Seems like the definition of workplace discrimination is continually expanding. We recently came across three accounts that spotlight potential new areas of concern for employers — one you’ve probably thought about, one that might surprise you and one that seems a little far-fetched.
Workplace bullying
Uma Chandrasekaran, writing on Seyfarth Shaw’s Employment Law Lookout blog, notes that 25 states have considered anti-bullying legislation over the past decade — Pennsylvania and Massachusetts among the most recent.
Both states’ proposals define an abusive workplace environment as one where “an employer or one or more of its employees, acting with intent to cause pain or distress to an employee, subjects that employee to abusive conduct that causes physical harm [and/or] psychological harm.”
Here’s the rub, however: The proposed laws state that physical and psychological harm must be established by “competent evidence,” but don’t define what that means.
Employers can escape liability by showing they exercised “reasonable care to prevent and correct promptly any actionable behavior and the complainant employee unreasonably failed to take advantage of appropriate preventive or corrective opportunities provided by the employer,” Chandrasekaran writes.
If an employer is found to have allowed such an abusive work environment to exist, the bills allow courts to order relief to the victim through job reinstatement, back and front pay, punitive damages and attorney’s fees.
Putting an end to workplace bullying is a universal goal for companies. But as Chandrasekaran notes, “Opponents of the bills criticize that they appear to be nothing more than a legislatively imposed civility code. There is also concern that the bills provide little guidance as to what constitutes inappropriate behavior and may expose companies to frivolous lawsuits from disgruntled employees.
“But the trend suggests that it may only be a matter of time before employers will need to be ready” for bullying to be on the list of potential legal pitfalls.
Bias against the homeless
Two states — Rhode Island and Connecticut — have already enacted laws banning employment discrimination against the homeless.
Robert Brody and Rebecca Goldberg, writing on the Brody and Associates blog, say it’s entirely likely we’ll see more of this type of legislation in the future.
They lay out a pretty convincing case:
Is discrimination against the homeless already unlawful? Arguably so. There is no federal law explicitly prohibiting employment discrimination on the basis of homelessness, but it could be an extension of federal laws under a disparate impact theory.
Under the “disparate impact” theory of discrimination, a practice is unlawful if it disproportionately harms members of protected classes, unless the practice is “job related and consistent with business necessity.”
Arguably, discrimination against the homeless is unlawful because of its disparate impact on certain protected classes.
On a national level, according to homeless advocacy groups, the homeless population is disproportionately African-American and/or Hispanic, so a homeless African-American job applicant could have a legal claim. Likewise, a disproportionate percentage of those with severe mental illness are homeless, so they, too, could have a legal claim.
Such claims would be available under federal or state laws prohibiting discrimination on the basis of race, national origin, and disability.
Bias against former porn stars
Finally, a recent piece on Salon.com brought up an employment dilemma we really hadn’t thought about before: the treatment of porn performers when they leave showbiz to get regular jobs.
Author EJ Dickson tells the tale of a former film performer whose name is given as simply Gauge. She retired from the adult film industry in 2005, but had a miserable time finding regular work. According to Dickson, she went to school to get her certification as a surgical tech, reaching the top of her class and logging double her required hours in the process.
Then an anesthesia tech recognized her, and word spread through the hospital staff that a porn star was among their ranks. “Everybody wanted me in their room, but they started treating me like [expletive],” Dickson quotes Gauge as saying. “They made me feel like I was contaminating everything.” By the time she was set to graduate, no one at the hospital would sign off on her required hours.
So she then went to criminal justice school. And then makeup artist school. But she just couldn’t get a job. Finally, she resumed her career in front of the camera.
Another adult film star worked at a real estate firm for five years — until a co-worker recognized her. Then she was fired.
She thought about filing suit, but decided against it, thinking she’d be blacklisted by the real estate community.
If she had filed suit, she’d have had a tough time getting anywhere in the courts, according to an adult entertainment attorney quoted in the Dickson piece. Employee discrimination cases involving sex workers are “very, very difficult to win,” said Michael Fattorosi. Under current discrimination laws, there are no protections for former sex workers, and firing someone for their porn past is “not like saying we’re letting you go because you’re black or Jewish or you wear a turban. Those things are not a result of a life choice you make, and being a sex worker is.”
And there’s a double whammy for sex stars who’re looking for regular work, Dickson wrote: An employee who failed to disclose a porn past on his or her résumé would be compromised even further; the employer could argue that the employee had been hired under false pretenses.
