JULY DIVERSITY, EQUITY, AND INCLUSION UPDATE
JULY DIVERSITY, EQUITY, AND INCLUSION UPDATE
July 6th, 2021
Matt Glowacki, Diversity Equity & Inclusion Chair
Jefferson County HRMA & WI SHRM
Pride at Work: What Employers Need to Know about LGBTQ+ Rights
As PRIDE month concludes, we look back at a historic year for the rights of LGBTQ+ employees, and ahead for what this means for employers as they manage their workforce.
Looking back, it was June 2020 when the Supreme Court held that discrimination on the basis of sexual orientation and transgender status constitutes unlawful sex discrimination under Title VII of the 1964 Civil Rights Act. We’ve discussed the landmark Bostock v. Clayton County decision in-depth before. Fast forward, one year later on Bostock’s first anniversary, the EEOC issued a slate of new resources to help employers comply with new LGBTQ+ protections.
According to Catalyst.org, members of the LGBTQ+ community still face high rates of discrimination in the workplace. At least 20 percent of LGBTQ+ employees report being discriminated against when applying for jobs and 52 percent report having been subjected to lesbian or gay jokes in the workplace.
Discrimination is bad for business, as it impacts employee retention. Nearly half of LGBTQ+ workers in the United States are closeted at work with 10 percent having left a job because of an intolerant environment. Meanwhile, 25 percent reported staying in a job because of an inclusive culture.
As discrimination in the workplace persists, so too do related lawsuits. In fact, before we were able to finalize this short blog, two new cases hit the press. One involved a former Boeing contractor’s suit against a staffing agency claiming she was fired for being a transgender woman. The other involved a former Iowa Democratic official’s suit against the state’s prior Republican governor alleging the governor cut his salary and urged him to resign because he was gay. Without commenting on those claims, no employer wants to be in that headline.
So how do you avoid being in the headlines? Start by knowing the law. Here’s what you need to know about the new EEOC guidance:
How has the EEOC interpreted Title VII protections after Bostock?
The EEOC’s post-Bostock guidance outlines the types of actions it considers unlawful discrimination or harassment based on sexual orientation or gender identity.
Employers should avoid acting on customer suggestions about how client/customer-facing roles must “look” like a certain gender.
- It doesn’t matter what clients or customers prefer. When it comes to the rights of your LGBTQ+ employees, your clients are NOT always right. For example, the EEOC states that it would be unlawful to move an LGBTQ+ employee out of a public-facing position because of real or perceived client preferences about sexual orientation or gender identity.
Employers should avoid the “male” and “female” dress codes. Instead, employers should require their employees to be neat, professional, and wear clothing that is appropriate for their job.
- Employers cannot discriminate based on non-conformity with gender stereotypes. For example, employers cannot require transgender employees to dress in accordance with the sex they were assigned at birth. This is true regardless of whether an employer knows the employee’s gender identity or sexual orientation.
While, this can be tricky to comply with, we have not found it to be an insurmountable problem with most employees. The key is often some education. You may just need to give some explanation to employees, especially if there has been a gender transition, as to who is using the facilities.
- Employers can have separate, sex-designated bathrooms, locker rooms, and showers. However, the EEOC’s position is that employers may not deny an employee equal access to a bathroom, locker room, or shower that corresponds with the employee’s gender identity.
Employers, train your employees and especially managers to be sensitive to proper name and pronoun use.
- Employers cannot disregard an employee’s preferred name or pronouns. This gives much more weight to the preferred pronouns that some have opted to include in their signature block and LinkedIn profiles. While accidental misuse of a transgender employee’s preferred name and pronouns does not constitute a Title VII violation, intentional and repetitive use may contribute to a hostile working environment.
How is the EEOC enforcing Title VII protections for LGBTQ+ workers?
Among their recent notable victories, EEOC litigators secured a $175,000 judgment against a retail employer for subjecting a gay male and female employees to a hostile work environment based on sex when a manager subjected those employees to unwanted sexual comments, photographs, and touching and the employer failed to adequately intervene. The Commission also filed one of the lawsuits decided in the Bostock. That case, which dealt with a transgender employee’s clothing preferences and subsequent termination, resulted in a more than $250,000 judgment against the funeral home that fired her.
What employers should know is there are many different gender identities and they are all under a protected class under Title VII. And the EEOC’s interpretation of Title VII protection after Bostock has made is that much easier for an employer to fall out of compliance and susceptible to litigation.
We recommend you review your antidiscrimination policies and employee handbook to address the EEOC’s new enforcement positions.
5 Employer Takeaways as EEOC Issues New Guidance on Sexual Orientation and Gender Identity Discrimination in the Workplace
The Equal Employment Opportunity Commission (EEOC) observed LGBTQ+ Pride Month and the one-year anniversary of the landmark Bostock v. Clayton County Supreme Court decision by announcing new resources to aid employers in understanding the EEOC’s position regarding sexual orientation and gender identity discrimination. These resources include a new landing page and a new technical assistance document. These new resources, according to the EEOC, will “help educate employees, applicants and employers about rights of all employees, including lesbian, gay, bisexual and transgender workers, to be free from sexual orientation and gender identity discrimination in employment.” What are the five biggest takeaways from this new guidance for employers?
Brief Overview of the Bostock v. Clayton County Decision
In order to appreciate the EEOC’s new guidance documents, it is helpful to understand the significance of last year’s Bostock v. Clayton County decision, which held that firing individuals because of their sexual orientation or transgender status violates Title VII’s prohibition of discrimination on the basis of sex. This decision resulted from three cases: Altitude Express Inc. v. Zarda and Bostock v. Clayton County, in which gay men were fired because of their sexual orientation; and R.G. & G.R. Harris Funeral Homes Inc. v. Equal Employment and Opportunity Commission, where a transgender woman was fired because of her gender identity.
