Q: I am a university professor looking to relocate to the west coast. In my search for another teaching position, I’ve noticed that several colleges have stated in job announcements that women and minorities are “encouraged” or even “especially encouraged” to apply. I thought that an applicant’s race and sex weren’t supposed to be considered by an employer in the hiring process. What’s going on?
A: Good question, Perplexed! As you know, federal law prohibits employment discrimination on the basis of race, color, religion, sex, or national origin. The law applies to all terms, conditions, and privileges or employment, including advertising and recruitment. So, generally speaking, job advertisements typically should not indicate a preference based on race, sex, or ethnicity. However, because members of groups that have been historically underrepresented in a particular profession may be deterred from applying unless they are encouraged to do so, such advertisements help employers attain greater diversity among their applicants. This type of diversification initiative could apply to anyone and really should not be considered preferential hiring. For example, if men are underrepresented in a hospital’s nursing department, it might be appropriate to “encourage” applications from them.
Q: My employee, Jane, has been leaving work frequently during the afternoon because she is sick. A few days ago, I heard from another employee that Jane has hepatitis. I do not want to pose a health risk to the other employees by ignoring this information. What should I do?
A: I can see your dilemma. Respecting an employee’s medical privacy rights is important, especially in light of the federal ADA and HIPPA laws, but concern for the well-being of your other employees is important too. In this particular situation, it makes sense to do a little research. Searching the National Institute of Health website shows that while certain forms of hepatitis have more serious health effects than others, all are very difficult to pass on to coworkers in a normal workplace setting. Possible exceptions in which more caution might be warranted would be in businesses involving food service or medical care. So, if you work in an office setting, asking Jane about her possible condition would likely be a violation of her privacy. However, if your workplace is a restaurant, and you feel it is necessary to speak with Jane, be sure to talk with her in a location where other employees will not overhear the conversation. Another option might be to reissue your company’s policy regarding contagious medical conditions. Or, perhaps tell Jane you’ve noted her absences and ask whether she is interested in taking FMLA leave. Maybe this will open the door for her to volunteer the information to you.
Last fiscal year, 61,331 charges of discrimination were filed with the EEOC.
(This article was originally published in the column Watercooler Counsel. It has been included here with minor updates.)