The Evolution of Discrimination Laws & How To Remain Compliant. Chad E. Wallace Baker, Donelson, Bearman, Caldwell & Berkowitz, P.C.

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1 The Evolution of Discrimination Laws & How To Remain Compliant Chad E. Wallace Baker, Donelson, Bearman, Caldwell & Berkowitz, P.C.

2 Brief History Lesson At-will employment doctrine National Labor Relations Act of 1935 Fair Labor Standards Act of 1938 Civil rights movement, started around 1950 Brown v. Board of Education, 347 U.S. 483 (1954) Lack of laws prohibiting discrimination, harassment, or retaliation in workplace 2

3 Title VII of the Civil Rights Act of 1964 Prohibits employment discrimination on bases of race, color, religion, sex, or national origin Disparate treatment claims Retaliation Disparate impact claims Griggs v. Duke Power Co., 401 U.S. 424 (1971) Equal Employment Opportunity Commission 3

4 Title VII of the Civil Rights Act of 1964 (cont.) Pregnancy Discrimination Act of 1978 Harassment Meritor Savings Bank v. Vinson, 477 U.S. 57 (1986) Same-sex discrimination Oncale v. Sundowner Offshore Services, 523 U.S. 75 (1997) Associational discrimination, associational retaliation Thompson v. North American Stainless, 131 S. Ct. 863 (2011) 4

5 Title VII of the Civil Rights Act of 1964 (cont.) Proposed Employment Non Discrimination Act Would ban employment discrimination because of person s homosexuality, bisexuality, heterosexuality, and/or gender identity Proposed Fair Employment Opportunity Act of 2011 Would prohibit discrimination in employment because of individual's status or history of unemployment Treat like a protected class under Title VII 5

6 Title VII of the Civil Rights Act of 1964 (cont.) Transgender, gender non-conforming Vice-President Joe Biden (2012) civil rights issue of our time Sex stereotyping claim Price Waterhouse v. Hopkins, 490 U.S. 228 (1989) Smith v. City of Salem, Ohio, 378 F.3d 566 (6th Cir. 2004) Punishing employee for gender non-conforming behavior was sex-stereotyping EEOC says transgender discrimination = sex discrimination Sex discrimination being defined broadly 6

7 Title VII of the Civil Rights Act of 1964 (cont.) EEOC focus in wake of 9/11 National origin Muslim, Sikh, Arab, Middle Eastern, and South Asia Religion Muslims 7

8 Age Discrimination Age Discrimination in Employment Act of 1967 Prohibits employment discrimination against persons 40 years of age or older Older Workers Benefit Protection Act of

9 Disability Discrimination Rehabilitation Act of 1973 Federal agencies, federal contractors, federal employment, those receiving federal funds Americans with Disabilities Act of 1990 Prohibits employment discrimination because of disability Sutton trilogy (1999) Sutton v. United Airlines, Murphy v. United Parcel Service, Albertsons v. Kirkingburg 9

10 Disability Discrimination (cont.) Americans With Disabilities Act Amendments Act of 2008 Expands definition of disability Focus on interactive process Keep records of requests made, accommodations made or denied, and bases for decisions Ensure job descriptions thoroughly and accurately describe essential functions of jobs 10

11 Criminal Background Checks Significant development in 2012 National incarceration rates support finding of disparate impact based on criminal background checks EEOC reheard new guidance on what it considers lawful in employers use of criminal background checks Blanket exclusion of individuals with criminal record is unlawful Arrests are not sufficient indicators of criminal conduct 11

12 Criminal Background Checks (cont.) Employers need to create targeted screen to analyze how specific criminal conduct is linked to a particular position Consider nature of crime, nature of job, time elapsed since crime In some cases, targeted screen may be sufficient However, EEOC says individualized assessment, with notice to applicant and opportunity to demonstrate why he/she should not be excluded, should be conducted in most cases 12

13 Remaining Compliant The only thing that is constant is change. Heraclitus 13

14 Remaining Compliant (cont.) EEOC recommends promoting inclusive culture in workplace by fostering environment of professionalism and respect for differences Employers are encouraged to establish and utilize neutral and objective criteria when making employment decisions to avoid subjective decisions based on personal stereotypes or hidden biases 14

15 Remaining Compliant (cont.) 15

16 Remaining Compliant (cont.) Check your documentation Applications and application process Arrests, convictions Employee handbook and other policies Cover all protected characteristics? For example, genetic information (GINA) Job descriptions Consistent enforcement and application 16

17 Remaining Compliant (cont.) Periodic training, particularly management Update training material Know obligations so compliance can be achieved 17

18 Remaining Compliant (cont.) Communication with applicants Communication with employees Communication with departing employees What message are you sending? 18

19 Remaining Compliant (cont.) 17th Annual Urgent Issues for Modern Employers Baker Donelson Breakfast briefings Lunch and learns SHRM Etc. 19

20 Discussion/Questions 20

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