What Constitutes Favoritism and Discrimination?
Employers often face allegations that favoritism exists in the workplace. While over time, the term "favoritism" has been understood as the unfair practice of giving "preferential treatment to a certain individual or group based on arbitrary reason," federal anti-discrimination laws have not yet legislated or defined favoritism. The Age Discrimination in Employment Act (ADEA) and Title VII of the Civil Rights Act of 1964 (Title VII), define age and race, respectively, as protected classes. That is, if favoritism in the form of promotion is afforded to an employee based on his or her race or age, and the employer has advanced legitimate nondiscriminatory reasons for its actions, the employer would have a difficult burden to meet in attempting to prove that favoritism was accessible to the plaintiff on an equal basis, as well as the other employees.
The main focus of the litigation surrounding favoritism within the workplace thus far has resided on how it can impact the workplace environment. Consider a scenario, for example, where an employee, Jack, works closely with Sandy. Jack’s supervisor notices that Sandy has become close friends with Jack, and after a few months of this perceived favoritism affecting his work, Jack submits a complaint to management and HR. In the complaint, Jack explains that Sandy is getting preferential treatment in the workplace, noting that she is routinely provided with a call schedule while other employees have to wait to receive theirs. Jack also undergoes a performance review, where he ultimately reviews higher than Sandy. When interrogated about it, the manager initially seems unfamiliar with the close relationship between Sandy and Jack. After reviewing between the lines, though , the manager is able to decipher the true concern the complaint is directed at: Sandy.
Described as unprofessional, unwarranted, and even a potential liability, the excessive use of favoritism in the workplace has already led to litigated circumstances in other places. One example exists in employees who have been denied a chance to advance because their boss’s favorite has been awarded the role. Potentially defeating this type of favoritism, however, is legal precedent from the National Labor Relations Board (NLRB): The NLRB has recognized the right of employees to "engage in concerted activity for the purpose of collective bargaining or other mutual aid or protection," and more importantly, "protects employees from retaliation by their employer for exercising any of their rights under the [National Labor Relations Act (NLRA)] unless such rights, when exercised, tend to harm the employer’s economic interests."
In the employment context, the NLRA protects employees to engage (or not engage) in activities concerning disputes over monetary benefits; working conditions; as well as grouping employees to speak out on issues of common interest. The right of joined employees to act together in seeking workplace improvements, however, is not unlimited. A work environment designed to punish and embarrass employees undoubtedly fails to meet the purpose of the NLRA. Therefore, that which is deemed "reasonable" behavior would be considered acceptable to the general public in real life and employment. Absent an employer’s legitimate nondiscriminatory, or common, rationale for disparate treatment, favoritism in the workplace will require deliberate scrutiny of applicable workplace guidelines that can facilitate a favorable view in favor of the employer.
How can Favoritism Show Itself in the Workplace?
Favoritism makes itself known within the four walls of an organization in several recognizable ways. A favorite may be given access to more information than other employees or greater freedom to violate policies. It might also mean spending more time with a supervisor, getting more assistance, receiving first notice of layoffs, or being told insider information about organization changes and opportunities.
An employee dating an executive might get special privileges, preferential treatment on scheduling, be allowed to take extra time off with fewer consequences, or receive a better work space. Such favoritism might even extend to family. A senior executive’s child might get a job in a trendy department, even when their skills and talents do not match.
A professional apologist might write long justification documents in order to explain why violations occurred or explain them away, and usually they are not held accountable for policy violations. This is especially evident in academia, where senior faculty member’s failures are routinely overlooked and white-collar criminals looking to embezzle embezzlers are often first even in line for a promotion, and more money, while junior offenders are subjected to zero tolerance policies.
Management frequently give immeasurable advantages to chosen employees by allowing them to choose their work schedules or days off. Special favors such as leaving work early, working from home, or taking extended lunches, to name only a few, might go unnoticed by management. This might also involve the allowance of login credentials to superuser accounts even when the employee in question does not have the requisite skills, knowledge, or training to use them.
