A policy that allows the hiring of spouses or family members could be subject to challenge if the hiring had a disparate impact on individuals in a protected class. This situation could occur when, for example, word-of-mouth recruiting by current employees significantly limits the racial or ethnic profile of applicants. In EEOC v Steamship Clerk’s Union Local 1066 (1st Cir 1995) 48 F3d 594, the union adopted a membership policy under which applicants had to be sponsored by existing members; though neutral on its face, its track record showed zero minority members despite 30 new white members, all of whom had family ties to existing members.
The EEOC Compliance Manual §15-VI(A), p 23 makes the point very clearly when it states that “word-of-mouth recruiting in a racially diverse workforce can be an effective way to promote diversity, [but] the same method of recruiting in a non-diverse workforce is a barrier to equal employment opportunity if it does not create applicant pools that reflect the diversity in the qualified labor market.”
What about policies that prohibit family members from working together? No-relative policies that have a neutral, provable impact on both genders are permissible if supported by justifiable business reasons and meet certain fairness conditions, such as
- The policy has the legitimate purposes of preventing the appearance of favoritism, limiting sexual harassment claims, and preserving employee morale;
- All employees are notified of the policy;
- Employees are warned before being disciplined; and
- The policy is applied consistently.
Many employers have policies that fall short of a complete prohibition and instead restrict spouses from working under the same chain of command or prohibit supervision by a relative. This type of policy doesn’t run afoul of California’s Fair Employment and Housing Act prohibition against discrimination based on marital status (Govt C §12940(a)), because that prohibition doesn’t affect an employer’s right “to reasonably regulate, for reasons of supervision, safety, security, or morale, the working of spouses in the same department, division, or facility.” Govt C §12940(a)(3)(A).
And what happens if coworkers marry? Regulations of the Department of Fair Employment and Housing require the employer to make reasonable efforts to assign job duties so as to minimize problems and to make employment decisions that aren’t based on whether an individual has a spouse employed by the employer, except that (2 Cal Code Regs §11057(a)(1)-(2))
for business reasons of supervision, safety, security or morale, an employer may refuse to place one spouse under the direct supervision of the other spouse [and] may refuse to place both spouses in the same department, division or facility if the work involves potential conflicts of interest or other hazards greater for married couples than for other persons.
If family members are employed together, another area for employer liability has just cropped up: Effective January 1, 2016, added Lab C §98.6(e) makes it illegal for an employer to retaliate against a family member of an employee who engages in a protected activity. This means that if one spouse complains about a workplace safety issue, not only is he or she protected from retaliation, but so is the other spouse.
With so many potential areas for liability, employers should review CEB’s Advising California Employers and Employees, chap 1 for hiring guidelines and pitfalls to avoid.
Other CEBblog™ posts you may find useful:
- Your Employees Are Probably Doing It, So Have a BYOD Policy
- Employers: 9 Provisions You Need in a Whistleblower Policy
- Give Paid Time Off or Sick and Vacation Leave?
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