Category Archives: Discrimination/Harassment

NEW LAW: Portland, Oregon Defends “Non-Believers”

The Portland City Code, chapter 23.01, currently prohibits discrimination based on race, religion, color, sex, marital status, familial status, national origin, age, mental or physical disability, sexual orientation, gender identity or source of income.

However, an amendment recently approved by the Portland City Council, which will take effect on March 29, 2019, will consider non-religious, atheists, agnostics, and non-believers as a recognized protected class.

Portland is not the first city to make this change. Madison, Wisconsin, has also designated non-believers as a protected class.

Once the ordinance goes into effect, employees will be able to file complaints with the Oregon Bureau of Labor and Industries, against employers who make adverse employment decisions, based on an applicant’s or employee’s non-belief in God. Continue reading NEW LAW: Portland, Oregon Defends “Non-Believers”

NEW CASE: While Sexual Orientation Is NOT Protected, Missouri Supreme Court Holds Sex Stereotyping Violates Missouri Human Rights Act

In a recent case (Lampley v. Missouri Commission on Human Rights), the Missouri Supreme Court has held that discrimination based on sexual stereotyping violates the Missouri Human Rights Act.

The Case

In this case, the plaintiff (a gay man) claimed that his employer had discriminated against him because he “does not exhibit the stereotypical attributes of how a male should appear and behave.” Specifically, he claimed that he was harassed at work because of his “non-stereotypical” behaviors, while male and female employees who were not gay and exhibited stereotypical male or female attributes, were treated differently.

The Ruling Continue reading NEW CASE: While Sexual Orientation Is NOT Protected, Missouri Supreme Court Holds Sex Stereotyping Violates Missouri Human Rights Act

NEW CASE: Explains The Importance of Squashing Rumors And Gossiping At The Water Cooler

In a recent case (Parker v. Reema Consulting Services)the Fourth Circuit Court of Appeals held that employers may be liable under Title VII of the Civil Rights Act for failing to effectively address and stop gossip and rumors of an alleged sexual relationship between a female employee and a male supervisor.

Background
Evangeline Parker began working for Reema Consulting as an entry level clerk, in December 2014. During her employment with the company she was promoted six times with her final role as Assistant Operations Manager being awarded in March 2016. After her last promotion to Assistant Operations Manager, vicious rumors started circulating that Parker was afforded her position because she had a sexual relationship with a high-ranking male manager.

The rumors were further exacerbated when the high-ranking manager held a meeting with a group of employees about the rumor. He even went so far as to blame Parker for bringing the rumors to the workplace.

A month after Parker had complained to Human Resources about the vicious rumors and the managers behavior, her employment was terminated. Parker later filed a lawsuit claiming sexual harassment and retaliation claims under Title VII.

The Holding

The Court of Appeals found that the alleged hostile work environment was enough to justify Parker’s claims; thereby reversing the lower court’s previous dismissal of this lawsuit.

The Court believed that the “the sex-based nature of the rumor and its effects” created a hostile work environment for Parker.  This belief was supported by several factors.

First, the Court found that the rumors about Parker “plausibly invokes a deeply rooted perception — one that unfortunately still persists — that generally women, not men, use sex to achieve success. And with this double standard, women, but not men, are susceptible to being labeled as ‘sluts’ or worse, prostitutes selling their bodies for gain.”

Second, the Court found that the alleged harassment reported by Parker was in fact severe and pervasive enough based on the behavior lasting approximately two months. Because the claim met the elements of sexual harassment, Parker’s complaint was protected activity. Therefore, they also reversed the ruling on the retaliation claim.

Employer Take Away

For years the pervasive ideology regarding the treatment of others has been, “Treat others the way you want to be treated”.

However, as the Federal Appeals Court has proved, this has evolved to, “Treat others the way they WANT to be treated.”

Frivolous accusations aside, it is incumbent on employers to exercise due diligence to protect the dignity and concerns of all under their employ.

As a result, all accusations should be investigated and addressed with the presumption of true merit until it can be significantly and thoroughly determined the accusation is unfounded. This due diligence will serve as protection in the event of future litigation and at a minimum serve to foster a sense of validation and dignity in all employees in an organization.

