Vermont recently passed a new law that adds crime victims as a protected status under Vermont’s Fair Employment Practices Act (FEPA). This new law goes into effect on July 1, 2018. All Vermont employers are required to comply with this new law.
Under the new law, crime victims are afforded the same protections as other protected classes under the FEPA. This means that they are to be free from discrimination because of their protected status.
In addition, employees who are the victim of a crime (who have continuously worked for six months or more, averaging at least 20 hours per week) are entitled to take unpaid leave only, to attend a deposition or court proceeding related to:
- Certain criminal proceedings (the covered crimes are defined by the statute and range from things like sexual assault, domestic abuse and stalking to murder);
- Relief from abuse hearings; order against stalking or sexual assault hearings; or
- Relief from abuse, neglect, or exploitation of a vulnerable adult hearing.
Continue reading NEW LAW — Vermont Enacts New Protections for Crime Victims
On June 8, 2018, New Hampshire Governor Chris Sununu signed HB1319 (An Act Prohibiting Discrimination Based on Gender Identity) into law. This new law, which goes into effect on July 8, 2018, amends the New Hampshire Law Against Discrimination (NHLAD) to include gender identity to the list of protected classes under the NHLAD.
Under this new law, employers are prohibited from discriminating against an individual based on gender identity with respect to the terms and conditions of employment, including hiring, compensation, employment benefits, advancement, employment training, assignments and termination of employment. In addition, workplace harassment of an individual because of his/her gender identity is also strictly prohibited.
For purposes of the new law, “gender identity” is defined as “a person’s gender-related identity, appearance, or behavior, whether or not that gender-related identity, appearance, or behavior is different from that traditionally associated with the person’s physiology or assigned sex at birth.” Continue reading NEW LAW: New Hampshire Adds Gender Identity As Protected Class
Recently, the San Francisco Board of Supervisors passed amendments to the city’s 2014 Fair Chance Ordinance (FCO), which will expand upon the State’s “ban the box” initiative by further limiting an employer’s ability to obtain and use information about an applicant’s criminal history.
The amendments will go into effect on October 1, 2018 and will affect all employers with five or more employees nationwide that have at least one employee who works on average 8 or more hours per work in San Francisco. This expands on the existing ordinance which was limited to city-based employers with twenty or more employees nationwide.
Expansions to Existing Law
While the majority of the amendments are designed to bring the city’s outdated ordinance into alignment with the State’s new ban-the-box law, one amendment goes further and will prohibit employers from considering any convictions for crimes that have since been decriminalized regardless of when the conviction occurred. As an example of such decriminalized activity, the amendments specifically reference certain offenses for non-commercial use and cultivation of marijuana that were recently decriminalized under state law. Continue reading San Francisco Amends “Fair Chance Ordinance” to Expand On California’s Ban-the-Box Law
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:
|Equal Pay Act
|Genetic Information Non-Discrimination Act
In addition, the EEOC has also released the breakdown of claims received by state. The top 10 states are:
|| Type of Charge
The full state breakdown of claims is available here.
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:
- Wisconsin employees cannot waive the right to file a discrimination complaint against his employer under the WFEA, and
- An employee may prosecute WFEA claims against his former employer – even if he previously waived and released those claims in a valid severance agreement.
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 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.
On January 8, 2018, New Jersey Governor Chris Christie signed A2294 into law. This bill amends the New Jersey Law Against Discrimination (NJLAD) to include breastfeeding to the list of protected classes under the NJLAD.
With this amendment, which went into effect on January 8, 2018, employers are expressly prohibited from engaging in the following conduct:
- Refusing to hire breastfeeding applicants;
- Firing an employee because she is breastfeeding or otherwise discriminating against a breastfeeding employee in compensation and other terms, conditions, or privileges of employment; and
- Treating female employees you know or should know are “affected by breastfeeding” less favorably (e.g. with respect to workplace accommodation and leave policies) than employees not so affected but similar in their ability or inability to work.
In addition to the foregoing, employers are required to provide breastfeeding employees with reasonable accommodation, including a reasonable break time each day and a private location near the work area (but not a toilet stall) for the employee to express breast milk for her child – unless the employer can demonstrate that providing the accommodation would impose an “undue hardship” on the business.
Under the NJLAD, whether an accommodation is considered an undue hardship is determined by the following factors:
- The overall size of your business with respect to the number of employees, number and type of facilities, and size of the budget;
- The type of your operations, including the composition and structure of your workforce;
- The nature and cost of the accommodation, taking into consideration the availability of tax credits, tax deductions, and outside funding; and
- The extent to which the accommodation would involve waiver of an essential requirement of a job as opposed to a tangential or non-business necessity requirement.
This is a high standard to meet.
Take home for employers
Since this law went into immediate effect, New Jersey employers should verify that their current employment policies and practices relating to breastfeeding employees are compliant with the new law.
