LGBT

The OFCCP Did Something They Should Have Done a Long Time Ago

Most of you reading this article probably do not remember when the Office of Federal Contract Compliance Programs (OFCCP) previously drafted sex discrimination guidelines.  This is because the OFCCP has not revised its sex discrimination guidelines since 1970.  Yes, you read that correctly: 1970.  For those of you who are employed by a company that often works as a Federal contractor, these new guidelines will apply.  For everyone else, these guidelines will reflect a national trend regarding sex discrimination in the workplace, particularly pregnancy discrimination and transgender rights.  As the U.S. Department of Labor put it in their factsheet, we are moving from the “Mad Men” era to the Modern era.  Finally.

The key changes are focused on three issues:  (1) disparities between men and women in the workforce (e.g. pay, career development, opportunities, etc); (2) lack of accommodations offered to pregnant employees; and (3) LGBT discrimination and “sex stereotypes.” 

 Men = Women // Women = Men

Under the new OFCCP guidelines, contractors are expressly forbidden from paying workers differently based on sex.  Since part of the gender pay-gap is due to women receiving less opportunity to “rise in the ranks,” the OFCCP added language that also prohibits a contractor from denying an opportunity for more pay or career advancement based on sex (think: overtime, training, or seeking a higher position).  This would also include placing unnecessary job restrictions to limit the eligibility of a female (or male).    In other words, any height, weight, or strength requirements must be a bona fide occupational characteristic and be job-related and consistent with a business necessity. 

In addition to pay and advancement issues, the OFCCP also makes it clear that contractors cannot discriminate on the basis of sex when it comes to offering fringe benefits.  “Fringe benefits” include things like health benefits, life insurance, and retirement benefits.  There is also a clause that reiterates that sexual harassment will not be tolerated.

Pregnant Employees and Job Accommodations

While most pregnant employees are not “disabled” by the ADA definition of the word, many of them may qualify for an accommodation that permits them to continue doing their job.  Such a workplace accommodation could be as simple as extra bathroom breaks or light-duty assignments and must be evaluated based on each employee’s need.  This provision of the revised OFCCP guidelines also expands pregnancy discrimination to include “related medical conditions.”  If the same or similar accommodation would be (or legally should be) offered to a non-pregnant employee, then it must also be offered with the same consideration to a pregnant employee (or an employee suffering a medical condition related to pregnancy and/or childbirth). 

 LGBT and Transgender Employees = Employees

As we continue to witness laws like HB2, the Feds continue to counterattack by setting the example that LGBT discrimination should not be tolerated.  While the new OFCCP guidelines does not specifically address HB2, it certainly attempts to counteract the North Carolina law by requiring federal contractors to allow workers to use bathrooms, changing rooms, and showers that are consistent with the gender in which the worker identifies.   The OFCCP also goes a step further and states that excluding coverage for cases related to gender dysphoria or gender transition is facially discriminatory.  In other words, Federal contractors cannot discriminate based on gender identity or transgender status.

Since more and more LGBT employees are bringing Title VII discrimination claims through a “sex stereotype” theory, the revised OFCCP guidelines also state contractors cannot treat employees or applicants adversely because they fail to comply with social expectations of men and/or women.  Moving forward, referring to certain positions as a “man’s job” may not be the best idea. 

All that said, most of this should be a good review of Title VII, which applies to private employers, but these new OFCCP guidelines are certainly a product of trends seen in the world of employment law.  My guess is that more and more will be said about transgender employees in the next few years, as will more be said about pregnant employees and the gender wage-gap in the near future.            

What Time is it? EMPLOYMENT HANDBOOK UPDATE TIME!

It's the end of February which makes it practically Spring and therefore time to so some "Spring Cleaning."  What is one thing all companies should do annually but few actually do ever?  Answer:  Review, revise, or even just read their Employment Handbooks.  If you fall into the latter category, here are some handbook provisions you should definitely not ignore, regardless of your size.

#1:  Social Media & Data Privacy

People have a lot of devices (e.g. iPhones, iPad, Macbook, laptop, desktop, etc) which means people are super connected to the world.  A major consequence of cool technology?  We are so connected that our personal life often blends into our professional life.  Because of this intersection, handbooks should have a policy stating employees have no right to privacy while accessing social media at work or on company-owned equipment.  This policy should also address cyber security and set parameters for downloading apps and programs onto company-owned devices and state that proprietary information should not be shared online (with the exception of certain protected communications). 

#2:  Overtime & Wage Deductions

Every company should have a policy prohibiting unauthorized overtime AND a method in place for submitting and approving overtime work.  

[NOTE:  Just because you prohibit unauthorized overtime doesn't mean you don't have to pay overtime that has actually been completed. The policy, however, gives you grounds to terminate an employee for not having the overtime work approved. Get it, got it, good.]

In addition to overtime, if you make any deductions from paychecks (other than standard IRS/tax deductions), you should include details in your handbook.  For example, if you loan tools to employees and take out the amount of the loan from their paychecks, this needs to be in writing.  Also, the North Carolina Wage and Hour Act has some additional rules regarding wage withholdings that may also come into play.  

#3:   LGBT Rights

A lot of companies have already revised their anti-discrimination or EEO policies to include sexual orientation.  If you have 15 or more employees, I would strongly recommend doing the same since more and more courts are recognizing LGBT protections under Title VII.  Of particular protected status: transgender employees

If you offer group benefits to employees, you should also revise any handbook policies regarding benefit eligibility.  Recall the 2015 Supreme Court case that legalized gay marriage nationwide which in turn makes gay marriage included in a lot of group benefits offered to employee spouses and children (e.g. healthcare). 

