November 2014
By: James B. Sherman, Esq.
When people think of workplace
discrimination, they imagine an employer that disfavors applicants or employees
on the basis of any number of legally prohibited grounds – e.g. race, sex,
color, creed, religion, age, disability, etc. However, a recent class action
lawsuit brought against household retail giant Bed Bath & Beyond, goes
against these conventional notions of discrimination. The complaint accuses Bed
Bath & Beyond of giving preferential treatment to its warehouse
workers who are young, male and Hispanic. While the lawsuit may ultimately be
found by the court to be without merit, the theory on which the plaintiffs base
their case holds lessons for employers.
Some may think that giving favored
treatment to minorities, or to a particular minority, would not violate
workplace discrimination laws but would actually promote the objective of
eliminating discrimination against minorities. But favoring any group always
has the side effect, whether or not intended, of disfavoring other groups. This
point is easy to grasp in the case of younger employees being favored over
older individuals. After all, other than in Minnesota (where younger
individuals between the age of majority and 40 are equally protected from age
discrimination as are persons 40 and older), the age discrimination laws are
not aimed at protecting younger individuals. The same can be said of favoring
males over females – it is clearly gender discrimination.
But in a case such as that against Bed
Bath & Beyond where it is also alleged that Hispanics (a minority) are
given preferential treatment over others, if the allegations are proven true,
the side effect would be that all other races, genders, persons of other
national origins, etc. would necessarily be disfavored or excluded in relation
to Hispanics.
In the 1990s the infamous Daniel Lamp case
involved the EEOC in Chicago, bringing a class action race discrimination
lawsuit against a small manufacturer, whose workforce was comprised of roughly
98% minorities. The problem for the EEOC was that the vast “majority of the
minority,” if you will, were Hispanic individuals whereas the demographics of
the area leaned more toward an African American populous. At the time, the case
of an employer being accused of discrimination when nearly all its employees
were “minorities,” was so novel that it received national media coverage on 60
Minutes. All these many years later the Bed Bath & Beyond case seems no
less novel, other than its allegation of gender and age bias.
Of course employers rarely go
intentionally looking for such troubles when it comes to hiring, etc. However,
if not careful they can wind up in the same pickle as Daniel Lamp and Bed Bath
& Beyond. For example, imagine that you have two employees and one turns
out to be a superstar while the other barely manages to keep from being fired
for poor performance. When an opening occurs, if both employees recommend an
interested relative or friend, common sense tells you that you prefer more
employees who are like your superstar, not your dud. Just as NFL teams all
started drafting offensive lineman who looked (and weighed) like the dominant
Washington team, famous “hogs,” you look to replicate that superstar employee.
This may be perfectly fine unless your ideal employee begins to come from the
same age group, gender, race, nationality, etc.
