Discrimination Against Gay Married Couple?

[Allen McCloskey]

Jurisdiction

California

My Employer St. Joseph Hospital is refusing to let my husband and I work in the same department even if we agree to work different shifts and have absolutely no supervisory role and/or oversight of each others work product. They are making me work at another campus some 20 miles from my home instead of the campus just 5 minutes from my home, where I have successfully worked, without issue, for the past 2.5 years. They are resting their decision on a policy titled "Employment of Relatives Policy" which I have enumerated below. Please note that while the policy itself as it reads is a sound concept and a conventional practice, the hospital management has a long standing history of making exception after exception for heterosexual couples, specifically and currently in the very department I have applied to there are three (3) married heterosexual couples working together in the same department, same hospital and occasionally on the same shift. My concern and potential claim of discrimination is founded on the fact that my husband and I as an openly gay married couple are being held to a different standard and that the hospital management is unfairly applying this policy to us instead of following the precedent they have established by allowing exceptions for multiple heterosexual couples.

I am soliciting a sound legal opinion via this forum before reaching out to Counsel to discuss options of pursuing legal action on the basis of discrimination. Your input and review is truly appreciated.

Many Thanks,
Allen McCloskey

Employment Of Relatives


SCOPE:
All current and prospective St. Joseph Health (SJH) employees, independent contractors, and Heritage physicians.

PURPOSE:
To establish guidelines for the hiring, transferring and promoting of relatives of employees.

TERMS:
Conflict of Interest refers to a circumstance when any action or decision in which an individual is involved may have, or appear to have, a direct or indirect effect on a financial or other interest of the individual, the individual's family member, or organization in which the individual serves as a board member, trustee, partner, independent contractor, employee, or other position.

Relative, for the purpose of this policy, refers to a spouse or domestic partner, child (biological, adopted, foster), parent, sibling, grandparent, grandchild, aunt, uncle, cousin, niece, nephew, and all of the these relatives who are in-law or step-equivalents. SJH reserves the right to include other relatives if the situation warrants that consideration.

POLICY:
SJH desires to hire and retain the best team possible in support of our values of Service and Excellence and, therefore, does not discriminate with regard to the employment of relatives. However, relatives of employees may not be employed in the same office, department, facility, or unit if that relationship would create – or has the potential to create - conflicts of interest or problems of supervision, safety, security, confidentiality or morale.

PROVISIONS:

1. Relatives of employees are considered on an equal basis with other applicants who have similar qualifications. Regardless of relationship, all applicants must follow the same hiring policies and procedures.
2. Requests to employ relatives must be submitted in writing to Human Resources prior to any employment decisions.
3. Relatives of employees may be hired, transferred or promoted only if the following conditions are met:
   1. An employee would not have direct or indirect authority or responsibility to hire, supervise, evaluate, appoint, promote, transfer, remove or discipline the relative.
   2. An employee would not be responsible for auditing the work of a relative.
   3. Relatives would not work the same shift and report to the same supervisor if, at the discretion of SJH, the situation would create, or has the potential of creating, a conflict of interest or problems of supervision, safety, security, confidentiality or morale.
   4. No circumstances would place relatives in a situation of actual or foreseeable conflict between St. Joseph Heath interests and their own, as determined by St. Joseph Health.
   5. Hiring of relatives of Accounting, Human Resources or Administration employees must be approved by the Vice President of Human Resources prior to extending a job offer.
   6. No other conflict of interest exists or has the potential to exist.
4. The employee is responsible for notifying his/her supervisor and Human Resources when a change in family relationship (including marriage) occurs in the workplace or when a relative may be placed in the same department.
5. If a promotion or transfer of a relative were to occur that would, or potentially could, create a conflict of interest or problem of supervision, safety, security, confidentiality or morale, a decision as to which relative will transfer or resign will be made by the Vice President of Human Resources, or his/her designee, after consultation with the two employees and their supervisors.
6. Exceptions to the above provisions require the approval of the Vice President of Human Resources.
7. All exceptions are documented in the employee's personnel file.

 

[KatDini]

They are free to enforce their policies or not as they see fit.

 

[Allen McCloskey]

I agree with your statement so long as they apply policy consistently and not in such a a way that it is applied differently to a gay couple vs. a heterosexual couple.

 

[army judge]

Nothing you've revealed is discriminatory.
A NO doesn't mean it's discriminatory.
Heck, maybe your superiors just don't like you.
Not being liked isn't a cause to shout discrimination.
You're always free to seek employment elsewhere, or found your own hospital.
Frankly, most employers don't care what you do or who you do it with when you're on your own time.
Good luck.

 

[cbg]

If they have even once held to the policy for a heterosexual couple, that will make your case difficult to make.

However I see no reason why you should not run the question past an employment attorney in your state.

 

[ElleMD]

If the policy is applied only to same sex couples and not heterosexual couples, then it is discriminatory. It is not discriminatory if the exceptions are made for good reason (special skills, grandfathered in before the policy was implemented, made as an accommodation under some other law, etc.). You would likely not be privy to the reasons for the exceptions, but it is worth asking why it is being enforced in this case. Have any other couples been transferred?