New protected class continues to gain steam: Another state joins list on Aug. 7

Heads up, Colorado employers: The Protecting Opportunities and Workers’ Rights (POWR) Act, which significantly expands workplace protections for employees, takes effect on Aug. 7.

The new law amends the Colorado Anti-Discrimination Act (CADA) by, among other things, making marital status a protected class.  

Notably, the POWR Act also lowers the bar to prove harassment claims and limits employers’ ability to state an affirmative defense to harassment claims, according to the Littler law firm.

Not a protected class under federal law

First things first: Title VII of the Civil Rights Act of 1964 is a federal law that prohibits employment discrimination based on protected classes, such as age, race, religion, sex and national origin. But marital status is not a protected class under Title VII.

However, many states have passed legislation — like Colorado’s newly enacted POWR Act — that includes marital status as a protected class. In fact, about half of the states in the U.S. and the District of Columbia list marital status as a protected class, according to the Shouse California Law Group.

Marital status discrimination looks like …

1. Pre-employment discrimination

While marital status is not a protected category under federal law, the EEOC has clarified that asking about a candidate’s marital status (or parental status) can violate Title VII if the info is used to deny or limit employment opportunities.

Specifically, the EEOC said the following inquiries “may be regarded as evidence of intent to discriminate” when asked in pre-employment interviews:

• A candidate’s marital status or plans to marry.
• The name or employment status of a candidate’s spouse.
• Whether a candidate is pregnant.
• The number and age of children or future childbearing plans.
• Childcare arrangements.

Let’s be frank though: All HR pros worth their salt know that direct questions like the ones above are obvious no-nos.

The problem, for many companies, is when hiring managers say things that come up in normal conversations – and then tack on problematic questions, perhaps without realizing that such inquiries cross a line and may violate a candidate’s legal rights. For example:

• Your ring is beautiful. Is that an engagement ring? Have you set a date?
• Oh, I know several members of the Smith family in Springfield. Is that your maiden name?
• You mentioned that you enjoy traveling, which is really helpful for this job. If you are hired, how will your spouse feel about the amount of travel time required?  

These — and other seemingly innocent questions — invite legal trouble. That’s why manager training is so crucial. Employees involved in the interviewing process need training on appropriate questions to ask job candidates.

2. Employment discrimination based on marital status

Of course, state laws and municipal ordinances vary. But generally speaking, the following actions can amount to illegal discrimination if they are based on an employee’s marital status:

• Denying certain benefits
• Denying promotions
• Making unwelcome or harassing comments
• Requiring job transfers
• Adjusting day and/or shift schedules
• Withholding pay raises, and
• Terminations.

Again, to HR pros, the list sounds fairly straightforward and obvious.

But many managers don’t know what they don’t know – and that often leads to mistakes. For example, when it comes to an employee’s marital status, a clear “danger zone” is when the person’s status changes due to life events like an engagement, a wedding, divorce or the death of a spouse.

As such, when an employee has a change in marital status, managers should err on the side of caution and consult with HR before making changes to the employee’s situation.

Even seemingly helpful adjustments – such as changing a newly divorced employee’s shifts to accommodate their childcare arrangements – can come back to bite the company if not handled correctly, so HR should be involved to ensure the situation is appropriately handled and documented.