03/26/2012 03:18:00 PM EST
Foley & Lardner Labor and Employment Law Weekly Update (Week of March 27, 2012)
California Considers Joining Small but
Significant Trend Toward Prohibiting Discrimination Against Unemployed Job
Written by: Jeremy Wooden
The California assembly recently continued a trend of
federal and state legislatures seeking to prohibit discrimination against
unemployed job applicants. Later this month, the California assembly will
consider passage of a bill that would prohibit discriminating against an
employee on the basis of his or her status as unemployed, and it also would
prohibit publishing job advertisements that exclude the unemployed from
submitting job applications.
California's proposal comes on the heels of two similar
provisions that were proposed (but not passed) in President Obama's September
2011 American Jobs Act and the House of Representatives' July 2011 Fair Employment Opportunity
Act. Each of these federal proposals, if enacted, would have prohibited
job-status discrimination as well as publishing job advertisements that exclude
or discourage the unemployed from seeking employment. The administration sought
public comment for these proposals in February 2011, when experts opined to the
EEOC that employment status is a weak indicator of future job performance and
that job-status discrimination disproportionately impacts minorities and the
disabled. February 16,
2011 EEOC Press Release.
Other states have enacted legislation similar to that now
being considered in California. Last month, Oregon's Legislature passed a law
prohibiting job advertisements that include language suggesting that the
unemployed need not apply. New Jersey passed a similar law in 2011, although it
created a limited exception for those employers who were seeking applicants
from current employees, but otherwise implemented a broad ban on job-status
discrimination as well as advertisements stating that current employment is a
job qualification or currently unemployed applicants will not be considered.
These measures and proposed measures are a reminder that
job application and screening processes have come under intense scrutiny in
recent years. Employers should remain cognizant of this ever-shifting statutory
environment where anti-discrimination measures are being proposed on an
intermittent basis in Congress and, outside of Congress, on a state-by-state
basis. These measures differ in several key respects, including breadth of
coverage, remedies, and defenses and exceptions available to employers.
Transgender Employees Also Protected From
by: Nan Chen
Most employers have policies related to sex-based
discrimination and conduct harassment trainings or sensitivity workshops based
on traditional gender roles, but a new case highlights the need to consider
transgender employees. Although there is no federal law explicitly prohibiting
discrimination against transgender persons in employment, a transgender
employee successfully sued her employer for discrimination on the basis of her
The Eleventh Circuit federal court ruled in Glenn v. Brumby
that transgender employees may invoke federal constitutional protections
against sex-based discrimination based on gender non-conformity. In the case,
the employee was born a biological male, but was diagnosed with gender identity
disorder. She was hired by her employer while still a male and later told her
direct supervisor she was taking steps to become a woman. Shortly thereafter,
the employee was terminated, allegedly because the employee's "gender
transition was inappropriate, that it would be disruptive, that some people
would view it as a moral issue, and that it would make [the employee's]
coworkers uncomfortable." The employee then sued her employer.
The employee argued that the employer terminated her
based on her transsexual gender and that this constituted sex discrimination.
The Eleventh Circuit court ruled in the employee's favor and held that people,
whether transgender or not, are protected from discrimination on the basis of
"gender stereotype." Therefore, the employer "violated the Equal Protection
Clause's prohibition of sex-based discrimination when [he] fire[d] a
transgender or transsexual employee because of his gender non-conformity."
While the Eleventh Circuit's ruling on the Equal
Protection Clause currently only applies to governmental employees,
private employers should be wary of discrimination against transgender
employees. The ruling also referenced and analogized discrimination under Title VII of the Civil Rights
Act, which does apply to private employers, and the favorable language may
be used in private employer suits.
Thus, all employers private and public should be vigilant
about their employment practices and policies with regard to discrimination,
whether based on gender or gender non-conformity. If you do not currently
include transgender employees in your list of protected categories in your EEO
and no-harassment policies, you are falling behind.
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