what does “hiring manager” mean and other work terms you might not know

It’s been a while since I’ve talked about this, and I saw it come up a few times last week so figured it was a good time to revisit some work vocabulary stuff that sometimes confuses people.

1. A “hiring manager” isn’t the person in charge of all hiring

The hiring manager isn’t the person who manages all the hiring for an organization. The hiring manager is the person who will be your boss if you’re hired for the job. They manage a team or department or entire organization. For instance, if you’re applying for a job as a finance assistant, the finance director is probably the hiring manager.

2. If your job was eliminated, you weren’t fired.

If your job ends because your company is eliminating your position — because it’s cutting jobs or restructuring — that’s a layoff, not a firing. Firing generally means that you were let go because of your performance or behavior (not always, but usually). If you were actually laid off, say you were laid off, not fired. There’s a difference! (It works the other way too. Don’t say you were laid off if you were actually fired, at least not to anyone who may check up on that, like an interviewer.)

3. A “hostile workplace” doesn’t mean that people are hostile to you.

In a legal sense, a “hostile workplace” isn’t at all what it sounds like: It’s not about your boss or your coworkers creating a hostile environment for you by being jerks. The term refers to conduct that’s based on race, religion, sex (including pregnancy), national origin, age (40 or older), disability, or genetic information.

In the U.S., for a workplace to violate hostile workplace laws, the EEOC says that the hostile conduct — in addition to being based on the categories above  — “must be severe or pervasive enough to create a work environment that a reasonable person would consider intimidating, hostile, or abusive … Petty slights, annoyances, and isolated incidents (unless extremely serious) will not rise to the level of illegality.”

In other words, if your boss or your coworkers are intolerable jerks but it’s not based on your race, religion, sex, or other protected characteristic, that’s not illegal. Unwise and unkind, but not illegal.

4. If you were fired for reasons that are unfair but not illegal, that’s not “wrongful termination.” 

Legally speaking, wrongful termination means that you were fired for an illegal reason — such as because of your race or religion or for another reason forbidden by law (like taking legally protected FMLA leave or in retaliation for other legally protected activity).

5. Everyone is in a protected class.

People sometimes say things like, “So-and-so is in a protected class” or “we’re worried about firing him because he’s in a protected class.” But everyone is in a protected class. The law doesn’t just protect people of Race X or Gender Y; it bans discrimination based on race and gender, period (as well as religion, national origin, and the other classes I listed in #3). So both men and women are equally protected from discrimination based on gender, and all races are protected from race-based discrimination, not just some races, and so forth. The only exception to this is age, where federal age discrimination laws only apply to people 40 and up (although some states have set the age lower).

6. “Right to work” doesn’t mean “at will”

People often say “right to work” when they really mean “at-will.”

“At-will” employment means that your employer can fire you at any time, without warning, without having to establish just cause (as long as the reason doesn’t violate discrimination laws, or laws against retaliation for reporting discrimination or harassment), and that you can quit at any time without notice. Unless you have an employment contract, in the U.S. you’re considered an at-will employee (except for in Montana).

“Right to work” is a different thing, and refers to state laws saying that employees can’t be compelled to join a union or pay union dues as a condition of employment.

{ 283 comments… read them below or add one }

      1. Princess Consuela Banana Hammock

        The other confusion I often see is people using “right to work” as if they have an actual legal right to be employed. It’s a fairly misleading phrase.

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        1. Triumphant Fox

          I often hear “right to work” contrasted with “at will” and meaning its opposite – that employers have to establish more to fire employees than in an “at will” state. It seems like that’s not really the context of the term at all.

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          1. Emily Spinach

            Yup, it’s misleading on purpose, to mislead people into thinking unions are opposed to your “right” to work. Very annoying.

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      2. Wintermute

        This is probably a correction I make 9 times out of 10 either concept is mentioned at the legal advice forum I contribute to, because we cover quite a lot of labor law questions (labor law, dumb criminals being dumb, and basic landlord/tenant are 95% of what we do I’d say).

        It’s extremely common because some political parties are very interested in portraying it inaccurately because they think it will drum up more support for their position. In truth 49 of the States of the US have at-will employment and basically always (Only Montana does not), and about half are right-to-work and that’s recent.

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        1. JessaB

          And in almost all of the right to work states, worker’s conditions have gone down since implementation. Right to work is really an awful thing and is seriously deliberately obscured to make people who don’t understand it vote for something that hurts them.

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          1. Wintermute

            I’ve seen the obfuscation go both ways with people claiming “if they pass right to work your boss can fire you for no reason!” when that’s already the law thanks to at-will employment.

            I also think there’s room to argue it may hurt them on some level but on another it’s an important freedom and the people favoring it are arguing there are considerations greater than economic at play… but that’s a philosophical argument for another time.

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          2. REKnight

            “Right to work is really an awful thing”

            Yeah, it is an awful thing for me to have the RIGHT to work somewhere without being forced to fund organizations I disagree with, in some cases organizations that have had a racist history. https://law.justia.com/cases/federal/appellate-courts/F2/945/906/289607/
            I also have a BIG issue with the level of corruption in the trade unions in particular.

            I’ve worked Union jobs and Nonunion jobs. Some unions are better then others, and if someone freely chooses to join a union, I say good for them, but NO ONE should be FORCED to join a union. PERIOD.

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            1. TardyTardis

              However, if the union negotiates wages and conditions for you, they are due a fair share for their representation. See, the reason for that is because Federal law says that anyone at work in a place where there’s a union has to get the same wages and conditions as those in the union.

              Now, if the law was different, you would have people working minimum wage next to those with decent pay and benefits (because they were members of the unions). Certain people would dislike this, because then people would see real value in being a member of the union. As it is, there is a court case in the works that would allow people to freeload on the union’s work without paying any money at all (without changing the requirement for the union to represent everyone in the workplace) . This is intended to destroy unions, so *everyone* can get paid minimum wage with no benefits.

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              1. Quantum Mechanic

                The case in question only applies to government employee unions, and is a First Amendment question (i.e. is it First Amendment violation for the government to force government workers to give money to a union.) The theory under which the payments could be illegal doesn’t apply to private sector unions, where the First Amendment does not come into play.

                I agree that in the private sector a non-member should have to pay the union that portion of standard union dues which can be clearly tied to negotiation & representation (and only that). I haven’t decided how I come down in the government union case. On the one hand, I can see the fairness of having to pay the representation fee. On the other hand, I do not at all like the concept of the government being allowed to tell people they have to pay anything to a private entity (the union) to be able to work for the government.

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  1. Lil Fidget

    All good stuff! The only other group I’ve heard described as “in a protected class” are pregnant women. I think that is a specifically called out group, at least in some state laws (?).

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      1. Lil Fidget

        I think in some cases there are specific laws about the treatment of pregnant women that are distinct, like they must be allowed nursing rooms with locks – these are not applicable to all people with disabilities, and if the same laws go on to describe other protections, this seems to be a specifically protected subclass, although I’m just a lowly botanist so I’m probably wrong. I actually did wonder about the disabled also, whether is is accurate to describe the laws as creating a protected class of those who are disabled. I don’t know that “ability” is an equally protected group in the same way. Does anybody else know?

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        1. fposte

          The pumping law is an additional layer of complexity because it’s guaranteed through FLSA and applies only to non-exempt employees (and can be denied based on employer hardship, too).

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        2. Academic Addie

          Pregnant women don’t typically have access to nursing rooms, unless they are nursing from a previous birth. Pregnant and postpartum women are typically covered under the pregnancy discrimination act (ACLU has a great explainer here: https://www.aclu.org/know-your-rights/federal-law-and-pregnant-post-partum-and-breastfeeding-workers), which allows them as people who are undergoing short-term disability. Pregnancy related disabilities might cause someone to be covered under ADA during or after the pregnancy, like if you have gestational diabetes. The Affordable Care Act also modified the Fair Labor Standards Act, which is what governs access to lactation rooms for postpartum women. But that is more restrictive than you might think – companies with under 50 employees have exemptions from FLSA and I don’t know how that plays out, since all my employers since I’ve had kids have had many more than 50 employees.

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        3. Buffay the Vampire Layer

          Broadly speaking, disability protections are secured by the ADA and similar legislation, rather than legislation regarding workplace discrimination. The ADA covers employers in the sense that they have to accommodate a disability, but it also relates to disability access in all areas of life. Title VII, by contrast, identifies unlawful employment practices, which includes discrimination based on the protected classes of race, color, religion, sex, and national origin.
          So I think you’re right that “ability” would not be a protected group. But I don’t know for certain. It’s an interesting question.

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      2. fposte

        Federally, it’s protected under its own act, the Pregnancy Discrimination Act of 1978. My understanding is the ADA covers impairments from pregnancy but not pregnancy per se.

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        1. Lil Fidget

          To clarify, it came up because we were trying to fire a pregnant woman (for incompetence unrelated to her pregnancy) and reader, we fired her.

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      3. somekindathing

        Pregnancy, in and of itself, is not considered a disability. However, women can request accommodation for pregnancy-related conditions under the ADA. This can range from anything more frequent bathroom breaks to more severe conditions. As Academic Addie explains below, there’s also the Pregnancy Discrimination Act, which provides some additional protections.

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        1. Lil Fidget

          I guess I’m just not getting why this makes my original statement untrue. There is a special act that confers special protections for pregnant women. How are they not a “protected class” ? Does “protected class” have a specific legal meaning that relates to only certain laws, perhaps? I’m not trying to be a jerk, I am literally asking!

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          1. somekindathing

            It doesn’t make your statement untrue! Sorry if I gave that impression. Like fposte suggests, I was trying to clarify how pregnancy relates to the ADA. Laws regarding pregnancy, nursing, birth, and parenthood are a complex patchwork, unfortunately.

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          2. Wintermute

            “Protected class” has a specific legal definition yes. But it has TWO meanings.

            The first meaning is in the context only of the EEOA/EEOC: this is any class called out for protection specifically under that act.

            The second definition is any class granted special protections by ANY act, which isn’t just the EEOA but also the Civil Rights Act (1964), the Age Discrimination in Employment Act, the Equal Pay Act , the Civil Rights Act (1968), the Immigration Control and Reform Act, the Pregnancy Discrimination Act, the Rehabilitation Act and Americans with Disabilities Act, the Genetic Information Nondiscrimination Act, and so on.

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    1. CMart

      This isn’t strictly employment-related, but I’ve also heard the term “protected class” to refer to pregnant women a lot during discussions about the legalities of refusing to serve a pregnant woman alcohol.

      My understanding (as a career bartender) was that pregnant women are just “women” and denying service to someone based upon something like perceived pregnancy is refusing service based upon gender–which is unlawful.

      I’m not sure that’s perfectly accurate, but if it is does that concept also somewhat come into play with employment discrimination?

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      1. Lil Fidget

        FWIW I was also told the same thing as a bartender. You cannot refuse service to pregnant women. I’m going to guess that’s a different area than employment law though.

