On Wednesday April 17, 2024, the US Supreme Court in Muldrow v. City of St. Louis, Missouri, et al. issued a precedential ruling that will likely pave the way for more employee discrimination claims under Title VII. In a unanimous decision, the Court held that Title VII prohibits discriminatory job transfers even if they do not result in a “materially significant disadvantage” to the employee. The Court clarified that an employee challenging a job transfer under Title VII must establish “some harm” with respect to the terms and conditions of employment, but that such harm “need not be significant.”Continue Reading U.S. Supreme Court clarifies standard for job transfer discrimination under Title VII

During the height of the #MeToo movement, New York lawmakers passed a host of workplace-related legislation. This included adoption of Section 5-336 of the New York General Obligations Law, which governs the use of nondisclosure provisions in agreements resolving claims of discrimination, harassment, or retaliation. On November 17, 2023, Empire State legislators passed several key amendments (the “Amendment”) to the existing law, which took effect immediately.

By way of background, Section 5-336 was originally passed to protect nondisclosure provisions in agreements resolving claims of sexual harassment. Under Section 5-336 and prior to the Amendment, the law prohibited employers from including nondisclosure provisions in such agreements unless it was the employee’s preference and the employer complied with certain procedural requirements, including: (i) the inclusion of the provision is the employee-complainant’s preference; (ii) employee’s receipt of 21 days to consider the nondisclosure provision, a period that could not be shortened or waived (even if the employee wanted to); (iii) a 7-day revocation period; and (iv) employee’s preference for confidentiality memorialized in a separate written agreement.Continue Reading Reminder to New York employers: Amendments to nondisclosure rules will require updates to separation and settlement agreements

Florida Governor Ron DeSantis signed a bill into law that prohibits employers from implementing discriminatory practices in their diversity training programs, effective July 1, 2022. The bill, known as the “Individual Freedom Act,” amends the Florida Civil Rights Act, Fla. St. 760.01, et seq., to expand the definition of discrimination and subjects employers to liability for violations.

Expanding the definition of “discrimination”

Specifically, the Individual Freedom Act amends Fla. St. § 760.10, to prohibit public employers and private employers with 15 or more employees from requiring any individual – as a condition of employment, membership, certification, licensing, credentialing, or passing an examination – to participate in training, instruction, or any other required activity that espouses, promotes, advances, inculcates, or compels the individual to believe any of the following concepts:

  1. Members of one race, color, sex, or national origin are morally superior to members of another race, color, sex, or national origin.
  2. An individual, by virtue of his or her race, color, sex, or national origin, is inherently racist, sexist, or oppressive, whether consciously or unconsciously.
  3. An individual’s moral character or status as either privileged or oppressed is necessarily determined by his or her race, color, sex, or national origin.
  4. Members of one race, color, sex, or national origin cannot and should not attempt to treat others without respect to race, color, sex, or national origin.
  5. An individual, by virtue of his or her race, color, sex, or national origin, bears responsibility for, or should be discriminated against or receive adverse treatment because of, actions committed in the past by other members of the same race, color, sex, or national origin.
  6. An individual, by virtue of his or her race, color, sex, or national origin, should be discriminated against or receive adverse treatment to achieve diversity, equity, or inclusion.
  7. An individual should feel discomfort, guilt, anguish, or any other form of psychological distress on account of his or her race, color, sex, or national origin.
  8. Such virtues as merit, excellence, hard work, fairness, neutrality, objectivity, and racial colorblindness are racist or sexist, or were created by members of a particular race, color, sex, or national origin to oppress members of another race, color, sex, or national origin.