NEW LAW: The Hair-Raising Adventures of Grooming Policies In New York City

In the growing trend of cultural and racial protections, the topic of hairstyles was recently addressed by the New York City Commission on Human Rights (NYCCHR).

The Commission’s new guidance (NYC Commission on Human Rights Legal Enforcement Guidanceon Race Discrimination on the Basis of Hair) explains that the New York City Human Rights Law (NYCHRL), states, “natural hair or hairstyles closely associated with Black people are often rooted in white standards of appearance and perpetuate racist stereotypes that Black hairstyles are unprofessional.”

Accordingly, employers in New York City are prohibited from having any policies that limit the length, style or color of hairstyles of any specific race or protected class. Singling out a specific race, such as African-American employees that defines the styles or natural states of their hair can be viewed as discriminatory.  The NYCHRL “protects the rights of New Yorkers to maintain natural hair or hairstyles that are closely associated with their racial, ethnic or cultural identities.”

While employers can institute policies that limit hairstyles and length for health and safety concerns, they must apply these policies equally to all employees regardless of their race. Any policy that forces any ethic employee to straighten (by way of heat chemicals) or change their grooming style in a way that would conform to the majority race’s cultural norms would create a disparate impact upon those employees. Examples given from the NYCHRL of hairstyles that cannot be restricted are, “twists, locs, braids, cornrows, Afros, Bantu knots, or fades which are commonly associated with Black people.”

The NYCHRL focuses much of its attention on African American employees, but other ethnicities are covered under this guidance as well. The guidance states, “any grooming or appearance policies that generally target communities of color, religious minorities, or other communities,” are prohibited. This protection could potentially extend to hair wraps for such as Muslim and Sikh turbans, hijabs and Jewish yarmulkes.

Age and gender are also addressed in this new guidance. Employers in New York City cannot create a policy that would limit the length of hair of a male employee (or an employee who identifies as male) if the same procedure would not also apply to a female employee (or an employee who identifies as female). Likewise, an employer cannot restrict or require the natural coloring of hair for older employees. In either case, employers would be at risk of recreating a requirement that could potentially discriminate based on gender or age.

As of February 19, 2019, New York City employers should make their policies compliant with this guidance.  The commission promoted this new potential law through their social media hashtag, “#YourHairYourRightNYC.” The Commission’s Chair stated, “Hair is part of you. Race discrimination based on hair is illegal in NYC.” While the commission’s guidance has not yet been accepted as a law, employers should still make sure they are compliant with this guidance.  Even though this is not a law, the NYCCHR can levy fines and damages to employers who violate the rules laid out in their direction. The commission is already investigating several complaints of possible discriminatory practices hair-related employer policies that have a disparate impact on their African American employees. Investigations into this hair-raising topic will not likely go away anytime soon.

Looking Beyond New York City

Employers outside New York City may not need to make the same adjustments but should be aware of this growing trend and look at their policies and be prepared to make some adjustments as well. Now that this trend is ‘hair,’ it is not likely to go away. It is possible that this guidance from NYCCHR will further braid its way into other American labor laws. One such law is the Title VII Civil Rights act which describes disparate impact as the effect of an employment practice that would cause a substantially negative bearing to hiring, promotion, or other employment condition to members of a minority race, sex, or ethnic group. It is recommended that all employers take another look at their grooming policy and make sure that it is not a blanket policy that might have a discriminatory effect on any of your minority employees. Employers should think twice before they cut an employee’s job short due to a bad hair day.

NEW CASE: New Jersey Federal Court Tests A Drug Testing Policy

A New Jersey federal court held that an employer is not compelled to waive drug testing requirements (including an accommodation for Medical Marijuana use) under either the Medical Marijuana Act (“NJCUMMA”) or the New Jersey Law Against Discrimination (“NJLAD”).

In Cotto vs. Ardagh Glass Packing Inc.,  the plaintiff (Cotto) was a forklift operator injured on the job when the employer (Ardagh Glass Packing) required a post-accident drug test as a condition to return to work. The employee failed the drug screen due to several medically-prescribed medicines, including medical marijuana.

