Employer Alerts

The Employment Non-Discrimination Act Could Likely Be Passed Under the New Administration

One of the major employment law changes that is likely to come about early in the Obama Administration is the passage of the Employment Non-Discrimination Act.  This bill would amend Title VII to prohibit discrimination based upon sexual orientation.  Prior versions of this bill included gender identity as well as sexual orientation.  However, the current version of the bill know as HR 3685 that was introduced by Representative Frank only includes sexual orientation as a protected class.

Title VII currently does not include sexual orientation a protected class.  However, President Obama has indicated that he would like the law to prohibit both sexual orientation as well as gender identity discrimination.  Whether gender identity is ultimately included will be something to watch for.  Although federal law does not currently include sexual orientation or gender identity as a protected class, many state laws do provide that sexual orientation, gender identity or both are protected classes.  Currently, there are 13 states and Washington, D.C. that protect against both sexual orientation and gender identity.  These states are California, Colorado,Connecticut, Iowa, Illinois, Maine, Minnesota, New Jersey, New Mexico, Oregon, Rhode Island, Vermont and Washington. In addition there are currently 7 states that protect against sexual orientation but not gender identity.  These states are Hawaii, Maryland, Massachusetts, Nevade, New Hampshire, New York and Wisconsin.

For employers located in a state where neither sexual orientation nor gender identity are currently protected classes under state law, how will this new federal law affect your company?  An employer would need, at the very least, to do the following:

• Amend their EEO Policy to add sexual orientation as a protected class; and
• Amend their Anti-Harassment Policy to add sexual orientation as a protected class; and
• Amend their Employment Application EEO paragraph to prohibit sexual orientation discrimination; and
• provide training for their managers and employees so that they understand what sexual orientation discrimination and harassment look like to help to prevent it.

Even if ENDA does not include gender identity as a protected class, a recent landmark case has added some protection for those who claim discrimination and/or harassment based upon gender identity.  In the case of Schroer v. Billington, David Schroer applied for a position and was hired by the US Library of Congress.  Mr. Schroer met with his boss prior to the commencement of employment.  At this meeting he told his soon to be boss that he would be “transitioning” to a female and would be a female when he started the job.  He told his soon to be boss  that his name would be Diane Schroer on his first day of employment and that he would look like a woman.  The very next day Mr. Schroer received a telephone call advising him that the Library of Congress was rescinding the offer of employment because he was “not a good fit for the position”.

Diane Schroer commenced a lawsuit under Title VII against the Library of Congress claiming that the decision to revoke the offer of employment was discrimination based on sex under Title VII. Remember that Title VII does not yet and did not when she brought this lawsuit prohibit discrimination based on gender identity.  However, Diane Schroer’s attorney claimed that by rescinding the offer based upon Diane’s transitioning to look like a woman, the Library of Congress had discriminated against her based on her sex.

This was a landmark decision because the Library of Congress had alleged at trial in federal district court in Washington, D.C. that it had no liability because transgender people are not covered under Title VII.  However, the Court held that the decision to rescind the offer after learning of the employee’s decision to transition from a male to a female, essentially changing genders, was discrimination based upon “sex” under Title VII.

Of course this won’t be an issue if ENDA ultimately prohibits discrimination based upon gender identity as well as sexual orientation.  However, if ENDA limits the prohibition to sexual orientation then this is an important landmark decision because it creates precedent that transgender employees might be protected from gender identity discrimination and/or harassment by Title VII in its current version based on Title VII’s prohibition on sex and gender discrimination and harassment.

Small Business Owners Beware!

Small business owners are often unaware that the employment discrimination laws apply to them.  Since such business owners usually do not have the luxury of having large human resource departments or in-house counsel such businesses are often caught in the dark about their obligations under these laws.  Any employer that has 15 or more employees must comply with Title VII of the Civil Rights Act of 1964 (“Title VII”) and the Americans with Disabilities Act (“ADA”).  Employers with 20 or more employees must also comply with the provisions of the Age Discrimination in Employment Act (“ADEA”).  What do these laws require?  They require that you not discriminate against employees on the basis of the employee’s age, disability, sex, race, color, national origin or religion.  In addition to these federal laws, there are also state laws that often apply to employers with very few employees.  For example, in New York, the New York State Human Rights Law applies to employers with 4 or more employees and in Connecticut the state Fair Employment Practices Act applies to employers with 3 or more employees.  Many times these state employment laws prohibit discrimination against people in protected classes in addition to those protected under federal law.  So for instance, in New York, employers are prohibited under state law from discriminating against employees based on their race, color, creed, national origin, military status, sex, age, religion, marital status, alienage or citizenship status, sexual orientation, disability or genetic predisposition or carrier status.   In Connecticut, the FEPA prohibits discrimination based upon race, color, religious creed, age, marital status, ancestry, national origin, sex, gender, sexual orientation, pregnancy, breast feeding, genetic information, present or past history of mental disability, mental retardation, learning disability or physical disability (including blindness).  Moreover, both state and federal employment discrimination laws prohibit harassment as well as discrimination.