The Supreme Court consolidated these cases and issued a single opinion, addressing “whether an employer can fire somebody simply for being homosexual or transgender.” The Court’s conclusion was clear: “An employer who fires an individual for being homosexual or transgender fires that person for traits or actions it would not have questioned in members of a different sex. Sex plays a necessary and undistinguishable role in the decision; exactly what Title VII forbids.” However, the Court noted that its decision did not address various religious liberty issues, such as the First Amendment, the Religious Freedom Restoration Act, and exemptions provided to religious employers by Title VII.
Since the Bostock decision, the EEOC and other courts have interpreted Bostock’s holding to prohibit all forms of harassment and discrimination when done on the basis of sexual orientation and gender identity.
EEOC’s Guidance, Summarized
The new EEOC landing page consolidates information concerning sexual orientation and gender identity discrimination and provides links to updated fact sheets regarding recent EEOC litigation. The technical assistance document explains the significance of the Bostock decision and reiterates the EEOC’s position on Title VII rights and responsibilities regarding discrimination based on sexual orientation and gender identity. For example, according to the document, employers cannot:
The document likewise notes that employers cannot discriminate, create, or tolerate harassment against straight or cisgender (someone whose gender identity corresponds with the sex assigned at birth) individuals.
- Discriminate against individuals based on sexual orientation or gender identity with respect to terms, conditions, or privileges of employment, including hiring, firing, furloughs, reductions in force, promotions, demotions, discipline, training, work assignments, pay, overtime, other compensation, or fringe benefits.
- Create or tolerate harassment based on sexual orientation or gender identity, including harassment by customers or clients. This may include intentionally and repeatedly using the wrong name and pronouns to refer to a transgender employee.
- Use customer preference to fire, refuse to hire, or assign work.
- Discriminate because an individual does not conform to a sex-based stereotype about feminine or masculine behavior (whether or not an employer knows the individual’s sexual orientation or gender identity).
- Require a transgender employee to dress or use a bathroom in accordance with the employee’s sex assigned at birth. However, employers may have separate bathrooms, locker rooms, and showers for men and women, or may have unisex or single-use bathrooms, locker rooms, and showers.
- Retaliate against any employee for opposing employment discrimination that the employee reasonably believes is unlawful; filing an EEOC charge or complaint; or participating in any investigation, hearing, or other proceeding connected to Title VII enforcement.
The EEOC also addressed the tension between protections for private employers and employees with sincerely held religious beliefs and LGBTQ+ employees and applicants by noting, “Courts and the EEOC consider and apply, on a case by case basis, any religious defenses to discrimination claims, under Title VII and other applicable laws.”
What Does This Mean for Employers? 5 Biggest Takeaways
As a federal law, Title VII prohibitions on discrimination based on sexual orientation or gender identity extend nationwide regardless of state or local laws. The EEOC guidance clarified a few specific recurring questions regarding protections for LGBTQ+ employees, offering five key takeaways for employers:
- An employer covered by Title VII is not permitted to fire, refuse to hire, segregate, or take assignments away from someone (or discriminate in any other way) because customers or clients would prefer to work with people who have a different sexual orientation or gender identity.
- Whether or not an employer knows an employee’s sexual orientation or gender identity, employers are not permitted to discriminate against an employee because that employee does not conform to sex-based stereotypes about traditional feminine or masculine behavior.
- Prohibiting a transgender person from dressing or presenting consistent with that person’s gender identity would constitute sex discrimination.
- If an employer has separate bathrooms, locker rooms, or showers for men and women, all men (including transgender men) should be allowed to use the men’s facilities and all women (including transgender women) should be allowed to use the women’s facilities. However, it should be noted that this stance is a controversial hot button issue that is still developing, especially given the fact that the Supreme Court expressly left this issue unaddressed in Bostock, stating: “Under Title VII, too, we do not purport to address bathrooms, locker rooms, or anything else of the kind.”
- Intentionally and repeatedly using the wrong name and pronouns to refer to a transgender employee could contribute to an unlawful hostile work environment.
This new guidance makes clear that any discrimination based on sexual orientation or gender identity is prohibited under Title VII. Thus, employers should update their policies and practices to comply with the EEOC’s position.
EEOC: Nursing home kept written policy requiring workers to disclose pregnancies
There are a couple of reasons why employers can't discriminate against women on the basis of pregnancy.
- An Illinois nursing home violated both the Americans with Disabilities Act and Title VII of the Civil Rights Act of 1964 when it required women to disclose their pregnancies, the U.S. Equal Employment Opportunity Commission charged in a lawsuit.
- The facility, Symphony of Joliet, enacted this requirement in a written policy. It required no other employees to disclose medical information, however, EEOC said.
- Symphony of Joliet also forced pregnant workers to get doctor's notes saying they could work without restrictions — even if they hadn't asked for accommodations, the suit alleged. If an employee with less than one year of tenure had a restriction, the nursing home terminated her and labeled her as "ineligible for rehire," EEOC said.
The Pregnancy Discrimination Act amended Title VII in 1978, when it added pregnancy to the statute's list of protected characteristics. Employers can't discriminate against employees because of pregnancy or pregnancy-related conditions, just as they can't discriminate against employees because of their race or religion.
EEOC is charging Symphony of Joliet for discrimination under the ADA, too. As the agency pointed out, the ADA bars employers from requiring workers to submit to medical examinations without a business necessity.
