The scope of “protected class”— groups of people that share a common, legally protected characteristic—is in a state of expansion. Various federal and state laws safeguard a “protected class” from discrimination in hiring, firing, and other areas of employment. For example, under Federal law, it is illegal for an employer to discriminate against an applicant or employee based on any of the following protected characteristics: veteran status, age (age 40 or older), disability, genetic information, national origin, race or color, religion and sex (including pregnancy, gender identity, sexual orientation, and transgender status). The Equal Employment Opportunity Commission (EEOC) and the Office of Federal Contract Compliance (OFCCP) are both tasked with enforcing federal laws that prohibit workplace discrimination.
CROWN Act
One of the more recent expansions is the protection of hairstyles through legislation entitled “Create a Respectful and Open World for Natural Hair,” otherwise known as the CROWN Act. The first CROWN Act was adopted in California in July 2019 and expanded to Federal coverage by Congress in March 2022. Similar bills have become law in more than 20 states. The CROWN Act prohibits workplace bias against people based on natural hairstyles including afros, braids, twists, and locks as well as natural textures that are associated with race. The CROWN Act is a response to the recognition that applicants and employees who bring their skills, expertise, and life experiences to their workplace may feel pressure to leave parts of themselves behind when they interview for a position or show up to work. Workplace dress code and grooming policies dictating how employees should wear their hair may have a disparate impact (often referred to as unintentional discrimination) on certain individuals. Interviewers should be aware of unconscious bias of what society declares “professional” for the workplace. A 2023 CROWN Workplace Research Study by DOVE found that approximately 2/3 of Black women (66%) change their hair for a job interview, over 20% of Black women 25-34 have been sent home from work because of their hair and 25% of Black women believe they have been denied a job interview because of their hair. The Act is about strengthening worker protections and ensuring dignity and respect for cultural expression.
Caste Discrimination
Though still not an explicitly protected category at the Federal law level, recognition of caste discrimination is increasing. On February 20, 2023, the city of Seattle, Washington became the first U.S. city to add caste to its list of categories protected characteristics. In September 2023, the California legislature passed a bill banning discrimination based on caste. While this bill was vetoed by the Governor, his rationale was that caste discrimination was already covered by existing law. As recognition of caste discrimination grows, social media platforms such as Twitter, Facebook, and YouTube have started moderating caste-based hate speech on their platforms. Large STEM employers such as Dell, Apple, and Amazon now include caste-proficiency in some employee manuals and trainings. Caste discrimination (or casteism) is estimated to affect 250 million South Asian people globally and is a form of discrimination based on a cultural social hierarchy which is determined by a person’s birth. Though discrimination was banned by the Indian government in 1948, it still exists culturally and has followed immigrants to the US impacting various aspect of life – housing, academics, and work. Examples of discrimination by a higher against a lower caste member often include a sense of superiority in the workplace, personal bias affecting employment decisions, and subjecting lower caste employees to microaggressions (e.g., hostility, disparaging remarks, shutting down ideas). Many South Asian employees hide their caste for fear of discrimination.
Physical Characteristics
Effective November 22, 2023, New York City enacted into law an amendment to the New York City Human Rights Law (NYCHRL) that bans employment discrimination based on an individual’s height and/or weight in employment. Similar laws are being reviewed in New Jersey and Vermont. These laws state that an employer may not deny an employment opportunity or take an adverse action based on the actual or perceived height or weight of an applicant or employee. New York City joins a growing list of cities including Binghamton, New York; Madison, Wisconsin; Urbana, Illinois; Washington, D.C.; San Francisco and Santa Cruz, California; and the State of Michigan which expressly protect individuals against height and weight discrimination in the workplace.
The law includes an exemption for employers who have a “bona fide occupational” reason to consider weight or height, and situations in which there is a public health and/or safety concern (e.g., police officers and firefighters).
The law does not prevent an employer from recognizing these factors and offering incentives that support weight management as part of a voluntary wellness program is permitted. Wellness programs comply with the nondiscrimination requirements under the Affordable Care Act and HIPAA so long as the program is made available to all similarly situated individuals.
Employers do need to be cognizant that a workplace culture that overly encourages “fit” lifestyles may lead to perceived (rightfully or wrongfully) ostracization and isolation of members of a protected category. While obesity may be treated as a disability that requires workplace accommodations in certain circumstances, The Americans with Disabilities Act (ADA) definition of the term “impairment” does not include physical characteristics such as weight that are within “normal” range. This dichotomy can create a situation where an individual who is severely obese may be disabled within the meaning of the ADA (regardless of whether it is a result of an underlying medical condition) whereas an individual who is merely severely overweight is not. Since there is no clear dividing line between severely overweight and obese, if an employee is having difficulty performing his or her job as the result of their weight, employers are cautioned not to take any adverse employment action until the issue of disability is fully explored.
Conclusion
Virtually all legally protected characteristics apply to everyone since we all possess a race, color, sex, and national origin. What is different is whether the specific characteristics we possess place us in the majority or a minority. Since appearance counts every bit as much as actual motivation, employers should carefully consider how employment decisions might be viewed by an outsider or from the perspective of the EEOC or OFCCP.
Each employment decision should be evaluated against the following factors as well as the individual merits of the decision.
- Does this decision impact anyone negatively who is within a federal, state, or local protected class?
- If so, are you certain that the protected characteristic is not a factor in the decision?
- Is the decision consistent with past practices?
- Is there objective support for the decision?
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C2 is a Professional Employer Organization (“PEO”) that provides outsourced HR services to businesses across a variety of service industries with a focus on federal government contractors. Utilizing our PEO model allows our clients to transfer the responsibilities and liability of payroll, benefits administration, employee onboarding, and employee relations to C2 and to focus their attention on satisfying their clients and growing their business. C2 blog posts are intended for educational and information purposes only.
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