Discrimination

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In today’s internet-driven world, employers have never had more options from which to recruit new hires. Sites like Zip Recruiter, Monster.com, and Career Builder specialize in talent acquisition, serving as stand-alone classified pages of sorts. Employers also can utilize ever-present social media channels, like Facebook and LinkedIn, to find the…

Recent laws in North Carolina and Mississippi and the subsequent backlash are all over the news.  The U.S. Supreme Court’s decision in Ogberfell v. Hodges making gay marriage legal across the country is not even a year old.  The Fourth Circuit Court of Appeals very recently rule in favor of the right of transgender high school students to use bathrooms for the gender with which they associate.  LGBTQ rights are at the forefront like never before.  Employment discrimination is no exception.  The Equal Employment Opportunity Commission (“EEOC”) has recently filed two separate suits in Pennsylvania and Maryland district courts challenging the long-held belief that Title VII does not protect against discrimination based on sexual orientation.

On April 1, 2016, new regulations from California’s Fair Employment and Housing Council will go in effect. These new regulations state that “[e]mployers have an affirmative duty to create a workplace environment that is free from employment practices prohibited by the Act,” and require changes in employment policies. As a result, employers should carefully review their existing policies to ensure compliance with these new standards and act quickly to make any needed changes before April 1.

Can you terminate an employee for participating in an internal investigation at your company that is not connected with a formal EEOC proceeding?

Recently, in Townsend v. Benjamin Enterprises, Inc., the Second Circuit joined five other federal appellate courts in answering this question with a “yes.”  The Court held that participation in an internal employer investigation not connected with a formal EEOC proceeding is not protected activity under the participation clause contained in Title VII.  So, an employee participating in an internal investigation is not protected from being terminated in retaliation for such participation.  However, even if such a termination is not unlawful, it is still not a wise or productive decision for any company.

A few weeks ago, our colleague posted about whether obesity would become a protected class.

Biases based upon appearance don’t end with obesity.  Studies show that:

Can our current set of federal, state, and local discrimination laws and regulations properly address appearance-based discrimination?  Or does this bias demand that unattractiveness be made a new protected class?

Organizations like the National Association to Advance Fat Acceptance (NAAFA) have been fighting for decades to establish federal and state laws that specifically prohibit discrimination in employment based on a person’s weight.  According to a NAAFA report from 2007, the likelihood of weight-based employment discrimination is 12 times more likely for overweight adults, 37 times more likely for obese persons, and 100 times more likely for severely obese adults.  Yet to date, no federal legislation exists that specifically prohibits discrimination based on weight, and only one state (Michigan) and a handful of cities have passed laws that make weight-based discrimination illegal. 

Two weeks ago, we posted on how employers viewing employees’ or job applicants’ Facebook pages could violate the Genetic Information Nondiscrimination Act (“GINA”), which prohibits employers from obtaining or using certain types of genetic information.  We didn’t know the issue of employers viewing applicants’ Facebook pages — and particularly requiring their passwords — was about to BLOW UP.

Since our post, the issue has been the subject of Congressional hearings, proposed legislation, a statement by Facebook, and lots of articles, blogs and tweets.  Many have pointed out that requiring a Facebook password (1) may be illegal, (2) is an invasion of privacy, and (3) gets employers involved in issues they usually seek to avoid.  While these points are true (and are briefly explained below), the real question is:  Does demanding a Facebook password really serve an employer’s best interests?  Put simply, is it a good idea?

The U.S. Equal Employment Opportunity Commission (EEOC) recently approved a new strategic plan for 2012-2016, which is designed to maximize its resources.

The new strategic plan contains two aspects that are of particular interest to HR professionals:

(1)    the EEOC will focus its efforts on systemic discrimination cases rather than individual discrimination cases; and

(2)    the EEOC will focus its education and outreach efforts on small and new businesses.

Employment lawyers often say “No good deed goes unpunished.” We don’t mean you shouldn’t do “good deeds” to help, respect, thank, and reward employees and build stronger relationships. “Good deeds” are the right thing to do.  However, if not done thoughtfully, “good deeds” can cause unexpected “punishment.” Let’s take a simple example.