Are Attendance Policies Discriminatory?

IS EXPECTING PEOPLE TO SHOW UP ON TIME DISCRIMINATORY?

A little birdie (Twitter) pointed us to an interesting report regarding tardiness: it may be racist to expect employees to show up to work on time. Clemson University’s diversity-training course states that expecting people to show up to work on time is culturally insensitive. This report reminded us of a Canadian waitress who claimed that being fired due to his rudeness was “discrimination against his culture.” We previously discussed this story on this webinar.

Being consistently tardy for work or meeting is one example of a behavior that can affect productivity for a team. An example given in the Clemson University training included how to address employees who are consistently late for large meetings, causing delays in everyone’s schedule. In this training, Clemson states that instead of addressing the tardiness and communicating how a delay is disrespectful to other’s time, employers should “recognize cultural differences” in regard to time and “adjust accordingly.”

It’s not clear whether Clemson’s training is the beginning of a new wave of legislation and eventual litigation seeking to link adherence to attendance policies with an employee’s race, national origin, ancestry or some other protected class or if it’s an example of heightened sensitivity. Perhaps it’s a reaction to something Clemson struggled with internally. No doubt the next university to train on these issues will focus on the stereotype that Millennials struggle with showing up to work before 9:00 a.m., which if we were to discipline them for not showing up to work would be a form of age discrimination. I don’t think we are there yet where we need to consider an employee’s ancestry, national origin, age or race when enforcing compliance with attendance policies. At least I don’t think we need to consider it for legal compliance. That said, employers might find that being sensitive to a person’s background or age in relation to attendance polices is important for their culture.  

This recent training may be telling of the growing cultural shift away from the 9-5 workday, but if Clemson University’s proposition that it may be discriminatory to expect employees to show up for work on time and work their full day proved to be true that would certainly move legal needle and change the way HR and management thinks about attendance policies and expectations.  

CALIFORNIA LEGISLATIVE WAVE: HAIRSTYLE DISCRIMINATION

In other news, California made some recent legislative changes surrounding acceptance of cultural differences. California, with the CROWN Act, is now the first state to make it unlawful to discriminate based on hairstyle in the workplace.

Discrimination of employees based on hairstyle is seen as racial discrimination, as certain hairstyles (afros, braids, dreadlocks) are closely associated with race. Having workplace policies prohibiting “natural hair” are more likely to deter minority applicants.

HR professionals and risk managers should take note of what California has done because it is almost certain that the tenets of this legislation will be lobbied for passage in other states. New York, just last week, was the second state to ban race-based hairstyle discrimination. Other states are certain to follow California and New York’s lead on this subject. 

If you have any questions or needs regarding discrimination claims, policies, training and strategies please contact us at 651-389-5000 to discuss with an attorney.

 
 

Thompson Coe’s Tips of the Week are not intended as a solicitation, do not constitute legal advice and do not establish an attorney-client relationship.

Kevin Mosher