“Employers can give a sigh of relief – or can they?   We have clear confirmation now … that obesity itself is not a protected characteristic.”

Yesterday we published a post Alert about the landmark decision which came down yesterday from the European Court of Justice, with the Court holding that “obese people can be considered as disabled, but stopped short of saying that obesity was a condition that needed specific protection under European anti-discrimination laws.”

Our takeaway yesterday was something short of decisive:  “Let’s take a few days to try and absorb and understand this landmark ruling and it’s impact on US law.”

We now have an instantaneous analysis from employment law experts in the UK —  at least about the impact on UK law.

The bolded quote above begins a very informative piece about the decision and its impact by veteran UK employment lawyers Rachel Crasnow and Sarah Fraser Butlin, published by Michael Rubenstein Publishing.

UK law : British style judge wearing a wig Isolated on white

Although obesity may not be a protected characteristic, attorneys Crasnow and  Fraser Butlin say nonetheless that “the impairments which result from an overweight employee could give rise to a disability.  In a sense that’s not a very surprising outcome: obesity that means the person cannot fully participate in professional life makes sense as constituting a disability. The interesting bit of the judgment relates to whether a person can do something to ameliorate the effects of the impairment.”

Link:  http://blog.rubensteinpublishing.com/obesity-and-disability-following-kaltoft-by-rachel-crasnow-and-sarah-fraser-butlin/?utm_source=feedburner&utm_medium=email&utm_campaign=Feed%3A+MichaelRubenstein+%28Michael+Rubenstein+Presents…%29


We are punting a little bit, but perhaps this piece is a good starting point for our discussion of US law.


On May 23rd we wrote: “Add Jacksonville, Florida to the growing number of municipalities which are considering or passing laws which would add sexual orientation, gender identity or expression to the list of protected classes of employees.”   We made that bold statement because the Jacksonville City Council had conducted a hearing on the bill which would have amended the current law, which prohibits employers from discriminating based on race, religion, age, disability and marital status, to add the words "sexual orientation, gender identity or expression."


Well, we were a little premature in our prediction.  News4Jax.com has just reported that the City Council voted 17-2 against this bill.  Moreover, even when the words “gender identity or expression" were deleted from the bill, so that the bill would only protect “sexual orientation,” the Council still voted it down 10-9.


This is the first time in awhile that we are aware of such a bill to protect gays and lesbians being voted down.  Such laws are “a national trend,” said University of Utah law professor Clifford Rosky. 
Indeed, as we reported on August 5th, business groups even in "red states" are concerned that their communities will be left behind in recruiting and commerce if they lack such protection, and noted that Idaho plans to “pay very close attention” to whether commerce or recruitment are affected by the lack of protection for sexual orientation.   


Moreover, yesterday we blogged that 477 of the 2012 FORTUNE 500 Companies “voluntarily include sexual orientation in their employment non-discrimination policies.”


Add Jacksonville, Florida to those communities that are bucking the national trend.




The EEOC conducted a public meeting this past week and voted 4-1 to approve its proposed guidance which deals with the use by employers of arrest and conviction records in background checks used for hiring. We reported last week that EEOC Commissioner Lipnic had stated that this was a key upcoming agenda item for the EEOC. Commissioner Constance S. Barker was the lone dissenter.

The guidance is not all that easy to understand, much less comply with, so we will give a capsule summary and until we can digest it further and until there are some court cases which interpret it, we will sheepishly provide you with links to the appropriate EEOC web sites and let them help you figure it out.

The EEOC press release referred those concerned to its Enforcement Guidance and a Question-and-Answer (Q&A) document, These web sites also set forth the EEOC’s suggested “best practices.” The materials used at the public meetings, including testimony and transcripts, are available at http://eeoc.gov/eeoc/meetings/index.cfm.

Title VII prohibits discrimination in employment based on protected classes such as race, color, national origin, religion, or sex. There is nothing in Title VII that deals with people with a criminal history being in a protected class. That is, it does not bar employers from asking job applicants or employees about arrests, convictions or incarceration.

