In The Legal Loop

Deena B. Rosendahl Esq.

Favoritism in the workplace. Is it legal?

by Deena B. Rosendahl, Esq.

I’ve heard from many disgruntled employees who want to know whether there is any legal action they can take when their employer favors a co-worker. I’ve also heard from many employers wondering whether they are doing anything wrong by giving special favor to certain employees. This begs the question… is favoritism legal?

With all the various employment laws and regulations, both on the federal, state and local level, one would think favoritism in the workplace is absolutely not legal, right? WRONG! Depending on why an employee is favored, it may absolutely be legal.

So when is it not legal? When favoritism is based on a person’s status as a member of a protected class is it not legal. The protected classes recognized in New Jersey are: race, creed/religion, color, national origin, age, ancestry, nationality, Marital/domestic partnership/civil union status, sex, gender identity/expression, disability, military service, affectional or sexual orientation, atypical cellular or blood trait and genetic information. This means if special favor is being given only to members of a certain class, and withheld because you aren’t a member of that class, then this type of favoritism is absolutely not legal. Employees who report illegal conduct of their employers are also protected from retaliatory conduct. If employees who keep quiet about illegal activity are treated more favorably then an employee who doesn’t sit silent to these transgressions, this type of favoritism is absolutely not legal. Certain internal employment policies and/or contracts of employment may also require an employer to treat all employees the same in every situation.

However, absent one of the reasons mentioned above, an employer who tends to favor one employee over the next is not necessarily violating and laws or rights of an employee. It may not foster a harmonious workplace, but it isn’t necessarily illegal. Let’s face it, some employees just curry more favor than others and you may not be privy to the reasons why. This may be because their personalities are better suited to the company, they routinely perform work above and beyond what is required of the position, their work performance justifies special treatment, they have exemplary attendance records, or longevity with the company or some other non-discriminatory basis. Unless an employer has a policy or employment contract in place which prohibits an employer from treating employees differently based on these work related reasons, favoritism may be legal.

As an employee, if you feel you’ve been overlooked or not given the same favors as others, don’t be afraid to ask management why. You may be surprised to learn that it is your own conduct which has led management to react the way they have. Opening a dialogue is the best way to find out why and more importantly, what you can do to turn things around.

As an employer, if you tend to favor certain employees over others, make sure you document the reasons why. If you provide one employee extensions on project due dates, forgive mistakes made by one employee but not another, make sure your reasons for this different treatment is based on sound business reasons and document those reasons. Employers may not even be aware that their conduct is actually discriminatory and documenting these events may help an employer recognize patterns of behavior which need to be changed.

Kaufman, Semeraro and Leibman, LLP