US House of Representatives Passes Discrimination Law

The House of Representatives has approved legislation amending Title VII to make it unlawful to discriminate against individuals based on hair texture or hairstyle. Federal agencies have taken several actions including the Department of Labor launching a campaign to promote mental health friendly workplaces and proposing amended regulations to the Davis-Bacon Act, and the EEOC providing information on caregiver discrimination.

House Passes CROWN Act – The US House of Representatives has passed the Creating a Respectful and Open World for Natural Hair Act (CROWN Act). The bill (H.R. 2116) was introduced by Representative Bonnie Watson Coleman (D-NJ) and has 116 cosponsors. The bill would amend Title VII of the Civil Rights Act of 1964 to make it an unlawful employment practice “to fail or refuse to hire or to discharge any individual, or otherwise to discriminate against an individual, based on the individual’s hair texture or hairstyle, if that hair texture or that hairstyle is commonly associated with a particular race or national origin.” In addition to employment, the provisions in the bill also would apply to housing, federally funded programs, public accommodations, and the making and enforcement of contracts.

The report from the Judiciary Committee that accompanied the legislation noted that the Equal Employment Opportunity Commission (EEOC) and at least one federal appellate court found that discrimination based on natural hairstyle could be the basis for a racial discrimination allegation. However, other federal courts have rejected the position that “Title VII protects hairstyles culturally associated with race.”

There are 14 states and some local jurisdictions that have enacted laws banning discrimination based on an individual’s natural hairstyle. The bill needs to be considered next by the US Senate where a companion bill (S. 888) has been introduced by Senator Cory Booker (D-NJ) along with 25 cosponsors.

DOL Announces Campaign to Promote Mental Health Friendly Workplaces – The US Department of Labor is starting a public education campaign to encourage workplaces that are mental health friendly. The campaign is titled “Mental Health at Work: What Can I Do?” that highlights how everyone in an organization can promote workplace wellbeing. “Today, one in five working-age Americans has a mental health condition. As America recovers from the COVID-19 pandemic, mental health-friendly workplaces will be more important than ever,” said U.S. Secretary of Labor Marty Walsh. As part of the campaign, the Labor Department has developed resources to assist employers and employees. 

EEOC Releases Information About Caregiver Discrimination  - The Equal Employment Opportunity Commission (EEOC) has released a technical assistance document titled “The COVID-19 Pandemic and Caregiver Discrimination Under Federal Employment Discrimination Law” that provides information about how federal EEO laws can be violated when applicants or employees with caregiving responsibilities are discriminated against based on a protected characteristic. According to EEOC Chair Charlotte A. Burrows, “By ensuring that caregivers know their rights and employers understand their responsibilities, the EEOC will help ensure that America’s recovery from the pandemic is an equitable one.” 

The document contains several examples of caregiver discrimination that include:

• Refusing to hire or not promoting women based on assumptions that she would focus primarily on caregiving for young children attending school remotely or on caring for parents or other adult relatives.
• Declining to assign female caregivers demanding projects that increase advancement potential but require overtime or travel based on assumptions that female caregivers cannot or would prefer not to work extra hours or be away from families if a family member has covid-19 or has been exposed to COVID-19.
• Denying men leave or permission to work flexible schedules to care for family members with COVID-19 or other pandemic-related caregiving duties if such requests are approved when made by female employees.
• Refusing to hire or demoting or not promoting pregnant employees based on assumptions that they should be primarily focused on ensuring safe and healthy pregnancies.
• Declining to hire applicants with spouses who have disabilities putting them at higher risk of severe illness from COVID-19 due to concern that health insurance costs for the employer will increase if these spouses were added to the healthcare plan.

DOL Proposes Davis-Bacon Act Regulations – The US Department of Labor (DOL) has published a proposed rule  updating the regulations implementing the Davis-Bacon Act. According to DOL, the proposal “seeks to speed up prevailing wage updates, creating several efficiencies in the current system and ensuring prevailing wage rates keep up with actual wages.” The Davis-Bacon Act and related laws apply to federal and federally assisted construction projects that require payment of locally prevailing wage rates. Comments on the regulatory proposal are due by May 17, 2022.

Among the proposed changes identified by DOL are:

• Creating efficiencies in the prevailing wage update system and ensuring that prevailing wage rates keep up with actual wages.
• Returning to the previous definition of prevailing wage that was used from 1935 – 1983 to ensure prevailing wages reflect actual wages paid in the local community.
• Periodically updating prevailing wage rates.
• Issuing supplemental rates for key job classifications when no survey data exists.
• Updating the regulations to ensure they reflect current construction practices.
• Strengthening worker protections and enforcement, including debarment and anti-retaliation.

Neil Reichenberg is the former executive director of the International Public Management Association for Human Resources. He is an attorney, a frequent writer and speaker on public policy and human resource issues, and an adjunct faculty member at George Mason University. For questions or additional information, contact Reichenberg at neilreichenberg@yahoo.com.