This review highlights some important developments in diversity and inclusion in the employment law world over the past year.
In the US, President Trump controversially issued Executive Order 13950 prohibiting federal contractors and federal grant recipients from conducting workplace diversity training that included certain concepts (such as that individuals bear responsibility for past discrimination by others).
This was swiftly revoked by President Biden as soon as he took office. In addition, in what was reported as a defeat for the Trump administration, the US Supreme Court ruled last June that Title VII of the Civil Rights Act (barring workplace discrimination based on sex) extends to discrimination based on sexual orientation and transgender status.
China has introduced new laws on sexual harassment that include a clear definition of it and a requirement on employers to provide an internal mechanism for employees to lodge complaints and for those to be investigated. Alongside this, there is an obligation on employers to take reasonable efforts to prevent sexual harassment in the workplace.
Hong Kong is also expanding its discrimination laws. Discrimination because of breastfeeding will be banned from June 2021, and race discrimination laws are being expanded to protect employees against discrimination based on the race of their associates (e.g. family, friends or business associates). Harassment laws will cover all participants working in a common workplace (including interns and volunteers) as well as employees.
Affirmative action is in the spotlight in Brazil, where one of the country's largest retailers announced that its next trainee programme would be exclusively for black people. This prompted litigation over whether such a programme constitutes legitimate affirmative action or unlawful positive/reverse discrimination.
In Mexico, a national Day Without Women took place on 9 March 2020, when thousands of women joined a historic national strike to protest against the rise in gender-based violence in the country.
Last year, we reported on proposed new federal legislation in Australia to protect religious freedoms. The bill continues to attract criticism that it goes too far in protecting religious freedom at the expense of other rights, and it is currently under review.
More states in the US have moved to legislate against race-based hair discrimination implementing 'Crown Acts', including Maryland, Pennsylvania, Colorado, Washington and Virginia. (The acronym CROWN stands for "Create a Respectful and Open World for Natural Hair".) In addition, states/districts have implemented or expanded their 'Ban the Box' laws, which prevent employers from including tick boxes on job application forms asking about criminal convictions. Hawaii, Virginia, Maryland, New York City and Suffolk County in NY have taken such steps. These laws generally mean that employers cannot ask about an applicant's criminal record until later in the recruitment process. The premise is that ex-offenders have a better chance of getting a job if they can delay informing employers of their criminal conviction(s).
The trend towards pay equity and pay transparency continues. It is unclear if the EU Commission will proceed with its proposed Pay Transparency Directive but member states are forging ahead in this area in any event. Meanwhile, the EU has restated a commitment to prioritise progressing its proposal for gender-balance on company boards.
France is strengthening its gender pay gap transparency measures. Since 2019, companies with at least 250 employees have been required to calculate their 'gender equality index' using certain indicators relating to the gender pay gap. This requirement was extended to all companies with at least 50 employees in March 2020. Moreover, according to a press release from the French Ministry of Labour last November, it will from March 2021 start publishing the gender equality index results of companies with 250 or more employees on its website. (Currently, only the results for companies with 1,000 or more employees are published). The government will also launch a consultation on expanding the gender equality index to include an additional indicator on the share of women in senior management.
Spain has introduced new equal pay laws. From 14 April 2021, employers will be required to implement salary records detailing the mean and median salary, salary supplements and non-salary payments, disaggregated by gender, professional group, professional category, professional level, job position or any other applicable classification system established in the company. Employers will also be required to carry out salary audits if they are large enough to be required to negotiate and implement an equality plan. In addition, in January 2021, the headcount calculation rules triggering the obligation to negotiate and implement equality plans were amended.
Ireland continues to edge closer towards the introduction of mandatory gender pay gap reporting. The programme for the new government commits to introducing legislation requiring large companies to publish their pay gap. There is a different approach to tackling the issue in Poland, where an amendment to the Labour Code is under consideration that would make unequal pay ("diversification of remuneration due to employee sex") a form of workplace bullying and harassment.
At last year's Managing an International Workforce conference we mentioned the new equal pay laws in Switzerland. These came into force in July 2020 and require employers with at least 100 employees to conduct an internal 'wage equality analysis' every four years until the principle of equal pay has been achieved. The first wage equality analysis must be finalised by 30 June 2021.
Outside of Europe, equal pay laws are being strengthened in other countries. California, for example, is introducing pay reporting requirements for private employers with 100 or more employees with effect from 31 March 2021 and annually thereafter. The new laws will require employers to file reports with the relevant state department covering numbers of employees and their pay and hours by race, ethnicity and sex.
From January 2021, Colorado strengthened its laws with an 'Equal Pay for Equal Work Act' that requires equal pay for substantially similar work, a prohibition on seeking salary history from job candidates or relying on prior salary history to justify pay disparity, and a requirement that employers state salary ranges on job adverts.
As mentioned above, President Biden in the US is considering restoring the Obama-era federal pay reporting requirements that were blocked by the Trump administration.
New Zealand passed a new Equal Pay Amendment Act in November 2020. It is intended to make it easier for workers to make pay equity claims without litigating through the courts by using a collective bargaining approach. The UAE has also passed a new law extending its equal pay requirement to cover men and women who perform work of equal value.
Originally Published by Ius Laboris, February 2021
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