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Areas of State Employment Law to Watch For

October 29, 1999
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Related Topics: Miscellaneous Legal Issues, Featured Article
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Employers should always familiarize themselves with their state laws before taking any employment action. Following are eight particular areas that employers should be aware of:

  1. Sexual Orientation. More than 20 states have laws that protect employees from being discriminated against or harassed on the job due to their sexual orientation.
  2. Marital Status. Nearly 30 states specifically prohibit employment discrimination based upon marital status. Many employers interpret "marital status" to mean whether a person is single, married or divorced. However, marital status also includes a person’s spouse. Thus, in these states an employer cannot discriminate against an employee due to such factors because they are married to someone of a different race, or even if their spouse works for a competitor.
  3. Smoking. Smokers are protected against employment discrimination in more than 15 states (many of these states fall in or near the "Tobacco Belt"). Even though smokers may have to abide by building codes and work rules when on the job, if they decide to smoke off the job premises, in those states where they are protected, it is entirely their right to do so, free of employment discrimination or harassment.
  4. Political Affiliation. The boss is a Democrat and refuses to hire Republicans. Legal? Not in nearly half of the United States. In such states, an employee is protected against discrimination based upon political views and affiliations. Of course, there can be vagaries within this as well. Consider Arizona: you are protected against employment discrimination based upon political affiliation ... unless of course you are a Communist (TRUE!).
  5. Genetic Coding. How can an employer discriminate against an employee based upon genetic coding? Genetic testing can provide insights into the likelihood that a person may later develop certain types of diseases. While an employer may want to hold down healthcare costs, discrimination on the basis of genetic coding is illegal in more than 10 states. Some states are even more particular. For example, North Carolina only prohibits employment discrimination based upon genetic traits for sickle cell or hemoglobin C.
  6. Criminal History. Bob has an arrest record. Therefore, you decide not to hire him. Fair? Not in most states. Arrest records generally cannot be used as the basis for employment discrimination. Under the law, an individual is "innocent until proven guilty." An arrest record is thereby different from conviction records. In a few states, even conviction records cannot be used as the basis for employment discrimination, unless the employer can show that the area of conviction is directly related to having an adverse impact to the job under consideration.
  7. Age. On a national basis, employees are protected from employment discrimination based upon age if over the age of 40. Many states have age discrimination employment laws as well. Therefore, as long as an employee is under the age of 40, age can be used as the basis for employment decisions ... correct? No. Many states are interpreting their own age discrimination laws to protect anyone over the age of 18.
  8. Federal Laws. Many state laws are based upon federal laws, reinforcing employment protection on the aforementioned characteristics of age (if over 40), gender, religion, pregnancy, race or national origin. However, while certain minimum employee levels apply on a federal level, typically mandating a minimum of 15 employees before federal law applies, many states lower this threshold to as low as 2 or 3. Ah, county and city laws. Even more laws to consider—but that’s a topic for another column.

SOURCE: Corpedia Training Technologies, Mesa, AZ, October 13, 1999.

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