#4:  Smoking

Many companies have anti-smoking policies in place but does your policy address e-cigs?  If not, you may want to think this one over.  If your company has banned smoking on the job, your employees may have the expectation this would include e-cigs too.  

What about (legal) marijuana use?  Marijuana is still illegal in North Carolina and most other states and even where it is legally obtained and used, courts have held that companies can still ban the use of all drugs including marijuana.  This means a failed drug test is a failed drug test and can still be grounds for termination.  Alert your employees who have taken a liking to Colorado and Washington.   

Speaking of drug testing, did you know North Carolina has a Controlled Substance Examination Regulation Act?  We do and its ignored a lot so you may want a review. 

#5:  Retaliation 

Retaliation claims are on the rise according to the EEOC which means it is worth talking about retaliation in your handbook.  Employers, particularly those with 15 or more employees, should have an anti-retaliation policy for employees who report issues.  Supervisors and managers should also be well-trained on retaliation so that they know how to deal with employees who report bad things in the workplace.  You also want to make sure there is a good reporting procedure in place for employees to use when they need to report discrimination or similar complaints.

#6:  Reasonable Accommodation

Another hot topic with the EEOC and pertinent to employers covered under the ADA and Title VII.  Employers need to know how to deal with reasonable accommodations requests in the proper/lawful way.  The best way to do this is to put it all in a written policy that is available to employees and supervisors alike.  Once again, training supervising employees on how to identify reasonable accommodation issues is key.  

Luckily for all the NC employers out there, our state did not enact any new employment laws in 2015.  However, the federal courts and certain federal agencies have been all over the place with new interpretations of federal employment laws.  Employment handbooks should be treated as living documents that are subject to annual review (at a minimum).  If you want some help on this task, you know where to find us!

Haters gonna Hate (hate, hate, hate, hate): LGBT Discrimination in the Workplace

images-4.jpeg

A lot of people are talking about LGBT discrimination.  Yesterday, Texans in Houston voted to repeal a local LGBT anti-discrimination law which was considered by most to be a major blow to the LGBT community.  Interestingly enough, based on a recent EEOC List of "Top 10 Litigation Trends," LGBT discrimination ranked #4 with over 1100 EEOC charges filed in 2014 and over 600 charges in the first half of 2015.  Despite having the right to be lawfully married in all 50 states, there are still no federal anti-discrimination laws that apply to LGBT discrimination in the workplace.  In fact, LGBT is not even a federally protected class as far as employment discrimination is concerned.   So how can LGBT discrimination rank #4 with the EEOC's hot topics list? Answer: Title VII.   DUN. DUN. DUN.

Title VII & LGBT Discrimination 

Employers who fall under Title VII (meaning they have 15 or more employees), cannot discriminate based on sexual orientation.  Yes, yes, I realize Title VII only protects race, color, national origin, sex, and religion but most courts have held that discrimination based on sexual orientation is the same as discrimination based on sex.  Here are a few examples of how this has played out in the courts:

EX 1: Transgender man transfers jobs for family reasons.  Upon being transferred, he informs supervisor that he will be transitioning soon and will need to change his name and sex on all employment forms.  Suddenly a budget is cut and the job is "eliminated."  Transgender employee files EEOC complaint.  EEOC (in eventual appeal) holds that transgender employee can sue based on sex discrimination under Title VII.  Macy v. Department of Justice, EEOC Appeal No. 0120120821 (April 20, 2012).

EX 2:  Homosexual man is told his "gay stuff" is "distracting" to the workforce.  He is later denied a permanent position with the company.  EEOC (in another appeal) holds that he can sue under Title VII sex discrimination theory because being discriminated against for being gay is the same as sex discrimination for purposes of Title VII.  David Baldwin v. Dep't of Transportation, EEOC Appeal No. 0120133080 (July 15, 2015).

EX 3: Transgender employee denied job opportunity because she did not conform to social stereotypes about sex during the transitioning process.  EEOC filed suit on plaintiff's behalf (still pending but based on Title VII and sex discrimination).  EEOC v. R.G. & G.R. Harris Funeral Homes Inc. (E.D. Mich. Civ. No. 2:14-cv-13710-SFC-DRG filed Sept. 25, 2014).

I think you get the point, but more examples can be found here. 

What about North Carolina?

North Carolina has few employment laws and LGBT protections are unfortunately not one of them.  There is a public policy in NC that employers with 15 or more employees cannot discriminate based on sex so you may be able to get into court based on a Wrongful Discharge Against Public Policy theory.  

Don't want to be a Hater? This is what you should do:

Employers should protect LGBT employees from discrimination in the same way they are supposed to protect other protected classes from discrimination.  Based on recent EEOC decisions, employers with 15 or more employees should go ahead and protect LGBT employees like they would any other protected class (meaning protection is pseudo-mandatory under Title VII for covered employers).  

This protection usually starts as an anti-discrimination policy in an employment handbook and ends with the employer enforcing this policy by actively investigating any claims of LGBT discrimination.  Do yourselves a favor and make the EEOC happy and revise your anti-discrimination policies to include LGBT employees.  If you want an extra credit gold star from the EEOC, consider offering support services for LGBT employees, especially transgender employees undergoing a formal transition.

For those of you that do not have an anti-discrimination policy in your handbook or a well-written reporting procedure, I encourage you to add both of these policies to your handbook.  If you do not have an employment handbook (GASP!),  I highly, highly, HIGHLY recommend you get one no matter how small your company and no matter how cool and fair you think you are. 

 

Interested in developing an Employment Handbook?  We've got you covered. 

Name
Name