4 Essential Changes for Current Workplace Challenges

Times have changed: same-sex marriage is now legal, workplaces are becoming increasingly inclusive, and the government has begun cracking down on employees who are classified as independent contractors. As 2016 gets underway, legal, cultural and societal changes have had a tremendous impact on the workplace and caused organizations to reevaluate their policies and practices. It’s a new era for leaders and how they manage their employees.

With an increased focus on the human side of business, there is growing recognition that individuals are entitled to equal opportunities, protections, and the right to accommodations in the workplace. The following is a list of four essential changes leaders should make to meet today’s workplace challenges:

1. Provide Same-Sex Partners with Equal Treatment

In 2015, the Supreme Court ruled in Obergefell v. Hodges that same-sex couples have a constitutional right to marry and are entitled to the same rights and benefits as opposite-sex married couples nationwide. All legally married same-sex couples — regardless of where they live or got married — are eligible for spousal leave and other benefits available to heterosexual spouses. This represents a major shift for employers, who no longer need to confront different laws in different states. The U.S. has made substantial progress in 20 years, considering the now-unlawful Defense of Marriage Act declaring legal marriage as only between a man and a woman was signed by President Clinton in 1996, and Massachusetts was the first state to recognize same-sex marriage in 2004.

It is a best practice for employers to regularly review and revise their workplace policies and practices concerning equal employment opportunity and discrimination, employee benefits, leave policies, family and medical leave, marriage status and tax information, and to ensure they comply with the Supreme Court’s ruling.

2. Do Not Discriminate Against LGBT Individuals

The U.S. has come a long way since 1993, when Minnesota became the first state to prohibit discrimination based on sexual orientation and gender identity. In 2016, almost half of the states now prohibit employment discrimination based on sexual orientation and/or gender identity, and the number continues to grow. Additionally, in 2016, the Equal Employment Opportunity Commission (EEOC) definitively announced that it considers discrimination based on sexual orientation and gender identity to constitute unlawful sex discrimination under Title VII of the federal Civil Rights Act.  

Based on this, it is critical for employers to be aware of the law, or to be ahead of the game and ban LGBT discrimination from the start. Employers should make sure to incorporate equal employment opportunity into policies and prohibit discrimination, harassment and retaliation against LGBT individuals. It’s also important that managers, supervisors and employees are trained to provide guidance on issues relating to name changes, restrooms, transitioning employees and bullying.

3. Grant Reasonable Accommodations Unless They Would Create Undue Hardship

As workplaces become increasingly diverse and inclusive, employment policies and practices must keep pace. Various federal, state and local laws require employers to provide employees with reasonable accommodations based on pregnancy, religion, disability and sexual orientation if doing so would not create an undue hardship. In fact, in 2015, the Supreme Court addressed accommodation issues in two cases.

As workplaces become increasingly diverse and inclusive, employment policies and practices must keep pace.


In EEOC v. Abercrombie & Fitch Stores, Inc., the Court provided critical guidance regarding religious accommodations. If an employer does not know that a job applicant requires an accommodation, it may still discriminate against the applicant because the focus is on the employer’s motivations and whether the need for an accommodation influenced the employment decision in any way.

In Young v. UPS, the Court ruled that workplace policies that provide accommodations to non-pregnant workers, but do not extend the same accommodations to pregnant workers, may violate the Pregnancy Discrimination Act. These cases increased the burden on employers to provide accommodations and stressed the importance of responding to an accommodation request.  

As a result, an employer should ensure that its workplace policies and practices comply and it makes a good faith effort to respond to accommodation requests. Accommodations may include scheduling changes, modified dress and grooming policies, job reassignments, leave and time off. Further, neutral workplace policies regarding dress codes or heavy-lifting requirements should not have an adverse impact on a protected group. Managers and supervisors should be trained on how to handle and respond to accommodation requests.

4. Treat Workers as Employees Unless There Is Clear Indication Otherwise

In order to lower labor costs and avoid coverage under federal and state laws with respect to wage and hour, benefits and discrimination, many employers often classify individuals as independent contractors rather than employees. However, in recent years, federal and state labor departments have cracked down on this practice and brought a bevy of worker misclassification cases looking to recover wages and benefits for such workers.

In July 2015, the Department of Labor issued critical guidance suggesting most independent contractors are actually employees. Employers must ask themselves these questions: Is the nature of the individual’s work an integral part of the business? Do the worker’s managerial skills have an effect on the worker’s opportunity for profit? Does the work performed require special skill, judgment and initiative as opposed to technical skills? Is the relationship between the worker and the employer permanent or indefinite? What is the degree and nature of employer’s control? Does the employer actually control meaningful aspects of the work performed?

Based on the answers to these questions, an employer should evaluate its workplace and avoid misclassifying individuals. Make sure that you lawfully comply with employment tax withholding, provide medical benefits under the ACA, and provide workers compensation insurance and FMLA leave to workers who are indeed employees.

Same-sex marriage, inclusive workplaces, employee misclassification and reasonable accommodation are just a few of the ways the world of business is evolving. We need to embrace these changes and meet the challenges that are transforming our organizations head-on.

People are the key to success. As the workplace develops, we need to adjust our policies to meet the growing needs of our people. The best leadership strategy in these changing times is to focus on the human side of business.


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Beth P. Zoller is the legal editor for the discrimination, affirmative action, harassment, retaliation, employee privacy, and employee handbooks/work rules/employee conduct content in the employee management section of XpertHR. Prior to joining XpertHR, Beth practiced law for more than 10 years representing employers with respect to employment discrimination and harassment claims, contractual disputes, restrictive covenant issues, family and medical leave, wage and hour disputes and a variety of other employment-related claims.

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