The nursing home allegedly terminated pregnant employees who needed accommodations if they hadn't put in more than a year's work at the facility. But the ADA, which mandates employers provide reasonable accommodations, has no requirement of hours worked — in fact, it includes applicants in its provisions. While pregnancy itself is not considered a disability under the ADA, conditions relating to pregnancy may earn that label. A worker with back pain or a lifting restriction may be entitled to an accommodation.
"Pregnant women are frequently subjected to harmful, paternalistic stereotypes," EEOC Regional Attorney Gregory Gochanour said in a statement. "Pregnancy is no reason for an employer to assume that an employee cannot continue to work, nor is it a blank check for employers to seek invasive medical information or to subject pregnant employees to less favorable employment conditions than their non-pregnant co-workers."
My company is considering encouraging vaccination by adding a surcharge of $100 per month to the medical benefits for those who are not fully vaccinated. I have seen several articles on incentivizing vaccination but not much about penalties. Can my company do this? —Jacquie
Johnny C. Taylor, Jr.: Indeed, many companies are searching for effective ways to encourage their employees to get vaccinated and return safely to the workplace. And yes, they can incentivize and even mandate the shot. The more pertinent question may be: Should they?
As businesses strive to recover in the wake of the COVID-19 pandemic, they are making critical decisions that impact their workforces. However, adding a surcharge to the health insurance premiums of unvaccinated employees is not a simple fix. To start, authoritative guidance—from the Equal Employment Opportunity Commission, court rulings or elsewhere—isn't readily available, and employers may have difficulty formulating the right surcharge amount without supporting data.
Implementing an insurance premium surcharge also may trigger a host of legal considerations:
Until more reliable, clear guidance is available, your employer would be wise to confer with legal counsel prior to implementing such a surcharge.
- It could violate the Americans with Disabilities Act (ADA) if an employee did not receive a vaccine due to a disability.
- If an employee chooses not to get vaccinated because of a sincerely held religious belief, a penalty could defy Title VII of the Civil Rights Act of 1964.
- The Health Insurance Portability and Accountability Act of 1996 (HIPAA) prohibits discrimination in group health plan eligibility, benefits and premiums based on specific health factors, which could include COVID-19 non-vaccinations.
- Some states have or are proposing legislation with language about medical plan premiums and the legality of disincentives for vaccinations in the public or private sectors.
It should also consider the employee relations angle. Survey data suggests—and we've seen this play out in recent news—that a significant percentage of workers would leave their jobs before consenting to vaccination. In this instance, solving one problem potentially creates another.
In my experience, employees respond more favorably to carrots than to sticks. Rewarding vaccinated workers with a day off, gift cards or bonuses contributes positively to workplace morale and does not violate the law—and can be as effective at improving vaccination rates.
Considering the legal gray areas, employee relations concerns and alternatives, are penalties worth it? For my money, the answer is no.
UPS Fired Jacksonville Employee Because of His Diabetes, Saying he Was a “Liability,” Federal Agency Charges
JACKSONVILLE, Fla. – United Parcel Service, Inc. violated federal law by firing an employee because of his disability, the U.S. Equal Employment Opportunity Commission (EEOC) charged in a lawsuit filed today.
According to the EEOC’s suit, a UPS human resources supervisor at a Jacksonville ware-house location referred to an employee with a disability as a “liability,” claiming that he could not do his job because of his diabetes. The employ
ee requested the accommodation of an occasional short break of less than five minutes in between unloading trailers to check his blood sugar and eat or drink something if necessary.
The employee suffers from erratic or brittle diabetes and wears an insulin pump with a continuous glucose monitor. The employee was able to perform the essential functions of the job as pre-loader and indeed performed the job at UPS without issue for two days before his termination. After the employee’s second shift ended, the UPS Human Resources Supervisor then left the employee a voicemail message advising him it was his last day of work.
Terminating an employee because of his disability violates the Americans with Disability Act. The EEOC filed suit (EEOC v. United Parcel Service, Inc., Case No. 3:21-cv-00656-BJD-JRK) in U.S. District Court for the Middle District of Florida only after exhausting its conciliation efforts to reach a voluntary pre-litigation settlement. The agency is seeking back pay and compensatory and punitive damages for the employee, as well as appropriate injunctive relief to prevent any further discriminatory practices.
3 Questions Employers Need To Consider When It Comes To Marijuana In The Workplace
Haynsworth Sinkler Boyd’s Chris Gantt Sorenson and Perry MacLennan recently discussed “Marijuana in the Workplace: To Test or Not to Test” on the Survive HR podcast. In the podcast, Chris, Perry, Kelly Schieb and Steve Nail debate their different opinions on the subject of whether any form of marijuana testing makes sense for employers regardless of whether marijuana use is legalized or not. Listen for the reasons the four offers for and against testing in all sorts of situations, and see where they came to a consensus.
Perry summed up the issue:
If you are going to drug test in the workplace for cause (from a co-worker tip, an accident in the workplace, etc.), a positive test for marijuana will not tell you a lot. If you are making disciplinary decisions around this, you will need more than a positive test to determine the level of impairment. You will need more evidence; for instance, finding a joint or noticing an employee is visibly high at work. HR professionals have to make a determination: What type of workplace are we and how are we going to approach this? Is a pre-employment marijuana screening necessary? Is it something that we want to do? Regardless of which state you are in, even in states where it’s illegal, like South Carolina, some employers have done away with testing. If you have safety-sensitive positions (manufacturing and construction industries, for example), you will have the latitude to conduct drug testing, and that is a good idea.
The highlights of the debate centered around three central questions:
Regardless of whether marijuana is legal in your jurisdiction, what should employers do about marijuana in the workplace?