However, these concepts may be included in training or instruction if they are addressed in an objective manner and without endorsement.Continue Reading Florida expands definition of “discrimination” and increases employer liability for discrimination in workplace diversity training

As we discussed here, employers who have implemented mandatory vaccine policies – either by choice or by government mandate – have seen a significant uptick in religious accommodation requests. As a result, on October 25, 2021, the Equal Employment Opportunity Commission (EEOC) issued guidance regarding employers’ obligations under federal anti-discrimination law when an employee

It’s that time of the year again! The deadline for California Governor Gavin Newsom to sign, approve without signing, or veto bills on his desk was October 10, 2021. Now that the dust has settled, we have compiled a comprehensive list of bills signed by the governor that will impact employers. We also highlight bills

On October 5, 2021, Governor Phil Murphy signed legislation (A681) amending the New Jersey Law Against Discrimination (NJLAD) to expand protections for the state’s older workers. While the NJLAD already prohibited age discrimination, it contained an exception permitting employers to decide not to hire or promote workers over 70 based on their age. The new

Mandatory vaccine policies became even more of a scorching hot topic after the Biden Administration announced its Path Out of the Pandemic initiative (which we previously wrote about here). Some employees may have a legitimate medical reason for refusing a COVID-19 vaccine (e.g., an allergy to vaccine components). But what about an employee claiming to have a religious objection to taking the vaccine? We have recently seen clients experiencing an influx in requests from employees seeking a religious accommodation to be exempt from the company’s mandatory vaccine policy. Below, we discuss some of the complex legal and practical issues employers should consider when navigating these unchartered waters.

Quick recap of the “religious exemption”

Title VII of the Civil Rights Act (Title VII), and similar state and local anti-discrimination laws, prohibit employment discrimination on the basis of religion. To comply with those laws, employers are generally required to accommodate an employee’s “sincerely held” religious belief, observance or practice. A religious accommodation is an adjustment to the work environment that, once implemented, allows the employee to continue working while also complying with his or her religious beliefs. In guidance issued earlier this year, the EEOC stated “[t]he law protects not only people who belong to traditional, organized religions, such as Buddhism, Christianity, Hinduism, Islam, and Judaism, but also others who have sincerely held religious, ethical or moral beliefs.” Even if the religious assertion seems irrational or is not the actual teaching of a recognized religious group or denomination, the relevant standard under Title VII is the sincerity of the individual’s belief.

Determining what a “sincerely held” religious belief means

Here is where it gets tricky. The EEOC and courts have interpreted “religious belief” very broadly under Title VII. An employee does not have to show they attend a place of worship, are a member of an organized religion, or even believe in a deity. Nor does an employee seeking a religious accommodation need to provide a note from their priest or spiritual advisor verifying that employee’s belief. According to the EEOC, a “religious belief” includes any “moral or ethical beliefs as to what is right and wrong which are sincerely held with the strength of traditional religious views.” In its Compliance Manual, the EEOC warns employers should not be in the business of trying to decide whether a person holds a religious belief for the “proper” reasons. The inquiry should focus on the sincerity of the belief; not the motives or reasons for holding that belief in the first place.Continue Reading Help! We have had a major influx in religious accommodation requests from our mandatory vaccine policy

The effects of the #MeToo movement for employers continue with Governor Abbott recently signing two new bills into law (effective September 1, 2021) that greatly amplify legal protections against sexual harassment. One bill extends the statute of limitations for sexual harassment claims from 180 days to 300 days. The other opens the door for small employers, and even individual supervisors and coworkers, to be held liable for sexual harassment.  Also, Texas employers must now take “immediate and appropriate corrective action” to avoid liability for sexual harassment. We explain these new laws in more detail below, and discuss steps Texas employers may want to consider before the new laws go into effect.

Statute of limitations lengthened for sexual harassment claims (House Bill 21)

Currently, employees must file a charge of discrimination with the Texas Workforce Commission within 180 days of the alleged harassing conduct. House Bill 21, which Governor Abbott signed into law on June 9, 2021, lengthens the statute of limitations for filing sexual harassment claims from 180 days to 300 days from the date of the alleged harassment. The longer limitations period applies only to sexual harassment claims based on conduct that occurs on or after September 1, 2021. The current 180 day statute of limitations remains unchanged for other types of alleged discrimination (e.g., based on race, age, etc.).

