Religious/ Marital Status Discrimination??
mountainfiest
9 Posts
I would really like your thoughts on this...
Small company, only a few years old, owners are Baptist Christians. Not a religious organization. Married, female hourly employee spending time out side of work with single, male, hourly employees...as well as other female employees. Non-romantic. They exchange texts and send jokes. Husband of female employee finds out, takes her phone and later threatens co-worker via calling him from wife's cell phone (while drunk). Management finds out and counsels female employee on how her bahavior is bleeding into workplace and that married employees should not be spending time outside of work with single employees of opposite sex. If the owner finds out, he might have her fired.
HR advises management that telling her she can't spend time with co-workers because she's married is a morality issue, a religous based belief that the female employee doesn't share. All events took place outside of work and had no impact on work place. Concern comes from higher level management's unshared beliefs.
Now employee is upset and feels like her employer is trying to control her outside of work. All high level management are men, all are Baptist and each are in some way connected via family or friends.
Thoughts???
Comments
I don't think that I see any marital/religious discrimination issues here. Some employers try to enforce a antifraternization policy, or a policy that keeps employees from socializing with each other outside of work. But, this can get you in trouble under federal labor law. I remember a case where the court ruled that employers can have a policy prohibiting their workers from socializing with each other, but the policy can't lead your employees to think that ehy are prohibited from socializing to discuss working conditions.
Having siad that, if you believe there is a security risk, i.e., the employee's husband will attempt some kind of violence at your facility, than I think you were wise to address it. I would also document it. But this is the angle I would take - not a moral one. I think that we're at a point where men and women can be friends and nothing more. Besides, it will not foster good will among your employees for them to think that the company is trying to be some moral authority in their personal lives.
Hope this helps!
I agree that the employer needs to couch any discipline in the effect it has on her job or other coworker's job performance. Currently it is not a direct link, but could easily get there if her husband continues to harass other employees. I think it was wise for the employer to warn her (i.e. that it has "bled" into the workplace) but not wise to absolutely forbid it. Personally, based on what you stated, I do think it has already started to affect the employer...but not enough to do more than a gentle reminder.
Also privacy laws for behavior outside the workplace tends to be dependent on state laws. Some are more detailed than others. So you would need to check specific state laws to know for sure how much control the employer could have.
Under "guidelines for conduct" in our employee handbook, we have the following statement:
"This not only involves sincere respect for the rights and feelings of others, but also demands that employees refrain from any behavior that might be harmful to themselves, co-workers, the Company, or that might be viewed unfavorably by current or potential customers or by the public at large. Employee conduct reflects on the Company. Employees are, consequently, encouraged to observe the highest standards of professionalism at all times."
We also have the following: "Additionally, all employees, both managerial and non-managerial, are discouraged from fraternizing or becoming romantically involved with other employees, when, in the opinion of the Company, their personal relationships may create a conflict of interest, cause disruption, create a negative or unprofessional work environment, or present concerns regarding supervision, safety, security, or morale.<?xml:namespace prefix = o ns = "urn:schemas-microsoft-com:office:office" />
By the employee's behavior (while not illegal) of socializing with unmarried coworkers, she is behaving in such a way that might be harmful to a co-worker (via her husband's disapproval of her behavior). So we would use this policy to discipline her.
I have fought and won both an unemployment appeal and an EEOC claim where we finally had to terminate an employee (after multiple warnings) because of the behavior of his spouse.
But like I posted earlier, some of the marital status discrimination is state-law-based. You can't discipline terminate specifically because an employee is married or not married, but you can discipline and/or terminated based on the job performance/behavior of the employee or the environment they bring to work.
Honestly, I would counsel the employee that her behavior was leading to her husband's behavior (harassment) in her workplace to her co-worker. And disrupting the business activities of the employer. Would I terminate her over the first incident? NO. But like I stated in my original posting, I don't think a "gentle reminder" would be uncalled for.
