The new poster informs applicants and employees of federal contractors of their rights protected by the OFCCP, including the types of employment discrimination that are illegal, the types of employment practices that can be challenged as discriminatory, and what they can do if they believe discrimination has occurred.  Applicants and employees must have a way to access the poster, either electronically or physically.

As explained by the OFCCP, the new poster includes the following changes:

• Notes that harassment is a prohibited form of discrimination.
• Clarifies that sex discrimination includes discrimination based on pregnancy and related conditions, sexual orientation, or gender identity.
• Explains protections under Executive Order 11246 related to asking about, disclosing, or discussing pay.

Federal contractors must use the new “Know Your Rights” poster instead of the “EEO is the Law” poster and the “EEO is the Law” Supplement, which were released in 2009 and 2015, respectively.  In addition to the new poster, federal contractors are still required to post the “Pay Transparency Nondiscrimination Provision” and include it in employee handbooks and manuals.

Bottom Line

Federal contractors should act diligently to get the “Know Your Rights” poster displayed prominently.  If you have any questions about complying with the OFCCP’s various requirements, please reach out to your trusted Felhaber attorney.

The post OFCCP Updates Required EEO Posters appeared first on Felhaber Larson.

Whole Foods has long had a dress code policy on its books prohibiting employees from wearing clothing with visible, non-company slogans, messages, logos, or advertising. Before 2020, this dress policy was largely unenforced. Employees were not disciplined for wearing apparel with the logos of sports teams, the NRA, LGBTQ+ pride flags, and more. However, with the onset of the coronavirus pandemic employees started to wear face masks and with the rise in protests surrounding police violence, some employees began wearing face masks with the message “Black Lives Matter.” At this point, Whole Foods renewed enforcement of the dormant dress code policy and began disciplining employees who wore any apparel violating the policy – including employees wearing the Black Lives Matter facemasks. Employees violating the policy were sent home without pay and were assigned disciplinary points, which have the possibility of impacting eligibility for raises and possible termination.

In July of 2020, a group of employees sued Whole Foods for race-based and associational discrimination alleging that Whole Foods had selectively enforced its dress code policy.

According to the First Circuit, the group of employees failed to establish that once Whole Foods revived its policy and began reinforcement of it, it did so inconsistently or on the basis of a protected class.  Instead, the First Circuit found that Whole Food uniformly enforced its dress code regardless of the message and, thus, did not violate antidiscrimination laws.

Bottom Line

For private employers, this case raises a few considerations to be made when implementing and enforcing similar policies. If employers have a similar policy on the books, but it has not been enforced, now is the time to review, revise if necessary, and begin uniform enforcement. Had Whole Foods consistently enforced its policy rather than have years of non-enforcement, only to revive the policy in a period of stark political polarization, this case likely would not have been brought. Second, any such policy should be enforced uniformly. The policy at issue here banned employees from wearing any clothing containing non-company related slogans, messages, and logos. Any means any. It is unclear how the court would have ruled had the Whole Foods policy targeted political speech specifically. The case was dismissed because Whole Foods enforced its policy against employees wearing sports team logos in the same way it enforced the policy against employees wearing Black Lives Matter masks. Any enforcement of a similar policy cannot specifically target one type of message if all non-company messages are banned.

The post First Circuit Allows Whole Foods to Ban Employees from Wearing Black Lives Matter Face Masks appeared first on Felhaber Larson.

The Bostock Decision

The Bostock case was a consolidation of three cases alleging discrimination against LGBTQ+ workers, which the Supreme Court decided together in a single opinion.  Gerald Bostock, a child welfare services coordinator, was fired after his employer learned he joined a gay softball league.  Donald Zarda was fired from his position as a skydiving instructor after his employer learned that he was gay.  Aimee Stephens, a funeral director, was fired after her employer learned she was going to begin presenting as female after undergoing gender reassignment surgery.

The Supreme Court held that employment discrimination based on sexual orientation or transgender status constitutes discrimination “because of sex” and, therefore, violates Title VII.  The Court acknowledged that, in 1964 when Title VII was enacted, few would have expected the law to apply to discrimination against gay and transgender persons.  However, the majority of the Court found its holding inescapable given the plain language of the statute unambiguously prohibits the discriminatory practice.  As Justice Gorsuch, writing for the majority, explained, “discrimination based on homosexuality or transgender status necessarily entails discrimination based on sex; the first cannot happen without the second.”