Because the statute of limitations under federal law for sexual harassment claims is 300 days, plaintiffs who miss the 180-day deadline under Texas law were typically only able to pursue their sexual harassment claims in federal court (assuming, of course, they initiated legal proceedings within the 300-day federal deadline). Beginning this fall, those plaintiffs will be able to pursue such claims in either federal or state court. 
Continue Reading Attention Texas employers: Starting September 1, 2021, companies with just one employee—as well as individual supervisors and coworkers—can be liable for sexual harassment

Following last year’s wave of new employment laws (previously covered as follows: Part 1, Part 2, and Part 3), Virginia has adopted a variety of new laws that will take effect July 1 and continue to transform the Commonwealth’s employment law landscape. Virginia employers should carefully review these new laws to ensure compliance in this changing environment and in light of newly expanded enforcement mechanisms.

Minimum wage increase

While Virginia adopted incremental increases to the minimum wage set to reach $15 per hour by 2026, the first step-increase was delayed due to the pandemic. Effective May 1, 2021, the minimum wage increased to $9.50 per hour and is set to increase again effective January 1, 2022.  The Virginia Department of Labor and Industry (DOLI) has issued a minimum wage guide for employers that includes an optional workplace posting announcing this increase.

The Virginia Overtime Wage Act

Governor Ralph Northam signed the Virginia Overtime Wage Act, which will take effect on July 1, 2021 and now provides overtime protections for employees under state law (previously overtime protections were only under federal law). While the new law incorporates the exemptions from overtime under the federal Fair Labor Standards Act (FLSA) and purports to graft the FLSA’s overtime protections into state law, there are several notable differences between the FLSA and Virginia’s new law.

Unlike the FLSA, Virginia’s new law (i) establishes a three-year statute of limitations thereby allowing recovery of up to three years of back wages, unlike the FLSA’s typical 2-year lookback; (ii) does not provide for any good faith defense for employers; and (iii) forecloses an employer from using the fluctuating workweek method or from paying a fixed amount to cover straight time wages for all hours worked. Accordingly, non-exempt employees paid a salary or on some other non-hourly basis are entitled to overtime for any hours worked over 40 at “one and one-half times” a regular rate of 1/40th of all wages paid for that workweek.  Also unlike the FLSA, the new law’s definition of “employer” includes derivative carriers within the meaning of the federal Railway Labor Act. Unlike prior Virginia law, the new law provides for a private right of action under Virginia’s wage payment statute (with enhanced remedies enacted last year).
Continue Reading Virginia adopts new laws effective July 1 that continue to transform the employment landscape

Federal contractors and other employers should anticipate greater scrutiny related to their compensation policies and practices as a result of recent policy shifts. President Biden has made it clear that a key priority of his administration is closing the gender and racial wage gap that currently exists in the United States, and that he plans to encourage changes at both the state and federal levels. At the federal level, that means the reintroduction of the Paycheck Fairness Act, the rollout of new policy initiatives, and the issuance of executive orders. This prioritization of pay equity will likely result in renewed enforcement efforts related to pay discrimination from the Office of Federal Contract Compliance Programs (OFCCP). State legislatures also continue to pass laws enhancing pay equity and transparency.

Background

The Equal Pay Act (EPA), passed in 1963, was one of the first anti-discrimination laws enacted and was intended to abolish wage disparity based on sex. The act prohibits wage discrimination between men and women who perform jobs that require substantially the same skill, effort and responsibility within the same company. Despite the existence of the EPA, however, the gender-wage gap still exists with the focus on pay disparities across both gender and race, as evidenced by statistical data.

Biden priority

On International Women’s Day, March 8, 2021, President Biden created the White House Gender Policy Council via Executive Order, to ensure that gender equity and equality are pursued in domestic and international policy. Specifically, the Council is tasked with advancing gender equity and equality by coordinating federal policies and programs that address the structural barriers to women’s participation in the labor force and by decreasing wage and wealth gaps. The Council is to work closely with the Domestic Policy Council, which is coordinating the interagency, whole-of-government strategy for advancing equity, as set forth in Executive Order 13985 of January 20, 2021 (Advancing Racial Equity and Support for Underserved Communities Through the Federal Government.) In addition, the President has promised additional funding for agencies such as the Equal Employment Opportunity Commission (EEOC), the U.S. Labor Department’s Office of Federal Contract Compliance Programs, and the Justice Department’s Civil Rights Division to investigate violations and enforce pay equity laws.Continue Reading Biden’s pay equity priority: federal and state updates, and what federal contractors can expect going forward