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When the Law is Unclear, What Employers Should do

Published:  November 20, 2018


Recently, the US Department of Justice filed a brief with the US Supreme Court arguing that federal law does not provide anti-discrimination protections for individuals on the basis of gender identity. The DOJ’s position contradicts the position that the US Equal Employment Opportunity Commission has held for more than a decade: prohibiting discrimination on the basis of sex includes discrimination based on gender identity.

This potential shift in policy means relatively little for employers in New England: Connecticut, Maine, Massachusetts, New Hampshire, Rhode Island and Vermont all prohibit employment discrimination on the basis of gender identity. However, it does raise a larger question: what should employers do when the law is unclear?

The answer to this question depends on the priorities of your company. How much does the problem matter to you on a business level? Financial level? Ethical or moral level? How risk-adverse does your business want to be?

A similar concern has presented itself recently in the context of labor law. The US National Labor Relations Board has seen a drastic shift in policy and priorities under the Trump administration. Several Obama-era Board policies and decisions have already been reversed, and as we’ve written about recently, it is likely that several more will be reversed soon. For example, as we’ve also explained recently, the current NLRB General Counsel has publicly signaled that the NLRB is considering abandoning the Purple Communications standard, which is case law interpreting the National Labor Relations Act to give employees the right to use an employer’s email systems during non-working time for union organizing and other protected activities. Although all signs point to an impending (or even imminent) abandonment of this standard, what should employers do in the meantime? The decision depends entirely on your priorities. Your company may decide that a hawkish stance is worth the risk, or conversely, you may decide that a conservative approach will provide you with more protection.

Either way, you should be aware that the status of the law is often unclear. Like here, sometimes authorities disagree. In most cases, the law is ambiguous and guidance has not been provided by courts or other agencies. It is worth noting that the safest, most risk adverse approach is usually to ensure compliance with the more burdensome standard. Given the magnitude of potential damages, including provisions for liquidated damages and/or punitive damages under some statutes, businesses should be mindful that any potential benefits must be weighed against the risk of violating poorly defined or unclear provisions of law.

 If you have any questions regarding discrimination in the workplace, or any other aspect of employment law, please do not hesitate to contact the attorneys at Royal, P.C.