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        1. Legal Beagle

          Not an expert, but I’m guessing that would fall under sex discrimination. It’s not a matter of employment law because the customers are not employees; it’s a civil rights law issue.

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        2. Legal Beagle

          Sorry, didn’t read CMart’s comment closely enough! You’re right. Pregnancy discrimination at work (firing/penalizing someone because of pregnancy) is illegal under federal law and in many states. It’s a form of sex discrimination.

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      2. Wintermute

        “Protected Class” does have a meaning outside of employment law– generally it’s any inherent characteristic that has been traditionally burdened, and as a result of that the doctrine of strict scrutiny (the highest level of judicial skepticism and most stringent level of judicial review) applies to government restrictions on the basis of a protected class.

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    2. Noah

      Correct– special protections under the Pregnancy Discrimination Act. People with disabilities are also in a protected class that non-disabled people are not in.

      In many states, there are also other protected classes like this, most commonly bans on family status discrimination, which typically don’t ban discrimination based on all family statuses, but only some.

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  2. Marie B.

    I once worked at a company where there was a person in HR whose title was “Hiring Manager”. They were the one in charge of all things related to hiring, such as applications, scheduling interviews etc. and they oversaw the staff of the “Hiring Office”. If anyone else was referred to as the hiring manager by employees or job candidates the company bristled and they would be corrected. It was really weird. It wasn’t a small company either, it was a well known one. Everywhere else I have ever worked it has been like what Alison said.

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    1. Jadelyn

      That should’ve been called Recruiting Manager or some such. Super weird. What were you supposed to refer to the actual hiring managers as, then?

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    2. MissDissplaced

      I’ve heard & seen that before too! It was a long time ago when I was right out of high school. Some of the factories had a Personnel Office and when you would go in you could ask to speak to the Hiring Manager and/or fill out an application.
      I don’t remember it being called “Human Resources” back then, though I’m probably dating myself by saying so!

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    3. Teal

      People definitely assume that’s what it means, so I’m guessing the incorrect assumption led to the “hiring manager” becoming a real position.

      Applicants to a program I used to run ALWAYS wanted to speak to the “hiring manager” which was me, but they really meant “head of HR.” Who was a woman with different unrelated responsibilities.

      As the head of HR was transitioning out to a new company, she admitted that a LOT of my applicants had somehow found her contact info and she’d been deleting all their messages/emails without responding or even letting me know. Which actually explained a lot of the “no one ever got back to me” messages I’D been receiving.

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    1. Kate the Little Teapot

      1) My coworkers insult everyone daily – not a hostile workplace, your coworkers are jerks.
      2) My coworker forgot my pronouns or called me by my dead name once or twice – not a hostile workplace, your coworker is still trying to figure out trans people.
      3) My coworkers insult me, refuse to work on teams with me, and aggressively misgender me on a daily basis because I’m trans – hostile workplace. (I know someone who won this suit.)

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      1. TallTeapot

        So with #3, the guy who worked for the the boss who popped in his lunch and set small explosive devices off where he was working–that was not a hostile workplace, legally. (for more info on this gem, check out https://loweringthebar.net/2016/03/has-your-boss-ever.html. It was also in AAM)
        But the heterosexual guy who worked on an oil rig and was called ‘gay’ and threatened with anal rape by colleagues, and that behavior was known and not stopped by supervisors, that was a hostile workplace (Supreme court decision, Oncale vs. Sundown Offshore services) https://en.wikipedia.org/wiki/Oncale_v._Sundowner_Offshore_Services,_Inc.

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      2. moosetracks

        Wouldn’t that still be illegal because it’s harrassment / endangering the employee?

        Also, how blatant does discrimination have to be to qualify as a hostile work enviornment? I have a sexist coworker, but she’s not obvious about it (other than occasional comments)-
        especially since she tends toward being a bully in general, her behavior is just worse toward other women.

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        1. fposte

          Criminal harassment varies from jurisdiction to jurisdiction, but it usually involves threatening somebody’s safety. If you mean Katie’s #1, co-workers being insulting, that’s unlikely to meet the standard of criminal harassment.

          How bad it has to be for HWE is discussed below; the key words, as noted, are “severe” or “pervasive.” One mildly sexist employee who doesn’t have power over people would probably be a tough sell, but it would depend on the specifics.

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          1. moosetracks

            fposte- I was referring to the boss pooping in the lunch, etc., not Katie’s comment.

            Thanks for your answers, everyone!

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        2. Millennial Lawyer

          Hostile work environment is a specific kind of claim – doesn’t mean that there’s not harassment or discrimination of other types going on

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          1. Stranger than fiction

            Right, There’s Hostile and then there’s Toxic and then there’s just plain old Dysfunctional.

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        3. Alton

          It can definitely be illegal or fall under various civil torts without necessarily being related to discrimination (which is what “hostile workplace” refers to). But I think that’s difficult when it comes to things like determining wrongful termination because getting fired because you complained about your boss pooping in your lunchbox is not necessarily protected in the same way that getting fired because of your race is protected.

          However, a smart company would be careful about how it treats employees who might have a tort case against the them, and “my hearing was damaged because my boss pranked me with a bomb” is a potential tort case.

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          1. sap

            In many states it’s illegal to fire someone for complaining about illegal (i.e. criminal) behavior because of a “public interest,” but that’s not the same thing as hostile workplace.

            So, the pooping in the sandwich complaint could still be wrongful termination, but you couldn’t bring a *discrimination* suit. Wrongful termination can also cover stuff like whistleblowing, being fired for taking time off to vote/do jury duty (in states that protect that), etc; it’s a much larger blanket than just discrimination suits.

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            1. Princess Consuela Banana Hammock

              You’re right—if it’s whistleblower protection (which is what usually gets covered by the “speaking out in the public interest” claim), it’s a different legal terrain than hostile workplace claims, which live in the world of antidiscrimination law.

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      3. Wintermute

        ah, that is actually kind of a tough example because only a few states protect trans status. but otherwise yeah, you’re right.

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    2. Lil Fidget

      I mean, some people throw around the term hostile workplace, as in “my coworker is so mean to me, it’s a really hostile workplace and I want to quit” whereas legally, a hostile workplace is one where an employee is discriminated against based on race, gender, or one of the other specifically illegal factors.

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      1. Ask a Manager Post author

        One quick correction to that: It must be severe OR pervasive; it doesn’t need to be both.

        So it’s:
        discriminatory against a protected class + (severe OR pervasive)

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        1. Jesca

          I often have wondered what “severe” covered. As in, what is a good situation in which one incident is considered severe enough to qualify as hostile? Most of all I can think of would require pervasiveness. Does anyone have an example?

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          1. Winifred

            A noose on a person of color’s locker or tied to their car’s tailpipe, like happened to police officers up here in Mass.? That seems severe!

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            1. Lil Fidget

              Coworkers burning a cross on somebody’s lawn. There wouldn’t need to be a prior pattern of behavior there for a reasonable person to believe this was evidence of racism at play.

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              1. Jesca

                Ah ok. But does that mean that the employer themselves then is creating a hostile work environment? I mean if it happens once, and the employer then takes swift action against that person, then that wouldn’t be a hostile work environment. As far as I understand it, a hostile work environment requires the employer (who has the authority to stop the behavior) to actually not be stopping it or participating in it directly. In other words, an employee doing some egregious one time and then the employer firing that person does not equate to hostile work environment. If the employee did do something like you guys have mentioned above and the employer did nothing, then that would be hostile. But then does that one time COUPLED with the inaction of the employer then negate the need for pervasiveness? I would think so. Or if the owner did it themselves. Or if the owner encouraged it themselves.

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                1. fposte

                  Yes, the legal action is generally for when the employer hasn’t corrected, or hasn’t corrected sufficiently to compensate for the harm done to the employee.

                2. Princess Consuela Banana Hammock

                  Sometimes it’s enough for a manager to have been the bad actor. I saw a case involving a Hertz chain in which the manager and her husband terrorized an employee on the basis of his race. He complained to the regional manager and was ultimately fired for “performance” reasons, which he successfully rebutted.

                  The party that fails to do something doesn’t have to be the owner/CEO, but they do have to stand in the shoes of the employer and either (a) be aware and not take action; or (b) be the person engaging in the pervasive/severe and problematic behavior.

          2. Princess Consuela Banana Hammock

            The worst example I saw was a group of white coworkers who, in addition to yelling a number of extremely racist slurs and making threats, picked up a Black coworker, threw him in a compacting trash unit, and turned the compaction on while saying horrific things about whether Black people deserve to live, whether they were human or had feelings, etc. and told him they’d lynch him to take care of him like “they” used to do in the “good ol’ days.”

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              1. Princess Consuela Banana Hammock

                Unfortunately no criminal charges, but when the case was set for a trial, the ex-employer settled for a six-figure sum, an overhaul of its training, and laying off and rehiring all employees at that job site.

                I suspect they wanted to avoid the risk of punitive damages, which were almost guaranteed in light of their inaction. They had a long history of complaints about the racist behavior of that job site and its foreman, a tendency to hire and promote only white men (and an effort to “haze” POC to get them to quit), and knowledge that the guy was being treated poorly and called racial slurs for months before the final incident.

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      2. Triple Anon

        But, legally speaking, how do you tell if someone’s been an equal opportunity jerk or a discrimminatory jerk? Sometimes people are singled out for discrimminatory reasons, but clearly discrimminatory language isn’t used.

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        1. Lil Fidget

          Many a jerk has used this defense, in fact. You have to prove they do it more to women than to men, or that other people of color received similar treatment while non-POC people did not, for example.

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        2. Observer

          It can be hard, but in concept it’s pretty simple. How does your treatment as a victim compare to others in the office / employer?

          Say you get fired for coming in late to work one day. You’re not the receptionist, you do purchasing and AP and you are a woman of color. You’re pretty sure you got fired because of your race and gender, not because you came late, and the lateness is just a “pretext” (ie made up excuse). The court is going to look at what happens to people who are “similarly situated” (ie they have jobs similar to you). So, if there are another two people doing the same job who came late you would look at how they get punished. You might also be able to bring treatment of someone who might be expected to be treated more severely, as well. So, if the blond haired, blue eyed receptionist gets a slap on the wrist for coming late, that would be a good indicator that your firing was about your race. On the other hand, if the roles were reversed and you were the receptionist and Blondie was the purchasing and AP person, the fact that she didn’t get fired would not be a good proof, because there is an obvious non-discriminatory reason for the difference.

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          1. synchrojo

            There was an interesting case I was reading about recently where a complicated version of this issue came up– that is, what happens when the entity being accused of discrimination doesn’t employ anyone who is similarly situated but not part of the protected class?

            In the case, a female firefighter was claiming discrimination on the basis of gender and sexual orientation (gender being a protected class, but sexual orientation not in that particular jurisdiction) she won at trial, but the city appealed, and argued, in part, that she was “required to have presented evidence at trial of a comparative class of gay male firefighters who were not discriminated against” to prove that she was being discriminated against on the basis of gender, not solely on the basis of sexual orientation. The appellate court, in its decision upholding the trial verdict, wisely pointed how ridiculous it would be to allow the city freedom to discriminate against lesbians as long as they also discriminated against gay men by not hiring any. The whole opinion is a fascinating and infuriating (because of how blatant the harassment and discrimination was) read– search for Franchina v City of Providence.

