Discrimination Based on Hair and Hairstyles: Protected or Knot?

Posted in Employee Handbooks & Policies, Employment Counseling & Workplace Claims Prevention, Employment Discrimination Harassment & Retaliation

Cornrows or locs may not fit your corporate image, but be careful: state and local legislation prohibiting workplace grooming and appearance policies that adversely impact employees of color have begun popping up around the country. And the new laws have some teeth: employers who discriminate based on hair texture or style could face penalties of up to $250,000 under one and unlimited damages under another.

New York City was the first to prohibit workplace policies that ban hairstyles associated with Black communities. The New York City Commission on Human Rights, the agency that enforces New York City’s Human Rights Law, issued guidelines in February 2019 stating that employers can impose work-appropriate appearance requirements but cannot have grooming policies that prohibit locs, cornrows, Bantu knots and other such hairstyles. The guidelines state: “Employers may not ban, limit, or otherwise restrict natural hair or hairstyles associated with [B]lack communities to promote a certain corporate image, because of customer preference or under the guise of speculative health or safety concerns,” according to the guidelines. “An employee’s hair texture or hairstyle generally has no bearing on their ability to perform the essential functions of a job.” The New York City Commission can issue a penalty of up to $250,000 and there is no cap on damages.

Next came California, the first to enact statewide legislation.  California’s law is popularly known as the CROWN Act, which stands for “Creating a Respectful and Open World for Natural Hair.” The Act expands the definition of “race” to include “traits historically associated with race, including, but not limited to, hair texture and protective hairstyles.” The remedies for violation can include backpay, reinstatement, front pay; injunctive relief, attorney’s fees and costs, compensatory damages, and punitive damages (if an employer is found to have acted with malice or reckless indifference).

Just last month, New York State joined the trend, amending its Dignity Act to expand the definition of race to include natural hair and hairstyles. The Act protects “natural hair, treated or untreated hairstyles,” which includes, but is not limited to, locs, cornrows, braids, afros, and “the right to keep hair in an uncut or untrimmed state.”

Similarly, New Jersey has also introduced legislation (Senate Bill 3945) which would expand the New Jersey Law Against Discrimination to include “traits historically associated with race, including, but not limited to, hair texture, hair type, and protective hairstyles,” such as like braids, locs and twists.

What Does This Mean For Employers?

The Equal Employment Opportunity Commission has taken the position that “race” is not limited to the color of one’s skin and includes other physical and cultural characteristics associated race.  Therefore, according to the EEOC, a particular hairstyle, or the texture of an employee’s hair, has no correlation to any bona fide occupational qualification.

However, some courts have rejected the EEOC’s position.  For example, in U.S. Equal Employment Opportunity Commission v. Catastrophe Management Solutions, the United States Court of Appeals for the Eleventh Circuit, which serves Alabama, Florida, and Georgia, held that Title VII, the federal anti-discrimination law, does not prohibit discrimination on the basis of hairstyle, such as locs, which the court considers a “mutable characteristic.” The court distinguished discrimination based on race from discrimination based on hairstyles, stating that hairstyles only have a cultural link to race or blackness, rather than being an immutable trait of one’s race.  Last year, the United States Supreme Court declined to review the decision.

Likewise, in Ewing v. United Parcel Service Inc., a federal district court last year in Kansas found that an employee who was terminated for wearing bright colored hair was not terminated from employment on the basis of race but rather for violating the employer’s personal-appearance guidelines. The court found that the employer had consistently applied and enforced its guidelines, which mandated that “hairstyles and hair color should be worn in a businesslike manner,” prohibited hair colors such pink, purple, crimson, and burgundy.

These cases show that employers still may implement dress code and grooming policies, but should take steps to ensure that the policies and their enforcement do not disproportionately impact persons of color, particularly in New York, California, and New Jersey.

Best Practice Tips

Employers in states like New York, California, New Jersey should immediately review their grooming policies to provide protection for natural hair and hairstyles historically associated with the Black community. Employers in other states should also review their grooming policies and to ensure the policies are race-neutral and uniformly enforced.  Along those same lines, employers should always be mindful of other physical characteristics that can be associated with an employee’s race, and develop and enforce policies accordingly. Employers also should ensure that they uniformly apply any rules that require employees to secure their hair for bona fide security, safety, and hygienic reasons.