In a new case (Zhu v. North Central Educational Services), the Washington State Supreme Court has held that the Washington Law Against Discrimination protects job applicants from “retaliatory discrimination” (i.e. an employer who refuses to hire an applicant in retaliation for the applicant opposing discrimination in a prior job).
In this case, the plaintiff had previously been a math teacher in the Waterville School District. In 2010, the plaintiff sued the District for race discrimination and retaliation. The case was ultimately settled and, as a part of the settlement, the plaintiff resigned from his teaching job.
Following his resignation, the plaintiff applied for a position with North Central Educational Services District No. 171 (an agency that provides cooperative and informational services to local school districts – including the Waterville School District). The hiring committe for North Central Educational Services District was aware of the plaintiff’s past lawsuit and ultimately, the plaintiff was not hired for the position. Continue reading Washington State Supreme Court Expands the Protections of the Washington Law Against Discrimination
As previously reported (in NEW LAW: New Requirements for California Sexual Harassment Training) aside from increasing California’s sexual harassment training requirements to include discussing harassment based on gender identity, gender expression, and sexual orientation and including practical examples inclusive of harassment based on gender identity, gender expression, and sexual orientation, Senate Bill 396 also requires all California employers post a workplace poster related to transgender rights.
In order to help employers comply with this new posting requirement, the California Department of Fair Employment and Housing (DFEH) recently published the English and Spanish language versions of the poster. Starting January 1, 2018, the “Transgender Rights in the Workplace” poster (as with all DFEH-mandatory posters) must be posted “in a prominent and accessible location in the workplace” where it can be “easily seen and read by all employees and job applicants.” In addition, if ten percent or more of a company’s workforce speaks a language other than English, the poster must also be displayed in that language (or languages).
It is recommended that all California employers download the new poster and display it in the workplace as soon as possible.
Attention California employers … on October 15, 2017, California Governor Jerry Brown signed SB 396 into law. This new law amends the California Fair Employment and Housing Act (FEHA) and requires that employers’ sexual harassment training programs include an additional training element.
Under current law, California employers who employ 50 or more employees are required to provide at least two hours of classroom or other effective interactive training and education regarding sexual harassment to all supervisory employees in California within six months of their assumption of a supervisory position. The training program must be presented by trainers or educators with knowledge and expertise in the prevention of harassment, discrimination, and retaliation and must include the following elements:
- Information and practical guidance regarding the federal and state statutory provisions concerning the prohibition against and the prevention and correction of sexual harassment,
- Information and practical guidance regarding the remedies available to victims of sexual harassment in employment,
- Practical examples aimed at instructing supervisors in the prevention of harassment, discrimination, and retaliation,
- Information and practical guidance regarding prevention of abusive conduct.
Under the new law, starting January 1, 2018, the sexual harassment training program must also address harassment based on gender identity, gender expression, and sexual orientation and include practical examples inclusive of harassment based on gender identity, gender expression, and sexual orientation.
In addition to the new training requirements, all California employers are required to post a poster regarding transgender rights in a prominent and accessible location in the workplace. This poster will be developed by the DFEH and is not yet available on the DFEH website. It is also recommended that employers consider distributing the DFEH’s brochure regarding transgender rights (Transgender Rights in The Workplace) to all employees.
Take Home for Employers
It is recommended that all affected California employers verify their sexual harassment training programs include the new required elements. In addition, all California employers should make sure to post the new poster in the workplace once it is available.
In a recent decision (Hicks v. City of Tuscaloosa), the U.S. Court of Appeals for the Eleventh Circuit recently found that the Pregnancy Discrimination Act (PDA) bars discrimination not only on the basis of pregnancy, but also on the basis of pregnancy-related physiological conditions such as breastfeeding.
In this case, the plaintiff was a female police officer who had returned from maternity leave. Upon her return, the officer requested an alternative duty because her doctor informed her that wearing the required bulletproof vest could cause infection and prevent her from breastfeeding. The officer had requested to be assigned to a position where wearing a bulletproof vest was not required and the employer refused. As a result, the officer resigned and filed a lawsuit.
The court held that the employer’s refusal to accommodate this employee constituted discrimination under the PDA. In making this decision, the Court likened the officer’s situation to that of the employee in Young v. United Parcel Service, Inc. (where the U.S. Supreme Court held the PDA bars employers from refusing to accommodate pregnant employees when they provide accommodations for similarly situated employees who are not pregnant.) Here, the officer was able to show that her employer had provided alternative duties to employees with temporary injuries. As a result, the Court held the employer’s failure to provide the officer with an alternative duty constituted pregnancy discrimination.
Take Home for Employers
The key for employers to remember here is that the Pregnancy Discrimination Act is more expansive than one might initially assume. Specifically, even if an employee’s pregnancy (or pregnancy-related condition) does not amount to a disability under the Americans with Disabilities Act, the employer still might be required to provide the employee with an accommodation under the PDA.
NOTE: There are also many state laws that provide protections for pregnant employees. Before refusing accommodation to a pregnant employee and/or taking any adverse action against that employee, be sure to review the laws in your state.