On September 19, 2012, a bill was introduced to help protect pregnant women’s rights in the workplace. What? You say there already is a law like that? Well, not quite!
Back in 1978, The Pregnancy Discrimination Act, an amendment to Title VII of the Civil Rights Act, was passed with the intent to protect women from discrimination due to “pregnancy, childbirth, or related medical conditions; and women affected by pregnancy, childbirth, or related medical conditions.” It was made a part of the Civil Rights Act because it protects against sex discrimination, covered by that law. The Pregnancy Discrimination Act required equal treatment in employment for pregnant women. This meant that all policies that were applied to other non-pregnant employees should be equally applied to the pregnant employee. The law also said that an employer could not refuse to hire a pregnant woman on the basis of her pregnancy or any condition relating to it. And, it went further yet. Pregnant women were to be afforded equal health insurance benefits for all her pregnancy related expenses as with other medical conditions. However, pregnancy has never been considered a disability. . . until possibly now.
The bill mentioned above that was introduced by Sen. Robert Casey, Jr. (D-PA) proposes that pregnant women be given the same workplace accommodations that are afforded to persons with disabilities. The Pregnant Workers Fairness Act (PWFA) would require an employer to make “reasonable accommodations” as required by the Americans with Disabilities Act (ADA) for a pregnant employee, to allow them to perform the essential functions of their job.
If this bill passes, it will bring great relief to pregnant women who once feared disclosing their pregnancy to their employer for fear of being involuntarily transferred to another position, placed on unpaid leave, or even losing her job. It would permit a woman to have minor modifications to her job duties that would allow her to work as long as possible in her pregnancy without worrying about harm to herself or her unborn child. These minor adjustments could be as simple as an offer of light duty or even providing a chair in which to occasionally sit, when standing or walking is the norm. Affording such reasonable accommodations would also give the expectant mother a measure of economic security, knowing her pregnancy will not jeopardize her employment. The National Women’s Law Center reports that women make up half the workforce, so this bill, if it becomes law, will be a step in the right direction to keep the economy strong.
Keep your eye on this one because opposition is strong. Republicans who oppose this bill argue that it will bring lower profits and undue hardship on businesses. See the full text of the bill here.
Last week, I wrote a blog about best practices for conducting legal criminal background checks. Also last week, the Equal Employment Opportunity Commission (EEOC) updated and released enforcement guidance on employers’ consideration of arrest and conviction records in employment.
The updated guidance is available directly from the EEOC website in PDF form, and includes a list of employer best practices. The EEOC does not appear to have made any strict rules that would prevent employers from considering conviction records, but attempts to provide some guidance. The Commission continues to embrace the long-standing three-factor test that was first established by the Court in Green v. Missouri Pacific Railroad Company:
- The nature of the offense;
- The time elapsed since the conviction or completion of sentence; and
- The nature of the job sought or held.
New in the Guidance Report:
- Application Questions – Although the agency did not ban employers from using the checkbox on an application, they did recommend against it as a best practice. Instead, the agency recommends employers only ask applicants in the case where criminal history may be relevant.
- Arrest Records – It is important to note that arrest records, standing alone, may not be used to deny employment to an individual. However, employment decisions may be made based on the conduct that underlies the arrest. Consequently, an individual may be denied employment or terminated if the arrest is relevant and makes the individual unfit for the position.
- Individualized Assessment – This is the biggest development in the EEOC’s guidance. An “individualized assessment” occurs when the employer: informs the applicant or employee that he or she is being screened due to a criminal record; individual is provided with opportunity to respond; and the employer considers extenuating circumstances when making its final decision. The EEOC states that employers who develop their targeted screen based on the Green factors and conduct an “individualized assessment” can avoid Title VII liability. According to SHRM’s survey, 88 percent of respondents indicated they allow the individual to explain the results of the background check, so it appears many employers are already engaging in this best practice.
- Compliance with Federal Law – Employers who are conducting a criminal background check in order to comply with another Federal law will not violate Title VII. However, any screening that exceeds the scope of the applicable law will be scrutinized.
- Compliance with State Law – Title VII pre-empts state and local laws that are in conflict with it, so an employer who conducts criminal background checks in accordance with state law will not be protected from liability. Some employers could end up in a no-win situation as a result.
