Lobbying Affiliate: MML&K Government Solutions

Lessons in Workplace Liability: Acronyms That Spell Discrimination Claims, Business First, June 27, 2014


Business First, June 27, 2014

On June 10, Business First and McBrayer sponsored the first of a two-part seminar entitled "Lessons in Workplace Liability." Presented by Amy D. Cubbage and Cynthia L. Effinger, the seminar focused on the evolving world of workplace discrimination claims for employers. If you missed it, you missed out! But don't worry, below you will find an informative Q&A recap.

Business First: Should all employers be concerned with workplace discrimination claims?

Cubbage: Yes. All of them. Most employers with at least 15 employees are covered by Equal Employment Opportunity Commission ("EEOC") laws. If there are less than 15 employees, the employer still has to worry about an individual bringing a civil suit against him/her individually or the business itself for unlawful discrimination.

Business First: The EEOC is federal law, but is there also state law that employers should be aware of that prohibits discrimination?

Effinger: You are correct that the EEOC is federal law. Kentucky does have its own law, the Kentucky Civil Rights Act, which makes it illegal for an employer to discriminate on the basis of several things such as race or religion. So, in order to understand employment obligations, employers must be knowledgeable of both federal and Kentucky law.

Business First: Is there greater potential for discrimination claims now than in the past?

Effinger: Employers have always had to be concerned about workplace discrimination - not only from a legal liability standpoint, but also because discrimination can halt productivity and ruin a business's reputation. Today, however, the EEOC is pursuing discrimination claims at an unprecedented rate. In 2013, the EEOC recovered about $372 million for aggrieved workers, more money than any other year in the agency's history. Defending a discrimination claim can be costly, timely, and drain the resources of any business.

Business First: Are there any new laws that employers should be aware of when it comes to employee protection?

Effinger: The Genetic Information Nondiscrimination Act of 2008 ("GINA") is a federal law that protects people from genetic discrimination in health insurance and employment. GINA is concerned primarily with protecting individuals who may be discriminated against because an employer thinks they are at increased risk of acquiring a condition in the future. We see GINA violations most commonly come from employers' requests for family information in conjunction with an employee's (or potential employee's) physical examination. Though the law was passed in 2008, the EEOC pursued its first litigation based on GINA violations in 2013. It is an up-and-coming area of liability.

Business First: What other areas should cause employers concern?

Cubbage: Employers are always worried about compliance with the Americans with Disabilities Act ("ADA"). In 2008, Congress passed the ADA Amendments Act ("ADAAA"), which made significant changes to the ADA and generally it easier for employees to request, and be lawfully entitled to, reasonable requests for accommodations in the workplace. Additionally, we are also seeing claims made by LGBT individuals on the rise. Title VII protects individuals on the basis of sex and in 2013 the EEOC took the position that discriminating against a transgender individual is discrimination based on sex, so look for more of these claims to arise in the future.

Business First: So, with so much potential for discrimination claims, what can employers do to protect themselves and their business from liability?

Effinger: First, be sure to always include a non-discrimination disclaimer in employee manuals. Know that the laws apply to all types of work situations, including hiring, firing, promotions, harassment, training, wages, and benefits. Promote a culture of non-discrimination and make sure that employees feel comfortable reporting incidents to the human resources department or a designated individual. I also suggest joining us for Part Two of Lessons in Workplace Liability where Amy and I will discuss how to use job descriptions and performance reviews to avoid discrimination claims. If used properly and consistently, these documents can also be a great tool to protect against employer liability risks.

Cynthia L. Effinger is an Associate in the Louisville office of McBrayer, McGinnis, Leslie & Kirkland, PLLC. Ms. Effinger's practice is concentrated in the areas of employment law and commercial litigation. Her employment law practice is focused on drafting employment manuals and policies, social media, wage and hour, non-compete agreements and workplace discrimination. Ms. Effinger may be reached at (502) 327-5400, ext. 2316 or ceffinger@mmlk.com.

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