EEO - Discrimination: Nevada
Federal law and guidance on this subject should be reviewed together with this section.
Author: Dana Krulewitz, Fisher Phillips
- The Nevada Fair Employment Practices Act (NFEPA) protects individuals from discrimination by both private and public employers. See Nevada Equal Opportunity Law Coverage.
- Generally, employers may be held accountable for practices that discriminate against a legally protected class, whether purposefully discriminatory or merely having an unintended discriminatory effect. See Discriminatory Actions.
- The NFEPA recognizes a greater number of protected classes than federal law. See Protected Classes.
- Nevada has an equal pay law that prohibits discrimination in compensation. See Equal Pay .
Nevada Equal Opportunity Law
The Nevada Fair Employment Practices Act (NFEPA) covers employers, public and private, with 15 or more employees for each working day in 20 or more calendar weeks in the current or preceding year, but it excludes from coverage the US government, Indian tribes and private membership clubs with 501(c)(3) tax exempt status. +Nev. Rev. Stat. § 613.310(2).
Nevada Equal Rights Commission
The Nevada Equal Rights Commission (NERC) is charged with enforcing the NFEPA. An employee must file a charge of discrimination with the NERC within 180 days of the act complained of. +Nev. Rev. Stat. § 613.405; +Nev. Rev. Stat. § 613.430. An individual alleging discrimination must file an administrative claim with the NERC before seeking action in state court.
Any person injured by an unlawful employment practice within the scope of the statute may file a complaint with the NERC if the complaint is based on discrimination because of race, color, sex, sexual orientation, gender identity, age, disability, religion or national origin. +Nev. Rev. Stat. § 613.405. If the NERC does not find that discrimination occurred, an individual may appeal to the district court. +Nev. Rev. Stat. § 613.420. If an employee prevails against an employer for an unlawful employment practice, remedies available to the employee include, but are not limited to, lost wages, punitive damages, and attorney fees and costs.
As mandated by the Nevada Department of Employment, Training and Rehabilitation, Equal Rights Commission, every employer covered by the state's equal employment opportunity and public accommodation laws must post the Nevada Law Prohibits Discrimination Poster.
Generally, employers may be held accountable for practices that discriminate against a legally protected class, whether purposefully discriminatory or merely having an unintended discriminatory effect.
In Nevada, it is unlawful to discharge or fail to hire any individual, or otherwise to discriminate against any individual with respect to compensation, terms, conditions or privileges of employment because of such individual's race, color, sex (including pregnancy), age (40 or over), national origin, religion, disability, sexual orientation, and gender identity. +Nev. Rev. Stat. § 613.330. It is also unlawful under Nevada law to ask or encourage a prospective employee to submit to a genetic test or to require or administer a genetic test as a condition of employment. An employer must not deny employment, alter the terms, conditions, or privileges of employment, or terminate employment based on genetic information. +Nev. Rev. Stat. § 613.345.
A Nevada employer may not discriminate based on sex or gender. Discrimination against a woman based on pregnancy, childbirth, or related medical conditions is considered a form of sex discrimination. In addition to the protections included in +Nev. Rev. Stat. § 613.330, if an employer grants leave with pay, leave without pay, or leave without loss of seniority to his or her employees for sickness or disability because of a medical condition, it is an unlawful employment practice to fail or refuse to extend the same benefits to any female employee who is pregnant. +Nev. Rev. Stat. § 613.335. The female employee who is pregnant must be allowed to use the leave before and after childbirth, miscarriage or other natural resolution of her pregnancy, if the leave is granted, accrued or allowed to accumulate as a part of her employment benefits. +Nev. Rev. Stat. § 613.335.
In Nevada, the Pregnant Workers' Fairness Act significantly expands the rights of pregnant employees and applicants and employer obligations with respect thereto and requires an employer with 15 or more employees to provide reasonable accommodations to employees and applicants for a condition related to pregnancy, childbirth or a related medical condition, unless the accommodation would impose an undue hardship on the employer's business. +2017 Bill Text NV S.B. 253. See Disabilities (ADA): Nevada.
Specifically, the Act:
- Requires employers with 15 or more employees to provide reasonable accommodations to employees and applicants relating to pregnancy, childbirth, or a related medical condition unless doing so would create an undue hardship;
- Prohibits employers from taking adverse action against or denying an employment opportunity to an employee or applicant because she requests or uses a reasonable accommodation;
- Requires an employer to engage in the interactive process when an employee request a reasonable obligation related to pregnancy childbirth or a related medical condition.