Should employers still include marijuana on its panel in reasonable suspicion and after accident situations? Even in states where marijuana is legal, apply what you already know in regards to what level is too much, similar to how you treat alcohol use under the reasonable suspicion analysis. No one should work while impaired, regardless of why they’re impaired. Train managers to look for behaviors that may indicate an employee is under the influence of marijuana in addition to alcohol or other substances. Chris explained,
If you think in terms of reasonable suspicion (for example, an employee comes to work under the influence of any sort of substance) and you have reasonable suspicion the employee is under the influence, then you test the employee to see if they’re impaired.
If you are going to test or conduct for-cause testing or after accident testing, how do you determine if someone is under the influence of marijuana? Is there a general standard or cut-off as to what an impairment level would be?
There are no limits yet for the level of THC that indicates impairment and marijuana detection is not indicative of impairment as it can remain in someone’s system for 72 hours up to a month. However, coupled with reasonable suspicion, the test would act as an additional fact to confirm the employee is under the influence at work, something that the ADA does not protect. The DOT’s reasonable suspicion guidelines offer insight into what managers should look for with regards to marijuana and can be applied to inform employers even outside of the context of DOT. But it does not matter what substance the employee is on, if you see a particular behavior and then pair it with a test, either for reasonable suspicion or after an accident, those two facts confirm what the employer has observed. A standard for the level of impairment is not necessary.
For those employers considering eliminating marijuana testing entirely, be mindful of worker’s compensation insurance policies in case of an accident. Remember to have new hires sign an acknowledgment of the procedures when they start, so they know about the policies from day one.
Employers don’t want their employees to be impaired at work. Should employers include impairment language in their policies to make it clear that no level of impairment is okay?
Any policy outright prohibiting marijuana use in states where marijuana is medically legal will run afoul of the Americans with Disabilities Act. This poses an interesting quandary since federal law bans marijuana and any use, even for medicinal purposes, is illegal. The ADA is a federal law so you would think that outright prohibition regardless of state law is permissible. However, federal courts have already interpreted an outright prohibition on marijuana use where it is approved medicinally violates the ADA if the use is in conjunction with a prescription and the employee is able to perform the essential functions of the job. Employers cannot have a policy that prohibits its use at work. Instead, approach it as you would the use of prescription drugs and whether or not it will interfere with the ability of an employee to do their job safely. If you include impairment language in your policies, you also need to include language to accommodate for ADA.
Having a policy for reasonable suspicion and a policy for after-accident testing streamlines everything.
Interactive Process Remains Key To Prevailing On ADA Claims
In Thompson v. Microsoft, No. 20-50218 (June 22, 2021), the Fifth Circuit provided employers a great reminder of the importance of the interactive process when it affirmed summary judgment for the employer, Microsoft, on Plaintiff Thompson’s ADA claims. In his lawsuit, Thompson alleged failure to accommodate, discrimination, and a hostile work environment.
Thompson was given a position as a senior-level executive and liaison between Microsoft and clients. The role was fast paced and required clear communications with clients. Although Thompson was initially anticipated to be a good fit for the role, his performance was substandard. When confronted with his poor performance, Thompson requested several accommodations for his Autism Spectrum Disorder (“ASD”). These included specialized software to support time management and organization and a personal assistant. Microsoft agreed to many of the accommodations Thompson requested but denied his request for a personal assistant. Even after Thompson received several accommodations, he could not effectively communicate with Microsoft clients—an essential function of his position. While the company looked into other options, Thompson was temporarily reassigned to a new role. Rather than taking the temporary role, Thompson took medical leave and sued.
The Court found that Thompson could not prevail on his failure to accommodate claim because his inability to perform the essential functions of his position, even with an accommodation, meant he was not a “qualified individual,” an essential element of such a claim. Even assuming that he would have been able to perform the essential functions of the job if he had been given a personal assistant, this accommodation was not reasonable, and Microsoft was not obligated to provide it. Moreover, to the extent there may have been more that could have been done, it was Thompson—not Microsoft—that caused the breakdown in the interactive process.
Thompson also could not establish a prima facie case of discrimination. He was not a “qualified individual” (still an essential element), and he also could not identify an adverse employment action taken by Microsoft. Although Thompson objected to his reassignment to a different position, because the reassignment was temporary, it did not fit the bill. In its analysis of the discrimination claim, the Court focused on the fact that it was Thompson who decided to take leave before there was an ultimate employment decision.
Finally, Thompson could not show a severe and pervasive hostile work environment. Thompson presented two comments made by his supervisor, which the Court characterized as “insensitive” but insufficient to support such a claim. Other factors Thompson attempted to rely on, such as Microsoft’s legitimate criticisms of Thompson’s work performance and Microsoft’s temporary reassignment of Thompson to a less desirable position, as a matter of law, did not evidence harassment.
The lesson? A company’s dedication to the interactive process may prove fatal to an employee’s disability-related claims—even when the employee does not like the accommodations offered. Even after Microsoft’s representative made several “insensitive” comments to Thompson, Microsoft’s efforts to engage in the interactive process paid off.
Navigating the Road Ahead in the Fight for Women’s Progress
The change that women need will require reimagining a new normal that builds on the lessons learned from a global pandemic that exposed enormous gaps in the nation’s health care and economic infrastructure. It will require going further with bold policies and ideas that, together, can begin to uproot the biases that for too long have marginalized women—particularly women of color, disabled women, immigrant women, survivors, and LGBTQ people. It will require a new framework for future action, guided by several core principles to achieve the progress that women deserve. These principles include:
These principles must inform the actions taken going forward and be used to guide how solutions are analyzed and designed. Below are key policies and broader efforts needed to continue building towards meaningful progress to ensure that all women can participate fully in the economy and live healthy and productive lives.
