Pushing the Boundaries of the Law

The Equal Employment Opportunity Commission (EEOC), the federal agency that investigates claims of employment discrimination, doesn’t actually have a physical office in Maine.  Its closest office is Boston.  But that didn’t stop several EEOC representatives from Boston and New York from coming up to Maine last Monday to address Mainers about the work the EEOC is doing.  The EEOC representatives announced that they are prioritizing several emerging issues:  ensuring greater protection for lesbian, gay, bisexual and transgender (LGBT) employees, and preventing employers from using criminal records as an automatic bar to hiring.

Protecting LGBT Employees
EEOC Commissioner Chai Feldblum has been outspoken in her view that the federal civil rights law, Title VII, does not do enough to protect LGBT workers.  Unlike Maine law, which explicitly protects LGBT individuals from discrimination, federal law only prohibits discrimination based on “sex” – it doesn’t expressly ban discrimination based on “sexual orientation” or “gender identity.” 

There have been some efforts to fix this on the federal level, but so far they’ve been unsuccessful.  The Employee Non-Discrimination Act, a bill that would declare it unlawful for employers to discrimination against members of the LGBT community, has long been stalled in Congress – it’s been unsuccessfully introduced every year but one since 1994.  Sen. Collins is a co-sponsor of this legislation

But the EEOC has made it clear that it’s not going to wait around for Congress to change the law.  Instead, it’s looking for ways to ensure protection for the LGBT community under existing law.  In a landmark 2012 decision, the EEOC concluded that transgender individuals are protected under Title VII.  Even though Title VII doesn’t specifically ban discrimination against transgender employees, the Commission reasoned that if an employer discriminates against an employee because s/he doesn’t conform to gender stereotypes or intends to change his or her sex, that counts as sex discrimination.  Our law firm has handled several discrimination cases on behalf of LGBT individuals.

Protecting Employees with Criminal Records
Another EEOC priority is limiting employers’ consideration of arrest and conviction records in their employment decisions.  The federal civil rights law itself doesn’t say that it’s illegal for employers to look at criminal records.  But consideration of criminal records can have a huge disparate impact on African-American and Hispanic employees.  African-Americans and Hispanics are arrested at 2-3 times the rate of the general population, and are convicted at significantly higher rates as well.

Because of this racially disparate impact, the EEOC has said that employers should not use criminal arrests and convictions as an automatic bar to employment.  Instead, employers should only refuse to hire someone once they’ve carefully considered if and how a past conviction could actually affect the employee’s ability to do the job.  Businesses should consider factors like how old the conviction is, how serious it is, and how it relates to the job being sought.

Maine law goes even further.  Under our law, it’s unlawful for an employer to even ask applicants whether they have an arrest record.  

While Maine is ahead of the curve in protecting employees in these groups, we are happy to see that, in the absence of Congressional action, the EEOC is stepping in and pushing the boundaries of the law to make sure it gives much-needed protection for some of our most vulnerable citizens throughout the country.

If you believe your rights have been violated, contact us.