Category Archives: Discrimination/Harassment

Going Wild About Service Animals at Work

Animals as a public accommodation.

A growing public trend is the presence of service animals in places like stores, restaurants, schools, airports and job sites. The basis for this trend is not a new one. It comes from Title III of the Americans with Disabilities Act (ADA) which guarantees people with disabilities the “full and equal enjoyment of the goods, services, facilities, privileges, advantages or accommodations of any place of public accommodation.”  This guarantee from the ADA allows for the use of service animals to help people with disabilities accomplish these public accommodations.

The difference between Service Animals, Emotional Support Animals, and Therapy Animals.

Some employers react negatively to the idea of allowing service animals in the workplace. This might be due to a misunderstanding of the difference between service animals, emotional support animals, and therapy animals. These are entirely different categories of animals.

Service animals are not considered to be pets. These are trained animals that must qualify in two categories to be protected as service animals under the ADA: Continue reading Going Wild About Service Animals at Work

NEW EEOC Case Reminds Employers That Sex Discrimination Isn’t Just for Women – Men Can Be Victims Too

Generally, when one thinks about sex discrimination what comes to mind is a woman being discriminated against by her employer because of her gender.  While that is typically the case, employers should remember that sex discrimination isn’t reserved for women – men can be victims too.  A recently settled EEOC lawsuit (EEOC v. Park School of Baltimore Inc.) makes this point clear to employers with a $41,000 price tag.

In this case, a private school in Maryland had hired a man to coach its softball team.  The coach was given a one-year contract in 2014, which the school then renewed for two additional years (2015-2016).   At the end of the 2016 season, the coach was informed that, despite his good performance, the contract would not be renewed for 2017 because the school preferred “female leadership” for its softball team.

The coach filed a claim with the EEOC alleging that he had been discriminated because of his gender and the EEOC agreed, filing a lawsuit against the school for gender discrimination.

While the case was quickly settled, it serves as an important reminder to all employers that “Title VII protects both men and women from unequal treatment based on gender.”

NEW LAW: Suffolk County, New York Bans Salary History Inquiries

New York’s Suffolk County recently passed a county ordinance prohibiting employers from inquiring into an applicant’s salary history as a part of the hiring process.

Under this new law, which goes into effect on June 30, 2019, employers are prohibited from

  • Inquiring about a job applicant’s wage or salary history, including but not limited to, compensation and benefits.
    • “to inquire” means to ask an applicant or former employer orally, or in writing, or otherwise or to conduct a search of publicly available records or reports.
  • Relying on the salary history of an applicant for employment in determining the wage or salary amount for such applicant at any stage in the employment process, including at offer or contract.

By passing this new law, Suffolk County becomes the fourth locality in New York State to enact a salary history ban law (joining New York City, Westchester County, and Albany County).  To date, New York State has NOT enacted a statewide salary history ban law.

It is recommended that employers in Suffolk County verify that all employment application materials are updated to remove any requests for salary history – including job applications and job interview scripts.  In addition, all employees who are involved in the hiring process are trained about the new requirement and informed that they are not allowed to inquire into applicant’s salary history.

Turning a Blind Eye Can Cost a Company High Dollar Settlements

Recently, the EEOC laid a heavy hand on Green Apple, LLC, DBA Applebee’s Grill and Bar, for allowing two sisters to be sexually harassed for months by an assistant manager, which included physical groping, soliciting sex and enduring offensive sexual comments.  The sisters allege that despite multiple complaints to management, and the fact that many of these incidents were witnessed by members of management, the harassment was allowed to continue with no investigation or corrective action taken by the company.

The company was ultimately held responsible for creating a hostile work environment and was mandated to pay a $75,000 monetary settlement to the sisters. In addition, the company entered into a two-year consent decree to develop an auditing process to assist the company identify and address sexual harassment violations or potential violations; provide anti-harassment training to all area directors, general managers, assistant general managers, and assistant managers; and to report to the EEOC all complaints of sex-based conduct or comments made by employees.

In legal terms, this is called Vicarious Liability, which means an employer is liable for a hostile work environment created by a supervisor, manager or an individual perceived to have authority over employees. Continue reading Turning a Blind Eye Can Cost a Company High Dollar Settlements

Does Your Company Website Really Have To Be ADA Complaint?

Is it necessary that your company website offer accessibility for people with disabilities?

In June of 2017, Florida federal District Court Judge Robert Scola found Winn-Dixie liable under The Americans with Disabilities ACT (ADA) Title III regarding Public Accommodations and Commercial Facilities guilty of not making accommodations to their website. The court decided the additional cost of upgrading the website was insignificant and not an undue burden when compared to the cost Winn-Dixie spent on creating the website itself.

It has become a growing trend that private parties are filing federal law suits for unsubstantiated violations. In 2017, there was only 814 federal lawsuits filed and according to UsableNet over 2,200 cases where filed in 2018; that was an increase of 181% from the prior year.

In a letter from Congress to the Attorney General, “The absence of statutory, regulatory, or other controlling language on this issue only fuels the proliferation of these suits since there are no requirements these complaints have to meet. In fact, in most cases these suits are filed for the purpose of reaching a financial settlement and little or nothing to improve website accessibility.”  Congress address the fact that no defined guidance has been establish and law suits of this matter will continue to increase. Continue reading Does Your Company Website Really Have To Be ADA Complaint?