- Centering equity as a core principle to create environments free of discrimination. The country must confront head-on the persistence of racism, sexism, and other forms of bias that are used to diminish, stereotype, and/or disempower women—especially women of color. Progress requires the rejection of long-standing narratives that purport to celebrate women’s resilience as an excuse to avoid taking concrete action.
- Valuing the roles that women play and the work that women perform. Women play critical roles as caregivers and care workers, performing work that sustains the economy, families, and society. Yet, this work, consisting of paid and unpaid labor disproportionately shouldered by women of color, is consistently undervalued and its importance disregarded. Robust investments in care are essential to maximize women’s ability to participate fully in society and access different opportunities.
- Utilizing an intersectional lens to recognize the diverse experiences of women and gender minorities. Women are not a monolith; they bring diverse experiences to the table. The combined effects of multiple identities, reflected, for example, in the intersectional realities of women of color, trans women, and other gender minorities, can lead to differences in how they are treated, the opportunities that they receive, and overall measures of health and economic well-being. Taking concrete steps to surface, measure, and analyze disparities and unique needs must be a priority to ensure responsive policy solutions.
- Prioritizing and respecting women’s autonomy and rejecting efforts to undermine women’s ability to make their own life choices. Women’s autonomy must not be eroded or compromised as a result of gendered biases. This includes the ability for women to decide if, when, and how to raise children, which requires the meaningful ability to make their own health care decisions, including the ability to live in a safe environment; have economic security; and access an abortion, a full range of contraceptives, and other reproductive health services. Constraining women’s ability to direct their own lives effectively makes them second-class citizens without the full authority to participate in society in the way that makes sense for them.
- Recognizing the essential role of government in enforcement and in securing protections critical to women’s progress. Leveraging the power of the government, especially as an enforcer of legal protections, to protect women’s rights has been vital to women’s progress for decades and will continue to be important and require a robust, steady commitment to enforcement and related resources.
- Pursuing structural reform and policies that can catalyze institutional change. The changes women need require immense work across every institution and level of government. The administration and policymakers must eschew superficial half-measures that meet neither the moment nor the scope of the problem to examine how systems function in practice. This work will require bold, structural policies to change the status quo and address persistent inequalities that have held women—particularly women of color—back.
Avoiding Citizenship and National Origin Discrimination—The Tricky Analysis Surrounding What Employers May Request from Foreign National Candidates During the Pre-employment Process
It may be hard to imagine, but prior to 1986 it was not illegal for an employer to hire an undocumented worker. All of that changed with the enactment of the Immigration Reform and Control Act of 1986 (IRCA). In addition to requiring employers to verify the work eligibility for all employees, IRCA's antidiscrimination provisions prohibit an employer from discriminating in hiring or firing on the basis of an individual's citizenship status or national origin.
The pre-employment process is wide open with traps for an employer to inadvertently run afoul of antidiscrimination provisions under IRCA. One issue that is particularly tricky, and perhaps not given enough attention, is what an employer is and is not allowed to request from a foreign national candidate seeking employment. On one hand, it is impossible to properly assess eligibility for applicable nonimmigrant work authorization options without knowing the individual’s complete immigration history. On the other hand, an employer needs to be mindful of not stumbling into a citizenship status or national origin discrimination claim. How does an employer properly walk this fine line?
I. Antidiscrimination Provisions
We must first understand the antidiscrimination provisions under IRCA. Section 274B(a)(1) of the Immigration and Nationality Act (“INA”) reads that it is an unfair immigration-related employment practice for an employer to discriminate against any individual with respect to hiring, recruiting, or discharging the individual because of his/her citizenship status or national origin. Citizenship status includes an individual’s immigration status.
However, the INA’s antidiscrimination provisions for citizenship discrimination only apply to protected individuals under the law, which includes (1) U.S. citizens and nationals; (2) lawful permanent residents (green card); (3) refugees; and (4) asylees. These citizenship discrimination provisions therefore do not apply to foreign nationals in nonimmigrant status.
While nonimmigrants are not a protected class of individuals for citizenship discrimination, employers still need to be mindful that nonimmigrants could claim national origin discrimination if they believe the decision not to hire them was based on country of origin, accent or appearance. National origin discrimination applies to treating individuals differently because of place of birth, country of origin, ancestry, native language, accent or because they look “foreign.”
II. How Should Employers Juggle These Considerations?
An employer is not required to hire a foreign national who requires sponsorship for non-immigrant work authorization. But how does an employer inquire about work authorization status without worrying about engaging in citizenship or national origin discrimination?
Thankfully, the Office of Special Counsel for Immigration-Related Unfair Employment Practices (OSC) provides some cover and helpful guidance on what initial inquiries are allowed. OSC confirms that employers may ask these three questions during the pre-employment process:
It is important to note that these three questions are an all or nothing proposition. If you ask one, you need to ask all three.
- Do you now, or will you in the future, require sponsorship (e.g., H-1B visa status, etc.) to work legally for THE COMPANY in the United States?
- If you will require sponsorship, do you currently hold Optional Practical Training (OPT)?
- If you currently hold OPT, are you eligible for a 24-month extension of your OPT, based upon a degree from a qualifying U.S. institution in Science, Technology, Engineering, or Mathematics (STEM), as defined by Immigration & Customs Enforcement?
The responses to these three questions may elucidate information that the individual is a foreign national who will require sponsorship. In fact, in many cases, even without these three questions, a foreign national candidate will be very up front with their immigration status and volunteer information about their sponsorship needs. An employer’s next consideration is how to proceed with this knowledge. Is it safe to request documentation regarding their immigration history or should that be deferred until after the offer of employment has been officially accepted?