Employers should ensure that their anti-discrimination training for managers and supervisors covers discrimination based on traits that are historically associated with race.

If you have any questions about these new laws and their impact on your company, contact your Akerman Labor and Employment attorney.

 

 

NLRB Proposes Employer Friendly Changes to Union Election Rules

Posted in Labor Relations

Employers may find it easier to remain union-free based on new rules proposed last week by the National Labor Relations Board for bringing unions into and out of the work place. Citing the National Labor Relations Act’s (Act) purpose of safeguarding the freedom of employees to choose to unionize or to remain union-free, the NLRB proposed to change its rules on blocking charges, the voluntary recognition bar, and the way collective bargaining relationships are formed in the construction industry. Continue Reading

Deadline Approaches for Submitting New Pay and Hours Data

Posted in Employment Counseling & Workplace Claims Prevention, Wage & Hour

The EEOC portal is now open and employers who had 100 or more employees in 2017 or 2018 have until September 30, 2019 to submit the earnings and hours data required by the new Component 2 part of the EEO-1 form. As we have previously reported here the EEO-1 form was revised to require employers with 100 or more employees to report earnings and hours worked within 12 pay bands, in addition to reporting race, ethnicity, and sex. The collection of this information had been stayed since 2017, but resumed this year pursuant to the recent decision in National Women’s Law Center, et al., v. Office of Management and Budget, et al., Civil Action No. 17-cv-2458 (D.D.C.).  The Department of Justice has appealed this decision, but the appeal does not stay employers’ filing obligations, and a decision is not expected until well after the September 30 deadline. Continue Reading

Anticipated Changes to Employment-Based Green Card Processing

Posted in Immigration Planning & Compliance

U.S. employers and foreign workers could soon face significant additional burdens and years-long delays in the employment-based green card process. Last month, the U.S. House of Representatives passed the Fairness for High-Skilled Immigrants Act of 2019 (H.R. 1044), which seeks to eliminate the per-country limit on employment-based immigrant visas (i.e., “green cards”). The legislation proposes instead to treat all foreign nationals equally, regardless of country of birth. If enacted, the proposed changes could take effect as soon as September 30, 2019, with a three-year transitional period to offset the immediate impact to the U.S. immigration system and labor market.

Current U.S. federal immigration law places a numerical cap on the total number of employment-based green cards issued each year. Of this annual quota, nationals of any single country can receive no more than seven (7) percent of the total number of available employment-based green cards. Critics argue this policy is disadvantageous for nationals of heavily populated countries that have a higher number of applicants for U.S. permanent residence. Under the present law, nationals of China and India face green card waitlists that can be decades long because the demand from these countries far exceeds the available number of immigrant visas. The Fairness for High-Skilled Immigrants Act of 2019 attempts to dramatically change the distribution of green cards by eliminating the seven (7) percent per-country cap on all employment-based immigrant visas. Continue Reading

Avalanche of New Laws Create Additional Requirements for Illinois Employers

Posted in Employment Counseling & Workplace Claims Prevention, Employment Discrimination Harassment & Retaliation, Wage & Hour

Illinois employers must be cognizant of new Illinois laws including bans on salary history inquiries, restrictions on artificial intelligence interview programs, mandatory sexual harassment prevention training, limitations on non-disclosure and arbitration provisions, increasing minimum wage, implications of the new cannabis law and, within the City of Chicago, predictive scheduling.

Workplace Transparency Act (WTA)

Effective January 1, 2020

The WTA’s purpose is to prevent unlawful discrimination and harassment in the workplace. To further its goal, the WTA: Continue Reading

Federal Judge Rejects New York Law Prohibiting Mandatory Pre-Dispute Arbitration of Sexual Harassment Claims

Posted in Employment Counseling & Workplace Claims Prevention, Employment Discrimination Harassment & Retaliation, Employment Investigations & Audits, Employment Litigation

New York’s ban on pre-dispute agreements requiring employees to use arbitration to resolve sexual harassment claims is invalid, a federal judge in Manhattan has ruled. In a decision from the United States District Court for the Southern District of New York, U.S. District Judge Denise Cote held, in Latif v. Morgan Stanley & Co. LLC, that Section 7515 of New York’s Civil Practice Law and Rules (CPLR), which prohibits mandatory arbitration of sexual harassment claims is inconsistent with the Federal Arbitration Act (FAA), and therefore, invalid and unenforceable.

