Legal Updates – August 2022

News

U.S. Department of Education Releases Proposed Changes to Title IX Regulations

On June 23, the 50th anniversary of Title IX—the civil rights law that aims to protect women and girls from being subjected to discrimination, harassment, and assault based on sex, the U.S. Department of Education released for public comment proposed changes to the regulations that inform schools how to implement the statute.[1] Under previous regulations, crucial protections for students who are victims of sexual harassment, assault, and sex-based discrimination were significantly weakened. The proposed regulations are aimed at restoring the safety net and ensuring that the statute is operating at an effective capacity.[2]

The regulations as currently written will strengthen protections for LGBTQI+ students who face discrimination based on sexual orientation or gender-based identity. Some of these proposals include:

  • Clearly protect students and employees from all forms of sex discrimination.
  • Provide full protection from sex-based harassment.
  • Protect the right of parents and guardians to support their elementary and secondary school children.
  • Require schools to take prompt and effective action to end any sex discrimination in their education programs or activities – and to prevent its recurrence and remedy its effects.
  • Protect students and employees who are pregnant or have pregnancy-related conditions.
  • Require schools to respond promptly to all complaints of sex discrimination with a fair and reliable process that includes trained, unbiased decisionmakers to evaluate the evidence.
  • Require schools to provide supportive measures to students and employees affected by conduct that may constitute sex discrimination, including students who have brought complaints or been accused of sex-based harassment.
  • Protect LGBTQI+ students from discrimination based on sexual orientation, gender identity, and sex characteristics.
  • Clarify and confirm protection from retaliation for students, employees, and others who exercise their Title IX rights.
  • Improve the adaptability of the regulations’ grievance procedure requirements so that all recipients can implement Title IX’s promise of nondiscrimination fully and fairly in their educational environments.
  • Ensure that schools share their nondiscrimination policies with all students, employees, and other participants in their education programs or activities.[3]

The Department began its comprehensive review of Title IX regulations began in March 2021, as directed by Executive Order 14021 – Guaranteeing an Educational Environment Free From Discrimination on the Basis of Sex, Including Sexual Orientation or Gender Identity.[4] In June of 2021, the nationwide virtual public hearings were convened by the Office of Civil Rights (OCR). During these hearings, the Department heard from a variety of stakeholders including students, parents, educators, state government representatives, lawyers, and researchers.[5] The feedback received in the hearings over the course of the year revealed the need to revise the current regulations to protect more fully against sex discrimination. The Department is set to engage in a separate rulemaking process to address Title IX’s application to athletics.

The Department’s proposed Title IX regulations will be open for public comment for 60 days from the date of publication in the Federal Register.

More States Join Effort to Prohibit Hairstyle Discrimination

On June 21, 2022, Louisiana joined other states in enacting legislation that prohibits discrimination on the basis of hairstyles or textures historically associated with race. The CROWN Act, which stands for “Creating a Respectful and Open World for Natural Hair,” amends the definition of intentional discrimination in employment under Louisiana law to cover any discriminatory practices with respect to any individual’s compensation or terms, conditions, or privileges of employment because of “natural, protective, or cultural hairstyle.”[6] The Act’s definition of natural, protective, or cultural hairstyle includes: “afros, dreadlocks, twists, locs, braids, cornrow braids, Bantu knots, curls, and hair styled to protect hair texture or for cultural significance.”

The law is intended to prohibit discrimination against individuals with hairstyles historically associated with race.[7] However, any “cultural hairstyle” is protected under the law, which could include hairstyles that are not necessarily associated with a specific race. A potential issue that might arise in practice is that the law does not address potential conflicts between an employee’s (or applicant’s) protected hairstyle and an employer’s bona fide safety rules or measures. For example, if a job requires an employee to wear safety headgear, it is not unimaginable that an employee’s particular hairstyle may prevent the safety gear from fitting properly. The law is not clear on how employers are to handle such a conflict.

Louisiana joins several states and cities that have already enacted similar laws to CROWN, including California, New York, New Jersey, Virginia, Colorado, Washington, Maryland, Connecticut, Oregon, the U.S. Virgin Islands, and more than a dozen cities.[8] Louisiana, Tennessee, and Maine have also added hairstyles and textures to the list of characteristics protected under antidiscrimination laws.

In the federal context, on March 28, 2022, the U.S. House of Representatives passed a bill (H.R. 2116) which would make hairstyle discrimination a violation of federal law.[9] A companion bill, S. 888, has been introduced in the U.S. Senate, but is not passed to date.

The Louisiana law was signed by Governor John Bel Edwards on June 21st and will take effect on August 1st.

 

Colorado Updates Unemployment Insurance Notice Requirements for Discharged Employees

Throughout the 2022 legislative session, the Colorado General Assembly has enacted several pieces of employment-related legislation.[10] One important new bill, Senate Bill 22-234, updates the notice requirement regarding unemployment insurance that employers are required to provide to employees following termination. Under current Colorado law, employers must provide employees at separation of employment that includes:

  1. A statement that unemployment insurance benefits are available to unemployed workers who meet the eligibility requirements under Colorado law;
  2. Contact information to file a claim;
  3. Information the worker will need to file a claim;
  4. Contact information to inquire about the status of their claim after it is filed.[11]

Senate Bill 22-234 proposes an expansion of the information that employers must provide when discharging an employee to include:

  1. Employer’s name
  2. Employer’s address;
  3. Employee’s name;
  4. Employee’s address;
  5. Employee’s ID number or the last four digits of the employee’s SSN;
  6. Employee’s first and last dates worked;
  7. Employee’s year-to-date earnings;
  8. Employee’s wages for the last week worked; and
  9. The reason the employee separated from the employer.

The Bill dictates that the notice containing the above information may be in electronic or hard copy format, and must be provided to all employees upon termination, regardless of the reasoning behind the employment decision. For example, whether the employee was discharged voluntarily or involuntary is immaterial to the Bill’s requirements—however, the notice must include the reason for the separation.

The Bill went into law on May 25, 2022, and the Colorado Department of Labor & Employment is expected to issue a model notice in the upcoming months. However, Colorado employers should begin taking steps towards drafting a template notice of their own and begin providing terminated employees with the required information as soon as possible.

[1] https://www.ed.gov/news/press-releases/us-department-education-releases-proposed-changes-title-ix-regulations-invites-public-comment.

[2] Id.

[3] Id.

[4] Id.

[5] Id.

[6] https://www.shrm.org/resourcesandtools/legal-and-compliance/state-and-local-updates/pages/louisiana-crown-act.aspx.

[7] Id.

[8] Id.

[9] Id.

[10] https://www.littler.com/publication-press/publication/colorado-updates-notice-requirements-employees-upon-discharge.

[11] See 7 Colo. Code Regs. § 1101-2:7.3.2.