Discrimination

Subscribe to Discrimination

Artificial intelligence (AI) promises new efficiencies in making employment decisions: instead of human eyes having to review stacks of resumes, an algorithm-based selection process aids in making a “rough cut” based on objectively desirable characteristics. This ought to reduce the opportunity for human bias—read “discrimination”—to enter into the process. For the same reason, an employer’s use AI to identify candidates based purely on objective standards minimizes a candidate’s ability to allege that the decision considered any protected status such as their race, religion or national origin—in theory, at least.

Regulators have asked a legitimate question, however: what if the AI algorithm looks for characteristics that disproportionally, even if unintentionally, impact one kind of legally-protected status more than some other class? Consider this example: during a Zoom interview, AI reads facial expressions to capture information about mood, personality traits, and even honesty. (Yes, this is a thing.) What if an applicant has limited facial movement because of a stroke? Would that potentially impact AI’s assessment of a candidate’s “mood”?  (Hint: yes, it would.)…

Continue Reading EEOC Guidance Tackles AI and Other Advanced Technologies in Employment Decision Making

New York City is poised to become the largest city in the nation to ban discrimination on the basis of a person’s height or weight.

Earlier this month, the New York City Council passed Bill INT 0209, new legislation that would add “height” and “weight” to the list of classes protected under the New York City Human Rights Law. If the mayor signs or takes no action, the bill becomes law and will take effect 180 days thereafter.

Currently, there are a number of jurisdictions with similar laws banning height and weight discrimination, including Michigan state, Washington State, Washington D.C., San Francisco and a handful of other smaller jurisdictions.  Potentially marking a trend, lawmakers in New York State, New Jersey, and Massachusetts have also eyed similar legislation.  

Here’s what New York City employers need to know about this likely new law:

  1. The law would not apply when the employer’s action is required by federal, state, or local law or regulation.
  2. The law empowers the NYC Commission on Human Rights to establish jobs or categories of jobs for which (a) a person’s height or weight could prevent the performance of the essential requisites of the job, and (b) the Commission has not found an alternative action an employer could reasonably take to allow the person to perform those requisites. Similarly, the Commission may identify jobs or categories of jobs for which consideration of height and weight is reasonably necessary for the execution of the normal operations of the jobs.
  3. Finally, the law offers employers an affirmative defense. Employers may consider height and weight if they can demonstrate that these characteristics are essential qualifications for performing the job.

What should employers do to prepare?…

Continue Reading Height and Weight Set to Become Protected Classes in New York City

2023 is in full swing. While everyone is abuzz about ChatGPT taking over the world, a newly divided Congress is finding its sea legs and state capitols are eyeing new regulations. Agencies and courts have taken up hot-button labor and employment matters, from noncompetes to biometric privacy. And not to be left out, the NLRB and the FTC have taken aim at employment contracts and severance agreements.

What will this all mean for employers? There are challenges for sure, but with planning they are manageable. We take a look at the top trends that will shape labor and employment law in the months to come.

DISCRIMINATION AND EEO ISSUES

More enforcement

Given trends from last year and public messaging from top enforcers, we anticipate an increase in harassment and discrimination litigation, particularly for class-based claims.

In its recently released 2022 Financial Report, the EEO signaled its plan to strengthen enforcement around systemic discrimination. The Agency heralded several victories including obtaining $29.7 million in monetary benefits for victims and collecting over $28 million in damages from 10 lawsuits asserting systemic discrimination last year. Enforcers also recovered a combined $403 million from the Agency’s top 10 settlements of 2022 (nearly doubling rates from the previous year). Highlights include an $18 million settlement with Activision Blizzard over sexual harassment and pregnancy-bias claims and $8 million from Circle K stores over disability and pregnancy discrimination issues.

Even more, the EEOC’s enforcement hike has considerable support from the White House. The President’s proposed budget requests $481 million for the EEOC – a 5.7% increase over its 2023 allocations. While this money is unlikely to materialize in full, it does underscore the growing political support for anti-discrimination and harassment enforcement.…

Continue Reading Employment Laws Shaping 2023

Join Kelley Drye’s Labor and Employment team for the 2022 WORKing Lunch Series, which includes five webinars focused on the latest trends and developments in workplace law. Sign up for one, some, or all of the programs below. Invite a colleague, grab your lunch and let’s take a deep dive into these timely employment topics.

Tuesday, September 13, 2022 at 12:30pm ET
Pay Equity & Transparency: Rising Workplace Trends

New York, which has over 9.3 million workers and counting, will soon join other jurisdictions in a growing trend of state and local pay transparency requirements for employers across the country. Currently there are 17 states (and numerous cities) that have laws requiring pay transparency and/or prohibit salary inquiries by current/prospective employers. Additionally, the recent focus on pay equity laws, both state and federal, has served as a catalyst for increased scrutiny by government agencies and resulted in an uptick in related class action lawsuits in recent years.  While transparency is generally a virtue, compliance with the ever-evolving pay transparency and pay equity laws across multiple jurisdictions can create a quagmire of issues in attracting and retaining talent—not to mention the HR and legal landmines.

