Information and guidance on every phase of employment
Q: Can sexually graphic, misogynistic music played in the workplace be considered sexual harassment even if it is not directed at a particular employee and found offensive by employees of both sexes?
A: Yes. On February 9, the Ninth Circuit Court of Appeals concluded in the case of Sharp v. S.S. Activewear that sexually explicit, misogynistic music broadcasted throughout the workplace can constitute sex-based harassment in violation of Title VII.
Q. Has the U.S. Equal Employment Opportunity Commission (EEOC) issued any recent guidance regarding employers’ use of artificial intelligence (AI)?
A. Yes. On May 18, the EEOC released new guidelines, explaining how employers’ use of AI could trigger a federal employment law violation. This development makes the government’s position clear: Employers using AI in the workplace run the risk of violating antidiscrimination law — specifically, Title VII of the Civil Rights Act of 1964.
Q. Have there been any updates since the federal court previously determined that the employer did not violate Title VII in prohibiting employees from wearing Black Lives Matter and other social justice attire to work?
A. Yes. In a prior blog post, we discussed companies taking various approaches toward employees wearing Black Lives Matter (BLM) attire to work during the pandemic. Some employers permitted such attire at work, while others did not. We also discussed a federal district court decision that addressed a novel issue — whether a claim under Title VII of the 1964 Civil Rights Act premised entirely on wearing BLM attire is legally cognizable.
Q: Have any courts addressed a company’s ability to regulate the type of masks that employees wear at work?
A: At the height of the pandemic and after the death of George Floyd in June 2020, many employers grappled with whether they could and should regulate the type of face masks worn in the workplace. The appellate courts for the First and Third circuits recently addressed this issue, reaching different conclusions. The First Circuit ruled that an employer is permitted to discipline employees for wearing Black Lives Matter (BLM) face masks in the workplace in violation of its dress code. In a Third Circuit decision, the court enjoined the employer from enforcing a dress code policy, banning employees from wearing BLM face coverings. The differences in outcome can be attributed mainly to the fact that the employer in the First Circuit case was a private employer, and the employer in the Third Circuit case was a public employer.
Q: Have there been any court rulings on whether companies can limit employees from wearing Black Lives Matter and other social justice attire to work?
A: Yes. During this pandemic and the political and social unrest underlying the Black Lives Matter (BLM) movement, many employees have come to work wearing BLM masks and other attire. Some companies initially banned all BLM attire on the grounds that it could alienate prospective customers with differing opinions, lead to misunderstandings, and incite workplace violence. However, they later changed their decision in light of public backlash. Others continued to ban BLM masks and other attire by relying on companywide dress code policies that prohibit employees from wearing masks and clothing with any visible slogans or messages unrelated to the company. These workplace policies recently came under fire when a group of employees filed a class-action lawsuit against a grocery chain, alleging unlawful discrimination and retaliation for wearing BLM attire.
Specifically, the workers alleged that the employer rarely enforced its dress code policy and that it did not prohibit workers in the past from wearing clothing with messaging unrelated to the company, such as Pride pins or apparel supporting LGBTQ+ workers and even a SpongeBob SquarePants mask. According to the workers, the employer selectively enforced its policy to target and suppress BLM messaging, and, thus, discriminated against Black employees and others associating with and advocating for Black employees in violation of Title VII of the 1964 Civil Rights Act. The workers also alleged they were retaliated against for continuing to wear BLM apparel and protesting the dress code policy.
Q. I understand that the United States Supreme Court came out with a new decision extending Title VII protections. What are the details?
A. Delivering a historic victory for the LGBTQ community, the U.S. Supreme Court issued a 6-3 landmark decision on June 15, ruling that Title VII of the Civil Rights Act of 1964 prohibits terminating an employee based on the employee’s gender identity or sexual orientation. In Bostock v. Clayton County, Georgia, 590 U.S. _____ (2020), the Court held “that employers are prohibited from firing employees on the basis of homosexuality or transgender status.” Justice Neil Gorsuch wrote the majority opinion, in which Chief Justice Roberts and the four liberal justices joined. Justice Alito wrote a 107-page dissent, in which Justice Thomas joined, and Justice Kavanaugh dissented separately.
Q: Over the summer, I saw that President Trump tweeted that four minority Democrat congresswomen should “go back” to where they came from. What Human Resources lessons can be learned from the President’s tweet?
A: In July 2019, President Trump tweeted that certain Democrat congresswomen “who originally came from countries…
Q: I heard New York prohibits employers from discriminating based on hairstyle. What does that mean?
A: In July 2019, New York State passed legislation that amended the definition of race under the New York State Human Rights Law (“NYSHRL”) to include “traits historically associated with race, including, but not…
Q: Is it lawful to require employees or applicants to style their hair in a certain manner?
A: As with most employment-related questions, the answer is it depends. While employers are generally allowed to adopt basic grooming policies, employers should seek to adopt policies that do not have a disparate impact on minorities and other persons protected by anti-discrimination laws.
Q. How do I help my company avoid unconscious bias in the workplace?
A. A bias is a prejudice in favor of or against one thing, person, or group as compared with another. We all have biases. Biases can be based on any number of stereotypes, whether it is race, gender, age, national origin, religion, etc. In a perfect world, individuals would not act on their biases, however, our world is far from perfect and employees can and do bring their biases to work.
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