The White House announced some time ago that President Obama would sign an executive order that prohibits discrimination against gay and transgender workers who work for the federal government, its contracting agencies, and federal contractors. That order become official today.
Several state and local governments have already adopted similar protections. Estimates are that the federal changes will affect nearly twenty-five thousand companies and touch approximately twenty percent of all workers in the U.S. The signing comes after the Employment Non-Discrimination Act, commonly referred to as ENDA, again failed to move forward in the U.S. House.
The signing served to amend prior executive orders that prohibited discrimination against federal workers and federal contract workers on the basis of race, nationality, gender, and religion. The DOL is tasked with enforcement.
Job descriptions are important. They are not specifically required by law or regulation. However, the essential functions of a job must be considered in many contexts such as questions involving disability status or leave.
Job descriptions allow the employer to clarify what responsibility an employee has within the business and how the employee is expected to operate. This information matters from the first interview through the end of employment. Descriptions allow the employer to define relationships and obligations between co-workers and departments or divisions. They can set out educational, training, and skills requirements. They can also be the first place an employer looks to consider coaching, counseling, or evaluation. This information helps the employer evaluate performance for different positions too. Likewise, descriptions tell employees what is expected and serve as a form of communication to outline accountability.
The Supreme Court issued its opinion in the Noel Canning case in late June. The Court found that three recess appointments made by President Obama during 2011 were ineffective because the President lacked the power to make the appointments. This is the first Supreme Court case interpreting the Recess Appointments Clause of the Constitution. In years past, there have been other executive branch appointments under the Clause.
The NLRB is comprised of five individuals, thus the invalidation of three of its members means that the Board did not have a sufficient quorum to act. The Court considered several aspects of how recesses occur and what authority exists under the Clause.
This decision raises a question involving the actions taken by the NLRB. Between early January 2012 and early August 2013, the time impacted by the decision, the NLRB issued hundreds of decisions and appointed several directors. The full extent of this opinion on the decisions previously rendered is yet to be seen, as many will be back before the NLRB for reconsideration.
Restrictions against discrimination, both federal and state, have become an unquestioned part of the landscape for human resources. With very few exceptions, employers cannot discriminate on the basis of several protected classes.
This week we marked the 50th anniversary of the Civil Rights Act of 1964. While not the first civil rights legislation, the Act was sweeping in its scope and significance when President Johnson signed it into law on July 2, 1964. The Act made discrimination on the basis of race, color, religion, sex, or national origin illegal in the workplace and places of public accommodation.
What has become commonplace and expected for recent generations of workers was a landmark achievement in United States history.