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        3. zora

          Well, it can be hard to tell, so, frankly, if I thought it was a reasonable possibility that it was discriminatory, I would call the EEOC at that point. And let them sort out through their own investigation which side of the line it was on.

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    3. The Person from the Resume

      Not a hostile workplace:
      On the first day, you parked in the queen bee’s parking spot and she and all the other mean girls have made your work life miserable ever sense.

      Hostile workplace:
      You’re the only man in an office and your colleagues refuse to train you or interact with you as their job duties require (because you are a man).

      Reply
    4. Wintermute

      My co-worker is rude to everyone– not a hostile workplace in the legal sense, it’s not targeted at a protected class or pervasive or severe.

      Everyone here is awful to everyone– still not a hostile workplace, in a legal sense, just an awful place to work because it’s not targeted.

      My boss is rude and demeaning to everyone that doesn’t have a college degree– educational status is not a protected class, so it’s not legally hostile

      ((this is where people get confused, a workplace can be hostile in the conventional sense of the word without being legally hostile))

      My co-workers hang up suggestive pictures on their locker walls– this MAY be if the conduct is pervasive and there is no attempt from management to stop the situation.

      My boss gave me a quid-pro-quo that if I wanted a promotion I’d perform a sex act– even though this is not ongoing and continual, quid-pro-quo demands are considered “aggravated and severe” because you’re not going to be turned down for a promotion on an ongoing basis, the single occurrence is enough to prove sex discrimination.

      Three different people have been fired for using racial slurs around here!– If your employer is making a good-faith effort to stop the harassment the actions of individual bad actors are not their responsibility, as long as the efforts are meaningful and in good faith. Training, posted policies, policy refreshers, actual adverse employment action including putting people on probation or terminating their employment all can be taken as signs of good faith effort.

      Sometimes things go the OTHER way too, things that ARE a problem but many people don’t think would be:

      My African-American coworker makes disparaging comments about my (also African-American) features because I am a lighter skin shade than he is– skin color discrimination can occur even from someone considered traditionally “more disadvantaged” towards someone “less disadvantaged”, it is the fact that the discrimination is based on your skin color is what matters. This was an actual case, in fact, but I was struggling to come up with a way to describe it that didn’t involve quoting the racial epithets used so I just summarized broadly.

      My boss, a woman, makes comments about my dress being too feminine– this is a complicated set of expectations to unpack. First, yes, women can sex discriminate against other women. Second, gender expression is considered part of sex discrimination (though gender-disparate dress codes that require makeup, heels, hose, or skirts for women but not men are NOT illegal for some frankly baffling reason), so policing whether you are “feminine enough” or “too feminine” is sex discrimination. Third, discrimination is ANY differential treatment, saying you’re a traitor to feminism for being too feminine is just as discriminatory as making comments about someone being insufficiently feminine for their sex.

      Women are exempted from late-night garbage duty because our unlit back alleyway to the dumpsters is potentially dangerous– The “rational basis” for discrimination does not matter, it is still discriminatory. Any policy that makes assumptions on the basis of gender is highly suspect. The ONLY exception is instances where gender is an essential characteristic of the employee duty or for legal protection (prohibiting cross-gender body searches for instance, or requiring an observer whenever opposite-gender care providers are providing medical care of an intimate nature like bathing, catheter maintenance, bowel care, etc), or differences in job duty requirements are necessary DUE TO gender (Requiring women to prop open the door and place a “closed for cleaning” sign when cleaning mens’ bathrooms where a man would not have to, for instance, and vice versa). The facially neutral way to address a dangerous alleyway would be to require all employees to travel in pairs, prohibit garbage disposal after dark, install lighting, or provide a security guard.

      I have a client that makes remarks of a sexual nature whenever we interact– It’s not just your co-workers and boss your employer has to protect you from, clients, customers, vendors, everyone you interact with because of your work.

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  3. Kate the Little Teapot

    Hi! Question relevant to #2 that I hope someone can answer –

    My company is conducting a reorg by having 22 of us “at risk of redundancy” and then having us apply for new roles. Having said that, I am not sure I want the new role although I’ve applied.

    Two hypothetical scenarios that I’m interested in:

    If I get an offer and then turn down the new role, am I still laid off, would I qualify for unemployment? Or would I be seen as quitting and get nothing?

    If I decline the offer or they don’t make an offer, and it’s because I accept a role at another company that I wouldn’t have applied for except for the fact that they are making me redundant, am I within my rights to ask to get a redundancy payout or would you expect that one would be offered?

    Has anyone dealt with this situation?

    Reply
    1. Bea

      Unemployment benefits differ depending on the state. But in my experience if they offer you another role and you turn it down they could deny benefits. However this depends on how closely it is to your current role. If you are offered a janitorial role when you’ve been a sales rep, then that’s a huge difference and benefits should be paid.

      Reply
      1. Stranger than fiction

        I believe the company can still approve the employees’ benefits if they choose to though. And it’ll be on your paperwork you sign after turning down the role whether or not you’ll qualify. I’ve known a couple of people who “resigned” on paper but in reality were asked to resign and in return they allowed them to claim unemployment.

        Reply
        1. LQ

          Sorry this is late but hopefully helpful. I don’t believe that in any state the employer has the right to decide if someone gets benefits or not. They can not object when someone files for benefits, but it isn’t the employer who makes the decision, there is some kind of a government body that makes that decision (based on the laws of your state).
          Those people might have told the unemployment that they were laid off and then the employer didn’t raise any legal objection so it would be hard for unemployment to know otherwise. But the employer doesn’t decide. (This might sound like a small difference but it is important to know your employer doesn’t get to decide if you get benefits, you can file, they can’t take away your right to do that (because it is a legal thing as a citizen, which is different from as an employee) not even if you agree to it. They can misfile, lie, be unclear, have you classified as a contractor when you are an employee or lots of other things, but you can still file.)

          Reply
    2. RML

      At my previous company we had a year’s notice about our layoffs (they were doing the cuts globally and some countries had different laws than others so they just gave us all the same notice period). A lot of people didn’t want to deal with the uncertainty so they went ahead and found new jobs and left before their assigned last day, forfeiting their severance packages and unemployment. We were only eligible for the payout package if we stayed through the end of our last scheduled day, defined by the company (they did our layoffs in waves so we had staggered last days).

      Our paperwork also included a section about how if we were offered “comparable” employment elsewhere in the company and declined it, our layoff would be recategorized as voluntary resignation and we’d forfeit our severance and unemployment. They refused to define comparable in writing, likely because they wanted to be able to call anything they wanted ‘comparable’ and give us pay cuts.

      I’d worked there so long and was so ready to leave, and wanted to use my severance as a down payment for my house so I told every manager I knew “don’t you DARE make me an offer, I want the layoff and will never forgive anyone who tries to keep me here.” :)

      Reply
    3. HR Expat

      1) This one is tricky. If you receive an offer and decline it, my company would consider that a voluntary resignation in the US and you would not be eligible for any severance. That could be different in other countries, though. I haven’t come across this situation in the UK, but I think you would still be owed statutory redundancy pay at assuming you have the required service time.

      2) Generally, you’re not going to receive any severance or redundancy payments if you resign or leave before the effective date of the redundancy/layoff. But you can get around that by arranging your start date with your new employer to be after the date you’re redundant.

      Reply
      1. Kate the Little Teapot

        Thanks so much! You’ve guessed correctly from my language that my company is UK based and I am US based – I am salaried and paid through a payroll agent company in the US, so generally US laws apply to me.

        Reply
        1. HR Expat

          It was the “at risk of redundancy” that gave it away :)

          You might get lucky and they’ll pay you severance if you decline. European companies are usually more generous than US ones, sometimes because of culture and sometimes because of laws. They’re baffled by the lack of employment laws in the US.

          Reply
        2. Bagpuss

          In the UK, if you are offered a suitable alternative position and turn it down, you would normally not then be entitled to a redundancy payment because you have chosen not to accept the available employment. It would not normally affect your rights to claim unemployment benefits.

          If you are offered a job elsewhere you are still entitled to your redundancy payment because your role has become redundant and you’re no longer employed there. There are some very specific areas where this doesn’t apply, but they mainly relate to some public service jobs (mostly local government) and while you lose your redundancy payment you keep all your employment protection / length of service etc as you are effectively treated as having never left.

          However, this would only apply of thy are working by UK rules even for US employees.

          Reply
    4. Wintermute

      If the new role is substantially different or amounts to a large difference in working conditions, hours or especially pay, it MAY (and that is the key word) be called “constructive discharge”– that area is highly fact-dependent and you’d be best-served spending the 50 bucks for a half hour of a lawyer’s time to get a fact-dependent opinion from an expert in labor law and your state’s laws with reference to the exact specifics of your particular situation.

      Constructive discharge means you would be eligible for unemployment.

      Reply
    5. Triple Anon

      I have heard of that situation. A company I worked for did something similar after I left. They changed the job description for a bunch of roles and had people reapply for their own jobs. For example, Teapot Painters now needed to have experience with Photoshop and if they didn’t, they would lose their job to an external candidate. I heard it was a mess and a lot of concerns were raised, but I don’t know anything more specific.

      Reply
    1. Augusta Sugarbean

      Me, too. A Finance Manager is in charge of finance. And HR Manager is in charge of HR. Why isn’t a Hiring Manager in charge of hiring. Weird.

      Reply
      1. Undine

        They’re not a Manager of Hiring. They are a manager-who-is-hiring. This is because the same word, “hiring”, is used for several different parts of speech in English.

        Reply
        1. Augusta Sugarbean

          Yes, I know that is how it’s used and I’m aware that a single word can be used differently in different contexts, thanks. I’m saying it isn’t intuitive to me.

          Reply
        2. Wintermute

          I can only wonder what you’d call the manager who is hiring managers who hire. A Hiring Hiring manager hiring manager?

          Reply
      2. Countess Boochie Flagrante

        Usually because the manager who needs a new report is the one driving the hiring process, doing the interviewing, so forth.

        Reply
    2. Legal Beagle

      Yeah, I recently interviewed at a company where the Hiring Manager was my main point of contact, and she was in HR, not in the department I was interviewing for. The department supervisor was the VP of Teapot Spouts. I’m guessing this can vary among companies/fields.

      Reply
    3. Noah

      Not at any of the three law firms I’ve worked at. That person has been called the “recruiting partner” or “lateral hiring partner.” The “hiring partner” has always referred to the person in the particular practice group who wants to hire the person.

      Reply
      1. lawyer

        Definitely called the hiring partner at the firms I’ve worked at. We didn’t have a term for the partner that was trying to have someone hired.

