In the current climate, employers are worried about bills, sick employees, safety procedures, labor shortage, and the ever-looming taxes for small businesses. Although the world seems to be operating at an elevated level of liability, employers would do well to remember the basics.
The basics include simple yet underrated things that employers may forget, or may not even be aware of, such as not hiring someone because of a disability or passing up someone for a promotion because they may become pregnant. Although there are many ways in which an employer may incur liability, discriminatory and retaliatory behavior are the top reasons employees commence a lawsuit against their current or former employer.
To begin, employers should be well acquainted with Title VII of the Civil Rights Act of 1964. Title VII protects individuals against employment discrimination based on national origin, race, color, religion, and sex. This can range from passing someone up for a promotion, to unequal pay, to terminating the employee because of their race, color, religion, sex, or national origin. These unlawful employment actions may also extend to the act of refusing to hire someone if such a decision was based on the employer’s discrimination against a protected class.
In the context of interviews, there are some questions that are “taboo” as they relate to the aforementioned protected classes. Although some questions are not outright illegal, the answer to such questions may be perceived as the basis for a hiring decision. Employers who base their hiring decisions on a person’s sex, race, religion, etc. are then in breach of the protections allowed to employees through Title VII. For example, employers should not inquire about a person’s plans to have children. This may be as direct as “when are you planning to have kids” or “do you have any kids?”. Such questions do not relate the employee’s qualifications and therefore may be perceived as discriminatory on the basis of sex, particularly towards women. When interviewing, employers should also not ask about the religious garments a person chooses to wear or what religion they practice. As a general rule of thumb, employers should not ask any questions related to the employee’s family status (marriage, kids, etc.), their religious beliefs, practices or customs, or their nationality.
AMERICANS WITH DISABILITIES ACT
Similar to Title VII, the Americans with Disabilities Act (ADA) protects employees from discrimination related to mental or physical disabilities. Employers should not ask about an employee’s disability, even if it is a physical one. Instead, if the employee asks for a reasonable accommodation, the employer should comply. This can be as simple as providing a reserved parking space or allowing a flexible work schedule. It can also include adding a ramp to the front entrance or acquiring or modifying equipment. In tandem with disabilities, the Rehabilitation Act bars employers from inquiring about an employee’s medical history or status.
However, with regard to COVID-19, an employer may inquire if an employee is experiencing symptoms of the pandemic, so long as any records pertaining to the inquiry remain confidential and in compliance with the ADA. The ADA allows an employer with uniform temperature check requirements to bar an employee from physical presence in the workplace if they refuse to have their temperature taken, refuse to answer questions about whether they have COVID-19, have symptoms associated with COVID-19, or have tested positive for COVID-19.
In addition to certain COVID-19 inquiries, the employer may also impose a vaccination mandate or ask for proof of vaccination. The employer must, however, allow for exceptions due to a disability (covered by the ADA) or a sincerely held religious belief, practice, or observance (covered by Title VII). Those employees who qualify for an exception may be entitled to a reasonable accommodation so long as it does not pose an undue hardship on the operation of the employer’s business. A reasonable accommodation may include social distancing, wearing a face mask, or working from home. Information related to COVID-19 symptoms and immunization, like all medical information, must be kept confidential and stored separately from the employee’s personnel files, per the ADA.
THE PREGNANCY DISCRIMINATION ACT
Employers must also abide by the Pregnancy Discrimination Act (PDA). The PDA is an amendment to Title VII that requires employers to treat pregnant individuals “the same as other persons not so affected, but similar in their ability or inability to work.” The PDA forbids discrimination against pregnant employees in pay, job assignments, promotions, layoffs, training, fringe benefits, firing, and any in other term or condition of employment.
Although pregnancy is not considered a disability, it may still afford employees additional protections under the ADA due to a “temporary disability.” This may include an employee that develops gestational diabetes or has been prescribed a 20-pound lifting restriction.
The ADA requires that employers permit the employee to work for as long as they are able to perform their jobs and provide reasonable accommodation when necessary, so long as the accommodation does not impose a significant difficulty or expense. In other words, if the employee asks for a reasonable accommodation, they must be permitted to continue with the basic functions of their job.
Aside from anti-discrimination laws, employers must also be cognizant of immigration compliance, starting with employment eligibility verification. After an employer makes the decision to hire a new employee, they must verify that the individual is eligible to work in the United States without any restrictions by having them fill out a Form I-9. This form is required of all employees, regardless of citizenship status, and requires the employer to verify the authenticity of the employee’s eligibility documents.
These documents may include (but are not limited to) a U.S. passport or a legal permanent resident card, or a driver’s license or ID card in conjunction with a birth certificate or a social security card. The employer must also retain the Form I-9 and a copy of the employee-provided documents for three years from the date of hire or one year from the date employment ceased, whichever is later.
Navigating the world of compliance as an employer can be overwhelming and stressful, but even when things seem to snowball, remember the basics, base your decisions on experience and other relevant qualifications, abide by reasonable accommodations, and stay in compliance by consulting with employment-law experts on evolving laws.
Jacob M. Monty is the managing partner of the Houston-based law firm, Monty & Ramirez LLP. Monty is board certified in labor and employment by the Texas Board of Legal Specialization. He regularly advises employers on a wide range of labor and employment issues. Monty & Ramirez LLP is an employment, labor, and business immigration law firm. Visit www.montyramirezlaw.com for more information.