Ready for 2020? If you’re a human resource professional, you may have answered that question with a mournful sigh or nervous laughter. It seems pretty much everything’s up in the air when it comes to workplace policies. Certain areas are changing rapidly, and it’s challenging to keep up. Some of the most confusing developments seem to be spurred on by the fast-paced nature of social media. One day it’s a meme, the next, you could be forced to weigh it against your workplace anti-discrimination policy.
Age discrimination was already a hot topic, and then came the “OK, Boomer” memes. As the New York Times explains, “Ok, Boomer” has become a rallying cry of teens and young adults fed up with the Baby Boomer generation not understanding them. It was even uttered by a 25-year-old member of New Zealand’s Green Party on the floor of Parliament when heckled by Parliament members. The phrase is getting plenty of teens and tweens grounded when directed at their elders, but is it grounds for illegal ageism in the workplace?
It could be.
The phrase targets a protected class (workers over the age of 40) under the Federal Age Discrimination and Employment Act. As SHRM points out, employers with at least 20 employees may have a problem when the phrase is hurled at a 40+ employee who claims it affected a hiring, promotion, discharge, compensation, or other employment decision. In some states, protections apply to even smaller businesses and younger workers.
When held to that standard, “OK, Boomer” is technically worse than quipping “OK, Millennial.” Of course, you ideally want a workplace free of any overt generational animosity. HR Technologist offers some advice on how to make that so.
Actress Gabrielle Union was not renewed as a judge on America’s Got Talent amid allegations she was criticized by the show’s executives for wearing hairstyles that were considered “too Black” for viewers. While details haven’t been confirmed, this type of allegation isn’t an isolated one. In 2018, the U.S. Supreme Court declined to review a significant employment discrimination case that involved possible targeting of natural black hairstyles. In question was whether a qualified job candidate was rescinded a job offer solely because she wore her hair in dreadlocks.
Although the Supreme Court wasn’t having it, others took note. Since then, California, New York, Tennessee, and a handful of other states have passed or are considering legislation to ban race-based hair discrimination. Most recently, presidential hopeful Cory Booker endorsed a federal bill to prohibit discrimination at the national level.
In Texas, a teen’s mother said he wasn’t hired at Six Flags because of his hairstyle. Six Flags took the accusation seriously and modified its grooming policy. Male employees “may now wear dreadlocks — provided, per our standard guidelines — they are well-groomed and do not extend past the bottom of the collar,” reports the Washington Post.
Consider it a reminder to revisit your grooming policies with your business attorney and look for any ambiguities or language that could be interpreted as a form of discrimination.
LGBT Rights Under Title VII
#RiseUpOct8 was trending this past fall as the U.S. Supreme Court heard groundbreaking arguments that could rewrite Title VII to include lesbian, gay, bisexual, transgender, and queer (LGBTQ) worker protections. Equal Employment Opportunity Commission already maintains Title VII should include LGBTQ worker discrimination, but the U.S. Department of Justice views it differently.
“Title VII’s prohibition on discrimination because of sex does not bar discrimination because of sexual orientation. The ordinary meaning of ‘sex’ is biologically male or female; it does not include sexual orientation,” the DOJ released in a statement.
Alexander Dunn, an associate and litigation lawyer with Foley & Lardner LLP, covered the issue for the National Law Review. He feels there’s precedence with other cases successfully argued based on sex “plus” the additional factor of being LGBTQ. According to Dunn, “If the Court decides that discrimination against LGBTQ employees is sex discrimination prohibited by Title VII, the effects will be immediate. In response, employers who do not already prohibit discrimination based on LGBTQ status will need to revise their discrimination policies. Equally important, employers will also need to immediately train employees on how to comply with new anti-discrimination policies.”
Dunn adds that a decision is expected as soon as February or as late as June. But do note that many states already have protections in place that prohibit employment discrimination based on gender identity and sexual orientation. If you’re unaware of how they affect your workforce, do your due diligence now and find out.
Medical Marijuana in Texas
Texas recently expanded its Compassionate Use Program for cannabis as a legal medical treatment for multiple sclerosis, more seizure disorders, autism, cancer and other incurable neurodegenerative diseases like ALS, Alzheimer’s, Parkinson’s, Huntington’s and others. It also made low-level THC in CBD products legal. These decisions will make employee drug testing exponentially more problematic.
If you do still test, remember to put any positive test results into context. As we’ve covered before, detectable THC levels can stay in someone’s system for up to 30 days after causal use or even 90 days after stopping regular use. Revisit our previous article for more tips.
Don’t be caught out-of-focus in 2020 when it comes to these changing laws and trending issues, even if some are hashtag-able or meme-worthy. Talk to your employment attorney about how they could affect your workplace policies.
Join us for our FREE lunch and learn and prepare for hiring in 2020!
Join us January 28, for our annual Lunch-and-Learn with employment law attorney Amy Beckstead of Beckstead Terry PLLC, Amy will present on a variety of new and anticipated changes in Texas and federal employment law, including:
- The new FLSA regulations, effective 1/1/20
- Status of paid sick leave laws in Austin, Dallas, and San Antonio
- Texas non-compete law updates
- Federal EEO-1 and W-4 update
- Trends facing multi-state employers, including discrimination and harassment training requirements, attacks on arbitration agreements and confidentiality agreements, prohibitions regarding criminal history and salary history, and paid sick leave
- Recap of important new case law developments under Texas and federal law
These events fill up fast, so reserve your spot today. RSVP HERE