Hiring Policies Disfavoring Unhealthy People May Violate the Law

It"s no secret that health care costs are steadily rising. As a result, companies are looking for ways to hold the line.

Some have offered incentives to promote healthier lifestyles, such as free gym memberships. Others have taken a more punitive route by firing smokers, or imposing surcharges on the health benefits of smokers.

When it comes to hiring decisions, the law is unclear on how far employers can go in preferential hiring as to certain groups, such as obese individuals. A company may overstep what"s legal if a factor used in hiring decisions is based on a stereotype.

Wal-Mart is reportedly considering

a plan to reduce health care costs that would discourage unhealthy individuals from applying for jobs. The company might incorporate physical activity into all jobs at company stores, which would make it more difficult for unhealthy individuals to get hired. A potential problem, however, could arise if a particular job, such as a cashier, doesn"t require physical activity.

It might be okay for an employer to ask an applicant what they like to do during off-work hours. Those that like to engage in potentially dangerous activities, say skydiving, may not get the nod for a job because of a greater risk of higher health-insurance claims.

Sexual Favoritism on the Job Might Create Hostile Work Environment

The law protects workers from having to deal with co-workers and bosses that create an uncomfortable work environment related to sex.

This can take many forms, such as unwanted sexual advances, constant crude sexual banter or posting pornographic pictures at a job site.

Another potential form of a hostile work environment could be related to widespread sexual favoritism.

A California case shows why.

Two former employees of a state prison sued the California Department of Corrections. They claimed the warden of the prison gave favorable treatment to a number of female employees with whom he was involved sexually. The two plaintiffs were themselves never propositioned by the warden.

But apparently there were incidents

of public fondling, boasting by women involved in relations with the warden, and repeated promotions despite the lack of qualifications.

The trial court dismissed the case on the basis that preferential treatment of a sexual partner didn't create a hostile work environment.

The California Supreme Court, however, rejected the trial court's dismissal, ruling that the case should proceed to trial.

The court said an isolated incident of favoritism based on a supervisor's sexual relationship with a worker ordinarily is not enough to create a hostile work environment. But if the favoritism is widespread enough, even if it doesn't involve the complaining party, then it may violate sex discrimination laws, the court ruled.

Supervisor Who Refused to Pressure Worker Has Wrongful Discharge Claim

An auto dealership supervisor was fired after he refused to pressure a subordinate into not seeking workers' comp benefits.

The supervisor managed the body shop of a dealership owned by his brother. The supervisor's son worked for him in the shop. His son injured his neck while lifting heavy equipment. The manager's brother then allegedly pressured him to talk his

son into not pursuing worker's compensation.

The man filed a wrongful discharge lawsuit, claiming that public policy prohibits termination based on a refusal to interfere with someone's right to pursue workers' comp.

The Pennsylvania Supreme Court agreed with the manager, citing a similar ruling from the Washington Court of Appeals.

Manager Who Refused to Fire "Ugly" Employee Can Sue for Retaliation

A sales manager of a cosmetics company claimed she was forced from her job when she refused to fire an insufficiently attractive subordinate in the estimation of a company executive.

The woman said the company executive ordered her to replace a sales associate whom the executive found "not good looking enough" with someone who looked "hot."

When she refused to follow the executive"s order, the sales manager alleged that she began receiving hostile job evaluations for the first time in her career. She eventually took stress-related leave and was replaced.

The woman sued the company for wrongful retaliation.

A trial court judge ruled in favor of the employer, saying the former sales manager was not engaged in any activity protected by law.

But the California Supreme Court reversed, saying the sales manager could sue for retaliation.

The court said the sales manager reasonably believed she was being asked to violate gender bias laws by firing the sales associate. This is enough to support a retaliation allegation and her case should not have been dismissed, the court ruled.

Her negative job evaluations, plus criticisms by her boss in the presence of subordinates, could be seen as an "adverse employment action" under law, the court noted.

Denial of Flex-Time Basis for Retaliation Claim

An executive secretary worked from 7 a.m. to 3 p.m. so she could get home early to care for her son who has Down syndrome.

When some of her job duties were assigned to others, the woman filed a race discrimination charge. This allegedly led to her flex-time schedule being taken away, prompting her to file a lawsuit under the federal law protecting workers from retaliation for filing discrimination claims.

A trial court judge dismissed her claim, saying that a change in work hours alone is not an "adverse employment action."

But the federal appeals court covering Indiana, Illinois and Wisconsin reversed that ruling, saying that the woman

needed the flex schedule to care for her son. She also lost income because she had to use up leave for two hours a day until it ran out. At that point, she was forced to take unpaid leave, the court said.