By way of background, the 2018-2019 New York State Budget, signed into law in April 2018, contained several sweeping provisions addressing workplace sexual harassment in direct response to the #MeToo movement, including a prohibition on pre-dispute agreements to arbitrate sexual harassment claims, codified in CPLR 7515. Following the enactment of this legislation, we noted in a prior blog post here that disputes over the validity of this state law would likely make their way into the courts, particularly given its tension with the FAA’s liberal policy favoring arbitration. This is precisely the issue that the Latif court addressed.    Continue Reading

DOL Issues Guidance on Payroll Rounding, Overtime Calculations, and Certain Paralegals

Posted in Employment Counseling & Workplace Claims Prevention, Employment Litigation, Wage & Hour

Employers looking for guidance on payroll rounding practices, classification of certain highly compensated paralegals and calculating overtime where employees receive non-discretionary bonuses will be glad to know the Department of Labor has issued three new Opinion Letters on those subjects. DOL Opinion Letters are issued by the Wage and Hour Division of the DOL and offer insight into the DOL’s interpretation of the Fair Labor Standards Act as applied to given set of facts. Employers facing wage claims may avoid liability for liquidated damages if they can show they acted in good faith by relying on a DOL Opinion Letter.

Payroll Software and Rounding Practice Accepted:

In Opinion Letter FLSA2019-9, the DOL considered the permissibility of the payroll rounding practice used by a non-profit that employed individuals with disabilities under government contracts subject to the Service Contract Act, which uses principles applied under the FLSA to determine hours worked. The DOL stated that the payroll software that rounds employees’ hours to two decimal points and was neutral on its face complies with the FLSA. In this case, the payroll software converted hours for each work period on each working day to calculate a numerical figure for daily hours and extended the time out to six decimal points. The software rounded the number to two decimal points—if the third decimal was less than .005, the second decimal stayed same (e.g., 6.784999 hours worked rounds down to 6.78 hours); but if the third decimal was .005 or greater, the second decimal rounds up by 0.01 (e.g., 6.865000 hours worked in a work day rounds up to 6.87 hours). The payroll software then calculated the daily pay by multiplying the rounded daily hours number by the SCA prevailing wage. Continue Reading

Smoke Clears For Employers Under New Illinois Marijuana Law

Posted in Employee Handbooks & Policies, Employment Counseling & Workplace Claims Prevention

As marijuana legalization laws spread, some states are more focused on employee protections, but Illinois recently adopted a new marijuana law that includes extensive workplace protections for employers. Last month, the Illinois legislature passed and Illinois Governor Jay Pritzker signed the Cannabis Regulation and Tax Act. The Cannabis Act goes into effect on January 1, 2020. Beginning on that date, Illinois residents over 21 may legally possess 30 grams of marijuana flower and five grams of marijuana concentrate.

The workplace protections for employers include:

  • It expressly permits employers to adopt and maintain zero tolerance policies concerning drug testing, smoking, consumption, storage or use of cannabis in the workplace or while on call (provided that the policy is applied in a non-discriminatory manner);
  • It permits employers to prohibit use of cannabis in the workplace (defined as any building, real property and parking area under the control of the employer, any area used by an employee while in performance of the employee’s job duties, and vehicles, whether leased or rented); and
  • It permits employers to discipline or terminate employees who violate an employer’s workplace drug policies.

The Cannabis Act also states that it does not provide a cause of action against an employer who subjects employees or applicants to reasonable drug and alcohol testing, or who disciplines or terminates an employee based on a good faith belief that the employee was impaired as a result of cannabis use or under the influence of cannabis while at work or on call. Continue Reading

PEOs, Staffing Companies: Watch Proposed New Joint Employer Rule

Posted in Employment & Consulting Contracts, Employment Counseling & Workplace Claims Prevention, Employment Investigations & Audits, Wage & Hour

Professional Employer Organizations, franchisors, business advisors, and staffing agencies should take a close look at their contracts if the Department of Labor’s proposed new standard for what constitutes a joint employer becomes final. The proposed rule implements a new four-factor test to evaluate whether a joint employer relationship exists.