        Reply
  4. Afghan Wig

    So what do I say if the employer created a position, hired me, and then decided to eliminate the position BASED on my performance? Basically, I was brought in for a new role under super high expectations and didn’t meet them, so they decided they’d go back to not doing what I’d done. It was sort of a half restructuring/half firing. It’s always pretty awkward to explain that one.

    Reply
    1. Lefty

      Are you getting references from this prior company? If so, how would your previous employer answer it? If you think they would say that the role was eliminated due to restructuring, I’d go with that. If they’d say the role was eliminated due to performance, I think that might mean the firing option sticks…

      Reply
    2. Sled Dog Mama

      I had the same thing happen to me early in my career, I was hired to do be the vacation coverage person for 17 people across 6 sites. It did not go well. I have always just said my position was eliminated because it’s true.

      Reply
    3. Bea

      Did you get unemployment? If you did, they categorized it as a layoff most likely. I would say the position was eliminated, that’s not wrong and is usually not investigated much unless you live a life where all your previous jobs seemed to restructure and eliminate the job you were doing.

      Reply
      1. Sled Dog Mama

        I did get unemployment, and have gotten references from the company. In fact I went back to work for that company for 3 years not too much later.

        Reply
        1. Bea

          Then you were just reassigned and I wouldn’t classify it as a firing. They probably didn’t have a good idea of what the new position and expectations would be. So they didn’t have any problem with you or your skills, they like you, just a bad trial run of that job description!

          Reply
      2. Stranger than fiction

        You still get unemployment even if you were fired for performance. It usually has to be a firing for misconduct that you can’t get unemployment benefits. (Or maybe that’s a CA thing)

        Reply
        1. Bea

          Yeah in other states if you’re fired you’re rarely granted unemployment. You should always file but they can fight the charges if they fired you for being unable to perform to their standards.

          Reply
          1. De Minimis

            I’d heard that the standard for this is more of less the same across most states, but it’s possible that other states have a stricter definition of misconduct. I think in general, though, if you’re hired for a job and it doesn’t work out [you just don’t have aptitude for it or whatever] you usually would get unemployment.

            Even California gives an example where they denied benefits because the employee had done well at the job in the past and appeared to deliberately be performing below standard in order to be fired and collect unemployment.

            Reply
    4. Lora

      The role changed significantly and was no longer a good fit. Sounds like, anyways: your employer didn’t know what they wanted, only that they wanted someone, realized they needed a whole different structure for doing whatever it was you were supposed to do for them.

      Reply
  5. Seeker

    So if you were fired, how can you bring it up in an interview without having it significantly impact your chances of getting the job?

    I understand that people sometimes get fired because they simply had a job that was the wrong fit, are still genuinely good workers, and shouldn’t be docked for this while trying to find a new job. Unfortunately, it seems like a firing would sound bad no matter how you put it. I don’t know how many hiring managers would hire a person who admitted to having been fired from a previous job.

    Reply
    1. Kate the Little Teapot

      Allison’s covered this! I’m not sure if posting links here will get caught in spam filters, but it was in US News & World Report and the article title was “In a Job Interview, How to Explain You Were Fired.”

      Reply
      1. Antilles

        FYI, you can post links, but they get auto-flagged to go through the moderation process before the comment shows up. So after you put up a post with a link in it, the comment with the link won’t show up until after Alison reviews it and makes sure it’s something reasonable and not some spammy trash about HOT NEW JOBS or whatever.

        Reply
    2. SarahTheEntwife

      If someone was fired from a job that was very similar to the one I was hiring for, I’d be very skeptical (though there are always possible extenuating circumstances), but if the answer is “I couldn’t learn llama grooming as fast as they needed me to, and I discovered in the process that what I really excel at is llama sales, which is why I’m applying for this sales position” that’s a totally different situation.

      Reply
    3. Lorna D

      Yes I’m curious about this as well. I was fired from a job for refusing to exploit contacts of mine at my previous company and for not doing things I considered very shady (I was told to never contact anyone with a non-white -sounding name because we didn’t want to waste the time if they turned out to not be citizens. I was told to call programmers at 6:30 in the morning to try and get them to quit their jobs and take up contracts we were trying to fill, when they weren’t expecting a call from us at all. I was told to hunt down and contact a candidate’s wife when he didn’t respond to our inquiries to tell her about the position and ask her to pass it on so he’d contact us). I pushed back on these things and was let go as a result. This was in the job before the job I have now who for some reason didn’t ask why I’d left my last job. I plan on beginning job searching due to company changes and am not comfortable using my current manager as a reference because I’m not passing along that I’m job searching, leaving my current manager as do not contact and my previous manager as someone having fired me. It’s a very tough spot to be in/describe to prospective employers.

      Reply
      1. Jennifer Thneed

        Six-thirty in the MORNING? I do not respond well to people who call me that early and it’s not a medical emergency. I tend to answer the phone like this: “It’s 6:30 in the morning” with a very flat tone, and then wait to hear what they have to say.

        Reply
    4. Antilles

      I don’t know how many hiring managers would hire a person who admitted to having been fired from a previous job.
      Whatever the number is, it’s far higher than the number of managers who would hire a person who they learned *lied* about it, that’s for sure.
      Kidding aside, it really depends on the reason. If you were fired because the role was a poor fit* or it included components which aren’t part of your skill set*, or you refused to do something unethical/illegal, that probably won’t be held too much against you.
      *Assuming of course that the job you’re applying for doesn’t have the same characteristics as the one you failed at – if you’re saying that the reason for your firing was poor sales numbers because you just aren’t comfortable with pushing product, you better not be applying for a job as a cold-caller.

      Reply
      1. paul

        How do you square that with the general advice not to talk bad about former employers?

        Like, is it OK to say “I was told to do something I felt was unethical and I declined; I was terminated shortly after”?

        Reply
        1. Eliza

          In general, if you can stick to the facts and sound like you’re explaining rather than venting, it’s okay. The trick is knowing the right amount of detail to give, which depends on the circumstances.

          Reply
          1. Stranger than fiction

            Yes, exactly. It takes some finesse for sure, but generally you don’t want to sound angry and bitter and call your ex employer names, but rather just be calm and matter of fact about it.

            Reply
        2. Countess Boochie Flagrante

          Pretty much like that. The point is more about not airing dirty laundry or bringing drama. So rather than saying that you 100% can’t ever say anything negative, it’s better to say that you should be very calm and factual.

          Okay: “I was asked to do something that seemed unethical. Because I refused to do it, I was terminated.”
          Not okay: “My manager asked me to tell him about all block trades before I placed them — I’m pretty sure he was front-running! That’s totally not cool, and when I told him that, he told me to get out of his sight! Can you believe?”

          Reply
    5. Bea

      It’s a dance. You need to carefully create the narrative of why the separation was made.

      See, I found a new job before they could fire me. I get the question “why did you leave?” from all applications and interviews. I tell them our styles and goals didn’t line up, I make sure to never disrespect or bad mouth the company, I launch into “my background is in safety and protecting our most valuable assets, our workers.” explain that I’ve handled workers comp claims and taken safety courses bleh bleh bleh. Read between the lines you can see the last place wanted me to put men on the floor after slapping a bandaid on their huge festering wound. I’m supposed to assume a guy is lying if he says XYZ makes him physically uncomfortable, etc.

      I am only curious most of the time and know lots of people are fired because of a BS reason. We’re well aware some companies are terrible and shady. I’ve seen it all in my 15 yr career from embezzlement to being fired for not being the right personality.

      Reply
    6. t

      I have been fired and gotten another good, stable job in my field. I have also hired people who had been fired from previous jobs and they turned out to be good workers.

      A good hiring manager isn’t going to turn down a candidate just because they got fired once. The details of their whole work history and the reason for the firing definitely play a role as well.

      Reply
  6. Catherine

    #5 How does discrimination based on race intersect with affirmative action? If an organization determines that one race is underrepresented in the organization, and decides only to hire someone of that race, does that fall under affirmative action? How is that not discrimination against someone of another race? A little embarassed how little I know about this!

    Reply
    1. Natalie

      It’s pretty simple, actually – that type of affirmative action isn’t allowed either. Despite a lot of pervasive cultural myths about “diversity hires” and so forth, it’s not generally an actual phenomenon.

      College admissions are one place I’m aware of where affirmative action can and does exist, but of course college admissions aren’t analogous to hiring in many other areas. Except in the Simpsons when Mr. Burns hired all those baseball players to be on the company softball team.

      Reply
      1. TallTeapot

        Except in some states (Michigan, for example), where state law prohibits the consideration of race in college admissions. I do believe that federal contracts–a certain % of federal contract have to go to minority-owned businesses. But I’m not 100% certain on the particulars there.

        Reply
        1. Natalie

          True, college admissions will vary by state. And it sounds like a company is allowed to have an actual robust affirmative action program, as well, but they can’t just decide “for this job we will only hire a Raelian because I think we should”.

          Reply
      2. Catherine

        Thanks. Love the Simpsons reference! I wonder if colleges are the exception to the rule, generally. The example I gave (only willing to hire a professor of a specific race) was when I worked at a University. I was also thinking about when students demand that a University hire x number of faculty, psychologists, adminstrators of x race, how that plays out, practically.

        Reply
      3. Danger: Gumption Ahead

        Indian Health Services has preferential hiring for tribal members, but it is more like a veteran’s preference. A leg up, but not enough to make up for no skills. It is legal for that agency to do it, but I don’t know enough about it to know why

        Reply
        1. The Person from the Resume

          Note: The IHS and VA are federal government too which often exempts itself from some laws or in this example making laws that giving preference to people which is supposed to have a positive effect for the nation.

          Reply
        2. Princess Consuela Banana Hammock

          That’s not a racial preference, though. Being a member of a federally recognized tribe is considered a political identity and an agreement between sovereign nations, not a racial identity.

          Reply
      4. Millennial Lawyer

        College admissions using affirmative action has a long string of Supreme Court cases and isn’t as clear cut as one thinks. It’s allowed but has to be “holistic” and “narrowly tailored” for example. Nothing too mechanized. That is still controversial.

        Reply
        1. Natalie

          Absolutely, I didn’t mean to oversimplify the college aspect, I just wanted to mention that it exists because it’s been news for the past decade at least!

          Reply
    2. fposte

      I think this gets pretty legally intricate, but I think the way to think of it conceptually is this: if a workplace is under-diverse, that’s usually a sign that discrimination has existed at some level of the hiring process. Affirmative action is a corrective to that prior discrimination.

      Reply
      1. Catherine

        In many cases, yes, but also, unfortunately sometimes the discrimination or lack of opportunity happens way before the hiring process. It might be that fewer people of one gender or race are encouraged to study an area, or have the means to pursue those opportunities.

        Reply
    3. Kate the Little Teapot

      Here are the criteria for affirmative action not to be discriminatory:

      The affirmative action program is based upon creating diversity in the workplace;
      Race is used as one of many factors in consideration, not the sole factor;
      There is an individualized assessment of each candidate;
      There is no set-aside of openings for individuals of a certain racial or ethnic background.
      The use of race is limited in duration and will cease when a “critical mass” of minority employees is reached.

