While under usual circumstances, an employer is free to assign workloads in any manner they choose, when a heavy workload is the result of discriminatory animus, it could be illegal. This is not an easy question because courts, as a rule, refuse to sit as a “super-personnel” department. Alone, a heavy workload is not likely to be considered an adverse employment action that could serve as the basis of a discrimination claim. However, it can be evidence of discrimination if only certain employees are affected.
When employers are not being consistent in their assignments
In order to be fair to all employees, employers need to be consistent when it comes to work assignments. This means being sure that certain protected categories of employees aren’t given less favorable assignments or heavier workloads than those who are not in those same protected categories. Another issue arises when an employer assigns extra job duties, without the necessary training to perform them. Some courts see this as possibly setting up the employee to fail.
Examples of potential discrimination or hostile work environment
For instance, a maintenance engineer, who was of Indian descent, claimed that he was given a heavier workload and not provided an assistant as other engineers were. Considering the allegations that the employee was subjected to racial slurs as well, the court determined that there was enough evidence to maintain a hostile work environment claim.
In a federal case in Alabama, a 63-year-old employee was terminated for alleged poor performance, despite the fact that he had earned positive reviews for decades. The employee alleged, however, that he had been methodically set up to fail by his new supervisor who enforced additional requirements on the employee that were not enforced upon others.
Increasing workload in retaliation for protected activity
Another issue that can arise is when workload changes occur immediately after the employee has engaged in a protected activity, such as making complaints of discrimination or taking FMLA leave. One case out of Kentucky involved employees of a packaging facility who were immediately reassigned from their regular jobs to “the most rigorous and labor-intensive job at the company” after they each had returned from FMLA leave. Because of their ages and the physical impairments, they could not perform the rigorous duties and eventually resigned. The issue became whether these employees were set up to fail and constructively discharged, in retaliation for taking FMLA leave.
In most cases, the only way to defend against these claims is to demonstrate that the decisions to change or increase an employee’s workload are based on reasons entirely unconnected to the employee’s protected category or activity, i.e. a legitimate business reason.
Employee Protections Provided By Federal Law
Most legal protection for employees comes from federal law, which prohibits discrimination and harassment based on gender, race, age, disability, or pregnancy. There are also laws that protect whistleblowers and protect against overtime and other pay violations. One of the principal federal laws is Title VII, which makes it unlawful to discriminate against someone on the basis of race, color, religion, national origin, or sex. It is also unlawful to retaliate against someone because they complain about such discrimination, file a charge of discrimination with the EEOC, and participate in a discrimination investigation or lawsuit.
If you feel you have been the victim of discrimination or retaliation, or if you have any questions regarding your employment rights, please contact Michel Allen & Sinor , either online or by calling us at (205) 265-1880.