An employer may not make employment related decisions on the basis of a person’s place of birth, their citizenship status, their cultural traditions, and even personal characteristics that reflect a person’s cultural background – like an accent or a preference for a particular language. When we think about racial discrimination, we often think in terms of broad generalizations – like black and white – but discrimination can involve any type of distinction based on a person’s cultural background. Not only does the law prohibit discrimination against a person based on her individual cultural background, but it also prohibits discrimination based on that person’s choice to associate with people of different cultural backgrounds. For example, a decision not to hire a person because she chose to marry someone of a particular cultural identity is still discrimination. And racial discrimination doesn’t apply only to employment decisions that affect minority populations. A preference for hiring workers from a particular country, or for hiring foreign workers over American citizens can also be grounds for a discrimination claim. In later sections about advertising, interviewing, and hiring, we’ll talk about some issues specific to those stages of the employment relationship, like the distinction between discrimination on the basis of national origin and the requirement to ensure that a potential employee is legally authorized to work in the United States. It’s important to remember, though, that cultural characteristics should not be allowed to influence decisions at any stage of the employment relationship.

An employer may not make employment related decisions on the basis of a person’s religion or beliefs. While religious discrimination clearly applies to a person’s affiliation with a particular organized religion, it also applies more broadly to expressions of religion in the workplace. For example, basing an employment decision on a person’s request to wear religious attire in the workplace may be grounds for a discrimination claim. Likewise, treating a person differently based on a decision not to participate in religious activities in or outside the workplace can give rise to a discrimination claim. Protections against religious discrimination also include discrimination based on a person’s “creed”, which simply means a set of moral beliefs or practices. Those individual beliefs are protected against discrimination, even if they are not reflective of an organized religious tradition.

A person’s “sex” can’t be allowed to influence employment decisions. Sex discrimination is not limited to treating female employees differently from male employees. It includes discrimination based on sexual orientation and gender identity, as well as discrimination based on conditions associated with a person’s gender, such as pregnancy, breastfeeding, or contraceptive use. For example, a well-intentioned employer might instruct a pregnant woman not to do work that involves climbing a ladder, but the law doesn’t allow an employer to prevent a person from performing her job based on assumptions about her ability to perform the essential functions of the job. It’s a different story if a pregnant employee asks for a different job assignment or other accommodations to reduce safety risks. In that case, you may need to consider whether you can reasonably provide modifications to the work environment without major impact on your business activities. We’ll talk a bit more about reasonable accommodations in the upcoming section on health conditions, but the key point for now is that it’s not okay to make employment decisions based upon assumptions or stereotypes about gender roles or gender-related conditions.

A person’s choice to marry or not marry, including the choice about who to marry, can’t be allowed to change the way they are treated in the workplace. For example, a person’s decision to marry a same-sex spouse can’t be grounds for different treatment. Likewise, a decision not to hire or promote an employee because he or she is a single parent could lead to a discrimination claim. It’s generally okay to have a policy against employing married couples or family members in the same workplace, but only if the policy is applied equally toward all employees or job applicants.

While in some cases, age may make a difference in a person’s ability to perform a job, the law protects anyone over age 40 against employment discrimination on the basis of age. Although it may be true that older persons may not be well suited to performing certain jobs that require physical strength or involve hazardous conditions, age alone is not a legitimate basis for treating one person differently from other, younger, people. While a certain job might seem better suited to younger or less experienced employees, farm employers need to take care not to discourage older employees who are equally able to perform the duties of the job.

In most cases, a person’s health conditions or disabilities can’t be used as a reason for making employment decisions. Farm work is often physically demanding, which can make it tricky not to base employment decisions on a person’s physical ability or health conditions, but that makes it all the more important to focus on what the job actually requires, rather than our perceptions of how well a differently abled person might perform. When it comes to health or medical conditions, the law requires employers to consider applicants equally where reasonable modifications to the work environment would enable an employee or job applicant to perform as well as an equally qualified person without a health or medical condition. That may mean thinking about whether equipment or processes can be adapted, but it could also mean thinking about changes to the work schedule or the way instructions are communicated to the employee. For example, if an employee says that she is having difficulty getting to work on time because of medical treatments she is undergoing, think about whether it is possible to change the start time of her work day without disrupting essential operations.

The law also requires employers to provide reasonable accommodations when requested during the application and interview process. That may mean, for example, facilitating the use of interpreters or telecommunication devices for applicants with vision, hearing, or speech impairments, which will be explored in more detail later in this guide.

