Practical Application: Developing an Anti-Discrimination Workplace Policy

Instructor: Scott Tuning

Scott has been a faculty member in higher education for over 10 years. He holds an MBA in Management, an MA in counseling, and an M.Div. in Academic Biblical Studies.

Discrimination, and any allegation of it, is a terrible thing for victims, for employees, for all of an organization's stakeholders. A strong anti-discrimination policy is one powerful way to protect the workplace from this significant problem.

Discrimination Hurts

Discrimination is legally defined as behavior or action that treats a person differently from a their counterparts based on their membership in a protected class. Protected classes always include characteristics like race, ethnicity, age, religion, or gender. In many jurisdictions, sexual orientation is also a protected class.

An organization's anti-discrimination policies are its first line of defense against both intentional and unintentional discrimination. Let's look at a scenario and consider an example anti-discrimination policy.

Unintentional Discrimination

Jill had worked as a courier for just over a year. She was one of three full-time employees responsible for being on-call for urgent deliveries. In the last three months, both her other co-workers (who were males) had missed an assignment while on call. Neither received formal discipline. One day, Jill did not hear her phone ring, and (like her co-workers) missed an assignment. On her next full day of work, Jill was terminated for her failure to respond to the call.

Jill appealed her termination in accordance with the company's policy. Her argument was that she was the victim of gender discrimination. In supporting her claim, she cited the following:

  1. I was guilty of the same infraction as two similarly-situated male colleagues. The males were not disciplined for the same offense.
  2. The employer has a progressive discipline policy, but I was not granted the due process it guarantees while other male counterparts have, in fact, received the benefit of due process.
  3. With no other disciplinary history with the company, it is clear that the penalty applied was applied in an unequal manner.

Probing Questions

Now consider a few important questions about this scenario.

  • Does Jill have a prima facia case? (If true, would the facts Jill has alleged constitute unlawful discrimination?)
  • What, if anything, does Jill allege that allows her claim to pass the prima facia hurdle?
  • If Jill's company agrees with her factual assertions, are they admitting guilt? Why or why not?

Thoughtful Answers

Based on the definitions from the lesson What is Discrimination, Jill has met her legal burden to proceed with her claim. She has made the factual allegations that, if true, do meet the definition of the unequal treatment of similarly-situated coworkers.

Accepting Jill's factual assertions does not constitute an admission of guilt. This is because Jill's employer could argue a number of compelling rebuttals including:

  • Jill's conduct was, in fact, not the same conduct as the male colleagues she refers to (i.e. something made her situation and disciplinary action substantially different from others).
  • Jill was not similarly-situated as she claims (i.e. Jill was a supervisor when the male counterparts were not in a supervisory role).

Creating a Solid Non-Discrimination Policy

Because equal treatment is the goal of anti-discrimination laws, a solid anti-discrimination policy will focus on producing consistent outcomes in similar situations. It will also contain language that allows the company to exercise a health level of autonomy in how they manage such cases.

Take a look at the example policy below. Then use it as a guide to creating your own.

XYZ Courriers Anti-Discrimination Policy

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