We’re a fairly small company, so good working relationships are key for us. I think family entanglements in the workplace complicate things; can I legally impose a “no-spouse” rule? — Anonymous
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No-spouse rules may be restricted under many states’ fair employment laws on the grounds that they constitute marital status discrimination, unless they are justified by a legitimate business necessity. In California, the California Fair Employment and Housing Act prohibits discrimination in employment based on marital status. The Act also states that nothing in the Act affects the right of employers to reasonably regulate, for reasons of supervision, safety, security, or morale, the working of spouses in the same department, division, or facility, consistent with state and federal law. The Act applies to all employers with five or more employees.
In addition, depending on how they are written or applied, policies and practices that prohibit or restrict the employment or affect the transfer of certain employees because they are related to other employees may be discriminatory. On the flip side, policies favoring the hiring of relatives may also have a disparate impact on protected classes and should be carefully monitored to avoid such discrimination.
It may be easier for small companies such as yours to justify antinepotism rules on the basis of the simple need to avoid any potential conflict among employees. However, in larger organizations, more specific business reasons may be required to substantiate such a rule.
Rules against the hiring of a spouse, placing one spouse under the direct supervision of the other, or having both spouses in the same department can be justified most easily if:
- The rule does not discriminate on the basis of sex.
- The company can show a legitimate business justification for the rule, such as safety, supervision, security, or morale.
- The individuals involved are allowed to help make the decision regarding who will terminate or transfer, and the decisions are based on a gender-neutral factor, such as seniority.
Some companies apply their no-spouse rules to unmarried couples living together; others feel it is unfair to treat all romantically involved employees as married couples. The best solution may be to look at the impact of the relationship on the workplace. If it causes disruption, one member of the couple can be transferred in the same way as a spouse would under the no-spouse rule. Likewise, since California protects individuals based on sexual orientation, the no-spouse rule should be administered evenhandedly to same-sex as well as opposite-sex couples to avoid a charge of discrimination.
If you opt for an antinepotism policy, be sure it is based on a clearly defined business rationale. For example, if your concern is favoritism, your policy should be limited to prohibiting relatives from supervising one another. If your concern is integrity, your policy should be limited to prohibiting relatives from auditing one another. Be sure to consider any possible adverse impact because of race, color, religion, sex, national origin, age, sexual orientation, or disability if your policy favors or discourages the hiring of relatives. Employers should be prepared to offer a legitimate, business-related explanation for their antinepotism policy.