by Brad Cave

Q: Will I be in violation of federal discrimination laws if I provide an “English as a second language” (ESL) employee English language training at the company’s expense?

A Any possible discrimination charge under Title VII of the Civil Rights Act of 1964 would be based on national origin. The Equal Employment Opportunity Commission (EEOC) has promulgated express guidelines for employers with employees who don’t speak English as their primary language. The agency has recognized that employers sometimes have legitimate business reasons for basing employment decisions on linguistic characteristics, but because those characteristics are closely associated with national origin, you must be careful to ensure that the business reasons you rely on justify any burdens placed on employees because of their national origin.

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By Mark G. Jeffries

Q: If an employee asks for time off based on her religious beliefs, can I legally question her about her religion (e.g., what her religion is and why she needs time off)?

A: Yes, you may question an employee about her religious beliefs if you have an objective basis for questioning either the religious nature or the sincerity of the belief or practice. Title VII of the Civil Rights Act of 1964 requires employers to make reasonable accommodations for employees’ sincerely held religious beliefs unless the accommodation would cause an undue hardship on business operations. read more…

By Susan Hartmus Hiser

Q: Our company is considering implementing a policy that would make individuals who smoke ineligible for employment. In doing so, we would save a substantial amount of money on our insurance premiums. Can we do this? If so, how do we monitor employees who claim they have quit smoking?

A: Many industries are implementing or considering “no-smokers” policies. Basically, the premise is that insurance companies are lowering their premiums for companies that have policies prohibiting employees from smoking. However, these are not your typical “no-smoking- in-the-workplace” policies. These policies prohibit employees from smoking ― period, regardless of whether they’re on the job. In addition to lowering health insurance premiums, many employers argue that hiring smokers increases production costs because of smoke breaks and high absenteeism from smoking-related illnesses. read more…

By Robert P. Tinnin, Jr.

Q As a result of the economic downturn, we must lay off approximately half of our workforce. In considering whom we should select, it occurs to me that we could save the most money by laying off higher-salaried, nonmanagement employees. However, our higher-salaried employees tend to have the most seniority and therefore are among the older employees in our workforce. Do we have a problem if we use this strategy?

Free HRHero White Paper: Downsizing: Getting It Right from Termination to Engaging the Survivors

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Q:I have a couple of employees who just started using religious expressions (e.g., “God bless” and “Your friend in God”) in their e-mails. Another employee is offended by the e-mails and wants me to make them stop. Any words of wisdom?

A: In addition to prohibiting religious discrimination in the workplace, Title VII of the Civil Rights Act of 1964 imposes an affirmative duty to accommodate the religious beliefs and practices of your employees unless doing so constitutes harassment or poses an undue hardship on your business. Of course, you have the right to prohibit religious proselytizing in the workplace. However, simply signing e-mails with “God bless” or “Your friend in God,” while objectionable to some, doesn’t meet the definition of proselytizing or forcing a religious belief on others. Furthermore, undue hardship requires more than just proof that some workers complained of religious expressions in the workplace. The Equal Employment Opportunity Commission holds that undue hardship requires evidence that an individual’s religious expression was so severe and pervasive that it infringed on the rights of coworkers or caused a disruption of work.

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Employment law attorney Robert P. Tinnin, Jr. tackles the tough question of whether an employer can implement an”English-only” policy.

Q A couple moved to Taos, New Mexico, from Abilene, Texas, last summer and purchased a deteriorating old motel, hoping to rehab it as they’ve done with several other properties. According to news stories, the husband, Larry Whitten, immediately ordered workers at the motel to stop speaking Spanish and to use Anglo versions of their Spanish first names at work. Whitton’s action, as might be expected, caused an immediate uproar in some local circles, leading to statewide and national attention. What’s up with this guy? Can he get away with this?

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Employment law attorney Justin Pierce tackles the tough question of whether an employer should allow an employee to hang a “Happy Birthday, Jesus” sign in his office.

Q Last year at Christmas, one of our employees, we’ll call him “Bob,” put up a small sign in his office that read “Happy Birthday, Jesus.” A non- Christian employee was recently heard saying that he was offended by the sign last year and that if Bob puts it up again this year, he’s going to file a complaint. We figured it’s better to find out now how to react to an anticipated complaint that may come as a result of the sign. If Bob puts the sign up again, should we tell him to take it down? If not, what do we do if another employee complains about the sign?

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By Robert P. Tinnin, Jr.

Q: This morning I interviewed an applicant for a clerical position in our company. She appeared to be an attractive, personable young woman and was very engaging during the interview. However, I soon learned that “she” is really a “he,” at least anatomically. She told me she is preparing to undergo a sex-change operation but hasn’t yet done so, although she has adopted a female identity. She asked whether, if she were hired, she would be permitted to use the women’s restroom. Frankly, I was a bit taken aback and didn’t know how to respond. I told her I would have to check into the matter. If I hire her, would I have to let her use the women’s restroom? Couldn’t I avoid the issue altogether by simply not hiring her?

A: I would strongly suggest you not attempt to avoid the issue by refusing to hire her. Not hiring her would very likely expose your company to a charge of discrimination — and, potentially, a lawsuit with exposure to damages for emotional distress as well as attorneys’ fees and costs.

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As president of San Diego training firm Cross-Cultural Communications, Sondra Thiederman has spent the last 25 years helping companies create diversity programs that actually work. Author of the book, Making Diversity Work: Seven Steps for Defeating Bias in the Workplace, Thiederman’s clients include General Motors, Xerox, Pfizer Pharmaceuticals, Marriott Corp., American Express, and AT&T. We asked her to shed some light on the right and wrong ways to approach corporate diversity.

Q: You’ve spent 25 years helping companies improve diversity. How have you seen corporate diversity evolve in that time?
A: The biggest change has been in how the word “diversity” is defined. It no longer refers, as it once did, to just race and gender differences. It has been broadened, in most corporate settings, to encompass any ways in which individual human beings differ, including such elements as place of birth, personality, and work style.

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