Tag: emplaw

Subtle Sex Discrimination

Although the “Mad Men” days of overt sex discrimination in the workplace are mostly past, women still experience a surprising amount of gender-based discrimination in many industries, from basic entry-level jobs up to high-powered Silicon Valley firms.

Examples at a recent trial regarding sexual harassment and sex discrimination at a major venture capital firm show exactly the kind of subtle, undercover discrimination many women are still likely to face today.  As one example, women at the company testified that they weren’t invited to events like a ski trip and a dinner party, while their male equivalents were, denying them the opportunity of bonding with and becoming better known to higher-up decision makers.  Others testified about being caught in a performance review trap: first their reviews gave negative assessments that they were too passive and didn’t speak up enough, but as soon as they did speak up and sought credit for their work like their male colleagues did, they were again negatively reviewed as pushy and entitled.

As a result of these subtle forms of discrimination, women weren’t considered equal candidates when assessed against their male colleagues, even by people who weren’t the original discriminators.  Why would you promote a woman you didn’t know and who had subtly negative performance reviews over a man you had gotten to know and liked over a company dinner and who had uniformly positive reviews?  To many decision-makers, you wouldn’t, further hurting the women in their positions within the company and their careers.

These kinds of subtle discrimination are still far too common in the American workforce and are just as illegal as the more traditional and overt kinds of discrimination.

“Invisible” Disabilities Merit Legal Protection

Employers of people with disabilities have a legal responsibility to work with their employees and try to accommodate their known disabilities.  This can be fairly simple and obvious: let the employee with the broken leg ride a scooter around the office, or give the employee with difficulty walking a parking space near the front door.

But what about when a disability isn’t so obvious or easy?  According to data from the federal Equal Employment Opportunity Commission, the most commonly cited conditions in disability discrimination cases between 2005 and 2010 were “invisible” conditions – ones not patently or visibly obvious to employers.  Perhaps an employee has fibromyalgia, and simple tasks like washing and blow-drying her hair utterly exhaust her and cause her pain.  Or consider an employee with Lyme disease, who shows no outward signs of his ailment other than seeming a little tired a lot of the time.

Companies still have an obligation to accommodate these employees, even though their disabilities aren’t obvious.  However, the employee has responsibilities, too.  If an employer does not know you need help, it should be obvious that they won’t know how to help you.

Although under California law you are never required to tell your employer a diagnosis, what an employee who needs accommodation can and should do is provide their employer with a list of ways they need help, or a list of restrictions from his or her doctor on what activities the employee can or cannot perform at work.  For instance, the employee with fibromyalgia might be benefitted by a limitation on how much weight she regularly lifts at work, to limit the pain and fatigue from physical activity.  An employee with lupus might need to ask for pre-approval of the occasional late arrival or day off to deal with flare-ups.  Or an employee with severe anxiety might be benefitted by telecommuting and working from home on a day when his or her anxiety is severe.

Unfortunately, it can be difficult for employees with non-obvious disabilities to be taken as seriously as other disabled employees.  Employers sometimes even doubt that the employee has a “real” disability, and may even refuse to accommodate or actually discriminate against the disabled employee.  Under the law, there is no difference between obvious and non-obvious disabilities, however, and an employer who refuses to accommodate any disabled employee is violating the law regardless of the kind of disability.