New Laws to Watch Promoting Workplace Diversity

Beth Zoller

October is Global Diversity Awareness Month and a chance to focus on the positive impact diversity and inclusion can have on a workforce.

Although US workplaces have come a long way when it comes to diversity, there is still much progress to be made. For instance, statistics show despite the fact that Generation Z is the most diverse in history, many workplaces still fall short when it comes to diversity, especially in leadership positions.

That’s why employers and HR must confront age old stereotypes and prejudices which work against inclusion, inhibit cohesive teams and reduce overall productivity and efficiency.

To address this, state and local laws are expanding existing discrimination and harassment protections to encourage and promote diversity. Here are some notable new laws based on emerging trends in diversity and inclusion:

Hairstyle Discrimination Laws

Although employers may have a legitimate business interest in adopting policies regarding personal appearance, grooming and hairstyles for reasons such as health, safety or public image, they should be particularly careful when drafting, implementing and enforcing such policies.

While seemingly neutral and non-discriminatory on its face, a policy prohibiting certain clothing or hairstyles, or requiring individuals to wear their hair in a certain way, may result in a disparate impact on individuals in a protected class.

In fact, a new trend of laws specifically addressing hairstyle policies resulting in disparate impact discrimination. For example, California, New York, New Jersey and New York City recently enacted such laws or released guidance:

  • Expanding the definition of race to include discrimination based on traits historically associated with race, including hair texture and protective hairstyles, such as braids, dreadlocks and twists;
  • Prohibiting employers from taking adverse action against an employee or applicant based on hairstyle; and
  • Prohibiting employers from implementing policies banning braids, locks, twists and other hairstyles that are historically associated with race and more likely to affect black employees and job applicants.

In light of this recent trend, be sure to review and amend any workplace appearance and hairstyle policies to make sure they do not result in unintended discrimination.

Salary History and Pay Equity Laws

Although women have made great strides and now make up almost 50 percent of the workforce, statistics show they are still disadvantaged in the workplace, and have trouble moving into leadership positions.

Over the last few years, we have seen an explosion of laws aimed at achieving pay equity. Specifically, more than 10 states and almost 20 localities have enacted salary history laws restricting employers from inquiring into salary history. The reasoning here is that by prohibiting salary history inquiries, employers will be less likely to perpetuate the gap by basing salary offers for new hires on their previous salary, which has a disproportionate impact on female hires.

Among other things such laws may prohibit an employer from:

  • Screening job applicants based on their salary history; and
  • Requiring that applicants’ salary history satisfy any minimum or maximum criteria;
  • Requesting, requiring or seeking a job applicant’s or current employee’s salary or wage history as a condition of receiving an interview, offer of employment, continued employment or a promotion; and
  • Relying on salary or wage history in determining whether to offer employment or in determining wages to offer an applicant.

Although some of these salary history laws may contain carve outs and exceptions, it is critical for HR and employers to be aware of them. Start by providing information and training to those who work in a recruiting and hiring capacity to ensure that all job applications and interview questions comply.

Discrimination Based on National Origin

While federal, state and local laws generally prohibit discrimination based on national origin and citizenship, this kind of discrimination has manifested itself in many ways. Recent rules and guidance released in California, New York and New York City highlight that various actions may be perceived as discrimination or harassment based on actual or perceived immigration or national origin status. These actions may include:

  • Asking applicants questions related to work authorization in an inconsistent manner based on actual or perceived immigration status or national origin;
  • Treating workers who are not work authorized less well than any other employee because of their immigration status;
  • Engaging in document abuse and demanding specific documents beyond what is required to establish work authorization under federal law (i.e., a green card or birth certificate, to establish identity and/or work authorization);
  • Using the terms illegal alien and illegals with the intent to demean, humiliate or offend a person or persons in the workplace;
  • Threatening to call federal immigration authorities; and
  • Assigning workers to specific positions, facilities or geographical areas of employment based on national origin.

Employers are also warned against taking actions based on judgments, stereotypes and assumptions about employees or applicants based on their actual or perceived immigration status or national origin, including assumptions about their education, beliefs or behavior. They also should not discriminate based on English proficiency or accent unless it is a business necessity or materially interferes with the individual’s ability to perform the job.

In addition, it is important to avoid maintaining workplace policies that have a disparate impact based on immigration status and national origin such as:

  • Maintaining a policy stating that the only acceptable identification document all employees must provide for employment purpose is a US passport;
  • Instituting an English-only rule; or
  • Maintaining height or weight requirements that have a disparate impact based on national origin.

An employer should steer clear of maintaining such seemingly neutral polices unless they are job-related and justified by business necessity and cannot be achieved effectively through less discriminatory means.

Additionally, New York and California explicitly prohibit employers from threatening, penalizing, discriminating or retaliating against an immigrant employee by threatening to contact or contacting US immigration authorities regarding the employee’s suspected citizenship or immigration status or the suspected citizenship or immigration status of an employee’s family or household member.

It is important for employers to take note of these issues and make sure that their workplace policies and practices comply.