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While the provision may be discriminatory, it does not typically constitute prohibited discrimination.
State and federal law prohibits discrimination based on race, gender, age, disability, marital status and other protected classifications typically.
In this situation, the employees are groups by their hire date and not by race, gender, or other protected status. Therefore, the different treatment of the two groups does not constitute prohibited discrimination.
If the policy treated employees differently based on a protected status, that would constitute unlawful discrimination and be actionable by affected employees typically.
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