Released April 19, 2024

NEW LAWS ENACTED

  • A Colorado law prohibiting employers from asking age-related questions on initial job applications will go into effect on July 1, 2024. SB23-058 not only outlaws direct questions such as date of birth or age, but also questions that would allow the employer to infer the age of the applicant such as dates of graduation.

PENDING BILLS

COURT & AGENCY NEWS

  • The U.S. Court of Appeals for the Eleventh Circuit affirms an injunction against parts of Florida’s Individual Freedom Act (also referred to as the “Stop WOKE” Act), which had sought to limit the topics an employer could cover when conducting mandatory diversity training. The court held that the law’s content- and viewpoint-based speech restrictions violate the First Amendment.
  • The U.S  Equal Employment Opportunity Commission (EEOC) released a new Data Dashboard for 2017 & 2018 Pay Data Collection. The pay data was reported by 70,000 private employers and certain Federal contractors, representing over 100 million workers. According to EEOC, employers, industries, and individuals can utilize this dashboard to evaluate how their pay, categorized by sex and race, compares to others within their industry, job category, or state.
  • The highest court in New York has ruled that New York State and New York City anti-discrimination laws apply to non-residents seeking employment in New York. Importantly, the protections would only apply if the job would require a physical presence in New York.
  • The U.S. Department of Labor introduced the Competitive Integrated Employment Transformation Hub, which will serve as a central resource for guidance, policy information, and best practices for people with disabilities, their families, employers, and employment service providers. Competitive Integrated Employment (commonly referred to as CIE) aims to ensure that people with disabilities are paid competitive wages and work in environments where most employees do not have disabilities.

For the full stories, keep reading below.

NEW LAWS ENACTED

Beginning July 1, 2024, Colorado Employers Will Be Prohibited from Asking Age-Related Questions on Job Applications

Colorado has enacted Senate Bill 23-058, known as the Job Application Fairness Act (JAFA), which aims to protect job applicants from age-related discrimination. Signed into law by Governor Jared Polis in 2023, JAFA prohibits Colorado employers from requesting certain age-related information during the initial employment application process. Effective July 1, 2024, employers will be barred from asking applicants about their age, date of birth, or dates of attendance or graduation from educational institutions.

The law permits limited exceptions, allowing employers to request age verification under specific circumstances, such as when age is a bona fide occupational qualification pertaining to public or occupational safety, or when required by federal or state law. However, such requests must not compel applicants to disclose their specific age, date of birth, or educational history on the initial application.

Penalties for violations of JAFA are progressive, with warnings and compliance orders for first offenses, escalating to fines of up to $1,000 for second violations, and $2,500 for subsequent violations. Notably, each distinct job posting that violates JAFA constitutes a separate violation, potentially resulting in significant financial penalties for non-compliant employers.

Colorado joins California, Connecticut, Minnesota, and Pennsylvania as states that outlaw age-related inquiries during the initial job application process.

JAFA aligns with Colorado’s existing Chance to Compete Act, commonly known as “ban the box” legislation, which restricts inquiries into an applicant’s criminal history on initial employment applications. Proactive employers will be reviewing their hiring practices, including job postings, advertisements, and application processes, to ensure compliance with JAFA ahead of its implementation in July 2024. Additionally, training employees involved in the hiring process on the importance of avoiding age-based questions, and minimizing age bias generally, may help prevent legal violations and associated penalties.

PENDING BILLS

Massachusetts House Passes Bill Preventing Use of Credit Reports in Employment Settings

The Massachusetts House of Representatives recently passed legislation, titled “An Act Reducing Barriers to Employment Through Credit Discrimination (H.1434),” which aims to restrict employers’ use of credit reports for employment purposes. If adopted by the Senate as expected, it is highly likely be signed into law by Governor Maura Healey, and the law would become effective on January 1, 2025. While a handful of other states have adopted restrictions on the use of credit reports, H1434 would be the most restrictive of its kind with relatively few exceptions allowing employers to access or ask about an applicant or employee’s credit history.

