Perhaps the Most Difficult Situation . . .

This is a hypothetical, fictional series of fact patterns designed to illustrate the legal points.

First scenario.  Agnes, a 110 pound female, applies to be a field laborer with your concrete company. She seems a little frail, so your initial reaction is to laugh and tell her there’s no way she could ever do the job. Agnes walks out. Three weeks later, you get a discrimination charge from the Equal Employment Opportunity Commission. You will lose, and you might best be served by conducting immediate damage negotiations.  You cannot lawfully presume that a female applicant is incapable of performing the work.

Second scenario.  Agnes applies for the field laborer position, and although you are a little skeptical, you tell her that she can start work the next day. Agnes shows up, ready for training, and although she struggles a little bit, Agnes finishes the training, so she starts work. A few days later, the crew leader comes to you complaining that Agnes is not capable of doing the job. You ask the crew leader for specific examples of Agnes’ shortcomings, but the crew leader simply responds that she cannot carry the forms or do any of the heavy lifting. You fire Agnes. Three weeks later you get notice from the Equal Employment Opportunity Commission alleging that you have discriminated against Agnes.

This situation is a little risky. You could win the discrimination charge if the investigator believes your crew leader, but this is probably unlikely. Your crew leader cannot point to any specific shortcomings, but instead, believes that Agnes was incapable of carrying forms and performing any heavy lifting. This situation probably leads to litigation where you, your crew leader, and perhaps others from your company will be tied up in court for days or weeks.

Third scenario. Factually the same as above, but here, when you ask your crew leader for specific examples of Agnes’s shortcomings, he pulls out a notepad and shows you documentation of numerous times over the preceding several days where Agnes dropped a form or was otherwise unable to perform her duties. You see that he has recorded the incident, date, time, and when applicable, who else was involved. In short, it is a very detailed summary of Agnes’s shortcomings.

This one is a lot better for you. By producing the crew leader’s notepad to the EEOC investigator, the investigator is faced with substantial proof that Agnes was not capable of performing the job. The likelihood, here, is that EEOC dismisses the discrimination charge and your company saves a fortune in litigation expenses.

Fourth scenario. Assume the same facts as above, but instead of terminating Agnes, you offer her a clerical position in your office. You may think that you are free and clear, but remember Agnes has a minimum of 180 days (and perhaps as much as 300 days) to file a charge EEOC or a state anti-discrimination agency. Therefore, your best defense is to write a memorandum recording the facts at the time of the offer to her. Be as complete and thorough as possible, and you may want to get the crew leader’s statement.

Fifth scenario. Agnes applies for the position. With her is Wanda and they appear to be very close, holding hands and otherwise physically and emotionally supporting each other. During the application process, Agnes says she is looking for high-paying work so she can save money to marry Wanda. You do not believe that is ethically right and you do not employ her.

Today, this is very dangerous. Although the federal government seems to now take the position that gender orientation is not properly the subject of Title VII discrimination, state and local government is much less clear. This means that although the EEOC is not likely to entertain Agnes' charge of discrimination, a local plaintiff’s attorney may very well sue your company, and you, alleging LGBT discrimination. This could embroil your company in extensive, and very expensive, litigation. Moreover, it is not clear that you would win in some states. Therefore, it is safest to ignore Wanda completely and put Agnes to work.

Please note that these are just some of the situations a contractor may face. For example, Agnes could just as easily be Andy. Moreover, either Agnes or Andy could develop a disability in the first few days of work. No matter what happens, you should remain neutral and not make assumptions. Also, when in doubt, seek competent legal counsel.