      Reply
    4. Lora

      Hoping someone else chimes in because I get the “how can we get more women into STEM?” question often, and honestly I don’t think it’s responsible of me to encourage anyone to go into a job where they will be routinely discriminated against and treated poorly. I mean, if you just LOVE that job and can’t imagine doing anything else ever, okay, I guess if you must, but you’re going to be working around a lot of prejudiced jerks.

      How can you get more women and people of color into a job? For starters, make sure the gatekeepers to the job (usually not so much HR but hiring managers) aren’t racist / sexist themselves and preferring to hire only alumni from their schools or only hiring from their network. That goes a long way. Also being welcoming to everybody instead of allowing a clique type of culture to happen is helpful.

      Promoting people based on clear performance based criteria, also good: I know a lot of women and people of color who quit when they realized that no matter how many times they sold the most (whatever) for the month or how big and important their projects were, they were never going to be promoted like the white man whose performance was mediocre but he went out to lunch with the boss every week.

      Note that these things are helpful for creating a good corporate culture across the board, not just for encouraging diversity.

      Reply
      1. medium of ballpoint

        One thing that always catches my eye is a simple statement about valuing diversity and encouraging candidates from underrepresented groups to apply. I’ve applied to jobs I wouldn’t have applied to otherwise when I’ve seen something like that.

        Reply
    5. Green

      This is one type of “affirmative action” that is done at my company: every succession plan or hiring group needs to include some people who are diverse, although there is no quota or requirement that there be someone from X race or Y gender.

      Boss: “Go out and bring me the 5 best candidates for this internal promotion.”
      ::5 white cis-male hetero candidates without disabilities::
      Boss: “This is not reflective of our workplace. Are you sure that the 5 best candidates don’t include any women, people of color, LGBT people, etc.?”
      ::5 white cis-male hetero candidates without disabilities + 2-3 additional candidates from diverse groups are considered::
      Any of the 7-8 may get the job, however, and if the best candidate is one of the white males, he would get the job.

      The candidate pool *for consideration* is broadened, and we do unconscious bias training (people tend to pick people who are like themselves), but nobody gets job X or promotion X because they are black, female, gay, etc.

      Reply
      1. Jennifer Thneed

        > needs to include some people who are diverse

        Pet peeve: individual people are not “diverse”. Only groups of people can be diverse. (I know we’re not supposed to nitpick word choices, but this one just gets in my craw so hard. It’s not difficult to say “people who are members of minorities”, but it does take more time.)

        Reply
    6. Millennial Lawyer

      So, it’s complicated/grey area. Also, most places do not have an “affirmative action” program – just equal employment policies.

      Title VII allows voluntary, race-conscious affirmative action plans when (1) preferences are intended to eliminate racial imbalance in historically segregated job categories (2) won’t cause replacement, termination or bar advancement of nonminority candidates/employees (3) preferences are temporary. Workplaces have also used Supreme Court education affirmative action cases as a guideline even though it’s not necessarily applicable – Grutter v. Bollinger tells us that there’s a compelling state interest in looking at race for diversity purposes but it must be *narrowly tailored* – essentially the affirmative action program must be flexible enough so that race/ethnicity is not the defining feature and it’s a more holistic look. Gratz v. Bollinger found that a point system that awarded admission “points” to underrepresented groups was too mechanized and unconstitutional.

      Reply
    7. LBK

      That isn’t how affirmative action works – the idea that it imposes specific quotas is a myth. Instead, it encourages you to engage in hiring practices that will naturally create a diverse candidate pool, which in turn will (or at least should) create a diverse workforce. So, for instance, if your entry-level jobs only seem to be attracting white applicants via Indeed or LinkedIn or wherever you’re posting them, maybe you find a job fair in a majority POC neighborhood to participate in.

      You still hire the best person for the job out of the applicants you get, but the odds that that person will be a POC increase if you’re ensuring that they’re fairly represented in the hiring pool to begin with. Although I did read a study a while back that minorities need to be overrepresented in hiring pools in order to actually be hired at proportional rates. The study was specifically looking at men vs women – when the resumes were distributed 50/50 men/women, the study subjects still chose men the majority of the time. It wasn’t until the distribution of resumes was 2/3 women, 1/3 men that the subjects chose men and women an equal amount of the time.

      Reply
      1. A Bag of Jedi Mind Tricks

        Question. On the application where it ask you to identify your race–what, exactly, is the purpose of this? If I refuse to identify, does that diminish my chances of my application being considered?

        Reply
        1. Countess Boochie Flagrante

          No. Those sections of applications are used for statistical purposes, and are usually separated from the part of the application that actually goes to the folks doing the hiring. It’s a way to track the information that LBK is talking about — okay, what % of disabled/minority/etc applicants do we have, versus what % do we hire?

          Reply
        2. Princess Consuela Banana Hammock

          Those sections are nearly always used for statistical purposes. For example, I attended the University of California after the passage of Proposition 209 (which banned affirmative action in all state programs, including college admissions). I still filled out a demographic survey. At the admission level, the demographic survey is removed from your admission packet and not viewed by any admission officers. It goes to a different department, which processes numbers because we’re required to report our demographic statistics to the Regents and State, including the composition of the applicant pool vs. the composition of the acceptance pool.

          Reply
      2. Princess Consuela Banana Hammock

        Thank you for this! Affirmative Action is widely misunderstood, and I think many people (wrongly) believe that it’s a quota system or that it removes candidates of X race from the pool. That’s not how it works—it works the way LBK explained.

        And to be fair, although affirmative action has been helpful for correcting systemic bias in some cases, there are many situations in which it does not go far enough to remedy systemic inequalities on the basis of race and gender (and all the intersections of those identities).

        Reply
    8. Allison

      Under affirmative action, you can’t just say “we’ll only hire a woman for this role” or “we’ll only hire a non-white person for this role,” you can only use race or gender as a tie-breaker if you’re down to two or three equally qualified finalists. And race isn’t the only factor you consider, you also consider things like economic background.

      Affirmative action also has a huge data component; at my company we need to have a lot of data on the people who apply, people we interview and ultimately hire, to prove we’re not constantly overlooking the women and people of color who apply and always going for the white dude in the end. That data could be subject to an audit if someone has reason to believe there’s bias in our hiring process.

      Reply
  7. Cobalt

    Adding to #5: the disability discrimination laws only protect people with disabilities, not people without disabilities.

    Reply
    1. Lil Fidget

      Ooh, I wondered about this above, I’m glad someone else weighed in! Of course this doesn’t belie Alison’s point that “everybody is in a protected class” – including middle aged white christian men – but some people might be in more specific ones.

      Reply
    2. Kate the Little Teapot

      Mostly true, but not quite – they also cover people who are perceived to have a disability even if they actually don’t, and caregivers for people with disabilities.

      So, for example, if I had cancer in the past, an employer may not deny me employment because they’re afraid that my cancer will recur. Or if I have minor hearing loss that doesn’t have a big impact on my work, but the employer is worried that my minor hearing loss means I can’t use the phone and so doesn’t hire me to be a phone rep, that’s discrimination. Or, if there is a rumor in the workplace I have autism but I actually don’t, and the employer passes me over for a higher-level job since it requires client contact and they falsely believe autistics cannot handle client contact, then that’s discrimination.

      Regarding caregivers, one example is that someone can’t refuse to hire me because I have a disabled spouse and they think I’ll need a lot of time off.

      Reply
    3. AllDogsArePuppies

      Does that mean , say, if I apply to a job at a non-profit that interacts with individuals with a certain disability, they can refuse to hire me on the basis of not having that disability?

      Sorry if that comes off as smart-alecy or challenging. Genuinely curious.

      Reply
      1. Where's the Le-Toose?

        Yes. Lack of a disability isn’t a protected class. However, there may be other reasons that give rise to discrimination. For example, if someone is the only non-disabled applicant but the only female applicant, that could be evidence of gender discrimination in the non-profit’s hiring practices.

        Reply
      2. discrimination

        I assume that they could do so IF they could claim the disability was an essential tool for doing the job. That’s why, if, say, I’m casting a play with paid actors, I can insist that I want a certain role to be played by a young Asian man, and an old white woman can’t claim discrimination when I don’t cast her as the title character in *Teen Genghis Khan*.

        Similarly, if you’re hiring braille proofreaders, you can insist that they have to know braille (of course some sighted people know braille, but the vast majority of applicants will be blind or VI).

        Reply
          1. paul

            If you want to see a white guy playing Genghis Khan, there’s a *truly* terrible (so bad it goes past so bad it’s good) John Wayne movie…

            Reply
              1. MoodyMoody

                John Wayne would probably have won a Razzie if they’d existed then. See also Mickey Rooney in Breakfast at Tiffany’s (although that is just bad whitewashing and has nothing to do with Genghis Khan.)

                Reply
                1. Princess Consuela Banana Hammock

                  But it’s similarly racist! Another super racist whitewashed depiction of Asians/Asian-Americans, check out Katharine Hepburn in Dragon Seed.

                2. oranges & lemons

                  Oh god, I watched half of Breakfast at Tiffany’s once in high school and all I remember of it was how horribly racist that was.

          2. Buffay the Vampire Layer

            Genghis Khan is a character on the amazing, but short lived, Clone High. Notable for being the oldest looking teen at the high school and being tapped by Abe Lincoln and Gandhi to help them buy beer for JFK’s party.

            Reply
        1. fposte

          The acting example is where you get to the BFOQ, bona fide occupational qualifications, which is an exception to the discrimination law; if you can claim that race, gender, faith, etc. are a bona fide occupational qualification of the job, your business may be exempt from discrimination concerns.

          Reply
          1. Eliza

            Technically, race can never be a bona fide occupational qualification, but appearance can. So if you’re hiring actors to play an Asian character, you can’t only consider Asian people, but you can only consider people who *look* like they’re Asian. In a lot of cases this is going to be a distinction without a difference, but there are times when it matters. (Acting is also a bit of a special case because there are First Amendment considerations involved, so what applies to making a movie doesn’t necessarily apply to other forms of work.)

            Reply
            1. Countess Boochie Flagrante

              There’s technicalities, but when you consider that unintended consequences can still play into discrimination, race can definitely be a BFOQ issue.

              Reply
        2. Countess Boochie Flagrante

          Right. You’re getting into Bona-Fine Occupational Qualifications, and also the entertainer exemption.

          Reply
      3. Mimmy

        I have a similar question: could a nonprofit refuse to hire me for having the “wrong” disability? Say I have X disability and I want to apply for a job at a nonprofit that focuses on Y disability; several staff members also have Y disability, but none with the disability I have. I know they wouldn’t overtly tell me that I wouldn’t fit in because I don’t have Y disability, but it’s what would run through my head if I were turned down for a job.

        Reply
        1. fposte

          I believe that would get into the bona fide occupational qualification thing. It’s not so much that you have the wrong disability as you don’t meet the occupational qualification–or, to put it another way, merely having a disability isn’t the occupational qualification.