The Guidance

The Guidance provides added clarity about the obligations of employers and the rights of LGBTQ+ workers, including the following:

• • Employers may not deny an employee equal access to a bathroom, locker room, or shower that corresponds to the employee’s gender identity.  “In other words, if an employer has separate bathrooms, locker rooms, or showers for men and women, all men (including transgender men) should be allowed to use the men’s facilities and all women (including transgender women) should be allowed to use the women’s facilities.”
  • In certain circumstances, use of pronouns or names that are inconsistent with an individual’s gender identity may be considered unlawful harassment.  While accidental misuse of a transgender employee’s preferred pronouns does not violate Title VII, “intentionally and repeatedly using the wrong name and pronouns to refer to a transgender employee could contribute to an unlawful hostile work environment.”
  • Employers cannot require a transgender employee to dress in accordance with the employee’s sex assigned at birth.  “Prohibiting a transgender person from dressing or presenting consistent with that person’s gender identity would constitute sex discrimination.”
  • Employers are prohibited from discriminating against an employee because that employee does not conform to a sex-based stereotype about feminine or masculine behavior (regardless of whether the employer knows the employee’s sexual orientation or gender identity).
  • Employers cannot justify discriminatory action based on customer or client preferences.  Employers may not fire, refuse to hire, or otherwise discriminate against someone because customers or clients would prefer to work with people who have a different sexual orientation or gender identity.  For example, an employer cannot keep LGBTQ+ employees out of public-facing positions or direct those employees toward certain stores or geographic areas.
  • Non-LGBTQ+ applicants and employees are also protected against sexual orientation and gender identity discrimination.  For example, employers are prohibited from discriminating against employees because they are straight or cisgender.

Bottom Line

While the EEOC stated that the information in the Guidance was not new policy, it is an important reminder to employers and workers alike of the rights of LGBTQ+ individuals to be free of discrimination in the workplace.  Employers must be aware that Title VII’s prohibition of discrimination based on sex includes sexual orientation and gender identity.

The post EEOC Addresses LGBTQ+ Discrimination on Anniversary of Landmark Bostock Ruling appeared first on Felhaber Larson.

This has been a matter of public discussion for many years as representative groups have petitioned the teams not to use their racial and cultural identities as mascots.  The teams (and many of their supporters) have countered that they are highlighting the virtues and achievements of these groups and that many group members favor their use.  In particular, the Washington football team has adamantly resisted any change, with the owner stating on record in 2013 that he would never change the team name.  The Cleveland baseball club has been a bit more conciliatory, having recently retired their long-standing mascot that was an exaggerated caricature.

While the branding concerns of major sports franchises are unique, they are somewhat comparable to the issues that ordinary employers might face if employees claim a hostile work environment arising from the use of racial or ethnic stereotypes in the work place, or from tolerating such use by other employees.   Since the complaints are similar, it is instructive to review the defenses that the team owners have offered in the past to defend their use of cultural imagery and whether they might be useful in defending a hostile work environment claim.

“I’m Trying to Honor Those Groups”

As noted above, owners of the these teams (and the other teams with similar names) all say that their intent is to honor the achievements and positive qualities of the Native American people.  Fair enough – we will take them at their word.  However, in a claim of hostile work environment, we have known for more than 30 years that intent is far outweighed by impact.  If an employee complains about a racially-insensitive remark or a dirty joke, the defense of “I didn’t mean it” or “I was just trying to be funny” is unlikely to carry much weight if the impact is such that it created a hostile environment for the complaining employee.

(Editor’s Note – In a case many years ago, a supervisor with the last name of Lynch referred to his department as his “Lynch mob.” It was viewed as a joke back then but today, it likely would be viewed quite negatively no matter how innocent or jovial that supervisor might seem.)

“These Were Terms of Respect When I Named the Team”

Owners of sports teams that use Native American imagery typically explain that when the team was formed and/or the name was adopted, the term (e.g. warrior, brave) was considered to be a signal of respect.  Whether or not that is true, that defense would be largely unavailing in the workplace today if the term is now considered inappropriate.  Words and phrases change over time so regardless of what it meant originally, current usage will control.  Consider, for example, how the word “gay” means something very different today than it did in the era we used to call “the gay 90’s.”  A number of other words that were previously used acceptably to describe someone (e.g. “retarded”) are also now generally considered offensive.

