City of Birmingham Passes Nondiscrimination Ordinance, Creates Human Rights Commission

On September 26, 2017, the Birmingham City Council passed an ordinance that makes it a crime for any entity doing business in the city to discriminate based on race, color, national origin, sex, sexual orientation, gender identity, disability, or familial status. The ordinance passed unanimously and is the first of its kind in Alabama. Enforceable through the municipal courts, the local law applies to housing, public accommodations, public education, and employment. It carves out two exceptions: one for religious corporations and one for employers with bona fide affirmative action plans or seniority systems.

In a separate measure passed during the same meeting, the city created a local human rights commission to receive, investigate, and attempt conciliation of complaints. The commission has no enforcement authority. Citizens who believe they have suffered unlawful discrimination must appear before a magistrate and swear out a warrant or summons. The entity or individual will not receive a ticket but will face a trial before a municipal judge in the city’s courts. Ordinance violations are classified as misdemeanor offenses, and those found guilty of discrimination will face fines of up to $500. Alabama municipalities have no authority under state law to create civil remedies for ordinance violations, therefore, an employer would not be required to reinstate an employee or provide back pay if it were found guilty of violating the ordinance in municipal court.

Because the city’s courts, which are courts of criminal jurisdiction, operate much more quickly than federal civil courts do, one would expect that a guilty verdict under the Birmingham ordinance likely could be used as evidence of discrimination in a federal civil claim that is almost sure to follow.

Although the city’s mayor must sign the ordinance for it to become effective, the mayor has announced he will sign it into law immediately. The city also expects that the Alabama Legislature will challenge the ordinance.

This post was written by Samantha K. Smith of Ogletree, Deakins, Nash, Smoak & Stewart, P.C., All Rights Reserved. © 2017
For more legal analysis, go to The National Law Review

Check out the ABA’s Business, Human Rights, and Sustainability Sourcebook

Now available from the ABA: Business, Human Rights, and Sustainability Sourcebook

The Business, Human Rights and Sustainability Sourcebook addresses the intersection of human rights law with the conduct of business, in light of sustainability mandates and the UN Guiding Principles on Business and Human Rights.

This sourcebook can be used as a standalone reference, or combined into a set as a companion volume with the Center on Human Right’s International Human Rights Law Sourcebook and The International Humanitarian Law Sourcebook.

Available for purchase here.

The ABA Center for Human Rights Presents: International Due Process and Fair Trial Manual

Now available from the ABA: International Due Process and Fair Trial Manual.

ABA Due Process

Available as a book and an e-book, the Justice Defenders Manual is a relevant resource to provide a concise and clear handbook about human rights and how to defend them.

Available here.

Illinois Passes Religious Garb Law Clarifying Religious Protections Under Illinois Human Rights Law

On August 11, 2017, Illinois Governor Bruce Rauner signed into law Public Act 100-100, known as the “Religious Garb Law.”  The law amends the Illinois Human Rights Act (“IHRA”) by clarifying the scope of protection for sincerely held religious beliefs.

Specifically, the amendment makes clear that it is a violation of the IHRA for an employer to impose a requirement that would cause an employee to “violate or forgo a sincerely held practice of his or her religion including, but not limited to, the wearing of any attire, clothing, or facial hair in accordance with the requirements of his or her religion.”  However, the law indicates that “[n]othing in this Section prohibits an employer from enacting a dress code or grooming policy that may include restrictions on attire, clothing, or facial hair to maintain workplace safety or food sanitation.”  Moreover, employers may still prohibit attire, clothing and facial hair if failing to do so would result in an undue hardship to the employer’s business.

In essence, this amendment clarifies the scope of religious protections that exist under the IHRA.  Notably, the EEOC has taken the position that Title VII protects religious garb.

This post was written by Steven J Pearlman and Alex C Weinstein of  Proskauer Rose LLP.© 2017

New Rules Provide Insights for Pregnancy Accommodations in Illinois

Since the start of the year, all employers in Illinois with one or more employees are required to provide accommodations for pregnant workers for conditions associated with pregnancy and childbirth.  Now the Illinois Department of Human Rights (IDHR) and the Illinois Human Rights Commission (IHRC) have issued a set of proposed joint rules to assist with interpretation and enforcement of the new law.

Under amendments to the Illinois Human Rights Act that went into effect on Jan. 1, 2015, employers and labor organizations must make reasonable accommodations for any medical or common condition related to pregnancy or childbirth, unless the employer or labor organization can demonstrate that the accommodation would impose an undue hardship on the ordinary operations of the business of the employer or labor organization.

Beyond the information already provided in the law itself, the rules go into further detail as to the types of accommodations that employers must consider and how an employer should engage in the interactive process when considering a request for an accommodation. The rules also provide detailed sections on consideration of job transfers and time off as reasonable accommodations.

Of particular interest is the guidance concerning when an employer can seek medical certification of an employee’s need for a reasonable accommodation. While the rules make clear that employers are entitled to obtain information in order to evaluate if a requested reasonable accommodation may be necessary, the request needs to be limited to:

  • The medical justification for the requested accommodation;

  • A description of the reasonable accommodation medically advisable;

  • The date the reasonable accommodation became medically advisable; and

  • The probable duration of the reasonable accommodation.

Moreover, employers may request documentation from the job applicant’s or employee’s health care provider concerning the need for the requested accommodation if:

  • The employer would request the same or similar documentation from a job applicant or employee regarding the need for reasonable accommodation for conditions related to disability;

  • The employer’s request for documentation is job-related and consistent with business necessity; and

  • The information sought is not known or readily apparent to the employer.

Under the rules as proposed by the IDHR and IHRC, the determination of whether an employer’s request for documentation from the employee’s healthcare provider concerning the need for a reasonable accommodation is job-related or consistent with business necessity will depend upon the totality of the circumstances, including  factors such as whether the need for reasonable accommodation is readily apparent;  whether the job applicant or employee is able to explain the relationship between the requested accommodation and her pregnancy condition;  the employer’s reasons for requesting the information; and  the degree to which the requested accommodation would impact the ordinary operations of the employer’s business if it were granted by the employer.

If an employee needs a reasonable accommodation beyond the probable duration identified by her healthcare provider, the employer may request additional information from the health care provider.

It is also important to note that, under the rules, medical conditions related to pregnancy or childbirth need not constitute a disability within the meaning of the Illinois Human Rights Act and may be transitory in nature.

The rules, which were published in the Illinois Register, are expected to go into effect sometime in October.  Once fully adopted, the rules will be found at 56 Ill. Admin. Code 2535.10 et seq. For now, they can be found in the Illinois Register. And if you are an employer in Illinois and you have not yet posted the notice required under the new law, you can print a copy from the Illinois Department of Human Rights website.