Workplace discrimination

Diverse cast members  "The Office"

Most employers know that not hiring someone based on the race or nationality of that person or any other characteristic that is protected legally against that type of discrimination is illegal. Similarly, treating such a person that you hire differently than other employees because of that characteristic is also unlawful.

However, you can treat an employee differently for a valid reason that is based on a characteristic that the law does not  protect against discrimination. Examples of this include monitoring the work of a new hire closely until he or she proves an ability to do the job well or asking an employee to assemble a display at a trade show based on that person showing a good mechanical aptitude.

My recent entries regarding employing people who are in the United States illegally show as well that proving that any form of adverse employment decision is not illegal discrimination can be tricky. An employer should not hire anyone that he or she believes is in the country illegally but must not base a decision to not hire someone on that person being from a country from which many people are known to be illegal immigrants.

The simple and inexpensive way to avoid problems is to institute a neutral employment eligibility verification process to which you subject every person who you hire; this must include having the person complete the federal I-9 form that requires presenting proof that he or she is in the country legally. Some states require as well that an employer look up potential employees on the free federal government website E-Verify to ensure that those people are eligible to work in the United States.

This, like everything else, also involves the "giggle test" that consists of acting in a way that you could defend to a judge without smiling. Saying that you lost a photocopy of the employee's proof of citizenship or that you believed that a government document that even a child would recognize as a forgery was authentic would not pass that test.

Please remember too that not engaging in illegal workplace discrimination does not prevent an employee from claiming that you did so. In such cases, you must simply prove either that the incident or incidents on which that person based his or her claim did not occur or that a valid nondiscriminatory reason existed for acting as you did.

Please feel free to add any questions or comments to this entry or e-mail them to nelsonexaminer@gmail.com. Please remember as well that nothing that I write can be considered legal advice.