Indeed, as we reported last month in Minnesota Courts Still Require Severe or Pervasive Conduct in Hostile Work Environment Claims, the Minnesota Supreme Court ruled that while we will continue to evaluate harassment claims in  terms of whether the conduct is severe or pervasive, the threshold for meeting those terms has been lowered.  The court specifically advised that conduct determined in past cases not to be severe or pervasive might now be viewed differently in accordance with current sensibilities.  Therefore, explanations like “we have always used that term” or “we got sued for the same thing 10 years ago and won” will be less successful in court today.

(Editor’s Second Note – even the term “owner” as has been used in this article has been subject to challenge by some African American athletes on the grounds that athletes are people and nobody owns people. Food for thought in a future piece).

“I’ve Asked Around and Nobody Seems to Mind”

The owners of the teams in question often point to the results of surveys they have taken of Native American people to show that the majority of survey respondents favor the name.  They also point to spokespeople of various tribes who seem to approve the use of the teams’ imagery.

However, in the world of employment law, an employee’s right to be free from harassment is not a matter of popular vote.  Regardless of how often a supervisor uses a discriminatory phrase without complaint, or how many employees might express that they do not object to it, any employee has the right to object to the use of overtly discriminatory language or conduct, and the defense of “Nobody else complained” is likely to be unavailing.

Bottom Line

The sports world is very different than other work settings.  Indeed, it has been said many times that the same act of violence on a football field that earns an athlete fame and fortune would get them five years in prison anywhere else.

For this reason, it is strongly recommended that employers not borrow from sports owners’ playbooks when defending the use of racially or ethnically charged language or behaviors.

The post Should Employers Use the Same Arguments as Sports Teams Using Native American Imagery? appeared first on Felhaber Larson.

The decision actually involved three separate cases considered collectively by the Court. In each such case, the claimant alleged that their employment was terminated simply because of their homosexuality or transgender status. The Court conceded that at the time Title VII was written in 1964 the term “sex” referred only to “status as either male or female [as] determined by reproductive biology,” but did not shy away from the bigger picture, stating “the question isn’t just what “sex” meant, but what Title VII says about it.”

Discrimination “Because of Sex”

Title VII prohibits discrimination “because of sex,” meaning that an employer violates the Act when it makes an employment decision on this basis. This led the Court to a “simple and momentous” statement: “[I]t is impossible to discriminate against a person for being homosexual or transgender without discriminating against that individual based on sex.” The Court provided the example of two employees who are both attracted to men, but one is a man and one is a woman. If the employer fires the male employee for no other reason aside from the fact that he is attracted to men, “the employer discriminates against him for traits or actions it tolerates in his female colleague.” In the transgender context, if the employer fires a transgender employee who was identified as male at birth but now identifies as female yet retains an identical employee who was identified as female at birth the “employer intentionally penalizes a person identified as male at birth for traits or actions that it tolerates in a person identified as female at birth.” This violates Title VII as the “employee’s sex plays an unmistakable and impermissible role” in the employment decision.

The employers argued that discrimination on the basis of homosexuality or transgender status is not truly discrimination “because of sex” as people typically conceive of the issue. The Court rejected this position, stating that under the Title VII “but-for” causation test, sex is the underlying factor involved in discrimination against homosexual and transgender individuals, and is therefore prohibited.

It Doesn’t Matter What the Employers Thinks They Are Doing

The employers also argued that discrimination based on homosexuality or transgender status is not intentional discrimination on the basis of sex. The Court rejected this argument as well, stating that such discrimination “necessarily and intentionally applies sex-based rules” by penalizing male employees for being attracted to men, for example. Just because employers “don’t perceive themselves as motivated by a desire to discriminate based on sex” does not mean that they are not violating Title VII when they discriminate against employees based on homosexuality or transgender status. The Court offered the following example:

Imagine an employer who has a policy of firing any employee known to be homosexual. The employer hosts an office holiday party and invites employees to bring their spouses. A model employee arrives and introduces a manager to Susan, the employee’s wife. Will that employee be fired? If the policy works as the employer intends, the answer depends entirely on whether the model employee is a man or a woman. To be sure, that employer’s ultimate goal might be to discriminate on the basis of sexual orientation. But to achieve that purpose the employer must, along the way, intentionally treat an employee worse based in part on that individual’s sex.