Favoritism might also be shown through systemic arrangements that favor one group over another. A popular example is using seniority as a basis for layoffs or layoffs that adversely affect one group of people (e.g. layoffs that impact older workers over younger ones, men over women, or whites over non-whites). These system-based indiscretions are often done under the guise of being based on "objective" criteria.
Favoritism is not something unique to a badly managed organization. In fact, the more charitable view would see latter as the frequent and clear result of poorly defined policies. Organizations routinely misunderstand how favoritism manifests, which is why it is given so much latitude. When companies focus more on preventing harassment as a function of compliance, they miss these larger issues. And as a result, their systems are tailor designed to reward discrimination in favor of those with protected characteristics.
Effects of Favoritism on Employees
Favoritism is an important consideration that must be weighed in the context of considering whether favoritism might lead to a breach of the prohibition against discrimination. A finding of discrimination can be justified by sufficient evidence of favoritism. As a result, the absence of favoritism becomes a consideration by the plaintiff in response to the evidence of discrimination. If the legal term "discrimination" is understood to mean the level of fairness by which people are treated and the consequences that follow, then favoritism is unequivocally discrimination and grows exponentially when the person committing favoritism is someone with authority or responsibility for hiring, firing and promoting. Favoritism affects all – the favored and the unfavored. While it is fair to expect people to perform their jobs satisfactorily if not well, it is highly unfair to expect an employee to be "doubly well" or even "over the top" in their duties when they have been ignored time and again for mere consideration. Favoritism produces fetid results that infect an organization as a whole. Favoritism is experienced by everyone from the lowest unpaid intern to the top echelon executives and literally everyone in between. It has been reported that favoritism is one of the top five reasons people leave jobs. The unfairness, disappointment and emotional impact of favoritism leads to low morale and impacts overall productivity. Sometimes "flavor of the month" favoritism results in cycles of temporary upsides that erratically inflates results and encourages some employees to take unnecessary risks. The team dynamic is ultimately destroyed when the degree of favoritism allows for any interference with the normal order of things where everyone has the same responsibilities, challenges and prospects. Conversely, when favoritism is equitably and consistently assigned, it has a profound positive influence. When everyone understands that those with preferential access to management will receive the benefit of previous efforts as well as the opportunity to demonstrate new ones, the environment is more likely to flourish. Yet, favoritism tends to be more of a "lesser of evil" than an outright negative in many workplaces. The danger of favoritism is when it outstrips the degree of equity expected and creates what amounts to the class system equivalent of the workplace where cleanliness, hygiene and new innovations are honored by a few while those at the base continue, delayed or omitted from progress.
Firing or Promoting: When Does Favoritism Turn into Discrimination?
To determine if favoritism violates the law, consider whether the preferential treatment extended to one or more employees violates the protected rights of another employee. If, for instance, an employee complains of being transferred to a less-desirable work location based upon his or her gender, sexual orientation, sex, race, age, religion, national origin or disability, the issue may be whether the treatment constitutes discrimination.
Most employees have at least one well-documented experience with favoritism in the workplace. While standard human resources training regurgitates that favoritism is unproductive; it does not clearly articulate what is or is not illegal. A line must be drawn "become" and "doesn’t become" unlawful when the question becomes whether favoritism has crossed into discrimination.
While the offending treatment may have been an action that seems or feels harmless to a supervisor or manager (who has a favored relationship with a particular employee) it may constitute a protected right under federal and state employment law. For instance, even if favoritism in the form of a promotion appears innocent, if the promotion was based on an employee’s national origin or race it may constitute discrimination.
Federal Employment Law Prohibits Favoritism Based upon Certain Protected Classes
Title VII prohibits intentional discrimination on the basis of race, color, gender, national origin, and religion. 42 U.S.C. § 2000e-2. The Age Discrimination Act of 1967 prohibits age-based discrimination against individuals between the ages of 40 and 65 in employee promotion, hiring, discharge or any other condition or term of employment. Whereas, the Americans with Disabilities Act of 1990 prohibits discrimination against qualified employees with a disability as defined within the statute. 42 U.S.C. §12112(a) .
