Not Norwegian Enough

By David Tobenkin August 1, 2008

HR Magazine August 2008 coverIs it ever OK to discriminate?

When Walt Disney World employee Anesh Gupta was fired for allegedly not being “culturally authentic” and not being capable of representing Norway at the Disney World Norway Pavilion in Florida, Gupta sued Disney for race and national origin discrimination and brought up a potentially damaging question regarding the image-sensitive entertainment company: Was Gupta, of Indian descent, penalized for not being Norwegian?

In a decision released last November, the U.S. 11th Circuit Court of Appeals said “no” in Gupta v. Walt Disney World Co. (256 Fed. Appx. 279 (11th Cir. 2007)). The court ruled that Disney lawyers had established that familiarity with the Norwegian culture was important for the position; that lack of such familiarity was at issue in the termination, not race or national origin; and that Gupta, unlike other nonwhite employees Disney had been hiring for similar spots, lacked the requisite experience. An attorney for Walt Disney World declined comment.

Attorneys who represent employers say they were not surprised by the decision. While they say an attempt by Disney to require that Gupta have Norwegian ancestry would never have passed judicial muster, Disney artfully demonstrated that cultural knowledge was an important job qualification.

The larger message: While broad prohibitions guard against unjustified discrimination on the basis of federally protected categories of age, race, national origin, gender and religion, in some situations employers can make reasonable distinctions based on, or similar to, such categories, says Peter Saucier, a partner at Kollman & Saucier PA in Timonium, Md., who represents employers.

“The average employer wouldn’t think Disney would have won that case and instead would have thought, ‘Oh God no, you can’t do that,’ ” says Saucier, adding that many employers and employees are misinformed about their rights. “Employers generally do very well in these cases. Employees often think they have a lot more rights than they do, and many companies think they have fewer.”

Setting the Bar

That said, Saucier and other attorneys representing employers add that tolerance for unjustifiable discrimination against members of protected categories has been drying up. Courts are telling employers that if a job qualification is really important to their businesses, they should determine whether each individual employee has the qualification, rather than relying on the proxies of race, gender or national origin.

“Rather than stating you will only hire men because the job requires lifting 50?pounds, and most men are stronger, the law says that you should be open to any candidate who can lift 50 pounds, man or woman,” says Megan Norris, a principal and employment attorney at the Detroit office of law firm Miller Canfield.

The rights and wrongs depend heavily on the protected category. Discrimination based on race, for example, is almost never permissible. The rare exceptions tend to be extraordinary decisions. In Wittmer v. Peters (87 F.3d 916 (7th Cir. 1996)), for example, the U.S. 7th Circuit Court of Appeals found that the state of Illinois did not unconstitutionally discriminate based on race when it gave a black male applicant preference for a lieutenant’s job at a correctional boot camp in Greene County. The court found that the preference was essential because the camp serves predominantly black male offenders. Chief Judge Richard Posner’s opinion shows just how high the standard for race-based discrimination is and why the state’s practice qualified:

“While we may assume that a practice that is subject to the skeptical, questioning, beady-eyed scrutiny that the law requires when public officials use race to allocate burdens or benefits is not illegal per se, it can survive that intense scrutiny only if the defendants show that they are motivated by a truly powerful and worthy concern and that the racial measure that they have adopted is a plainly apt response … that they had to do something and had no alternative to what they did. The concern and the response, moreover, must be substantiated and not merely asserted.”

However, many such cases occur in trial courts and are not binding on other courts; even decisions at the appellate court level, such as the Wittmer decision, only bind within that court’s jurisdiction. Still, Saucier, Norris and other attorneys say that general parameters of discrimination case law tend to be similar across jurisdictions.

Affirmative Action

A misconception about acceptable distinctions running the other way -- that of employers having more latitude than they do -- concerns affirmative action programs. Contrary to popular perception, such programs generally cannot require hiring certain races, ethnicities or women. They may, however, take steps to help ensure that result, such as advertising in minority media and expanding the interview pool to get minority candidates.

With respect to national origin, the presumption against the validity of such distinctions remains nearly as high as for race, Norris says.

Some employers use indirect methods of ensuring a racially and ethnically balanced workforce by requiring job qualifications that such groups disproportionately possess. For example, insurer Government Employees Health Association Inc. (GEHA), based in Lee’s Summit, Mo., tries to hire customer service representatives who speak Spanish to serve insured members in states with high Hispanic populations, such as California, Florida, New Mexico and Texas. “If we have an applicant who speaks Spanish fluently, we will select that can­didate,” says GEHA Director of Human Resources Margaret Evans. To pass muster, such requirements must be legitimately related to employment needs, such as use of Spanish on the job, says Norris.