Finally, the employers also argued to no avail that Title VII does not specifically call out sexual orientation or transgender status as protected characteristics. While acknowledging that sexual orientation and transgender status are not the same as sex, the decision states that “discrimination based on homosexuality or transgender status necessarily entails discrimination based on sex; the first cannot happen without the other.”

Bottom  Line

This decision does not have the impact in Minnesota that it does in most other states since our state’s Human Rights Act already bans discrimination on  the basis of sexual orientation.  Nevertheless, it is revolutionary in that it truly makes a prohibition against employment discrimination against any member of the LGBTQ community the law of the land in the United States.

The post U.S. Supreme Court Rules That Federal Law Banning Sex Discrimination Also Applies To Gay and Transgender Workers appeared first on Felhaber Larson.

This expanding range of self-image carries with it the desire and often insistence that accurate labels and correct pronouns be utilized.

Three recent cases involving the use (or nonuse) of desired gender-related pronouns may signal what Minnesota employers might expect in a workplace where the phrase “he said – she said” has gone the way of the rolodex, white-out and pleas to “work smarter, not harder.”

Case #1

An Ohio public university professor refused the request of a transgender female student to stop calling her sir and address her as a female.  Proclaiming his strong religious belief that a person’s gender cannot be changed, the professor stood his ground even after the university warned him that he was violating their anti-discrimination policy.  He sued the university for violating his 1^st amendment rights of free speech and free exercise of religion.

Case #2

An Indiana school teacher has survived a motion to dismiss his claim of religious discrimination after he was fired for not complying with his high school’s transgender name-and-pronoun-use policy.  He too expressed the belief that gender is fixed at conception making it a sin to say or act otherwise.

Case #3

A Maryland transgender employee sued her employer for retaliatory discharge after she complained that managers and co-workers intentionally refused to call her by her chosen name, declined to refer to her with accurate gender-related pronouns, and criticized her clothing choices despite the fact that she wore the same types of clothes as other female employees.

What is an employer supposed to do when faced with competing expectations of respecting an employee’s gender identity and honoring an objecting employee’s religious convictions?

The First Amendment issue applies, of course, only to public employers and frequently is resolved under the US Supreme Court’s pronouncement that freedom of speech for public employees applies only to personal speech and not when they are speaking in the course of their official duties.  As such, the university professor’s claim (Case #1) probably will depend upon whether it is a matter of personal preference or professional expectation to refer to students as Mr., Ms., or anything else of that nature.

Identity v. Beliefs

As for the discrimination claims, it is not yet settled whether federal law (Title VII)  applies to gender orientation issues but the US Supreme Court heard arguments on that issue in October and is expected to rule this year. Regardless of that decision, though, Minnesota stands with roughly half the other states by including a ban on sexual orientation discrimination in our state anti-discrimination statute (the Minnesota Human Rights Act).  “Sexual orientation” is defined in the statute to include “having or being perceived as having a self-image or identity not traditionally associated with one’s biological maleness or femaleness.”

As a result, Minnesota employers may expect transgender employees to ask or insist that their chosen pronouns be used (just like any other employee).  Transgender people dismiss religious discrimination concerns (with some legal support on their side) by noting that as long as one particular religion is not singled out, a neutral and uniform policy requiring the use of requested pronouns is not discriminatory.  Moreover, while employers cannot dictate what their workers believe, they certainly can and frequently do insist that employees not denigrate their co-workers who hold different beliefs.

On the other hand, workers with sincerely held religious beliefs correctly contend unlike most protected classifications that simply require equal treatment, religious convictions must be accorded reasonable accommodation.  While recognizing that the legal obligation of religious accommodation (unlike disability accommodation) requires only a minimal effort on the employer’s part, those with strong convictions contend that it requires very little effort or burden simply to exempt them from the requirement to use particular pronouns.

What to Do Until the Courts Decide

Until Minnesota courts resolve these issues, employers need to determine how they will respond to this conundrum.  Refusing to refer to a transgender female as “she” may not be an independent violation of law but it likely will be a piece of evidence if and when that employee brings a charge or lawsuit claiming hostile work environment based on sexual orientation.  Is it really that difficult to honor the employee’s request (and ask her co-workers to do the same), especially if this is done in good faith and with sincere earnestness?

