Reconsidering the status of sexual orientation in the workplace

by Harold Pinkley

From the time I began practicing employment law (too many) years ago―and probably for longer than that―employment lawyers have been quite comfortable advising clients that Title VII of the Civil Rights Act of 1964 (the federal law that prohibits discrimination based on gender and other protected status) does not cover sexual orientation. Many states’ laws don’t prohibit discrimination based on sexual orientation, either. In other words, when it comes to homosexual or bisexual employees, discriminate away.  SexualOrientation

However, it has become fairly clear that such glib advice is incomplete and perhaps even wrong not just from an ethical standpoint but also in terms of legal liability. This article provides an overview of some changes and developments to be mindful of when addressing sexual orientation issues in the workplace.

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OFCCP issues new rules on hiring of disabled individuals

by Elizabeth Bradley

On August 27, the U.S. Department of Labor’s (DOL) Office of Federal Contract Compliance Programs (OFCCP) announced a final rule intended to promote the hiring and employment of people with disabilities by federal government contractors. The rule makes changes to the regulations implementing Section 503 of the Rehabilitation Act of 1973, which prohibits employment discrimination against individuals with disabilities, and Section 4212 of the Vietnam Era Veterans’ Readjustment Assistance Act (VEVRAA).  GovernmentRegulations

The final rules were published in the Federal Register on September 24 and can be kindly described as voluminous and difficult to decipher. This article provides guidance on the key revisions to the Section 503 and VEVRAA regulations that affect contractors that are required to prepare affirmative action plans (AAPs).

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Employer vs. employee perception in gender discrimination claims

by Brinton M. Wilkins

Philosophers argue endlessly about “Truth” with a capital “T,” but most people will likely never comprehend that kind of “truth.” Rather, we all view and interpret the world and our experiences through a complex set of lenses that we spend a lifetime creating, both consciously and subconsciously. As Oscar Wilde summed up, “The optimist sees the donut, the pessimist sees the hole.” When it comes to discrimination claims, the law tries to account for differences in perception. Read on to see how employers can find a measure of protection in their honestly held perceptions.   Perception

‘But I think I’m an excellent employee!’

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Hiring ex-offenders: Considerations for employers

November 17, 2013 - by: Tammy Binford 0 COMMENTS

The hiring process can be challenging for employers and jobseekers alike. Employers struggle to match their needs to the skills and experience of applicants. Jobseekers struggle to make employers understand why they’re right for the job. That dual struggle gets even more complicated when a criminal conviction is added to the picture.

According to figures in a report from the Council of State Governments Justice Center, some nine million people are released from jail every year. In 2010, 708,677 sentenced prisoners were released from state and federal prisons, and 4.9 million individuals were on probation or parole. Many of those people will have trouble finding employment.

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Are generic antigay comments considered harassment?

by Steve Jones

Q I have an employee who is outwardly gay. He is a great employee and says he loves working at my business. However, he recently mentioned that he doesn’t like when a specific coworker uses antigay slurs. The slurs are not directed toward the gay employee. Instead, the slurs are generic comments such as “That’s so gay.” Are the comments a form of harassment under the law? 

A It depends. Sexual orientation―specifically, lesbian, gay, bisexual, and transgender (LGBT) status―is not a federally protected category. Therefore, we must look to state law for guidance. Currently, 21 states and the District of Columbia have laws that prohibit sexual orientation discrimination in employment. Twenty-nine states do not prohibit sexual orientation discrimination.

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A new wave of litigation: obesity related disability discrimination

by Julia M. Hodges

Obesity is a disease, according to the American Medical Association (AMA). The AMA’s recent declaration has a multitude of implications for employers, including the potential for increased disability-related litigation. Whether courts will decide to consider obesity a disability under the law remains to be seen, but employers everywhere should beware. 

Obesity not a disability under ADA

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What’s the status of transgender employees in the workplace?

by Raanon Gal and Chad A. Shultz

The law regarding the rights of transgender employees is evolving, with a clear trend toward the recognition and protection of the rights of transgender individuals. Just five years ago, employers in the United States likely would not have considered whether transgender employees were protected by federal employment laws. At most, employers would have considered whether state or local laws extended protections to transgender employees. However, the global community has been active regarding the protection of transgender employees’ rights in the workplace, and now it seems that the federal government is on track to join that trend. 

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Keeping older workers: Do you risk a brain drain or offer opportunity?

October 20, 2013 - by: Tammy Binford 0 COMMENTS

Much has been said about the number of older workers staying in the workforce. Whether it’s to make up for a retirement savings shortage or a passion for work that people are able to do well even when they pass a typical retirement age, people are working longer. 

Smart employers are seizing the opportunity to reap the benefits of a group of older workers—benefits that come from employees who, because of their perspective and experience, may be better at problem solving, thinking ahead, and keeping setbacks in perspective. Often, however, employers—even those eager to retain older workers—inadvertently make the workplace inhospitable for people who may be caring for teens and aging parents simultaneously or have other demands on their time and attention.

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Caregiver responsibility discrimination: an emerging issue

by Joseph U. Leonoro

For years, federal, state, and local employment laws have prohibited discrimination based on various protected characteristics, such as gender, race, disability, and age. In recent years, a new theory of discrimination, frequently referred to as “caregiver responsibility discrimination,” has emerged. There’s no federal  law that explicitly prohibits discrimination based on caregiving responsibilities. Rather, numerous courts have interpreted various laws, including the Americans with Disabilities Act (ADA), the Pregnancy Discrimination Act (PDA), Title VII of the Civil Rights Act of 1964, and the Family and Medical Leave Act (FMLA), to prohibit discrimination against workers who have family caregiving responsibilities. Moreover, the Equal Employment Opportunity Commission (EEOC) has emphasized enforcement of this form of discrimination and has issued guidance to address it.

Context of caregiver discrimination

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Miss Utah and the Equal Pay Act

by Boyd Byers

She didn’t win the crown, but Miss Utah, Marissa Powell, made the most news during the Miss USA pageant this summer. Her bungled response to a question about the gender pay gap went viral and was seen by millions on the Internet. But her response also generated serious discussion about equal pay. 

‘Create education better’

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