Age and Gender Issues

When it comes to gender, the law is clear: Paternalism and maternalism are out. Courts have struck down gender preferences based on safety concerns for women, concerns that their unborn children might be exposed to dangerous chemicals, and, as noted earlier, men generally being physically stronger than women.

Privacy continues to be one argument often winning ground for gender preferences. Courts have upheld the right of employers in intimate situations to use same-sex employees. John Knox Village, a retirement community in Jackson County, Mo., for example, allows customers to request that their attendants be a certain gender.

Age is rarely a valid basis for making employment distinctions, particularly for employees over 40, who have heightened statutory protection. As with gender, the question is whether a given individual can perform the job.

However, in rare cases, such as with pilots, courts have determined that age caps can be enforced, notes Peter Ebb, a partner at the Boston office of Ropes & Gray LLP. In EEOC v. Exxon Mobil Corp. (C.A. No 3:06-CV-1732-K (N.D. Tex. 2007)), a May 2007 decision denying a request from the U.S. Equal Em­ployment Opportunity Commission (EEOC) for a preliminary injunction against Exxon Mobil, a federal district court in Dallas determined that the EEOC was unlikely to be able to show that Exxon Mobil illegally discriminated by enforcing a mandatory retirement age of 60 against a corporate pilot. The court reasoned that pilot safety demands are important and accepted findings by the Federal Aviation Administration that because possible rapid physical decline in pilots is too difficult to measure or predict on an individual basis, age caps are valid.

Just months later in December, President Bush signed an act raising the mandatory retirement age for pilots to 65.

Another frequent age-based distinction occurs at the senior corporate level, says Norris, where companies may seek selection of a younger candidate to ensure corporate continuity. As an alternative, employers may require such employees to state how much longer they are willing to work at the company. Another prevalent course of action: awarding older employees lucrative golden parachutes to not contest the company’s move to install a younger leadership team, she says.

At the other end of the age spectrum, using a “cultural authenticity” tack could allow employers to indirectly prefer younger employees. A jewelry store serving hip-hop youths, for example, could probably test applicants to see if they know what “grill” means -- a removable metal jewelry mouthplate -- as a way of determining if the potential clerk would understand customers’ needs.

Where Faith Matters

Religion is a more solid basis for making upfront distinctions. Courts have upheld the right of employers affiliated with religious organizations to discriminate in favor of employees who hold such values if it is important to furthering the mission, Norris says.

Employers use common tactics for navigating religious-distinction issues, even if they lack a particular religious orientation. One: discriminating equally against all employees. GEHA’s Evans says the company long prided itself on its tolerance of religious diversity, including the right of groups to hold on-campus religious meetings and to post event information on boards. That tolerance ended in 1996, when some Satan-worshipping employees at GEHA thought their spiritual practices should be included, too, such as the right to build gruesome displays.

Says Evans: “You would have thought it was Halloween with all the witches and goblins.”

GEHA officials responded by banning all religious activities, she says.

Disability Protections

Disability discrimination has become a hot button. Unlike most other discrimination laws that merely require neutrality based on protected categories, the Americans with Disabilities Act requires affirmative efforts by employers to reasonably accommodate employees with disabilities if the workers can otherwise perform essential job functions. In practice, that can mean difficult judgment calls regarding acceptable levels of performance and how far to go in making accommodations, says Nancy Glube, a telecommunications industry human resource executive and a member of the Society for Human Resource Management’s Employee Relations Special Expertise Panel.

Some visually impaired employees need special equipment for their computer, for example, Glube says. Sometimes that can be done, and sometimes it is cost-prohibitive. “You have to be very careful what you tell the person when you reject a request, and [you need to] have legal counsel review it. And it needs to be reasonably prohibitive -- for a large company, a few thousand dollars is reasonable.” Also, she advises, seek consistency among decisions you have made on reasonable accommodation. While each situation is different, similar thinking and defensible assumptions should be applied.

The Public Image

Regardless of the legality of distinctions based on protected categories, the realities of fragile corporate images can mean that an employer can win court battles but lose the larger public-image war through negative publicity.

Employers should determine whether making the distinction is absolutely illegal, whether it is necessary for the business and whether less discriminatory means can be employed, says Ebb.

Examine whether miti­gating factors may make otherwise defensible distinctions unwise. What will you tell your employees should a legal battle ensue? Ebb says clearly laying out why actions were taken and why any distinctions were valid helps persuade employees that adverse employment actions were not unreasonable discrimination and helps defend the actions in any litigation.

“What you don’t say really can hurt you,” he advises.

The author is an attorney and freelance writer in Chevy Chase, Md.



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