In December 2016, the EEOC issued a new resource document on disability discrimination based on mental health conditions, as well as a new guide for mental health providers. The release was in response to an increase in claims based on mental health conditions.
The U.S. Department of Labor’s overtime rules, issued under the Obama administration, are effectively dead. New rules are under consideration. Stay tuned.
On June 26, 2015, the U.S. Supreme Court upheld the constitutional right to same sex marriage in Obergefell v. Hodges. Thus, employee benefits pertaining to spouses are required to be the same regardless of gender.
The U.S. Supreme Court held in EEOC v. Abercrombie & Fitch that employers may not refuse to hire a job applicant if the decision is motivated by a desire to avoid providing a religious accommodation to the applicant. Employers need not have specific knowledge of the religion or accommodation that may be needed in order to face liability. For more on this issue, see my blog here.
Do not request family medical history of applicants or employees. The Genetic Information Nondiscrimination Act (GINA) makes it illegal for employers to discriminate against employees or applicants because of genetic information, which includes family medical history. The EEOC is filing lawsuits against employers requesting this information in hiring, medical and wellness screenings, and other employment decisions.
Be sure to independently review facts prior to taking adverse employment actions. Discriminatory animus of direct supervisors can be inferred up the chain of command under a recent “cat’s paw doctrine” decision, authored by Justice Antonin Scalia, Staub v. Proctor Hospital, 131 S.Ct. 1186 (2011).
Treat pregnancy as a disability. In July 2014, EEOC issued new enforcement guidance on the Pregnancy Discrimination Act, clarifying the obligation to treat pregnancy-related conditions as disabilities under the Americans with Disabilities Amendments Act.
Avoid burdening pregnant disabled workers more than other workers in implementing light duty policies. Young v. UPS, U.S. Supreme Court decision issued March 25, 2015, establishing burden of proof in disparate treatment cases under Pregnancy Discrimination Act.
Parental leave: treat dads and moms the same. In the same July 2014 enforcement guidance, the EEOC clarified employers’ obligation under FMLA to provide identical parental leave benefits to fathers and mothers beyond the initial recuperation period from childbirth.
FMLA leave to care for son or daughter includes those with no biological or legal relationship. On June 22, 2010, the U.S. Department of Labor issued an Administrative Interpretation to clarify the definition of “son or daughter” in cases of individuals “standing in loco parentis.” Examples include: an employee who provides day-to-day care for his or her unmarried partner’s child; an employee who shares equally in the raising of the child; and an employee who will share equally in raising the child with a same-sex partner.
Do not screen applicants for arrests; screen for criminal conduct in compliance with the EEOC’s April 2012 Enforcement Guidance on the Consideration of Arrest and Conviction Records in Employment Decisions Under Title VII of the Civil Rights Act of 1964. In screening applicants for criminal conduct, be sure to: (1) consider the nature of the crime, the time elapsed since the criminal conduct occurred, the age of the candidate when the illegal activity occurred, and the nature of the specific job in question; and (2) give an applicant who is excluded by the screen the opportunity to show why he or she should not be excluded.
State Updates – Colorado
On January 1, 2018, the minimum wage in Colorado increased to $10.20 per hour. This increase is the second of four triggered by the November 2016 passage of Amendment 70. Subsequent increases will be in $0.90 per hour increments each year until the minimum wage reaches $12.00 in 2020.
On August 10, 2016, the Colorado Pregnant Workers Fairness Act went into effect. The Act prohibits employers from failing to provide reasonable accommodations to an applicant or employee who is pregnant, physically recovering from childbirth, or a related condition. Reasonable accommodations include: more frequent or longer restroom, food, or water breaks; acquisition or modification of equipment or seating; limitations on lifting; light duty if available; temporary transfer if available; job restructuring; modified work schedule; and assistance with manual labor. The Colorado Civil Rights Division has published a suggested employee notice it deems compliant, which must be posted by December 8, 2016.
Colorado employers may terminate employees who test positive for marijuana. On June 15, 2015, the Colorado Supreme Court held that termination of employees who test positive for marijuana does not violate the state’s lawful activities statute. For more, read my blog here.
Remedies expanded for small (and all) businesses under Colorado Anti-Discrimination Act (CADA). Employees who prevail in discrimination claims brought under CADA, that accrued on or after January 1, 2015, may now receive compensatory and punitive damages, as well as front pay and attorney fees. Compensatory and punitive damages are capped at $10,000 for employers with 1 – 4 employees; and at $25,000 for those with 4 – 15 employees. Title VII damages caps are $50,000 for employers with 15-100 employees; $100,000 for those with 101-200 employees; $200,000 for 201-500 employees; and $300,000 for over 500 employees.
Good faith efforts may avoid punitive damages. Employers are not subject to punitive damages if they demonstrate they took good faith efforts to prevent discrimination. Such actions include 1) adoption and distribution of policies prohibiting discrimination, harassment, and retaliation, and clarifying the roadmap for handling requests for reasonable accommodation of disabilities; and 2) training of executives, managers, and employees in recognizing and handling potential violations of the law, complaints, and requests for reasonable accommodation.
Make credit checks in compliance with the Colorado Employment Opportunity Act, effective July 1, 2013, which requires that consumer credit information for employment purposes be “substantially related” to the individual’s current or potential job, and disclosure of such information to a party against whom it is used in an adverse action.
Assure compliance with the Colorado Social Media and the Workplace “Facebook” Law, which prohibits requiring applicants to disclose user name, password, contacts, etc., effective May 2013.
Designate a contact, a private room, and appropriate leave time for lactation and breastfeeding, in compliance with the Affordable Care Act and the Colorado Accommodations for Nursing Mothers Act.