Employee thinks discrimination has occurred...

[PleaseEnterName]

What is the name of your state (only U.S. law)? New Jersey

I will try to make this brief and get to the point while at the same time trying to give you enough information to give a response. As part of a management team at a hotel; we've been dealing with this issue for week.

The day shift has approximately 10 housekeepers that are assigned to clean the rooms and get it ready for the next check in. The population in this area of New Jersey is made up majority of Caucasians. I state this because 9 out of the 10 housekeepers are Caucasian and the other housekeeper is Mexican. We treat all of our employees with respect but this one housekeeper felt as if he was being singled out.

Little background on the housekeepers. The 9 Caucasian age between 40-54 and has worked in the hotel industry for awhile and has experience prior to working for this particular hotel. The Mexican employee is 21 and has less experience compared to the other housekeepers he works with. I've been working for this hotel for many year and I have to say he is one of the best housekeepers as he gets the rooms done in an efficient amount of time and get the jobs done with no complaints about the rooms.

Because of this(the way he works) he is assigned the majority amount of the rooms and the other housekeepers just once in awhile pick up the other little task that needs to get done. On a few occasions, he spoke with management as well as our HR person about the amount of rooms he was doing was aggravating a medical issues he has. These discussions fell of deaf ears (unfortunately and not intentionally). Working in a fast pacing hotel the rooms are money and we were just worried about trying to get the room done and get things completed.

This worker has now filed a complaint (in-house) about discrimination. In a nutshell, he basically stated that:

-he was underpaid because of his race and gender complained to the other female Caucasians housekeepers.
-He was overworked and given a disproportionate amount of workload because of his race and gender.
-He was required to assume more responsibility even though he has the same job title as the other workers.
-He also claims that management purposely ignored his requested to start assigning rooms to the other housekeepers and not just him because of his medical condition.

He is indeed paid less because the other housekeepers has more experience in the housekeeper/hotel industry as they've worked in it before. And he only assigned to do the majority if not all the rooms while the other housekeepers pick of other task around that needs to be done because he is faster and more efficient compared to them to get the job done. Management never purposely ignored his completes it was just never addressed as we are humans and things gets overlooked.

Apparently he thinks otherwise because he think we (as a company) is discriminating against him.

Any advice? Should there be a concern or will this just probably go away within time?

 

[justalayman]

Your argument that he has less experience and therefor should be paid less makes no sense since you admit he is more efficient and productive than any of the other housekeepers. While it is not illegal to have pay disparity for most reasons if it is because of his gender or nationality, that would be illegal. The problem is proving it is very difficult and nothing you have said suggests it is due to his gender or nationality.

In my opinion managent would be wise to give the guy a raise if he is more productive than any other housekeeper.

There is no law that says he must be given any particular job or quantity of work. In fact management can have every other housekeeper do nothing but watch the guy do all the work, as long as it is not due to him being male or Mexican.

The only issue that might be meaningful is his medical issue. What is his specific medical issue?

 

[cbg]

Let's put it this way.

Are you quite satisfied that if the EEOC comes calling, that your documentation showing that your pay grades are absolutely consistent and based on NO factor other than experience will be enough to keep you out of court? That if they go back over your past records they will find that each and every housekeeper, regardless of race or gender, who had less experience was paid at the same level as this young man? Will they see a consistent pattern of pay raises as experience is gained?

Do you feel absolutely secure that a review of ALL your pay records, going back years and not just current, will continue to show this same pattern?

If you end up in court, will a jury see that there has been no disparity?

Because right now, unless you have a VERY clear pattern of paying based on experience, and not just for housekeeping but other positions as well, you would get CREAMED if he sued you.

 

[Just Blue]

Personally, based on what OP is posting...I think this is not an employer. If it WERE the employer they would seek advice from their attorney,

BTW: This is just my personal opinion.

 

[cbg]

You may be right, but either way, if what's in the post in in any way accurate and if I were a lawyer, I'd much rather be representing the employee than the employer.