There is no explicit right or wrong answer to that question. Some employers may choose to not ask any related work authorization questions during the pre-employment process, while others will only ask the three questions above provided by the OSC. Still others are comfortable with requesting immigration history information from a foreign national in nonimmigrant status.
Interestingly, since nonimmigrants are not protected under INA antidiscrimination provisions, requesting certain documentation and or deciding not to hire a nonimmigrant based on the sponsorship requirement would not violate antidiscrimination provisions. The OSC confirms this by writing:
“Accordingly, an employer that asks all of its job applicants whether they will require sponsorship now or in the future and refuses to hire those who require sponsorship would likely not violate 8 U.S.C. 1324b. Similarly, an employer that asks questions designed to prefer certain classes of nonimmigrant visa holders (e.g. STEM OPT students) over other classes of nonimmigrant visa holders is unlikely to violate the INA’s prohibition against citizenship status discrimination.”
Therefore, if the individual volunteers information about their nonimmigrant status or the initial three questions approved by the OSC trigger a confirmation that an individual is a foreign national nonimmigrant who requires sponsorship (e.g. H-1B), an employer may request documentation relating to the individual’s H-1B eligibility without violating citizenship status discrimination provisions. They may wish to do so before making an offer, while other employers defer this analysis until after the offer and risk the scenario of having to rescind the offer.
While those in nonimmigrant status are not a protected class under citizenship discrimination provisions, an employer still needs to be careful about those in a protected class or engaging in national origin discrimination.
For example, OSC cautions against requesting certain documentation and engaging in citizenship discrimination against a protected class of individual. It writes:
“However, asking job applicants detailed questions about their immigration or citizenship status may deter individuals who are protected from citizenship discrimination, such as refugees and asylees, from applying due to a misunderstanding about their eligibility for the position. Therefore, we caution employers against asking detailed questions pertaining to status that may lead to such confusion.”
Again, while nonimmigrants are not a protected class under citizenship discrimination, national origin discrimination is still a concern. OSC confirms that “…all work-authorized individuals are protected from national origin discrimination under the antidiscrimination provision. Accordingly, individuals who believe that they were not hired based on national origin—for example, their country of origin, accent or appearance—may allege discrimination on this basis.”
III. No Really… How Should Employers Juggle These Considerations?
These can be slippery concepts and trying to forge a policy to cover every scenario can feel overwhelming. There are some simple steps to consider:
- Take a conservative approach and do not ask for any citizenship or immigration status information during the pre-employment process. This may require an offer to be rescinded if it turns out that an individual cannot be sponsored for nonimmigrant works status.
- Ask the three questions approved by OSC, but do not request any specific documentation relating to immigration history. Again, this may require an offer to be rescinded if it turns out that an individual cannot be sponsored for nonimmigrant works status. If the individual volunteers information about their nonimmigrant status or the initial three questions approved by the OSC trigger a confirmation that an individual is a foreign national nonimmigrant who requires sponsorship (e.g., H-1B), request documentation relating to the individual’s H-1B eligibility. While this would not violate citizenship discrimination provisions, be very careful not to trigger any national origin discrimination issues.
- In any case, do not request documentation verifying employment eligibility prior to extending an offer.
- In any case, be mindful about documented reasons for not hiring an individual.
- Always be consistent with whatever approach you take.
Mission Possible: Revamp and Reeducate for Prevention of Workplace Discrimination, Harassment and Retaliation
As States “reopen” and employees “return to work,” employers are presented with a fresh opportunity to revisit their pre-pandemic policies. McKinsey reported in the fall of 2020 that women, LGBTQ and people of color were more likely to report acute challenges in the pandemic. The Pew Research Center found that Black and Asian Americans reported increased discrimination during the COVID 19 pandemic. While employees return to the workplace it’s a great opportunity for employers to revamp, re-educate and revitalize their protocols to protect their workforce from discrimination and harassment.
Companies have long included workplace discrimination, harassment and retaliation prevention policies in their handbooks as a matter of practice. But now is the time to re-examine and update those policies. Some things to keep in mind:
- If your policy was created at the time your company was established, it may need updating. Make sure your policy lists all current protected categories covered under both federal and state laws.
- Policies should state that the law prohibits coworkers and third parties, as well as supervisors and managers, with whom the employee interacts from engaging in conduct prohibited by federal and state laws.
- Provide a complaint mechanism that does not require an employee to complain directly to his or her immediate supervisor. Consider designating a company representative, such as a human resources manager and/or an anonymous complaint hotline.
- Indicate that when the company receives allegations of misconduct, it will conduct a reasonable and appropriate, timely, and thorough investigation that provides all parties fair treatment and reaches objective conclusions based on the evidence collected, as well as appropriate remedial measures if misconduct is found.
- Make clear that employees will not be exposed to retaliation as a result of lodging a good faith complaint or participating in good faith in any workplace investigation. See Cal. Code Regs. tit. 2, § 11023 (b) (1)-(3) (2021).As employees return to the workplace, redistribute those workplace discrimination, harassment and retaliation prevention policies. It serves as a reminder to employees of what the company expects in terms conduct and reinforces to employees the company’s commitment to provide a workplace free of discrimination, harassment and retaliation. Also, companies should consider training supervisors and managers to build a culture of tolerance and cooperation. Encourage supervisors to report any complaints of misconduct to a designated company representative, such as a human resources manager, so the company can respond appropriately. Last, companies should consider whether they are prepared to handle a complaint. The time to ensure you have an appropriate investigation process is place is before you receive a complaint. When creating an investigation process, companies should consider implementing measures to ensure that complaints receive:
- An employer’s designation of confidentiality, to the extent possible;
- A timely response;
- Impartial and timely investigations by qualified personnel;
- Documentation and tracking for reasonable progress;
- Appropriate options for remedial actions and resolutions; and
- Timely closures.