          Reply
  8. Millennial Lawyer

    Can you put an asterisk with regards to age discrimination? It’s true federal law is 40+ but it can vary state by state. In New York State it’s 18+, and in New York City there’s just a blanket bar to discriminate based on age or perceived age, without any age range specification.

    Reply
    1. ANon

      Genuinely curious, does that mean that in those states “reverse ageism” is a thing?

      Example: I was hired for a pretty advanced role at a rather young age, and other (older) managers would treat me differently because of my age. If this happened in NYC, would that be considered ageism since they were treating me differently based on my perceived age?

      Reply
      1. ArtK

        Ageism happens everywhere, including reverse ageism. The difference is that some states take a more proactive approach to dealing with it than others, not that it’s more prevalent in those states.

        Reply
        1. ANon

          Right, of course. I meant would it constitute a legal claim of hostile environment (assuming it’s also pervasive and/or severe).

          Reply
        2. Danger: Gumption Ahead

          Yep. In fact I just interviewed someone who decided that making repeated cracks about working with “kids” (aka young professionals just starting in their careers). I guess she thought that since all the interviewers were within 10 years +/- of her age we’d be OK with her casual ageism. We weren’t

          Reply
      2. Millennial Lawyer

        Ageism is not really a legal term, so I can’t say that in NYC “reverse ageism” is a thing. But it would give you a cause of action to sue. You’d be able to make your case on the merits that you’re discriminated based on your age.

        Reply
    2. Julianne

      My employer specifically prohibits discrimination based on age for all employees, not just those over 40. I’m glad they do because I think it’s the right thing to do, but I was just the slightest bit disappointed to get that wrong during the HR orientation quiz when I was hired!

      Reply
    3. TardyTardis

      But nobody ever gets in trouble for age discrimination–ever since that K-Mart managers’ case got thrown out of the Supreme Court, it’s a pretty open secret that older people have a harder time getting hired and nothing will be done about it.

      Reply
  9. clow

    I don’t understand why age is only protected over 40. There is plenty of discrimination that goes on regarding people that are young as well. Manager and toxic job would always display ageism and disregard anyone who wasn’t at least 40, he even told me that there is nothing I could say to him because he has lived longer than I have so he has experienced everything I have already. He even went so far as to deny people promotions based on nothing more than their age. Ageism is not limited to being perpetrated against people who are older, and protection against unfair treatment from age shouldn’t be limited either.

    Reply
    1. Lil Fidget

      I guess Congress is probably pretty skewed agewise … I suspect there’s some kinds of bias they’d worry more about :P Also, AARP lobbies for seniors, but I don’t know who lobbies for younger workers specifically (other than unions lobbying for workers generally, I guess).

      Reply
    2. Natalie

      I did a little bit of research prompted by this, and what I found was there were congressional hearings indicating that older workers were being discriminated against. Keep in mind that the law in question was passed in 1967 (50 years ago) and the nature of age means that demographic and economic changes will make the discrimination pendulum swing back and forth more than say, race or religion. After, people don’t progress through all of the religions of the world naturally through life.

      Reply
      1. Natalie

        From this American Bar Association article:

        “Congress directed the Secretary of Labor to produce a report on age discrimination. The data presented by the Secretary of Labor showed endemic discrimination against older workers. By 1967, just three years after the passage of Title VII, it was clear to many that older Americans were disproportionately excluded from, or surreptitiously driven out of, the workforce. Testimony before the Senate General Subcommittee on Labor and Public Welfare in 1967 revealed a number of troubling statistics that helped motivate Congress to take action. For example, in 1964, applicants over 55 years of age were barred from half of all job openings in the private sector. Workers over 45 were barred from a quarter of these jobs, and workers over 65 were barred from almost all of them.

        The data presented to Congress also indicated that the problem was worsening over time—jobs were disappearing, and older workers were bearing the brunt of the layoffs. Between 1965 and 1966 alone, the share of workers unemployed for 27 weeks or more that were over age 45 increased from 30.2 percent to 34.3 percent. Older men, it was reported, had been leaving the workforce in droves since 1951.”

        https://www.americanbar.org/publications/gp_solo/2014/november_december/a_study_the_age_discrimination_employment_act_1967.html

        Reply
        1. Lil Fidget

          Interesting that they only looked at being driven out of the workplace – I’d guess for younger workers the discrimination would more take the form of lower pay for same work, and not promoted on an equal basis, rather than driven out entirely.

          Reply
          1. clow

            yeah, both are bad and I feel both should be protected. I guess it just feels very one sided to me that only older people are protected and not everyone. Maybe my opinion is skewed because I have seen so much ageism toward younger people. But I don’t see why we can’t have age in general be protected.

            Reply
            1. Natalie

              I think it’s worth keeping in mind what might have been happening at the time that this law was passed – it was 1967, so the country was going through a big shift away from farming and manufacturing and towards white collar work, at the same time that an enormous generation of young people was just starting to graduate from college and hit the workforce. So *at the time*, it probably didn’t seem like younger people needed to be protected much. And that may have even been true at the time, but is not true anymore since those very same people are now the older workers in the workforce.

              Reply
        2. Jess

          I think part of the reason for the pervasive discrimination against older workers specifically at the time of the law’s passage was that a larger proportion of jobs were outside of the professions (such as in trades or manufacturing), and were more likely to promote on seniority. The structure of much of the workforce then made older workers more expensive compared to younger workers often performing the same work. That’s just not as true today when a much larger percentage of the workforce is in knowledge-based, office jobs. There are more likely be bigger differences in the actual jobs performed between entry-level and more senior employees, and compensation rate is more likely to be tied to the position itself. That doesn’t mean there isn’t discrimination against older workers, just that the same economic incentives for that kind of discrimination are not as widespread.

          Reply
    3. Pay no attention to the man behind the curtain

      My understanding has always been that at one time older workers were often targeted for being pushed out as they neared retirement age so as to deny them a pension (which were much more common at one time and were usually a defined benefit payout based on a formula of number of years worked and age at retirement and not dependent on the employee contribution). If an employee was not fully vested, they would lose all benefits if they quit or lost their job. Not many people in the US have traditional pensions anymore. Retirements are usually investment plans which have no set benefit payout and rely on the employee making contributions and sound investment choices throughout their career, and most importantly, do not disappear when leaving the job.

      Reply
      1. Pay no attention to the man behind the curtain

        I imagine that the shift away from defined benefit pensions to investment-based plans is largely due to age discrimination laws that protected older workers.

        Reply
      2. Where's the Le-Toose?

        Today, for those who do have traditional pension plans, people vest and can receive a future retirement allowance after 5 or 10 years of service. Granted, it won’t be a lot of money, but they will be vested in the plan. However, in the 40’s, 50’s, and 60’s, a lot of traditional pension plans had a 20 year vesting requirement–so it was common for employers to fire an employee who had 19 years of service to save on pension costs.

        Reply
        1. fposte

          ERISA tightened up the timeframe on vesting–it’s 5 years max now for cliff vesting and 7 years max for graduated vesting.

          Reply
        2. Pay no attention to the man behind the curtain

          Right. And once vested the pensioner gets a set benefit for life — whether they live 10 more years or 30 — and often this continues for their spouse until their death. They can’t out-live their pension payments because it isn’t dependent on what the employee has contributed or invested. So the company could be on the hook for a very long time.

          Reply
          1. fposte

            To be clear, graduated vesting and pension amounts do definitely depend on what an employee has contributed; it’s just that it can’t contractually just run dry the way an IRA, 401k, etc., can.

            Reply
            1. Pay no attention to the man behind the curtain

              Does this differ according to the pension bylaws? or state laws? or is it all set by ERISA?

              I know that the payout usually depends on many factors but not directly on the exact amount contributed. Social Security would be an example of a pension — my ultimate benefit received is going to depend not as much on the exact amount I’ve paid into social security but more on a formula of how long I have contributed, what my income was at the time of my retirement, and my age at the time I start receiving the benefit. So in that way — what I have contributed does affect my benefit, but not directly.

              Reply
              1. doreen

                It’s not always directly connected , because pension rules can change. When I joined my pension I was required to contribute 3% of my salary. After I was in the system about 14 years , the pension became more generous and anyone with more than 10 years of service no longer had to contribute. So I contributed more than someone with the exact same salary history as me who joined later than me ( because they would have contributed less than 14 years) – but we will get the same pension as it is based on our highest three years salary.

                BTW, Social Security isn’t based on your income at the time of retirement – it’s based on your average income over your highest 35 years, so your benefit is more directly connected to your contributions than it would be if it were based on just your income at retirement.

                Reply
    4. Where's the Le-Toose?

      When companies do layoffs, they frequently target older employees because of the increased salaries that come with having experience in the workplace. And once an older worker is out of work, there are a lot of companies who won’t hire the older worker.

      Reply
      1. Natalie

        Higher health insurance costs, as well. Just as a frame of reference, at my last job (I paid the health bills and thus had access to the information), a person over 70 cost us 6 times as much for health insurance as a person in their 30s. And we had a reasonably priced health plan!

        Reply
    5. Millennial Lawyer

      States and municipalities are empowered to go beyond the federal la, just not below it. You should check what the law is in your state/city!

      Reply
    6. D'Arcy

      Per SCOTUS ruling, it’s because Congress chose to write the law that way — because there’s a separate clause specifying age as over 40, the clause banning discrimination on the basis of age cannot be interpreted broadly the way “discrimination on the basis of X” clauses in other civil rights laws are generally read.

      It’s a weird precedent where the majority and dissent opinions argue that the law is clear and starightforward in completely opposite directions.

      Reply
  10. AllDogsArePuppies

    Re #1: what if the person you interviewed with/hired you ends up not being your manager in the role? Which is the hiring manager. The one that did the hiring or the one you work under.

    Reply
    1. Ask a Manager Post author

      Think of hiring manager as shorthand for “the manager hiring for a role working for her.” So you interviewed with someone involved in the process, but it sounds like they weren’t the hiring manager.

      Reply
    2. Not a Morning Person

      It typically means the one you work under. Other than the organization that Marie B. mentioned, a place that has “Hiring Manager” as an official title within the “Hiring Department”, it’s mainly relevant for people who are seeking job to have a shorthand title to refer to the person they will be working for. It’s the manager who needs a job filled on the team, not necessarily the person who does all the contact/interviews/letters to hire someone. As for not ending up working for the person who interviewed you, that may be the way it was designed, and the hiring manager was not involved, but again, it is a shorthand for job seekers and recruiters.

      Reply
    3. hermit crab

      That happens fairly often in our organization – the hiring manager is the one who opens the rec, runs the hiring process, decides who the top choice is, etc., but then they might not end up being the dotted-line staff manager for the new person. For example, my manager opened a rec and served as the hiring manager (with my assistance/input), but then she assigned the new hire to me as my direct report.

      But I think the key distinction is that neither my manager nor I are in HR — we are on the team where the new hire is working.

