/>iA. Amendments Reinforce State/Federal Protections
A portion of the amendments focused on mirroring state/federal law protections, such as the CROWN Act, which protects people from discrimination based on race-based physical traits (e.g., hair), and incorporates protections from the federal Pregnant Workers Fairness Act, which requires employers to provide pregnancy-related workplace accommodations.
B. Amendments Add New Categories
The amendments also added new protected categories, including:
- height and weight,
- housing status, and
- "justice-impacted" status.
While relatively rare, a growing number of jurisdictions throughout the country (such as New York and San Francisco) have adopted similar appearance-based protections against height and weight discrimination for employees. In addition to numerical measurements of a person's height or weight, Minneapolis' ordinance also outlaws bias based on the "impression" an employer has of a person's body size regardless of the numbers. The subjective aspect of the amended ordinance may make compliance with the prohibition against bias based on a person's height and weight uniquely challenging for employers. However, the ordinance explicitly allows employers to assert as a defense to allegations of height or weight bias that the person's body size prevents them from performing core job duties and no reasonable accommodation exists that wouldn't unduly burden the business or pose a "direct threat" to health and safety.
“Justice-impacted” status is defined in the ordinance as "the state of having a criminal record or history," including arrests, convictions, periods of incarceration or probation. Under current Minnesota state law, employers generally are barred from inquiring into or considering an applicant's criminal record until they have been selected for an interview or, in the absence of an interview, a conditional job offer has been made.
The new amendment adds the requirement that adverse employment decisions, like a refusal to hire someone, must be "reasonably based on the relationship" between the conduct underlying a person's criminal history and their ability and fitness to perform the job. To determine whether an adverse decision is reasonable based on that relationship, the amendment lays out these factors: if a person was convicted of an offense, how much time has passed since the alleged offense or conviction, the nature of the crime, a person's age at the time of the offense, evidence of rehabilitation efforts that support the prospective employee, and "any unreasonable risk" to specific people, property or the general public. The amendment precludes employers from making an adverse employment decision based on an arrest which did not result in a conviction, unless charges stemming from the arrest are still pending.
The amended ordinance has an exception for situations where refusal to hire is necessary to comply with state or federal laws or regulations.
The amendments also add housing status as a protected class, which is defined as those who may or may not have “a fixed, regular, and adequate nighttime residence.” Except as required or authorized by federal or state law, regulation, rule or government contract, it will be unlawful for an employer to refuse to hire or terminate an applicant or employee based on their housing status unless such action is because of a legitimate business justification not otherwise prohibited by law.
C. Amendments Expand the Definition of Disability
The amendments also changed basis on which an individual is considered disabled for purposes of the law’s prohibition of disability discrimination. Previously, the definition of a person with a disability in the Minneapolis ordinance mirrored the federal ADA standard—i.e., was someone who has a "physical, sensory or mental impairment" that "materially limits" at least one major life activity, had a record of such an impairment, or is perceived to have such an impairment. Now, though, it will include impairments which are "episodic or in remission" and "would materially limit a major life activity when active."
D. Practical Advice for Employers Affected
In sum, these amendments greatly expand the risk of claims of discrimination against businesses within Minneapolis or with employees performing services in Minneapolis. These businesses face charges filed with the Minneapolis Commission on Civil Rights, which has the authority to order broad relief, including hiring, reinstatement, and backpay. Given these changes, it is imperative that businesses within or with employees performing services in Minneapolis review their policies and internal procedures to ensure they are compliant with the new requirements.
