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Released August 27, 2024

NEW LAWS ENACTED

• New Hampshire passes a law to prohibit discrimination in employment because of a person’s hairstyle or hair type as defined under the law, such as braids, locs, Afros, and headwraps. The new law will take effect September 1, 2024.
• South Dakota amends its medical cannabis law to permit adverse employment actions and refusals to hire based solely on a positive test result for cannabis metabolites for safety-sensitive jobs. This amendment also provides that no legal cause of action is created for employment discrimination or wrongful termination arising from an employer’s enforcement of a drug-free workplace policy.
• Colorado becomes the first U.S. state to enact comprehensive legislation regulating AI systems, applicable to both developers of AI technologies and the organizations that deploy them. The “Colorado AI Act,” which requires employers using AI for certain purposes to use reasonable care to avoid algorithmic discrimination, will take effect on February 1, 2026.

COURT & AGENCY NEWS

• The California Occupational Safety and Health Standards Board approved an indoor heat standard that requires workplaces to be cooled below 87 or 82 degrees Fahrenheit and requires employers to provide water, rest, cool-down areas, methods for cooling down work areas, and training.
• Michigan has made two significant changes to its employment discrimination law. First, the Michigan Supreme Court held that the state Elliott-Larsen Civil Rights Act provides a legal cause of action for associational or “third party” retaliation claims. In addition, the Michigan legislature amended that same anti-discrimination law to broaden the definition of “sex” to encompass “termination of a pregnancy” and related medical conditions, aligning Michigan law with the federal Pregnancy Discrimination Act.
• The Supreme Court of California holds that an isolated act of harassment may be legally actionable if it is sufficiently severe given the totality of the circumstances, and that a coworker’s use of a single, unambiguous racial epithet may be sufficient. The court also held that conduct that takes away an employee’s means of reporting and addressing harassment can form the basis of a retaliation claim.

New Laws Enacted

New Hampshire Joins Growing List of States to Have Adopted a CROWN Act

New Hampshire has joined over 20 states in passing a CROWN Act, a law prohibiting employment discrimination against a person based on a protective hairstyle. Under the New Hampshire law, “protective hairstyles” is defined as “hairstyles or hair type, including braids, locs, tight coils or curls, cornrows, Bantu knots, Afros, twists, and head wraps.” Effective September 1, 2024, the law will allow employees who believe they have faced discrimination due to their protective hairstyle to file a private cause of action directly in court, bypassing the New Hampshire Human Rights Commission. Employers in New Hampshire seeking to comply with the new law will be reviewing their policies and training programs prior to the effective date.

South Dakota Passes Law Allowing Employers to Prohibit Medical Cannabis Use by Employees in Safety-Sensitive Jobs

South Dakota has amended its medical cannabis law, effective July 1, 2024, to permit adverse employment actions or refusals to hire based solely on a positive test result for cannabis metabolites in safety-sensitive jobs. These roles include positions where an employer reasonably believes that the tasks could cause illness, injury, or death, or result in serious property damage. The law also provides that employers are not liable for employment discrimination or wrongful termination claims when enforcing a drug-free workplace policy, including drug-testing programs that comply with state and federal laws.

Colorado Becomes First U.S. State to Enact a Broadly Applicable Artificial Intelligence Law

On May 17, 2024, Colorado became the first U.S. state to enact comprehensive legislation regulating AI systems, applicable to both developers of AI technologies and the organizations that deploy them (such as employers). The Colorado AI Act, which is set to take effect on February 1, 2026, targets “high-risk” AI systems, defined as those that make or substantially influence consequential decisions–such as those related to a person’s employment.

The Act requires developers and deployers of these systems to exercise reasonable care to avoid “algorithmic discrimination” and mandates the reporting of any such discrimination to the Colorado Attorney General within 90 days of discovery. Algorithmic discrimination is defined as any situation where “the use of an artificial intelligence system results in an unlawful differential treatment or impact that disfavors an individual or group of individuals on the basis of their actual or perceived age, color, disability, ethnicity, genetic information, limited proficient in the English language, national origin, race, religion, reproductive health, sex, veteran status, or other classification protected under the laws of [Colorado] or federal law.”

The law also imposes specific obligations on both developers and deployers to avoid algorithmic discrimination, such as by conducting annual impact assessments, implementing risk management policies, and providing transparency through notifications to consumers affected by AI-driven decisions. These requirements aim to ensure that AI systems are used responsibly and that any risks of algorithmic bias are identified and mitigated, particularly in areas with significant impacts on individuals’ lives.

Court & Agency News

Cal OSHA Adopts New Heat-Safety Rules

California’s Occupational Safety and Health Standards Board has approved a new indoor heat standard which requires employers to take specific measures to protect workers in environments where temperatures reach 82°F or higher (as can occur in some restaurants, warehouses, and manufacturing sites, for example). This regulation, which was effective July 23, 2024, requires employers to implement a written Indoor Heat Illness Prevention Plan (IHIPP) that includes provisions for water access, cool-down areas, acclimatization, emergency response procedures, and comprehensive training for employees and supervisors.

For workplaces where the temperature exceeds 87°F or where employees work in conditions that restrict heat removal, additional requirements apply, such as the need to measure and record temperature and heat index levels. Employers must also adopt engineering and administrative controls to mitigate heat-related risks and ensure that cool-down areas are maintained at temperatures below 82°F. The standard highlights the importance of proactive measures to prevent heat illness, emphasizing the need for regular monitoring, adequate rest periods, and emergency preparedness in hot indoor environments.

Two New Developments in Michigan’s Anti-Discrimination Law

Michigan has made two significant changes to its employment discrimination law. First, the Michigan Supreme Court has ruled that third-party or associational retaliation claims are actionable under the Elliott-Larsen Civil Rights Act (ELCRA). In the case Miller v. Department of Corrections, the Court held that the ELCRA’s anti-retaliation provisions do not distinguish between direct and third-party retaliation, allowing individuals to pursue claims if they suffer adverse actions due to their close association with someone who engaged in protected activity. This decision overturns a previous Court of Appeals ruling that had excluded third-party claims under the ELCRA.

Additionally, the Michigan Legislature has amended the ELCRA to expand its protections against workplace discrimination to include all pregnancy terminations, effective March 31, 2024. The amendment broadens the definition of “sex” to encompass “termination of a pregnancy” and related medical conditions, aligning Michigan law with the federal Pregnancy Discrimination Act. This change eliminates previous language that had excluded nontherapeutic abortions from the scope of the law.

California Supreme Court Rules That a Single Comment Can Constitute Harassment

In a landmark ruling on July 29, 2024, the Supreme Court of California held that an isolated act of harassment, such as a coworker’s use of a single racial epithet, may be actionable under the California Fair Employment and Housing Act (FEHA) if it is sufficiently severe when considering the totality of the circumstances. The case, Bailey v. San Francisco District Attorney’s Office, involved an African-American employee who alleged that a coworker used a racial slur against her. The Court emphasized that even a single use of an unambiguous racial epithet can create a hostile work environment and lead to employer liability if the incident is not appropriately addressed.

The Court also addressed the issue of retaliation, ruling that actions taken by an HR manager to impede the employee’s ability to report and address the harassment could constitute an adverse employment action. The ruling underscores the importance for employers to take all harassment complaints seriously, consider making multiple avenues for reporting available, and respond promptly and effectively to incidents of harassment or retaliation in the workplace.

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