Employers’ best bet now is to review their criminal background check procedures in light of the new guidance.
At one time or another, we’ve all heard this advice: “Talk about anything – except religion and politics.” Many of us could also say that at one time or another, our parents or grandparents told us to be even more careful in discussing those issues at work. Employers walk a fine line between respecting employees’ rights to freedom of speech and protecting those employees from discrimination or harassment that could arise from those discussions.
In a recent Careerbuilder survey, one third of respondents said they discuss politics at work. Forty-three percent also said they expected to discuss the upcoming presidential election at work. The sample of 7,000 full-time workers also revealed:
- Men are more likely than women to engage in political discussion at work (44% men, 23% women).
- 23% of workers admit that they have been involved in a political discussion that became heated with a co-worker, or in some cases, a boss higher up in the organization.
- Men are also more likely (25%) than women (19%) to admit to an altercation with a co-worker over opposing political views.
- 10% of workers said that their opinion of a co-worker changed – often for the negative – after learning of his or her political views.
- Although the statistics were fairly even across age groups, people age 55 and older were the most likely (43%) to discuss politics at work, and people ages 18-24 were least likely (25%).
Political views often mix with religious views as well, and a company could easily find itself in the middle of a discrimination or harassment claim.
The Equal Employment Opportunity Commission (EEOC) provides a few tips for employers on stopping religious harassment:
- Make sure you have a well-publicized – and consistently applied – anti-harassment policy. Make sure it is clear to employees how they should file complaints, and quickly and thoroughly investigate any complaints.
- If you discover harassment has occurred, address and end the conduct, even if you don’t think it rises to the level of unlawful activity. Allowed to continue, the conduct could become more pervasive or severe.
- Intervene if you learn of possible Title VII violations, even if no one files a complaint.
- Allow religious expression among employees to the same extent that you would allow other forms of personal expression that are not harassing or disruptive.
More of the EEOC’s tips can be found here: Employer Best Practices – Religion
Careerbuilder Political Survey
How do you handle political discussions in your workplace? We want to know!
The Employment Non-Discrimination Act (ENDA) is not a new acronym. In fact, it has been included in some form of the bills considered by Congress in every session since 1994 except in the 109th Congress (January 3, 2005 to January 3, 2007). So what is ENDA? Simply stated, it is a proposed federal law that would prohibit sexual orientation and gender identity discrimination in the workplace. The bill is closely modeled on existing civil rights laws, including Title VII of the Civil Rights Act of 1964 and the Americans with Disabilities Act.
Currently, 21 states and the District of Columbia have passed laws prohibiting employment discrimination based on sexual orientation, and 15 states and D.C. also prohibit discrimination based on gender identity. Although these laws provide important protections, according to a 2002 General Accounting Office (GAO) report, relatively few complaints of discrimination based on sexual orientation have been filed in these states.
Although there isn’t currently a federal law in place, as of March 2011 87% of the Fortune 500 companies had implemented non-discrimination policies that include sexual orientation and 46% had policies that include gender identity.
Currently the bill was introduced in the 112th Congress on April 6, 2011 in the House, and on April 13, 2011 in the Senate. With the current makeup of the House and Senate, politicians are predicting that the proposed ENDA may pass. Stay tuned for further updates.
Equal Employment Opportunity (EEO) is applicable to all applicants and employees of most private employers, state and local governments, educational institutions, employment agencies and labor organizations. It prohibits discrimination based on race, color, religion, sex, national origin, disability, age, genetics, age, retaliation, or marital status.
Your workload may have increased significantly recently based on the sharp increase of EEO claims filed by applicants and employees. According to statistics from the Equal Employment Opportunity Commission (EEOC), the number of claims of job discrimination filed with the agency has increased by nearly 33% over the last 5 years. A record number of claims – 99,922 charges – were filed in 2010.
Why the increase? There are a few reasons speculated as to the spike in claims:
- Weak job market
- New EEOC system, making it easier to file claims
- Current administration has taken a hands-on role in pushing workers’ rights
So does an increase in the number of claims result in an increase in settlements? Not necessarily, according to statistics from the EEOC. For claims filed in fiscal year 2010, just 19.2% of claims ended up with “merit resolutions” resulting in positive outcomes for complainants such as back pay, reinstatements of seniority and employment, or a job promotion. Out of the remaining 80.8% of cases, nearly 65% were dismissed and found to have no “reasonable cause.”
