Most Hawaii employers know that they cannot discriminate based on race, color, religion, sex (including gender identity or expression), age, national origin, ancestry, marital status, arrest and court record, reproductive health decision, disability, genetic information, sexual orientation, domestic or sexual violence victim status, credit history, citizenship status, military/veterans status, or other characteristics protected under applicable state and federal laws, regulations, and/or executive orders.

However, many supervisors and employers do not realize that discrimination is not only based on their intent. Sometimes, actions or decisions that are intended to help the employee could end up being considered discrimination.

Do any of these sound familiar?

“She just had a baby, so she wouldn’t want this promotion. It would mean working longer hours.”

“He recently got married, so he’s probably looking to buy a house and start a family. He could get a higher-paying job than this one. Let’s offer it to the other applicant.”

“We’d really like her to retire already. She’s a good worker, and we haven’t had any issues, but we’re concerned about her safety. She shouldn’t be driving to work every day at her age.”

“He’s undergoing chemo for his cancer treatment. We should lay him off so he doesn’t have to worry about coming in contact with customers who might be carrying COVID.”

“They have a hard time walking up the stairs. Let’s move them to the office on the ground floor.” 

One of the biggest red flags in these scenarios is that these decisions are all made unilaterally by the employer. The employer is making assumptions based on the employee’s situation (i.e., protected class), and making employment-related decisions based on those assumptions.

What should the employer do?

“She just had a baby…” If the employer is looking at internal candidates for a promotion, and the employee is the best suited for the new role, offer it to her. As with any offer, the employer should clearly explain the duties, responsibilities, and expectations of the role. It is up to the employee to determine whether she wants to accept or not.

“He recently got married…” Again, be clear about the terms of the offer. Allow the candidate to assess whether the terms are acceptable to him or not. He may decline if the offer does not meet his expectations, but he may also accept if the employer's assumptions were incorrect.

“We’d really like her to retire…” Employers should not treat employees differently simply because of the employee’s age. If the employee is satisfactorily performing her job duties, including reliably showing up to work, what is the problem? If the employee has not exhibited any performance or safety concerns, treat her as you would any other employee, regardless of age.

“He’s undergoing chemo…” Unless the employee requests an accommodation or time off, let him keep working. Do not make medical decisions for your employees. If the employee requests an accommodation, engage in the interactive process. Ultimately, the employee may not be able to perform the essential functions of his job, but again the key is not to unilaterally make the decision for him.

“They have a hard time walking up the stairs…” Similar to the above, has the employee mentioned anything about the location of their office (i.e., requested an accommodation)? If there is no business-related reason the employee needs to be moved, the employer should not force the employee to a different workspace based on a perceived disability. 

Takeaway

Employers should stop and think carefully any time a decision is made based on a protected classification. Even if the employer is trying to help the employee, the employee might not see it that way. Employers should avoid making assumptions about its employees' preferences or medical conditions and making employment-related decisions based on those assumptions.

Supervisors and others involved in decision-making should be aware of what the protected classifications are, and ensure their decisions are not motivated by employees' membership in any protected class. Our Fundamentals of Supervision series can help lay the foundational knowledge for new supervisors, or serve as a back-to-basics refresher for more seasoned supervisors.

HEC members may contact their HR Consultant or call our hotline at 808-836-1511 to discuss scenarios that may be considered benevolent discrimination.