California’s Fair Employment and Housing Act (“FEHA”) not only prohibits discrimination, harassment and retaliation, but goes a step farther than similar state laws in its explicit requirement that employers take reasonable steps to prevent and correct such conduct. Cal. Gov’t Code § 12940(k). In 2016, the California Fair Employment and Housing Council promulgated regulations which set forth the required elements of a compliant prevention and correction program (2 CCR §§ 11023-11024), and in May 2017 the California Department of Fair Employment and Housing (“DFEH”) issued a Workplace Harassment Guide (the “Guide”) to clarify further employers’ obligations under these regulations. The Guide, which is notable for its detailed explanation of workplace investigation procedures, can be accessed here.
On June 30, 2017, Missouri Governor Eric Greitens signed a bill into law, Senate Bill 43 (SB 43), that makes substantial changes to Missouri’s employment discrimination laws. The Bill, which goes into effect on August 28, amends the Missouri Human Rights Act (MHRA) and creates the “Whistle Blower Protection Act.”
Numerous changes have been made to the MHRA, so the Bill is worth a read. A few key changes that are likely of particular interest to employers relate to who may be liable for violations, the level of proof required to establish a violation, and the amount of damages that may be awarded.
In a ceremonial signing on June 22, Philadelphia Mayor Jim Kenney signed a new municipal bill giving the City of Philadelphia authority to temporarily close businesses found to have repeatedly violated the City’s anti-discrimination statutes. The new bill, which amends the City’s Fair Practices Ordinance, states that the Philadelphia Commission on Human Relations may, “upon a finding that [an employer] has engaged in severe or repeated violations without effective efforts to remediate the violations, order that the [employer] cease its business operations in the City for a specified period of time.” The bill, which went into effect immediately, does not state how long a business may be closed. Nor does it define “severe or repeated violations” or clarify what constitutes “effective efforts to remediate.”
At the request of the U. S. Court of Appeals for the Second Circuit, the New York Court of Appeals recently answered several questions regarding liability under the New York Human Rights Law Section 296(15)—which prohibits denying employment on the basis of criminal convictions when doing so violates New York Correction Law Article 23-A—and Section 296(6)—which prohibits aiding and abetting such discrimination.
In a landmark ruling on April 4, 2017, the United States Court of Appeals for the Seventh Circuit, sitting en banc, became the first federal appellate court to officially recognize a discrimination claim under Title VII based solely on the plaintiff’s sexual orientation. The Court’s decision in Hively v. Ivy Tech Community College of Indiana reflects a groundswell of recent cases questioning whether sexual orientation claims are viable under Title VII. Although the Seventh Circuit is the only appellate court so far to hold that sexual orientation discrimination is a form of “sex” discrimination under Title VII, recent panel decisions from the Second and Eleventh Circuit Courts of Appeals signal that additional circuit courts might be poised to overrule existing case law to find similar protections. Continue Reading Circuit Courts Reevaluate Sexual Orientation Discrimination Claims Under Title VII
Effective March 17, 2017, the District of Columbia will join a dozen other jurisdictions across the country that prohibit an employer’s use of “credit information” in employment decisions. The new law, D.C. Act 21-673, amends the District of Columbia’s existing human rights law by adding credit information as a prohibited basis for discrimination for any employment decision (not just hiring), and applies to employers of any size. See D.C. Code § 2-1402.11(a)(1) and (a)(1)(4)(D), as amended.
The Trump Administration will leave in place an executive order signed by President Barack Obama, which bans sexual orientation and gender identity discrimination by federal contractors. President Obama signed the order in 2014. By doing so, he amended and expanded previous executive orders signed by Presidents Nixon and Clinton, which ban discrimination by federal contractors on the basis race, color, religion, sex, national origin, handicap, status as a parent, and age.
Donald Trump’s election took many by surprise. Companies must now quickly determine his likely impact on their operations and workforces.
Trump will be the first US president with no government or military experience. He voiced extreme views during his campaign on immigration and discrimination, but he has played it close to the vest when it comes to other labor and employment law issues. What is clear is that Trump will have the backing of a GOP-controlled House and Senate. Does this mean employers will see radical changes in policy? Will the change to a Republican administration cause more issues for companies, or less?
Though no one can predict with certainty what priorities Trump will have in the labor and employment law area, it is possible to identify the most critical anti-employer / anti-business rules, regulations, and case decisions on which Trump may focus. Join us for a 1-hour webinar that discusses Trump’s most likely targets for change and the methodology that Trump and his administration must follow to accomplish that change.
Thursday, November 17, 2016
1:00 p.m. – 2:00 p.m. ET
The Ninth Circuit has joined both the Sixth and Fifth circuits in holding that USERRA claims are subject to arbitration pursuant to an employee’s agreement to arbitrate employment related claims. See Ziober v. BLB Resources, Inc., 2016 WL 5956733 (9th Cir. Oct. 14, 2016). In doing so, the Ninth Circuit, a traditionally pro-employee circuit, has assuaged any fear of uncertainty that employers may have had with respect to their rights to compel arbitration of USERRA claims.
On October 5, 2016, the Eleventh Circuit, sitting en banc, held that an unsuccessful job applicant “cannot sue an employer for disparate impact [under § 4(a)(2) of the ADEA] because [an] applicant has no ‘status as an employee.’” Villarreal v. R.J. Reynolds Tobacco Co., — F.3d —, No. 15-10602, 2016 WL 5800001, at *1 (11th Cir. Oct. 5, 2016).