Monday, November 24, 2014

Preferential Treatment of Minority Workers Is Still Unlawful Workplace Discrimination

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.

In sum, preferring one group – even a minority group – amounts to unlawful discrimination because it necessarily excludes or disadvantages other, equally protected groups. While few would consciously give preferential treatment to any class of people due to age, race gender, etc., it can sneak up on the unwary.  It is much easier to follow the practice of not treating any class of individuals poorly, than it is not giving preferential treatment to those with whom your experiences have been favorable. The best practice, then, is always to pursue equal treatment.