Short answer: Maybe.

You’ve probably already heard about President Obama’s executive order banning anti-LGBT workplace discrimination. The question is, how will it impact you and your organization?

Have you heard that the EEOC recently updated their Guidance regarding pregnancy discrimination? According to the EEOC, “This is the first comprehensive update of the Commission’s guidance on the subject of discrimination against pregnant workers since the 1983 publication of a Compliance Manual chapter on the subject.”

Finally, a new article in Corporate Counsel showcases a trend of rising age-based discrimination reports, specifically reports pertaining to the Age Discrimination Employment Act (ADEA). The ADEA protects people over age 40 from discrimination from the hiring stage through the departure process from a job or company. Are you prepared to protect yourself from ADEA-violation lawsuits? It is, after all, the employer’s burden to prove that no age-based discrimination took place.

Obama’s Anti-Discrimination Order: Executive Order 11246

Are you a federal contractor or federally-assisted construction contractor/subcontractor who does more than $10,000 in government business in one year? Then you are very clearly covered by Executive Order 11246. Faith-based groups are not exempt. Also, federal employees have been protected against sexual orientation discrimination since Executive Order 13087, issued by President Clinton. Executive Order 11246 has expanded their protection to include gender identity.

According the White House fact sheet, 86% of surveyed small businesses expected no cost in implementing the new policy. It seems that the survey referred only to updating the discrimination and harassment policy, which, let’s face it, is mostly boilerplate anyway. Adding a couple of words to protect various sexual orientations and gender identities in the policy does have virtually no cost – and virtually no impact.

What matters are the actions you take to promote awareness. Your employees may not be aware of the new executive order, and if they are, they may not be sure if it applies to your business or not.

For more information about Executive Order 11246, check out these resources:

The EEOC’s Enforcement Guidance on Pregnancy Discrimination Update

This has received surprisingly little attention, at least in the circles I seem to run (erm, read) in. This is the biggest development in pregnancy discrimination in 30 YEARS and no one has said (…written) anything about it!
EEOC Chair Jacqueline A. Berrien describes the reasoning behind the updated guidance:

“Despite much progress, we continue to see a significant number of charges alleging pregnancy discrimination, and our investigations have revealed the persistence of overt pregnancy discrimination, as well as the emergence of more subtle discriminatory practices.

This guidance will aid employers, job seekers, and workers in complying with the Pregnancy Discrimination Act and Americans with Disabilities Act, and thus advance EEOC’s Strategic Enforcement Plan priority of addressing the emerging issue of the interaction between these two anti-discrimination statutes.”

Highlights that you should be aware of:

  • The Guidance lays out the fact that the Pregnancy Discrimination Act (PDA) covers not only current pregnancy, but discrimination based on past pregnancy and a woman’s potential to become pregnant – regardless of whether the employer believes he is acting in the employee’s best interest;
  •  Best practices for employers to avoid unlawful discrimination against pregnant workers (I’ve included some of these best practices in the action plan below);
  •  Lactation as a covered pregnancy-related medical condition;

The Guidance covers many more topics than just the highlights above, so I highly recommend you read the full text.

For more information about EEOC’s Enforcement Guidance, check out these resources:

The Rising Trend of Age-Based Discrimination Claims

One of the nuggets I gleaned from the Corporate Counsel article is that, in the words of Edward Ellis, shareholder and cochairman of the whistleblowing and retaliation practice group at Littler Mendelson, “The law requires an employer to assume that any employees of any age will work indefinitely.”