      Reply
    4. The Person from the Resume

      Hiring manager is just a fancy way of saying applicant’s “potential boss.” It’s generalized for all industries. I personally wouldn’t call some a hiring manager. As a project manager, I might be hired by a program manager so I would talk about my potential job’s program manager or my future supervisor/boss.

      Reply
  11. Natalie

    Re: #6, I believe “right to work” laws more specifically forbid agency fees, which are a portion of normal dues representing the union’s activities that cover all workers in the bargaining unit (whether or not they are members). Closed shops have been illegal since the 40s and union shops since the 80s.

    Reply
    1. Emily Spinach

      That’s correct. Everyone in the bargaining unit has access to certain parts of union business, some of which cost money. This includes the grievance procedure (and in some cases lawyer consultancy fees) and bargaining new contracts. The agency fee or “fair share dues” pay for those parts of the union’s activities that benefit you even if you don’t sign your membership card.

      Reply
  12. The future will be better

    So, when I apply to jobs, I just say, “Dear Hiring Manager” because I never have a name… I suspect it might not be the actually hiring manager reading my cover letter in some cases, but I’m not sure what else to say… close enough?

    Reply
  13. Snowglobe

    #6 – I have frequently seen the caveat that Montana is the one state that doesn’t have “at will” employment. But I have always wondered exactly what that means – in Montana are employers required to prove justification for firing someone? Does everyone who works there have an employment contract?

    Reply
    1. Bea

      Rabbit hole here we go.

      “Wrongful Discharge from Employment” law is what Montana has. A discharge is only wrongful if it’s in retaliation. Discharge is not for good cause and the employee completed their probationary period. Employer violated express provisions of its written policy”

      They can only practice at will during the probationary period. So yes, employment is contractual.

      Reply
    2. Princess Consuela Banana Hammock

      Montana has a unique history and has passed legislation disallowing at-will employment. If you Google the purpose of the bill, it’ll give you a fascinating history about mining and the outsized power a handful of employers had (and used) to quash workers’ rights. There’s a similar case from Hawaii re: the legacy of (U.S.) colonial plantations and land redistribution efforts.

      Reply
  14. Grits McGee

    On the topic of retaliation- I know most governmental orgs have some kind of whistle-blower protections. Are there any kinds of systematic whistle-blower protections in the private sector?

    Reply
    1. Lynca

      Not in the same vein as the whistleblower laws in my state. They’re specifically for government employees and it doesn’t necessarily protect you unless ethically implemented by the employer. There have been cases in my state, where it’s had to go to court because there was retaliation against the employee.

      Reply
    2. fposte

      Systematic? No. The big law, the Whistleblower Protection Act, is for federal employees, but there are other laws protecting the reporting of illegal actions by employees in the private sector. The OSH Act is the main federal one that I know, and I believe there are others that protect reporting to OSHA. (I just found a cool chart on the OSHA site that lists a bunch of legislation about asbestos, clean water, that kind of thing.) I think Sarbanes-Oxley includes whistleblower protections for the financial sector.

      What these have in common is that you’re reporting the issue to the feds. There may be state laws with some protection but that would obviously depend on your state, and there’s also the public policy exception to the at-will doctrine, which can mean that firing for reporting of some kinds of wrongdoing would be wrongful termination.

      Reply
  15. Turboencabulator Engineer

    Isn’t veteran/military status also a one-sided “protected class”? You can’t discriminate against someone for being a veteran but the opposite isn’t true. An employer can say they only hire veterans. Correct me if I’m wrong.

    Reply
    1. Natalie

      I think veterans are only protected in the case of federal contractors, not the workforce at large. Active duty reservists or National Guard members have some rights relating to deployment, training, and so forth.

      Reply
      1. fposte

        I think it’s all active duty including the branches, if you’re talking USERRA, but that’s not the same thing as veterans, of course.

        My state includes military status, but a hiring committee I was on had the same question about legality of preference for vs. preference against. It ended up being a moot point, and we never did get an answer.

        Reply
  16. The cake is a lie.

    Thank you for this public service. I’ve led an HR team for 20 years, and I find that I have to clarify these terms even for some of my HR direct reports. In the past 5 years, I’ve seen quite an increase in how often employees and managers reference “hostile work environment” and “freedom of speech” incorrectly. Which is fine–I don’t mind explaining it, but boy, do people want to argue with me about it; even when I completely agree with them that a behavior is unprofessional, inappropriate, unacceptable…you name it, they are disappointed they can’t throw “hostile” in there.

    Reply
    1. Lil Fidget

      Oh Lord, freedom of speech yes! I hear this one get misapplied every day. Freedom of speech doesn’t mean that people can’t criticize your speech, protest it or boycott it, write thinkpieces about what a piece of crap you are, or call you out on facebook! It refers to what the *state* can do to you.

      Reply
  17. LSP

    Thank you for mentioning #5. I was on a webinar where the speakers were explaining EEO laws, and some of the listeners were saying “So we have to hire a minority over a white person, even if the white person is better qualified?” when the presenter was very clearly saying the exact opposite of that. It seemed like a case of someone hearing what they expected to hear, not what was being said. The presenters did a good job circling back, though, until it seemed everyone who was asking those questions understood the message.

    Reply
    1. doctor schmoctor

      That is basically what it comes down to where I live. A friend of mine had to hire an assistant, and his boss told him it absolutely had to be black person. There was only one black applicant, and this guy didn’t know how to use a tape measure. But my friend was forced to hire him.
      Jobs are often reserved for certain races. I saw a job ad for an engineer, but only disabled, black women would be considered. And this sort of discrimination is totally legal.

      I’m all for equal opportunities. This is not it.

      (I’m not in America)

      Reply
  18. LBK

    I’ve actually found most people misusing “right-to-work” as the opposite of “at-will,” not a synonym, e.g. whereas in an at-will state you can be fired at any time, in a right-to-work state you have the right to work and therefore can only be fired for cause.

    I hate “right-t0-work” as a term, I’ve seen it cause a lot of confusion in political contexts where opposition to it makes people sound reeeeeally bad to those who don’t actually know what it means (especially since labor law proponents are the ones who tend to be against it, so it sounds contrary to their views).

    Reply
    1. Millennial Lawyer

      Yep exactly. It’s a way of bankrupting labor unions, not giving anyone any additional workplace rights.

      Reply
      1. Mobuy

        I think right-to-work does give me more rights — the right NOT to join a union. I live in a right-to-work state, and I chose not to join the teacher’s union based on their politics, protection of terrible teachers, and cost. I can still choose to join the union at any time, but I have the right to do that too. I far prefer to have this freedom.

        Reply
        1. Millennial Lawyer

          You have the right to your opinion, and I respectfully disagree – I think there is a net positive of unions in terms of workplace protections that outweighs the negatives (difficulty firing bad performers like you mention). The issue with it is that you gain all of the benefits of a union – such as a higher salary and workplace protections than would exist without it, but you’re not paying into it. Then the incentive becomes – well why should anyone pay for it if you’re getting the benefits for free? Then, no one’s paying into the union, union goes bankrupt, and workers lose their bargaining power and benefits decrease. That’s why there’s opposition to it – because that is the end goal of those or orchestrate right to work campaigns.

          Sorry to derail, don’t mean to get into a political debate. My only point was that even if you support right to work laws, it’s not actually a “right to work” or increase in workplace protections – it’s like you said, the ability to choose to not pay for union membership.

          Reply
          1. beanie beans

            And I think it’s worth pointing out that “Right to work” is a marketing term (not a legal term) specifically created by the groups who are pushing those laws who want to dismantle unions. Technically it says you can’t be required to join a union when you’re hired into a role (and/or pay union dues). In reality, it is a specific agenda to dismantle unions because they know unions will fail if people aren’t required to pay dues.

            I hope I’m not getting too deep into the politics of it, but this is my understanding of the facts of it, regardless of my opinion on it (which I have mixed feelings).

            Reply
          2. nonegiven

            Don’t you have to pay the part of the dues that covers things like collective bargaining but you don’t have to pay the part that goes to lobbying or other political activities you don’t agree with?

            Reply
            1. D'Arcy

              That depends. SCOTUS ruled that unions may not use non-member dues for political activity, but that’s a restriction on the union and not a reciprocal right.

              Reply
    2. CMJS

      It may be helpful to define the counterpoint to “right-to-work,” which is “fair share.” I live in Minnesota which is a fair share state and so that means if I have union representation available to me, I pay my “fair share” which is up to, but not more than, 85% of the dues paid by union members.
      The idea is that I am gaining the benefits of the union and therefore I should pay my share. In practice, I decided that if I’m already paying 85%, I might as well be union member and then have some say in how my money is spent.

      Reply
  19. ClownBaby

    Wish I had known about the “hiring manager” back when I was interviewing, haha.

    I interviewed for a job, had a really good experience/conversation with the hiring manager. Got the job. Showed up for work and found out he was the purchasing manager, so I said “Wow, you are the hiring manager and purchasing manager? That’s a lot of work!”

    He probably thought right then and there that he made a huge mistake in hiring me.

    Still with that company though!

    Reply
  20. ELKII

    #2: Not to mention if you get layed off you’re eligible for unemployment. When if you’re fired you don’t, usually.

    Reply
    1. Wren

      That really depends on the state and the reason you got fired. If you got fired for attacking your manager, probably not, but if you got fired because you just sucked, you could easily get unemployment in most states.

      Reply
  21. 2nd shift

    I wish ‘childless’ was a protected class. I’m currently being treated unfavorably specifically because I don’t have kids.

    Reply
      1. Slartibartfast

        Being denied a raise or promotion because you don’t have a family to support, but since Fergus has a family, he gets the promotion even though his performance is sub par.

        Reply
      2. KTZee

        In addition to Slartibartfast’s example, I believe it could also be perks, like “Susan can work from home when it snows because her kids are off from school, but childless Katie must come to the office on those days”.

        Reply
  22. Scubacat

    #2.
    Anyone encounter “terminated without cause”? Once I was let go from my job, and the manager used that phrase specifically.

    The job wasn’t eliminated, someone was hired to replace me. The role wasn’t a contract position or seasonal work. So, it doesn’t sound like calling the situation a layoff would work. The manager said that I was not being fired. It was just that I was being terminated without cause. It’s been a number of years since this happened, and the situation still perplexes me.

    Reply
    1. Slartibartfast

      With at will employment, they don’t need cause to fire you. It’s unusually honest to say it out loud like that though. In terms of what unemployment and future employers would think, this is more like a layoff except the position still exists.

      Reply
    1. Bea

      That just means you voluntarily resigned. You don’t need to mention it was mutually agreed upon or go down that road. You were not fired.

      Reply
  23. seejay

    Something I learned from my lawyer, but I’m not under a protected class for age discrimination because I’m not a US citizen. I mentioned this to her when I voiced concern about having to submit my driver’s license as proof of ID to a recruiter and that it would contain my birth date on it and that it could show I’m over 40 and wouldn’t that potentially open up the employer to a discrimination issue and she said I couldn’t ever claim age discrimination because of being an immigrant. *But*, if I wasn’t hired because of being an immigrant, I could claim “national origin discrimination” (or something like that). Of course this is if I was specifically not chosen because they didn’t want to hire Canadians or something and not because they didn’t have the resources or finances to deal with immigration visas, sponsorship, etc.

