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In this series, we will explore some of the ways states vary from one another in their employment laws.
When drafting equal employment opportunity and anti-harassment policies, employers often list the protected classifications upon which they will not base unfavorable employment decisions. Federal law makes it unlawful to discriminate against employees based on race, color, national origin, religion, sex (including pregnancy and childbirth), sexual orientation, gender identity, disability, age, citizenship status, and genetic information in all 50 states. However, depending on the state in which its employee is working, an employer may have additional protected classes of which it needs to be aware.
For example, Michigan prohibits discrimination based on an employee's height or weight. It also prohibits discrimination based on AIDS/HIV status (which arguably would be covered under disability, but a specific protection for AIDS/HIV status allows employees with one of those conditions to bring a discrimination claim without proving they are substantially limited in a major life activity). California includes reproductive health decision-making as a protected class. Illinois protects employees against discrimination based on unfavorable military discharge. New York prohibits discrimination based on an employee's status as a victim of domestic violence. These are just a few examples of the many additional protections afforded under various state anti-discrimination laws.
Multistate employers often ask me how to draft equal employment opportunity policies given the myriad differences in state laws. My lawyerly answer is that it depends on how many states and what states are at issue. In some situations, it is enough to list the federally protected classes and follow it with something such as "and any other characteristic protected by applicable law." In other cases, an employer may need to prepare a supplemental policy for certain states listing all of those particular states' protected classes. There is no one-size-fits-all solution.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.
