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Posts Tagged ‘LGBT’

FMG Client Headed to Supreme Court in Landmark Title VII Case to Resolve LGBT Employment Standards

Posted on: April 23rd, 2019

The Supreme Court yesterday agreed to review two federal circuit court decisions that reached differing conclusions as to whether Title VII of the Civil Rights Act of 1964 covers sexual orientation. For approximately 40 years, the EEOC and the federal circuit courts have unanimously held that Title VII does not encompass sexual orientation. The EEOC changed its position in 2014 and determined that Title VII encompasses sexual orientation. The Seventh Circuit likewise reversed its position in 2017, and the Second Circuit changed its position in early 2018 and held in Zarda v. Altitude Express that Title VII encompasses sexual orientation. Later in 2018, the Eleventh Circuit re-affirmed circuit precedent and held in Bostock v. Clayton County that Title VII does not prohibit discrimination on the basis of sexual orientation. The Supreme Court agreed to review Bostock and Zarda and consolidated the two cases.

Freeman Mathis and Gary, LLP represents Clayton County in Bostock and will argue that Title VII does not apply to a claim of discrimination on the basis of sexual orientation.

In addition, the Supreme Court granted certiorari in the Sixth Circuit case of R.G. & G.R. Harris Funeral Homes v. EEOC. That case raises the question of whether Title VII provides protection to transgender persons. That case is similar in some regard to the Bostock and Zarda cases, however, their distinctions are evident in that the Court did not consolidate the Harris case with Bostock and Zarda.

In granting certiorari in the Harris case, the Supreme Court may revisit a concept outlined in its 1989 decision in Price Waterhouse v. Hopkins, which held that it was unlawful sex discrimination under Title VII to discriminate against employees because they do not conform to ideas of how a certain gender should behave.

These cases will be argued and decided sometime during the Court’s 2019-2020 term, which begins in October.

If you have any questions or would like more information, please contact us at [email protected].

Navigating New California Employment Laws

Posted on: February 1st, 2018

By: David Daniels

Are you and your clients doing business in California prepared for the new employment laws that take effect in 2018? If you represent employers in the state of California, these laws may very well affect the daily operations of their business. Unless specified, all new legislation outlined below went into effect on January 1, 2018.  As explained more fully below, I strongly encourage you to review your client’s employee handbooks and job applications to ensure compliance with the new 2018 employment statutes.

 

  • Stop asking about salary history –  AB 168 bars employers from asking job applicants about their previous salary. The legislation’s goal is to narrow the gender gap by preventing employers from basing offers on prior salary and thus, presumably, perpetuating historical discrimination. This will also remove the perceived gap in negotiating power between an employers and employees who must disclose their prior salary. Employers should ensure that their job applications don’t seek prohibited information and that those interviewing applicants know not to ask these questions.  I encourage all employers to review their written and/or on-line employment contracts to determine if the applicant is requested to state their salary history in the “Previous Experience” sections of the applications.  It is common practice to ask the applicant about their salary history in these sections of the application.  This practice must stop before January 1, 2018 in order to be compliant with California law.

 

  • More employers must offer parenting leave – SB 63, officially titled the Parental Leave Act, requires employers with between 20 and 49 employees to offer parenting leave that mirrors the Family Medical Leave Act. The new Act allows employees who work for a covered employer to take 12-weeks of unpaid, job-protected leave if they have worked a minimum of 1,250 hours in the 12-months prior to taking leave.  Employees can take leave only for the purpose of bonding with a newborn child, adopted child or foster child within a year of the birth or placement. Covered employers will also need to maintain health coverage under the same terms as an active employee. The Act also prohibits discrimination and retaliation against an employee for taking parental leave. The Parental Leave Act does not require employers to pay any portion of the leave but requires that employees be able to use accrued sick and vacation time. Employees can apply to have a portion of the parental leave paid for through the state’s Paid Family Leave program.  Please note that, San Francisco requires some employers to pay a remaining portion of parental leave.

 

  • Expanded harassment training – California requires at least biannual harassment training for supervisors in companies with 50 or more employees. Having given a dozen sessions of the  training in the last month, I can assure you that there’s no shortage of material to talk about. But as of January 1, 2018, SB 396 requires that the training include information on gender identity, gender expression, and sexual orientation. If your handbook doesn’t specifically prohibit discrimination and harassment on those bases, you’re overdue for a revision.

