Myths surrounding nondiscrimination laws can make it hard to comply.
Nondiscrimination laws prohibit employers from discriminating against applicants and employees because of their race, sex, religion, age, disability, and several other protected characteristics. The laws also prohibit employers from retaliating against individuals because they, among other things, oppose or participate in investigations of discriminatory practices. Myths surrounding nondiscrimination laws can make it even harder to comply.
Below, we debunk 10 myths about discrimination laws that you may encounter.
Myth #1: Discrimination occurs at only the worst employers.
Fact: The truth is, discrimination (and harassment) can happen anywhere. Despite your best intentions to maintain a fair and equitable workplace, biases or forms of unconscious discrimination and harassment may still take place. Your best defense is to develop effective policies, practices, and training to prevent and respond to misconduct. Additionally, encourage employees to report problems before they become pervasive. When an employee does complain, investigate promptly and protect the employee from retaliation. If an investigation reveals that misconduct occurred, take appropriate corrective action to remedy it and prevent it from recurring.
Myth #2: Small employers aren't covered by nondiscrimination laws.
Fact: There are a number of laws that cover almost all employers regardless of size. For example, virtually all employers are covered by the Equal Pay Act, which prohibits employers from paying different wages to men and women if they perform equal work in the same workplace. Most other federal laws that prohibit discrimination in the workplace cover employers with 15 or more employees, but many states and local jurisdictions have nondiscrimination laws that cover smaller employers.
Myth #3: Discrimination must be intentional for employers to be held liable.
Fact: Employment laws typically prohibit both intentional and unintentional discrimination, such as when a seemingly neutral policy or practice unintentionally has a disproportionate effect on a protected group of employees. For instance, a policy requiring employees to be six-feet tall can have a disparate impact on the basis of sex and/or national origin and may violate federal, state, and local laws.
Myth #4: During interviews, it's a good idea to ask applicants about their family responsibilities or whether they intend to become pregnant if the job requires a lot of travel and long hours.
Fact: Federal and many state laws prohibit employers from discriminating against workers based on pregnancy. Some states also expressly prohibit employers from discrimination because of marital and/or family status. Avoid questions about an individual's pregnancy, intentions regarding pregnancy, or whether they're married or have children. If you want to confirm whether an applicant can meet certain work hours, overtime, or travel requirements, simply state these requirements and ask if they can meet them. If you do ask this question, be consistent and ask it of all applicants/employees, not just women.
Myth #5: Retaliation complaints are becoming increasingly rare.
Fact: Over the past 20 years, the percentage of all discrimination complaints that included a retaliation claim has more than doubled, and retaliation is now the most common form of complaint filed with the Equal Employment Opportunity Commission (EEOC).
Myth #6: If an employee files a lawsuit alleging they were discriminated against because of their race and then faced retaliation for complaining, the employee must prove that discrimination actually occurred to prevail on the retaliation claim.
Fact: Workers can prevail on a retaliation claim even if they ultimately fail to prove the underlying discrimination, provided they had a reasonable, good-faith belief that discrimination occurred.
Myth #7: When drafting a job offer, using the applicant's salary history is always a good way to determine their starting pay.
Fact: Studies have shown women, African Americans, and other people of color tend to be paid less than their counterparts for the same or substantially similar work. Therefore, a candidate's pay history may reflect discriminatory pay practices of a previous employer. If you rely heavily on pay history when making a job offer, it could perpetuate the pay gap. That's why several state and local jurisdictions have enacted laws that generally bar employers from inquiring about and/or using an applicant's pay history.
Myth #8: An employee must specifically ask for a "reasonable accommodation" to be entitled to one.
Fact: Under federal law, employers with 15 or more employees must provide reasonable accommodations for disabilities and for sincerely held religious beliefs and practices, unless doing so would cause undue hardship. Some states have similar requirements that apply to smaller employers, and some have laws that require accommodations in additional circumstances, such as when an employee has a pregnancy-related condition.
Employees, however, aren't required to use the words "reasonable accommodation" to be entitled to one. For example, "I'm having trouble getting to work on time because of medical treatments I'm undergoing," could be considered a request for a reasonable accommodation for a disability. If the initial communication is unclear, ask the individual if they are requesting a reasonable accommodation. Once you're put on notice that an employee may need a reasonable accommodation, work with them to identify an effective accommodation. After implementing an accommodation, check in with the employee to ensure that it's effective. Remember to document each step of the process.
Myth #9: The EEOC has never taken the position that sexual orientation and gender identity are protected characteristics under federal nondiscrimination laws.
Fact: Federal law prohibits employers with 15 or more employees from discriminating against applicants and employees because of their sex (among other characteristics). The EEOC has taken the position that protections on the basis of sex extend to sexual orientation and gender identity (a person's gender-related identity, appearance, or behavior, regardless of whether it is different from that traditionally associated with the person's physiology or assigned sex at birth). Additionally, many states and local jurisdictions have laws that expressly prohibit employers from discriminating against applicants and employees on the basis of their sexual orientation or gender identity.
Myth #10: There are no laws that protect marijuana users from discrimination.
Fact: Currently, thirty-three states and the District of Columbia permit medical marijuana. Eleven states and the District of Columbia also permit the use of recreational marijuana. While none of these laws require employers to allow employees to use, possess, or be impaired by marijuana during work hours or in the workplace, some states have employment protections for employees who use marijuana outside of work. For example, some states prohibit employers from making employment decisions based solely on a person's status as a medical marijuana user or cardholder.
Additionally, a few states prohibit discrimination against individuals because they test positive for medical marijuana, unless the individual used, possessed, or was impaired by marijuana in the workplace or during work hours. Certain states also offer protections for individuals who use recreational marijuana while off duty. Meanwhile, New York City recently enacted an ordinance that will generally prohibit employers from requiring a prospective employee to submit to drug testing for marijuana. Before testing for marijuana and/or making any employment decisions resulting from an individual's use of marijuana, check your state and local law and work closely with legal counsel to determine your rights and responsibilities.
Make sure you understand the federal, state, and local nondiscrimination laws that apply to your employees, and ensure that you implement policies and procedures that comply with these laws.
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This article was originally published as an "ADP HR Tip of the Week" which is a communication created for ADP's small business clients.
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