Farm employers need to be aware that basing employment decisions, even in part, on criminal records can lead to a discrimination claim. With records of court proceedings publicly available in Wisconsin, it may be tempting to perform your own background checks on prospective employees but Wisconsin law prohibits even asking about a person’s arrest record except when charges have been filed and the criminal case has not yet been resolved. In some cases, past convictions for criminal charges can provide a legitimate basis for firing or choosing not to hire or promote a person, but only if the charges relate to a large extent to the nature or duties of the job.

For example, it may be appropriate for a bank not to hire a security guard with a record of convictions for bank robbery, but that type of conviction probably would not relate to performing farm labor or operating farm equipment. Even serious and shocking crimes, like sexual assault, cannot influence employment decisions unless something about the work environment makes it likely that the person would engage in the same type of behavior in the workplace, or something about the nature of the past crime demonstrates personal characteristics that make it unlikely the person could effectively meet the responsibilities required by the job position. A history of convictions for drunk driving during work hours might be related to the responsibilities of a job that regularly involves using a company truck to make deliveries to restaurants that serve alcohol, but it probably would not be related to a job that involves packing vegetables under supervision. At the end of the day, a person with a record of convictions that are not related to the duties and expectations of the job should be treated the same as any other equally qualified person with no record of convictions.

In most cases, a person’s history of military service can’t be allowed to influence employment decisions. It may be hard to imagine discriminating against a person for service in the armed forces, but the law goes farther than simply saying that a person’s veteran status can’t be used as the reason for an unfavorable employment decision. For example, the fact that a person is applying to enter military service or is likely to be deployed for military service or national guard training generally can’t be used as a reason for firing or not hiring that person. Service members are also entitled to job protections when they return from active duty. In most cases, employers are required to reinstate military veterans to positions they held before deploying for duty, even if that means making special efforts to accommodate a service-related disability or health condition. Farm employers are not, however, required to offer any special preference when hiring or promoting veterans or service members. In fact, offering a preference toward veterans may be viewed as discriminatory toward women or minority groups who are underrepresented in military occupations.

While it’s fine for an employer to prohibit smoking or drinking alcohol during the workday, the same doesn’t hold true for employee behavior outside the workplace. An employee’s decision to use or not use any lawful product outside the workplace and outside of normal working hours generally can’t be used as the reason for any kind of employment decision, including hiring, firing, promotions, and wage rates. Under Wisconsin law, “outside the workplace” means off the employer’s premises and not during working hours. That includes alcohol and tobacco use, as well as the use of any prescribed medications or legal over-the-counter medications. It’s okay to fire or refuse to hire an employee if that person’s use of a lawful product impairs her ability to perform the duties and responsibilities of the job or reflects badly on your business, but even then, you should consider whether you can modify the conditions of the job to work around the impairment. For example, if an employee takes prescription medication that causes drowsiness in the morning, you should consider whether the needs of the job can still be met with a later start to the employee’s workday.

The same doesn’t necessarily hold true for an employee’s unlawful activities, such as the recreational use of marijuana or other drugs that remain illegal under either Wisconsin or federal law. It’s okay to make employment decisions based on the use of unlawful products in or outside the workplace, but it’s a good practice to make sure that any such decisions are based on written policies that apply equally to all employees. It’s also important to keep in mind that while current use of illegal drugs is not protected under the law, drug addiction is typically considered a disabling health condition that is protected against employment discrimination. As with any other health condition, an employee struggling with drug addiction may be entitled to workplace accommodations, when reasonable, such as taking time off to receive treatment.

Most farm employers pride themselves on building a work culture that makes for happy, engaged, and productive employees. Sometimes, though, bullying or harassment can take place in ways or at times that are not immediately obvious. If harassment involves any of the grounds for discrimination we’ve already described, that can lead to a discrimination claim. Even when harassment doesn’t involve a discriminatory characteristic, it can still lead to legal problems if the work environment gets so hostile that it affects an employee’s health or ability to perform the job. That means farm employers need to think about how to cultivate a work environment where employees can easily and comfortably discuss any problems they might be experiencing. If a problem does get brought to your attention, the most important thing to do is take the problem seriously and try to make an objective decision about the best way to resolve the conflict. Depending on the circumstances, you may want to consult with an attorney to determine whether it makes sense for you to try to solve the problem yourself, or whether it is an issue better handled by an attorney or an outside investigator.