 

[PleaseEnterName]

Hi Blue Meanie: I wouldn't call myself the "employer" but I am the supervisor (for day-shift) for this individual. I was involved in the complaint and have been spoken to my the human resource dept. Basically we discuss how the rooms were assigned and some of the other issues that were brought up in the complaint. Besides this HR has been pretty tight-lipped about it. Not saying this is my only concern but I am just worried about losing my job.

Should I be concerned or does this stuff usually blow over with time?

 

[eerelations]

As a supervisor, you represent your employer, ergo, in law you are the employer.

This stuff never blows over with time. And yes, you could lose your job over this, if you're the one determining your employees' pay.

 

[cbg]

You should be concerned. As the supervisor, if you are on notice that there's a problem, the employer is on notice that there's a problem. That's how the law works in this area.

If you are the one who assigns the rooms, I strongly recommend that you begin changing the way you do so with immediate effect. Instead of punishing him for his efficiency by assigning him more work, rather you should be disciplining the "experienced" housekeepers who aren't doing their job effectively.

And if you have any say in his pay rate, I would even more strongly see that he is brought up to the same level as the others. On merit, rather than on experience.

 

[justalayman]

While this is contrary to the pros posting I have to say, at least based on what I read, that i don't necessarily see this as a problem.

Generally there has to be some supporting evidence the disparate treatment is actually based on protected class issues. So far what you have said does not support that. You have properly assigned work to cause it to be most efficiently performed. As I said before, an employer can legally allow every other employee but one sit around and watch the one work as long as it is not due to discrimination against a protected class. We will always have situations where a person within a protected class is treated differently than others in that class but not the same as the individual. As long as the disparate treatment is not because of the specific protected class, it is not illegal.

Here you have a junior seniority employee being paid less. If historical records show this to be normal, the fact he is male or Mexican is not relevant. Here we have a male being assigned more rooms than other employees. Since he is more capable and efficient, there is absolutely nothing improper with this UNLESS it is because he is male or Mexican. This requires proof and unless there is a historical proof of similar treatment or there is some supporting proof in this specific case, again, the claim of illegal discrimination is not supported.

The only issue that does not have a legal defense, that I see, is the medical issue. You refused to expand on that when I asked so I cannot speak to it. Depending what the medical issue is, it may be the basis for the employee to be allowed an accommodation under ADA law but without that, the matter does not have to be considered in job assignment, at least in regards to the question at hand. Of course there is a liability issue regarding an employees on the job injury but you were not asking about that.

Now, with all that said, I will say a smart employer will pay a good employee properly so as to retain them. I would suspect this Mexican male employee is worth as much, if not more, than any of your other housekeepers simply due to his production levels. A smart employer will pay a valuable employee what they are worth because that is how you retain valuable employees.

 

[cbg]

I would just like to remind everyone that perception is everything in employment law. I asked a lot of questions, too, that didn't get answers. Those questions included things like, "Are you absolutely certain that the payroll records will reflect that EVERYONE has been paid more on the basis of experience, and less on the basis of no experience?" I got no answer to that question, but unless the answer is an unqualified yes, then the PERCEPTION that he is paid less because he is male and Mexican can easily prevail.

 

[LdiJ]

I would just like to remind everyone that perception is everything in employment law. I asked a lot of questions, too, that didn't get answers. Those questions included things like, "Are you absolutely certain that the payroll records will reflect that EVERYONE has been paid more on the basis of experience, and less on the basis of no experience?" I got no answer to that question, but unless the answer is an unqualified yes, then the PERCEPTION that he is paid less because he is male and Mexican can easily prevail.

And when you have two issues (more work and less pay) that ramps up the perception.

 

[PleaseEnterName]

Please excuse me for an questions I missed in the previous post.

-I'm not particularly sure of the type of medical issue this employee has. I know he has complained about prior back problems which was aggravated by the flipping and making the bed. This was becoming a problem as he was doing it very frequent due to the amount of rooms he was assigned to. This wasn't purposed ignored but just bad communication on management's part.

Cbg:

Q:Are you quite satisfied that if the EEOC comes calling, that your documentation showing that your pay grades are absolutely consistent and based on NO factor other than experience will be enough to keep you out of court? That if they go back over your past records they will find that each and every housekeeper, regardless of race or gender, who had less experience was paid at the same level as this young man? Will they see a consistent pattern of pay raises as experience is gained?

