Discrimination

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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

Recently the California Department of Fair Employment and Housing (DFEH) released guidance stating that employers generally may require their employees to receive a Food and Drug Administration approved vaccination against COVID-19. Under California’s Fair Employment and Housing Act (FEHA), an employer may implement a mandatory vaccination policy so long as the employer:

  1. Does not discriminate against or harass employees or job applicants on the basis of a protected characteristic;
  2. Provides reasonable accommodations related to disability or sincerely-held religious beliefs or practices; and
  3. Does not retaliate against anyone for engaging in protected activity (such as requesting a reasonable accommodation).

Continue Reading The California Department of Fair Employment and Housing blesses employers’ use of mandatory vaccination policies

On February 22, 2021, New Jersey Governor Phil Murphy signed the New Jersey Cannabis Regulatory, Enforcement Assistance, and Marketplace Modernization Act (NJCREAMMA) and other related bills into law which legalize and regulate recreational cannabis use and possession for adults over the age of 21.  With the enactment of NJCREAMMA, New Jersey now prohibits employers from discriminating against employees for off-duty recreational marijuana use (or decision not to use).  These requirements are effective immediately.

Prior to the enactment of NJCREAMMA, New Jersey employers were prohibited from discriminating against individuals who are certified to use medical marijuana and required to engage in the interactive process with employees who request accommodations for medical marijuana use.  NJCREAMMA extends the discrimination prohibitions to recreational marijuana users and prohibits employers from refusing to hire, discharging, or taking “any adverse action against an employee with respect to compensation, terms, conditions, or other privileges of employment because that person does or does not smoke, vape, aerosolize or otherwise use cannabis items.”  In addition, these prohibitions extend to positive drug tests where solely cannabinoid metabolites are present in the employee’s system.
Continue Reading New Jersey legalizes recreational marijuana use: What this means for employers

The release of the COVID-19 vaccine came as welcome news for employers. With it, however, employers will now confront myriad new questions about how the vaccine will affect workplace terms and conditions. The foremost question across all sectors has been simple: Can and should employers mandate that their employees get vaccinated? While issuing a mandate may seem appealing, doing so creates a variety of both legal and practical risks that, for many businesses, may militate in favor of a voluntary compliance program.

Faced with this reality, many employers have begun exploring incentive-driven voluntary programs, including offering additional PTO, gift cards, and even cash “bonuses” to employees who provide proof of vaccination.  While such a voluntary system avoids many of the pitfalls of a mandatory system, it also carries its own complexities and risks in an already complicated and unsettled area of law.  This post examines some of those risks while also highlighting the unique uncertainty surrounding this emerging issue. 
Continue Reading Managing the risks of incentivizing COVID-19 vaccines for employees

The Biden administration issued new guidance immediately following his Jan. 20 inauguration abrogating former U.S. President Trump’s Executive Order 13950 on Combating Race and Sex Stereotyping (the Order). Implementation of EO 13950 had previously been stayed by a preliminary nationwide injunction entered Dec. 22, 2020, in California federal court. As a result, federal contractors or organizations with a federal contract currently have no obligation to revise their diversity and equity training to omit the prohibited training topics set forth in EO 13950.

As previously discussed, EO 13950 sought to reshape the way government contractors performed diversity and equity training. It prohibited, among other things, restrictions on training about affirmative action, discussion of reparations and implicit bias, and guidance regarding limiting micro aggressions. Further, the Order mandated employer postings in the workplace as well as compliance communications with organized labor groups.Continue Reading DOL stops enforcing Executive Order 13950 on diversity training

Last week, the Pittsburgh City Council and the Allegheny County Council unanimously voted to ban discrimination on the basis of race-based hairstyles by passing the Creating a Respectful and Open World for Natural Hair Act (known as the CROWN Act).

The CROWN Acts amend provisions of the City and County Codes addressing employment, housing, real…

**Please note this blog has been updated as of January 25, 2021. Read our update here.

Beginning November 20, 2020, President Trump’s Executive Order 13950 On Combating Race and Sex Stereotyping (“EO 13950” or “The Order”) will fundamentally reshape the way government contractors conduct diversity training.  Signed September 22, 2020, the Order prohibits federal workplace trainings that “promote race or sex stereotyping or scapegoating.” Importantly for private employers, federal contractors also “will not be permitted to inculcate such views in their employees.” On October 7, 2020, the Department of Labor issued guidance in the form of “frequently asked questions” regarding EO 13950.
Continue Reading Executive Order 13950 on diversity training: Hidden traps for employers

On July 14, 2020, the Illinois Department of Human Rights (IDHR) released guidance for employers regarding the state’s new “adverse judgment or administrative ruling” reporting requirement.  Following amendments to the Illinois Human Rights Act, employers with at least one adverse judgment or administrative ruling must disclose to the IDHR the total number of final, non-appealable judgments or final, non-appealable rulings against the employer in which there was a finding of sexual harassment or unlawful discrimination.

The guidance released this month resolves ambiguity by clarifying employers’ deadlines for reporting to the IDHR.  The deadline to report for calendar year 2019 is now October 31, 2020, and the reporting deadline will be July 1 for subsequent years.

The reporting requirement is not limited to employers with a physical presence in Illinois.  As the guidance reiterates, the reporting requirement applies to “any person employing one or more employees in Illinois.”
Continue Reading Illinois releases guidance regarding reporting rule for sexual harassment and discrimination judgments

As we previously posted, the Centers for Disease Control and Prevention (CDC) CDC recently issued guidance on reopening the workplace. In its latest update on June 11, the Equal Employment Opportunity Commission (EEOC) updated its COVID-19 Frequently Asked Questions (the Guidance) to provide further guidance on returning employees to the workplace. Notably, the Guidance covers (1) the return of high-risk workers to the workplace, (2) how to properly handle COVID-19-related accommodations requests, and (3) how to appropriately respond to pandemic-related harassment. As we discussed in our last post, employers should be wary of toeing the line on the issues highlighted below, as they may become prevalent in the wave of litigation expected to arise in the wake of the pandemic.

Employers may not involuntarily exclude older or pregnant workers from the workplace

In its updated Guidance, the EEOC cautions that the Age Discrimination in Employment Act (ADEA) – which prohibits discrimination in the workplace against individuals aged 40 and older – does not permit an employer to involuntarily exclude an employee from the workplace based solely on their age, “even if the employer acted for benevolent reasons such as protecting the employee due to a higher risk of severe illness from COVID-19.” The Guidance specifically pertains to employees aged 65 years and older, who are considered by the CDC to be at a higher risk of serious illness due to COVID-19. Moreover, the EEOC has stated that employers may still provide flexible working arrangements for workers aged 65 and older, and that doing so will not be viewed as treating younger workers (ages 40 to 64) less favorably.

Additionally, under Title VII of the Civil Rights Act (Title VII), employers are prohibited from involuntarily excluding from the workplace, furloughing, or placing on leave, pregnant employees, even if the intent behind the decision is to protect the employee’s health and safety.Continue Reading EEOC provides updated guidance related to excluding high-risk workers, required accommodations, and pandemic-based harassment

On June 15, 2020, the U.S. Supreme Court issued a landmark decision in Bostock v. Clayton County, Georgia, No. 17-1618 (U.S. Jun. 15, 2020), which held that an employer who fires an individual merely for being gay or transgender violates Title VII of the Civil Rights Act of 1964. In a 6-3 opinion authored by…