Protecting Yourself from Protected Classes Liability

Q&A with Chris Williams, Employee Practices Liability Product Manager, Travelers
By Zach West Posted on October 2, 2023

Between 2017 and 2021, severity of discrimination verdicts increased almost 50%. Chris Williams, employee practices liability product manager at Travelers, digs into what employers need to know about the changes in the protected classes landscape and employer best practices for mitigating discrimination claims.

What would you say are the biggest ways the protected classes landscape has changed in recent years?

I’d say it’s twofold. The first one was the US Supreme Court decision in 2020 that held that sexual orientation and gender identity were protected classes. In other words, employers cannot discriminate against workers based on their sexual orientation, or their gender identity. Roughly 25 states had those protections in place already, but in the states without those laws that did represent a pretty meaningful change.

The second thing I’d say is there’s been a lot of activity at the state and local level in terms of additional protected classes that aren’t protected at the federal level. For example, an employer can’t discriminate against or take adverse action against an employee based on their height in certain jurisdictions. Michigan and New York City have both passed statutes to that effect. Employers in those states might have to provide an accommodation, such as a desk that’s higher or lower for those individuals.

Similarly, certain jurisdictions now prohibit discrimination based on a person’s weight, and that includes Michigan, Washington state and New York City. A number of states and municipalities have introduced statutes to prohibit discrimination based on political affiliation—an employer can’t take an adverse action such as terminating an individual for supporting Biden or Trump in the 2020 election.

That's interesting. I had no idea that height was a protected class. Are there any other interesting ones that stand out?

Unemployment status. In New Jersey, New York, Oregon, and Washington, D.C., hiring managers can’t discriminate against somebody based on their unemployment status. Sometimes when employers see a gap in employment, they may perceive that there’s some issue with that employee, but there are often compelling reasons why there may be a gap in employment, right? Maybe this individual was sick, or maybe they were caring for an ailing family member; maybe they had to relocate because of a spouse. Those all could explain the gap in employment.

Hairstyle and texture. California, New York, New Jersey, Virginia, Colorado, Washington and others have introduced bills that say you can’t discriminate against somebody based on their hair texture and hairstyles.

What notable impact have you seen from these changes in protected classes?

If you look at the Equal Employment Opportunity Commission (EEOC) charges between 2019 and 2022, LGBTQ+ discrimination charges increased 20%. During that same time period, the merit resolutions increased by 25%—so you saw more claims on those issues once it became protected under federal statute, and the recoveries also increased over time.

If you look at it from a severity standpoint, overall the severity of discrimination verdicts increased almost 50% between 2017 and 2021. It’s not clear if that’s just because of the expansion of the protected classes or if it’s social inflation or some other issue, but it’s interesting that number did increase that much during that time period.

Have you also seen an increase in religious discrimination claims?

Yes. If you look at the EEOC numbers in 2021, there were 2,111 EEOC charges filed alleging religious discrimination. In 2022, that jumped to 13,814. That’s a pretty meaningful jump.

I think it was driven primarily by employers mandating COVID-19 vaccines. Many employees and applicants sought exemptions from those vaccine mandates on religious grounds, and they filed EEOC charges over those issues if that request was denied.

What can employers do to mitigate these increases in discrimination claims?

Any time an employer is going to take an adverse action against an employee, it’s always a good idea to make sure that, first, whatever actions are taken against that employee are in accordance with the company’s own policies and procedures.

Second, if you’re going to take an adverse action against an employee, it’s always a good idea to consult with an employment lawyer, especially if you’re going to terminate the individual. That’s really just to make sure that if the employer ends up in employment litigation, they have mitigated their exposure as much as possible. The employment lawyer could help them identify issues where they could potentially face a claim from the employee.

The last thing I’d say is the importance of having an EPL policy in place. We’ve had claims where employers have done everything right, and they’ve still been sued by their employees. The EPL policy can help the employer navigate through that process, pay defense expenses and resolve the claim on the employer’s behalf.

The Pregnant Workers Fairness Act was recently passed. Do you see that having a substantial effect on employment practices liability?

It’s really too early to tell because it only went into effect on June 27, 2023. I will say that for employers it can be difficult to determine what reasonable accommodations are. Sometimes it’s pretty straightforward—maybe the pregnant employee needs additional break time or can’t do any heavy lifting. But sometimes it gets a little more complicated in terms of determining what an undue hardship is, and what the employer needs to do to accommodate that request.

Zach West Content Specialist Read More

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