Off-Duty Conduct Protections

We were recently asked our opinion on offering additional PTO days for non-smoking employees to offset the time that smokers take in “smoke breaks”.  You may have heard about the Japanese company that has instituted this policy.  

From an HR Perspective:

Existing anti-discrimination laws do not prohibit employers from discriminating based on whether or not the person is a smoker--even the PPACA has allowed for premium contribution differences based on smoking.

Then to consider protections under the ADA and while not explicitly addressed, most courts (at this time) have ruled that ADA protections do not extend to tobacco or nicotine addicts. 

29 states do prohibit discrimination based on legal activities outside the workplace, which includes smoking tobacco.  

We have not seen any clients implement or consider such a policy and would caution against such a practice at this time.  It may ‘fly’ but I would not want to be the first.

From a Legal Perspective:

We then posed the same question to an attorney that we work with.  Here's her input:

Bad idea in certain states.  As you noted already there are a number of states which prohibit discrimination due to off-duty legal conduct which includes smoking.  For example, in NJ the law provides:
No employer shall refuse to hire or employ any person or shall discharge from employment or take any adverse action against any employee with respect to compensation, terms, conditions or other privileges of employment because that person does or does not smoke or use other tobacco products, unless the employer has a rational basis for doing so which is reasonably related to the employment, including the responsibilities of the employee or prospective employee.

In these states, a plaintiff’s attorney will easily take the position that giving non-smokers addition leave time is discriminatory towards non-smokers. 

Of course not all states have these laws such as in PA.  In the states that do not have the laws regarding off-duty conduct, it would be permissible as there would be no such legal protection for smokers v. non-smokers.  However, I would think such a policy may not do much for employee morale and there would be an easier way such as regulating breaks and permitting the same number of breaks for all employees, etc.   

A Federal Government Policy that Protected Transgender Workers from Discrimination is now Reversed.

A federal government policy, under a 1964 civil rights law, interpreted that transgender workers were protected from discrimination has been reversed by Jeff Sessions, US Attorney General. Title VII’s prohibition on sex discrimination includes discrimination between men and women, but does not include discrimination based on gender identity, including transgender status.

Sessions stated that, "although federal law, including Title VII, provides various protections to transgender individuals, Title VII does not prohibit discrimination based on gender identity per se. This is a conclusion of law, not policy. As a law enforcement agency, the Department of Justice must interpret Title VII as written by Congress."

However, the Equal Employment Opportunity Commission found that sex discrimination does include discrimination on the basis of gender identity and sex stereotyping and that Title VII does ban anti-transgender discrimination as well.

A spokesperson for the Justice Department explained that the Department of Justice cannot expand the law beyond what Congress has provided. The Department of Justice will remain committed to protecting the civil and constitutional rights of all individuals, and will continue to enforce the laws that Congress has enacted that prohibit discrimination on the basis of sexual orientation.

For more information, click here.

2019 Diversity Immigrant Visa Program (Green Card Lottery)

The U.S. Department of State recently published instructions for the 2019 Diversity Immigrant Visa Program (Green Card Lottery).  The Green Card Lottery makes available permanent resident visas (green cards) to qualified applicants who are chosen by random drawing and who meet the eligibility requirements.  

Entries must be submitted to the U.S. Department of State between noon (Eastern Daylight Time) on Tuesday, October 3, 2017, and noon (Eastern Standard Time) on Tuesday, November 7, 2017.  Late entries are NOT accepted.

Lyons HCM 2017-2018 Seminar Schedule Announced

Whether you are new to the HR industry or an experience professional, continuing your education is essential to keeping informed of current trends and regulatory changes.

Lyons HCM offers two accredited series to develop HR expertise based on your level of experience. Lyons HCM is SHRM-approved to offer Professional Development Credits (PDCs) for SHRM-CP or SHRM-SCP holders.

Click here to learn more.



Eleventh Circuit Rules Sexual Orientation Discrimination Is Not Prohibited by Title VII

On March 10, 2017, the majority of a split Eleventh Circuit Court of Appeals panel affirmed a district court’s dismissal of a sexual orientation discrimination claim brought under Title VII of the Civil Rights Act of 1964. Evans v. Georgia Regional Hospital, No. 15-15234 (March 10, 2017).  

Read full blog post from The National Law Review here.