The DOL’s proposed rule reflects the new administration’s narrower perspective of joint employers, and rejects the “not completely disassociated test” (with no definable scope) in favor of a balancing test based on four factors to determine if the potential joint employer: Continue Reading

New York State Approves Broadly Expanded Protections for Employees and Applicants

Posted in Employment Counseling & Workplace Claims Prevention, Employment Discrimination Harassment & Retaliation

Note: This blog post has been updated to include all relevant effective dates now that Governor Cuomo has signed the bill into law.

New York State has enacted comprehensive reforms to broaden the scope of its discrimination and harassment laws, including one of the most robust anti-harassment bills in the #MeToo era, amendments to the State’s Equal Pay Act to prohibit wage differentials based on protected class, and a ban on salary history inquiries.

Anti-Harassment and Discrimination Amendments to the New York State Human Rights Law

On August 12, 2019, Governor Cuomo signed a bill which would broadly expand coverage and anti-harassment protections to employees under the State Human Rights Law (“NYSHRL”).  The legislation’s expanded protections against harassment in the workplace are not limited to sexual harassment; rather, it broadens protections for harassment based on any protected characteristic under a wide array of categories.  In its key provisions, the legislation would: (1) expands the definition of “employer”; (2) expands the liberal construction  of the NYSHRL; (3) lowers employees’ burden of proof in harassment cases; (4) increases employer obligations for providing notice of sexual harassment prevention and training; (5) prohibits non-disclosure agreements in all discrimination cases (with an exception for a plaintiff’s preference); (6) prohibits mandatory arbitration; (7) creates a right for punitive damages to prevailing plaintiffs; (8) delineates the conditions under which attorneys’ fees are available to a prevailing party; and (9) increases the statute of limitations in sexual harassment cases brought under the NYSHRL from one to three years.

  1. Coverage Expanded To Employers Of All Sizes

The NYSHRL currently applies to employers with four or more employees.  Beginning on February 8, 2020, it will apply to all employers, regardless of size.

  1. An Expanded Liberal Construction of the NYSHRL

Effective immediately, state law is to be construed liberally – and exceptions to the law is to be construed narrowly – to “maximize deterrence of discriminatory conduct.”

  1. Employees’ Lower Burden Of Proof

Up until now, the NYSHRL resembled federal law by requiring a complainant to meet a “severe or pervasive” standard – the same standard required under Title VII – to prove that his or her harassment was unlawful.  The new legislation does away with that higher burden, and brings the NYSHRL in line with New York City law.  Employees will now only need to demonstrate that harassment rises above the level of “what a reasonable victim of discrimination with the same protected characteristic would consider petty slights or trivial inconveniences.”

Moreover, the new law eliminates employers’ ability to utilize the Faragher/Ellerth  affirmative defense.  This defense, named after two 1998 Supreme Court decisions in a Title VII context, allowed employers to shield themselves from liability in certain circumstances by demonstrating that an employee failed to take advantage of the employer’s internal complaint procedures.  Now, whether an individual complains about harassment to the employer will no longer be determinative of the employer’s liability.

These changes will take place effective October 11, 2019.

  1. Notice of Sexual Harassment Prevention

Effective immediately, all employers are required to provide notice of their sexual harassment policy and the information presented at their annual sexual harassment training.  The notice must be in writing and in employee’s primary languages.  However, employers need not provide the notice in another language if the state has not published a template for that language.  In such a case, defaulting to the English notice is acceptable.  The notice must be given to current employees as well as new hires, and annually to all employees as part of annual sexual harassment training.

  1. Non-Disclosure Agreements (“NDAs”)

Last year, New York limited NDAs in sexual harassment cases to situations in which the NDA was the plaintiff’s preference.  Now, NDAs will be limited for all types of discrimination, rather than just sexual harassment claims.  The new legislation retains the exception allowing an NDA where it is the plaintiff’s preference.  This rule will also apply for judgments, stipulations, decrees, or agreements of discontinuance, and will go into effect on October 11, 2019.

