A transsexual is someone who identifies with a gender other than his or her biological sex.  The term applies both to those who have had sex reassignment surgery and those who have not.  It is not the same as sexual orientation, which refers to a person’s sexual preference.  A number of other terms, such as “transgender,” describe similar concepts.

The EEOC’s decision, and some of the court decisions on the subject, extends coverage under Title VII only to transsexuals.  While some argue that similar logic should be used to extend coverage to gay, lesbian, and bisexual employees, few courts have done so.   Most employment protection for gay, lesbian, and bisexual employees comes from state statutes.

 Now What?

Even if federal courts ultimately chip away at the EEOC’s decision, for now employers who discriminate against transsexuals are subject to the EEOC’s enforcement powers.  To protect yourself, you should review your policies and practices to be sure they are not discriminatory.  Consider not only hiring, firing, and promotion decisions, but also workplace harassment and the provision of workplace facilities – lockers and bathrooms, all of which fall within the purview of the EEOC.

If your sexual harassment training does not already cover gender identity and sexual orientation, it is probably time for an update.  Workplace harassment and retaliation are among the hottest areas of discrimination, and transgender claims of discrimination fit into these issues perfectly.  Even if your state does not prohibit discrimination on the basis of sexual orientation, the shifting tide of federal decisions under Title VII suggests employers should not ignore sexual orientation when dealing with harassment issues.

While the EEOC’s decision does not directly address restroom use policies, this is a common concern for employers and employees.  Many people are uncomfortable with sharing restrooms with members of the opposite sex, and a transsexual employee’s choice of restroom may cause discomfort for co-workers or customers.  To manage this concern, many employers choose to designate one or more single-stall restrooms as unisex.  Consider implementing such an option, even if you have no transsexual employees, to avoid potential problems down the road.

The EEOC’s decision is characteristic of the Obama Administration’s propensity to expand the scope and enforcement of existing laws, rather than enacting new legislation.  The words of Title VII are unchanged, but how employers need to view their obligations to gay, lesbian, bisexual, and transsexual employees under the law is rapidly changing.

Brody and Associates regularly provides counsel on civil rights issues and employment laws in general.  If we can be of assistance in this area, please contact us at info@brodyandassociates.com or203.965.0560.

 Disparate Treatment Versus Disparate Impact

One kind of discrimination claim that could arise occurs when members of different groups are treated differently with respect to their criminal backgrounds.  This is called disparate treatment.  For example, if a black applicant and a white applicant both were convicted of auto theft two years before applying to work for your company, it would be disparate treatment discrimination to disqualify the black applicant on this basis, but not the white one.  As with all employment policies, you should ensure that similar employees are treated similarly, without regard to their membership in protected classes.

 The other kind of discrimination claim is disparate impact.  This occurs when a policy that is neutral on its face results in a group of employees being disadvantaged.  In this case, a policy against hiring individuals with criminal records would be neutral on its face, but could give rise to a disparate impact claim based on race or national origin.  A policy that yields a disparate impact, however, can be applied if it is “job related and consistent with business necessity.”  Therefore, you must consider whether your screening criteria meet this standard and whether the same results could be achieved in a different way that does not create a disparate impact.  Policies that automatically disqualify anyone with a criminal record are generally unlawful.

 Further Points to Consider

 To ensure your policy will pass scrutiny, you should consider the nature of the crime, the time elapsed since the crime occurred, and the nature of the job.  For example, a conviction for identity theft is far more relevant when hiring a payroll manager than a truck driver.  But if the identity theft conviction was 20 years ago, it may be too remote for consideration even for the payroll position.  There are no absolute rules to follow; it is all a judgment call.

Although an individualized assessment of your rule to each individual case is not required, the EEOC recommends it as a way of ensuring all relevant information is taken into account and nothing more.  You should consider the facts and circumstances of the offense, the number of offenses, the age of the individual at the time of the offense and now, evidence that the individual has performed similar work without engaging in criminal conduct, rehabilitation, employment history, character references, and other information relevant to determining whether the individual poses a real risk.

A few final points should be considered.  First, the EEOC warns against using arrest records because an arrest does not prove the conduct occurred.  If you have independent knowledge of the conduct and wish to take action based on the underlying conduct, that is not unlawful.  Second, state laws vary regarding how criminal convictions can be used and when background checks can be performed.  Due to state law concerns, asking about convictions on a job application is not advisable.  Finally, you should keep criminal record information confidential.

If you discover an employee or applicant has a criminal conviction and would like to take action based on it, consulting with legal counsel can help you avoid a discrimination claim.  Legal counsel can also review your policies to ensure they comply with state law and the EEOC’s guidance.

 Another Sign of the Obama Strategy

As with many other acts of the Obama Administration, this enforcement guidance expands the scope and enforcement of an existing law, Title VII, without enacting new legislation.  More than ever, employers need to pay attention to the actions of administrative agencies to determine their obligations under the law and whether those obligations have been expanded.

Brody and Associates regularly provides counsel on civil rights issues and employment laws in general.  If we can be of assistance in this area, please contact us at info@brodyandassociates.com or203.965.0560.