The bill prohibits employers from requesting consumer reports that assess an individual’s credit worthiness, standing, or capacity for employment-related purposes. It also prohibits employers from using such information to determine eligibility for employment, promotion, reassignment, or retention. However, the law does not affect employers’ ability to obtain other background checks, such as criminal or driving record checks.

Exemptions to the law are limited and include instances mandated by federal or state law, positions requiring a national security clearance, and certain roles at financial institutions. The legislation also includes anti-retaliation and anti-discrimination provisions, safeguarding individuals who file complaints or participate in legal proceedings related to violations of the law.

Some employers use credit reports to determine whether a person is a good fit for a financially-sensitive job or to comply with laws that require credit checks for certain workers in the financial sector. Advocates of the legislation, however, argue that credit reports do not reliably predict job performance, are often plagued by errors, and exacerbate racial disparities in employment. They assert that removing this barrier to employment will promote fair hiring practices and provide opportunities for qualified individuals, regardless of their credit history.

The bill now awaits consideration by the Massachusetts Senate. If enacted, the law would be effective January 1, 2025.

COURT & AGENCY NEWS

US Court of Appeals Rules that Florida’s Law on DEI Training Violates the First Amendment

The U.S. Court of Appeals for the Eleventh Circuit recently affirmed an injunction that was put in place previously by a U.S. District Court judge against portions of Florida’s Individual Freedom Act, commonly referred to as the “Stop WOKE Act,” a state law which aimed to regulate certain DEI-related topics in workplaces. In March 2024, the Court of Appeals ruled that the law’s content- and viewpoint-based speech restrictions violate the First Amendment of the U.S. Constitution.

The “Stop WOKE Act,” signed by Governor Ron DeSantis in 2022, faced immediate legal challenges from two Florida-based employers. The law sought to prevent employers with 15 or more employees from requiring employees to participate in training or other activities that promoted certain topics related to privilege or oppression based on race, color, sex, or national origin, among other subjects.

In its ruling, the Eleventh Circuit Court of Appeals stated that the government cannot favor certain viewpoints over others without violating First Amendment principles. The court highlighted its concerns regarding the law’s targeting of specific ideas and penalization of certain viewpoints, stating that such actions undermine free speech protections.

Absent an appeal to the U.S. Supreme Court, this decision is potentially the end of a two-year legal battle over the contents of workplace diversity, equity, and inclusion training in Florida.

EEOC Releases 2017 and 2018 Data Dashboard and Highlights Results Showing Gender- and Race-Based Pay Disparities

The U.S. Equal Employment Opportunity Commission (EEOC) unveiled a new data dashboard on March 12, 2024, featuring the first-time collection of 2017 and 2018 pay data reported by approximately 70,000 private employers and certain federal contractors, representing over 100 million workers. This dashboard provides aggregated, anonymized, employer-level workforce demographic and pay data, reported by pay band.

According to EEOC, employers, industries, and individuals can utilize this dashboard to evaluate how their pay, categorized by sex and race, compares to others within their industry, job category, or state. Overall, the data revealed persistent pay disparities based on sex and race across various industries and geographic locations.

In 2018, the national median pay band for men exceeded that of women by one pay band. Additionally, the data showed that women of all races and ethnicities were typically in lower median pay bands compared to men of the same race or ethnicity. Particularly concerning were the findings that Black or African American women and American Indian or Alaska Native women were in the lowest median pay band across all groups.

The dashboard also highlights variations in pay disparities across industries, job categories, and states. For instance, in 2018, men generally occupied higher median pay bands compared to women across most industries, except for Accommodation and Food Services, where both genders were in the lowest pay band. Similarly, discrepancies were observed in different job categories, with men typically occupying higher median pay bands than women.

Geographically, Hawaii stood out as the only state where median pay bands for men and women were equal in 2018 and 2017. However, states like Wyoming, Louisiana, and West Virginia exhibited significant differences in median pay bands between men and women.

The EEOC has indicated that it will use such data to combat pay disparities and uphold the principles of equal opportunity enshrined in civil rights laws.

