The Virginia Legislature is currently considering a bill that would allow companies to ask all employees to speak English at work.

So far, federal courts have ruled that blanket language policies are discriminatory and English can only be required when there’s a business necessity — for example, when workers have to communicate with English-speaking customers, or to improve employee safety.

The bill’s sponsor, Republican Sen. Ken Cuccinelli II, says its purpose is to allow companies to fire workers who don’t learn English without having to pay increased unemployment taxes.

The bill has a lot of opposition, and even if it passes, it wouldn’t protect employers in Virginia from federal courts and the EEOC.

We’ll keep you posted on the bill, and the activity of similar bills in other states.

Almost half (47%) of all employees believe they’ve been discriminated against at work, according to a recent Harris Interactive survey.

What kinds of discrimination are most commonly perceived? Of the people who reported discrimination, they said it was because of their:

1. age (52%)
2. gender (43%)
3. race (34%)
4. religion (9%), and
5. disability (7%).

In addition, 78% said their employers preach diversity more than they actually practice it, and the majority (61%) said diverse workforces make companies more successful.

The facts:

An employee came to work appearing physically and mentally impaired. Her boss suspected drug use and asked her to take a test. She tested positive for marijuana and prescription drugs, and she was given two choices — be discharged or enter a rehab program. She left the company and sued, claiming she was only subjected to the test because she was African-American.

The employer said:

In accordance with company policy, she was given the test because her boss had reason to believe she was using drugs.

Who won the case?

Answer: The employer.

Why: The court agreed that the woman’s race was incidental, and the company had a duty to follow up on its suspicions about her drug use.

The key was a consistent policy. Some companies test all employees before they’re hired, others reserve their right to test when employee behavior necessitates it. Either way, like all policies, it’s important to be consistent in order to avoid the appearance of bias.

Cite: Surrell v. California Water Service Co.

If a manager makes a mistake that could give the appearance of bias, it’s usually up to HR to correct it and clean up the mess. But as a recent case shows, even that might not be enough to keep the company out of court.

Here’s what happened:

An African-American woman complained to a company vice president after she got a negative performance review from her supervisor. The review meant she was ineligible for a merit-based raise, and she felt the manager was racially biased.

The VP chalked it up to a “serious personality conflict” between the two and advised the woman to build a better relationship with her boss. The employee then filed a charge with the EEOC.

Around the same time, the department was reorganized and another person took on most of the management duties. The new supervisor, under recommendation from HR, decided to give the woman a pay increase — and made it retroactive from the date of the bad review.

Did raise erase bias?

She continued with the suit anyway, and the case went before a judge. The company argued she suffered no loss — the mistake was corrected in full, so no harm was done.

The judge disagreed. He decided even a retroactive raise couldn’t erase the damage caused while the woman wasn’t receiving the extra income. And the company couldn’t be let off the hook just because it reversed its decision once the employee was ready to sue.

Too late to avoid liability

What’s the lesson for HR? Preventive medicine — i.e., training execs and managers to respond to complaints — is always the best option. In this case, the company missed its chance to make right, but things could’ve gone differently if it didn’t wait until the EEOC charge was filed.

It’s true that not all complaints are valid, but too many managers make decisions before seeking out all the facts — and without getting help from HR. With a thorough investigation, this company might have fixed the mistake before it was too late.

Cite: Crawford v. Carroll

A common scenario: An employee has a medical emergency and not enough paid sick leave to cover the time he or she will be unable to work. The employer might let employees with more accrued time than they need give up some for the sick employee to use instead.

Employers can benefit from these programs. They help build morale among employees by letting people help co-workers who are in need. Also, it’s a benefit that can be offered to employees in emergencies without spending any extra cash.

But there are dangers involved, too. Here are some of the things to keep in mind:

• Consistency: Like with any benefit, offering donated leave to some employees and not others can lead to discrimination suits, or at least complaints about unfairness.
• Employee regret: Employees who donate time might need or want it back in the future.
• Pressure: If the employee needing extra leave is a manager, his or her subordinates might feel pressured to donate time to avoid unfair treatment.

One way to limit those risks (aside from not allowing leave-sharing at all) is to have a policy and a formal process in place beforehand. For example, employers might list specific scenarios that call for leave-sharing and have prepared forms for the givers and receivers.

The policy might also state that donating is completely voluntary and can be done without supervisors knowing who did or didn’t participate.

The facts:

An employee sued after being fired for refusing to sign the company diversity policy. The employee insisted he couldn’t sign anything that required him to “respect the differences of all employees.” His reason: His new religion found homosexuality to be deviant. He supervised a worker who was openly gay, but never discriminated against him. In fact, last year, he promoted him.

The employer said:

If the supervisor can’t follow company policy, he should be fired.

Who won? The supervisor.

