discrimination and harassment

Employers across the U.S. are requiring employees to return to the brick and-mortar workplace as COVID-19 cases drop, and they are looking forward to having employees work together again face to face.

But employers beware: employees have had little in-person interaction with their colleagues over the past two years, and some employees who were onboarded

On June 11 and June 17, 2020, the EEOC updated “What You Should Know About COVID-19 and the ADA, the Rehabilitation Act, and Other EEO Laws,” its Q&A technical assistance guidance for COVID-19 related issues. The new guidance expands its previous guidance, answering additional questions on several topics, including COVID-19 antibody tests, “high risk” employees (which we blogged about here), accommodations for employee screenings, how to handle national origin discrimination, and whether an employer’s safety concerns permit the exclusion of pregnant or older people from the workplace. We have summarized the new Q&A below.

Disability-Related Inquiries and Medical Exams

A.7. CDC said in its Interim Guidelines that antibody test results “should not be used to make decisions about returning persons to the workplace.” In light of this CDC guidance, under the ADA may an employer require antibody testing before permitting employees to re-enter the workplace?

No. An antibody test constitutes a medical examination under the ADA. In light of CDC’s Interim Guidelines that antibody test results “should not be used to make decisions about returning persons to the workplace,” an antibody test at this time does not meet the ADA’s “job related and consistent with business necessity” standard for medical examinations or inquiries for current employees. Therefore, requiring antibody testing before allowing employees to re-enter the workplace is not allowed under the ADA. Please note that an antibody test is different from a test to determine if someone has an active case of COVID-19 (i.e., a viral test). The EEOC has already stated that COVID-19 viral tests are permissible under the ADA.

The EEOC will continue to closely monitor CDC’s recommendations, and could update this discussion in response to changes in CDC’s recommendations.

Continue Reading More on the Return to Work: the EEOC Issues New COVID-19 Related Guidance

[With special thanks to our summer associate Lennox Mark for his contribution to this post.]

From coast to coast, state and local governments are debating and enacting legislation to broaden workplace protections for employee dress and grooming practices. And not surprisingly, employee complaints regarding employer grooming policies — that such policies contribute to discrimination by unduly burdening certain racial characteristics, religious beliefs or health conditions — are on the rise.

In February 2019, the New York City Commission on Human Rights issued a statement of legal enforcement guidance expanding the definition of prohibited race discrimination to include discrimination based on hairstyle. The Commission explained that workplace “grooming or appearance policies that ban, limit, or otherwise restrict natural hairstyles or hairstyles associated with Black people generally violate [local law].” By expressly including hairstyle as a protected characteristic, the Commission effectively created a new legal claim for Black employees who suffer adverse employment actions because their natural hairstyles fail to comport with previously accepted workplace rules.

Continue Reading Employers, Are Your Grooming Policies Discriminatory?

Although federal and state laws have prohibited employment-related sexual harassment and sex discrimination for decades, the #MeToo movement inspired several states and local jurisdictions to pass laws targeting sexual harassment in the workplace more directly. The new laws address issues such as mandatory anti-harassment training, workplace policies, confidentiality in settlement agreements, and the arbitrability of

The legal landscape for employers – particularly those in New York – has evolved significantly over the last few months. On April 12, 2018, Governor Cuomo signed the FY 2019 Budget Bill, which includes significant measures targeting sexual harassment in the workplace, such as harassment prevention policy and training requirements. Not to be outdone, on May 9, 2018, Mayor de Blasio signed the Stop Sexual Harassment in NYC Act, a collection of bills that require anti-harassment training and increase worker protections against sexual harassment.

Continue Reading New York Employers: Prepare For Myriad Changes To Harassment Prevention, Sick Time And Accommodation Laws

Join us for a breakfast briefing on March 27 in Palo Alto for an update on the latest trends and regulations impacting multinational employers in Latin America. Hear from leading practitioners in five key LATAM jurisdictions – Argentina, Brazil, Colombia, Mexico and Venezuela – as we address hot topics that employers are facing right now

Baker McKenzie partner Kerry Weinger introduces Liliana Hernandez-Salgado from Mexico City to talk about employment laws in Mexico and give an overview of what has changed in 2017 as well as what we can expect for the year ahead.

Key Takeaways:

  1. Companies doing business in Mexico must stay tuned for further developments related to outsourcing

Last week the EEOC released its charge statistics from fiscal year 2017, which ran from Oct 1, 2016 through Sept 30, 2017.

  • Retaliation was the most common claim in FY 2017, followed by race discrimination, disability discrimination, sex discrimination (all types, including sexual harassment), age discrimination, national origin discrimination, and religious discrimination.
  • Charges were down a bit in all categories, but monetary relief was up in LGBT cases and, in sexual harassment cases, was at the highest level since 2010. BUT — note that the EEOC’s fiscal year ended before the #MeToo movement began so we predict the 2018 statistics will paint a very different picture.
  • Further, note that the EEOC’s new online portal, launched in November 2017, which makes it incredibly easy for individuals to sign in and file charges.


Continue Reading EEOC FY 2017 Statistics Recap: Retaliation Claims Charge Ahead