Conditions relating to pregnancy, childbirth or a related medical conditions are defined to include "physical or mental conditions intrinsic to pregnancy or childbirth" and specifically includes, but is not limited to:
- Lactation, nursing, mastitis or other lactation-related medical conditions
- Gestational diabetes;
- Pregnancy-induced hypertension;
- Post-partum depression; and
- Loss or end of pregnancy and the subsequent recovery.
Once an employee requests an accommodation an employer is obligated to engage in a timely, good faith and interactive process to determine a reasonable accommodation for the employee. The interactive process is triggered when a female employee or applicant requests an accommodation for a protected condition.
Under the Act, reasonable accommodations include:
- Changing the work environment or the way things are customarily carried out;
- Modifying the application process;
- Modifying equipment;
- Providing different seating;
- Revising break schedules, including the frequency or duration of breaks;
- Providing space in an area other than a bathroom for expressing breast milk;
- Assisting with manual labor, if the labor is incidental to the primary work duties of the employee;
- Providing light duty;
- Temporarily transferring the employee to a less strenuous or hazardous position; and
- Restructuring a position or providing a modified work schedule.
An employer may not require an employee or applicant to accept an accommodation she did not request or chooses not to accept. Similarly, an employee is prohibited form requiring an employee to take leave from employment if there is another available reasonable accommodation that would allow the employee to continue to work. An employer is not required to create a new position or discharge, transfer, or promote any employee to accommodate an employee. The employer is permitted to require a statement from the employee's doctor regarding a recommended accommodation and explaining why it is needed.
An employer is not required to create a new position or discharge or transfer any employee with more seniority unless the employer has or would take similar action to accommodate other classes of employees.
The Act contains notice posting requirements. An employer must provide a written or electronic notice to employees of the right to be free from discriminatory or unfair employment practices to new employees at the beginning of their employment and within 10 days after an employee notifies her immediate supervisor that she is pregnant.
The employer must also conspicuously post a notice in the workplace in an area accessible to employees. The notice must include a statement that a female employee has the right to a reasonable accommodation for a condition of the employee relating to pregnancy, childbirth or a related medical condition.See Employee Communications: Nevada; Disabilities (ADA): Nevada.
Under Nevada law, a disability is defined as:
- A physical or mental impairment that substantially limits one or more of the major life activities of the person, including, without limitation, the human immunodeficiency virus;
- A record of such an impairment; or
- Being regarded as having such impairment.
Alcohol dependency and illegal drug use are not considered protected disabilities under Nevada law. Nevada law provides protections for persons who use guide dogs or hearing dogs. +Nev. Rev. Stat. § 613.330.
Because of the nearly identical language of the Nevada disability law and the American with Disabilities Act, Nevada courts will look to federal ADA cases in applying the Nevada antidiscrimination statute and with respect to an employer's obligation to provide reasonable accommodations to an individual with a disability.
Nevada law specifically makes it unlawful for an employer to discriminate against persons with a disability by interfering, directly or indirectly, with the person's use of an aid or appliance, including, without limitation, a service animal. +Nev. Rev. Stat. § 613.330(5). In addition, Nevada law requires an employer to permit an employee with a disability to keep the service animal with him or her at all times in his or her place of employment. +Nev. Rev. Stat. § 613.330(6). This law was amended as of October 15, 2015 to address an employee's use of a miniature horse as a service animal. +2015 Bill Text NV A.B. 157. Effective October 1, 2015, a service animal is limited to a dog or a miniature horse. An employer may determine whether it is reasonable to allow an employee to use a miniature horse as a service animal in the workplace by using assessment factors laid out under federal regulations concerning miniature horses. +28 C.F.R. § 36.302. The amendments also change Nevada's definition of service animal to align with federal law applicable to public accommodations, i.e., any dog that is individually trained to do work or perform tasks for the benefit of an individual with a disability, including a physical, sensory, psychiatric, intellectual or other mental disability. In addition, use of a service animal will no longer be limited to individuals who are blind, deaf or have a physical disability; the word "physical" has been removed.
AIDS/HIV status may be considered a disability in Nevada. +Nev. Rev. Stat. § 613.330.
