Human Resource Blog

Followup to Question Regarding A Special Class of Employee

I posted an earlier question regarding creating a special class of employee for a particular group of employees that would not have to adhere to the absent/tardy policy.  There is another aspect of this situation which I neglected to mention. In addition to the absent/tardy policy being punitive there are also benefits for those who adhere to the policy. Employees who are not absent or tardy earn personal days. With respect to the employees in the special job category, they receive neither the benefits nor the punishments associated with the absent/tardy policy. Are we discriminating by not giving them access to earning personal days?

Yes, anytime there is unfairness or a major difference in the way two employees in similar positions are treated, there is the potential for valid discrimination complaints. Even if a complaint is eventually found invalid, it can be very costly and time-consuming for the employer to launch a defense.

This article already discussed why this situation may be a problem under Title VII of the Civil Rights Act. The law also applies to benefits and working conditions, so there may well be a problem.

Remember that an action may result in illegal discrimination if it unfairly affects people of a protected class, even if illegal discrimination is not the intention.

It’s perfectly legal to discriminate between employees. For example, an employer should discriminate between employees who do a good job and those who don’t. Problems arise when employers discriminate in ways that are illegal.

In general, if you think that a situation might be illegal discrimination, then it probably is. It sounds like you have concerns that this situation isn’t fair, even if it is technically legal.

Also, the Equal Pay Act of 1963, or EPA requires that men and women who do the same or very similar work, in similar conditions, receive equal pay and benefits. This law was enacted to combat the very common 1950s policy of paying women about 50% less than men, for the same work. However, men as well as women are entitled to protection under this law.

Let’s look at two examples: Suppose John and Mary have similar jobs as drillpress operators, and work under similar circumstances. If one has better benefits, working conditions or pay, the other has a valid discrimination claim. This is also true if a disadvantaged worker is disabled or is over 40, or belongs to any protected class – race, color, religion, national origin, or sex.

In the example above, just changing John’s job title doesn’t eliminate the illegal discrimination.

However, if Mary is an underwater welder who works on the ocean floor, and John is a welder in an air-conditioned shop on dry land, then the two might well have very different jobs, even though some of their duties are the same. In this case, a difference in pay or benefits (probably in Mary’s favor) would be justified.

If the two employees have completely different jobs, then an employer might also be justified in offering different benefits. If Mary is a drillpress operator and John is an outside salesperson, John may qualify for commissions that Mary is not entitled to. On the other hand, Mary may qualify for attendance awards or production bonuses that John is not entitled to.

We see this often in large corporations where executives are entitled to million-dollar bonuses and stock options that workers on the factory floor don’t share. So yes, if the jobs are truly different, then different benefits can be offered.