July 18, 2006 > Watercooler Counsel

by Rich Proulx

The Art of Targeting

Q: I am a university professor looking to relocate. In my search for another teaching position, I've noticed that several colleges have stated in job announcements that women and minorities are "encouraged" or even "especially encouraged" to apply. I thought that an applicant's race and sex weren't supposed to be considered by an employer in the hiring process what's going on?

- Positively Perplexed in Milpitas

A: Good question, Perplexed! As you may know, federal law prohibits employment discrimination on the basis of race, color, religion, sex, or national origin and applies to all terms, conditions, and privileges of employment, including advertising and recruitment. So, generally speaking, job advertisements typically should not indicate a preference based on race, sex, or ethnicity. However, because members of groups that have been historically underrepresented in a particular profession may be deterred from applying unless they are encouraged to do so, such advertisements help employers attain greater diversity among their applicants. This type of diversification initiative could apply to anyone and really should not be considered preferential hiring. For example, if men are underrepresented in a hospital's nursing department it might be appropriate to "encourage" applications from them.

Q: My employee, Jane, has been leaving work frequently during the afternoon because she is sick. A few days ago, I heard from another employee that Jane has hepatitis. I do not want to pose a health risk to the other employees by ignoring this information. What should I do?

-Stumped in Fremont

A: I can see your dilemma. Respecting an employee's medical privacy rights is important, especially in light of the federal ADA and HIPAA laws, but concern for the well-being of your other employees is important too. In this particular situation, it makes sense to do a little research. Searching the National Institute of Health website (www.nih.gov) shows that while certain forms of hepatitis have more serious health effects than others, all are very difficult to pass on to coworkers in a normal workplace setting. Possible exceptions in which more caution might be warranted would be in businesses involving food service or medical care. So, if you work in an office setting, asking Jane about her possible condition would likely be a violation of her privacy. However, if your workplace is a restaurant, and you feel it is necessary to speak with Jane, be sure to talk with her in a location where other employees will not overhear the conversation. Another option might be to reissue your company's policy regarding contagious medical conditions. Or, perhaps tell Jane you've noted her absences and ask whether she is interested in taking FMLA leave. Maybe this will open the door for her to volunteer the information to you.

Rich and his team of government experts would love for you to target us with your questions. Last fiscal year, 75,428 charges of discrimination were filed with the EEOC. Send your questions to Rich at Watercooler.Counsel@eeoc.gov who is a former Supervisory Investigator for the Equal Employment Opportunity Commission www.eeoc.gov. Identifying information in the questions may be fictional.