NEW LAW: Prohibits Discrimination Based on Gender Identity or Expression in New York

On January 25, 2019, New York Governor Andrew Cuomo signed The Gender Expression Non-Discrimination Act (GENDA) into law. This new law amends the New York State Human Rights Law (NYSHRL) by adding gender identity and gender expression to the list of protected classes. With this addition, discrimination in the workplace based on an individual’s gender identity or gender expression is now prohibited.

“The term “gender identity or expression” means a person’s actual or perceived gender-related identity, appearance, behavior, expression, or other gender-related characteristic regardless of the sex assigned to that person at birth, including, but not limited to, the status of being transgender”.

What does this mean for employers?

  • Employers will have to develop and implement new anti-discrimination policies and anti-harassment policies.
  • Make sure anti-discrimination/anti-harassment training programs address gender identity or expression discrimination.
  • Training managers on detecting such discrimination will be needed.
  • Education/train employees on the forms of harassment and discrimination.
  • Provide reasonable accommodation if needed.

Cautious Optimism for Holding Disabled Employees Accountable for Attendance Issues

Many employers and HR professionals view disabled employees as being immune to disciplinary actions when they have attendance violations. This view is often based on past experience and the many negative “war stories,” that are often shared when employers are sued for disability discrimination – even after they believe that the were doing everything correctly.  The stress of these stories and experiences often causes business leaders to become overly cautious and implement practices where disabled employees are never terminated and never disciplined. While that might suit some situations, recent appellate court decisions have shown that such over-corrections might not be necessary in every case.

There are three recent decisions that come from the Court Appeals that point to the same conclusion – employers can consider attendance as essential to the function of just about and job and in some cases can terminate disabled employees for attendance related issues. The caveat of doing such terminations is that the attendance issues must not be for reasons that are protected leave under laws such as the Family and Medical Leave Act (FMLA), the Americans with Disabilities Act (ADA), and any state laws of this nature, including local sick leave laws. When unapproved absences are not related to a protected leave, these decisions show that courts have leaned in favor of employers being able to terminate disabled employees. Continue reading Cautious Optimism for Holding Disabled Employees Accountable for Attendance Issues

Don’t Tell Me How To Dress, Or Can You?

This is the million-dollar question…literally (well almost). Violating the state and federal anti-discrimination laws can cost employers thousands of dollars per violation.

“Can’t an employer impose a dress code?”, you ask.  Do you have to allow employees to show-up in any “get up” they’ve imagined for the day, costing you customers, reputation and possibly your business.

Before we answer that question, let’s look at the issue from another perspective.

The law is continually expanding to cover more individuals and the definition of sex has grown to cover gender expression, gender identity, transgender, sexual orientation and other LGBT groups.

Because our definition of sex is no longer limited to “boy” or “girl”, our dress codes will also need to expand. Continue reading Don’t Tell Me How To Dress, Or Can You?

CALIFORNIA EMPLOYERS — Be Sure To Reset The Clock On Employee Sexual Harassment Training

This past fall, California enacted  Senate Bill 1343,  a law that greatly expands the sexual harassment training requirements (AB 1825 training requirements) in California.

As we previously reported (in”NEW LAW: New Sexual Harassment Training Requirements For California Employers“), this law requires California employers with five or more employees provide sexual harassment training to both non-supervisory and supervisory employees (including all temporary and/or seasonal employees) as follows:

  • Existing Non-supervisory Employees: At least 1 hour of sexual harassment training by January 1, 2020.  Thereafter, sexual harassment training must be provided once every two years.
  • Non-supervisory Employees hired after January 1, 2020: At least 1 hour of sexual harassment training within 6 months of the employee’s hire date.  Thereafter, sexual harassment training must be provided once every two years.
  • Temporary or Seasonal Employees: At least 1 hour of sexual harassment training within 30 calendar days after the hire date or within 100 hours worked if the employee will work for less than six months.
    • NOTE: If the employee is employed by a temporary services employer, the training must be provided by the temporary services employer, not the client.
  • Existing Supervisory Employees: At least two hours of sexual harassment training must be provided by January 1, 2020.  Thereafter, sexual harassment training must be provided once every two years.
  • Supervisory Employees hired after January 1, 2020: At least 2 hours of sexual harassment training within 6 months of the employee’s hire date.  Thereafter, sexual harassment training must be provided once every two years.

Continue reading CALIFORNIA EMPLOYERS — Be Sure To Reset The Clock On Employee Sexual Harassment Training

NEW LAW: Illinois Employers Are Your Handbooks Compliant With The New Sexual Harassment Notice Requirements?

Attention Illinois employers … The 2018 Amendments to the Illinois Human Rights Act (IHRA) (found in Public Acts 100-0588 and 100-1066) imposed new requirements on employers relating to notifying their employees about sexual harassment.

Under these amendments, employers are required to provide employees with specific information about employee rights to be free from sexual harassment.   In particular, employers must include the text contained in the new anti-harassment/discrimination notice (titled “You Have the Right to Be Free From Job Discrimination and Sexual Harassment”) in the employee handbook.

It is recommended that all Illinois employers review their handbooks and verify that the required language is included.