Melvin Muskovitz, senior counsel at Dykema Gossett, named several scenarios that increase an employer’s chances of facing ADEA, ADA (Americans with Disabilities Act), or GINA (Genetic Information Non-Discrimination Act) claims:

  • Tolerating jokes related to age, even if it seems “all in good fun”
  • Getting passed over for a raise or promotion
  • Getting laid off
  • Asking questions about when an employee will retire
  • Facing adverse career situations after revealing a potentially genetically-linked illness to a supervisor
  • Physical difficulties that are not treated sensitively by employer, such as a need for ergonomic chairs or accommodations for hearing problems

For more information about age-based discrimination trends and rulings, check out these resources:

Decrease Litigation Risk With An Action Plan For Your Discrimination and Harassment Training Program

Muskovitz mentions that the best way to prevent age-discrimination litigation is by stopping the potential for claims. This is true for other types of discrimination litigation as well. As the Enforcement Guidance: Pregnancy Discrimination and Related Issues plainly states, “Best practices are proactive measures that may go beyond federal non-discrimination requirements or that may make it more likely that such requirements will be met. These policies may decrease complaints of unlawful discrimination and enhance employee productivity.”

The following is a suggested plan of action to help reduce your risk:

  1. Update your discrimination and harassment policy to include the following:
    1. State that you will not discriminate on the basis of sexual orientation, gender identity, pregnancy, childbirth, or related medical condition. According the White House, 91% of Fortune 500 companies already prohibit discrimination based on sexual orientation; and 61% already prohibit discrimination based on gender identity, so you’re in a small minority if your policy isn’t up-to-date.
    2. Recommend an open-door policy for employees to file complaints with supervisors as a first reporting option.  
    3. Zero-tolerance for jokes related to age, pregnancy, childbearing, parental status, sexual orientation, or gender identity. While these may seem harmless at first, they can later be used as evidence in a case against your company.
  2. Launch an awareness campaign.
    1. This could be a simple email and poster campaign to alert your employees to the changes you have made in regards to recent trends and rulings, and how these changes impact your business.
  3. Make sure your discrimination and harassment training :
    1. Identifies protected groups. Your discrimination and harassment training awareness materials may also need an update to include the newly protected classes.
    2. Encourages reporting. Early reporting and handling of incidents decreases the risk for a larger problem down the line, such as a lawsuit. Making your commitment to handling investigations promptly clear (and then following through on it) will further encourage employees to report incidents, since they will realize their voices are actually heard.
    3. Tells employees how to report claims. Best practices would be to provide multiple reporting options beyond a supervisor, such as a third-party whistleblower hotline and web-based reporting form.
    4. Explains how reports will be investigated. In order for employees to feel comfortable divulging information, it’s helpful for them to know how that information will be utilized.
  4. Be human. In legal terms, “An employer must provide an individual with a reasonable accommodation if needed.” (ADA) Examples include:
    1. Allowing a pregnant worker placed on bed rest to telework where feasible;
    2. Redistributing nonessential functions (for example, occasional lifting) that a pregnant worker cannot perform;
    3. Allowing access to ergonomic workstations pregnant or aging employees;
    4. Allowing telecommuting or flexible hours whenever reasonable (This is a particularly popular policy since it benefits, “not just the boomers, but Gen X and Gen Y, especially people who have young children,” says Valerie Hoffman, a partner at Seyfarth Shaw and chairwoman of the firm’s OFCCP compliance, affirmative action and diversity consulting practice group);
    5. Providing technology training courses that allow older employees to stay up to speed on rapidly changing technologies (This recommendation is also provided by Hoffman. Again, this training could benefit many employees, such as mothers returning to the workforce, and younger employees looking to increase their skill sets.)
  5. Develop an understanding of career moments.
    1. Certain career moments present higher risks of litigation than others. My colleague Jillian recently wrote a post about the 4 riskiest career moments. Check it out for an overview of these career moments, and 3 steps you can take to mitigate your risks.

Topics:  ADA, ADEA, Barack Obama, Discrimination, EEOC, Employer Liability Issues, Enforcement Guidance, Executive Orders, Federal Contractors, GINA, LGBT, PDA, Pregnancy Discrimination, Sexual Orientation Discrimination

Published In: Civil Rights Updates, Government Contracting Updates, Labor & Employment Updates

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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