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Eliminating Biases You Never Knew You Had
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Eliminating Biases You Never Knew You Had

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The Rules of Professional Conduct that we as lawyers must follow, say that was cannot be biased in the practice of law. The Rule states:

“In management or operation of a law practice, a member shall not unlawfully discriminate or knowingly permit unlawful discrimination on the basis of race, national origin, sex, sexual orientation religion, age or disability in: hiring, promoting, discharging, or otherwise determining the conditions of employment of any person; or accepting or terminating representation of any client.”

However, no disciplinary proceedings may be initiated against a member of the bar unless and until a judge or jury has found that unlawful conduct occurred.

Anti-Bias laws derive from many sources including Title VII of the Civil Rights Act of 1964, the Americans with Disabilities Act and the Age Discrimination in Employment Act to name a few. Anti-Bias laws prohibit discrimination, harassment and retaliation based on protected categories. This prevents companies from multiple actions, such as selective hiring and wrongful termination. However, it still happens with thousands of new cases in each state ever year. Just look at these alabama cases of wrongful termination and you’ll see how prevalent the issue is. California, for example, has 11 protected categories which includes gender expression / identity and genetic information and neither category is protected Federally. Discrimination or bias issues occur in hiring, firing, discipline, promotion, scheduling, pay issues, leave of absence, work assignments and evaluations – needless to say, it is prevalent. However, anti-Bias laws do not require affirmative action, nice bosses and pleasant workplaces. There is a difference between discrimination and just plain nasty.

Harassment and Discrimination Against Disabled Persons

The Old Americans with Disabilities Act required courts to apply too demanding standards to prove a disability. Plaintiffs were unable to prove that they were disabled as defined by the ADA and the most cases failed. The plaintiffs were either not disabled enough to be protected or they were too disabled to be considered qualified for the job and consequently, employers prevailed in about 95% of all “old” ADA cases. So what changed? The definition of who is considered disabled has been broadened and it easier to satisfy. An impairment does not need to be permanent, impairments that are episodic count. The regulations provide a non-exhaustive list of episodic impairments such as asthma, epilepsy, hypertension and psychiatric disabilities such as bipolar disorder, which are now statutorily covered. The impact of the “new” ADA is that cases will no longer turn on whether an individual is “disabled,” but will likely turn now on whether the employer could have provided reasonable accommodation. Congress amended the regulation, which now states “…an impairment that is episodic is a disability if it would substantially limit a major life activity when active.” Therefore, short term impairments can qualify as a disability under the ADA. It is because of this that individuals living with short term disabilities are able to make claims on their short term disability insurance policies. It is also interesting to know that if you are unable to work as a result of a disability, then provided you meet the specified criteria, you might be entitled to Social Security Disability benefits. Being unable to earn an income can be scary, but it is reassuring to know that help and support are out there for people living with disabilities. You can learn more about assessing your eligibility for disability benefits over on the Crest SSD website.

How can disabilities become an issue in the workplace then? Well, you cannot automatically discipline or terminate an employee for disability related conduct. For example, in Gambini v. Total Renal Care (9th Cir. 2007) an employee notified supervisors of diagnosis of Bipolar Disorder. When she was given a Performance Improvement Plan, the employee shouted profanity at her managers and threw the document across the room, went to her desk and kicked and threw things, and said “they’ll regret this!” Upon her termination, she sued claiming her outburst was a symptom of her Bipolar Disorder. She lost at trial but appealed to the Ninth Circuit, arguing that trial court should have instructed jury that “Conduct resulting from a disability is part of a disability and not a separate ground for termination” and the Ninth Circuit agreed. You must be especially careful with employees or clients with disabilities because they will file claims of disability discrimination and wrongful termination.

How about sleeping on the job? A building inspector in Minnesota was caught sleeping for over an hour on his shift and was fired. The inspector claimed his arthritis medication made him sleepy and claimed disability discrimination alleging they knew about his medication so they cannot fire him because he is sleepy and you must provide reasonable accommodations. What if the employee was narcoleptic? How do you accommodate this? Adjusting an employees schedule or shifts around when the medication must be taken, allow unpaid naps on a cot in the back – work around the sleepyness factor and be creative. You are required to provide reasonable accommodations without undue burden or expense.

Ethnic and Racial Diversity and Discrimination

Ethnic and racial diversity is an important value in law firms today. The benefits of a diverse workforce is that many clients insist on it, most client organizations are diverse, diverse perspectives often can produce a better result, product or service and it is just the right thing to do. Obvious discrimination or harassment occurs with a refusal to hire, termination, discipline, demotion or paying less wages based race, ethnicity or national origin. Not so obvious harassment can occur with the use of nicknames. A group’s ethnic characteristics encompass more than its members’ skin color and physical traits. Names are often a proxy for race and ethnicity. A CEO used random American nicknames like “Hank” or “Manny” for an Arab employee because he believed having a “Western” name would increase his chances for success and be better accepted by clientele. This was unlawful harassment, even though the nicknames were not racially discriminatory themselves. A refusal to call one by their name created a hostile work environment for the employee. Ethnic harassment by clients is also illegal. What does that mean for your firm? You have a duty to protect your employees from ethnic harassment by clients. The same duty to investigate and take corrective action applies to customer harassment as applies to co-worker harassment.

Eliminating Bias Based on Religion

Title VII does not clearly define the term religion. The Equal Employment Opportunity Commission (EEOC) has defined religious practices by workers to include “moral or ethical beliefs about what is right and wrong which are sincerely held with the strength of traditional religious views.” Protections offered under Title VII can include beliefs an employer wouldn’t necessarily associate with any traditional religion. If you can’t define religion then how can you prevent against religious discrimination? Title VII prohibits two types of religious harassment: (1) hostility toward religious beliefs and (2) proselytizing or preaching. If a supervisor invited a subordinate to go to his church, placed rosary beads and religious pamphlets near her desk and told her that her and her husband should pray over their financial troubles, the employee could pursue religious harassment claims. If a manager tells a homosexual employee that the Lord will question his ways and that he should become a heterosexual and a Mormon, the employee can pursue religious harassment claims. Employers must not allow managers or employees to impose their own personal, religious beliefs on others in the workplace. Additionally, Title VII requires employers to accommodate religious beliefs unless it would impose an undue hardship on the firm.

How To Earn CLE Credit on this Topic

For an in-depth review on this topic, Attorney Credits offers a course titled Eliminating Biases You Never Knew You Had.”

The course is available for CLE credit in the following states:Alaska (AK) | Arizona (AZ) | California (CA) | Colorado (CO) | Connecticut (CT) | District of Columbia (DC) | Georgia (GA) | Illinois (IL) | Maryland (MD) | Massachusetts (MA) | Michigan (MI) | Nevada (NV) | New Jersey (NJ) | New York (NY) | Oregon (OR) | Pennsylvania (PA) | South Dakota (SD)

James Nguyen
James Nguyen

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