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Sex Change Protected . . . Farm Work Rejected

In the last two days, the Equal Employment Opportunity Commission (EEOC) has announced that sex changes are now covered under the discrimination protections of the Civil Rights Act of 1964. Meanwhile, it was reported this morning that the US Department of Labor (DOL), is finalizing a rule that would prevent children under 18 years of age from working on farms, even their parents’ farm.

If you employee 15 or more employees, Title VII of the Civil Rights Act of 1964 (Title VII) prohibits you from discriminating against applicants and employees on terms and conditions of employment based on race, color, sex, religion and national origin. In an opinion delivered on Monday, the EEOC declared that employers who discriminate against an employee or applicant on the basis of the person’s “gender identity” violates Title VII’s sex discrimination prohibitions.

This is a new opinion. It runs counter to previous interpretations and prior court decisions. If you have an applicant or an employee that has had a sex change operation, is preparing for a sex change or has other “gender identity” issues, you need to act carefully. You should seek legal advice before taking action.

Most LegalBrief readers are not in the agricultural industry. A few readers are. Many more of us, however, worked on farms as we were growing up. I for one would not trade that experience for anything.

Although thousands of farm kids might cheer the end of chores, all employers should be concerned about a DOL rule prohibiting children under 18 from work “in the storing, marketing and transportation of farm product raw materials.” It is an example of how the federal government is extending its reach ever further into the affairs of American employers.

These are two sea change rulings not by elected representatives or judges but by unelected bureaucrats. They are just two examples that have come to light this week alone. You need to be aware of what has become an almost constant stream of rule changes. You need to update your policies, procedures and employee handbooks every year, train your supervisors on how to identify and handle problems and seek legal advice from experienced attorneys at the first sign of trouble.

You may read the news and think that new rules do not apply to your organization. You would be wrong. Businesses with 15 employees are not big businesses. Yet, they are the target of these new rules. And, employment rules are changing faster than probably at anytime before.

Prudent employers must pay attention, take steps to prevent problems, develop systems for identifying problems and deal with problems effectively.

There is no doubt legal compliance is harder now than ever before. Pay attention, more rule changes are on the way.

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