If a service dog entered your business, would you know all the rules pertaining to what’s allowed and what isn’t? Most business owners don’t fully understand the laws and statues surrounding public rights, both for people and furry friends.
Take JoJo, a service dog, for example. JoJo’s owner, veteran Jerome Smith, had plans to enjoy dinner at a Grand Rapids, Michigan restaurant for his birthday. As he walked into the building, he was promptly greeted by the manager who told Jerome his dog was not welcomed in the establishment.
While the manager probably thought he was taking the proper actions to protect his other patrons, he was actually in violation of the Americans with Disabilities Act. If Jerome had wanted to, he could have brought forth a discrimination lawsuit.
As a business owner, there’s more to do than just hire employees and balance the books. You have to be educated on local and federal laws that could put your business at risk for litigation. In this third installment of my EPL course, we’ll cover some of the big ones you need to know and understand.
A Brief History of Non-Discrimination Legislation
Federal non-discrimination legislation hasn’t always been a priority. In America’s infancy, business owners were able to refuse service when they wanted, hire who they wanted, and conduct business how they wanted. While there were still laws and suggested guidelines to follow, worrying about discrimination wasn’t something on many business owners’ minds.
The first Civil Rights Act was passed in 1866 and was designed to protect African Americans after the Civil War. The law that changed history though was the Civil Rights Act of 1964. The Act prohibited discrimination in public places, fueled the integration of schools and public facilities, and prohibited employment discrimination. Since then, a variety of other Acts have been passed to protect against discrimination and infringement on basic human rights. Here are the ones you should know as a business owner.
Laws Enforced by EEOC
- Title VII of the Civil Rights Act of 1964 – protects against discrimination of skin color, religion, race, nationality, or sex
- The Pregnancy Discrimination Act – added to Title VII, protects against discrimination of women due to pregnancy, childbirth, or pregnancy-related medical conditions
- The Age Discrimination in Employment Act of 1967 (ADEA) – protects against discrimination against applicants and employees over the age of 40
- The Equal Pay Act of 1963 (EPA) – protects against discrepancies between the pay of men and women with the same skills performing the same work at the same establishment
- Title I of the Americans with Disabilities Act of 1990 (ADA) – protects against discrimination based on an individual’s mental or physical limitations
- The Genetic Information Nondiscrimination Act of 2008 (GINA) protects against discrimination based on an employee or applicant’s medical history
Though not enforced by the EEOC, it’s also important to understand the:
- Family and Medical Leave Act (FMLA) – secures and guarantees employees 12 weeks of maternity or medical leave when they meet the requirements without risking job security
- Another fact most business owners don’t know is that federal employment anti-discrimination laws only apply to your business if you have a certain number of employees.
- If you have at least one employee, you must provide equal pay for equal work.
- If you have between 15 and 19 employees, laws prohibiting discrimination based on sex, disability, national origin, religion, race, color, and genetic information pertain to you. You also must provide equal pay for equal work.
- If you have 20 or more employees, you are covered by all previous laws mentioned. You are also prohibited from discriminating against age (40 or older).
This isn’t to say that a business with a handful of employees can get away with direct discrimination. As a business owner, you should always do everything in your power to prevent discrimination within your workplace, both from yourself and other team leaders and members. We’ll cover specific ways to prevent EPL lawsuits in my next section of the course but for now, here’s how to make sure you know local and federal laws and what’s required of you.
The first thing to do is understand discrimination by type. The following is a list of the various types of discrimination prohibited by law.
- National origin
- Equal pay
- Genetic information
- Sexual harassment
Pop quiz time. Which is the following is not an example of discrimination in the workplace that could bring forth a discrimination lawsuit?
Kyle requests two shifts off due to religious reasons. He is awarded the time off but notices that as time goes on, his shifts become less and less. They’re also less desirable.
Sarah is pregnant. She informs her employer of her due date and her plans to return to work after 10 weeks of maternity leave. As her return date approaches, she’s informed her position is no longer needed and is let go.
Vanessa has worked at the same company for five years. She’s been in the same department since she’s started. She’s noticed that the only people who seem to get promoted to higher levels are Caucasian. She also notices that herself and two other African American employees have been passed over for promotions and pay increases.
Trick question. These are all examples of discrimination in the workplace. All could bring forth a lawsuit that could bring a business to its knees, especially if they don’t have EPL.
According to the EEOC, the most common type of discrimination reported in 2017 was retaliation, at 48.8 percent of all charges filed. Race, disability, and sex discrimination cases were the next popular, respectfully. Take the time to learn about what’s required of your business based on its size, location, and federal legislation. You’ll be better protected when you understand the risks.
What to Look for In Your EPL Policy
If you’re working with a great broker, they’ll take the time to custom build you an EPL policy that protects your business from as many angles as possible. There are several choices you’ll have to make, hopefully under the guidance of your broker, including:
Stand-Alone or Combined Policy – You can either purchase a stand-alone EPL policy or an EPL coverage endorsement to your D&O policy. Both have their pros and cons but a stand-alone policy will provide you with a broader scope of coverage, though it will come with a higher premium cost.
Duty to Defend or Duty to Pay – The difference between these is fairly simple. In “duty to defend” the insurer has the right to select defense counsel. With “no duty to defend” the insured is responsible for managing the defense while the insurer is only obligated to reimburse the insured for judgements, claim settlements, and defense costs.
Third-Party Coverage – Not all businesses need this additional coverage but if you’re concerned claims could be made by non-employees, such as customers, ask your broker about third-party coverage. Should an employee engage in wrongful conduct, this will keep you protected.
There are plenty of other questions to go over with your broker in order to find the perfect EPL policy for your needs. Be honest with your broker so that if the day comes where you find yourself making an EPL claim, you’ll feel confident in your policy’s ability to protect you.
Unfortunately, ignorance isn’t a winning defense in a discrimination lawsuit. Claiming you were unaware of a requirement or federal law won’t put the jury on your side. That’s why you’re responsible for self-education and self-awareness when it comes to discriminatory laws.