The United States Supreme Court in Cummings v. Premier Rehab held that emotional distress damages are not available in a private right of action in Spending Clause statutes such as Section 1557 of the ACA, Section 504 of the ADA, or Section IV of the Civil Rights Act.
On his first day in office, President Biden issued several Executive Orders. Two of those executive orders are key in advancing the rights of the LGBTQIA Community.
First, President Biden issued the Executive Order on Preventing and Combating Discrimination on the Basis of Gender Identity or Sexual Orientation. The Executive Order states that “Every person should be treated with respect and dignity and should be able to live without fear, no matter who they are or whom they love. Children should be able to learn without worrying about whether they will be denied access to the restroom, the locker room, or school sports. Adults should be able to earn a living and pursue a vocation knowing that they will not be fired, demoted, or mistreated because of whom they go home to or because how they dress does not conform to sex-based stereotypes. People should be able to access healthcare and secure a roof over their heads without being subjected to sex discrimination. All persons should receive equal treatment under the law, no matter their gender identity or sexual orientation.”
After citing to the Supreme Court’s recent decision in Bostock and noting that such principles are reflected in the Constitution, President Biden continues by stating that “It is the policy of my Administration to prevent and combat discrimination on the basis of gender identity or sexual orientation, and to fully enforce Title VII and other laws that prohibit discrimination on the basis of gender identity or sexual orientation. It is also the policy of my Administration to address overlapping forms of discrimination.”
The President orders federal agencies to review agency actions promulgated under Title VII or similar statutes to determine whether such actions need to be revised or suspended, or whether new action need be taken, and to develop a plan within 100 days of the order.
Second, the President issued Executive Order on Advancing Racial Equity and Support for Underserved Communities Through the Federal Government. The President states that “It is . . . the policy of my Administration that the Federal Government should pursue a comprehensive approach to advancing equity for all, including people of color and others who have been historically underserved, marginalized, and adversely affected by persistent poverty and inequality. Affirmatively advancing equity, civil rights, racial justice, and equal opportunity is the responsibility of the whole of our Government. Because advancing equity requires a systematic approach to embedding fairness in decision-making processes, executive departments and agencies (agencies) must recognize and work to redress inequities in their policies and programs that serve as barriers to equal opportunity.”
The order broadly applies to “underserved communities,” including “Black, Latino, and Indigenous and Native American persons, Asian Americans and Pacific Islanders and other persons of color; members of religious minorities; lesbian, gay, bisexual, transgender, and queer (LGBTQ+) persons; persons with disabilities; persons who live in rural areas; and persons otherwise adversely affected by persistent poverty or inequality.”
Among other requirements, the Executive Order requires the White House Domestic Policy Council (DPC) to coordinate efforts to embed equity principles, policies, and approaches across the Federal Government. It further requires the Director of the Office of Management and Budget (OMB) to partner with the heads of agencies to study methods for assessing whether agency policies and actions create or exacerbate barriers to full and equal participation by all eligible individuals. Furthermore, the head of each agency, or designee, must, in consultation with the Director of OMB, select certain of the agency’s programs and policies for a review that will assess whether underserved communities and their members face systemic barriers in accessing benefits and opportunities available pursuant to those policies and programs. In addition, the Federal Government must allocate resources to address the historic failure to invest sufficiently, justly, and equally in underserved communities, as well as individuals from those communities. Finally, the Executive Order establishes an Interagency Working Group in order to establish necessary data to measure and advance equity.
The Oregon legislature recently passed two new laws that will provide more protection for pregnant workers and breastfeeding mothers in the workplace.
First, the Employer Accommodation for Pregnancy Act extends protections to pregnant workers. The Law requires reasonable accommodations for medical conditions related to pregnancy and makes it unlawful to discriminate or deny employment to an applicant based on the need to make a reasonable accommodation. The governor signed House Bill 2341 in May 2019. The law goes into effect on January 1, 2020.
Soon, employers with 6 or more employees will be required to provide reasonable accommodations, including but not limited to: acquisition or modification of equipment or devices; more frequent or longer break periods or periodic rest; assistance with manual labor; or modification of work schedules or job assignments. Examples include a chair for a cashier who usually stands, light duty for a worker who can no longer lift heavy items, or more frequent breaks to use the restroom. The Act is intended to protect all pregnant employees and applicants even if pregnancy/childbirth does not result in a technical disability. Reasonable accommodations also include leave, but an employer cannot force a pregnant employee to take leave (or any other accommodation) that the employee does not need.
This Act ensures that employers do not:
Deny employment opportunities if based on the need to make reasonable accommodations;
Fail or refuse to make reasonable accommodations (unless undue hardship of operation of the business);
Take adverse action including discrimination or retaliation against the employee because they inquired about or requested reasonable accommodations;
Require an applicant or employee to accept an accommodation that is unnecessary to perform the essential duties of the job or to accept accommodation if they do not have a known limitation; or
Require an employee to take family leave or other leave if the employer can make reasonable accommodations.
BOLI reports that employers who accommodate pregnant employees can help eliminate the "motherhood penalty" while improving employee morale and productivity. BOLI also confirms that businesses that provide these accommodations typically incur a benefit because these accommodations usually come at no or low cost to employers, lead to higher employer satisfaction, productivity and loyalty, and allow employers to retain qualified employees.
An employee who alleges a violation of the Act may bring a civil action for damages or file a complaint with BOLI.
