As most employers (hopefully) know, the Americans with Disabilities Act sets forth strict guidelines for when employers can require employees or applicants to undergo medical examinations or when they can ask questions that might reveal a disability. And the Genetic Information Nondiscrimination Act restricts what employers can ask about the applicant/employee’s family medical conditions. Getting this wrong can cost the employer, as a recent Equal Employment Opportunity Commission (the federal agency that enforces the ADA and other federal anti-discrimination laws) press release made clear. The EEOC gleefully announced that Dollar General agreed to settle an ADA and GINA lawsuit for $1,000,000 (!!!), based in part on illegal post-offer/pre-employment questions that were asked of applicants.Continue Reading An Applicant’s Family Medical History? Apparently, That’s the Million Dollar Question!
Once upon a time, employees in all states but Montana (always bucking the establishment!) were presumed to be employed at-will, absent some sort of employment agreement (e.g. individual contract for a term, a collective bargaining agreement, policies that contemplate termination for cause, etc.). That means that either the employer or the employee may terminate the employment relationship at any time, for any or even no reason (as long as it’s not illegal – like, say, discrimination or retaliation). And so our well-meaning but foolish Employer is terribly excited by that principle because they want to get rid of an Employee. But … as with all good fairy tales, there is a dark side.Continue Reading At-Will Employment Is a Fairy Tale…
Well I think we all recognize that Artificial Intelligence (AI) has created some seismic shifts in the way things can be done, including in the workplace (and I covered many of the risks and concerns of generative AI for employers in our June 2023 E-Update). Governments at all levels are taking action to try to put guardrails on the use of AI. And now, President Biden has signed an Executive Order on “Safe, Secure and Trustworthy Artificial Intelligence,” as summarized in a Fact Sheet. This is a wide-ranging EO, but one of the areas it specifically addresses is the impact on workers. Continue Reading What Impact Will President Biden’s AI Executive Order Have in the Workplace?
What on earth (or not) is a Lunar Sabbath, anyway? I’m sure that’s what was going through the employer’s mind when the employee requested a schedule adjustment so that she could observe her Sabbath, in a recent federal case that provides some lessons for employers on religious accommodations – an issue of particular interest following the Supreme Court’s overhaul of the religious accommodations standard earlier this year.Continue Reading Reasonable Accommodations for a Lunar Sabbath?
One of the most shocking moments in the recent Women’s World Cup came after the final, when the head of the Spanish soccer federation kissed one of the victorious Spanish players – first on the cheeks (ok – it’s European) but then on her lips (not ok without consent – European or not). In the locker room immediately afterwards, the player said “I didn’t like it.” And this moment highlights just how much further the women soccer players have to go in terms of achieving equity with their male counterparts – on the field and off. It also provides a reminder to employers generally that equity in the workplace encompasses many things. Continue Reading Lessons from the World Cup – Gender Equity Goes Far Beyond Pay
A few years back, during the initial surge of corporate diversity, equity and inclusion initiatives in response to the killing of George Floyd and the #BlackLivesMatter movement, I wrote a blog post that applauded corporations for focusing on the issue – but also cautioned them to avoid inadvertently violating anti-discrimination laws in their eagerness. Well, following the Supreme Court’s recent decision prohibiting the use of race in college admissions, my (somewhat prescient?) warnings have taken on new urgency. Continue Reading Hey CEOs – Be Careful with Those Diversity Initiatives!
Following my recent post on menstrual leave, I saw a New York Times article on “menopause-friendly workplaces.” Now that’s a term I had not seen before in my many years of practicing employment law. But apparently it’s a thing in Britain, and may be spreading to US companies.Continue Reading Menopause-Friendly Workplaces?
On May 18, 2023, the U.S. Equal Employment Opportunity Commission (EEOC) issued guidance on the use of software, algorithms, and artificial intelligence (AI) for employment decisions under Title VII of the Civil Rights Act of 1964. This guidance comes as part of the agency-wide initiative launched by the EEOC in 2021 to ensure that the use of software and other technologies used in hiring and other employment decisions (which the EEOC calls “selection procedures”) comply with federal civil rights laws. Continue Reading The EEOC Targets the Use of AI in Employment Decisions
Throughout the COVID-19 pandemic, the EEOC has provided guidance to employers on how the federal anti-discrimination laws interact with COVID-19. This guidance, What You Should Know About COVID-19 and the ADA, the Rehabilitation Act and Other EEO Laws, was revised multiple times to account for changing circumstances and, now with the declared end of the COVID-19 public health emergency, the EEOC has updated it once more. The revisions remind employers that, although the declared emergency may be over, COVID-19 still has a workplace impact that lingers on.Continue Reading Employers Beware: The End of the COVID-19 Emergency Does Not Mean The End of the EEOC’s COVID-19 Guidance
Way back in 2016, I wrote a blog post on menstrual leave, in which I suggested that menstrual leave (the concept of giving women up to 3 or so days of leave during THAT time of month) was not necessary for all women. Interestingly, this post struck a nerve and I received a number of hate emails about this post from people who suffer from extreme menstrual pain and WHO OBVIOUSLY DID NOT READ THE ENTIRE POST. Continue Reading Menstrual Leave Redux