pay and perks can have a huge impact on motivating and rewarding employees. However, if the favoritism is based on a bias against a specific group of people, especially people in a protected class, that can be considered illegal discrimination. The key to avoiding trouble is to give the pay and perks for a specific reason, to be fair about who receives them and to have everything clearly documented.

Performance & Promotion. Employers have some latitude with job assignments, promotions and termination. However there have been successful lawsuits by employees when companies fail to follow their own policies, you'd be surprised how often that happens. Documentation and treating people fairly is the key to avoiding lawsuits and disruption while recognizing and rewarding high performance.

Policy. So it's clear that a company has flexibility when it comes to pay and promotions. But a lot of problems can come directly from the company policy manual. That is when a company fails to follow it. Sexual harassment policies, for example, are not an area where a company should be rewarding high performing employees by not pursuing the disciplinary process. We've all seen this happen, but the company increases its own legal liability when favoritism is shown with it's own policies or with laws concerning workplace behavior.

Coach Lombardi was equal but not fair. To stay out of trouble you want to be the opposite fair, but not equal.

 

Bob Rosner is a best-selling author and award-winning journalist. For free job and work advice, check out the award-winning workplace911.com. Check the revised edition of his Wall Street Journal best seller, "The Boss's Survival Guide." If you have a question for Bob, contact him via bob@workplace911.com.

Thought of the Week

"Fairness does not mean everyone gets the same. Fairness means everyone gets what they need."

–Rick Riordan

Weekly Comic by Jerry King

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