DISCLAIMER: This post is a general overview of New York employment laws relating to discrimination, in light of uncertainties in the federal government. It is not legal advice. If you have concerns, please make an appointment to discuss it with an attorney of your choosing and in your jurisdiction.
I can’t think of anyone I’ve spoken to in recent weeks who isn’t working with uncertainties since the United States Presidential election. Other countries are having similar challenges that will likely add to the US uncertainties, which is why I attended the Employment Law Institute at the New York City Bar Association today. I’ll be posting additional information to help employers and employees navigate the recent political developments that affect their workplaces. Here’s a breakdown of the key concerns and potential actions specifically for employers.
Anti-DEI Sentiment
I’ve been working in workplace dispute resolution for decades. Long before we called our work “Diversity, Equity, and Inclusion,” “DEI,” or any of the recent variations, I was working in Human Resources and helping people with disabilities find gainful employment. This work grew out of my love and appreciation for my cousin, Patricia, whose funeral was also today. As her obituary reads, she defied all the beliefs about her limitations due to Down’s Syndrome. She is one of the reasons I do the work I do, as I learned early on how cruel people could be about others they deemed “different” and therefore “unworthy” of the lives the rest of us seek–or take for granted. I still don’t understand this and hope I never become a person who condones such exclusion.
Yes, that is one of the consequences of the attacks on DEI. Whether intended or not, bans on DEI programs risk restoring obstacles for people with physical, mental, and developmental disabilities. People like “Trish.” And Maddie. And Chris…
DEI Under Scrutiny
President Trump’s recent Executive Orders (EOs) and policy changes aim to dismantle DEI initiatives within federal agencies and among federal contractors. Although we have not been specifically named, the Department of Justice has authorized criminal investigation of organizations like Third Ear Conflict Resolution and the American Bar Association that “promote DEI.” This has private businesses and not-for-profit corporations taking down DEI statements for further legal review, which means programs that benefit people in marginalized groups will probably be put on hold.
Note that this is unnecessary. Employers must still comply with the Americans with Disabilities Act (ADA) and the Rehabilitation Act. The New York State Division on Human Rights and the New York City Commission on Human Rights are not being dismantled. Do not let what’s happening at the federal level make you forget your responsibilities to protect people with disabilities from discrimination.
EEOC Gridlock and Shifting Priorities
The Equal Employment Opportunity Commission (EEOC) currently lacks a sufficient number of Commissioners for a quorum, which severely limits its ability to:
- Draft policies
- Issue guidelines
- Investigate charges
- Authorize lawsuits
Again, do not let this think your responsibilities as an employer have changed. Where the EEOC might fail to act, the NYSDHR or NYCCHR can step up. This is also true for sex discrimination, despite EEOC Chair Andrea Lucas’ statement about “defending the binary nature of sex.” The US Supreme Court’s Bostock decision remains good law; discrimination based on sex, including sexual orientation and gender identity, is still unlawful under Title VII of the Civil Rights Act of 1964. States and municipalities might also have protections against such discriminatory conduct.
NLRB Uncertainty and Potential Changes
The NLRB is also understaffed and facing quorum issues that limit its ability to enforce the National Labor Relations Act (NLRA). Many employees accepted the buyouts and resigned. A potential government shutdown adds to the uncertainty.
Although we expect expansion of the independent contractor definition and greater allowance for non-competition agreements at the federal level, New York again has its own laws that will be largely unaffected.
Key Takeaways for Employers
The current employment law landscape is highly volatile, requiring proactive risk management. It is probably best to resolve as many legal issues as possible outside the court system. Additionally, thorough audits and risk assessments are highly recommended.
State and local laws will become increasingly important. Prepare for increased litigation at these levels, as well as more legal challenges to the actions of the federal Executive Branch.
Action Items
- Register for updates from State and local governments, as they will probably play a more significant role.
- Conduct thorough audits of DEI practices, remembering there is no hierarchy of protected classes and “reverse discrimination” is a misleading term. Eliminate all discrimination based on race, color, religion, sex, and national origin, as well as discrimination based on membership in marginalized communities.
- Perform comprehensive risk assessments of all DEI-related initiatives, including:
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- Representation Goals
- Training
- Benefits
- Marketing
- Supplier Diversity
- Affinity Groups
- Social and Cultural Events
- Charity Support