  1. Mandatory Arbitration

As with NDAs, last year New York prohibited mandatory arbitration for sexual harassment claims.  Now, effective October 11, 2019, mandatory arbitration to resolve allegations of discrimination of any kind will be prohibited.

  1. Punitive Damages

Effective October 11, 2019, punitive damages will become available in all employment discrimination cases against private employers.

  1. Attorney’s Fees

Effective immediately upon enactment, attorneys’ fees must be awarded to prevailing plaintiffs for employment discrimination claims.  However, prevailing defendants will only be awarded attorneys’ fees if plaintiffs’ claims are deemed “frivolous.”  The legislation defines a “frivolous” action as one that was filed or continued in bad faith, to prolong or delay the litigation, or to harass the defendant, or continued in bad faith “without any reasonable basis and could not be supported by a good faith argument for an extension, modification or reversal of existing law.”

  1. Extended Statute Of Limitations

Effective August 12, 2020, the statute of limitations for sexual harassment in employment complaints to the NYSDHR will be extended from one year to three years.

Prohibition of Wage Differentials Based on Protected Class

New York’s Equal Pay Act provides that employees shall not be paid less than employees of the opposite sex in the same establishment for equal work, for a job requiring equal skill, effort and responsibility, and performed under similar working conditions. A new bill signed by Governor Cuomo on July 10, 2019 requires employers to provide employees with equal pay for substantially similar work across all protected categories under the NYSHRL – not just gender.  The bill broadens protections under the Equal Pay Act by requiring that no employee who falls into any one or more protected classes under the NYSHRL be paid a wage at a rate less than the rate at which an employee outside the same protected class in the same establishment is paid for either: (1) equal work; or (2) “substantially similar work, when viewed as a composite of skill, effort and responsibility, and performed under similar working conditions.”

Employers can still justify pay differentials, for example, due to a seniority or merit system, a system which measures earnings by quantity or quality of production, or a bona fide factor such as education, training or experience. However, employees may still prevail on a claim if they can demonstrate that: (i) the employer’s practice causes a disparate impact on the basis of a protected class; (ii) a viable alternative practice exists that would remove the wage differential and serve the same business purpose; and (iii) the employer refused to adopt the alternative practice.

This law will go into effect on October 8, 2019.

Salary History Inquiry Ban

Finally, Governor Cuomo signed a bill that prohibits employers from asking job applicants and employees about their wage or salary history.  The bill becomes effective on January 6, 2020.  Specifically, it will be unlawful to rely on an applicant’s wage or salary history in determining whether to offer employment or in determining the wages or salary offered to the applicant.  Additionally, employers may not seek, request, or require wage or salary history from an applicant or current employee as a condition of being interviewed for, considered for, or receiving employment or a promotion.  It will also be unlawful to retaliate against an individual by refusing to hire, promote, or otherwise employ or retaliate against an applicant or employee “based upon prior wage or salary history,” or a refusal to provide wage or salary history.

The law does allow for exceptions where: (1) an applicant or employee voluntarily, and without prompting, discloses or verifies wage or salary history; (2) an employer can confirm wage or salary history after an offer of employment with compensation has been made, but only if the applicant or employee responds to the offer by providing prior wage or salary information to support a wage or salary higher than offered; and (3) where any federal, state, or local law enacted prior to the effective date of the legislation requires the disclosure or verification of salary history information to determine an individual’s compensation.

Notably, the enactment of this law will nullify Westchester County’s salary inquiry ban, because that law provides that it will become null after statewide legislation is passed.

Takeaway For Employers

This flurry of legislation will impact virtually all stages of employment, from the hiring process, to employee trainings, settlement negotiations, and in the courtroom.  With some of the legislation’s provisions taking immediate effect upon enactment, employers are well advised to immediately review their employment practices and policies to ensure compliance.  If you have any questions regarding these expected changes, please do not hesitate to contact Akerman’s Labor and Employment attorneys.

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