Keeping accurate records of applicants, tracking performance, accurate payroll records, and documentation of employee-related decisions are important safeguards when presenting the company’s defense should you be faced with a claim from the EEOC.
The Supreme Court announced today that it will consider the appeal of Wal-Mart in a sex discrimination class action suit. The Court will limit its review to the question of whether the lower court erred when certifying the class, one of the largest in history. Six female Wal-Mart employees initiated the suit, alleging unfair pay and promotion practices. The plaintiffs sought class action status, a class that could potentially cover 500,000 to 1.5 million workers. Wal-Mart’s appeal is being supported by other major US corporations and the Chamber of Commerce.
You can read more about the case in the Wall Street Journal at: http://online.wsj.com/article/SB10001424052748704156304576003313491986164.html?mod=WSJ_hp_MIDDLETopStories
An 8th Circuit Court of Appeals decision found that an employer, who fired an employee because she did not fit within sexual stereotypes (not feminine enough), violated Title VII.
The employee, a night desk employee at a motel, had received several merit pay increases and positive customer feedback. Consequently, her manager sought and received approval (over the phone) from a corporate director of operations to put her in a daytime front desk job.
All was fine until the director stopped by in person and found the employee wasn’t “pretty enough” lacked the “Midwestern girl look” that the motel chain desired. The employee, by her own admission, wore men’s shirts and pants, had a more masculine appearance, and had even been mistaken for a male.
The director ordered the manager to put the employee back on the night shift. When the manager refused she was asked to resign. The employee was later fired…and then sued. The court found for the employee, holding that the discrimination would not have occurred but for the individual’s sex, violating Title VII.
Note that federal law still does not prohibit discrimination based on sexual orientation (although many states do). Rather the court found discrimination “because of sex…,” a confusing distinction, I know. [Lewis v Heartland Inns of America].
The 8th Circuit covers North Dakota, South Dakota, Minnesota, Nebraska, Iowa, Missouri, and Arkansas.
The United States Equal Employment Opportunity Commission reports that employment discrimination claims based on pregnancy have increased significantly from 1992 to 2007. Pregnancy claims increased sixty-five percent during the last fifteen years and hit a record high in 2007.
Interestingly, a large part of the increase came from filings by women of color:
Black women pregnancy claims were up 45%
Claims by Hispanic women up 135%
Claims by Asian women up by 90%
And by Native American women up 109%
Pregnancy Discrimination expands the gender-protected class by prohibiting employment discrimination against women based on pregnancy and related issues. Because the threat of pregnancy discrimination claims is an increasing risk factor today for employers, wise employers will review their policies, practices and procedures to try to minimize this risk.
Continuation of post last week introducing various HR issues being addressed in Washington DC and providing more information on each topic.
Congress likely will pass and the new President will support a national prohibition on employment discrimination based on sexual orientation. Many states already prohibit such job bias, but Congress seems poised to add sexual orientation to the national list of protected classes, along with race, color, age (40 or over), sex, pregnancy, gender, religion, disability, national origin, ethnic background, genetic status, military service and citizenship. The new Administration also seems to support Congressional efforts to strengthen the federal laws prohibiting pay disparities based on gender.
Increasing diversity in the workplace has brought many opportunities and challenges. Ensuring effective communication among employees and with customers or vendors is one of them. Some employers have attempted to address the issue by establishing “English only” rules. Such rules must be non-discriminatory, narrow in scope and application, and justified by business necessity. The EEOC takes a dim view of such requirements.
The Ladies Professional Golf Association (LPGA) is the latest group to make news in the “English only arena.” It has adopted a new rule that beginning in 2009 requires all golfers who have been on the tour for 2 years to pass a test evaluating spoken English. Apparently there are ov
er 120 international golfers on the tour. Is English essential to be a golf professional? The LPGA says it’s important to attract corporate sponsors. However the issue of discrimination based on national origin has been raised by a number of civil rights groups. They also ask: What about international athletes in other sports? What about American golfers who participate in tournaments outside the U.S? Do they need to learn the local language? Stay tuned. This could get interesting.
For more information on English only rules in the workplace go to the EEOC’s website at: http://www.eeoc.gov/policy/docs/national-origin.html#VC