The start of the new year is a perfect time for Kansas employers to address employment updates from 2018 and prepare for possible changes coming in 2019. In this article, we’ve summarized a few changes and trends from 2018, as well as a few changes we might see in 2019.
EEOC & Title VII Litigation Trends. 2018 saw another increase in harassment and discrimination lawsuits being filed nationwide. In fact, EEOC litigation filings have doubled since 2016. One big area of movement is sexual harassment cases and charges, which rose significantly in 2018 after more than five years of decreasing numbers. We expect this trend will continue into 2019.
Another trend is the EEOC’s sustained efforts to push for inclusion of sexual orientation and gender identity as protected classes under Title VII, which prohibits discrimination, “because of sex.” The Supreme Court has long held that Title VII protects against discrimination for employees who don’t meet typical “gender norms,” such as a woman who is not feminine enough, but it has not yet addressed head-on the questions of sexual orientation or gender identity.
Over the last few years, the EEOC has taken a clear position that “sexual orientation is inherently a ‘sex-based consideration’ and an allegation of discrimination based on sexual orientation is necessarily an allegation of sexual discrimination under Title VII.” Currently, however, the federal appellate courts are split on the issue. And, the law in Kansas is clear that sexual orientation is not protected under Title VII. The EEOC is expected to continue to push its view and is believed to be looking for appropriate charges to pursue this position. Many cities and states have enacted laws that expressly protect sexual orientation, and some state Supreme Courts have extended state “gender-based” laws to cover sexual orientation. This is an area worth watching in the upcoming year.
FLSA Amendments. The Department of Labor is expected to release amendments to the Fair Labor Standards Act sometime in early 2019. At this time, there is significant uncertainty as to whether the amendments will be issued in the form of a proposal with a public comment period or as final regulations. A proposed new overtime rule with a minimum annual salary level to qualify for the “white collar” exemption is expected to come in somewhere around $30,000-$35,000. While this is a considerable jump from the current level, it is much lower than the $48,000 threshold proposed by former President Obama that was struck down by a Texas federal court in 2016. Most anticipate that whatever is proposed will not go into effect until 2020, at the earliest.
LGBT Protection for State Employees. Incoming Kansas Governor, Laura Kelly, plans to restore protections from on-the-job discrimination via executive order for lesbian, gay, bisexual, and transgender state employees. A prior executive order, which Governor Brownback rescinded in 2015, protected state workers from discrimination and harassment based on their sexual orientation or gender identity. We anticipate this action will come within days of Governor-elect Kelly being sworn in on January 14, 2019. Advocates of LGBT rights see this as a major victory for LGBT state employees and hope to see these protections extended to the private sector. At this time, however, there does not appear to be any significant movement towards extending these protections to private employers.
Handbook Review. Employers looking to start 2019 off on the right foot should also consider having employment law counsel review and update the employee handbook and training programs. There are numerous topics on which it is important to keep your employees trained, and periodic refresher training on the more common employment issues is always a good idea. Given the current climate, sexual harassment training in light of the #MeToo movement is strongly encouraged.
On the policy front, it may be worthwhile to review drug testing rules, especially considering the growing trend of states legalizing marijuana usage. Kansas employers may also want to analyze the impacts of adding sexual orientation and gender identity as protected categories to their Equal Employment Opportunity & Harassment policies. While the law in Kansas currently does not recognize sexual orientation as being protected by Title VII, as discussed above, the EEOC will continue to push for its inclusion. Many organizations have chosen to broaden their EEO policies to stay ahead of this developing area of the law and as a best practice to attract and retain talent.
This article does not cover every employment law-related change that occurred in 2018, nor does it predict every change expected to occur in 2019. The most important takeaway for Kansas employers hoping to have a peaceful and litigation-free 2019 is to stay alert and up-to-date on the changes affecting their workplace and their workforce.