Employee Handbook Revision: Employment Discrimination
This year is expected to bring expanded employer liability for employment discrimination with the Equal Employment Opportunity Commission’s higher focus on LGBT rights, pregnancy discrimination, and hiring practices.
For the first time, the EEOC has filed suit against two private employers on behalf of employees alleging sexual orientation discrimination. While Title VII prohibits employment discrimination on the basis of sex, race, color, national origin and religion, sexual orientation is not identified as prohibited. The lawsuits, filed in Baltimore and Pittsburgh, allege that discrimination against a person because of that person’s LGBT status constitutes discrimination based on sex under Title VII.
Employers in Gainesville and Alachua County are already subject to local ordinances which prohibit discrimination in employment based on sexual orientation and gender identity (and gender expression under the county ordinance). More than 30 states prohibit some version of sexual orientation and gender identity discrimination. And, many companies have voluntarily adopted similar policies. Still, without a federal statute specifically providing comprehensive coverage, protection is uneven and often absent. As part of its national strategic plan, the EEOC now promises heightened scrutiny. If they have not done so already, employers should consider updating their employment discrimination policies to protect lesbian, gay, bisexual, and transgender employees consistent with the EEOC’s position.
With the expansion of pregnancy discrimination claims to include women whose pregnancies make them temporarily disabled under the Americans with Disabilities Act, enforcing the rights of pregnant women is another top priority. It’s fairly simple in application: disabilities caused by pregnancy should be treated the same as other temporary disabilities under an employer’s health, disability, or sick leave plan. This means that modified work schedules, light duty assignments, and time off offered to temporarily disabled employees are equally available to pregnant employees who need such accommodations.
An employer’s consideration of prior criminal convictions, credit reports, medical screening, social media, tests, and other assessments, and constant changes in the law, make the hiring process a legal danger zone. These practices can constitute employment discrimination based on race, gender, and disability. Many employers are moving away from some of this background investigation as a best practice due to increased restrictions aimed at preventing unlawful discrimination.
For more information about federal employment discrimination enforcement, the EEOC website at https://www.eeoc.gov/ is very helpful.