Saturday, March 24 , 2018, 7:21 am | Fair 47º


Harris Sherline: Who’s the Boss?

Employers are forced to navigate a legal minefield in hiring, firing and working with employees

Should employee rights trump those of employers? When should or must an employee adapt his or her behavior to the requirements of the job? This question has been placed squarely in the forefront of public discussion about a Muslim employee who works as a restaurant hostess at Disney’s Grand California Hotel in Anaheim.

Harris Sherline
Harris Sherline

Imane Boudial was aware at the time she was hired that Disney has specific costume guidelines that are based on the company’s activities as an entertainment business. Although the company makes every effort to accommodate the needs of its diverse staff members, it noted, “our theme parks and resorts are the stage, and our costumed cast members (employees) are an important part of the show. When cast members are hired, regardless of their diverse beliefs, the expectation to comply with our appearance guidelines is made abundantly clear.”

Despite Disney’s efforts to accommodate Boudial, she has steadfastly refused to yield, insisting that she be permitted to wear a hijab, or head scarf, in public view, and rejecting a variety of alternative assignments that would permit her to do so.

Which leads us to the question: Just when does an employee’s wishes or desires reach the point where they are superior to requirements and/or the wishes of an employer?

If you own a business or are the manager of the company for which you work, you may think you’re the boss and that the people who work for you are required to follow your instructions. If that’s what you believe, you may need a reality check.

Since the 1960s, the rights of employers have been steadily eroded, to the point that today the question is — or should be — who has more rights, employers or employees?

Forty to fifty years ago, there was no question about who controlled the employer-employee relationship. It was the boss, who could pretty much hire and fire at will and had the right to expect the people who worked for the company to do pretty much what was asked of them. Not so any longer.

One aspect of the relationship that has undergone major change is the hiring process. What employers are allowed to ask when they are interviewing prospective employees has become increasingly limited.

An article in the California CPA Magazine (“Interviewing 101,” September 2007) offers the following caution: “Employment-related issues have been a legal minefield for employers. Asking the wrong questions during the interview process — or in pre-interview applications — can spell disaster for a company or firm in the form of discrimination lawsuits.”

Wow! Who would’ve thought we could be sued for asking the “wrong” questions when we’re interviewing people for a position with our company? If you think that’s not the case, think again. There is a list of 16 questions making up the labyrinth of legal issues that must be negotiated today when we are interviewing prospective employees for a job opening, ranging from an applicant’s age, place of birth, specific years of graduation from school, ethnic background, physical limitations or disability, race and religious affiliation.

In addition to not being allowed to ask for the foregoing information, a physical exam can be required only after the job offer has been extended and before the applicant starts work.

Pre-employment drug tests are allowed, but they must be administered according to specific federal and state rules. Psychological testing is not allowed unless the questions are related to the job, and the employer must have a compelling interest in giving such tests.

Skills tests are allowed only if they comply with Equal Employment Opportunity Commission/California Department of Fair Employment and Housing guidelines — to help avoid “adverse impact” claims. And, polygraph tests are generally prohibited.

It has reached the point where employers often find it necessary to consult an attorney or a human relations professional before taking almost any action on employee-related matters.

Not only is it necessary for employers to be wary of lawsuits when they are interviewing prospective employees, but they should also tread carefully with people who are already working for them, particularly when problems arise and it becomes necessary to discipline or terminate someone.

Extreme caution must be exercised in almost any employee-related matter lest we run afoul of the law and draw a discrimination lawsuit of one sort or another. And, the amount of time, effort and energy that’s expended (read wasted) for that purpose often diverts management’s attention from conducting the business of the firm, at considerable loss of time and money.

So the question remains: Who’s the boss? The owner or manager of a business, or the employees? My sense is that the pendulum has swung too far to the side of the employees, which causes management to jump through too many unnecessary and costly hoops simply to document a record in order to avoid litigation when it becomes necessary to discipline or terminate an employee.

— Harris R. Sherline is a retired CPA and former chairman and CEO of Santa Ynez Valley Hospital who has lived in Santa Barbara County for more than 30 years. He stays active writing opinion columns and his blog,

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