Category Archives: Discrimination/Harassment

NEW LAW – New York City To Require Lactation Rooms

Attention New York City employers, under a new law (Int. 879-A and Int. 905-A), which takes effect on March 18, 2019, employers with 4 or more employees will be required to provide “lactation rooms” for breastfeeding employees to express milk in the workplace.  In addition, employers must develop a written policy relating to lactation accommodation that must be provided to all employees and all new employees upon hire.

The City Commission on Human Rights will be developing a model policy that employers can use.

NEW LAW: Starting January 1st Illinois Service Member Employment and Reemployment Rights Act to Protect Illinois’ Military Service Members

Earlier this year, Illinois governor Bruce Rauner signed the Illinois Service Member Employment and Reemployment Rights Act (ISERRA) (Public Act 100-1101) into law. This law, which goes into effect on January 1, 2019, streamlines and expands the various job-related protections afforded to Illinois service members.

Most importantly, the ISERRA repeals the following statutes:

  • Military Leave of Absence Act,
  • Public Employee Armed Services Rights Act,
  • Municipal Employees Military Active Duty Act, and
  • Local Government Employees Benefits Continuation Act

And consolidates the protections afforded under these statutes into the new law.  The only law not consolidated into the ISERRA, the Illinois Family Military Leave Act, which family members of a service member with protected leave under certain circumstances*, remains intact. Continue reading NEW LAW: Starting January 1st Illinois Service Member Employment and Reemployment Rights Act to Protect Illinois’ Military Service Members

NEW LAW: DC To Require Sexual Harassment Training for Tipped Employees

Attention DC Employers, on October 23, 2018, the District of Columbia Mayor signed the “Tipped Wage Workers Fairness Amendment Act of 2018.”  While this law repealed Initiative 77 (discussed in NEW LAW – Washington DC Elimination of Tip Credit Repealed) and imposed new posting requirements on all DC employers (discussed in COMING SOON: New Posting Requirements for All DC Employers), the new law also imposes the following new requirements on employers of tipped employees:

Mandatory Sexual Harassment Training For Tipped Employees

Employers will be required to provide sexual harassment training to their tipped employees and managers.  This training must be either through a course developed by the Office of Human Rights (OHR) or from an OHR-certified provider. Continue reading NEW LAW: DC To Require Sexual Harassment Training for Tipped Employees

NEW CASE: Employer Must Pay for Post-Offer Medical Exams

In a recently decided federal case ( EEOC v. BSNF Railway Company), the U.S. Court of Appeals for the Ninth Circuit held that employers are required to pay for an employer-required post-offer medical examination.

In this case, the company made an offer of employment to an individual and conditioned the offer of employment on the candidate successfully completing a medical examination.  This candidate had a history of back issues and was required to obtain an MRI as a part of the examination (which the candidate was going to have to pay for out-of-pocket).  The candidate told the company that he could not afford to pay for the MRI and the company rescinded the job offer.

The Court confirmed that ADA permits follow-up medical testing where such testing is “medically related to previously-obtained medical information.”  However, the ADA does not specify who should pay for the additional testing.  The Court determined that requiring the candidate to assume the costs of the additional testing could go against the anti-discrimination provisions and the policy purposes of the ADA, by forcing them “to face costly barriers to employment.”  As a result, the Court found that employers must bear the costs of any such testing.

NEW CASE: Harassment Policies Should be Provided In Multiple Languages

In a recently decided federal case (Tinoco v. Thesis Painting, Inc.), the United States District Court, for the Southern District of Maryland held that a company’s  anti-discrimination policy, was “defective or dysfunctional” because it was provided to employees only in English.

In this case, a female employee claimed that she had been sexually harassed by her male coworker.  The company attempted to avoid liability using the Faragher/Ellerth affirmative defense.  Under this defense, an employer may avoid liability for co-worker harassment if the employer exercises reasonable care to prevent and correct promptly any harassing behavior, among other things.  “Exercising care” can be demonstrated by implementing and distributing an effective harassment policy.

