Released February 7, 2023

Highlights

LAWS TO WATCH

Enacted:

  • The U.S. Congress enacted the Pregnant Workers Fairness Act, requiring most employers to reasonably accommodate workers who are limited by pregnancy and related conditions.
  • Minnesota became the 20th U.S. state to adopt the CROWN Act, which bans employment and other forms of discrimination based on a person’s hair texture or hairstyles associated with their race, such as braids, locs, and twists.

Pending:

  • A bipartisan group in Congress agrees with the Federal Trade Commission that the legal reforms are needed to the way employers use non-compete agreements.
  • Virginia and Hawaii both introduced bills that would mandate anti-harassment training.

POLICY REPORT

  • The U.S. Equal Employment Opportunity Commission (EEOC) issued a Draft Strategic Enforcement Plan revealing its top focus areas, held a hearing on the use of artificial intelligence and automated systems, and issued guidance for employers on the laws that protect workers from discrimination based on a hearing impairment.
  • New York State proposed a new sexual harassment policy template for employers to integrate into their employer handbooks.

Laws to Watch

Newly Enacted Laws

Congress requires accommodations for pregnant workers.

As part of H.R.2617, an appropriations law, the U.S. Congress enacted the Pregnant Workers Fairness Act (PWFA), effective June 27, 2023. This new law requires most employers to reasonably accommodate workers who are limited by pregnancy and related conditions. While inspired by and similar to the Americans with Disabilities Act (ADA)—which requires reasonable accommodations for employees with disabilities—the PWFA differs in important respects.

Most notably, unlike the ADA, a pregnant worker need not be disabled by pregnancy or related conditions to be covered by the PWFA. Under the PWFA, a worker is covered if they have a “physical or mental condition related to, affected by, or arising out of pregnancy, childbirth, or related medical conditions that the employee or employee’s representative has communicated to the employer.” Like the ADA, the PWFA requires employers to provide reasonable accommodations to permit covered employees to perform the job’s essential functions, unless it causes an undue hardship. Unlike the ADA, the PWFA requires employers to reasonably accommodate employees who temporarily cannot perform an essential function of the job, so long as they can perform it in the near future. (The ADA requires reasonable accommodations only to employees who can perform the job’s essential functions, whether with or without the accommodations.)

The PWFA also explicitly states that it would be illegal discrimination to require a covered employee to take a leave of absence if another reasonable accommodation can be provided. In other words, requiring time off should be a last resort, only if no other reasonable accommodation would satisfy the law’s requirement. Like the ADA, the PWFA prohibits discriminating or retaliating against a covered employee based on their condition (e.g., disability or pregnancy, respectively).

Congress gave the Equal Employment Opportunity Commision (EEOC) the power to enforce and regulate the PWFA. The EEOC, of course, already enforces the ADA, Title VII, and other laws that prohibit employment discrimination. The EEOC is charged with issuing regulations to the PWFA by December 29, 2023. The agency plans to make enforcing the PWFA a top priority over the next four years. (For more, please see the article about the EEOC’s draft Strategic Enforcement Plan, below.)

Minnesota enacts the CROWN Act

Minnesota enacted a new law, HF 37,which bans employment and other forms of discrimination based on a person’s hair texture or hairstyles associated with their race, such as braids, locs, and twists. According to a press release by the House of Representatives, Minnesota will be the 20th state to adopt the CROWN Act, which is an acronym for “Creating a Respectful and Open World for Natural Hair.” Representative and bill sponsor Esther Agbaje stated that:

By adding this clarifying definition to our law, we can proudly say that Minnesota is an inclusive state that wants everyone to thrive and not have the additional mental strain of worrying about their hair … In 2023, we should not be asking people to tamp down their identity or their culture.

Pending Laws

Congress calls for curtailing non-competes

A bipartisan group of six lawmakers from the U.S. Senate and House of Representatives have introduced the Workforce Mobility Act, a bill that would limit the use of non-compete agreements in employment. Non-compete agreements generally prohibit workers from working for competitors of a former employer for a certain time and within a certain geographic distance. Under current law, these agreements are permitted so long as they don’t violate the antitrust laws against unfair competition (under some circumstances, non-competes can unfairly limit the ability of workers to compete for jobs).

The bill would basically limit the use of non-competes to

  • business owners selling a business
  • senior executives with severance agreements as part of the sale of a business
  • partners dissolving a partnership
  • specific time periods and geographical areas

According to a press release, the Workforce Mobility Act would “require employers to make their employees aware of the limitation on non-competes.”

Not long before this introduction of this bill, the Federal Trade Commission (FTC), which enforces the laws against deceptive business practices, issued a proposed rule that would, if adopted, go even further than this bill, by outright banning most non-competes — even if they were entered into prior to the rule’s adoption.

If the Workforce Mobility Act is enacted or the FTC’s proposed rule is adopted (or both), employers may need to inform—and even train—their workers about how the employer complies with the law or laws. While the current text of the Workforce Mobility Act does not explicitly require training, it would require employers to post notices about the Workforce Mobility Act “in a conspicuous place,” either on the employer’s premises or where employee notices are usually posted physically or electronically.