Q: Can I ask job applicants if they have received the COVID-19 vaccine?
A: The short answer is yes, within limits. The Equal Employment Opportunity Commission’s guidance on vaccinations states that employers may lawfully mandate vaccinations, ask employees if they have been vaccinated and ask employees to provide proof of vaccination.
Employers are required under federal, state and local laws to provide a safe and healthy workplace for employees and patrons. Before deciding whether to ask applicants about their vaccination status, employers should first consider why an applicant’s vaccination status is relevant to the position or workplace. An employer’s focus should be on the health and safety of the workplace. Asking applicants about their vaccination status is appropriate if the employer has a mandatory vaccination policy that is job-related and consistent with business necessity.
While most California employers are currently not mandating vaccines for employees, such a mandate is generally lawful. This is because of the employers’ right to implement lawful workplace policies that protect the health and safety of employees and patrons. Accordingly, employers may require employees to get the COVID-19 vaccine so long as the employer does not infringe upon the protections afforded to employees under federal, state and local law.
If an employer adopts a mandatory vaccination policy, it may also ask job applicants about their vaccination status. The Equal Employment Opportunity Commission has clarified that asking employees if they have received the COVID-19 vaccine is not a disability-related inquiry under the Americans with Disabilities Act. Therefore, employers with mandatory vaccination policies may ask applicants whether they have been vaccinated but should refrain from asking any follow-up questions that are not job-related and that may reveal a disability.
Employers who require employees to be vaccinated should be clear about this requirement when recruiting and should inform applicants of the vaccine requirement as soon as possible. When posting the position, the employer should consider including in the job post that vaccination is a requirement of the job and that accommodations due to disability or religious reasons will be evaluated in compliance with the law. Employers should not require applicants to bring proof of vaccination to the job interview. The interview should be focused on the applicant’s qualifications for the position. Employers should wait until after an applicant is offered a job to request proof of a COVID-19 vaccination from the applicant.
Employers who extend an offer to an applicant conditioned on the applicant getting vaccinated may need to provide an accommodation if the applicant is unable to get vaccinated because of a disability or bona fide religious reason. Under the Equal Employment Opportunity Commission’s guidelines, an employer cannot require an employee to get vaccinated if the employee has a disability protected by the ADA that prevents the employee from getting vaccinated, or if the employee has a sincerely held religious belief, practice or observance protected by Title VII of the Civil Rights Act of 1964 that prohibits vaccinations. California’s Fair Employment and Housing Act also protects individuals from discrimination, harassment and retaliation based on religion and disability. The employer will need to conduct an individualized assessment to determine if the vaccination refusal is protected under the ADA, Title VII or the Fair Employment and Housing Act, and whether a reasonable accommodation can be made for the candidate.
“How is my hair? Does it look OK?”
With employees returning to onsite work, questions regarding employers’ grooming and dress code policies are bound to crop up. When responding, employers should be cognizant of the fact that their dress code and grooming policies must comply with expanding legal protections against discrimination based on race-based hairstyles.
Why is this important? A study1 conducted in 2019 by the CROWN Act Coalition found that 80% of Black women were more likely to agree that they had to change their hair from its natural state to fit in at the office. The study also found that Black women fear scrutiny and discrimination when expressing their natural beauty in the workplace, where they are 1.5 times more likely than other women to be sent home from the workplace because of their hair and 83% more likely to report being judged more harshly based on her physical appearance.
The results of the CROWN Act Coalition study made an impact. Recently, anti-hairstyle discrimination reform has increased at the federal, state and local levels. In March 2021, Congress reintroduced the Creating a Respectful and Open World for Natural Hair Act (CROWN Act)2. The CROWN act proposes to prohibit discrimination based on an individual’s style or texture of hair by including an individual’s style of hair in the definition of racial discrimination. This definition includes hair that is tightly coiled or tightly curled, locks, cornrows, twists, braids, Bantu knots, Afros and any other style of hair commonly associated with a race or national origin.
In the meantime, state governments have passed their own versions of the CROWN Act. These states include California, Colorado, Connecticut, Maryland, New York, New Jersey, Virginia, Washington and Delaware. Similar bills are pending in more than 20 additional states this year.
New York’s law, which took effect in July 2019, amended the Human Rights Law to define "race" for certain specific purposes to include but not be limited to “ancestry, color, ethnic group identification and ethnic background, and to include traits historically associated with race, including but not limited to hair texture and protective hairstyles”; and defines “protective hairstyles” to include but not be limited to, braids, locks and twists. New York City employers should also be aware that the New York City Commission on Human Rights issued a Legal Enforcement Guidance on Race Discrimination on the Basis of Hair, and specified in the guidance that the New York City Human Rights Law (NYCHRL) "protects the rights of New Yorkers to maintain natural hair or hairstyles that are closely associated with their racial, ethnic or cultural identities." Guidance on the NYCHRL version of the CROWN Act notes that employers are "assumed to know" the association between Black people and Black hairstyles. It protects both those with "natural hair," defined as “hair that is untreated by chemicals or heat or can be styled with or without extensions,” and “treated hair.” Other communities are also protected under NYCHRL, and guidance for this law notes that Sikh and Orthodox Jewish communities are examples of communities affected by discriminatory grooming policies and thus protected under this law.