What does all this mean for you as a small or medium employer?  You need to ensure that you and your managers are familiar with the employment discrimination laws.  This means that all employment decisions from hiring to firing need to be made based on job-related factors having nothing to do with a person’s age, race, sex, pregnancy, sexual orientation, etc.  It also means that your managers and employees need to be trained on the employment discrimination laws and preventing sexual and other forms of unlawful harassment.  In fact, Connecticut requires employers with 50 or more employees to train all managers within six months of becoming a manager.  The training must be legally compliant or it will not satisfy an employer’s obligations under the law.  Small businesses should retain outside consultants to provide their Anti-Harassment Training to ensure that such training is properly taught. 

Why Does An Employer Need Documentation When Terminating At-Will Employees?

One question that managers often have is why they need to worry about documentation when terminating employees since everyone is an employee-at-will.  The answer requires a short summary of employment law 101.  Although employment in every state in the country other than Montana is employment-at-will, the answer lies in what most employees do once they have been terminated.  First of all, what is employment-at-will? Employment-at-will  means that you can hire or fire an employee for any reason or no reason at all.  However, there is a little exception at the end of that sentence that states that this is so “as long as the reason is not unlawful”.  Herein lies the problem.  Many employees who have been terminated will claim that their termination was unlawful because it was discriminatory based upon their protected class.  As everyone knows, under Title VII of the Civil Rights Acts of 1964 and 1991 there are only 5 protected classes, to wit, sex, color, race, national origin and religion.  If President Obama has his way there may soon be a sixth which will be sexual orientation.  But currently there are five protected classes under Title VII as well as age under the Age Discrimination in Employment Act, disability under the Americans with Disabilities Act, military status under USERRA and genetic information under the Genetic Information Nondiscrimination Act (“GINA”).  In addition, each state usually has a larger number of protected classes than under federal law such as citizenship, marital status, sexual orientation, etc.  So what most terminated employees do is claim that the reason they were terminated was discriminatory based upon one or more of these protected classes such as race, age, disability, etc. 

How then can an employer protect its self against such claims?  The answer is documentation.  Document, Document, Document!  So the employer must be prepared to show, prior to the termination of the employee, that the real reason for the termination was that this was a terrible employee with poor performance or that his attendance was abysmal.  The best way for an employer to demonstrate this is with disciplinary warning letters stating that the employee is a poor performer or has terrible attendance.  Courts have an expectation of fairness, meaning that if an employers is really terminating the employer for poor performance or attendance, the employer who terminates an employee should provide the employee with the reason that they are doing poorly and what they can do to improve.  All of this should be in the disciplinary warning.  The employer should then provide the employee with an opportunity to improve as well as with a warning that a failure to improve his/her performance will lead to further discipline, up to and including termination.  If they fail to improve, provide another warning and another until it is clear that you have given the employee every opportunity to improve and they refuse to change.  Then, when you terminate the employee, it will be clear to a court and/or jury who hears the discrimination case that yes, in fact, the employee’s performance and not discrimination was the actual motive for the termination.  

So this is the reason that although employees are employees-at-will, employers still have to document the reasons that the employees are being terminated.  It is necessary so that employers protect themselves from any future claims that the termination was, in fact, discriminatory.

Nursing Mothers in the Workplace Law

New York employers are now required to provide unpaid time for nursing mothers to express breast milk in the workplace. The new law, which was signed into law in August 2007 and is effective immediately, required New York employers to provide reasonable break time for nursing mothers to express breast milk during the work day. It does not require that the time be paid but does allow employers to use paid break time for this purpose. The law also mandates that employers make "reasonable efforts" to ensure that employees have "a room or other location, in close proximity to the work area" to express her milk. Employees are protected under this law for three years from the birth of the child. The law also prohibits discrimination of any kind against a woman who chooses to avail herself of this protection and express milk in the workplace. Employers should review their current policies and ensure that such policies are compliant with this new law. In addition, employers should train their managers regarding this new law and instruct them to comply.

New Jersey Prohibits Discrimination Based on "Gender Indentity and its Expression"

On June 17, 2007 New Jersey became the ninth state to add "gender identity and its expression" to its list of protected classes. What does this mean for employers? Employers are now prohibited from discriminating against employers based upon their "gender identity". This would also protect employees from any harassment based upon the employee's gender identity. Employers should ensure that their EEO and Anti-Harassment Policies are updated to include "gender identity and its expression" for New Jersey. Employers should also provide Anti-Harassment Training for their managers and employees and reiterate to such managers that any discrimination or harassment based upon "gender identity and its expression" is strictly prohibited.