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February 4, 2020
Part IV of VI – Discrimination and Harassment Laws
On January 15, 2020, the U.S. Court of Appeals for the Eleventh Circuit held that five isolated sexual comments that were made over a four-month period, that were said in a joking manner, and that were said in the context of the employees being friendly were not sufficiently pervasive for a sexual harassment claim under Title VII. Allen v. Ambu-Stat, LLC, No. 18-10640, 2020 U.S. App. LEXIS 1450 (11th Cir. Jan. 15, 2020).
On December 6, 2019, the U.S. Court of Appeals for the Second Circuit ruled that a plaintiff may establish a prima facie pay discrimination claim under Title VII by showing that her employer discriminated against her with respect to compensation because of her sex; she is not required to establish an Equal Pay Act violation by showing that she performed equal work for unequal pay. See Lenzi v. Systemax, Inc., 944 F. 3d 97 (2d Cir. 2019).
Effective January 1, 2020, California extended the period to file an administrative complaint under the Fair Employment and Housing Act from one year to three years. See 2018 Cal AB 9.
California amended the Fair Employment and Housing Act, effective January 1, 2020, to prohibit discrimination based on traits historically associated with race, including hair texture or hairstyles. See Cal. Gov. Code § 12926(w), (x).
On December 30, 2019, a California federal district court granted a temporary restraining order, and on January 31, 2020, granted a preliminary injunction, preventing enforcement of Assembly Bill 51, California’s law prohibiting employers from requiring employees to sign mandatory arbitration agreements for claims arising under the Fair Employment and Housing Act or the California Labor Code, as it likely is preempted by the Federal Arbitration Act. See Chamber of Commerce of the United States v. Becerra, No. 2:19-cv-02456-KJM-DB (E.D.Cal.).
Illinois enacted amendments, effective January 1, 2020, to the Workplace Transparency Act and Human Rights Act. The amendments strengthen the Act’s harassment and discrimination protections and reporting requirements. The new amendments restrict the use of non-disclosure, non-disparagement, and arbitration clauses in employment and separation agreements. Additionally, the amendment expands the definition of harassment, extends harassment protections to non-employees, and requires sexual harassment prevention training under certain circumstances. See 2019 Ill. SB 75.
On December 19, 2019, New Jersey enacted the Create a Respectful and Open Workplace for Natural Hair Act, which amends New Jersey’s Law Against Discrimination to clarify that hairstyle discrimination is included in the existing prohibition on race-based discrimination. See 2018 NJ S.B. 3945.
New York City expanded the protections of the New York City Human Rights Law to include interns, freelancers, and independent contractors, effective January 11, 2020. See NYC Administrative Code 8-107, subd. 23.
Oregon’s Workplace Fairness Act, which became effective on January 1, 2020, (1) prohibits employers from entering into an agreement with an employee or prospective employee that contains a nondisclosure or other provision preventing the employee from discussing or disclosing discrimination or harassment; (2) requires employers to adopt a written policy preventing discrimination and harassment that meets certain requirements; (3) extends the statute of limitations for discrimination and harassment claims under its employment discrimination law from one to five years; and (4) enables employers to void a separation package if, after a good faith investigation, it determines that the employee engaged in prohibited discrimination that was a “ substantial contributing factor” in the separation. See 2019 Ore. SB 726.