Second, through a separate bill, HB 2593, the Oregon legislature amended Oregon’s law related to milk expression in the workplace to conform to federal law. These amendments change the period of rest breaks for milk expression from 30 minutes every four hours to a "reasonable rest period." The amendments also require employers to provide reasonable rest periods to accommodate an employee who needs to express milk. These amendments go into effect on September 29, 2019.
Under the amended law, employees are required to provide reasonable notice to the employer regarding the employee’s intention to express milk upon returning to work after the child’s birth – but failure to give notice is not grounds for discipline.
The amendments further require employers to make reasonable efforts to provide a location in close proximity to the employee’s work area, other than public restroom or toilet stall, for the employee to express milk in private. And an employer may allow an employee to temporarily change job duties if their regular job duties do not allow the employee to express milk.
This is vital for new moms because waiting too long between pumping or feeding can cause serious issues and infections. These amendments will lead to long-term benefits, enabling more women to support the health of their child through continued breastfeeding when returning to work.
The Oregon legislature recently took a huge stand for victims of workplace discrimination and harassment by unanimously passing Senate Bill (SB) 726, the Oregon Workplace Fairness Act. The Act provides additional protections to workers experiencing various kinds of harassment and discrimination in the workplace. The Act can be attributed in part to the #MeToo movement, which shed light on the fact that at least one-in-four women experience workplace sexual harassment, but 75% of women face retaliation after reporting an incident. A staggering 94% of employees experiencing harassment do not file a formal complaint.
In a statement to OPB, Sen. Kathleen Taylor, D-Milwaukie, one of the chief sponsors of SB 726, stated that the goal of the legislation is to shift the power dynamic “to give employees a stronger voice when they are victims of discrimination and harassment.”
The Act expands existing civil and administrative remedies for violations against unlawful employment practices. The most significant change may be the Act’s extension of Oregon’s statute of limitations from one to five years for any workplace discrimination/harassment claims under ORS 659A.030 (related to race, color, religion, sex, sexual orientation (including gender identity), national origin, marital status, age), ORS 659A.112 (disability), and ORS 659A.082 (veterans status). This extension is critical to protecting the rights of victims of harassment and discrimination, as victims often do not appreciate that their experience at work constitutes discrimination or harassment or is illegal, or otherwise may not report harassment or discrimination out for fear of retaliation. This change is not effective immediately and this does not affect other applicable timelines, like Tort Claims Notice requirements against public employers or exhaustion of federal claims such as Title VII or ADA claims — if you think you may be a victim of harassment or discrimination in the workplace, you should still seek legal assistance as soon as possible, as such time limitations may affect your rights to pursue certain legal claims, particularly if you work for a public employer.
The Act also creates a significant change in Oregon law related to non-disclosure agreements and non-disparagement provisions related to workplace discrimination and harassment claims. These type of agreements usually prohibit employees from disclosing even the underlying facts of the alleged harassment or discrimination. The Act prohibits employers from requiring such provisions relating to claims of discrimination under ORS 659A.030, 659A.112, and 659A.082, and conduct that constitutes sexual assault as defined in the Act, even if such conduct occurred between an employer and employee off premises, when such agreements are requested as a condition of employment or during settlement and severance negotiations. However, victims are not prohibited from requesting such agreements if they desire confidentiality. This clause in the Act recognizes that such agreements have contributed to a pattern of secrecy in harassment and discrimination, because when victims are silenced and unable to tell their stories publicly, perpetrators are able to continue remaining in positions of power without accountability and are able to victimize others in those positions.
The Act is groundbreaking for the additional reason that it requires proactive action on behalf of employers to prevent harassment and discrimination in the workplace. The Act requires every employer in the state to adopt written policies containing procedures and practices for reduction and prevention of unlawful discrimination under ORS 659A.030, including sexual assault as defined by the Act, and discrimination under ORS 659A.112 and ORS 659A.082. These policies must be posted and available to all employees in the workplace and must be provided to employees at the time of hire. At a minimum, the policy must: provide a process for an employee to report prohibited conduct; identify the individual designated by the employer who is responsible for receiving reports; include the statue of limitations period; include a statement that an employer may not require or coerce an employee to enter into a nondisclosure agreement; include that an employee claiming to be aggrieved by unlawful conduct may voluntarily request to enter into a nondisclosure agreement; and include a statement that advises everyone to document any incidents involving prohibited conduct, including sexual assault. The Oregon Bureau of Labor and Industries will create and publish policies and procedures that employers can use as guidance to establish their own policies.
The Act doesn’t just protect employees, it also provides some protection to employers. The Act provides that employers may void severance agreements for any employee with the ability to hire and fire employees, or exercise control over employees, if, after an investigation, the employer determines that such an employee engaged in conduct that violates the employer’s policies or provisions of the Act.
Overall, the Act provides critical changes to Oregon law to ensure workers who experience discrimination and harassment can seek justice and that perpetrators are ultimately held accountable. “This bill is a long overdue modernization of the statutes that govern discrimination in the workplace . . . addressing workplace discrimination and harassment is a matter of basic fairness,” said Sen. Tim Knopp, R-Bend. Sen. Kathleen Taylor (D-Portland), Sen. Tim Knopp (R-Bend), and Sen. Sara Gelser (D-Corvallis) were co-chief sponsors of the bill. A bipartisan, bicameral group of 26 legislators signed on as sponsors. The bill now proceeds to Governor Brown for her signature.
Once signed by the Governor, SB 726 will take effect 91 days after the 2019 legislature adjourns.
