Discrimination and Harassment Law and Practice

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For the first time since 2002, the Equal Employment Opportunity Commission (EEOC) has updated its guidance on national origin discrimination in the workplace in an effort to address important legal developments over the past 14 years. In 2015, the EEOC reported 11 percent of the charges filed alleged national origin discrimination. The EEOC’s recent Strategic Enforcement Plan for 2017-2021 includes protecting immigrant and migrant workers from discrimination as a top substantive priority, and this guidance is another step toward increasing the EEOC’s enforcement efforts in this area. Of course, with the election of President-elect Donald Trump last month, the EEOC’s guidance is subject to change. However, the guidance is a useful tool to analyze employers’ existing policies and practices of preventing national origin discrimination with an eye toward the EEOC’s focus for enforcement action.
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Bass, Berry & Sims attorney Tim Garrett discussed a case pending before the U.S. Court of Appeals for the Eighth Circuit relating to a striking employee’s termination for yelling racist comments at replacement workers. Although the employee’s firing was upheld by an arbitrator, an administrative law judge (ALJ) did not defer to that ruling and…

A case currently under consideration in the Eighth Circuit Court of Appeals deserves watching.  The case will determine whether the National Labor Relations Act (NLRA) protects a picketing employee’s right to hurl racist insults at replacement workers, so long as no threat is involved.  The case is Cooper Tire & Rubber Company v. NLRB, Case No. 16-2721.  The facts show an intriguing – and some would argue sad – sacrifice by the current Labor Board of race relations at the altar of protecting striking workers’ and their “impulsive behavior.”
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The Equal Employment Opportunity Commission (EEOC) recently revealed its Strategic Enforcement Plan for 2017-2021. Of course, this Plan was developed before the election of Donald Trump as President.  Thus, the information contained in the Plan could soon become moot, or at the very least, stale.  However, seeing what the EEOC recently noted as high priority areas is instructive.  Whether the Plan will be dramatically or only slightly revised remains to be seen.
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Bass, Berry & Sims attorney Doug Dahl provided comments for an article detailing the latest compliance deadline for healthcare entities subject to Section 1557 of the Affordable Care Act (ACA). Under the regulations, which were issued in May, it is now illegal for any healthcare entity that receives federal funding to discriminate against patients on the basis of sex, race, color, national origin, age and disability. Beginning on October 16, 2016, all entities receiving government funding from Health and Human Services, including Medicaid and Medicare, are required to provide and post nondiscrimination notices. One challenge that Doug points out in the article is “that covered entities have been struggling with figuring out where to post notices and which publications qualify as significant enough to include them.”
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Section 1557 of the Patient Protection and Affordable Care Act (ACA) prohibits any health program or activity that receives federal funding (currently limited to federal funding from the Department of Health and Human Services (HHS)) from discriminating against an individual on the basis of race, color, national origin, sex, age or disability.  Notably, HHS has described Section 1557 as the first civil rights law banning discrimination on the basis of sex in the provision of healthcare services, which includes discrimination based on gender identity, gender expression and transgender status.

While Section 1557 has technically been in effect since the passage of the ACA in 2010, HHS’ Office of Civil Rights (OCR) released final regulations in May of this year, finalizing some key compliance requirements.  Many of the new procedural requirements introduced by the final regulations went into effect on July 18, 2016.  However, perhaps the most significant requirement – the requirement to provide and post nondiscrimination notices – becomes effective on October 16, 2016 (a Sunday).1

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Under new federal regulations, issued in May 2016 with an initial compliance deadline of July 16, 2016, it is now illegal for any healthcare provider that receives federal funding from HHS to discriminate on the basis of sex, race, color, national origin, age and disability.  While many healthcare providers already have in place general nondiscrimination policies, it is important to point out that:  (1) Section 1557 is the first federal civil rights law to broadly prohibit healthcare providers (e.g., certain physician practices, hospitals and health insurers) from discriminating on the basis of gender, gender identity, pregnancy and sex stereotyping; and (2) it will require covered providers to comply with a whole host of new requirements, including appointing a Section 1557 compliance coordinator, adopting a grievance procedure and providing notices.  Notices must be in place by mid-October in order to be in full compliance.  Section 1557 also will require the entities take reasonable steps to provide meaningful access to healthcare services to individuals with limited English proficiency and to individuals with disabilities.
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After a lengthy period of public comment and several revisions, California’s Fair Employment and Housing Council finally adopted amendments to the California Fair Employment and Housing Act (FEHA) regulations.  The amendments, which went into effect on April 1, 2016, generally reinforce existing law but also impose several new and detailed requirements for employers.

Requirements for harassment, discrimination and retaliation policy:

As of April 1, every California employer must have a harassment, discrimination, and retaliation policy that:

  1. Is in writing;
  2. Lists all current protected categories under the California FEHA (race, religious creed, color, national origin, ancestry, physical disability, mental disability, medical condition, genetic information, marital status, sex, gender, gender identity, gender expression, age for individuals over 40, military and veteran status, and sexual orientation);
  3. Specifies that employees are protected from illegal conduct from any workplace source, including third parties who are in the workplace;
  4. Creates a confidential complaint process that ensures a timely response, impartial investigation by qualified personnel, documentation and tracking, appropriate remedial actions and resolutions, and timely closure;
  5. Informs employees about several different avenues (other than to a direct supervisor) for reporting a complaint and allows employees to have direct communication with a designated company representative, such as a human resources manager or other reliable company personnel;
  6. Requires supervisors to report any complaints of misconduct to a designated company representative; and
  7. Makes clear that employees will not be exposed to retaliation as a result of making a complaint or participating in any workplace investigation.

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Employers often must balance the mandates of seemingly competing directives. A challenging example arises in the area of possible mental impairment.  An employer may hear concerns that an employee is acting abnormally, or has hinted at a desire to hurt herself, or is exhibiting other possible signs of mental impairment.  The employer does not wish to stereotype the employee unfairly, or unlawfully “regard” the employee as disabled; yet, the employer also must ensure a safe work environment for other employees and others on the premises.…
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