I am wondering whether an employer can hire two people under the same job title and pay but deny them equal working conditions.

For instance, it is common practice for Walmart to hire customer service associates under a vague job title, and thereafter assign more dangerous tasks (stocking heavy products) to the more physically capable associates and the safer tasks (stocking light products) to the less capable associates.

More detail in response to comments

The jurisdiction in California.

I am wondering if employees are protected by law if they refuse to perform the strenuous work because they've been assigned that task too much compared to others. For instance, let's say that Bob has had to spend 5 hours a week stocking the coolers and freezers and 10 hours a week stocking water for 2 years, while Adam who has the same job title as Bob has rarely had to perform such work in the same time period (assume less than 2% of total hours worked), instead Adam does the easier tasks such as stocking chips, cosmetics products, and diapers. The reason the employer provides for this allocation is that Bob is more physically capable of doing hard work.

It seems to me that in such a case, Bob is being mistreated. He deserves an equal share of the easier tasks as Adam, and if the employer wants Bob to do the hard work, they should create a separate job title for him that imposes higher qualifications that ensures that those under the same job title are able to share the work equally.

By denying Bob access to working conditions comparable to Adam's, the employer is essentially denying him a job for which he is overqualified. And in doing so, the employer is able to get Bob's more rare labor for the same price as Adam's less valuable labor.

Let's also assume Bob and Adam belong to the same protected classes.

As I understand it, Title VII and FEHA do not protect Bob from refusing, since he belongs to all the same classes as Adam.

This doesn't make much sense to me because if the employer had divided the tasks along protected class lines (i.e., gender or race) rather than by physical ability, then Bob would be protected.

The irony that I've noticed is that the very laws that were passed to protect qualified workers from discrimination now excuse discrimination against qualified workers.

Are there other laws that protect Bob from such discrimination that does not require a showing of discrimination based on protected class? Maybe an implied term in the employment contract?

  • Which jurisdiction? From your reference to WalMart, I am suspecting this is United States, but employment law still differs from state to state. – GeoffAtkins Dec 10 '19 at 7:34
  • It wouldn't be uncommon to have 2 people with exactly the same title and contract working in different areas of a shop. The vagueness is there so that people can cover other areas depending on what the staffing level is. No staff should be asked to carry out unsafe tasks. If heavy goods are required to be moved then equipment/training should be provided to make the process as safe as lighter goods (high vis/trolley loaders/etc). – Smock Dec 10 '19 at 13:16

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