It is not an unlawful employment practice for a school, college, university or other educational institution or institution of learning to hire and employ employees of a particular religion if the school or institution is, in whole or in substantial part, owned, supported, controlled or managed by a particular religion or by a particular religious corporation, association or society, or if the curriculum of the school or institution is directed toward the propagation of a particular religion. +Nev. Rev. Stat. § 613.350(4).
Nevada follows federal law with respect to reasonable accommodation of the religious practices of employees.
Nevada law prohibits discrimination based on age against individuals 40 years of age or older. However, it is not an unlawful employment practice for an employer to observe the terms of any bona fide plan for employee benefits, such as a retirement, pension or insurance plan, which is not designed to evade the provisions of +Nev. Rev. Stat. §§ 613.310 et seq. as such provisions relate to discrimination against a person because of age. +Nev. Rev. Stat. § 613.350(5). However, no such plan excuses the failure to hire any person who is at least 40 years of age.
Nevada prohibits discrimination based on sexual orientation. The provisions of +Nev. Rev. Stat. §§ 613.310 et seq., inclusive, concerning unlawful employment practices related to sexual orientation do not apply to an organization that is exempt from taxation pursuant to +26 U.S.C. § 501(c)(3).
On June 26, 2015, the Supreme Court ruled that the 14th Amendment: (1) requires a state to license a marriage between two people of the same sex; and (2) requires a state to recognize a marriage between two people of the same sex when their marriage was lawfully licensed and performed out of state. . See Obergefell v. Hodges, +2015 U.S. LEXIS 4250 (U.S. June 26, 2015). Even though gender identity and sexual orientation are not explicitly recognized as protected classes under federal law, in light of this ruling it is best practice for an employer to review and revise its discrimination policies and provide equal treatment to individuals in same-sex marriages with regard to leave, benefits, compensation and other terms of employment.
In addition to the protections included in +Nev. Rev. Stat. § 613.330, Assembly Bill 211 adds gender identity or expression to the list of protected classifications for which it is illegal for an employer to discriminate against an employee. Gender identity and expression is defined as "a gender-related identity, appearance, expression or behavior of a person, regardless of the person's assigned sex at birth." This became effective October 1, 2011. +Nev. Rev. Stat. § 613.310(4).
Lawful Use of Product Outside
It is unlawful for an employer to discriminate against an employee for the lawful use of any product outside the premises of an employer and during nonworking hours which does not adversely affect job performance or safety of other employees. +Nev. Rev. Stat. § 613.333.
It is unlawful for an employer to require or encourage current or prospective employees and members of labor organizations to submit to genetic test. +Nev. Rev. Stat. § 613.345.
It is an unlawful employment practice for an employer, a labor organization or an employment agency:
- To ask or encourage a prospective or current employee or member of the labor organization to submit to a genetic test;
- To require or administer a genetic test to a person as a condition of employment or membership in the labor organization;
- To deny employment or membership in the labor organization based on genetic information;
- To alter the terms, conditions or privileges of employment or membership in the labor organization based on genetic information; and
- To terminate employment or membership in the labor organization based on genetic information. +Nev. Rev. Stat. § 613.345.
Protections for Domestic Violence Victims
Effective January 1, 2018, eligible employees may be entitled to take leave and to request reasonable accommodations if the employee or the employee's family or household member is a victim of domestic violence. In order to be entitled to take leave, an employee must be employed by the employer for at least 90 days. The employee may not be the alleged perpetrator.
An employee who is a victim of domestic violence, or whose family or household member is a victim, may request reasonable accommodations (which do not create an undue hardship), including, but not limited to a transfer or reassignment, a modified schedule, a new telephone number; or any other reasonable accommodations needed to ensure the safety of the employee, the workplace, the employer or other employees. The employer may require documentation that confirms or supports the reason the employee requires reasonable accommodations.
The leave law prohibits an employer from:
- Denying an employee the right to take leave in accordance with the law;
- Requiring an employee to find a replacement worker as a condition of taking leave; and
- Retaliating against an employee for using leave.
The accommodation law specifically prohibits an employer from terminating, disciplining, discriminating against in any manner, denying employment or promotion to, or threatening to take any such action against an employee because:
- The employee requested to take leave due to domestic violence;
- The employee participated as a witness or interested party in court proceedings related to an act of domestic violence that triggered the use of leave;
- The employee requested a reasonable accommodation related to domestic violence; or
- An act of domestic violence was committed against the employee in the workplace.