Hiring should focus on the applicant’s qualifications, not pregnancy, child care, or other family issues.

Assumptions and stereotypes are dangerous.  Not all women take on caregiving roles at home.  Nor do men necessarily lack caregiving responsibilities.  Avoid sex discrimination claims by recognizing the individual needs of your employees.

Parental status is a protected class under many state laws.  Have you checked yours?

Pregnancy is a protected status under federal law and many state laws.  Pregnancy-related disabilities are covered by the Americans with Disabilities Act.

You should be aware of all the state and federal laws that deal with caregiving responsibilities, often indirectly.  For example, Connecticut’s new medical marijuana law prohibits discrimination against certain caregivers and its new sick leave law allows time off to care for a parent, spouse, or child.  The Americans with Disabilities Act prohibits discrimination against individuals who are associated with a person with a disability.

Men can bring sex discrimination claims when they do not receive the same benefits as women for caregiving issues.

Over half of married mothers with children under age 6 are employed.

The Fair Labor Standards Act was recently amended to provide breastfeeding breaks for nursing mothers.

HR Audits should be used to reveal disparities you did not realize existed.  Consider whether employees with caregiving responsibilities are being hired, promoted, and paid on par with other employees.

Employees who have sued for issues related to family responsibilities have a higher success rate in court than employees who sue for most other employment issues.

Review your employee handbook with an eye toward disability and leave policies.  Make sure they are written and implemented in a non-discriminatory manner.

Single people have complained about the scheduling flexibility employers have given to married workers to handle family responsibilities, but this has not evolved into a significant legal concern for employers.  Nonetheless, to boost morale among all employees, consider that single people may have caregiving responsibilities not covered by your policies (e.g. for an elderly aunt or a disabled neighbor) or that they may be resentful of being asked to take on extra responsibilities due to family responsibilities of others. 

Daycare costs are one of the top reasons parents choose not to return to work after the birth of a child.  Some companies provide on-site daycare or discount vouchers as a way to retain their employees.

Assessing employees by results rather than “face time” helps provide flexibility, while holding all employees accountable for their output.

Your obligation under the Family and Medical Leave Act to allow leave to care for a child extends to employees who act as parents, even if they are not the child’s actual parents.  Examples are grandparents caring for grandchildren or Opie’s Aunt Bee from The Andy Griffith Show.

Brody and Associates regularly advises management on complying with the latest state and federal employment laws.  If we can be of assistance in this area, please contact us at info@brodyandassociates.com or 203.965.0560.

Other states and the federal government are considering similar legislation.  But even if your state does not enact similar legislation, asking for social media passwords is a bad idea.  First, such a request may offend your top prospect, and despite the buyer’s market, top talent is still hard to find.  Second, you may be exposing yourself to legal liability in the form of “TMPI” – too much protected information.  Many facts that are exposed on Facebook – someone’s religion, sexual orientation, charities of choice – should be irrelevant to employers but can be fuel to feed a discrimination lawsuit. 

Before making any employment decision, including asking for access to social media, employers need to ask two critical questions: (1) Can you? and (2) Should you?  In this case, the answer to the first question is yes, in most circumstances.   It is the second question– should you – that is the tough one.

First, it is true the employer may see “unprofessional” conduct that gives you pause before hiring the candidate, be it pink hair, foul language, racist leanings, displeasure with a current employer, and more.   If it were just a balance between the risk of uncovering TMPI – too much protected information –and getting insights you might otherwise miss, you might quickly say yes.  But what about offending that top candidate?  Worse yet, what if you are the test case that gets national attention for being “Big Brother” and experience a public backlash?  And the desperate applicant who reluctantly provides her password now may harbor resentment about the intrusion on her privacy and quit as soon as the economy recovers and she has another offer.

Second, while making this demand is not illegal, there are possible legal ramifications from your choice.  If an applicant’s membership in a protected class is apparent from his Facebook profile, you may be faced with a lawsuit if you don’t hire him, even if you had a legitimate reason for choosing someone else.  Religion, sexual orientation, disabilities, family responsibilities, past criminal convictions, cigarette and alcohol usage, and other statuses are protected by a number of states and in some cases, federal law.  Therefore, if you uncover this information with a Facebook password, you are putting yourself at risk.  Because you can’t “un-learn” this information, you should try to avoid learning about it in the first place, at least until an offer is made.  Knowing any of this before extending an offer may be TMPI.

Another emerging legal ramification arises if your policy intimidates current or future employees from using social media to communicate with co-workers about work conditions.  The mere presence of a policy that could reasonably discourage such activity is likely a violation of the National Labor Relations Act.  And employees who believe management is overreaching are more likely to unionize than those who believe their employer respects personal and professional boundaries.

Finally, laws governing computer and Internet use could also present problems.  Senators Chuck Schumer (D-NY) and Richard Blumenthal (D-CT) asked the Equal Employment Opportunity Commission and the Department of Justice to investigate whether this practice violates the Computer Fraud and Abuse Act or the Stored Communications Act by relying on coerced authorization to access electronic information.  Blumenthal is drafting legislation that would specifically ban employers from asking for Facebook passwords.

