As 2022 begins, the federal government, as well as some state and local governments, continue to prioritize the importance of anti-discrimination laws. Indeed, in addition to numerous anti‑discrimination laws that went into effect in 2021, many new laws were passed and signed in 2021 to go into effect in 2022.
Yet, as these new laws begin to pass, the variations and the timing at which the three levels of government enact these laws create challenges for employers. While these new laws will not lead to every dispute ending like Tesla’s $137 million discrimination suit, many will have a significant impact on employers.
New Anti-Discrimination Laws Around the Country
West Coast
Starting out West, the Oregon Crown Act, which became effective January 1, 2022, adds two definitions to the state statute, defining “protective hairstyle” and “race.” Specifically, Oregon defines “protective hairstyle” as:
a hairstyle, hair color, or manner of wearing hair that includes, but is not limited to, braids—regardless of whether the braids are created with extensions or styled with adornments—locks, and twists.
In doing so, Oregon joins states like New York, New Jersey, Virginia, Colorado, Washington, Maryland, Delaware, Connecticut, New Mexico and Nebraska in preventing race-based hair discrimination. Continuing with the westernmost states, the California governor signed a new anti‑discrimination law related to health care. The new law signed October 1, 2021 (to be effective January 1, 2023) will require approved schools of nursing and nursing programs to include one hour of implicit bias training as part of the program’s graduation requirement. Registered nurses will also be required to complete one hour of implicit bias continuing education within the first two years of licensure.
South
Similarly, down South, new anti-discriminations laws both at the city and state level highlight the new anti-discrimination protections in 2021 and 2022. In Charlotte, North Carolina, the City Council added more protections against employment discrimination effective January 1, 2022, banning bias on the basis of familial status, sexual orientation, gender identity, gender expression, veteran status, pregnancy and natural hairstyles. Durham County also banned bias on the basis of natural hairstyles or textures, joining the aforementioned states and numerous other cities around the country.
Additionally, in the South Central region of the U.S., Texas passed two significant amendments to the state employment law that collectively went into effect on September 1, 2021. These amendments to the Texas Labor Code expand sexual harassment protections for employees in essentially all workplaces. Complainants can now wait longer to file. Specifically, employees go from having a 180-day limitation to a 300-day period in which to file sexual harassment allegations with the Texas Workforce Commission. This expansion, notably, does not apply for all other types of discrimination and harassment claims filed with the Commission, as the deadline remains 180 days. Additionally, not only can employers now be charged for violating the state’s prohibition on sexual harassment, but individual managers can be charged as well. Finally, of note, coverage of the state laws now extends to employers with as few as one or more employees.
Midwest
Moving to the Midwest, Illinois signed into law an amendment to the Illinois Human Rights Act on March 23, 2021, prohibiting employers from considering an applicant and an employee’s criminal conviction record when making employment decisions, subject to two exceptions. At a basic level, the amendment adds a definition of “conviction record,” creating more stringent requirements than federal or Illinois law on the use of a candidate’s conviction record during employment decisions. In short—as for the exceptions— the first exception relates to whether the position presents an opportunity for the individual to commit a similar offense, as it pertains to their conviction, during the course of their employment. The second exception relates to whether the individual’s employment would create an unreasonable risk to safety or property. Adding to this complexity, Illinois employers are now required to consider numerous mitigating factors when determining whether the use of a conviction record is allowable and must also engage in an interactive process with the applicant or employee before use of a conviction record.
Continuing with America’s Heartland, the Dane County Board in Wisconsin unanimously voted in January 2021 to expand its anti-discrimination ordinance to include an individual’s hair. This vote highlights both the continued trend of prohibiting discrimination based on hairstyle and also delineates how an employer is bound not by just state law. Another example of the need to be aware of local ordinances is found in Ingham County, Michigan. Ingham recently became the first Michigan county to ban hair discrimination against public employees.
Northeast
Finally, states and cities throughout the Northeast continue to add anti-discrimination laws. New Jersey passed the “New Jersey Cannabis Regulatory, Enforcement Assistance, and Marketplace Modernization Act” in 2021. The law prohibits employers from discrimination against medical cannabis users while maintaining drug-free work environments at their discretion. Importantly, while federally marijuana is not legalized, as of April 2021, states like Connecticut, Delaware, Rhode Island, New York and Maine have taken it upon themselves by creating employment protection laws for authorized medical marijuana users. Virginia, for example, prohibits employers “from terminating, discipling, or otherwise discriminating against an employee for such employee’s lawful use of cannabis oil pursuant to a valid written certification.”
These protections are also seen at the city and local level. For example, effective January 1, 2022, a majority of Philadelphia employers will be prohibited from requiring prospective employees to perform a drug test for the presence of marijuana as a precondition of employment (subject to exceptions), joining New York City (effective May 10, 2020) and Nevada.
Practical Takeaways
It is evident from this sampling of new anti-discrimination laws enacted in 2021 and forthcoming in 2022 that lawmakers are continuing to expand employee protections. Accordingly, employers will want to start the new year by:
- Conducting their own survey of city, county, state and federal ordinances, laws and regulations applicable to their workplace(s);
- Reviewing current policy to identify any gaps or updates needed;
- Obtaining employee acknowledgement of new and updated policy; and
- Conducting training, as required or appropriate, to educate supervisors and/or others about the new standards.
If you have any questions or would like more information on this topic, please contact:
- Robin Sheridan at rsheridan@wp.hallrender.com or at 414-721-0469; or
- Your primary Hall Render contact.
Special thanks to Joseph Ho, law clerk, for his contribution to this article.
Hall Render blog posts and articles are intended for informational purposes only. For ethical reasons, Hall Render attorneys cannot—outside of an attorney-client relationship—answer an individual’s questions that may constitute legal advice.