It is important for employers to understand that hair discrimination can manifest in different ways. Examples of possible instances of hair discrimination include but are not limited to: grooming policies requiring employees to alter their hair to conform to the company's appearance standards, including having to straighten or relax hair (i.e., use chemicals or heat); refusing to hire applicants, or firing current employees, for wearing their hair the way it naturally grows or in a protective hairstyle; grooming policies that expressly prohibit hairstyles commonly associated with African Americans such as Bantu knots, braids, dreadlocks, tight coils or curls, cornrows, Afros, weaves, wigs, head wraps and headdresses of cultural or religious significance; forcing Black employees to obtain supervisory approval before changing hairstyles, but not imposing the same requirement on others; policies excluding Black employees with locks from customer-facing roles unless they change their hairstyles; and asking a Jewish employee to cut their payot (sidelocks or sideburns in Hebrew) or shave their beard.
Employers should carefully review their dress code and grooming policies to make sure they do not contain prohibitions that discriminate against a particular racial group. As best practice, pertinent policies should not contain outright prohibitions on specific hairstyles historically associated with race, such as dreadlocks, twists or braids. Employers should consider adding clarifying language to their current grooming policies, specifically in instances where employers require a “business-like” or “professional” appearance. As always, ensuring human resources professionals and supervisors are adequately informed of implicit bias in this area is vitally important. It helps “detangle” the process of enforcing a company’s dress code and grooming policy.
In addition to concerns for physical safety, Asian Americans are saying rising incidents of anti-Asian hate during the pandemic are having a lasting impact on their mental health, well-being and future careers.
‘Domino effect of discrimination’: Polling shows mental health and career impacts of anti-Asian hate
Some 42% of Asian Americans say experiencing racial discrimination has the biggest impact on their mental health, according to a survey of more than 2,000 people of all races, including 297 Asian Americans who experienced a hate incident. In the survey, conducted in April by Harris Poll on behalf of the educational campaign Girl Up, the same share of respondents said anti-Asian discrimination had the strongest impact on their career opportunities.
The survey data uncovers how discrimination, reports of which have increased during the pandemic but which occurs systemically, is impacting the livelihoods and futures of Asian American and Pacific Islander communities in America, says Tawny Saez, director and cultural anthropologist at Harris Poll. “It shows the domino effect of discrimination. It’s not a one-and-done event — it has long-lasting impacts.”
How anti-Asian hate is impacting mental health and well-being
Most often, Asian Americans from the Girl Up/Harris Poll survey say they experienced discrimination at work or in school, which they feel has consequences on their career opportunities or ability to move up at work.
Much research has been done about how Asian Americans are well represented in the workforce but remain the racial group least likely to be promoted into positions of leadership. This can be attributed to a host of cultural biases against Asian Americans, underrepresentation of AAPI leaders to mentor young professionals, inequitable hiring and promotion practices, and more.
According to the Girl Up/Harris Poll survey, 39% of Asian Americans say experiencing discrimination had a negative impact on their friendships, which could be critical to helping AAPIs feel supported at work and in school.
Negative impact on mental health, friendships and sense of self “creates an ecosystem of questioning yourself, which all impacts your mindset going into the workplace,” Saez says.
That Asian Americans say racism is impacting their mental health is concerning given the racial demographic is among the least likely to report mental health issues and seek out professional help. Advocates say improving mental health access is key, as is bridging the cultural gap in a meaningful way, such as providing information and services in a range of Asian languages and physically locating services within communities.
“Having respected community leaders and members speak out about mental health issues as role models will also go a long way in making it acceptable to seek help,” says Sia Nowrojee, the senior director of global community at Girl Up. “The good news is that people, particularly young activists, are beginning to break the silence around mental health, including on the impact of racism on mental health.”
The public is becoming more aware of anti-Asian hate and ways to intervene
Between February 2020 and March 2021, the national coalition Stop AAPI Hate documented more than 6,600 reports of hate incidents directed at AAPIs. The most frequent incidents involved verbal harassment (65%), shunning (18%), physical assaults (13%) and civil rights violations, such as workplace discrimination or refusal of service (10%). Incidents were overwhelmingly reported by women and occurred in a public place.
In some ways, increased reporting and public awareness are making more people take a stand against anti-Asian hate. Harris Poll data from May showed that 56% of respondents of all races acknowledged discrimination against AAPIs is rising in the U.S., an increase of 10 percentage points compared with polling done in February.
Many cited the Atlanta-area shootings in March, when six women of Asian descent were killed, as an event that made them become more aware of and empathetic to the issue, Saez says.
In response to the uptick in reported violence, survey respondents said they expect communities, governments and organizations to combat anti-Asian hate by providing education for communities where this is a common occurrence and providing more resources for the public to report AAPI discrimination and hate crimes.
Individuals can also do more by taking bystander training to learn how to intervene, de-escalate and provide support when incidents occur, Saez says.
The problem of focusing on racialized violence
But some say outsized focus on racialized violence glosses over the broader, systemic impacts of racism.
“The consequence of only covering violent attacks puts the focus on individual attackers and survivors rather than on structural racism and the systematic harm it does to Asians and other people of color, at so many different levels, from their health and inter-personal relationships to their access to justice and educational and economic opportunity,” says Nowrojee.
“For things to get better, we need people to understand that AAPI hate is not a discrete, Covid-related phenomena,” Nowrojee says. “It is a systemic issue that requires perpetrators of racism being held accountable, more leaders speaking out, and communities and institutions working together to recognize and challenge structural racism.”
If your business is found in violation of anti-discrimination legislations, be prepared for serious consequences in both the eyes of the law and the court of public opinion. The U.S. Equal Employment Opportunity Commission (EEOC) enforces these laws, and they investigate instances of discrimination at any stage of the employment life cycle. This includes the application/interview process as well as hiring, firing, and promotion decisions.
Laws to know include:
*applies only to businesses with 15+ employees
**applies only to businesses with 20+ employees