Lactation/Breastfeeding Protections and Accommodations
Nevada has expanded protections for breastfeeding employees. All public and private employers in Nevada (with the exception of the Department of Corrections, certain small employers and certain licensed contractors) are required to provide a reasonable break time and a clean, private place other than a bathroom, that is reasonably free from dirt or pollution, protected from the view of others and free from intrusion by others where the nursing employee may express breast milk.
This break time may be provided with or without compensation. However, an employer may be need to pay the employee for the time spent expressing breast milk if required to do so by a collective bargaining agreement.
Further, an employer is prohibited from retaliating against an employee who:
- Takes such break time or uses the designated place to express breast milk; or
- Takes any action to enforce this requirement.
If providing such break time would create an undue hardship for the employer based upon the employer's size, financial resources, nature and structure, the employer is required to meet with the employee to discuss potential alternatives. If no agreement is reached on such an alternative, an employer may require the employee to accept a reasonable alternative selected by the employer. The employee may appeal the decision by filing a complaint.
A private employer may be exempt from these requirements if the employer:
- Has fewer than 50 employees and complying with the requirements would cause an undue hardship; or
- Is a licensed contractor and the employee is performing work at a construction job site that is at least 3 miles from the regular place of business of the employer.
A public employee may file a complaint against his or her public employer for certain violations of this new law and require the Local Government Employee-Management Relations Board to create an expedited procedure to resolve such a complaint.
The law authorizes the Labor Commissioner to enforce these requirements against private employers. A private employer who violates these requirements guilty of a misdemeanor, subject to a civil penalty of $ 5,000 per violation.
Also note that under the Nevada Fair Employment Practices Act/Pregnant Workers Fairness Act, an employer with 15 or more employees must provide a reasonable accommodation such as revising break schedules, which may include revising the frequency or duration of breaks and providing space in an area other than a bathroom that may be used for expressing breast milk unless doing so would create an undue hardship.
It is not unlawful to take or fail to take action on the basis of religion, sex, sexual orientation, national origin, age, or disability (but not race) in certain instances in which such status is a bona fide occupational qualification reasonably necessary for the normal operation of that particular business or enterprise. It is also not unlawful an employer to apply different standards of compensation, or different terms, conditions or privileges of employment based on a bona fide seniority, merit, or piecework system so long as those differences are not the result of an intention to discriminate based on one of the protected categories. +Nev. Rev. Stat. § 613.330.
Bona Fide Occupational Qualifications
It is not an unlawful employment practice for an employer to fail to hire and employ employees on the basis of his or her religion, sex, sexual orientation, age, disability or national origin in those instances where religion, sex, sgender identity, age, physical, mental or visual condition or national origin is a bona fide occupational qualification reasonably necessary to the normal operation of that particular business or enterprise. +Nev. Rev. Stat. § 613.350(1).
Disability as a Bona Fide Occupational Qualification
It is not an unlawful employment practice for an employer to fail or refuse to hire and employ employees on the basis of a disability in those instances where physical, mental or visual condition is a bona fide and relevant occupational qualification necessary to the normal operation of that particular business or enterprise, if it is shown that the particular disability would prevent proper performance of the work for which the person with a disability would otherwise have been hired, classified, referred or prepared under a training or retraining program. +Nev. Rev. Stat. § 613.350(2).
Age as a Bona Fide Occupational Qualification
It is not an unlawful employment practice for an employer to fail or refuse to hire or to discharge a person on the basis of his or her age if the person is less than 40 years of age. +Nev. Rev. Stat. § 613.350(3).
It is not unlawful for employers to require employees to comply with reasonable workplace appearance, grooming, and dress standards as long as the standards are not precluded by law. +Nev. Rev. Stat. § 613.350(6). However, an employer must allow an employee to appear, groom and dress in a manner consistent with the employee's gender identity or expression.
Protection for Employees Engaged in Military Service
Employers may not terminate an employee because the employee is ordered to active service or duty in the Nevada National Guard. +Nev. Rev. Stat. § 412.139. Such employee is entitled to be immediately reinstated without loss of any seniority or benefits and to receive all wages lost as a result of the termination. +Nev. Rev. Stat. § 412.1395.