In our case, the spouse was angry over the employee's physical relationship with a business customer (and actually another co-worker at the same time). She got into arguments with both the tenant and her husband during work hours on company property. Police had to be called twice. We terminated the employee after two very direct warnings and a third incident. So yes, after a point we did hold the employee liable, but not under the WPV policy but rather the conduct policy.
eta: just read this after a google search " Employers have an obligation to maintain a workplace free from recognized hazards that are causing or are likely to cause death or serious physical harm to employees. Encompassed within this general requirement is an employer's obligation to do everything that is reasonably necessary to protect the life, safety, and health of employees, including the adoption of practices, means, methods, operations, and processes reasonably adequate to create a safe and healthful workplace. While a workplace can not be guaranteed to be 100 percent free of violence, certain steps can be taken to work towards a safe, productive environment." at www.helpstartshere.org
It is a tough balancing act of working with the affected employee (who has the disgruntled spouse) and an obligation to provide a harassment-free workplace for her co-workers. At this point, the employee's behavior outside the workplace has already caused the spouse to make threats at the workplace. So now is the time to deal with it. Honestly, if the means to get there safely is to counsel this employee that it is unwise to socialize with an unmarried co-worker of the opposite gender, then I would. Would I put out a company-wide policy against socialization because of this specific incident? Probably not. But the actual threat itself changed my perspective.
There are several things going on here.
Antifraternization policies generally don't work very well because employees have a right to freedom of association.
The Wagner Act also provides for "protected concerted activity" and discourse over the terms and conditions of work (including rates of pay) are protected. Two or more people is "concerted". All they have to do is say that they spoke about work related issues and the Wagner Act can be invoked without any discussion of high level legal reasoning on the scope and limits of freedom of association.
OSHA requires that employers maintain safe work environments. If the focal employee's spouse has become threatening, then you must take steps to address the situation to keep the workplace environment safe.
Any mention of the employee's marital status with regards to her conduct, or the outcomes of her conduct, may be reasonable grounds for a complaint or action if there is follow up disciplinary action. Post-hoc changing the story may not be a great strategy, either. If this cat has already been let out of the bag, then anything you do is going to look like a pretext for the underlying actual cause of marital discrimination. If the employer has been wiser than that and not mentioned anything outside of closed doors, life is easier provided you are able to ensure that policy is followed without regard for marital status and your boss will keep his or her mouth shut.
If you have a code of conduct or policies against disruptive behavior then you have leverage here even if the spouse has not been threatening because the husband's effect on the work environment is caused by the focal employee's spouse's conduct. If she truly believes that she is the victim of his conduct, then she needs to pursue an order of protection or other means to prevent him from victimizing her in this situation.
Another often overlooked piece to this kind of puzzle is the employee's right to privacy. Although I doubt that would be an issue in this particular case, it's worth mentioning in passing.
In the end, I think it typically comes down to whether or not the employer can show a neutral and legitimate business interest in taking whatever action it has taken if that action is later questioned in court or before a regulatory body. The neutrality can be damaged by unknowledgeable and potentially illegally prejudicial individuals from saying things they should not even if the end point was arrived at by other persons in a completely neutral and non-discriminatory manner for business reasons. Clearly, the employer has a legitimate business interest in preventing violence in the workplace or, even, to his or her employees regardless of location as well as interest in preventing the disruption of orderly orderly conduct of work.
I would avoid discussing the marriedness or unmarriedness of any of the players in this issue. I wouldn't counsel an employee not to hang out with other people because of her marital status or the marital status of those she hangs out with. I would say that abusive and/or disruptive discourse between her spouse and other employees caused by her behavior is bringing her personal life into the workplace in a disruptive manner and she needs to take steps to make that stop. Follow customary and usual standards of progressive discipline and hope she can get it fixed. If there is hard evidence (e.g., a voice mail recording played for you) that the spouse has issued a threat, then I would escalate things faster.