Today is Tuesday, October 30th, 2018, marking less than a full calendar week until the polls open across the country for the 2018 elections.  (This, of course, doesn’t include the many states that offer some form of early voting.)  And while “midterm” elections such as this year’s have historically seen lower turnout, a mix of polling, analysis, and reporting suggests that the November 6th election will see particularly strong voter interest.

This is all very interesting, you may be saying to yourself, but what on earth does it have to do with employment discrimination?  Simple!

A majority of states have some form of laws that require employers to provide employees with time off for voting.  In these states, employers are frequently prohibited from taking adverse action or retaliating against employees who exercise their right to take voting leave, with significant penalties for noncompliance.

Just check out this map from Business Insider to get a sense of how prevalent employee state voting leave laws are (disclaimer: do not rely solely on the descriptions from the Business Insider article to assess compliance with state voting leave laws; at minimum, you’ve got to actually read the applicable laws, of course!).

There is no federal law providing voting leave, and state voting leave laws often vary in their scope and terms.  In addressing workplace policies and practices as it concerns state voting leave laws, some questions that typically come up are:  is the leave paid or unpaid?  How much time off must employees be given to vote?  Can employers verify that employees who take voting leave have, in fact, voted?  How much notice must employees provide of the intent to use voting leave?  To what election(s) do voting leave requirements apply?  Is there an exception for small businesses?  Can the employer designate times for employees to take off?  Can employees be required to request absentee or vote by mail ballots in lieu of taking voting leave?  Etc.

With Election Day quickly approaching, employers should review the applicable laws on voting leave in their state(s) of operation, in order to facilitate proper planning and legal compliance.

When I get asked about non-discrimination and harassment prevention in the workplace, a significant proportion of these questions focus on race discrimination and sexual harassment.  Still, employers should be mindful of other protected characteristics under federal and state law, even if charges and lawsuits on those bases are, statistically speaking, less frequent than others.

While EEOC data show that charges alleging religious discrimination and harassment in the workplace constituted only 4% of charges received in fiscal year 2017, religious discrimination and harassment are prohibited by Title VII and pose significant liability risks to employers.  A lawsuit filed recently in federal court in Florida highlights this point.

Christine Choo-Yick was an employee of the US Customs and Immigration Enforcement agency within the federal Department of Homeland Security.  Ms. Choo-Yick is a person of Muslim faith.  While she also alleged sexual harassment, the allegations in her complaint primarily focus on harassment directed at her in the workplace on the basis of her religion:

8. [ . . . ] b.  Many of the Plaintiff’s co-workers have made derogatory and unethical comments about the Plaintiff’s faith and/or race.

c.  During the week of September 4, 2017, Officer Sean Stephens laughed at and criticized the Plaintiff for wearing a Hijab Muslim hair scarf.  He further stated, “what is that you have on your head,” while humiliating the Plaintiff with boisterous laughter.

d.  On or around October 10, 2017, a visiting employee called the Plaintiff a “Hijabist” and a “terrorist.”

e.  On or around November 2, 2017, a co-worker stated that the Plaintiff was a member of ISIS.

Needless to say, these alleged comments are abhorrent.  However, evidence suggests incidents like this are becoming more frequent.  A wide-ranging 2017 study by the Pew Research Center that found incidents of anti-Muslim discrimination in America are on the rise, with 48% of U.S. Muslims saying they were subject to at least one discriminatory incident based on their religion within the previous year.  In the same study, an estimated 75% of U.S. Muslims agreed that there is “a lot of discrimination against Muslims in the United States.”

Apart from the obvious issues of religious discrimination and harassment, comments of this type in the workplace may also implicate discrimination or harassment on the basis of race, color, and/or national origin under Title VII, depending on the facts.  Indeed, the potential for these issues to be intertwined prompted the EEOC to publish a reminder of employers’ obligations to prevent discrimination and harassment on each of these bases in the wake of the September 11th attacks.

The bottom line for employers: discrimination or harassment on the basis of religion is prohibited.  Period, full stop.  Employers’ policies, practices, and non-discrimination and harassment prevention trainings should be careful not to neglect this point.

Here at our Employment Discrimination blog, we’ve written about the intensifying focus on workplace sexual harassment, in light of the #MeToo movement, at the federal agency level.  Laws addressing workplace sexual harassment, however, aren’t the exclusive province of the federal government.

Indeed, state and local governments have been quite active in addressing sexual harassment in employment.  The Minnesota Legislature, for example, is considering an amendment to the definition of sexual harassment to expand liability for harassment.  New York State has also passed sweeping changes to state law, while New York City has passed a law requiring employers with 15 or more employees to provide annual sexual harassment prevention training.

Delaware has now joined the growing list of states and local taking action on this front.  A recently enacted law requires (among other items) certain employers to to provide mandatory, interactive sexual harassment prevention training every years–including additional training for supervisors.

Our Fox Rothschild colleagues Steven Ludwig and Chaney Hall have written a new Alert detailing the requirements of the Delaware law; check it out to learn more!

 

In one of his final acts in office, New Jersey Governor Chris Christie signed legislation to prohibit discrimination against breastfeeding employees.  The bill, which was introduced by Democratic legislators and passed both houses of the Legislature unanimously, amends the New Jersey Law Against Discrimination and takes immediate effect.  New Jersey employers should expect this law to affect their workplace in at least two ways.

First, the law amends the NJLAD’s enumeration of protected classes, adding the words “or breastfeeding” after “pregnancy” as a protected basis in employment.  In other words, an employee’s status as a breastfeeding employee joins the ranks of protected characteristics that employers may not consider in taking adverse actions against employees and applicants.  Moreover, the law provides for a broad definition, defining “breastfeeding” as including “breast feeding or expressing milk for breastfeeding . . . or medical conditions related to . . . breastfeeding.”

Second, the law requires employers to provide employees who are breastfeeding an infant child with a reasonable accommodation, which “shall include reasonable break time each day to the employee and a suitable room or other location with privacy, other than a toilet stall, in close proximity to the work area for the employee to express breast milk.”  The employer is not required to provide this specific accommodation if the employer can demonstrate that this accommodation would cause an undue hardship, and the hardship analysis requires consideration of the following factors:

[T]he overall size of the employer’s business with respect to the number of employees, number and type of facilities, and size of budget; the type of the employer’s operations, including the composition and structure of the employer’s workforce; the nature and cost of the accommodation needed, taking into consideration the availability of tax credits, tax deductions, and outside funding; and the extent to which the accommodation would involve waiver of an essential requirement of a job as opposed to a tangential or non-business 
necessity requirement.

Note, though, that it is the employer’s obligation to establish that an undue hardship exists.  And, the employer must establish an undue burden, in light of these specific factors.  It is not enough to just conclude accommodations would be burdensome without examining these specific factors.

In light of the change in the law, employers should consider whether their workplace policies, HR/accommodation request processes, and facilities are up-to-date with the newly enacted law.