Ardagh Class Packing required the employee test negative for marijuana before returning to work and placed him on an indefinite suspension.

The court noted that marijuana is still prohibited federally and that New Jersey’s NJCUMMA states that “nothing in this act shall be construed to require . . . an employer to accommodate the medical use of marijuana in any workplace.” They also noted court decisions from California, Colorado, Michigan and New Mexico that did not protect employees from adverse employment actions involving medical marijuana use.

The federal court dismissed the plaintiff’s claim that the requirement for a negative marijuana drug test in order to return to work constituted disability discrimination in violation of the NJCUMMA and the NJLAD and the employer is not required to “reasonably accommodate” the use of medical marijuana.

 

Clarifying The New California Anti-Harassment Training Requirements (SB 1343)

Employers in California are scrambling to meet new Anti-Harassment training requirements mandated by SB 1343 which was approved by Governor Brown last year in September.

By January 1, 2020, an employer having five or more employees shall provide at least two hours of classroom or other effective interactive training and education regarding sexual harassment to all supervisory employees and at least one hour of classroom or other effective interactive training and education regarding sexual harassment to all non-supervisory employees in California within six months of hire.

How does SB 1343 differ from AB 1825 that was approved in 2004?

  • AB 1825 required employers with 50 employees to train supervisors and managers every two years.
  • SB 1343 amended that law, by lowering the threshold to smaller employers with 5 employees or more.
  • SB 1343 also requires training for non-managerial employees; therefore, most employers in California will need to provide interactive training to all employees.

For more information on the new training requirements, please see “Sexual Harassment and Abusive Conduct Prevention Training Information for Employers“, which the DFEH published earlier this year

How can employers meet these new training requirements?

  • An employer may provide this training in conjunction with other training provided to employees.
  • The training may be completed by employees individually or as part of a group presentation, and may be completed in shorter segments, as long as the applicable hourly total requirement is met.
  • An employer who has provided this training and education to an employee after January 1, 2019, is not required to provide training and education by the January 1, 2020, deadline.
  • After January 1, 2020, each employer covered by this section shall provide sexual harassment training and education to each employee in California once every two years.
  • The training and education must be interactive and must include information and practical guidance regarding the federal and state statutory provisions concerning the prohibition against and the prevention and correction of sexual harassment and the remedies available to victims of sexual harassment in employment.
  • The training and education shall also include practical examples aimed at instructing supervisors in the prevention of harassment, discrimination, and retaliation, and shall be presented by trainers or educators with knowledge and expertise in the prevention of harassment, discrimination, and retaliation.
  • An employer shall also include prevention of abusive conduct as a component of the training and education.
    • The training and education shall include practical examples inclusive of harassment based on gender identity, gender expression, and sexual orientation, and shall be presented by trainers or educators with knowledge and expertise in those areas.
    • Beginning January 1, 2020, for seasonal and temporary employees, or any employee that is hired to work for less than six months, an employer shall provide training within 30 calendar days after the hire date or within 100 hours worked, whichever occurs first. In the case of a temporary employee employed by a temporary services employer, as defined in Section 201.3 of the Labor Code, to perform services for clients, the training shall be provided by the temporary services employer, not the client.
  • Beginning January 1, 2020, sexual harassment prevention training for migrant and seasonal agricultural workers, as defined in the federal Migrant and Seasonal Agricultural Worker Protection Act  shall be consistent with training for non-supervisory employees pursuant to paragraph (8) of subdivision (a) of Section 1684 of the Labor Code.
  •  An employer may develop his or her own training module or may direct employees to view the online training course developed by the Department of Fair Employment and Housing, which will include two online training courses on the prevention of sexual harassment in the workplace. The course for non-supervisory employees will be one hour in length and the course for supervisory employees will be two hours in length.

How can ePlace help?

Fortunately, we have made it easy for our members to meet these requirements by the January 1, 2020 deadline.

Currently, we offer two compliant Supervisor and Management training courses that meet SB 1343 requirements, which members can access online now.

Two online courses for non-managerial staff will be available before the end of April 2019.

Employers can upload users and assign training to employees through our Learning Management System (LMS).

Contact an HR Professional for more information.

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