Paternalism is a Fail in Employment, Including During Covid

What does it mean to be a fair leader?  What does it mean to be an empathetic one? Consider this situation.

You are conducting interviews and one of the applicants is either very pregnant or something is seriously wrong. It turns out that this person is the best candidate for the job, and you offer her the job. She enthusiastically accepts the job; HOWEVER, she does so without asking any questions about your organization’s leave policies. Meanwhile, you’re pretty sure she will not have met the number of hours works required by law to qualify for FMLA and your organization’s leave policies are not generous. You decide to make her aware of the situation before she gives notice to her current employer because that’s what you’d want someone to do for you. 

What could possibly be wrong about this? A few things, actually. First, think of how this situation will look to her attorney or the EEOC. It could be construed that you’re trying to weasel your way out of hiring a pregnant person by trying to get her to decline the job. Second, do you have conversations with all candidates about leave policies? Consider this: if you were hiring a male and did not discuss potential leave policies, you’d be treating males differently than females, which is gender discrimination. Further, you would be making a lot of assumptions, including the assumption that he has no issues, health-related or otherwise, that warrant his foreknowledge of your time-off policies. Third, and let’s reach a little: lets say that you hire the pregnant person, and the work is physically demanding. You decide to adjust parts of the job to reduce the physical demands on the pregnant person; however, you weren’t asked to do that. Yes, this is a problem, too. It is up to the pregnant person to request accommodations.  

All of these scenarios are examples of paternalism in employment. Essentially, paternalism in employment is the idea that you make decisions for your employees, even ones that you think of as helpful, being nice, or “caring like a father or parent”, that have the net effect of infringing upon their rights and controlling their options. While these types of decisions are often committed against individual employees, they can also result in a culture of inconsistent employment practices across the board. No matter how helpful you’d like to be, your processes and implementation of policies and laws must to be consistent. For example, the pregnant candidate leave situation can be addressed by creating a hiring process that includes providing candidates with your policies and procedures with certain sections highlighted at the time of the offer. From this point, it becomes the candidate’s responsibility to ask the questions they need to ask to fully understand your policies and make the decisions they need to make. This also empowers candidates who have circumstances that cannot be discerned by simply looking at them. With respect to providing unrequested accommodations, just don’t do it. Avoid accusations of and actually engaging in differential and potentially discriminatory treatment by making your organization’s accommodation request procedure clear, frequently distributing it, and perhaps even sharing examples of accommodations to help them understand what is possible.

Now, take this understanding of paternalism and apply it to managing employees during a pandemic. Lets assume that you have an employee whose health history is well-known throughout the organization because the employee openly talks about being asthmatic and having heart disease. Just because you know this information, you can’t use it to decide how you will treat the employee. You have to treat that employee like you would anybody else. Your goal is to achieve regulatory compliance in the most sustainable and productive way possible. It is up to the employee to request any necessary or desired accommodations. In turn, it is your responsibility to stay abreast of all of the rapid-fire federal, state, and local changes that are becoming part of the legal landscape to protect workers while doubling down on your efforts to be consistent, yet flexible.