Another Example: There's No Law Against Quirky Management
Last week the New Jersey Employment Law Blog discussed an amusing and interesting article about an Austrian company that would hire only people born under certain signs of the Zodiac (“What’s Your Sign? Really? You’re Hired”).
At first, I smiled and forgot about the post. But, then I thought about it a little.
NJELB was kinder than I might have been by observing hat the policy was not irrational. It was backed up by a statistical correlation. I might have pointed out that a statistical correlation establishes no cause and effect relationship. So, while not irrational, the policy was based on faulty reasoning. On the other hand, I would agree with NJELB that if the policy does not discriminate against a protected class and reflects the company’s business judgment (poor or otherwise), then the company would have every right to implement that policy here in the U.S.
That somewhat lengthy introduction leads to my point: As attorneys we are often in the position of counseling disgruntled employees that there is no law against quirky or even poor management. Often consultations are extended simply because it takes some time to draw out of the facts to distinguish between actionable discrimination and merely annoying, even counter-productive supervisory practices. In the interest of full disclosure, in the distant past I have had, as you might have guessed, first-hand experience with that kind of business judgment
Quirky management and arbitrariness, however, do not entirely escape judgment. The marketplace has a way of imposing its own judgment.
