On July 21, 2014, President Obama issued Executive Order 13672, amending Executive Order 11246, applicable to federal contractors and subcontractors, to add gender identity and sexual orientation to the categories protected by E.O. 11246. On August 19, 2014, the Department of Labor, Office of Federal Contract Compliance Programs, issued a Directive to “clarify that OFCCP interprets federal contractor and subcontractor nondiscrimination obligations to include the protection of individuals on the bases of gender identity and transgender status. Today, OFCCP published its final rule implementing E.O. 13672. The rule will be effective on April 4, 2015, 120 days following the rule’s publication in the Federal Register, and will apply to federal contracts entered into or modified after the effective date.
On August 8, 2014, Governor Deval Patrick signed into law a bill relating to domestic violence that, among other things, establishes a new category of job-protected leave for employees (the “Law”). Effective immediately, Massachusetts employers with fifty (50) or more employees must permit employees to take up to fifteen (15) days of unpaid leave per year if they or their family members are the victims of “abusive behavior,” which includes domestic violence, stalking, sexual assault, and kidnapping. Read more
The Equal Employment Opportunity Commission (“EEOC”) recently issued an enforcement guidance relating to the treatment of pregnant employees (the “Guidance”). The Guidance reaffirms the EEOC’s position that, although pregnancy itself is not a disability under the Americans with Disabilities Act (“ADA”), many temporary pregnancy-related impairments may qualify as disabilities. Temporary impairments that may qualify as disabilities include, for example, carpel tunnel syndrome, gestational diabetes, preeclampsia, and even nausea resulting in severe dehydration. Per the EEOC, therefore, employers may be required to offer reasonable accommodations to employees with such pregnancy-related impairments.
On June 30, 2014, the Equal Employment Opportunity Commission touted its recent agreement with Princeton HealthCare System to settle litigation challenging PCHS’s “inflexible” leave of absence policy under the Americans with Disabilities Act.
According to the press release published by the EEOC, PHCS maintained a fixed leave policy whereby employees were terminated if they were unable to return to work at the end of FMLA-covered leaves of absence, or after a shorter period if ineligible for Family and Medical Leave Act-related leave. This blanket policy, the EEOC asserts, violates the ADA because it fails to consider leave as a reasonable accommodation. To settle the case, PCHS will pay $1,350,000 and eliminate its inflexible leave policy. The EEOC press release also celebrates of “significant resolutions of EEOC cases involving leave and attendance policies, including its settlements with Interstate Distributor, Supervalu, Sears and Verizon. Read more
The EEOC recently published a question-and-answer guidance (“Guidance”) regarding religious garb and grooming in the workplace. The EEOC, through the Guidance, states that, in most instances, employers covered by Title VII must make exceptions to their usual rules or preferences to permit applicants and employees to follow their religious dress and grooming practices.
The EEOC observes that Title VII protects all aspects of “sincerely held” religious observances and religious beliefs. Under the Guidance,” religion” is defined broadly to include not only traditional, organized religions, but also religious beliefs that are new, uncommon, or only subscribed to by a small number of people. The Guidance emphasizes that an applicant or employee’s religious beliefs may be “sincerely held” even when the religious practices at issue are illogical or unreasonable to others, and even when they deviate from commonly-followed tenets of the applicant or employee’s religion. Non-observance is also protected, and discrimination based on an individual’s lack of religious beliefs is prohibited.
The EEOC, through the Guidance, takes the position that Title VII requires an employer to make an exception to its policies and practices (including its dress and grooming policies and practices) if an applicant or employee requires a religious accommodation for a “sincerely held” religious belief unless doing so would pose an undue hardship. Customer preferences or maintaining a certain “image” do not constitute an undue hardship. Employers are also reminded that Title VII bars retaliation against an employee because the employee has engaged in protected activity (which includes requesting religious accommodation), and workplace harassment based on religion (which includes asking an employee to engage in a religious practice that is contrary to his or her beliefs).
The EEOC sets forth questions and answers pertaining to, among other issues, accommodating religious dress and grooming practices of employees who have only recently adopted religious observances, accommodating religious dress and grooming practices even when doing so will purportedly harm an employer’s “image,” and providing religious accommodations to employees with long hair or unshaven facial hair. Click here to review these questions and answers as well as other topics addressed in the Guidance.
Did you know that social media is part of today’s workplace but its use may raise employment discrimination concerns? According to an EEOC press release issued on March 12, experts tell EEOC that use of social media by employers, applicants and employees may implicate the laws EEOC enforces. Not to be sarcastic, but the only thing newsworthy about this press release is the fact that it wasn’t issued years ago.
Article by Monica Rose Cafaro (Posted by Martha Zackin)
A recent decision by a federal appeals court underscores the need for HR mangers and other hiring personnel to watch what they say about job openings and the company’s hiring practices.
In Kidd v. Mando American Corporation, a white female employee who worked in the accounting department of a Korean-owned company was not considered for a promotion, despite her qualifications. Instead, a Korean male was hired. When the employee who was not hired – Leanne Kidd – complained to an HR Manager, Ms. Kidd alleges she was told that the Company’s predominately Korean management “refused to even consider an American candidate.” Ms. Kidd also alleges that another HR employee told her that “no matter what . . . there would never be any American management in the company, it would always be Korean management . . . .” Ms. Kidd relied on the HR employees’ comments to support her claim that that the employer engaged in discriminatory hiring practices by hiring the Korean male candidate over her and other qualified American candidates.
Finding that the company articulated a legitimate non -discriminatory reason for the adverse employment action, the lower court dismissed Ms. Kidd’s complaint. In so holding, the lower court refused to consider the HR employees’ comments, finding that they were not admissible as evidence to show that the company’s articulated reason for denying Ms. Kidd a promotion was a pretext for unlawful discrimination.
The Eleventh Circuit overturned the lower court’s decision after analyzing various legal standards relating to hearsay. That legal analysis is not relevant to the point of this blog entry- rather, the key point here is that HR employees, as well as other employees involved in hiring decisions, should avoid commenting on a company’s hiring practices or disclosing certain desired characteristics of an “ideal candidate.” Periodic training, to educate and to reinforce good hiring practices and “common sense” principles, may help to remind hiring personnel and management employees of their obligations under the law.
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