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Employment Law Blog

Words Matter: Inherent Bias and Employment Discrimination

If the events of the past few weeks have shown us anything, it's that - like Black lives - words matter. Both spoken and in writing, the language we use has the power to inspire, offend, unite, and divide. Sometimes, the use of seemingly harmless words, or even the absence of words, can be influential.

For lawyers, words are our stock in trade. In contracts and other transactions, choosing the right terms leads to agreement; selecting vague and ambiguous terms, or choosing not to abide by them, leads to disagreement and courtroom disputes. This is no more important than in the employer-employee relationship, especially when invidious racial discrimination exists.

Supreme Court Decisions Provide a Glimmer of Hope for Racial Justice

The current chaos in our lives includes a pandemic that has put over twenty million people out of work and the seemingly unceasing killing of Black people by police. But last week, we saw glimmers of hope for a better future.

On Thursday, June 18, 2020, the U.S. Supreme Court rejected the Trump administration's attempts to rescind the DACA program. Three days earlier, the high court found the language of Title VII of the Civil Rights Act of 1964 (prohibiting sex discrimination) applies to discrimination based on sexual orientation and gender identity. Both decisions significantly impact workers of color and suggest that the hard work the racial and social justice movements may be bearing fruit.

"Dreamers" Fight Against Discrimination Continues Following Supreme Court DACA Ruling

In a significant victory for immigrants' rights, the U.S Supreme Court blocked the Trump Administration's attempt to rescind the Deferred Action for Childhood Arrivals (DACA) program. The Court's surprising 5-4 decision found the administration failed to provide legally sufficient reasons for ending the program under the Administrative Procedure Act.

While the Court's decision in Department of Homeland Security v. Regents of University of California (Regents) acknowledges the Administration can end DACA if it provides a sufficient reason, many legal and political experts agree that it will be very difficult to do so before the November 6th presidential election. As such, current DACA recipients can continue renewing their status. Unfortunately, the decision does not require the government to accept new applications from individuals, but immigrants and civil rights groups may seek that process from the lower courts in the following weeks.

In the Wake of Racial Injustice, Employees and Employers Are Checking Each Other

As conversation surrounding racial justice grows nationwide, candid discussions regarding race are coming to a head in the workplace, where employers and employees are pushing one another to be on the right side of the conversation.

While the national conversation is shifting, studies show that more employees are likely to share their social and political views at work. When Starbucks employees were told via internal company memo they could not wear Black Lives Matter pins and t-shirts at work, as it violated dress code, employees leaked the memo and swift media attention and public backlash quickly caused the coffee company to reverse course. Soon after, Starbucks not only changed its policy, it created its own Black Lives Matter apparel for employees to wear in stores.

California Law Protects Workers From Termination or Retaliation for Participating in Black Lives Matter or Other Political Protests

The massive protests following the murder of George Floyd have brought together people of all races, ages, and walks of life in a collective movement to address systemic racism and police brutality against Black people. Outten & Golden is profoundly committed to supporting workers participating in Black Lives Matters protests. If you work in California, you should know that your state's employment laws protect you from wrongful termination, retaliation, or other adverse employment actions for political opinions you express or activities you engage in outside of work.

The Criminality Myth That Furthers Employment Inequality and Devalues Black Lives

Ban the Box legislation can be an important tool in remedying Black underemployment by removing employers' ability to use criminal history as a proxy for discrimination. However, it only attacks a symptom of the problem created by America's racist history, the insidiousness of which contributes to the devaluation of Black lives and the exclusion of Black men and women from all sectors of the workforce.

California Workplaces Open in Stages, Raising New Questions for Employees

While the COVID-19 coronavirus continues to pose a health risk across the U.S., Governor Gavin Newsom plans to reopen the California economy in four stages under the "Resilience Roadmap." But as businesses resume operations, how will employees be protected and protect themselves?

How Videoconferencing Has Become Part of the "New Normal" in the Practice of Law

The COVID-19 pandemic is a worldwide crisis of epic proportions. It has created enormous challenges, some of which are apparent, such as health and economic impacts that are without equal in our lifetimes. More challenges undoubtedly await us, some of which we may not even imagine. On the other hand, the crisis may present opportunities for us to learn and to improve in our personal and professional lives.

"The Chinese use two brush strokes to write the word 'crisis.' One brush stroke stands for danger; the other for opportunity. In a crisis, be aware of the danger but recognize the opportunity." - John F. Kennedy

President Kennedy may have exercised some poetic license in that quote, but it serves as a useful rhetorical device here. In short, out of a crisis can come opportunities.

Reopening the Workplace: A Gender Perspective on the Economic Fallout of COVID-19

The COVID-19 coronavirus doesn't discriminate between men and women, but the same can't be said of the pandemic's impact on the U.S. workforce.

Traditional support for women at work has been drastically reduced, if not eliminated, during the crisis. Women have had to reorient to working from home while balancing family responsibilities, including childcare and home schooling. Admittedly, both male and female parents have had to face these challenges, but women have shouldered a disproportionate share of the burden.

Bring 'Em All Back? - Knowing Your Rights in the "New Normal"

As state and local economies reopen, employers across the country are cautiously welcoming employees back to their jobs, fearing a resurgence of the COVID-19 outbreak. For returning workers, the workplace will be different from before, including the extent to which their privacy will be protected, especially medical and health information.

To assist employers and employees in navigating these uncertain waters, the U.S. Equal Employment Opportunity Commission has issued guidance clarifying their respective rights and obligations. We have streamlined two EEOC publications - What You Should Know About COVID-19 and the ADA, the Rehabilitation Act, and Other EEO Laws and Pandemic Preparedness in the Workplace and the Americans with Disabilities Act - into a set of useful FAQs.

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