 

  • Ban the box – Following the leads of San Francisco and Los Angeles, AB 1008 prohibits employers with five or more employees from:
    • Asking on employment applications about criminal convictions;
    • Asking applicants about criminal convictions before making a conditional offer of employment;
    • When conducting background checks on applicants, considering, distributing, or disseminating information about prior arrests not leading to conviction, participation in diversion programs, or convictions that have been sealed, dismissed, expunged, or otherwise nullified.

 

Employers who wish to rely on criminal conviction information to withdraw a conditional job offer must notify the applicant of their preliminary decision, give them a copy of the report (if any), explain the applicants right to respond, give them at least five business days to do so, and then wait five more business days to decide when an applicant contests the decision. There are exceptions for employers who operate health facilities hiring employees who will have regular access to patients or drugs.

 

  • Minimum Wage Increases – On January 1, 2018, the California state minimum wage goes up to $11.00 per hour for businesses with 26 or more employees and $10.50 per hour for smaller companies.

 

  • Worksite Immigration Enforcement and Protections, AB 450 – The Immigrant Worker Protection Act shields workers from immigration enforcement while on the job. The legislation prohibits employers from providing federal immigration enforcement agents access to a business without a warrant and requires employers to notify employees of Form I-9 inspections performed by federal immigration enforcement officials.

 

  • Gender Identification: Female, Male or Nonbinary, SB 179 – This new law, which goes into effect on September 1, 2018, allows California residents to choose from three equally recognized gender options — female, male or nonbinary — on state-issued identification cards, birth certificates and driver’s licenses.

 

  • Employment Discrimination: Gender Neutral Language, AB 1556 – This law is a revision to California’s Fair Employment and Housing Act which deletes gender-specific personal pronouns in the state’s anti-discrimination, anti-harassment, pregnancy disability and family/ medical leave laws by changing “he” or “she,” for example, to “the person” or “the employee.”

 

  • LGBT Rights for Long-Term Care Facility Residents, SB 219 – Called the Lesbian, Gay, Bisexual, and Transgender (LGBT) Long-Term Care Facility Residents’ Bill of Rights. The new law will strengthen anti-discrimination protections for LGBT individuals living in long-term care facilities, making it unlawful to willfully and repeatedly fail to use a resident’s preferred name or pronoun or to deny admission to a long-term care facility because of gender identity or sexual orientation. You must post a notice about the protections and follow recordkeeping requirements.

 

  • Human Trafficking, AB 260 – This new law extends the list of businesses that must post human trafficking information notices to include hotels, motels and bed and breakfast inns. In addition, SB 225 requires the human trafficking notice include a new number for those who wish to send text messages. Businesses are not required to post the updated notice until on or after January 1, 2019.

 

  • Anti-Discrimination Protections for Veterans, AB 1710 – This law will expand the current protections for members of the armed services. AB 1710 prohibits discrimination in all “terms, conditions, or privileges” of employment.

 

  • Health Facilities: Whistleblower Protections, AB 1102 – increases the maximum fine for a violation of whistleblower protections in healthcare facilities from $20,000 to $75,000.

 

  • Harassment Prevention Training: Farm Labor Contractors, SB 295
    This bill requires sexual harassment prevention training for each agricultural employee provided in the language understood by that employee in order to apply for or renew a license. The bill also requires an employer provide to the commissioner the total number of agricultural employees trained in sexual harassment prevention in the calendar year prior to the month the renewal application is submitted.

 

  • Labor Law Enforcement, Retaliation, SB 306 – This allows the Labor Commissioner to investigate an employer with or without a complaint from an employee as long as the Labor Commissioner suspects retaliation or discrimination against a worker.

 

  • Increased Liability for Construction Contractors, AB 1701 – This law pertains to private construction contracts entered into after January 1, 2018. It imposes liability onto the general contractor for any unpaid wages, benefits or contributions that a subcontractor owes to a laborer who performed work under the contract.

 

Please feel free to contact me at [email protected] should you wish to further discuss any of these new laws and/or how to best change your policies and practices to ensure compliance with California law.