HR Professionals have been told this for years. Had it hammered into our heads by lawyers, judges, government agencies, SHRM, you name it. Company policies must be clear, plain on their face, and draw “bright lines” that are inviolable. Practice regarding the policy should be objective in determination and faultlessly consistent in application. These best practices are the only sure path to perceptions of fairness and sharply reducing the risk of discrimination claims. That was then. It turns out the regimes in charge of the EEOC and NLRB apparently don’t care for this model anymore and would like us to change our practices and policies. Now.
Both agencies have, time and again, in recent rulings shown their distaste for hard and fast rules. A. Kevin Troutman of Fisher & Phillips writing for J.D. Supra details the litany:
- EEOC tackles criminal background checks and admonishes employers to avoid blanket application policy and instead take into consideration the individual aspects of the matter, such as severity of crime, passage of time, and applicability to the specific role involved. The agency sued both Dollar General and BMW to make their point.
- NLRB does not like social media policies at all. Is it ok for an employee to disparage on social media your company, managers by name, and use your logo without permission while doing it? Yep, just fine and dandy with the NLRB. Wait a minute, you are not unionized? Does not matter.
- EEOC takes a dim view of hard and fast non-FMLA leave rules, especially those tied to ADA. Wait a minute, you say, the ADA does not require leave. Correct, but numerous judges have ruled that leave or revised work schedules are valid means of reasonable accommodation. The ADA has always been about individual assessment and determination of reasonable accommodation. The agency now wants that to extend logic to extend to leave policies.
The fact is, I am all for individual assessment of facts and circumstances and have long wished for policies that were more directional in structure and less rigid. I believe that zero tolerance polices inevitably lead to zero judgment. And yes, this would lead to unequal application. What is fair for one individual may not be fair to another under similar circumstances. Outcomes may well be unequal, especially over time. The subjective would likely carry just as much weight, or more, than the objective. Such practices would be no less perfect than the current set.
So let’s say we move away from the bright lines. We become more circumspect about our policies and move to a high degree of consideration of individual circumstance. Surely we’d be given a pass by the agencies when the inevitable discrimination complaint makes its way to them, right? Wrong. Title VII did not go away, and if you think the agency desired practices will build a complainant’s prima facie case, I’d have to say you are right. Heads they win, tails we lose.