Our company wants to create different policies for different departments within the company, such as requiring professional business attire for our office employees but allowing warehouse employees to wear jeans. Can we treat departments differently?
Creating different policies for different job titles or departments can be an acceptable practice in some circumstances. While there is always a concern about discrimination in the workplace, discrimination occurs only when employees are treated differently on the basis of one or more protected classes (e.g. race, gender, or national origin), or when a policy that may seem neutral actually has an adverse impact on a protected class.
Establishing a different dress code for office versus warehouse workers is based on a legitimate business justification—maintaining a professional appearance in an environment where customers interact with employees, versus a less professional dress code where workers will be packing and shipping boxes, driving forklifts, etc. Because the different dress codes are based on a legitimate business justification, rather than any protected class, they would not be discriminatory.
Before creating different policies for different groups of employees, it is important to consider whether there will be any unintended adverse impact on a protected class. Once your policies are in place, be sure you are consistently enforcing them across the department or job title to which they apply.
Some other examples of situations where different treatment would not constitute discrimination are:
• Seniority: Most employers provide more vacation, sick leave or other time-off benefits to employees as they accrue more seniority with the company.
For example, employees may earn only one week of vacation during their first three years with a company, then earn two weeks of vacation after that. Although this is undoubtedly different treatment of different employees, because it is based on length of service with the company—rather than being based on any protected class— it is not illegal discrimination.
• Location: Employers may establish different policies for employees based on the location in which they work.
For example, an employer may provide public transportation passes to employees in a busy city location where parking is scarce, while not providing the same benefit to employees who work in another location where free nearby street parking is ample.
Similarly, there is no discrimination when employers pay higher wages to employees in cities such as San Francisco or San Jose (where a higher minimum wage is legally mandated by local ordinance) than they pay to their employees in other cities.
• Position within the company: It is not uncommon for a company to treat managers differently than it treats rank-and-file employees. A manager may have more flexibility in setting his or her own hours, or perhaps have an assigned parking space or a longer lunch break.
Because these perks come with the management position, and are not denied to the rank-and-file employees based on any of the categories protected by law, there is no discrimination.
• Disability or Religious Accommodation: An employee who has a disability may be allowed to work from home as a reasonable accommodation.
Other employees may want to work from home as well, and argue that it’s discrimination if you don’t allow it. However, treating employees differently based on the legal obligation to accommodate a disability is not discrimination, and there would be no violation of the law by denying a request by an employee without a disability to work from home.
The same logic would apply where you allow an employee to take Sundays off to accommodate her/his religious beliefs, but require other employees to work on Sundays.
The Labor Law Helpline is a service to California Chamber of Commerce preferred and executive members. For expert explanations of labor laws and Cal/OSHA regulations, not legal counsel for specific situations, call (800) 348-2262 or submit your question at www.hrcalifornia.com.