The takeaway in this case is simple.  Asking for passwords to personal accounts is just a bad idea. 

Brody and Associates regularly advises its clients on all labor management issues and provides various training programs.  If we can be of assistance in this area, please contact us at info@brodyandassociates.com or 203.965.0560.

Brody and Associates regularly provides counsel on civil rights issues and employment laws in general.  If we can be of assistance in this area, please contact us at info@brodyandassociates.com or 203.965.0560.

Generally, employers do not have a duty to monitor employees’ private communications.  However, the Espinoza case demonstrates that once an employer becomes aware of off-duty harassment, it may have a duty to act to stop it if it can be tied to the workplace.  In Espinoza, the fact that some harassment also took place at work was sufficient to render the employer liable for the off-duty harassment as well.

In the face of Espinoza, we have the National Labor Relations Board’s (“NLRB”) “Facebook firing” cases which are occurring around the country.  In these cases, employers were held liable for firing employees who used the Internet to criticize their employer and/or their managers.  As a result, many employers are afraid to discipline employees for online conduct.  This dilemma is real but must be overcome.  The NLRB has endorsed the use of social media policies that prohibit harassment if they are written properly, but “properly” seems to be a moving target.  An employer who disciplines or terminates an employee for online harassment (especially based on a protected class such as age, sex or race) of another employee is unlikely to run afoul of the labor law but your case must be built properly.  Staying abreast of the current developments is a must in this area.

Brody and Associates regularly provides training and counseling on maintaining a harassment free environment as well as counsel on employment law issues in general and labor law issues. If we can be of assistance in this area, please contact us at info@brodyandassociates.com or 203.965.0560.

Thanks to a provision buried in the Patient Protection and Affordable Care Act (commonly known as the “Healthcare Bill”), employers must provide reasonable breaks for mothers to express milk for up to one year after the child’s birth.   These breaks do not need to be paid unless you compensate employees for breaks of a similar duration.  Under this law, employees who are exempt from the overtime requirements of the Fair Labor Standards Act are not entitled to these breaks, but state law may vary.  (In fact, 24 states have laws mandating opportunities for expressing milk.)

In addition to allowing breaks for expressing milk, employers must provide a place where the mother can express milk.  It must be shielded from view, free from intrusion, and it cannot be a bathroom.  The employer does not need to create a separate room for this purpose.  An office with a locked door would be acceptable.  While the law does not expressly require these features, a suitable location would have an electrical outlet, a door that locks, a chair, and access to a refrigerator where the milk can be stored.  If an employer would suffer an undue hardship in providing the breaks or the nursing location and the employer has fewer than 50 employees, it is exempt from these requirements. 

It is an unsettled question whether an employer is guilty of sex discrimination under the Pregnancy Discrimination Act by discriminating against employees for expressing milk.  A federal judge in Houston recently ruled that “lactation discrimination” is not prohibited by that law because lactation is not “pregnancy, childbirth or a related medical condition.”  The Equal Employment Opportunity Commission and many commentators believe otherwise, arguing that lactation is a medical condition related to pregnancy and childbirth.  This decision was a reactionary ruling by a judge who seems to be very much in the minority on this matter.  Employers who discriminate against an employee for breastfeeding are taking a big risk.

Breastfeeding advocates suggest supporting employees who choose to breastfeed is a good business decision.  Breastfed babies are generally healthier, reducing parents’ absenteeism.  Supporting breastfeeding also increases morale and makes it more likely the employee will return to work after childbirth.  A great deal of media attention has recently been devoted to breastfeeding, particularly companies that have asked breastfeeding patrons to leave or cover up.  Hindering an employee in her decision to breastfeed can lead to such unwanted media attention.  We know the federal government is supporting breastfeeding, but will it become commonplace?  Only time will tell.

Brody and Associates regularly advises management on complying with state and federal employment laws including wage and hour laws.  If we can be of assistance in this area, please contact us at info@brodyandassociates.com or 203.965.0560.

GINA was passed in 2008 with the goal of protecting job applicants and employees from discrimination based on their genetic information, including family medical history, with a few limited exceptions.  As with Title VII and the ADA, GINA covers employers with 15 or more employees.  GINA originally became effective on November 21, 2009.   

Fortunately, the new EEOC rule only mandates employers retain documents they already have made or kept, but does not require creation of new documents.  An employer subject to existing EEOC requirements should already retain all  personnel or employment records made or kept by the employer, including application forms and other records having to do with hiring, promotion, demotion, termination, and pay rate.   The information must be preserved for a period of one year from the date of the making of the record or the personnel action involved, whichever occurs later.  Further, employers must retain any records relevant to charges filed under Title VII or the ADA until final disposition of those matters, which may be longer than one year.  The new rule requires the same retention of documents relevant to charges filed under GINA.

Given the ever-changing regulatory environment, it is important to stay informed of new changes that affect not only employment decisions you make, but how you document those decisions.  Brody and Associates regularly advises management on complying with the latest state and federal employment laws.  If we can be of assistance in this area, please contact us at info@brodyandassociates.com or 203.965.0560.

As seen in the January, 30 2012 CT Law Tribune