Every team management decision you make – whether it’s hiring, firing, providing disciplinary action, or anything else – should first include an assessment of best practices and an evaluation of whether the employee or employees on the receiving end of that decision are a member of any protected classes.
Though an important consideration in any compliant HR process, protected classes are largely misunderstood by employers. Oftentimes employers assume that protected class categories only protect individuals of certain minority populations. With this in mind, many managers and business owners feel comfortable making off-the-cuff employment decisions in cases when they don’t believe an employee to be a member of a protected class.
But, because of how the law is written, protected classes don’t apply only to certain populations. Rather, they protect specific qualities and attributes that could apply to any and all employees in one way or another. And, though you may think an employee is not in a protected class, the circumstances at your office may tell a different story from the perspective of the Equal Employment Opportunity Commission (EEOC) or an employment attorney that has your practice in their crosshairs.
Here’s what that means:
What is a protected class?
According to the EEOC, a “protected class” is a group of people with a common characteristic who are legally protected from employment discrimination on the basis of that characteristic.
Are protected classes determined at the federal level or the state level?
Determination of protected classes falls at both the federal and state level, and even sometimes on a more localized scale than that.
Ensuring you are compliant with all federal, state, and local mandates in your practice is important. Reach out to your HR provider to get a detailed list of protected classes specific to your area.
What are the federally recognized protected classes?
At a federal level, there are ten protected classes to take note of. They are:
- Religion or Creed
- National origin or ancestry
- Physical or mental disability
- Veteran status
- Genetic information
What is important to keep in mind about these categories is that more can always be added and each category may have subcategories.
For example, in the category of sex, there are several subcategories. These include pregnancy, sexual orientation, and gender identity.
Which employees fall under protected class categories?
If you take away anything from this reading, it should be that everyone is included in at least four protected classes.
We all have a race, color, sex, and a national origin. Automatically, we are all included in some sort of protected class in the workplace. If you keep this in mind, you will never have to wonder if one of your employees falls within this legal protection.
If someone is receiving discipline, is their protected class always a concern?
The subject of discipline in the workplace always seems to have some tension around protected classes due to the fact that discriminating against someone because of their protected class can result in a lawsuit.
While it is important to keep in mind that protected classes are always present, protected classes are not always involved in the issue at hand. For example, rather than asking, “Is this employee in a protected class?” (remember, every employee is) you should be asking, “Does this employee fall within a federal, state, or local protected class, and is the class involved in the situation?”.
Say you have a pregnant employee who failed to properly sanitize equipment after a service. This creates a risk to your patients’ health, so you decide you want to offer corrective coaching to the employee to ensure it doesn’t happen again. In this situation, the employee is not being singled out for being pregnant or female but, rather, for failing to properly perform the duties outlined in her job description. Her protected classes don’t go away – they just aren’t the reason she is being addressed.
In contrast, say the same pregnant employee is not getting to one or more of her duties because she is taking frequent breaks, including unauthorized time away from her work. In this instance, while you will still want to bring the issue to her, if she informs you that the extra breaks are a result of her pregnancy, then her protected class kicks in as a concern.
In both instances, we HR professionals go down different paths when it comes to accountability and the employee’s behavior. In the first example, we may issue corrective coaching with little concern. But in the second instance, while we may start down the path of corrective coaching, we may need to take different steps to assess whether it is appropriate to provide a “reasonable accommodation” to the employee in order to address her need for frequent breaks.
In both cases, you also need to make sure you create a record that you are monitoring these things.
Keep these things in mind when making an employment decision:
When it comes time to hire, offer corrective coaching, terminate an employee, or make any other employment decision, you should always ask yourself the following questions:
- Are you making a decision that’s consistent with past practices? If you are treating this employee in a way that is different from the way you treated other employees in similar situations, you will likely want to reevaluate your approach.
- Is there anything different about this person from other members of the team which might cause them to feel targeted because of a protected class? If the employee in question doesn’t fit into all of the same protected classes as your other employees – e.g., your entire team is one race, gender, age group, etc. and this person is of a different race, gender, age group, etc. – then you will want to proceed with caution.
- Do you have documentation in place to support your decision? If you have decided to terminate an employee for performance reasons, do you have documentation showing that you’ve addressed these performance issues with the employee in the past? Or, if you are hiring someone because they are the best fit for the job, can you prove that your chosen candidate is, in fact, the best option available to you if asked to do so? If not, think carefully about why and how you are making your decision, as well as how it might be interpreted by an outsider.
Work with qualified HR experts to get it right.
Being compliant with federal, state, and local laws regarding discrimination is essential in your practice. CEDR’s HR Solution Center is staffed with experts in these areas and any other area associated with managing employee-related problems that may arise for you.
And, if you are a member or become one, our team of HR experts is ready to help you ensure you get the best outcomes with the folks you manage, and that your practice is a compliant place for everyone in your office.