By that same token, might it be possible to acknowledge sincerely-held religious beliefs and offer suggestions for not compromising them?  For example, the employer might suggest the simple workaround of just using the employee’s first name.  If Steve is now Stephanie, the co-worker can avoid using pronouns merely by saying “Yes, I saw Stephanie leave a few minutes ago.  I think Stephanie is on the way to visit Stephanie’s mother.”  It may sound awkward for a bit but it is much less awkward than having the employee explain on a witness stand why he was unable to stop calling Stephanie “he” or “him.”

Bottom Line

Until we know more about what is legally required, perhaps the best practice in this area is to treat all employees with respect and ask everyone else to do the same.  In addition, do not blame any particular employee or group for this issue.  It is just another reflection of our constantly changing workplace dynamics.

The post Are Gender-Associated Pronouns the Next Workplace Battlefield? appeared first on Felhaber Larson.

Officials of White Glove Staffing (“White Glove”) met with catering managers of Methodist Hospitals of Dallas (“Methodist”) to see if they could garner a contract to provide Methodist with temporary kitchen staff.  Methodist’s Catering Coordinator Jeff Jennings informed White Glove that they got the contract but allegedly explained that their chef, Juan Soto, “preferred Hispanics” and only wanted to work with Hispanic staff.

Employer Doesn’t Want “Other People”

In their first opportunity to provide staff to Methodist, White Glove referred Carolyn Clay, an African-American woman, to work as a prep cook.  After a few days, Jennings allegedly called White Glove manager Shawn White to tell him they were unhappy, that Chef Soto wanted Hispanics and that he did not know why White Glove was sending “other people.”  White responded that this request was “messed up” but if Methodist wanted someone other than Clay, he would see what he could do.  He cautioned Jennings, however, that since it was late in the day, he might not be able to find someone for the following day.

Sure enough, Clay was sent back to work at Methodist the next day but was told after a few hours to go home because they did not need her there any longer.  Jennings then called White Glove to inform them that “the whole deal was off.”  Despite requests to reconsider, Jennings said that they were going to “go with what [Soto] wanted.”

When employees are denied work due to race discrimination, they have recourse through Title VII and state employment discrimination laws.  However, when a business is harmed by racially motivated decisions, those laws typically do not apply.  Is there an avenue for them to pursue?

Civil War Era Law Rules the Day

Yes, and White Glove pursued it when they sued Methodist for race discrimination under Section 1981 of the Civil Rights Act of 1866, a statute enacted to protect the rights of newly freed slaves.  This statute prohibits discrimination on the basis of race and declares that everyone in the United States shall have the same rights to “make and enforce contracts” and receive the “full and equal benefit of all laws and proceedings…as is enjoyed by white citizens.”

Since Section 1981’s enactment, businesses and other legal entities have sued under it when they believe that their interests have been harmed as a result of race or national orig1n discrimination. Franchisees often invoke this law if they feel that the franchisor is impeding their business or imposing more burdensome obligations because of the franchisee’s race.  Minority-owned subcontractors similarly sue under Section 1981 if they believe that they are not getting the same opportunities for work as White-owned businesses.

Some federal courts have restricted the right to sue under Section 1981 only to those entities that can prove a racial identity, e.g. those with minority ownership or a business purpose of advancing the interests of minority people. The Minnesota Human Rights Act seems to adhere to this restriction by making it unlawful to refuse to do business with someone “because of a person’s race, national origin, color, sex, sexual orientation, or disability.”

In this case, however, the Fifth Circuit Court of Appeals ruled that corporations do not have to have a distinct racial identity in order be protected under Section 1981. The Court explained that the injury to White Glove fell within the “zone of interests” that Section 1981 protects because Methodist allegedly interfered with White Glove’s right to contract with Black people to serve their business needs. This is a form of race discrimination that Section 1981 was designed to prohibit regardless of the race or national origin of the person or entity being harmed.  The Court therefore affirmed White Glove’s right to seek damages from Methodist arising out of what they claim was a racially discriminatory rationale for terminating the contract between them.

The Fifth Circuit’s decision not to require that a business have a racial identity in order to invoke Section 1981 falls in line with decisions from four other federal circuit courts while three circuits still require a racial identity.  Four circuit courts (including the Eighth Circuit in which Minnesota sits) have not yet weighed in.  It will be interesting to see where the Eighth Circuit lands if and when they have an opportunity to consider the issue.

