By: Amy Matthews, SPHR

Is “stupid” a protected class?

Hopefully that question hasn’t put you off. This is an actual question I was asked by a member recently. This member was about to increase their number of employees to the next threshold. All the new rules and regulations (“protected classes”)  they were about to be governed by had them in an understandably frustrated frame of mind.

HR is tough.  We protect the employees; we also protect the company.  It is our job to advise management what the rules are, and then they decide how best to proceed considering the rules that apply and what need to be done to run the business.

What are the rules? What do we mean by the rules?

Basically, playing by the rules (when it comes to HR) means that the regulatory bodies who govern employers (think: Equal Employment Opportunity Commission, Department of Labor, Occupational Safety and Health Administration, etc.) will not take an active interest in a complaint made against your company unless you have a certain number of employees.

Case in point—You have 8 employees. One of them has recently announced that she is pregnant (also potentially making her a member of a protected class).   She is late (and often) due to morning sickness.  She has also informed you that she must take time off to go to her doctor appointments.  Sometimes her feet swell and she has asked to have a footstool of some kind in her office so she can elevate her feet. You are doing your best to comply with her requests because she is a good employee, but you only have 8 people and you just can’t function without her full participation. Her frequent tardiness and absences are felt and it is hurting your business.  What is an employer to do, in good conscience?

Well, if you have 15 or more employees, the pregnant employee is part of a protected class. Your company is subject to the Pregnancy Discrimination Act of 1978 at the federal level, and the Nevada Pregnant Workers’ Fairness Act at the state level.  At its most simple, this means that you cannot discriminate against this worker and you must do everything you reasonably can to accommodate her pregnancy and related conditions.  If you don’t and she files a complaint against you, action will be taken and it is highly likely that fines will be assessed.

But, remember, in the scenario above you only have 8 employees. So, what does that mean for you?  It basically means you can do what you want—with the only risk being to your reputation.  By virtue of your size, you are not subject to the requirements or the punishment under the aforementioned law. Your pregnant worker is not considered a member of a protected class with less than 15 employees, in the eyes of the law.

Our best advice in cases like this is to do the right thing by your employee, regardless of size, and without placing stress on the functionality of your business.  Sometimes, this just isn’t possible, especially in a smaller company. Accommodations can be costly and the rules about accommodations vary by size.

Here are some of the more common thresholds to be aware of:

• Age Discrimination in Employment Act (ADEA) – 20 employees
• Americans with Disabilities Act (ADA) – 15 employees
• Civil Rights Act of 1964 (Title VII) – 15 employees
• Genetic Information Non-Discrimination Act (GINA) – 15 employees
• Pregnancy Discrimination Act of 1978 – 15 employees
• Family & Medical Leave Act of 1993 – new regulations in 2009 (FMLA) – 50 employees
• Equal Pay Act of 1963 (EPA) – 15 employees

As your company grows, it may seem at times that you are inundated and drowning in new rules.  Stay educated and aware. It isn’t that difficult to adjust to these thresholds when you are following best practices already.