This webinar will cover:

  • New pay transparency laws
  • Review of pay equity and salary history ban laws
  • Insights on compliance
  • Practical implications for talent acquisition and retention

…
Continue Reading Complimentary L&E Webinar Series

Concerning the ongoing assault on mandatory arbitration agreements, we recently blogged about the passage of the Ending Forced Arbitration of Sexual Assault and Sexual Harassment Act (P.L. 117-89), colloquially the “MeToo” law. The MeToo law formally amended the Federal Arbitration Act (“FAA”) to ban mandatory arbitration agreements for sexual assault and harassment claims. The MeToo law is “partially” retroactive: it bars mandatory arbitration of sexual harassment claims arising from conduct that occurred after the law went into effect, but not of claims where the alleged conduct occurred before the law’s passage.

On March 17, 2022, a mere two weeks after the MeToo Law’s passage, the U.S. House voted to advance the Forced Arbitration Injustice Repeal, or FAIR Act (H.R. 963), a bill which could effectively void all pre-dispute mandatory arbitration agreements in employment, antitrust, consumer and civil rights disputes as well prohibit waivers of joint, class, or collective action in such matters. So from an employment perspective, the FAIR Act, if enacted, would go far beyond the MeToo law’s prohibition against arbitration of sexual harassment claims—it would bar mandatory arbitration of all employment-related claims.
Continue Reading The FAIR Act: A New Bill Banning Mandatory Arbitration Agreements

President Biden just signed into law the “Ending Forced Arbitration of Sexual Assault and Sexual Harassment Act of 2021,” known informally as the “Me Too” law. It becomes effective immediately, and amends the Federal Arbitration Act (FAA) to ban the mandatory arbitration of sexual assault and harassment claims.

What does the new law mean for the future of employment arbitration? Can employers still have any type of a mandatory arbitration program? The answers to these questions are not immediately obvious, but you can be assured that the Me Too Bill will make harassment claims more expensive and more complicated to resolve. It is also not a surety that the end of arbitration will be good for victims or potential plaintiffs.

What the law will mean for your business will depend on a number of factors, including where you are doing business (as mandatory arbitration is already prohibited in some states), and whether your company had a mandatory arbitration program in place for customers or employees. However, all businesses may see an uptick in harassment claims, as that often happens whenever there is a very public legal development in this area.

What does the Me Too law say?

The main provision of the law is short enough to reproduce here:

“[A]t the election of the person alleging conduct constituting a sexual harassment dispute or sexual assault dispute, or the named representative of a class or in a collective action alleging such conduct, no predispose arbitration agreement or predispose joint-action waiver shall be valid or enforceable with respect to a case which is filed under Federal, Tribal, or State law and relates to the sexual assault dispute or the sexual harassment dispute.”

The terms “sexual assault dispute” and “sexual harassment dispute” are not confined to federal claims, but is any such claim as defined according to “applicable Federal, Tribal, or State law.”…
Continue Reading The End of Arbitration? What the “Me Too” Law Means for the Future of Employment Arbitration

The start of a new year is the time for annual retrospectives, predictions, and promises to get back into the gym. Although we can’t help with that last one, we wanted to take this opportunity to offer our own analysis on the state of employment law in 2021, and to see if we can predict the hot-button issues for the rest of 2022.

COVID Concerns

For now, the headline issue remains COVID. 2021 had seemed to offer a glimmer of hope that the pandemic was coming to an end, only for those hopes to be dashed by the virulent Delta and Omicron variants. Big cities like New York implemented sweeping vaccine mandates for businesses and customers, while some states and even the federal government issued more targeted mandates for healthcare workers and contractors. Earlier this year, we saw the Supreme Court issue two seemingly divergent rulings on vaccine mandates, eliminating President Biden’s requirement for employers with 100+ employees to mandate vaccination or masking for those in the workplace. Meanwhile, a New York judge in Nassau County struck down the state’s masking requirement for public spaces (the order is currently stayed pending appeal).

Employers are left with a hodgepodge of COVID-related rules and regulations depending on where they and their workers reside. New laws and lawsuits are inevitable, but they only amplify the collective wish for the pandemic to be extinguished—here’s hoping.

Restrictive Covenants

The onset of COVID-19 ushered in the remote-work revolution. But this phenomenon, coupled with the so-called “great resignation” has led to employers confronting some novel legal issues. When seeking to enforce a restrictive covenant against a former worker, which law applies? The question was a simpler one in the Before Times—back when it was obvious that the worker lived and worked in the same state as the employer. But now, a vague restrictive covenant might no longer apply to an employee who made a big move.

Even after confronting choice-of-law issues, expect to see more arguments over what restrictions are now viable in a world where an employee can work remotely for a competitor across the country just as easily as your competitor down the block.

