Diversity & Inclusion

Policies designed to protect employees may do more harm than good

by Jeremy M. Brenner

The law prohibits discrimination against employees and applicants based on a number of protected statuses. Employers often implement policies that are intended to benefit workers but actually cause illegal systemic discrimination. Unfortunately, no matter how genuine an employer’s good intentions are, they typically do not excuse it from discriminatory conduct. Read on to learn some of the pitfalls employers face when implementing seemingly neutral — or even beneficial — workplace policies.   Folder with the label Policies

Facts

New Prime, Inc., is an interstate trucking company that transports various commodities everywhere in the United States, Canada, and Mexico. New Prime has approximately 2,500 employees, more than 4,000 trucks, and about 6,700 drivers. The company’s drivers are both independent contractors and employees.

New Prime developed the Prime Student Driver School (PSDS) to assist with recruiting drivers. If an applicant does not have a commercial driver’s license (CDL), she may obtain a CDL by attending PSDS. The school begins with several days of on-site training that are required to obtain a CDL permit. Once an applicant obtains a permit, she drives over-the-road with an instructor for several weeks to meet the requirements for a CDL. If the student obtains a CDL, she becomes eligible for hire.

If a PSDS student is hired by New Prime, she is required to drive with a trainer for six months. Even new hires who already have CDLs but lack the requisite experience must drive with a trainer. Trainees may be on the road with trainers for six to eight weeks at a time. New hires who lack driving experience must drive 50,000 to 60,000 miles with a trainer before they can drive alone. Existing New Prime drivers volunteer to be instructors and trainers, and the company typically has 600 to 800 drivers who want to be trainers. In March 2012, New Prime had fewer than five female trainers.

In 2004, New Prime implemented a “same-sex trainer policy.” Under the policy, the company required all applicants who did not meet its experience requirement to obtain their over-the-road training with an instructor and/or trainer of the same gender unless they had a preexisting relationship with the instructor or trainer. Thus, female applicants would be assigned only to female instructors or trainers unless they had an existing relationship with a male instructor or trainer. Before the same-sex trainer policy was instituted, female applicants were placed with the first available instructor or trainer, regardless of gender. The policy was adopted after New Prime was involved in a sexual harassment lawsuit filed by three female driver trainees.

Because of the same-sex trainer policy, when a female applicant was ready to be assigned to a trainer or instructor, a female trainer or instructor had to be available. However, because of the limited availability of female instructors and trainers, New Prime placed female applicants on a “female waiting list” until a female instructor or trainer became available. The company did not have a waiting list for male applicants. The waiting period for female applicants could last for more than a year.

Deanna Clouse had been a team driver with a male driver for another company, and she had also worked as a trucking dispatcher. She had a Missouri Class B CDL, and she was licensed to operate commercial vehicles in Canada and Ohio. Nevertheless, she did not have a Missouri Class A CDL, which New Prime required.

Clouse applied for enrollment in PSDS so she could obtain a Class A CDL, and she was placed on the female waiting list. New Prime told her that she would be contacted when a female instructor or trainer was available, but she was told “not to hold her breath.” Clouse informed New Prime that she was willing to be trained by a male instructor, but the employer told her that was not permitted under its policy.

Approximately six months after she was placed on the waiting list, Clouse filed a sex discrimination charge with the Missouri Commission on Human Rights (MCHR). She alleged that (1) her application had been accepted, (2) she was not hired because she is female, (3) she could be trained only by a female, and (4) no female trainers were available. The MCHR transferred the case to the Equal Employment Opportunity Commission (EEOC), which filed a lawsuit against New Prime after conciliation (settlement negotiations) failed.

Pattern or practice discrimination

The law prohibits discrimination against employees and applicants based on a number of factors, including gender. Clouse alleged not only that she was a victim of gender discrimination but also that gender discrimination was New Prime’s “pattern or practice.”

To establish pattern or practice discrimination, an applicant must show that discrimination was the employer’s standard operating procedure as opposed to an isolated incident. A company’s standard operating procedure is discriminatory on its face if it results in a particular category of employees or applicants (e.g., females) being treated differently.

If a company’s standard operating procedure is discriminatory, the company can defend the policy by asserting that the protected status at issue is a bona fide occupational qualification (BFOQ). A BFOQ is a requirement that is reasonably necessary to the normal operation of a business. For example, an employer may assert that an otherwise protected characteristic is a BFOQ because of safety concerns. The company bears the burden of establishing that a requirement is a BFOQ.

Gender discrimination based on safety concerns is allowed only in narrow circumstances. Indeed, the safety exception is limited to positions in which applicants’ gender interferes with their ability to perform the job. Employers must consider whether an applicant’s gender will jeopardize the safety of other workers. For a BFOQ to apply, there must be more at stake than the applicant’s decision to weigh and accept the risks of employment.

Court’s decision

The court deemed New Prime’s same-sex trainer policy discriminatory. According to the court, the policy discriminated against females because it limited their opportunity to be trained. The policy created a waiting list for females, but there was no waiting list for males. Thus, the policy created an improper obstacle to training and employment for female drivers, and male drivers did not face such an obstacle. According to the court, the obstacle was not small because it could require women to remain on the waiting list for more than a year while men faced no delay.

In response to the court’s conclusion, New Prime asserted that its same- sex trainer policy was a BFOQ because it was based on safety and privacy concerns for the company’s female drivers. New Prime argued that it implemented the policy to provide its drivers privacy and to protect female drivers from unacceptable behavior, including harassment, assault, and rape. However, before implementing the rule, the employer already had a zero-tolerance policy on sexual harrassment, a complaint procedure for students and drivers, panic buttons on its satellite communications equipment, and a hotline employees could call for help. Moreover, New Prime admitted that gender does not interfere with employees’ ability to perform the truck driver job or be trained as a truck driver.

The court rejected New Prime’s argument that its same-sex trainer policy deserved BFOQ treatment. Instead, the court held that women who apply for positions at the company should be allowed to make their own decisions regarding employment in the trucking industry. According to the court, New Prime’s same-sex trainer policy not only created an obstacle for female applicants but also removed female applicants’ ability to make their own decisions regarding safety and privacy concerns they may encounter on the job.

Bottom line

This case offers several very important reminders for employers, especially when implementing new companywide policies and procedures:

  • Before implementing a new policy, always consider whether it will have the unintended effect of isolating a particular group of employees or applicants, such as females, for less favorable treatment.
  • Policies and procedures that treat employees or applicants of a protected status (e.g., gender, race, religion, and national origin) differently are permissible only in rare circumstances.
  • BFOQs (e.g., the ability to lift a certain amount of weight repetitively) must be directly related to an employee’s or applicant’s ability to perform the job in question.
  • The law presumes that employees and applicants are in the best position to make decisions about their personal safety and well-being and the inherent risks of a job or industry.

As always, if you are considering implementing a policy or procedure and are unsure whether it is permissible under the law or whether it will have the unintended effect of isolating employees or applicants based on their protected status, contact a qualified employment attorney for further analysis.

Jeremy M. Brenner is an attorney with Armstrong Teasdale LLP in St. Louis, Missouri. He may be contacted at jbrenner@armstrongteasdale.com.