Public employees who perform active military service are entitled to a leave for absence without pay for the duration of their military service plus an additional 90 days. +Nev. Rev. Stat. § 284.359. Such employees must be reinstated to their former class of positions, or the nearest approximation of their positions, consistent with the circumstances. Employees can take up to fifteen days of leave with compensation in any calendar year. +Nev. Rev. Stat. § 281.145.
Private employers in Nevada are permitted to use a voluntary veterans preference policy that gives preference to a veteran who has not been dishonorably discharged, or the spouse of a veteran, in hiring, promotions and retention decisions. See Recruiting: Nevada. An employer should be careful in applying any veterans preference policy that the policy does not have an adverse impact on any other protected class.
Protection for Communist Party Members
Nevada employers are prohibited from discriminating or taking an adverse employment action against an individual who is a member of the Communist Party. +2013 Bill Text NV S.B. 506. This law repeals a Nevada law that excluded from the definition of the term unlawful employment practice any action or measure taken by an employer or certain entities against a person who is a member of the Communist Party.
Nevada's equal pay law prohibits discrimination in wages on the basis of sex for equal work on jobs that require equal skill, effort, and responsibility, performed under similar working conditions. +Nev. Rev. Stat. § 608.017. The law applies to all employers in the state, regardless of size, including employment agencies and labor unions. Employers are prohibited from reducing any employee's wages in order to comply with the Law. +Nev. Rev. Stat. § 6028.015. It may be permissible to pay different wages if based upon a seniority system, a merit system, a compensation system under which wages are determined by the quality or quantity of production or if the wage differential is based on factors other than sex.It is also unlawful for an employer to discriminate or retaliate against an employee for testifying in a proceeding under the law.
In Nevada, it is also an unlawful employment practice to discriminate against any person with respect to the person's compensation, terms, conditions or privileges of employment, because of his or her race, color, religion, sex, sexual orientation, gender identity or expression, age, disability or national origin. +Nev. Rev. Stat. § 613.330.
Under an amendment to the NFEPA, it is unlawful for an employer to discriminate or take any other prohibited actions against an employee or applicant for inquiring about, discussing or voluntarily disclosing his or her wages or the wages of another employee or applicant. This law applies to any employer employing 15 or more employees for each working day in each of 20 or more calendar weeks in the same or the preceding calendar year as when the unlawful employment practice occurred.
The law does not apply to any person who has access to information about another's wages as part of his or her essential job functions and discloses the information to a person who does not have access to that information, except as ordered by the Labor Commissioner or a court of competent jurisdiction.+2017 Bill Text NV A.B. 276.
Recreational marijuana use by adults 21 and over is legal in Nevada. Individuals can possess up to one ounce of the drug and grow up to six plants per person in an enclosed space. Nevada voters approved the measure in the November 2016 election. As with medical marijuana, there is no duty on an employer to accommodate recreational use in the workplace. Also, public consumption of the drug remains prohibited.
However, Nevada law does make it an unlawful employment practice for an employer to refuse to hire a prospective employee for engaging in the lawful use of any product outside the employer's premises during nonworking hours, if that use does not adversely affect the employee's ability to perform his or her job or the safety of other employees. +Nev. Rev. Stat. § 613.333.
Despite the fact that medical marijuana is legal in Nevada, an employer is not required to allow an employee to use medical marijuana in the workplace nor is an employer obligated to modify the job or working conditions of a medical marijuana use. +2013 Bill Text NV S.B. 374. However, an employer is required to provide a reasonable accommodation for the medical needs of a valid registered medical marijuana user if the requested reasonable accommodation does not pose a threat of harm to persons or property, does not create an undue hardship for the employer and does not prevent the employee from fulfilling their job duties and responsibilities. +Nev. Rev. Stat. § 453A.800.
Confidentiality Provisions in Settlement Agreements
Effective July 1, 2019, Nevada law prohibits a settlement agreement from containing provisions that prohibit or restrict a party from disclosing certain information relating to a civil or administrative action, if such an action relates to:
- Conduct that would otherwise qualify as a sexual offense punishable as a felony under certain circumstances;
- Discrimination on the basis of sex by an employer; or
- An act of retaliation by an employer for a claim of discrimination.
There are no developments to report at this time. Continue to check XpertHR regularly for the latest information on this and other topics.