Category Archives: Race Discrimination

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 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.

NEW GUIDANCE: DFEH Publishes Model Equal Employment Opportunity Policy

The California Department of Fair Employment and Housing recently published a model Equal Opportunity Policy.

Under California law, employers are required to “take reasonable steps to prevent and promptly correct discriminatory and harassing conduct.”  A part of this obligation includes a requirement that employers develop a harassment, discrimination, and retaliation prevention policy that: Continue reading NEW GUIDANCE: DFEH Publishes Model Equal Employment Opportunity Policy

Philadelphia May Set the Stage for Other Constitutional Challenges to Salary History Bans

In a recent twist in the cascade of state and municipal laws prohibiting employers from asking about an applicant’s salary history, a federal judge has ruled that Philadelphia’s salary history ban violates the First Amendment of the US Constitution by limiting employers’ free speech rights.  This ruling may have a significant impact on other state and municipal laws that seek to similarly restrict what employers may ask applicants.

The Ruling

Following passage of Philadelphia’s ordinance prohibiting inquiries into applicant’s salary histories, the Chamber of Commerce for Greater Philadelphia filed a federal lawsuit challenging the constitutionality of the ordinance based on its limitation of employers’ First Amendment rights.  The court agreed in part.

In partially ruling for the Chamber of Commerce, the court held that the ordinance is unconstitutional in its prohibition relating to employers asking applicants about their salary history because that prohibition implicates the First Amendment’s free speech clause.  At the same time, the court held that the second part of the ordinance, which prohibits employers from relying on salary history information at any time in the employment process to determine an employee’s salary, is constitutional and enforceable.

Thus, the court’s ruling enables Philadelphia employers to ask about an applicant’s salary history but leaves in place strict limitations on how they may use that information. Continue reading Philadelphia May Set the Stage for Other Constitutional Challenges to Salary History Bans

Washington Joins the “Ban the Box” Bandwagon

Effective June 6, 2018, Washington employers will no longer be permitted to ask applicants about arrests or convictions, or to receive information through a criminal background check, prior to making a determination as to whether the applicant is otherwise qualified for a position. This new law is known as the Fair Chance Act (the Act).

Prohibited Activities Under the Act

Under the Act, an employer is prohibited from doing any of the following before making an initial determination that an applicant is otherwise qualified for the position:

  • Asking orally or in writing about the applicant’s criminal record;
  • Receive information through a criminal history background check; or
  • Otherwise obtaining information about the applicant’s criminal record.

For purposes of the Act, an applicant is “otherwise qualified for the position” when the applicant meets the basic criteria for the position as set out in the advertisement or job description without consideration of a criminal record.

The Act also limits the content of an employer’s advertisements for job openings and hiring policies by specifically prohibiting:

  • Advertising employment openings in a way that excludes people with criminal records from applying (e.g., ads that state “no felons” or “no criminal background”); and
  • Maintaining any policy or practice that automatically or categorically excludes individuals with a criminal record from consideration prior to an initial determination that the applicant is otherwise qualified for the position.

o   Such prohibited policies and practices include rejecting an applicant for failure to disclose a criminal record prior to initially determining the applicant is otherwise qualified for the position.

Activities and Employers Not Covered by the Act Continue reading Washington Joins the “Ban the Box” Bandwagon

2017 EEOC Litigation Data Released

The EEOC recently released the national enforcement data for the 2017 fiscal year.  According to this report, the total number of EEOC charges received in 2017 decreased from 91,503 received in 2016 to 84,254 received in 2017.

In addition, according to the report, in 2017, the EEOC resolved 99,109 charges and secured more than $398 million for victims of discrimination in private, federal and state and local government workplaces.  Most notably, the EEOC received 6,696 sexual harassment charges and 1,762 LGBT-based sexual discrimination charges and obtained $46.3 million and $16.1 million in monetary benefits respectively for resolving these charges.

Retaliation claims remain the most popular claims filed. Race claims, Disability claims, Sex/Gender claims and Age discrimination charges round out the top five.  The total breakdown of charges by type is as follows:

Retaliation 41,097 48.8%
Race 28,528 33.9%
Disability 26,838 31.9%
Sex/Gender 25,605 30.4%
Age 18,376 21.8%
National Origin 8,299 9.8%
Religion 3,436 4.1%
Color 3,240 3.8%
Equal Pay Act 996 1.2%
Genetic Information Non-Discrimination Act 206 0.2%

In addition, the EEOC has also released the breakdown of claims received by state.  The top 10 states are:

   Type of Charge
Total Charges Retaliation Race Disability Sex/Gender Age
Texas 8,827 4,740 2,999 2,642 2,740 1,975
Florida 6,858 3,486 2,153 2,222 2,041 1,366
California 5,423 2,752 1,811 1,915 1,500 1,374
Georgia 4,894 2,434 1,864 1,362 1,596 807
Pennsylvania 4,516 2,133 1,195 1,647 1,293 1,118
Illinois 4,392 2,382 1,663 1,414 1,399 1,032
North Carolina 3,752 1,854 1,447 1,210 1,034 751
New York 3,690 1,711 1,095 1,052 1,142 858
Virginia 2,730 1,201 966 864 818 518
Tennessee 2,640 1,318 970 808 815 528

The full state breakdown of claims is available here.

