Thursday, May 18, 2017

Who’s Protected Where? State and Local Laws Expand Protections Against Discrimination

Prohibitions against discrimination in employment based on race, national origin, religion, sex, age, and disability are generally familiar to business owners, HR professionals, and in-house counsel.  Because these protections are created by federal law, they apply in every state.  Depending on where an employer operates, however, there may be other, lesser-known discrimination laws that require compliance.  Here are some examples:

Age Discrimination Against the Young. Most states have a law that prohibits discrimination on the basis of age, but the protection is defined differently from jurisdiction to jurisdiction. The Age Discrimination in Employment Act, a federal law, prohibits discrimination in employment against those over 40, and that’s the protection that comes to mind most readily when age discrimination is considered.  A number of states, however, including  Oregon, New York, Minnesota, and Iowa prohibit discrimination against employees and applicants aged 18 or over. Some states, such as Maryland, do not specify a minimum or maximum age requirement to qualify for protection. Nine states have laws that mirror the ADEA and protect employees and applicants aged 40 and over from discrimination, and a few jurisdictions specify an age range; Indiana, for example, protects only those aged 40 to 75.

Familial or Parenting Status. Alaska, Minnesota, Oregon, Pennsylvania, and a number of municipalities have laws that prohibit employment discrimination based on parenthood or familial status.  Generally, these laws protect against discrimination based on the makeup of one’s family, usually defined to include minor children who live with parents or legal guardians, pregnant women, and those seeking to secure custody of children under eighteen. Although discrimination based on parental or familial status is not expressly covered by federal discrimination law, parenting claims and claims related to caregiving responsibilities may be gender or disability discrimination under federal law in some circumstances.

Marital Status. At least 19 states and the District of Columbia prohibit discrimination in employment on the basis of marital status. An applicant’s or employee’s status as a single, married, divorced, or widowed person cannot be used as a basis for employment decisions in those states.  In a few jurisdictions, the protection extends to employees discriminated against because of the situation or identity of their spouse.

Status as a Victim of Sexual Assault, Domestic Violence, or Other Crimes. Several states have enacted laws prohibiting an employer from terminating or penalizing an employee because the employee is a victim of domestic violence, sexual assault, or another crime. Some jurisdictions, such as Oregon, require employers to offer reasonable accommodation so that a victim can continue to work. Many states (Minnesota, for example) have enacted laws allowing victims of sexual assault, domestic violence, or stalking to take time off from work to seek counseling or medical attention or appear in court, and prohibiting employers from taking adverse employment action because a victim takes such time away from work. 

Use of Medical Marijuana. Twenty-nine states and the District of Columbia have legalized the use of medical marijuana, and seven states and the District of Columbia have legalized marijuana for recreational use.  Only eight states (Arizona, Connecticut, Delaware, Illinois, Maine, Nevada, New York, and Minnesota) prohibit discrimination in employment based on an employee’s lawful use of medical marijuana. However, as commentators have noted, such laws do not necessarily preclude adverse employment action based on results of a drug test. Many state laws expressly prohibit the use of marijuana at work, and employers are generally not required to accommodate the use of marijuana in the workplace.

Public Assistance Status.  Minnesota and North Dakota prohibit discrimination against an employee or candidate because of public assistance status. This protects those who are or have been recipients of welfare, Medicaid, housing assistance, and other forms of public support.

The list of lesser-known protections doesn’t stop there.  For example, in Louisiana, California, and the District of Columbia, employers are prohibited from considering or trying to control employees’ political activities.  Delaware, Oregon, Vermont and Hawaii prohibit discrimination based on credit history. Michigan, California and Maine, among other states, have laws protecting employees who breastfeed from negative workplace consequences. These and other protections create the same risks of legal liability that employers face if they discriminate based on race, religion, sex, or disability.  Those responsible for employment decisions need to know and understand what’s protected and what’s prohibited in each jurisdiction in which they operate.

Published by Laura Bartlow