Employment laws can be downright scary for many employers. Ghosts, Goblins, Ghouls, Zombies . . . . could they be protected by Federal Employment Laws?
As you celebrate Halloween today, here is a Ghoulish Guide to prevent discrimination from General Counsel, P.C.
Age Discrimination: The Age Discrimination in Employment Act (“ADEA”) prohibits age discrimination against “people” who are age 40 or older and is applicable to employers with 20 or more employees (note, state/local laws will cover smaller employers). The age of a ghost, goblin, ghoul or zombie will have to be determined on a case by case basis. A zombie, as defined by Merriam-Webster, is “a dead person who is able to move because of magic” or who has been “supernaturally reanimated.” Accordingly, zombies could be covered if 40 years of age or more.
Disability Discrimination: The Americans with Disabilities Act (“ADA”) prohibits discrimination against qualified individuals because such individual has a physical or mental condition that substantially limits a major life activity, has a history of a disability, or is believed to have a physical or mental impairment that is not transitory. Further, the ADA requires an employer to provide a reasonable accommodation to an employee or job applicant unless doing so would cause an undue hardship. And, finally, the ADA also prohibits discrimination based on a person’s relationship with a person with a disability. As relevant to ghosts, goblins, ghouls and zombies, the ADA is a Stephen King novel waiting to be written. Would a ghost be covered under the ADA? Merriam-Webster defines a ghost as “the soul of a dead person thought of as living . . . or appearing to living people.” Personally, when I think of ghosts, I think of Casper (my favorite Halloween costume for about 5 years (as a child)) or the ghosts in Ghostbusters. It is arguable that neither Casper or the Ghostbuster ghosts would be a “qualified individual with a disability.” Ghosts merely float around and may not be able to utilize a keyboard for typing or other essential functions of a job. Depending on the essential functions of the job and the size of your company, a ghost could be covered by the ADA and an individualized assessment will have be to done to determine whether reasonable accommodation is appropriate. The ADA could also protect Zombies if an employer “believes” that the Zombie has a disability. Whenever I see Zombies, they always appear to have missing body parts or other decay. Even if this does not rise to the level of an actual disability, employers need to be careful if they “regard” the Zombie as having a disability.
Genetic Information Discrimination: The Genetic Information Nondiscrimination Act of 2008 (“GINA”), prohibits genetic information discrimination. This offers real protection for goblins and ghouls. Merriam-Webster defines a goblin as “an ugly and sometimes evil creature that likes to cause trouble.” A ghoul is “an evil creature . . . that robs graves and eats dead bodies.” Under GINA, genetic information includes information about an individual’s genetic tests, the genetic tests of a family member, as well as information about the manifestation of a disease or disorder in an individual’s family members. Now, goblins and ghouls are clearly defined as “evil creatures.” Goblins are also ugly. It is not the purpose of this article to speculate on the cause of goblins and ghouls condition — but, as employers, if a non-goblin/ghoul employee has a goblin/ghoul family history, that family history should be excluded/ignored when making employment decisions.
Religious Discrimination: Freedom from religious discrimination is part of the protections provided by Title VII. Religious discrimination involves treating a person unfavorably because of his/her religious beliefs (or who he/she is married to). Title VII requires an employer to reasonably accommodate an employee’s religious beliefs or practices, unless doing so would cause more than a minimal burden on the operations of the employer’s business. Accordingly, if a Zombie was practicing magic or other Zombie related practices, this could, for purposes of this article, trigger Title VII protections. That being said, if the Zombie’s behavior included seeking to make other employees “undead,” that is definitely a burden on an employer’s business (unless, of course, they no longer needed sleep and could no longer be injured on the job, but that just raises issues with the Fair Labor Standards Act and Occupational Safety and Health Act. . . .).
Practical Counsel: Every employer gets frustrated and believes that their employees are evil creatures (see definition of Goblin and Ghouls). All employees often believe that their employees are possessed (see definition of Zombie). And, of course, with the coming and going of employees, they can be Ghosts. . . . Our lesson, today on Halloween and always, is to treat all employees equally. Don’t make employment decisions based on differentiating factors without careful analysis of employment laws (and consultation with employment counsel).
With strong policies, good communication, and thoughtful decisions, employment law does not need to be scary — even if your employees are sometimes ghosts, goblins, ghouls or zombies.