All employers of all sizes should understand two things about employment discrimination.
One, the types of discrimination claims only increase. It is a sarcastic refrain of employers that it is easier to say who is not in a protected class, but the reality is that is increasingly closer to the truth. Two, while more reasons an employer can be sued is certainly reason for concern on their part, in a sense, it is not as bad as it seems. More on both those points below.
But first, small employers, do not stop reading because, “Oh, I don’t have enough employees for that to apply to me.” In fact, most discrimination laws do apply to employers with fewer than certain threshold numbers of employees, and you may not meet some of them.
However, the Ohio state discrimination law applies to employers with as few as four employees. Plus, the Ohio Supreme Court has held that law may apply to even smaller employers than that in certain circumstances.
Right now we can observe various trends around the country regarding new types of discrimination laws. More employees are protected on the basis of:
1. their sexual orientation or identity;
2. their having invoked their rights under an employment statute (i.e. retaliation claims);
3. their off duty conduct;
4. and the fact they are unemployed.
And we are in the midst of a much longer term trend. The landmark discrimination statute is Title VII of the Civil Rights Act of 1964, the federal law prohibiting employment discrimination on the basis of, among other things, gender, race, religion, and national origin. Congress passed the Age Discrimination in Employment Act in 1967, the Americans with Disabilities Act in 1990, and enhanced protections under Title VII in the Civil Rights Act of 1991.
States have passed companion statutes that are generally similar in substance, but may provide additional remedies. In Ohio, for example, there is individual liability for supervisors under the state civil rights law even though there is not under Title VII in the Sixth Circuit.
We seem to be in the midst of a sea change in how sexual orientation and gender identity is treated by the legal system. Several states (e.g. Maine, Maryland, and Washington) last year voted to allow gay marriage. Another (Minnesota) defeated a ballot measure to prohibit it. Municipalities are passing ordinances to prohibit sexual orientation discrimination. (Columbus already has one, with criminal penalties.)
Announcements like Senator Portman’s regarding gay marriage are also significant in this trend. Certainly this process is not “done,” but it seems that attitudes are changing, and that more and more jurisdictions will prohibit discrimination on the basis of sexual orientation or gender identity sooner rather than later.
Of the trends noted above, retaliation is by far the most sweeping and advanced. In effect, retaliation consists of adverse action against the class of employees who have exercised their rights under one or another law or statute. The statutory provisions being invoked in retaliation cases are not new, but they have been invoked on a steadily increasing basis is the last 15 years or so.
Third, more than half of U.S. states have some form of off duty conduct statute. (Ohio does not. Yet.) Some of these simply protect smokers. Other have more general protections against adverse action based on lawful off duty conduct. (Some of those may be “stealth” smoker protection laws.) These statutes have thus far been less frequently invoked than retaliation laws. Most have been passed in the last decade or so.
Finally, the topic of prohibiting discrimination against the unemployed has received greater attention. New York City’s council and Mayor Bloomberg are fighting over that city’s ordinance.
Whichever of these laws we have or get in Columbus and Ohio, or wherever you are reading this, more and more Americans are part of some class protected by a discrimination law. Further, layers of protections are virtually never removed. That’s not a political statement, just fact. In the face of all of these developments, how is an employer with pressing business needs on its mind even supposed to keep track of who is in a protected class?
The answer is easier than you might think: You don’t have to. In effect, the defense to any discrimination claim is that the job decision was job-related and not because of the unlawful reason that has been alleged. If your clients’ job decisions are job-related and they have documented the facts necessary to demonstrate that in all situations, then your risk of discrimination claims on any basis is greatly reduced.
I am always reminded in this discussion of a particular client that is highly mission focused. Company management truly does not care what an employee’s race, color, or creed so long as that employee is producing, distributing, or selling that company’s product.
Not surprisingly, because that company is so mission focused, it is very successful in its business. But it also has remarkably few employment discrimination claims, and I submit that fact is not unrelated to its market success. That’s right; on balance, the best businesspeople have fewer claims because they are mission focused. Decisions they cannot support in court cost them money.
That has always been true, and the best advice for defending discrimination claims has always been to train both employees and supervisors on performing their job, make expectations of employees clear, be proactive in dealing with employee issues, and be able to document that you have done all of those things.
As we add more and more layers of potential claims for aggrieved employees, that advice –subject, of course, to certain wrinkles based on particular laws, regulations, and decisions– does not change. But the importance of doing so becomes ever more important.