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their status on the sex offender registry. Whether it’s a job offer

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What is Constructive Discharge?

Constructive discharge is a term that many may not be familiar with, but it plays a significant role in employment law. It occurs when an employer creates a work environment that is so intolerable that a reasonable employee would feel compelled to resign. This can include situations where an employee is subjected to workplace harassment, employment discrimination, or other forms of adverse treatment.

The post Understanding Constructive Discharge and the Mixed-Motive Defense: A Case Review appeared first on Orange County Employment Lawyers Blog.

Creators and proponents of AI will tell you that this sort of technology used in hiring helps eliminate the pitfalls of innate human biases to actually reduce instances of employment discrimination. But as our Los Angeles employment discrimination lawyers can explain, that doesn’t tell the whole story.

Because AI technology relies on machine learning, what is put into it will dictate the results it outputs. So if the information going in is even slightly coded for biases in gender, race, nationality, ethnicity, religion, etc., the results are going to perpetuate those biases – and possibly even compound them. This can be intentional, but from what we’ve seen, it’s largely unintentional. But good intentions don’t change the adverse impact.

And this issue now has a name: Algorithmic Discrimination.

Just last year, the Equal Employment Opportunity Commission issued guidance workplace algorithmic discrimination and promised to be proactive in getting ahead of the issue so that workplace policies can keep place with the technology. It’s called the Artificial Intelligence and Algorithmic Fairness Initiative, and it encourages industry self-regulation for companies using AI for recruiting and hiring.

Are There Any Algorithmic Discrimination Laws?

Employers in California and beyond are increasingly using AI to:

• Present job ads to targeted groups.
• Determine whether applicants meet the qualifications for the position.
• Hold online video interviews.
• Measure an applicant’s skills or abilities.
• Score resumes.

But despite becoming more ubiquitous in the workplace, at this point, there are no federal employment algorithmic discrimination laws on the books. (Neither does California. A bill was introduced earlier this year that would have compelled employers using AI in recruiting/hiring to assess the risk of algorithmic discrimination, but AB 331 died in committee.)

However, the EEOC did release guidance on current best practices to avoid algorithmic bias – not just in hiring, but in medical exams and workplace decisions. The guidance relies heavily on the framework of protections outlined in the Americans with Disabilities Act. The guidance generally warns against:

• Using AI tools that might discriminate on the basis of disabilities because the algorithms aren’t trained to account for such disparities.
• Not offering reasonable accommodations to applicants and employees when they use AI tools for making decisions. Individuals with conditions like cerebral palsy, epilepsy, blindness, or autism might have difficulty using the type of AI that employers are requiring them to in the recruiting/hiring process. That needs to be accounted for. And employers can be held liable for the impact of any discriminatory hiring technology they use, even if it was unintentional and even if the tech belongs to another company.

An example of unintentional algorithmic discrimination would be if the AI tech is programmed to predict who will make a good employee by comparing applicant attributes to successful employee attributes. However, that approach has a blind spot: Individuals with disabilities have long been discriminated against and wrongly excluded from many jobs, and therefore are less likely to be represented among past/current successful staff.

Companies are allowed to consider qualifications based on what is required in the job and what’s necessary to the business, but they can’t discriminate for disabilities. They also must provide reasonable accommodations if doing so would allow an otherwise qualified candidate to do their job effectively.

In addition to the EEOC guidance, the Biden Administration last fall issued a Blueprint for an AI Bill of Rights, which specifically addresses algorithmic discrimination and a myriad of strategies to avoid it.

Although there is no force of law behind this guidance (yet), as employment attorneys in Southern California, we expect that they will be relied upon when complaints and lawsuit about machine biases eventually start cropping up. Already, we’re seeing some states introducing their own policies and regulations. The California Civil Rights Council last year gave the green light for approval of proposed legislation to oversee fairness in AI tech used for hiring. Other initiatives include measures in Maryland and Illinois limiting video or facial recognition during interviews. In New York City, employers face civil fines if they’re using any sort of AI hiring tool that doesn’t comply with certain anti-bias rules.

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Now, as our Los Angeles pregnancy discrimination lawyers want to make sure everyone’s heard about two much more recent federal protections in place for pregnant and nursing workers. These are:

The PUMP Act

Effective as of December 29, 2022, the Providing Urgent Maternal Protections for Nursing Mothers Act expands protection for breastfeeding employees. The law requires most employers to extend reasonable breaks for breastfeeding employees to express milk for their new baby. This accommodation must be granted for one full year after the birth of the child. During these breaks, the employee will not be expected to carry out any work-related duties. However, if the worker is paid hourly and does not work while pumping, the employer is not required to pay for that time.