Of course, these are just the issues exacerbated by the pandemic. As ever, restrictive covenants remain a thorny issue and fodder for frequent legislation. For instance, Oregon has passed a law making any restrictive covenant lasting for more than a year to be unenforceable. Expect a lot of activity in this area throughout 2022.
Continue Reading Top 5 Employment Law Trends for 2022

UPDATE: December 17, 2021

In a move that comes as no surprise, the EEOC has updated its COVID-19 technical assistance to provide guidance on when COVID-19 may be considered a “disability” under the ADA, making specific reference to the DOJ/HHS guidance discussed in the original blog below. The EEOC’s technical assistance focuses “more broadly on COVID-19” beyond just “long COVID,” and does so “in the context of Title I of the ADA and section 501 of the Rehabilitation Act, which cover employment.” However, the EEOC’s guidance clearly echoes the DOH/HHS guidance and states that long COVID or sustained symptoms of COVID may be a “disability” under the law.

In many states, long COVID could also qualify as a disability under state laws. So, employers should be ready for more claims into the future, even when the pandemic (finally) ends – from employees who suffer symptoms of COVID as a chronic illness.

THE GUIDANCE

What is Long COVID and when is it a disability?

The EEOC has reemphasized that determining whether COVID may be considered a “disability” under the law is a fact-intensive question, requiring an analysis of the extent to which COVID’s symptoms, its long-term effects, or the manner in which it exacerbated the symptoms of another condition “substantially limit a major life activity,” as discussed in the original blog below. This means that an individual suffering, even intermittently, from certain symptoms relating to long COVID can be considered to be “disabled” under the law.

The EEOC provides several examples of these impairments, including: “brain fog” and difficulty remembering or concentrating; substantially limited respiratory function; chest pains; or intestinal pain.

Importantly, the EEOC distinguishes these “substantially limiting” conditions from less-serious symptoms, such as “congestion, sore throat, fever, headaches, and/or gastrointestinal discomfort, which resolve within several weeks,” which would not create a “disability.” But make no mistake: even these relatively insignificant symptoms may constitute a disability if they last or are expected to last for a significant period of time (i.e. more than six months).…

Continue Reading UPDATE ON COVID CONSIDERATIONS: Long COVID Now an ADA Disability

Do you have 100 or more employees? Are you a federal government contractor? A healthcare provider? A large entertainment venue? If the answer to any of these questions is yes—and as you’ve already probably heard—President Biden has instructed the Occupational Health and Safety Administration (OSHA) to exercise its rulemaking authority to require all such employers to either mandate COVID-19 vaccination or to require weekly COVID-19 testing. You should review your current COVID-19 policies and President Biden’s COVID-19 Action Plan, particularly the new executive orders and mandates announced this past week, which cover about 100 million Americans, or two-thirds of the U.S. workforce.

For the moment, covered employers have to sit tight: Biden’s announcement last week was simply that OSHA will issue the new vaccination rule “in the coming weeks.” We will continue to update this blog on the many complicated issues arising from the anticipated OSHA rules, including how to comply with the rule when various Republican state governors and right-leaning interest groups have already promised litigation to challenge the rule from the moment the rule is implemented.

For now, however, here are the key takeaways for employers:

  • Employers (100+ Employees): OSHA is developing a rule that will require all employers with 100 or more employees to ensure their workforce is fully vaccinated or to require any workers who remain unvaccinated to produce a negative test result on at least a weekly basis before coming to work. Given the practical challenges with implementing weekly testing, many employers may simply mandate vaccination to comply with this new rule—and many already have. What happens if they don’t? This requirement is to carry substantial fines to be enforced by OSHA. In addition to the mandate, OSHA is developing a rule that will require employers with 100+ employees to provide PTO for the time it takes workers to get vaccinated and to recover.  
  • Federal Workers & Contractors: The President also signed an Executive Order (EO) to require all federal executive branch workers and contractors that do business with the federal government to be vaccinated. This EO eliminates the exception to the July vaccination mandate for federal employees and contractors that allowed them to opt out if they wore masks, socially distanced, and were tested for COVID-19 at least weekly. 

…
Continue Reading Vaccinating the Unvaccinated: Employers Take Heed

On August 24, 2021, Kathy Hochul was sworn in as the first female governor of New York, assuming office in the wake of the resignation of Andrew Cuomo. The former Governor, a once-powerhouse politician with a decade in the executive office, departed Albany in disgrace.

Cuomo did not leave office alone—at least four former senior aides and state officials have also resigned, as well as several prominent supporters who found themselves caught up in the scandal created by his conduct. That number does not include those who left their positions due to the harassment they allege to have faced. Hochul must now rebuild from the rubble left behind by her predecessor, as the leadership team in the executive branch, as well as those of prominent organizations throughout New York, have been left in disarray.

The allegations against Cuomo are voluminous, and range in severity from his usage of “pet names” to his inappropriate touching of female subordinates. The report concluded that beyond the Governor himself, “the Executive Chamber’s culture” was “filled with fear and intimidation, while at the same time normalize[ed] the Governor’s frequent flirtations and gender-based comments[.]”

Cuomo’s downfall was shocking on one level, as he was long seen (or wanted to be seen) as a champion of women’s rights. In fact, on August 12, 2019, he signed groundbreaking legislation establishing some of the strongest anti-harassment legislation in the country. However, it may not have shocked many who knew him, as the report commissioned by Attorney General Letitia James’ detailed years of questionable behavior and cover-ups by those around Cuomo.
Continue Reading Lessons From a Former Governor