August 4, 2014

Workplace Law Has Come a Long Way, Baby!

In 1964, Nicholas Katzenbach, the Attorney General of United States, ordered Ollie’s Barbecue, a tiny restaurant in Birmingham, Ala., to desegregate. When the U.S. Supreme Court upheld that order, the newly passed Civil Rights Act of 1964 was held to be constitutional and had to be accepted by the states.

Buried away in that landmark law was a then less-publicized provision prohibiting discrimination in employment. Today, employment discrimination cases dominate state and federal dockets around the country. The Equal Employment Opportunity Commission reports nearly 100,000 charges alleging discrimination, harassment or retaliation filed every year, and that number does not include the thousands of other charges that are filed with state agencies across the country.

Although Title VII of the 1964 Civil Rights Act could only be enforced by the attorney general when it was passed, the law changed rapidly and became much more accessible to the people. Originally, the EEOC was given the power to bring suit on behalf of discrimination victims and then ultimately plaintiffs were allowed to bring private claims in court. While the relief available to victims was originally limited, eventually Congress amended Title VII so that lost pay, emotional distress, punitive damages and attorney fees could be recovered. And substantively, the law expanded not only to protect victims of discrimination, but also those who had been unlawfully harassed — regardless of whether they suffered a tangible job loss. Ultimately, age and disability discrimination were prohibited, the law required employers to provide affirmative accommodations to certain covered employees, and recently the law was amended to prohibit discrimination based on genetic characteristics.

Such a rapid change in a body of law over only 50 years begs an obvious question: In the next 50 years, will the law of discrimination peter out or are we on the cusp of other groundbreaking decisions in this field? The answer: With advances in technology, changes in the moral zeitgeist and the increasing political polarization of our country, there are many significant changes on the way. Here are three to keep on your radar.

1. The Ubiquity Of Information

In a discrimination case, motive is always an issue and in some cases — especially in cases involving claims of disability discrimination — employers simply do not know that the plaintiff is in a protected class. With the explosion of social media in the last 10 years and the ability for anyone to find out just about anything about anyone else, that argument is less and less common.

And that’s with just today’s developments. In the not-too-distant future, employee monitoring will be made simpler and more automated and wearable technology, like Google Glass, will be present in every workplace. With all of that information easily at hand, it will be increasingly difficult for employers to claim that they did not know about an employee’s condition.

2. Religious Conflicts With Changing Societal Mores

It took 18 years after the passage of Title VII for any state to ban discrimination based on sexual orientation. Today, 21 states and the District of Columbia have such bans and recently the Obama administration banned sexual orientation discrimination for federal contractors and subcontractors. All of these changes happened as there was a sea change in public opinion about same-sex marriage and as states began to recognize their validity.

While it was not surprising that religious conservatives led the fight against adding sexual orientation to the list of the classes protected from workplace discrimination, the theory they relied on — religious liberty — caught many off guard. Many expected them to lament that prohibiting sexual orientation discrimination made it harder to employ people, but the opponents argued instead that they had a religious right to exclude people whose lifestyles violated their religious principles.

The contours of these supposedly conflicting rights are playing out in the courts now and will continue to do so for many years more. In the last two years, for example, the Supreme Court struck down the Defense of Marriage Act, which denied gay couples the right to certain federal benefits, but at the same time, it has recognized that corporations under some circumstances have religious rights and can exercise them by refusing to participate in laws that violate their beliefs.

Undoubtedly, sexual orientation discrimination laws are on a collision course with religious liberty claims. And it’s not limited to that. Some states have enacted laws prohibiting discrimination against transgender employees and many states now recognize same-sex marriage, but the Supreme Court could upend those laws if they exempt employers who claim a religious conflict with them.

3. The Changing Nature Of The “Workplace”

When the Civil Rights Act was passed, most employees sat at a desk or work in a fixed workstation at the same place as all other employees. Today, the “workplace” is an almost metaphysical concept. People routinely do work at home, while driving or even while exercising or getting coffee.

To be sure, the evolving and more mobile nature of the workplace has led to all sorts of changes in wage and hour and workers’ compensation laws. But it is starting to have a significant effect on discrimination law, particularly with disability discrimination.

In many ways, technological innovations have been very uncontroversial and mutually beneficial for employers and employees alike. For example, there are free app’s available which serve as virtual dictation machines allowing employees who have difficulty typing to record their thoughts in writing.

The biggest challenge facing employers is how to deal with requests to telecommute. Just ask Marisa Mayer, the CEO of Yahoo who, while acknowledging that “people are more productive at home” nevertheless decided to end telecommuting because it had a negative effect on collaboration and innovation. The validity of Mayer’s predictions remain to be seen, but right or wrong, every company faced with a disabled employee requesting to telecommute will have a difficult decision to make.

It’s been a busy 50 years in the world of employment discrimination law since the federal government took aim at a small Southern barbecue restaurant and it does not appear to be slowing down. As the workplace and the workforce begin to change, the law will have to change with it. The future remains to be seen.

Daniel H. Handman is a partner in Hirschfeld Kraemer LLP and the editor of the California Workplace Advisor blog, where the firm recently digested the 50 biggest changes over the last 50 years in its series, “50 For 50: Five Decades Of The Most Important Employment Discrimination Law Developments.” He can be reached at or

“Originally published in the Los Angeles/San Francisco Daily Journal, Aug., 4, 2014. Copyright 2014 Daily Journal Corporation, reprinted with permission.”