Furthermore, the area designated for nursing employees must be private, free of intrusion – and not a bathroom.

Although the act technically applies to all employers no matter what size. However, if the employer has fewer than 50 employees, it may file for an exemption to the requirement. To prevail, the employer would have to prove that compliance would result in undue hardship for the company – and the employer would bear the burden of proof. There are also industry-specific exceptions, such as airline and railroad industries.

PWFA

The Pregnant Workers Fairness Act, now part of Title VII of the Civil Rights Act of 1964, went into effect June 27, 2023. It’s applicable to employers with 15+ employees. It requires employers to extend reasonable accommodations in the event a pregnant employee experiences limitations as a result or related to pregnancy, childbirth, or any related medical condition. While you might be required to provide a doctor’s note, companies can only deny these requests if they can prove that granted the accommodation would result in “undue hardship.”

As recently outlined in the U.S. Supreme Court case of Groff v. DeJoy, “undue hardship” goes beyond a de minimis burden. Employers asserting undue hardship bear the burden of proving the accommodation would result in substantial increased costs and other significant impacts in the overall context of the employer’s business.

Some examples of possible accommodations a pregnant employee might seek under the PWFA:

• More breaks for resting, sitting, drinking water, eating, or using the restroom.
• Hours that are flexible to allow for conditions like morning sickness or to attend doctor’s appointments.
• Restrictions on heavy lifting.
• Designated parking that is closer to the building.
• Excuse from activities that are strenuous or compounds that are risky.

Your employer isn’t allowed to require that you accept any accommodation without talking about it with you first. They also can’t deny you opportunities you’d otherwise be entitled to simply because you are pregnant or force you to take leave (paid or otherwise) if there is any other reasonable accommodation option available that will keep you working. Retaliation for requesting a reasonable accommodation is also prohibited.

California Pregnant Worker Protections

These new federal protections are in addition to California pregnant worker protections that were already in place under the California Fair Employment and Housing Act (FEHA) and the California Family Rights Act (CFRA). These protections are even stronger than those provided by federal law because they apply to small employers as well as mid-sized and larger ones.

Among these protections:

• Employers with 5+ employees are entitled to reasonable accommodations for employees experiencing pregnancy, childbirth, loss of pregnancy, or a related medical condition. These reasonable accommodations can include time off work.
• Employers cannot take adverse action against a worker/prospective worker because of pregnancy, childbirth, or related condition.
• Employees who have worked for their employer for at least one year (1,250 hours in the last 12 months) are entitled to take up to 12 weeks of parental leave to bond with their new child.
• Employees who are pregnant are entitled to up to four months of unpaid leave for any period during which they are disabled due to pregnancy, childbirth, or related condition. This leave may be taken either consecutively or intermittently. Upon return from pregnancy disability leave, employees must be returned to the position they previously held.

If you believe you have been discriminated against at work on the basis of your pregnancy or having a child, our dedicated Los Angeles employment discrimination lawyers can help.

Contact the employment attorneys at Nassiri Law Group, practicing in Newport Beach, Riverside and Los Angeles. Call 714-937-2020.

Additional Resources:

FAQ: Pregnancy Disability, California Civil Rights Department

More Blog Entries:

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Case Background:

The case involved Gerald Groff, an evangelical Christian and former missionary who worked as a substitute mail carrier for the United States Postal Service (USPS). When the USPS made a deal with Amazon to deliver packages on Sundays, Mr. Groff faced a conflict between his faith and his job. He felt compelled to choose between fulfilling his religious obligations and adhering to his work schedule. After being disciplined for missing work due to religious reasons, Mr. Groff decided to take legal action, claiming a violation of his religious accommodation rights under Title VII of the Civil Rights Act of 1964.

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The Application of the Ruling to UNC and Harvard:

The Supreme Court’s ruling applies to both UNC, a public institution, and Harvard, a private institution. UNC was subject to the ruling due to its status as a state-owned entity, as public institutions are bound by constitutional restrictions. In the case of Harvard, the Court determined that despite being a private institution, it accepted federal funding and agreed to be treated similarly to a state actor in matters related to admissions. This decision sets a precedent that private institutions receiving federal funding can be subject to constitutional scrutiny, including in matters involving affirmative action.

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