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 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.
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.
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?
In new Guidance Materials (“Guidance On Discrimination On The Basis Of Sex Under The Pennsylvania Human Relations Act”), the Pennsylvania Human Rights Commission has stated that it will consider sex discrimination to include not only an individual’s biological sex, but also sexual orientation, gender identity, gender expression, gender transition, and/or transgender status.
What this means for employers – it is recommended that employers take note of this expansion in the definition of sex and educate their managers/supervisors that an employee’s LGBT status is protected under Pennsylvania law.
On January 1, 2019, Connecticut’s new pay equity law went into effect. Under this new law, Connecticut employers are prohibited from inquiring into a prospective employee’s salary/wage history. This includes, but is not limited to:
- Including inquiries about salary history on an employment application;
- Directly asking a candidate for employment about his/her salary history during the interview process;
- Directly asking a candidate’s former employer about the candidate’s salary history; and
- Using a third party to inquire into an applicant’s salary history.
Employers are still able to inquire about components of an applicant’s former compensation structure (e.g. retirement benefits, stock option plans), but the employer cannot ask about the value of the individual components. Continue reading NEW LAW: Connecticut Employers, Remember That The New Pay Equity Law Prohibits Salary History Inquiries
The Cuyahoga County Council recently passed County Ordinance #O2018-0009, while protects individuals from discrimination based on sexual orientation and gender identity in employment, among other things. Employers in this county should review the new ordinance and provide training to their managers about the new ordinance.
In January 2016, SB 358, the amended version of the California Equal Pay Act, took effect. The California Equal Pay Act requires all California employers pay the same wage to employees who perform “substantially similar work” the same wage regardless of gender, ethnicity or race. Under this law, employers are also required to provide an applicant with a pay scale for a position following a “reasonable request.” Finally, it prohibits employers from requesting an applicant’s prior salary history and from relying on an applicant’s salary history alone to justify a disparity in compensation “based on sex, race or ethnicity.”
Following the effective date of the amended California Equal Pay Act, the California Commission on the Status of Women and Girls launched a Pay Equity Task Force tasked with the responsibility of monitoring the implementation of the new law. Recently, this task force issued written guidance for employees, employers and unions on how they may comply with the California Equal Pay Act. Continue reading NEW GUIDANCE: California Pay Equity Task Force Issues Guidelines for Complying with the California Equal Pay Act
On November 19, 2018, the Oregon Bureau of Labor and Industries released its final administrative rules interpreting the Oregon Equal Pay Law. These rules are intended to help employers comply with the Oregon’s Equal Pay Law, which goes into effect on January 1, 2019.
As we previously reported (in NEW LAW – Oregon’s New Equal Pay Act), the Oregon’s Equal Pay Law prohibits pay discrimination on the basis of protected class (i.e. race, color, religion, sex, sexual orientation, national origin, marital status, veteran status, disability, or age) and it also prohibits employers from using an applicant’s salary history as a screening tool for open positions and/or as a determining factor in an employee’s wages. Under this law, employers can only inquire about an applicant’s salary history after making a job offer that includes a compensation amount. Continue reading NEW GUIDANCE: Final Rules Regarding Oregon’s Equal Pay Law Issued
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