A:As you will read in another answer to a question you asked below: I don't control the starting or how much they were able to negotiate when being hired on. I'm only in control of how much their annual pay raise is.I tend to try to divide the budget the company give me pretty evenly to my employees.
___
Q: Do you feel absolutely secure that a review of ALL your pay records, going back years and not just current, will continue to show this same pattern?

A: As far as pay records go; I have no control of what the employees' starting pay is. I do control the amount the employees (in my dept) receives for their annual pay raise. I tend to divide it up pretty evenly; as I try to be fair.
______
Q:If you end up in court, will a jury see that there has been no disparity?

A: I can't predict of what a jury will see. I was assigning the most work to the person who was capable of doing the job. As the saying goes "If you want something done, give it to a busy person". Did I know the pay of this employee compared to the other housekeepers he worked with? -- the answer is Yes. Was he assigned more work ?-- Yes. Did I do it because of any discriminatory reasons? -No. If you ask the employee; he might think/say otherwise.
________

Ldij:

Why is "more work and less pay" a problem? I am not saying I totally agree with such but if it's not for discriminatory reasons it's legal. I will say it again that he was given more work because of his work ethics.

 

[justalayman]

What you control, at least in attempting to answer your questions, is not relevant. The answers are very important to what the eeoc would see and you in your position should be able to answer the questions asked, or at least be able to make a reasonable guess as to the answers.


Unless the employee wants to seek a doctors commitment they are disabled, a sore back is not important. If they qualify as disabled and seem a reasonable accommodation you are not required to alter their assignments.

 

[LdiJ]

Please excuse me for an questions I missed in the previous post.

-I'm not particularly sure of the type of medical issue this employee has. I know he has complained about prior back problems which was aggravated by the flipping and making the bed. This was becoming a problem as he was doing it very frequent due to the amount of rooms he was assigned to. This wasn't purposed ignored but just bad communication on management's part.

Cbg:

Q:Are you quite satisfied that if the EEOC comes calling, that your documentation showing that your pay grades are absolutely consistent and based on NO factor other than experience will be enough to keep you out of court? That if they go back over your past records they will find that each and every housekeeper, regardless of race or gender, who had less experience was paid at the same level as this young man? Will they see a consistent pattern of pay raises as experience is gained?

A:As you will read in another answer to a question you asked below: I don't control the starting or how much they were able to negotiate when being hired on. I'm only in control of how much their annual pay raise is.I tend to try to divide the budget the company give me pretty evenly to my employees.
___
Q: Do you feel absolutely secure that a review of ALL your pay records, going back years and not just current, will continue to show this same pattern?

A: As far as pay records go; I have no control of what the employees' starting pay is. I do control the amount the employees (in my dept) receives for their annual pay raise. I tend to divide it up pretty evenly; as I try to be fair.
______
Q:If you end up in court, will a jury see that there has been no disparity?

A: I can't predict of what a jury will see. I was assigning the most work to the person who was capable of doing the job. As the saying goes "If you want something done, give it to a busy person". Did I know the pay of this employee compared to the other housekeepers he worked with? -- the answer is Yes. Was he assigned more work ?-- Yes. Did I do it because of any discriminatory reasons? -No. If you ask the employee; he might think/say otherwise.
________

Ldij:

Why is "more work and less pay" a problem? I am not saying I totally agree with such but if it's not for discriminatory reasons it's legal. I will say it again that he was given more work because of his work ethics.

Again, you are missing the "perception" issue.

I am like your employee. I am capable of doing a lot more work than my colleges. I take pride in that. I like the challenge. However, if I were paid less than my colleges, I would be wondering about discrimination. I am not paid less, I am paid much more.

 

[cbg]

I didn't ask what you control. I asked if you are certain enough of the answers to those questions to be staking your job on them. Because you may rest assured that if he files a lawsuit against the employer, there is every likelihood that his immediate supervisor will make a very convenient scapegoat.