Bottom Line

It has long been illegal under the Minnesota Human Rights Act for a staffing company to comply with a request to provide workers of a particular race (or other protected classification).  This case demonstrates that Section 1981 offers staffing companies a viable means of redress if they are harmed by discriminatory decisions by their customers.

The post Court Says Staffing Company Can Sue Their Customer for Race Discrimination appeared first on Felhaber Larson.

GINA bans discrimination on the basis of genetic information in employment (as well as the provision of health insurance). Employers are barred from seeking, obtaining or using a worker’s genetic test results, the genetic test results of a worker’s family members, or a worker’s family medical history, in making employment decisions.

Few Cases, No Results

Despite the passage of the law in 2008, very few GINA-based charges are being filed with the Equal Employment Opportunity Commission (EEOC).  In 2019, there were just 209 such charges, representing 0.3% of all charges filed with the agency.  Moreover, since the statute’s enactment, the EEOC has only filed 12 lawsuits under GINA and none of them actually asserted that an employee was discriminated against on the basis of their medical history or that of a family member. Instead, they allege that the employer improperly sought the information, typically in the context of employee health assessments.

The landscape in private litigation is equally sparse.  Since GINA’s enactment, there has not been a single successful legal action filed under the law. A few higher profile cases have settled, and no doubt other claims or potential claims have as well, but not a single court case pursuing claims under this Act have been successfully decided in favor of the worker.

Diagnosing the Issue

There probably are a number of explanations for this paucity of legal claims in what is otherwise a vast ocean of employment-related litigation.  For one thing, GINA claims may often be confused with claims under the Americans With Disabilities Act (ADA), especially that part of the ADA that bans discrimination against persons regarded as disabled.  GINA claims relate to personal or family medical histories, and the fear that an employee might develop a medical condition in the future.  The more common scenario, however, is that the employee already has a medical condition and claims that they have been discriminated against because of that condition even though it does not affect a major life activity.  That is an ADA “regarded as” case, not a GINA claim.

In addition, employers typically do not have access to employee or family medical histories except through accepted practices relating to pre-employment (or pre-placement) physical exams, voluntary wellness programs or requests for Family and Medical Leave (FMLA) to care for a sick family member.  In those situations, protections for employee medical information are typically observed quite carefully.

Bottom Line

Was GINA a cure for a problem that did not actually exist or has it actually done the job of insuring nondiscrimination on the basis of medical history?  Test results are inconclusive thus far but it will be interesting to see if any significant GINA-related litigation is heading our way.

The post Genetic Information Discrimination Apparently is Not Spreading appeared first on Felhaber Larson.

High school teacher Guadalupe A. Welsh sued the Fort Bend Independent School District in federal court for age, national origin and sex discrimination because of the following incidents:

→ She was placed on a Performance Improvement Plan (PIP) that she successfully completed within one month;

→ She requested but never received a recommendation letter from the principal; and

→ She felt humiliated by a remark made in front of other faculty members by an assistant principal which Welsh felt criticized her work ethic.

After the lower court summarily dismissed her case before trial, Welsh appealed to the Fifth Circuit Court of Appeals.

Teacher Gets Schooled on Adverse Action

The Appeals Court affirmed the dismissal, explaining first that employees claiming unlawful discrimination bear an initial burden of proving, among other things, that they suffered an adverse employment action.  Adverse employment actions are limited to “ultimate employment decisions such as hiring, granting leave, discharging, promoting, or compensating.”

While reprimands could constitute “adverse action” under the right circumstances, the Court ruled that Welsh was not actually reprimanded; she merely was placed on a regimen designed to help her overcome her shortcomings as a teacher. She suffered no loss of pay, benefits or job responsibilities, and her claim that the PIP hindered promotional opportunities was unsupported by any evidence of actual impact on a particular promotion that she sought.

Other Claims Don’t Make the Grade

The Court ruled similarly with respect to Welsh’s other two allegations.  The failure to receive a letter of recommendation was not adverse action because (a) Welsh failed to prove that the action was intentional and not a mere oversight; and (b) she could not demonstrate any particular promotional opportunity that was denied to her because of the absence of a recommendation letter.

