September 18 Tip of the Week

Dress for Success

The patchwork of state and federal laws related to employment are seemingly endless and contain many nuances and potential pitfalls for employers.  One area where this is very evident is employment discrimination.  An employee, whether a disgruntled current employee or any angry former employee, can file a claim against an employer at any time and for almost any reason.  Although the Equal Employment Opportunity Commission’s statistics show that discrimination claims are down compared to past years, there seem to be more areas of protections for employees that can provide a basis for a claim. 

Traditional areas of discrimination include gender and race claims and these are still the most prevalent type of discrimination claims that are brought to the EEOC.  Age discrimination claims have held relatively steady over the last several years and disability discrimination claims are on the rise.  The types of claims that are brought by employees and former employees are often influenced by current events and regulatory activity.  And, often when efforts to pass stronger protections in the law fail, the enforcement agencies make an effort to expand existing protections through more aggressive enforcement activities. 

For example, with respect to disability discrimination, the United State Department of Justice has brought lawsuits in Arizona and Indiana alleging discrimination with respect to access to surgical care in Arizona and HIV discrimination in Indiana.  The Department of Justice has also taken steps to protect individuals who are found to have “opioid disorder” by issuing guidance on the protections available to these individuals under the Americans with Disabilities Act. 

Another example of an attempt to expand protections for individuals includes the recent passage of the CROWN Act in the House of Representatives.  The CROWN Act provides protection from employment discrimination against individuals on the basis of the texture or appearance of their hair.  While this law is not likely to pass in the United States Senate, it is indicative of the current climate.   The protections in the CROWN Act are an acknowledgement that adverse actions on the basis of hairstyles or hair texture are perceived to be a type of race discrimination by the EEOC and other state agencies.  Much like using a criminal record as a reason to deny someone employment has been deemed to be discriminatory on its face due to the increased number of underrepresented minorities who are imprisoned or have criminal records, decisions based on an individual’s hairstyle will be viewed as a type of employment discrimination. 

What does this mean for employers in general?  Beware of using terms like “professional appearance” or making decisions not to hire individuals because they have tattoos, wear hijabs, or demonstrate their beliefs through other types of clothing or attire.  When making employment related decisions about prospective employees or current employees, those decisions should be governed by objective and measurable standards that can be shown to be directly related to the employee’s position and responsibilities.  Using terms like “good fit” or “customer preference” is a clear recipe for disaster, as the EEOC and other enforcement agencies will view this as a pretext for discrimination. 

Although the law may be slow to change, the existing laws are broad enough to allow the EEOC and state human rights agencies to find fault with employer decisions and to impose penalties and other damages.  When in doubt about an employment decision that can lead to a claim, reach out to myHRcounsel and we can assist you in managing your risk.