    Reply
    1. Princess Consuela Banana Hammock

      Whoa, she is totally wrong, seejay! All EEOC-enforced antidiscrimination laws apply to immigrant workers in the United States: https://www.eeoc.gov/eeoc/publications/immigrants-facts.cfm

      In fact, I just saw a case where an (undocumented) immigrant was retaliated against for making an FLSA complaint. The facts are unique, but the short version is that the attorney for the employer called ICE; tried to get the guy’s attorneys thrown off the case, defunded and disbarred; had the guy deported; the guy continued to prosecute his case from abroad (which he’s allowed to do); and in the end he not only won backpay, he received documented status in the U.S. as the victim of a crime.

      Reply
      1. seejay

        you know, I looked it up after I posted this, and I saw that there was protections against age discrimination for immigrants which totally was the opposite of what she said to me. Now I’m a bit miffed since she’s pretty much been my goto for the past three months since I’ve been job searching for any immigration/work visa questions I’ve had to deal with primarily from recruiters who have *no* idea what they’re talking about.

        At least the recruiter that I had to send that information to wound up being a royal PITA and dead end so it wound up being all for naught and abandoned anyway.

        Reply
        1. Princess Consuela Banana Hammock

          I’m so sorry! FWIW, she may still know the work visa logistics but be completely unaware of employment antidiscrimination laws. I’ve found that there are few attorneys who understand both.

          Reply
  24. Sleepy Violinist

    I have a question about #5—I understand that everyone is a protected class under the law, but how does this work in practice? I was directly told by a supervisor that my contract is not being renewed because my employer would prefer to hire a person of color and that it’s not my fault. (To be fair, my department is all-white and turnover is low.) I can’t think of any way to object without seeming like (and perhaps actually being) a whiny white person who doesn’t know how to check her privilege.

    Reply
    1. Jennifer Thneed

      Contractors aren’t employees. Or rather, we’re employees of our agencies, but not of our workplaces. And yes, companies use us to get around stuff in exactly this way.

      (Back in the ?1990’s? Microsoft got into trouble for treating their many many contractors as employees in many ways, but not in all ways (eg: stock options). One reaction that I saw in banking was that many workplaces refused to hire independent contractors anymore – there always needs to be a corporate entity. (Which had a lot of independent contractors filing with the state to incorporate.) Another is that lots of employers won’t let anyone stay as contractor for more than 18 months. It’s not a law, it’s just the widely-accepted practice.)

      Reply
      1. Sleepy Violinist

        Just to clarify–I’m not a contractor. I’m a teacher, and am directly employed and paid by the school that I work for. We have annual contracts that are basically a commitment to remain in the job for a year–not sure how the legalities differ from other professions with contracts.

        Reply
  25. PK

    I was laid off a few weeks ago and it is crazy how many people think “layoff” is synonymous with “fired.” As if it wasn’t rough enough.

    Reply
    1. doreen

      I’m not sure exactly what you mean by people thinking “layoff” is synonymous with “fired”. But it might be age-related – “layoff” used to exclusively mean a temporary interruption in employment and you wouldn’t say you were “laid off” if your job was permanently eliminated. For example, a manufacturing worker might be laid off when orders dropped in December and return to work when orders picked up in February. Or they might be laid off when one plant closed and return to work weeks or months later when another plant had an opening. It was only used for the sort of jobs where for one reason or another the employer would call the laid-off workers back rather than hiring new employees when the orders picked up again or the second plant needed more staff.

      Reply
      1. Jennifer Thneed

        > I’m not sure exactly what you mean by people thinking “layoff”
        > is synonymous with “fired”.

        It’s like this:
        “I was laid off yesterday.”
        “Oh no! What did you do wrong?”

        Because yeah, choices always have to be made of who to keep when there’s a big layoff, and sometimes people are included in a layoff who should have been fired previously, but mostly people who are laid off had no control whether they were included. Unlike, for example, being fired.

        Reply
  26. Oscar Madisoy

    Not sure if this fits in, but when I hear Springsteen sing about the “hiring man” (not ‘manager,’ just ‘man’) in the song Born In The USA who says “Son, if it was up to me…” – the implication being that if it were up to him, he would hire Springsteen – I get skeptical.

    Isn’t it the hiring man’s job to hire? Isn’t that why he’s the, uh, hiring man? Or am I missing something here?

    (If there’s anyone out there who is not familiar with the song, here are the lyrics in the context of the song:
    Come back home to the refinery
    Hiring man said “son if it was up to me”
    )

    Reply
    1. nonegiven

      According to wikipedia

      “The song addresses the harmful effects of the Vietnam War on Americans and the treatment of Vietnam veterans upon their return home. It is an ironic retort to the indifference and hostility with which Vietnam veterans were met.”

      In the lyrics the ‘hiring man’ at the refinery and the VA both turned away the former soldier.

      Reply
      1. Oscar Madisoy

        That’s my point.

        If you’re the hiring man, you hire. That’s what you do.

        So if the hiring man says “if it were up to me” when it came to making a hiring decision, well, if it isn’t up to him, then he can’t be the hiring man. Right?

        Reply
        1. Jennifer Thneed

          “I’d hire you BUT there is no budget. It’s not up to me.”
          “I’d hire you BUT my boss hates people with freckles. It’s not up to me.”
          “I’d hire you (because you’re a good worker) BUT there are no openings in my team.”

          Lots of people need to hire someone and are constrained by things outside their own wishes.

          Reply
        2. fposte

          Somebody Springsteen-knowledgeable will have more insight, but I see two possibilities: 1) that’s the point, that the hiring man is blaming a nebulous other and 2) hiring managers all answer to higher-ups, so it’s not completely up to them.

          Reply
        3. Princess Consuela Banana Hammock

          I’m pretty sure it’s that “I’d hire you but there are no jobs available to fill.” Springsteen was writing about vets coming home during the 1970s stagnant growth period and the 1980s manufacturing decline/recession. The guy can still be a hiring man and have no hiring to do for reasons beyond his control (world economy contracting, esp. in “Western” states; lack of budget; etc.).

          Reply
  27. Jenny

    This is so useful. Although worth pointing out that at my last company, the Hiring Manager was the person in charge of hiring for a certain position, but wasn’t typically the new employee’s manager (though they sometimes were).

    Reply
  28. Huddled over tea

    #6 Interesting – in the UK, ‘right to work’ refers to whether you literally have the right to work in the UK (aka if you are a citizen/permanent resident or if you need sponsoring)

    Reply
  29. Steve

    I never heard the term Hiring Manager until a few years ago. Sometimes these terms come out of nowhere and suddenly people start using them like they’ve been in common use forever. It’s nice to see a breakdown like this.

    Reply
    1. Oscar Madisoy

      I agree. There should be a glossary of terms and acronyms. Everybody who reads Ask A Manager was a new reader at some point, and may not have known what things meant. A stickied link at the top to a glossary would be very helpful, I think.

      Reply
  30. Jeff

    So help me with this. I’m currently a manager and our department just hired an employee to work under me. Our department is pretty small and I work for a VP in the organization. So there’s the VP, the director of ops, and me. The director of ops is the hiring manager, so according to the org chart, the new employee reports to her. However, I’m his supervisor, so I’m the one checking on his time cards, doing on-boarding, I’ll be responsible for doing quarterly and yearly evaluations, etc. I was also responsible for doing all of the interviewing, vetting of resumes, and all that. The director of ops and I are also at the same level; I don’t report to her, we both report to the VP. So two questions:

    1. Is this setup normal? When I asked about this, the reasoning was that all the paperwork goes through one person rather than having multiple people have to worry about doing paperwork for employees (we also have an admin assistant who reports to her and our team will be expanding in the coming months). I get that, but it still seems weird that I wouldn’t be this new employee’s hiring manager. According to our org chart, I have no one reporting to me.
    2. If this isn’t normal, is this a big enough deal that I should be pushing back on it? I’m not planning on leaving any time soon, but if and when I decide to look for another position, I’m worried that for reference checks, my organization will report that I never had anyone working with me when in reality I’ll have had at least one and most likely many more people actually working under me. It also feels like it’s adding an extra step to everything since all the work I’m doing will need to be reported to the director of ops and then reported to HR.

    Reply
    1. Close Bracket

      Sounds very similar to a matrixed organization, where employees do work under a program manager but are organizationally under a group leader. You would be similar to the program manager. It’s not a perfect analogy bc in matrixed organizations, the group leader does the reviews, not the PM. I think it’s similar enough that you could describe the employee as being matrixed under you.

      Reply
      1. Jeff

        That’s very helpful, thank you. It’s the first time I’ve run into a structure like this and my first time having serious management responsibilities. So knowing that other orgs are set up this way makes me feel better.

        Reply
  31. JM60

    I like that you dispel the misconception that only people X are in protected classes. When arguing about antidiscrimination laws, I hear people all the time whine about gay people getting some kind of special treatment. The reality is that in states where sexual orientation is a protected class, straight people are protected from discrimination based on sexual orientation just like queer people are. The save laws that make firing people for being gay/bisexual also make firing people for being straight illegal. It’s just that straight people rarely need such protections because being fired for being straight is extremely rare.

    Reply
  32. Wintermute

    Oh! two more that’s sadly common these days I forgot! and I think people should be aware of.

    “We have a very religious client who refuses to be alone in a female loan officer’s office/ refuses to shake hands with a woman”– If he cannot treat your employees equally, you can’t do business with him. A client dictating that a company engage in sex discrimination does not excuse the company from the conduct being discriminatory. This falls under the same “duty to protect your employees from ALL hostile workplace conditions” even if the source is a customer.

    Another one that has become a bit of a trend lately on the legal forum I give advice on frequently is that some odious people have twigged to the idea that they could use the ADA or religious accommodation to FORCE their employer to discriminate, usually sex discrimination. Yes the ADA requires “reasonable accommodation” and in some (but not all) cases you are required to reasonably accommodate religious observances as well. However, breaking the law is not a reasonable thing to ask!

    One person wrote into us frustrated that his employee had a doctor’s note for his severe anxiety that required he not be forced to interact with any women. That is not a reasonable accommodation, we advised, with the caveat that he should consult with a lawyer because someone willing to go to that extent to attempt to force your hand may well see you in court over it. He consulted a lawyer and updated us that our advice was correct: you cannot use the ADA to force an employer to violate the Equal Rights Act.

    Another involved someone who refused to speak to women, and would have to use an intermediary to communicate, also not acceptable because of its impacts to the woman.

    This also falls under the myth that there is always a reasonable medical accommodation to be made. Sometimes there is not and in that case you are justified in refusing to allow an employee to run roughshod over your other employees or to force you to create a legal liability.

    Reply

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