However, we know that discrimination comes in two flavors – it may be intentional, or it may involve an employment practice or policy which may have a “disparate impact” upon members of a protected class. In the case of criminal background checks, the EEOC is sensitive to the “disparate impact” which criminal background checks (as well as, for example, credit screening), may have on protected classes, and therefore may violate Title VII. This is not a new issues; the EEOC has been wrestling with this issue since at least as far back as 1987

Basically, the approved guidance prohibits the use of criminal record information unless it is “job related” and “consistent with a business necessity defense.” What does this mean? And how will this impact employment practices? And will this put an undue burden on employers?

EEOC Chairwoman Jacqueline A. Berrien has stated that “The new guidance clarifies and updates the EEOC’s longstanding policy concerning the use of arrest and conviction records in employment, which will assist job seekers, employees, employers, and many other agency stakeholders.”

But dissenting Commissioner Barker claims that the impact on employers will be grave: "If I were a business owner, I would never again conduct another criminal background check on a potential employee unless I was required to under federal law. Why should they? The guidance tells them they are taking a tremendous risk if they do."  The U.S. Chamber of Commerce agrees.

After reviewing these websites, please inundate us with your questions and confusion.


You may be forgiven if you thought that a hostile work environment was only created when an employee who was the target of racial, ethnic or gender slurs was a member of the race, ethnicity or gender that the slurs were directed at, i.e., a member of that particular "protected class."   

However, expanding the scope of  the New Jersey state anti-discrimination statute a New Jersey court has just ruled that employees who are not even members of the class that the law was designed to protect may sue; in this case, the court held that you don’t have to be Jewish to claim a hostile workplace if you are allegedly subjected to anti-semitic comments.     


Stacy Jones and Ben Horowitz who write for The Newark Star-Ledger report in The Washington Post that a former non-Jewish truck driver sued after having allegedly been subjected to slurs from his supervisors such as “only a Jew would argue over his hours” and “if you were a German, we would burn you in the oven.” (One allegedly offending supervisor would only concede that he merely said things to the plaintiff like “Jew money” and “bagel meister,” and used “Hava Nagila” as the plaintiff’s ring tone for his cell phone).   


In holding that the plaintiff had a right to bring the lawsuit (without ruling on the merits), the court said that the issue was whether under the state employment discrimination statute the plaintiff could prove that the discrimination “would not have occurred but for the perception that he was Jewish.”  Put another way, the court stated that the issue was the effect that the anti-semitic comments allegedly made would have on “a reasonable Jew,” rather than on a person of plaintiff’s German-Irish and Lutheran background. 


Who knew?


Everyone loves lists. Although not everything is reducible to a simple list, nonetheless lists are reader aids and checklists — they are usually short and easy to read and digest, and, perhaps more importantly, easy to cut out and paste on the refrigerator (or lunchroom bulletin board).

Here is the first five of our list of ten tips to lower your risk of being sued for employment discrimination. We may decide to add more tips, which will lengthen the list. (Is a list with 15 or 20 tips useful?).

1.         Know the rudiments of anti-discrimination law, both federal law and the laws of your jurisdiction (which can be significantly different). You do not need to be a lawyer (or even play one on TV), but at least be familiar with what a “protected category” is, what you can and cannot ask in a hiring interview, what constitutes workplace harassment, what retaliation and “adverse action” mean, and what steps to take if an employee complains of discrimination. And keep your employment attorney’s number handy, for these are only a few examples of what your organization needs to know.

2.         Make it known to your employees that you have a zero-tolerance anti-discrimination and anti-harassment policy in your company, which you will enforce fairly and consistently. And be serious about it. Such dictates from above are very important when it comes to this.

3.         If you are a big enough company, hire a knowledgeable and experienced HR person, or general counsel, and don’t be stingy.   You know — an ounce of prevention …

4.         If you are a small company and cannot afford or justify hiring such an in-house person, make sure that you have someone you can turn to who can identify an employment discrimination issue before it develops or gets worse, be it an attorney, or even an outside vendor who works with employers and knows the terrain. Better still – take some courses or seminars on this subject (they are given by lawyers and HR folks all the time) so you will know what to do before a problem develops.

5.         Draft and maintain an up-to-date employment manual which incorporates all of your company’s policies and procedures. Keep it current to stay abreast of the ever-changing law. This is especially important if your company has locations in more than one state.  Always include your carefully written zero-tolerance anti-discrimination and anti-harassment policy, as well as a provision which gives aggrieved employees an avenue to make an appropriate complaint if they experience discrimination, and lets them know that they can expect a prompt and even-handed company investigation and response.

The next five tips next time!