Here, the Court found that the company’s anti-discrimination policy was ineffective because it was only distributed to employees in English.  The alleged harasser only spoke Spanish and did not understand any English.  Therefore, he was unable to read or understand the policy. Continue reading NEW CASE: Harassment Policies Should be Provided In Multiple Languages

COMING SOON: New Posting Requirements for All DC Employers

Attention DC Employers, on October 23, 2018, the District of Columbia Mayor signed the “Tipped Wage Workers Fairness Amendment Act of 2018.”  While this new law primarily affects employers of tipped workers, there are two elements of the new law that apply to all DC employers.

Under the new law, the Mayor of DC is required to create a website setting forth employees’ rights and benefits under D.C.’s anti-discrimination and labor laws (including wage and leave laws), and providing resources for consultation.

In addition to this new website, all DC employers will be required to: Continue reading COMING SOON: New Posting Requirements for All DC Employers

NEW LAW: New Requirements For Leave For Veterans In Massachusetts

On November 7, 2018, Massachusetts’  “BRAVE Act” (An Act Relative to Veterans Benefits, Rights, Appreciation, Validation and Enforcement) goes into effect.  This law changes an employer’s obligation  to grant leave to veterans on Veterans Day and Memorial Day.

Under the old law, which went into effect in 2016, employers were required to grant veterans time off on Veterans Day and Memorial Day to participate in an exercise, parade, or service in their community.  For employers with 50 or more employees, this time off was to be paid.

Under the new law, employers are required to provide Veterans with time off for  Veterans Day and Memorial Day as follows: Continue reading NEW LAW: New Requirements For Leave For Veterans In Massachusetts

NEW GUIDANCE: New York Publishes Sexual Harassment Materials In Several Languages

As all New York employers are aware, earlier this year, New York enacted an expansive set of laws relating to sexual harassment, which went into effect earlier this month.

Earlier this month, the New York State Department of Labor released English versions of a Model Sexual Harassment Policy, Model Complaint Form, Training Requirements, and FAQs, which are available here.

On October 17, 2018, the New York State Department of Labor released translated versions of these documents in the following languages: Chinese, Haitian-Creole, Korean, Italian, Polish, Russian, and Spanish, which are available here.

One of the requirements under these new laws is the requirement that employers provide sexual harassment training materials and policies to their employees in the employee’s primary language.   If the New York State Department of Labor has not translated a document into the language spoken by an employee, an employer is considered in compliance by providing the employee English language documents.

EEOC Reports Uptick In Sexual Harassment Claims for 2018

On October 4, 2018, the EEOC announced preliminary sexual harassment data for FY 2018 (which ended September 30, 2018).  The end result — sexual harassment claims are on the rise.

According to the preliminary report,

  • The number of EEOC charges filed alleging sexual increased over 12% in 2018
  • The  EEOC filed 66 harassment lawsuits (41 of which included allegations of sexual harassment), this is a 50% increase from 2017.
  • The EEOC recovered nearly $70 million for victims of sexual harassment through litigation and administrative enforcement (an increase from $47.5 million recovered in 2017).

Continue reading EEOC Reports Uptick In Sexual Harassment Claims for 2018

NEW LAW: California Amends Its Criminal History Inquiry Law

California Governor Jerry Brown recently signed  SB 1412 into law.  This new law, which goes into effect on January 1, 2019, amends California Labor Code section 432.7, which limits the information an employer may ask a job applicant about their criminal history.

Under the current version of California Labor Code section 432.7, employers are prohibited from asking a job applicant to disclose:

  • information concerning arrests that did not result in a conviction,
  • information concerning a referral to pretrial or posttrial diversion programs,
  • convictions that have been sealed, dismissed, expunged, or statutorily eradicated pursuant to law, or
  • information concerning or related to an arrest, detention, processing, diversion, supervision, adjudication, or court disposition that occurred while the person was subject to the process and jurisdiction of juvenile court law.

Continue reading NEW LAW: California Amends Its Criminal History Inquiry Law