Federal laws protect employees from discrimination in the workplace on the basis of race, national origin, sex, religion, disability, pregnancy and age. Employers, however, often lead in advancing policies that create a welcoming and inclusive environment that embraces a multi-faceted and diverse workforce.
Title VII of the Civil Rights of 1964, the Americans with Disabilities Act, the Genetic Information Nondiscrimination Act and other federal laws prohibit employment discrimination on the basis of race, color, national origin, sex, religion, disability, age and genetics. Despite these legal protections, the Equal Employment Opportunity Commission (EEOC) receives thousands of discrimination complaints each year. In addition, according to the "Report of the Co-Chairs of the EEOC Select Task Force on the Study of Harassment in the Workplace" (June 2016) one-third of the total charges received in 2015 included a claim of workplace harassment. To more fully examine these statistics, the EEOC in 2016 established its Select Task Force on the Study of Harassment in the Workplace. The Task Force concluded that sexual harassment training, without an organizational culture change, fails to prevent harassment because it is "too focused on simply avoiding legal liability." In cases that involved sexual harassment, three out of four individuals never raised harassment with their supervisor, manager or union representative out of fear of retaliation or disbelief of their claim.
The issue of sexual harassment in the workplace has been front and center in our national conversation in 2017. Media attention and the #MeToo campaign, along with the work of the EEOC, have led to an increased focus on the role of workplace culture in preventing harassment. In addition, the U.S. Congress, several state legislatures and other high-profile workplaces are re-examining their harassment policies to ensure fairness for employees at all levels of the organization.
Outlook: Legislation has been introduced in the 115th Congress that would prohibit employers from enforcing mandatory arbitration agreements for sexual harassment and sex discrimination claims. In addition, the House of Representatives recently passed legislation to require annual sexual harassment training for Members of Congress and their staff and to make Members of Congress personally liable for payments of settlement or injury.
Outlook: With President Obama's executive order already extending such protections to federal contractors, supporters of legislative efforts to ban discrimination on the basis of sexual orientation and gender identity have turned to broader legislation that would prohibit discrimination in employment, housing, banking and a number of other areas. This legislation will be reintroduced in the 115th Congress and will likely face opposition in the Republican-controlled House of Representatives. Whether sexual orientation discrimination is recognized as a sex discrimination claim under Title VII is likely to continue to play out in the courts. In addition, as the EEOC is restructured with Trump appointees as the existing Commissioners' terms expire, the Commission's priorities and interpretations may change.
Under the Pregnancy Discrimination Act (PDA), employers with more than 15 employees are prohibited from discriminating against employees on the basis of pregnancy, childbirth or related medical conditions. Over the last several years, the number of pregnancy discrimination cases reported to the EEOC has increased. In 2014, the EEOC issued the first comprehensive update on the subject of discrimination against pregnant workers since 1983 through its "Enforcement Guidance on Pregnancy Discrimination and Related Issues." Among other issues, the updated guidance discusses discrimination not only related to a current pregnancy, but also past pregnancy and a woman's potential to become pregnant; to issues related to leave for pregnancy and medical conditions related to pregnancy; and to reasonable accommodations for workers with pregnancy-related impairments.
In March 2015, the U.S. Supreme Court considered discrimination under the PDA, in Young v. United Parcel Service. Although the case originated before the ADA Amendments Act, the court's decision reinforces that employers should treat pregnant employees' accommodation requests on a case-by-case basis, as they do under the Americans with Disabilities Act. That means that employers must engage in the interactive process of identifying an accommodation and ensuring that pregnant employees with work restrictions are offered the same accommodations made available to non-pregnant employees.
Outlook: Young v. United Parcel Service decision appears to have diminished Congressional interest in pursuing legislation to address accommodations for pregnant employees. In addition, 45 states prohibit pregnancy discrimination, and several states and localities require accommodations specifically for pregnancy. It is unclear whether the 115th Congress will advance legislation on this topic.
Employers need to ensure that new hires possess the talent, work ethic and character needed for the organization's success. Background investigations—including reference checks, credential or educational certification checks, criminal history checks, credit checks and drug tests—can play a pivotal role in the hiring process. The Fair Credit Reporting Act governs the use of consumer reports, like criminal and credit checks, and has explicit protections for consumers. Further, Title VII of the Civil Rights Act bars employment decisions based on policies or tests, such as credit or criminal background checks, that have a "disparate impact" on protected groups.
In April 2012, the EEOC issued updated guidance on the use of criminal background checks in the employment process, including recommending that employers conduct an individualized assessment for those individuals screened out due to a criminal record and that employers refrain from including a check box for criminal convictions on the employment application.
Ten states currently limit employers' use of credit information in employment decisions, and 13 states plus the District of Columbia have adopted "ban the box" restrictions, which prohibit employers from including a question about criminal convictions on the job application. Six of these jurisdictions expand the requirement beyond public employers to include government contractors or private employers.
Outlook: Congress continues to show interest in background-check-related legislation, including proposals that would "ban the box" on job applications for federal contractors and federal agencies. Congress also continues to show interest in legislation restricting employers from checking the credit history of their employees. While background check-related legislation may be reintroduced in the 115th Congress, state-level activity is expected to grow.
The federal Office of Personnel Management (OPM) issued a final rule that went into effect January 3, 2017, that prohibits federal agencies from making specific inquiries concerning a job applicant's criminal or adverse credit background until after it has made a conditional offer of employment. The rule allows agencies to ask OPM for an exception when there are legitimate, job-related reasons for certain types of positions to inquire at an earlier stage in the employment process. In addition, several state legislatures and local jurisdictions are likely to consider new restrictions on employers' use of both criminal and credit checks in employment.
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