Why: A judge said the supervisor had been unfairly fired because of his religious beliefs. Since he had never discriminated against gays, he shouldn’t have been terminated.

Bottom line: No discrimination, no violation.

Dealing with employees’ religion can be touchy, but for a general guide you can ask: Does the belief lead to:

1. conduct that treads on the rights of others in the workplace, or
2. actions that are harmful to business?

Without one of those factors, it’s hard to prove that someone’s conduct in connection with religious beliefs deserves to be disciplined.

Cite: Buonanno v. AT&T Broadband

In addition to protecting employees who have disabilities, the ADA also makes it illegal to discriminate against an employee who “has a relationship or association” with a disabled person. Usually, that means a disabled family member, though, unlike the FMLA, for example, the law doesn’t require a familial relationship.

In one recent case, a woman was fired by her employer while her husband was being treated for cancer. Shortly before she was fired, an exec at the company asked her about the costs of her medical claims – which were high because of the cancer treatments – and asked if she’d looked into any less-expensive methods of care. She was later fired, and she sued. The court ruled in the woman’s favor, finding it likely that she was let go because of her husband’s illness (Cite: Dewitt v. Proctor).

More heads up

In addition to benefits-related issues, here are some other ways companies can slip up and find themselves in court:

• The company won’t hire or promote an employee with a disabled child, based on the belief that the employee would miss too much work while caring for the child.
• A manager puts special demands on an employee (for example, being stricter when approving leave requests or flex-time than with other workers) because of a fear that he or she might miss too much work to care for a disabled family member.

One thing the ADA doesn’t require companies to do is accommodate the non-employee’s disability. For example, you won’t need to make exceptions to your attendance policy to let an employee care for someone who’s disabled (however, cases like that often are covered by the FMLA).

To read the EEOC’s guidance on association discrimination, click here.

That question came up in a recent case in which a company was sued for national origin discrimination.

An employee filed several complaints with the HR department, claiming that white employers were getting better treatment than he was. He claimed he was being disciplined for breaking rules that non-Hispanic employees were allowed to violate without consequences.

So the HR manager looked into the issue, spoke with managers about consistency and determined the issue was resolved.

But the complaints continued even after other investigations found that there was no longer a problem. So HR sent the employee a letter asking him to stop reiterating previous complaints that had been resolved and requiring him to schedule appointments in the future if he wanted to talk to HR.

Evidence of discrimination?

Eventually, he was fired for sleeping on the job. But he thought it was discrimination and sued. As evidence, he relied mainly on the way he was treated after making his complaints.

But the judge didn’t buy it. The court ruled that the company had done enough to deal with the complaints and was reasonable for wanting to end the discussion of past incidents. Things would have been different if the company never told him he wasn’t allowed to bring other complaints in the future.

Also, the company had a legitimate reason to fire him – along with documented statements from co-workers who saw him sleeping.

Cite: Soto v. Core-Mark International

There’s no federal law against “obesity discrimination,” and only one state (Michigan) has anything on the books against using weight as the basis for an adverse employment actions But that doesn’t mean there’s no way to get sued for it.

Sex discrimination

The Yale University study found that weight discrimination was the fourth most common form of bias encountered at work. But for women, it came in third. Female workers were found to be twice as likely to encounter weight discrimination as men, with 10% of women saying they’d experienced it, compared to 5% of men.

That means there are companies out there who will hire fat men but not fat women. That practice could land a company in court for sex discrimination.

Disability law

Employees haven’t had much luck claiming obesity is protected under the Americans with Disabilities Act (ADA). But it can happen if someone’s obesity is caused by underlying conditions, such as metabolic disorders or thyroid conditions, that might qualify as disabilities.

Also, the EEOC has said the more serious condition known as “morbid obesity” might on its own be considered a protected disability.

Across the board, charges filed with the EEOC have reached the highest number since 2002. Financially speaking, the Commission reports it helped recover a total of $345 million for employees (that’s 26% more than they reported in 2006).

As usual, charges based on racial discrimination made up the largest number. Those claims have gone up by 12% over the previous year.

Other areas worth noting:

• Retaliation charges have hit a record high, going up 18% over the 2006 numbers. These charges are getting tougher for employers as courts are letting retaliation claims proceed even if the original discrimination or harassment complaint is found to be invalid.
• Pregnancy discrimination went up a whopping 31%, hitting an all-time high. It may be a good idea for employers to look over (and train managers on) policies and procedures regarding employee pregnancy.

Why have claims gone up so far? Some say it’s the more difficult economy, others say people are just more aware of the law.

Either way, employers should take note of the increase in claims. Training supervisors can go a long way toward keeping your company from joining those statistics. Also, appropriate complaint procedures can help you deal with these issues before an employee goes to the EEOC.