A teleworking, transgender employee text messages his supervisor a request for an accommodation to practice Sikhism during work hours—this clearly is not your father’s workplace. With increasingly diverse workplaces and ever-changing technology, employers face more workplace challenges than ever before. This article discusses the top 8 employment law issues that employers should be on the lookout for in 2008.
1. Family Responsibilities Discrimination
With the increasing numbers of families having both parents in the workplace, there has been a rise in recent years of caregiver discrimination case filings. This type of discrimination is growing so fast, it has been dubbed "family responsibilities discrimination." Congress has not legislated protections for caregivers, so claimants rely on other statutes, such as the Americans with Disabilities Act (ADA), which prohibits discrimination against individuals based on their association with individuals with disabilities. In addition, claimants have relied on Title VII, the Equal Protection Clause of the Fourteenth Amendment, the Pregnancy Discrimination Act, the Equal Pay Act and the Family and Medical Leave Act.
For instance, some employees claim that they were denied leave or retaliated against for taking time off to handle caregiving of a child, which is covered by the federal Family and Medical Leave Act. Others bring claims alleging gender discrimination. Employers must be careful not to make assumptions or generalizations based on a particular employee’s caregiver status. The EEOC has recently provided guidance as to this issue and makes it clear that an employer’s “benevolent” stereotyping, such as assuming a mother would not want a promotion if it meant moving to another city, still has adverse effects and may be illegal under Title VII.
2. Re-employment of Returning Veterans
The Uniformed Services Employment and Reemployment Rights Act (USERRA) protects civilian job rights and benefits for veterans. USERRA covers virtually every individual who serves or has served in the uniformed services and applies to all employers in the public and private sectors.
Most significantly, USERRA protects a returning veteran’s right to reemployment. If an employee has been absent from a position of civilian employment because of service in the uniformed services, he or she will be eligible for reemployment. The returning veteran must be re-employed in the position he or she would held before leaving for duty or an equivalent position. This re-employment is required even if it results in a termination of a replacement worker. In order to ensure compliance with the law, inform all supervisors of the law and consider revising EEO statements to include "uniformed service members" as a protected class of workers.
3. Sexual Orientation Discrimination
Be sure to watch for a recently approved bill by the U.S. House of Representatives proposing broad federal protections against discrimination in the workplace for gay men, lesbians and bisexuals. The measure would make it illegal for employers to make decisions about hiring, firing, promoting or paying an employee based on sexual orientation.
Currently 19 states and Washington D.C. have laws barring discrimination based on sexual orientation. While the State of Florida has no current law barring discrimination based on sexual orientation, a bill has been introduced to prohibit discrimination based on sexual orientation. Further, several local governments within Florida offer protection for sexual orientation discrimination.
4. Updating Electronic Usage Policies
With ever-changing technology, there are several tools employees use to communicate during an average workday including email, instant messaging, blogging, and the use of PDAs. If your electronic usage policy only addresses the use of the internet and email, it is time for an update. For instance, an employer may be held liable if employees, under the guise of representing the employer, post certain types of content on their personal blog. Even if an employee is not authorized to make statements on an employer’s behalf, unauthorized employee communications can implicate both securities law and trade secret laws.
5. Electronic Storage Policies
Should you ever face an employment law suit, business email will likely be requested from the opposing party’s attorney. Accordingly, it is crucial to identify the difference between business-critical email that must be retained and nonessential email that can be purged from the system. Be sure to define a business email record and consistently apply formal retention rules, policies, procedures and schedules to same.
With the requirement to preserve electronic information and documentation upon reasonable notice that a suit may be filed, it is imperative that organizations regularly communicate with their Information Technology Department to ensure that document retention schedules are being followed when any notice of litigation is provided.
6. Workplace Bullying
An appeals court recently ruled in favor of female employees who sued their employer because their boss screamed, cursed, and shook his fist at them. The court decided the situation constituted sex discrimination because the women were affected more adversely than men. Bullying has been placed on the forefront of legislation with several states introducing legislation to combat this type of abusive conduct. If passed, these new laws will hold employers accountable for a hostile environment created by these workplace bullies.
While Florida does not have any anti-bullying statutes applicable in the workplace, last year the Florida House of Representatives passed a bill that proposed a prohibition on the bullying of students and employees at school, school events, and online; this year, a similar bill has been introduced in the Florida Senate.
7. Teleworking
As teleworking becomes more common, it is likely to become an issue in more employment litigation. Teleworking provides the potential for employment discrimination, especially from the standpoint of career development and promotions. For instance, employees who telework may find their careers derailed. Conversely, an employee could also raise the denial of a telework arrangement as evidence of discrimination. If you have a teleworking policy in effect, ensure that it is applied equally to all employees.
8. Religious Accommodation Discrimination
Title VII prohibits an employer to discriminate against any individual based on his or her religion. Religion is defined broadly to include all aspects religious observance and practice. An employer must reasonably accommodate an employee’s religious observance or practice unless it placed an undue hardship on the conduct of the employer’s business. What constitutes “reasonable accommodation” and “undue hardship” depends on the facts in a particular situation. Regardless of whether an accommodation is ultimately possible, the employer bears the burden of showing that a serious attempt was made.
Attempts at accommodations vary including a particular day off each year for a religious holiday, the wearing of a religious garb, or having a place to pray in the workplace. Employees seeking religious accommodations within the workplace are not entitled to their preferred choice, as long as the employer has reasonably accommodated an employee’s religious needs.
With increasingly diverse workplaces, supervisors should regularly be reminded of the requirement to accommodate an employee’s religious observance and practice.
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