New York Court Extends City and State Anti-Discrimination Protections to Non-Residents Who Apply for Jobs in New York

New York’s highest court has clarified that state and city anti-discrimination statutes extend protection to non-residents applying for jobs that require physical presence in New York. This ruling, stemming from a recent decision by the New York Court of Appeals, settles a longstanding question regarding the territorial scope of the New York State Human Rights Law (NYSHRL) and the New York City Human Rights Law (NYCHRL).

The court’s decision builds upon the “impact test” established in the landmark case Hoffman v. Parade Publications in 2010. Under this test, the statutes’ coverage depends on whether the impact of the alleged discrimination is felt within the state or city. In the recent case, the court unanimously held that non-residents denied job opportunities in New York on discriminatory grounds fall within the protection of the NYSHRL and NYCHRL.

The ruling arose from a lawsuit filed by a person based in Washington, D.C., who alleged discrimination in the job application process for positions based in New York. The court emphasized that denying job opportunities to non-residents harms both individuals and the state and city, depriving them of economic and civic contributions.

However, the court’s decision is limited to positions that require physical presence in New York, excluding remote positions. This reaffirms the need for employers to educate hiring managers and teams broadly on non-discriminatory hiring practices to ensure compliance with applicable anti-discrimination regardless of a person’s location.

The U.S. Department of Labor Releases Resource Hub to Assist Employers in Fostering an Inclusive Workplace for Employees with Disabilities

The U.S. Department of Labor (DOL) recently unveiled the Competitive Integrated Employment Transformation Hub, a new resource designed to enhance the participation of people with disabilities in competitive integrated employment (CIE). This initiative, part of the DOL’s broader effort to promote CIE, consolidates resources from various federal agencies to provide practical guidance, policy information, and best practices.

According to DOL, competitive integrated employment “ensures that individuals with disabilities receive competitive wages and work in environments where the majority of employees do not have disabilities.” The Hub serves as a centralized tool for people with disabilities, their families, employers, employment service providers, and state agencies, offering essential support in navigating the complexities of CIE.

For employers, the Hub provides access to resources in key areas such as job accommodations, fostering an inclusive workplace culture, addressing the needs of specific populations, and considerations for federal agencies and contractors. By leveraging resources from an array of DOL agencies and entities, along with contributions from other federal agencies and private organizations, the Hub equips employers with the knowledge and tools necessary to create inclusive and supportive work environments.

Assistant Secretary for Disability Employment Policy Taryn M. Williams emphasized the importance of supporting employers in implementing accommodations and inclusive policies. The Hub’s goal is to promote job quality and universal access to good jobs for all individuals, including those from historically underserved communities.

The U.S. Department of Labor (DOL) recently unveiled the Competitive Integrated Employment Transformation Hub, a new resource designed to enhance the participation of people with disabilities in competitive integrated employment (CIE). This initiative, part of the DOL’s broader effort to promote CIE, consolidates resources from various federal agencies to provide practical guidance, policy information, and best practices.

According to DOL, competitive integrated employment “ensures that individuals with disabilities receive competitive wages and work in environments where the majority of employees do not have disabilities.” The Hub serves as a centralized tool for people with disabilities, their families, employers, employment service providers, and state agencies, offering essential support in navigating the complexities of CIE.

For employers, the Hub provides access to resources in key areas such as job accommodations, fostering an inclusive workplace culture, addressing the needs of specific populations, and considerations for federal agencies and contractors. By leveraging resources from an array of DOL agencies and entities, along with contributions from other federal agencies and private organizations, the Hub equips employers with the knowledge and tools necessary to create inclusive and supportive work environments.

Assistant Secretary for Disability Employment Policy Taryn M. Williams emphasized the importance of supporting employers in implementing accommodations and inclusive policies. The Hub’s goal is to promote job quality and universal access to good jobs for all individuals, including those from historically underserved communities.

Disclaimer: this information is not intended as legal advice. Please consult with legal counsel to ensure your organization’s compliance with applicable legal requirements.