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.
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.
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
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 recent decision (Lampley v. MCHR), the Court of Appeals for the Western District of Missouri has held that sex stereotyping is a form of gender discrimination that is actionable under the Missouri Human Rights Act (MHRA). This ruling potentially extends the protections afforded under the MHRA to LGBT employees.
In this case, the employer had terminated two employees – one was an openly gay man and the other was his female coworker (and close friend). Following their termination, both employees filed discrimination claims under the MHRA with the Missouri Commission on Human Rights (MCHR).
The female employee claimed she was terminated because of her close friendship with the male employee. The male employee claimed that he was discriminated against because his behavior and appearance contradicted the stereotypes of maleness held by his employer and managers. He further claimed that he was treated differently that other male employees who conformed to gender stereotypes.
The MCHR viewed the male employee’s charge as one alleging discrimination on the basis of sexual orientation (which is not a protected class under the MHRA) dismissed the male employee’s charge.
The male employee then filed a lawsuit against the MCHR arguing that the MHRA did cover sex stereotyping and the MCHR had jurisdiction over the claims. The trial court disagreed with the male employee holding that under Missouri law “neither sexual orientation nor gender stereotyping are protected classes” and dismissed the lawsuit. The male employee then appealed the trial court’s ruling
In a unanimous decision, the Court held that the MHRA’s prohibition of sexual discrimination extends to cases where sex stereotyping is used as a form of discrimination (i.e. where an employee is treated differently from similarly situated members of the opposite sex.).
While this case is a step towards extending MHRA protections to LGBT employees, the Court did not decide that sexual orientation discrimination is a de facto form of sex discrimination. That is an issue yet to be determined.
Take Home for Employers
Based on this holding, Missouri employers should tread carefully with their LGBT employees and verify that their handbooks and corporate policies reflect that gender stereotyping in the employer’s workplace is not permitted.
On July 14, 2016, Massachusetts Governor Charlie Baker signed “An Act Relative to Housing, Operations, Military Service, and Enrichment” (“The HOME Act”). This law requires employers to provide paid leave to veterans participating in Veterans Day activities. It also prohibits employers from discriminating against individuals based on their veteran status.
What is a veteran?
Under the new law, a veteran is
- Any person with an honorable discharge who served in any branch of the U.S. military,
- Any person who served full time in the National Guard under certain conditions,
- Any person who served in wartime and was awarded a service-connected disability or Purple Heart.
What are the Veterans Day Leave benefits?
Massachusetts law already required employers to grant a paid or unpaid leave of absence to qualifying veterans who wished to participate in a Veterans Day or Memorial Day exercise, parade, or service. Under the new law, Massachusetts employers with 50 or more employees are required to grant a veteran paid leave on Veterans Day provided that the employee provides reasonable notice of his/her intention to take leave for that purpose. The new law does not require employers to provide paid leave for Veterans on Memorial Day.
Veterans as a protected class
Under the new law, an employee’s “veteran status” is included as a protected class under the Massachusetts Fair Employment Practices Act.