If generational change causes workplace difficulties, employers must accept and adapt to this change, or face legal problems.
Countless publications and seminars push the idea that companies face different challenges in hiring and managing employees from the Baby Boom, Generation X and Millennial age groups. Certainly, as with most cliches, there is some truth to the assertion that employee attitudes and responses vary by generation. But from a legal perspective, there's no difference in what the law demands for how employers deal with a 20-something or a 60-something employee.
Employees of any generation can allege discrimination when forced to conform to an employer's appearance or personal conduct requirements. Employees are protected from racial, sexual and religious discrimination by Title VII of the Civil Rights Act of 1964, which covers employers having 15 or more employees. Most employers understand the need to ensure a positive working environment free from harassment, but that understanding may become blurred for issues that can reflect generational attitudes concerning appearance, politics or religion.
Employers face generational differences in their workforce. Broadly speaking, there are three main age categories:
- Baby boomers are approximately 47 to 62 years old, and tend to be competitive, moralistic, optimistic and self-focused.
- Generation X, aged 26 to 46, has about 40 million members of the workforce who value flexibility and view themselves as free agents with strong self-focus.
- Millennials are 25 and under; there are potentially 80 million or more of them, and they love speed, freedom, peer identification and positive feedback.
These are simplifications. Generational differences may exist, but miscommunication can occur between any employees with clashing personality traits or beliefs. Employers are often caught in the middle, and the only practical response is to follow existing workplace policies that deal with discrimination and harassment.
Extreme clothing styles, body piercings, tattoos and other appearance issues that are potentially disruptive to coworkers and customers can involve members of any generation who have their own ideas of grooming and appearance standards. A facial piercing may make older workers uncomfortable, but if the pierced employee works in a cubicle and has no customer contact, is the piercing really relevant? Avoiding allegations of discrimination by employees who are disciplined for non-compliance with appearance policies requires policy enforcement according to accepted social and legal norms toward gender, race and religion. Such policies must:
- Have a valid business reason
- Be enforced reasonably and evenhandedly
- Not impose an unequal burden on one group.
For example, a federal court upheld a major retailer's right to require an employee to wear bandages over facial jewelry, rejecting the employee's claim that the jewelry was required by her membership in the Church of Body Modification. The ruling held that the employer had a "legitimate interest" in presenting a workforce that was "reasonably professional in appearance," while still accommodating the employee's religious belief. Because opinions differ on things like pierced body jewelry and tattoos, employers need effective procedures to defuse tensions and identify complaints before they become lawsuits. Written policies or handbooks that detail the rights and responsibilities of employees are also essential. The best policy is to handle conflicts positively. Give non-critical feedback to Millennials on appearance issues, and counsel older employees about the harm that clashes or inappropriate comments and behavior can create in the workplace. Be flexible, and put aside irrelevant, pre-conceived notions. Step back and ask whether the unorthodox look really presents a problem.
Politics in the workplace can also stir intergenerational clashes. Somet polls indicate that the 2008 presidential election may strongly divide voters along generational lines. The right and responsibility of employers to ensure that work environments are safe, free of hostility and conducive to productivity includes protecting employees from being politically pressured by overzealous coworkers. Federal and state laws which prohibit hostile work environments on the basis of sex, race, and religion could also be used to prohibit workplace political activity that constitutes harassment to persons under the anti-discrimination statutes.
The First Amendment's protection of free speech does not apply to the private workplace. Political discussion should never be allowed to devolve into debates over race, national origin, or religion. Talk about the candidates could easily involve comments that some construe as discriminatory - and be used to justifying a harassment lawsuit against the company. Employers can prevent this danger, and maintain a positive work environment by:
- Communicating a clear, easily understood policy on the rules of political expression.
- Training supervisors on what to do if they hear or observe inappropriate workplace conduct.
- Using reminders or coaching, rather than severe discipline, to enforce company policy.
- Responding quickly by investigating any employee complaints of harassment.
Generations also can differ in attitudes toward open expression of religious belief. An anti-harassment policy must recognize that harassment and discrimination based on religion is as illegal as sexual or racial harassment. To accomplish this, employers must train their managers how to recognize unacceptable conduct and how to listen when religion is discussed or raised as an issue. If employees see a conflict between religious beliefs and their jobs, the employer should be proactive in attempting to reach an accommodation that resolves the problem and does not result in an undue hardship to the employer.
These fundamental guidelines are the best policy for dealing with workplace religious issues:
- Any religious activities associated with work, such as prayer meetings or Bible studies, are entirely voluntarily, and should not take place during work time.
- Religious expression must not become a distraction, harassing, or burdensome to other employees.
- Career advancement cannot depend upon religious participation or a particular religious belief.
- An accommodation cannot be denied simply because the religious expression may make other employees or customers "uncomfortable." Reasons for denial must be concrete and valid.
- Employee handbooks should detail rights and responsibilities regarding religion.
If generational change causes workplace difficulties, employers must accept and adapt to this change, or face legal problems. Taking the initiative to understand intergenerational conflicts and developing proactive policies to manage them may not prevent every potential legal problem. But proactive companies will have the advantage over those that are unprepared for or ignore potential disputes.
Lawrence J. McNamara, a shareholder in Spencer Crain Cubbage Healy & McNamara pllc, has for more than 30 years counseled and defended employers regarding their employment practices. Board-certified in labor and employment law, he has a nationwide practice in EEO, labor relations and NLRB matters. www.spencercrain.com