I have a dream that one day this nation will rise up and live out the true meaning of its creed: “We hold these truths to be self-evident, that all men are created equal…I have a dream that my four little children will one day live in a nation where they will not be judged by the color of their skin but by the content of their character.”
Over 50 years ago, the Reverend Dr. Martin Luther King stood on the steps of the Lincoln Memorial and proclaimed these historic words. Shortly after that, the first civil rights legislation affecting the workplace, Title VII, was enacted, prohibiting employers from discriminating against individuals based on sex, race, color, national origin, and religion.
Since that time, much progress has been made and the US workplace has become increasingly diverse and more inclusive as women and minority workers have entered the workforce in record numbers. However, the amount of progress made in the past does not obviate the need for further progress in the future. Emerging challenges require new laws that provide employment protections for various groups that remain unprotected from discrimination. The end result should be even better diversity in the future and a step closer to Dr. King’s dream.
There are many different types of laws that promote and bolster diversity and tolerance in the workplace. An employer must make sure that it is aware of these laws and make sure that its policies and practices comply.
Equal Employment Opportunity Laws
Federal, state and local lawmakers continue to enact laws providing employment protections to new and emerging protected classes and expanding the chance that all individuals have for equal opportunities in the workplace. For example, laws prohibiting discrimination, harassment and retaliation against lesbian, gay, bisexual and transgender (LGBT) individuals, pregnant women, women who breastfeed, caregivers and victims of sexual assault, domestic violence and stalking are all popping up all over the country. Laws have also recently been enacted protecting interns and volunteers from workplace discrimination.
Reasonable Accommodation Laws
Employers should be aware of federal, state and municipal laws that require employers to provide reasonable workplace accommodations based on characteristics such as religion, disability and pregnancy. Such laws generally require an employer to provide a reasonable accommodation if doing so would not create an undue hardship. The laws also require employers to engage in the interactive process or a good faith discussion regarding the nature of the accommodation.
Accommodations may include scheduling changes; modifications to dress and grooming polices, temporary assignment and leave and time off, among other things. The Equal Employment Opportunity Commission (EEOC) has reinforced the importance of providing accommodations and recently provided guidance on accommodations for pregnant individuals, individuals of Muslim and Middle Eastern descent, and individuals living with HIV infection.
Ban the Box Laws
Ban the box laws generally prohibit prospective employers from requiring applicants to disclose or check a box on an application indicating they have a criminal record and make it illegal for employers to inquire about this until the interview stage or until a conditional job offer has been made. This provides qualified and rehabilitated candidates with a legitimate chance to be considered for employment and showcase their skills and qualifications before disclosing their criminal history.
Ban the box laws also may reduce the chance of disparate impact discrimination against minority applicants. Just this past year, President Obama issued an Executive Order demanding that all federal agencies stop asking prospective employees about their criminal record. Almost 20 states and the District of Columbia (as well as a significant number of municipalities) have now banned the box for public employers. Currently 7 states have ban the box laws applying to the private sector and additional measures are under consideration for 2016.
Veterans’ Preference Laws
While military veterans are often talented workers with strong work ethics and valuable skills, it is very common for them to have trouble finding jobs or to have disabilities which may prevent them from finding employment.
Though veterans’ preference laws have existed on the federal level for almost half a century, recently, a number of states have enacted veterans’ preference laws permitting private employers to show a preference for hiring, promoting or retaining a veteran or a veteran’s spouse over another qualified applicant or employee. Most of the laws require such policies to be in writing and applied uniformly. The laws explicitly state that providing hiring preferences to a veteran under such a policy will not be a violation of state or local equal employment opportunity laws.
Equal Pay Laws
Under the federal Equal Pay Act (EPA) as well as state and local fair pay acts, men and women are required to receive equal pay for equal work unless the differential is based on a seniority system, merit system, a system measuring earnings by quality or quantity of production or if wages ware based on a bona fide factor other than sex (i.e. education, training or experience). Generally, the jobs do not have to be identical, but need to be substantially equal in terms of skill, effort and job responsibility, and performed under similar working conditions. Pay refers to not only salary, but also overtime, bonuses, vacation and holiday pay, stock options, life insurance and all other benefits and compensation of any kind paid to employees.
In recent years, some equal pay laws have been strengthened and ban an employer from prohibiting an employee from disclosing, discussing or inquiring about their own wages or the wages of another employee, or discriminating or retaliating against them for engaging in such conduct.
Laws Addressing Work/Life Balance
Legislation addressing work/life balance and allowing employees the opportunity to care for themselves and their families is a recent trend. Laws on the federal, state and local level may require employers to provide employees with leave for a variety of reasons such as paid sick leave, family and medical leave, parental and caregiver leave, bereavement leave, school activities/conferences leave, emergency responder leave, jury duty leave and domestic violence leave.
Further, some jurisdictions such as Vermont and San Francisco provide workers with the right to request flexible work arrangements such as changes in the number of days or hours worked, changes in arrival or departure time, working, or job sharing. Such laws also prohibit employers from discriminating or retaliating against employees for requesting such arrangements.
We invite you to share the steps your own workplace has taken to increase diversity.
Also, join XpertHR for a webinar on diversity in the workplace at 2 pm on February 20, 2016.