Recent cases in New York and Pennsylvania demonstrate that, at least in some jurisdictions and under some circumstances, a plaintiff can state a valid claim for unlawful gender discrimination based on a spouse’s jealousy.
California has joined a growing list of jurisdictions, including New York City, Massachusetts, Delaware and Oregon, among others, banning salary history inquiries from job applicants. Governor Brown signed the law into effect last week and it becomes effective on January 1, 2018.
Beginning on October 31st, New York City employers will be prohibited from inquiring about or relying on salary history during the hiring process. As a reminder, this ban makes it an unlawful discriminatory practice for an employer, employment agency, or employee or agent of the employer to: (1) inquire about the salary history of an applicant; or (2) rely on salary history of an applicant to determine salary, benefits, or other compensation for such applicant during the hiring process. Employers should revise their hiring processes in order to comply with the new law as soon as possible.
Recently, the New York City Commission on Human Rights released guidance regarding the ban on salary history inquiries in the form of two “Fact Sheets.” Both Fact Sheets answer the same questions, one from the perspective of employers, the other from the perspective of job applicants. The Fact Sheet for Employers provides the following questions and answers:
Last month, the EEOC filed a lawsuit against Estee Lauder in a Pennsylvania federal court alleging that Estee Lauder’s parental leave policy discriminates against employees on the basis of gender by providing unequal benefits to biological mothers and fathers. What’s notable about this lawsuit is that it involves a policy which, on its face, uses a “primary” and “secondary” caregiver distinction that provides different amounts of leave to employees based on that distinction without regard to their gender – a practice used by many employers in their parental leave policies. This lawsuit has left many employers wondering whether such a policy is at risk of being unlawful. We do not think it is at this time.
What is happening in employment law? We will be providing you with quick employment law updates on a bi-monthly basis in a new series called “The Bubbler.” It will let you know what’s what and who’s who in the continually-evolving, ever-important, hard-to-keep-track-of employment law world. The Bubbler delivers current events and other important news to our readers without the time or the interest to piece through the recent legislation, the ever-growing release of regulations and other agency guidance and the lengthy court decisions. We’re your colleagues at the water cooler who tell you just enough to pique your interest (but then provide links to satisfy your curiosity). Enjoy!
In a recent series of articles, we asked whether “class arbitration” — meaning the utilization of a Fed. R. Civ. P. 23 class action protocol in an arbitration proceeding — is ultimately viable. Given the nature of arbitration, we suggested that it arguably is not. We noted that the United States Supreme Court and various Courts of Appeal had examined several related procedural questions, but that they had not gotten to the core issues that would ultimately determine the viability of a class arbitration award.
As we recently blogged about here, efforts to ban inquiries related to applicants’ salary history have gained momentum across the country. Last Friday, New York City Mayor Bill de Blasio joined this trend by signing into law a bill prohibiting New York City employers from inquiring about prospective employees’ salary history. When it takes effect on October 31, 2017, the law will prohibit employers from communicating “any question or statement to an applicant, an applicant’s current or prior employer, or a current or former employee or agent of the applicant’s current or prior employer, in writing or otherwise, for the purpose of obtaining an applicant’s salary history, or to conduct a search of publicly available records or reports for the purpose of obtaining an applicant’s salary history.” “Salary history” includes the applicant’s current or prior wage, benefits or other compensation.
As we observed in a recent post on the Seventh Circuit’s decision in Hively v. Ivy Tech Community College extending Title VII to sexual orientation claims, the Supreme Court will probably have to resolve the disagreement among the federal circuit courts over whether the statutory language “because of…sex” should be interpreted to include “because of…sexual orientation.” And sure enough, on the heels of one Second Circuit panel decision late last month that refused to extend Title VII to cover sexual orientation, a different panel of that court again declined last week to reverse its own precedent, finding that Title VII’s prohibition against sex discrimination does not extend to discrimination against lesbian, gay, and bisexual employees based purely on their sexual orientation.
We had such a spirited panel discussion on pay equity at our Third Annual Employment Law Summit recently that we wanted to follow up with a post addressing the current state of play on pay equity legislation, particularly with respect to salary history disclosure laws. This is a rapidly advancing area of the law in which we continue to see new developments.
In a landmark en banc decision rejecting its earlier panel ruling, the U.S. Court of Appeals for the Seventh Circuit became the first federal appellate court to hold that Title VII of the 1964 Civil Rights Act prohibits discrimination in employment on the basis of sexual orientation. While the employer in the case, Hively v. Ivy Tech Community College, No. 15-1720 (7th Cir. April 4, 2017), has indicated that it does not intend to appeal the Seventh Circuit’s ruling, the conflict between the court’s holding and recent Second and Eleventh Circuit decisions makes it likely that this issue will reach the Supreme Court in the near future.