For a one-page synopsis of both pending laws, you may also be interested in this article by employment attorney and blogger Eric B. Meyer.

Virginia & Hawaii bills to mandate anti-harassment training

The U.S. state of Virginia has introduced HB 2003, a bill that would require employers with 50 or more employees to provide annual discrimination and harassment prevention training to employees. While the bill is modeled on California’s sexual harassment prevention training mandate, Virginia’s bill aims higher by including all forms of discrimination and harassment (not just sexual harassment). State lawmakers attempted to pass a training mandate of this sort (HB 757) in 2022, but that bill died in committee.

S.B. 1607, a bill in the U.S. state of Hawaii, would require talent agencies who employ minors to ensure that they and their parents or guardians receive training on sexual harassment and nutrition and eating disorders. California enacted a similar law effective on January 1, 2019.

Policy News

U.S. EEOC’s enforcement plans and priorities

The U.S. Equal Employment Opportunity Commission (EEOC) was created by the landmark Civil Rights Act of 1964 in direct response to calls for racial and economic justice at the historic March on Washington for Jobs and Freedom.

So begins the EEOC’s Executive Summary of its Draft Stategic Enforcement Plan. If adopted, the draft Plan will set the EEOC’s priorities, impacting employers’ policies and focus areas for years to come. During fiscal years 2023-2027, the agency proposes to emphasize enforcing employment anti-discrimination laws related to

  • recruiting and hiring, including the use of automated systems and artificial intelligence in these processes
    • the EEOC explains that the “lack of diversity in certain industries and workplaces (such as construction and high tech, among others), especially in growth industries and industries that benefit from substantial federal investment, are also areas of particular concern”
  • vulnerable workers, such as migrant and temp workers, people with disabilities, people with conviction or arrest records, LGBTQI+ individuals, older workers, low-wage and teen-aged workers, Native Americans and Alaska Natives, and people with limited literacy or English proficiency
  • pregnancy discrimination, including prohibited acts under the new PWFA (see article above)
  • discrimination occurring as a backlash to current events and issues, including COVID-19
  • equal pay and anti-retaliation laws
  • potentially illegal employment agreements, including contracts that ban employees from disclosing misconduct or speaking negatively in public about an employer (e.g., contracts covered by the new Speak Out Act)

The draft Plan is open for public comments until February 9, 2023.

As if to say “we’re serious,” the agency recently held a public hearing on the first topic in the above bullet list, the potential for employment discrimination in the use of AI and automated systems. “Automated hiring programs are initially advertised as a way to clone your best worker—a slogan that, in effect, replicates bias,” Ifeoma Ajunwa, an associate professor of law, told HR Dive. The law firm Ogletree Deakins reports that one recommendation that emerged from the hearing involved requiring employers to give employees and job applicants notice if the employer used AI and automated systems in the hiring and performance evaluation process. You may also be interested in reading this NPR article summarizing last year’s EEOC guidance on the topic.

On another related note, the EEOC also published an updated resource, “Hearing Disabilities in the Workplace and the Americans with Disabilities Act,” which includes many examples to assist employers in navigating recruiting, interviewing, and hiring employees with disabilities while avoiding improper questions and illegal discrimination. The agency notes that 15% of people in the U.S. have hearing impairments. According to HR Dive, the EEOC has recently pursued several enforcement actions against employers for allegedly discriminating based on a worker’s hearing impairment, including two in January alone.

New York Proposes Updated Anti-Harassment Policy

New York State has proposed a new sexual harassment policy template for employers to integrate into their employer handbooks. State law requires employers to adopt the model sexual harassment policy or to establish their own policies that equal or exceed the minimum standards of the model. The law also requires the state Department of Labor and the Division of Human Rights to evaluate these model policies every four years starting in 2022, and to update them “as needed.” Public comment is invited until February 11, 2023, after which the agency will consider the comments before taking further action.

The draft model policy has increased from the current 8 pages, to 11 pages. In addition to the minimum standards that must be covered under the law and the material already covered in the current version, the proposed model policy would include new material explaining that sexual harassment can:

  • occur remotely
  • be based on an employee’s gender, gender identity, gender expression (perceived or actual), and/or sexual orientation
  • involve intersectional harassment based on more than one protected characteristics (e.g., sex, age, and race)
  • include independent contractors, gig and temp workers, and vendors under contract

Notably, the proposed model policy would cover and encourage bystander intervention, even though covering this topic is not required by New York’s sexual harassment prevention training mandate. The proposal also includes the state’s recently introduced sexual harassment hotline.

While the state is not obligated to provide updates to its model sexual harassment training template (only to the policy template), understanding the model policy will help New York employers to glimpse the enforcement priorities of the agencies that produced the models. These employers may then evaluate whether to update their own policies and practices, and whether to include the new areas covered in the proposal into their anti-harassment training programs—or ask their training providers if the training will reflect the proposed update if adopted.

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