NEW CASE: Wisconsin employees cannot waive claims under the Wisconsin Fair Employment Act

In a recent decision (Xu v. Epic Systems, Inc.), the Wisconsin Labor and Industry Review Commission has held that an employee’s discrimination claims under the Wisconsin Fair Employment Act (WFEA) are not waivable.  Specifically, the Commission found:

  1. Wisconsin employees cannot waive the right to file a discrimination complaint against his employer under the WFEA, and
  2. An employee may prosecute WFEA claims against his former employer – even if he previously waived and released those claims in a valid severance agreement.

The Case

In this case, a former employee had entered into a severance agreement with his former employer where, among other things, the employee agreed to waive any claims under the WFEA in exchange for a severance payment.

The severance agreement also contained a standard provision intended to comply with federal law which prohibits the waiver of the right to file a charge or complaint with certain federal agencies (e.g., the U.S. Equal Employment Opportunity Commission (EEOC), the Securities and Exchange Commission, the Occupational Safety and Health Administration, the National Labor Relations Board), which stated the following:

Nothing in this release is a waiver of a right to file a charge or complaint with administrative agencies such as the federal EEOC that I cannot be prohibited from or punished for filing as a matter of law, but I waive any right to recover damages or obtain individual relief that might otherwise result from the filing of such charge with regard to any released claim.

After signing the agreement, the former employee filed a complaint with the EEOC for race discrimination.  While the EEOC charge was dismissed, the former employee’s charges were cross-filed with the Wisconsin Equal Rights Division, where the employee claimed that the employer’s conduct also violated the WFEA.  Due to the severance agreement, the Division dismissed the claim and the employee appealed the dismissal to the Commission.

The Ruling

The Commission found even though the former employee had waived his right to recover any damages for violations of the WFEA, due to the standard clause (quoted above), he had not waived his right to file a charge with the Division.  Moreover, the Commission also concluded that employees cannot be precluded from filing a complaint with the Division.

NEW TOOL: The EEOC Makes It Easier For Employees To File Discrimination Charges

Watch out employers!  The EEOC has joined the digital age by rolling out its new online filing portal, or Public Portal nationwide.  With this new tool, employees are now able to easily initiate a charge with the EEOC.

Using this new system, employees are able to file a discrimination charge with the EEOC online.  In addition to filing a charge, employees are also able to use this system to manage an EEOC charge that was filed on or after January 1, 2016 if the charge is in investigation or mediation.  Specifically, employees who have filed an EEOC charge can use this new portal to:

  • Provide and update contact information;
  • Upload documents to the charge file;
  • Check the status of his or her charge;
  • Agree to mediation; and
  • Receive charge documents and messages from the EEOC.

NEW LAW – Missouri Amends Its Human Rights Act

On June 30, 2017, Missouri Governor Eric Greitens signed Senate Bill 43 into law. This bill amends the Missouri Human Rights Act (MHRA) to more closely align this law with federal employment discrimination law standards and makes changes to rights and remedies for claims under Missouri’s discrimination law and claims for whistleblower retaliation.

These changes go into effect on August 28, 2017 and include the following:

  • Change in Standard of Proof to “Motivating Factor”: Plaintiffs must provide that the protected characteristic was the “motivating” factor for the adverse employment action.
  • Damage Caps: Compensatory and punitive damages are capped based on the size of the employer (ranging from $50,000 for employers with 100 or fewer employees to $500,000 for employers with more than 500 employees).
  • No Individual Liability: Managers, supervisors, and colleagues cannot be held personally liable for violations of these laws.
  • Required Summary Judgment: State Courts must use summary judgment to determine whether cases should proceed to trial based on the assembled evidence.
  • Business Judgment Defense: Employers are permitted to use a “business judgment defense” and the judge must provide a business judgment jury instruction for every MHRA case.
  • Limited Whistleblower’s Protection: Whistleblower claims can no longer be brought against the state and its political subdivisions and only certain employees qualify for whistleblower protections.

These changes only affect claims filed in Missouri state court after August 28, 2017.

Could your organization potentially be accused of Employment Discrimination?

Federal law (Title VII) prohibits discrimination based on: race, color, religion, sex (including pregnancy), national origin, mental or physical disability, age, gender, genetic information, and citizenship.

Recently Palantir Technologies in Palo Alto, CA settled a claim of $1.66 million for discrimination against Asian applicants in the hiring and selection process of their engineering positions, even though they employed and hired several Asian candidates. We can take away two lessons from this case:

  1. Take care when using an Employee Referral Program in your recruitment process.
    1. Although your best employees may refer great applicants, they may not refer an adequate flow of diverse applicants. The EEOC found that Palantir’s preference for referrals in the screening process resulted in disproportionate number of non-Asians in the applicant pool (adverse impact).
      • If you use an Employee Referral Program, find ways to assure you are encouraging a diverse applicant pool and test your results.
  2. Look at the numbers.
    1. The hiring ratio for 3 of Palantir’s engineering positions were found to be grossly discriminate.
    2. Check your hiring ratio’s.
  • One way to check your hiring ratio’s is by using the 4/5ths rule (or 80% rule). Although use of this test will not assure that the EEOC will not pursue a claim, it is one tool that they have used to show positive or negative diversity in the hiring process.
  • More recently the EEOC has been using a different hiring test. In the case against Palantir the EEOC compared the company’s hiring rate of Asian candidates to the rate that would likely occur if Palantir simply selected from the qualified candidate pool randomly. In this case, the position of Quality Assurance Engineer Intern Palantir hired 17 non-Asian’s and 4 Asian applicants (19%) from a pool of 130 qualified applicants (73% of the applicants were Asian). The EEOC concluded the likelihood that they would choose an Asian was 1 to 1 Billion.

Additional Information For Employers