Employers have seen increasing government intervention into the employment relationship. This intervention may come from new regulations or laws or from different interpretations of existing law. These developments are creating a new face of discrimination law and more avenues for potential lawsuits against employers.
For example, in the last few months, regulations or guidance have been issued regarding:
- Transgendered employees. The Equal Employment Opportunity Commission (EEOC) held for the first time that that discrimination based on gender identity, change of sex and/or transgender status is prohibited under Title VII of the Civil Rights Act of 1964. This ruling presents a shift that may bring a wave of new suits by transgendered employees in jurisdictions that do not already recognize transgendered individuals as a protected class.
- Arrest and conviction records. The EEOC issued guidance on the use of arrest and conviction records, requiring employers to undertake a case-by-case evaluation when making employment decisions. The updated guidance suggests that employers identify essential job requirements, specific offenses that may demonstrate unfitness for performing such jobs and the duration of exclusions for criminal conduct (including an individualized assessment). The EEOC further recommends recording the policy justification, providing training and education to managers, hiring officials and decision-makers and maintaining criminal record information in a confidential manner.
- Hiring practices. A number of states have proposed or enacted laws preventing employers from discriminating against applicants who are unemployed
Determining what these new regulations mean for employers and adopting policies and procedures to address them are challenges for in-house counsel who seek to properly advise their clients.
The following outlines some suggestions regarding how an employer can stay on top of new developments:
1. Regularly review policies
One way to stay current is to diligently update policies and procedures. Frequent review and updates of existing policies ensures that recent developments are appropriately addressed. Often changes are simply added to existing policies, causing an employee handbook to resemble a small town phone book.
While changes in existing law may require a prompt response (resulting in modification to an existing policy or the addition of a new policy), thorough reviews of all policies to ensure that such policies are internally consistent and not duplicative should be conducted at regular intervals.
For example, given the EEOC’s ruling regarding transgendered employees, simply revising and expanding a nondiscrimination statement in a policy may not be sufficient. Instead, an employer should not only revise its policy but it also should review and modify other policies to ensure compliance, such as:
- Codes of conduct
- Dress codes and other appearance standards
- Procedures for changing identification cards, personnel records and the like
- Nondisclosure of medical information and/or general employee privacy
- Use of restrooms and other gender-specific facilities
Employers also should analyze existing practices and evaluate the legitimate business needs for them. Companies may continue a practice out of habit; for example, they may routinely conduct criminal background checks on each new hire, without focusing on the business necessity for doing so for each hiring decision.
Undertaking an analysis of all of the company’s practices and policies helps weed out unnecessary ones. Moreover, for background checks, if an employer analyzes and documents the legitimate business reason for conducting the checks, it will help the company conform with the EEOC’s recent guidance.
2. Frequent and expanded training
Adopting (or expanding) a program of training supervisors and front-line managers is recommended. In addition to “normal” topics, such as anti-discrimination, anti-retaliation and unlawful harassment procedures and policies, employers should consider adopting training programs to address current, forward-looking issues, such as social media, telecommuting and whistleblowing. Such training may have the added benefit of apprising human resources of unknown issues or clarifying any confusion among managers.
3. Beware of alternate avenues from government agencies
When an employee files a charge of discrimination, the EEOC typically requests standard documents, such as the company’s handbook and application form, regardless of whether they relate to the claims at issue. Upon review, the EEOC may take issue with certain policies, even though they may be unrelated to the charge.
For example, in a failure to promote charge, the EEOC may request the employee handbook, which may contain a maximum leave duration policy. The EEOC considers these types of policies to run afoul of the Americans with Disabilities Act. Therefore, if the leave policy is not compliant with existing law, it may lead the EEOC down a path different from that presented by the original charge. This aggressive approach also underscores the need for a comprehensive review and frequent update of all policies.
Predicting what the courts, agencies and legislatures will do is never easy. However, companies can keep up with new developments by regularly reviewing and updating existing policies and practices and adopting training programs to further enhance compliance.
