- Discrimination, Employees, Employing Americans, Holland & Knight LLP, nepotism, Sexual Harassmen
Here are some clues from Christopher G. Kelly & Howard Sokol from Holland & Knight LLP from our “Employing Americans” event in March 2015
The Origin, the Interplay and Scope of the Laws
- Prohibitions against discrimination in the workplace are contained in federal, state and local laws.
- Federal law establishes a basic protection for employees against discrimination on the basis of race, color, sex, religion, national origin, age and disability.
- States and sometimes cities, also have anti-discrimination laws that broaden the scope of protected categories (e.g., New York, Washington, California, Oregon) to such things, for example, as marital status, sexual orientation, genetic predisposition, gender identity and expression, political ideology/activities, etc., or narrow the requisite severity and/or eliminate defenses to such unlawful actions (e.g., New York City as to sexual harassment and disability).
- Discrimination laws protect employees against employer’s making decisions based upon, even in part, any of the protected factors.
Mind the Gaps
- Foreign companies should be especially aware of the potential for complaints of discrimination on the basis of national origin.
- Many foreign companies and their management teams in the U.S. find both cultural differences and much more vigorous enforcement of anti-discrimination laws in the workplace than they are accustomed to in their home country.
- The additional protections afforded to employees vary from state to state, and the threshold employment levels (e.g, in New York, the minimum number of employees is four) that must be met before the laws are applicable vary among the federal, state, and local laws (e.g., under the federal “Title VII” of the Civil Rights Act of 1964 the threshold number is 15 employees, and under the federal Age Discrimination in Employment Act the threshold is 20 employees).
- Employers doing business in multiple states must be familiar with all of the states’ laws, in addition to the federal requirements.
The Face of Sexual Harassment
- Sexual harassment is a form of sex discrimination and includes same- sex harassment.
- It involves hostile work environment, which includes unwelcome sexual advances, request for sexual favors, and other verbal or physical conduct of a sexual nature or based on gender, and where such actions create an intimidating, hostile or offensive work environment
Federal Law vs. New York City Law
- Under federal law (Title VII), a sexual hostile environment must rise to the level of being “severe or pervasive” in order for an employee to have an actionable case against his or her employer
- Under federal law, no individual liability for managers, supervisors, or co-workers.
- Under the New York City Human Rights Law, the threshold has been significantly lowered and is actionable so long as the harassment rises above the level of “petty slights and trivial inconveniences”.
Mandatory Steps for the Prudent Employer
- Discrimination lawsuits can be very expensive for employers.
- Compensatory damages, “exemplary” or “punitive” damages.
- Precautions employers can take to help defend against such claims
- Enforce an acceptable anti-discrimination policy/Equal Employment Opportunity Policy and a separate (anti-) Sexual Harassment and Other Unlawful Harassment Policy. These policies should be published and made known to all employees (including in an employee handbook or manual).
- These policies should contain a complaint protocol that meets the requirements of the applicable laws, detailing procedures that would be followed by the company upon a complaint of discrimination or harassment.
- Training with respect to employment discrimination and sexual harassment prevention.
Elements employers can use to make employment decisions:
- Political Opinions: The main exception is that the National Labor Relations Act prohibits any retaliation against an employee for discussing terms and conditions of employment.
- Bankruptcy Filing: Section 525 of the US Bankruptcy Code states: “No private employer may terminate the employment of, or discriminate with respect to employment against, an individual who is or has been a debtor under this title, a debtor or bankrupt under the Bankruptcy Act, or an individual associated with such debtor or bankrupt . . . .” (emphasis added), a number of federal appellate courts have held that the provision does not apply to potential employers. The 3rd, 5th, and 11th Circuit Courts of Appeals have stated that an employer may deny an applicant employment due to that applicant having filed for bankruptcy.
- Nepotism: It is 100% lawful, in the private sector, to show favoritism or, for that matter, be prejudicial in the workplace, towards employees because they are the owner’s or supervisor’s/manager’s family members or friends (in publicly held companies, under federal law, such potential conflicts of interest need to be disclosed to shareholders)
- Physical Appearance: Hiring or Firing an employee because of how he or she looks, is perfectly legal, so long as such “appearance” isn’t a disguised attempt to discriminate against a disabled individual or would constitute unlawful sex discrimination.