Blame: a five letter word for I’m not taking responsibility for anything. It’s easy to use the excuse that it’s “their” fault. And there are times when we are treated unfairly, but to continue to blame only keeps us stuck as the victim.
So often I hear people say they are being treated unfairly at work or even while looking for a job. Most companies have guidelines that prohibit unlawful discrimination based on race, color, religious creed, sex, national origin, ancestry, age, marital status, physical or mental disability, medical condition, sexual orientation, veteran status, and other things protected by federal, state or local law.
Despite these written rules, from time to time the regulations are violated by companies during the hiring process or to terminate an employee. And often employees will file suit — sometimes class action suits — claiming discrimination by race, age, sex, or one of the other unlawful discrimination practices listed previously.
These guidelines can be tricky and they do usually include the words “prohibit unlawful discrimination.” What does this mean, exactly, “unlawful discrimination?”
I contacted an attorney to help me with this, asking her to give me some information that I could understand; in other words, not lawyer speak. I used the now common practice of pre-employment testing, including lifting an amount of weight, as an example for the attorney.
“To make it discriminatory based upon sex, you would have to show that the lift requirement has been set at such a level as to exclude women from the job and that the lift requirement as set isn't necessary to be able to perform the job,” the attorney said. “Example: It isn't actually necessary to lift over 30 pounds at a time. There are machines, etc., that are available to help lift things that weigh more than that. However, we don't want women to work for us so we are going to pick a weight that 99 percent of women couldn't possibly lift. The effect isn't direct discrimination against women. However, it does fall into what is called ‘disparate impact’ in that it has the effect of discrimination based upon sex. This means that you don't have to prove that discrimination based upon sex was the intent, just the result.”
But, she added: “They can set a ‘reasonable’ requirement. If she can't lift whatever is considered ‘reasonable’ for the job by industry standards, then she isn't being discriminated against. She just isn't qualified. There is a difference between not being qualified and being discriminated against.”
Keep in mind that this is a hypothetical situation and the attorney is not giving specific advice, just an overview to try to show in simple terms what would be discriminatory in this type of situation. If you or someone you know thinks you have been discriminated against, sit down with an employment law attorney and discuss it.
I wrote “Close Scrutiny; Drivers undergoing more physical testing before getting hired, rejected,” for the last issue of The Trucker regarding pre-employment requirements including one in which the potential driver must lift different amounts of weight. This could very easily be used to not only discriminate against women, but also men.
While researching the article on driver testing I discovered that pre-employment physical testing is widespread and that most of the larger trucking companies hire third-party testers to perform them.
Hiring a driver who is physically able to do the job is within the rights of a company. They simply cannot put someone out on the road that is unable to handle the truck and trailer and all of the things that go along with maintaining the load.
With that said, are the tests too rigid? Do companies make potential employees lift more than they would ever have to lift in a real life situation? Maybe. Are they discriminatory? It is possible. But if they are, they can get in trouble which is why companies often hire third-party testers to ensure they aren’t doing anything wrong.
As I wrote in the article last issue, Wendy Sullivan, RN and vice president of project implementation, DOT Health and Safety Consultative Services used herself as an example of how those hiring others need to know that who they hire can do the job.
“I often give the example of me being a nurse; whether I’m male or female, I have to be able to perform the job duties of a nurse, period,” she told The Trucker. “I have to be able to save a life with my skills. It is really no different for any profession. A job description is a job description.”
One problem that comes into the equation of discrimination is that we are all human. We have personal preferences, prejudices, religious beliefs, and so forth. Hiring, managing and working with others is seldom going to be a completely smooth process — there is lots of room for error.
Just remember that before you play the discrimination card: be sure it’s the right time and circumstance for it, lest you “cry wolf” and cause more harm to yourself in future job ventures.