States also provide solutions when employer favoritism violates the law. For example, Arizona’s civil rights law prohibits an employer from discriminating against an employee based upon the employee’s sex. A.R.S. §41-1463.1(A)(7). "Sex" includes "pregnancy, childbirth or a medical condition related to pregnancy or childbirth." A.R.S. §41-1461(19)(b). As a result, an employee may be able to bring a suit against their employer when they are favored or not favored because of their pregnancy, childbirth or a medical condition that was related to their pregnancy or childbirth, as this constitutes discrimination under Arizona’s Employment law.
Case Examples
A violation of the law must be brought by the employee against his or her employer. For example, Topor v. US Airways, Inc. The court in Topor held that even if the preferential treatment of the pregnant employee did not create a hostile work environment, it was inappropriate for management to chastise the claimant for not accommodating the favored employee’s preferences when the claimant was not asked about the change.
In Lewis v. City of Union City, Georgia, the Court found that the plaintiff, Robert Lewis, presented sufficient evidence for a jury to consider whether the city’s policy of allowing supervisors to give preferential assignments to their family members violated Title VII. Lewis, 918 F.2d at 1539. The Eleventh Circuit found that Lewis’ allegations, if proved, could establish the City of Union City violated Title VII and reversed the district court’s order granting summary judgment for the City.
Although it may be difficult to prove that an employee was given a different job assignment based upon favoritism or the protected rights of the mother and the father of a child (or otherwise) employers should be aware of the legal risks involved and document such favoritism in order to avoid legal consequences.
Avoiding Favoritism and Ensuring Non-Bias
To avoid the appearance of favoritism in the workplace, it is good practice for an organization to clearly articulate and communicate its policies, standards and procedures related to promotions, compensation, and other employment opportunities. All decision makers in a workplace, including supervisors and managers, should also be trained on potential signs of favoritism and how to treat employees fairly. While there may be lawful reasons for choosing one employee over another for certain employment opportunities, favoritism has been shown to have negative effects in the workplace and can lead to problems for employers. Favoritism in the workplace can have detrimental effects to morale, motivation, productivity, and engagement. Favoritism can also generate employee distrust and resentment toward the management and those who are deemed to be "in the favorites circle". The perception of favoritism can also lead to increased turnover and reduce overall quality of work. Personnel decisions should therefore be based on job qualifications, performance, seniority, or other objective criteria. Some legal authorities have suggested that showing favoritism to members of a protected category may increase the chance of claims for "reverse" discrimination and/or retaliation for opposing discrimination. For example, showing favoritism to disabled employees or veterans may expose an organization to liability for reverse disability discrimination and/or reverse veteran’s discrimination claims. An organization that acts consistently and fairly with its treatment of all employees is better able to reduce its legal risks and promote a culture of fairness among its employees.
When You’re the Victim of Favoritism
As with any workplace issue, the first step for an employee who believes that he or she is the subject of favoritism is to document the offending conduct. In the case of a supervisor’s favoritism toward a particular employee, it is generally advisable to document the specific ways in which the supervisor’s favoritism is affecting your ability to do your job, such as through notes on assignments that are denied or blocked by the supervisor. Similarly, if you are being subjected to verbal or written comments that you believe constitute favoritism, make sure to keep a record of them. Once you have documentation of the favoritism you have experienced , it is generally advisable to follow your employer’s outlined process for reporting incidents to human resources, whether that be through a complaint procedure or otherwise. Sometimes, favoritism can be resolved by internal means without having to engage in litigation or other proceedings. In any case, keeping your employment and related claims orderly and organized will ultimately benefit you; it may even help overcome the challenge of having your claim viewed as one of favoritism, instead of what it actually is — a claim of gender, race, religion, disability, or other forms of discrimination.