As for the critical remark by the assistant principal, the Court reminded us that Title VII is not a “general civility code for the workplace” and that not all hurtful remarks or difficult interactions are actionable.  In this instance, they concluded that the comment was simply “an unpleasant workplace experience, not an adverse employment action.”

Welsh also sued for retaliation based on the same incidents, and while such claims are subject to a slightly lower threshold of the initial showing of proof, the Court affirmed the dismissal of this claim as well because Welsh failed to show a causal connection between her complaints about alleged discrimination and any alleged retaliatory behavior.

Bottom Line

Employees can be quick to claim discrimination.  It is good to know that the courts continue to maintain a careful watch over which claims get into the courtroom and which just simply should be barred at the door.

The post Being Placed on a Performance Improvement Plan Does Not Entitle Employee to Sue appeared first on Felhaber Larson.

Aaron Benner is an African-American elementary school teacher who had been tenured in the St. Paul Public Schools (“SPPS”) since 1999. In 2013, Benner openly criticized the SPPS racial equity policy intended to narrow the performance gap between the highest- and lowest-performing students and decrease the amount of discipline referrals for African-American students. Benner contended that the policy created quotas on suspensions and punishments for such students and therefore impeded efforts to hold those students accountable for their behavior.

Near the end of the 2013-2014 school year, Benner and four other (non-African American) teachers brought forth a proposed countervailing “high expectations policy” to the SPPS school board. He then spoke publicly during the school board meeting on May 20, 2014, to complain about what he deemed “the separate but equal new illegal policies in St. Paul.”

Trouble Brewing

Benner then began encountering employment-related issues, including:

– Disciplinary action after he witnessed an altercation between two students. Benner allegedly called the mother of one of the participants and identified the other student in violation of the SPPS student privacy policy.

– Disciplinary action for a discussion with his class about bullying, which allegedly violated the district’s student confidentiality policy.

– A request (but not a requirement) that he transfer to a different school.

– Investigation (but no discipline) for taking a sick day without informing the school principal.

Thereafter, Benner e-mailed the district that he felt these actions were taken against him because of his opposition to the racial equity policy. A meeting to review these contentions was scheduled but Benner cancelled the meeting after learning that he was again under investigation, this time for an incident in which he supposedly left his classroom unsupervised for a few minutes during an indoor recess. Benner eventually was reprimanded for having endangered “student health and safety,” and for behavior that was “unacceptable and unbecoming of a teacher in [SPPS].

In March 2015, Benner’s teaching assistant was terminated and the position was not replaced.

Benner resigned in May 2015, and commenced a lawsuit in federal court claiming retaliation and discrimination under Title VII, and violation of the Minnesota Whistleblower Act. The SPPS filed a motion for summary judgement (early dismissal) contending that each of Benner’s claims lacked an essential element – that Benner did not suffer sufficient “adverse employment action” to justify allowing him to pursue his claims in court.

A Little Adverse is Adverse Enough

In regard to the discrimination and whistleblower claims, Federal District Judge Susan Richard Nelson sided with Benner and denied the school district’s motion to dismiss.  Judge Nelson determined that even if none of the individual events constituted a sufficiently adverse employment action to support a legal claim, a jury could consider the “cumulative effect” of all the actions taken by the SPPS and reasonably find that Benner suffered an adverse employment action.

In addition, even if the all of those actions did not constitute an adverse employment action on their own, Judge Nelson ruled that a jury could find that Benner was constructively discharged. Constructive discharge occurs when an employee is subjected to working conditions that a reasonable person would find intolerable because of illegal discrimination, and the employer created those working conditions with the intent of forcing the employee to resign. As a result, Benner may proceed with his Title VII discrimination claim and his claim under the Minnesota Whistleblower Act.

Judge Nelson did dismiss the Title VII retaliation allegation, which required a showing that Benner was treated adversely for having opposed a discriminatory employment policy or practice. Benner’s protests, however, related to the SPPS racial equity policy and how that policy affected the students in the school district.  As such, Benner’s opposition was not employment-related and therefore was not protected under Title VII’s retaliation prohibition.

Bottom Line

This case provides a cautionary tale for employers as it takes a broad view of acts that may be considered adverse employments actions that permit a legal claim to go forward. Even if an employee is not demoted, suspended, or terminated, he or she may still be determined to have suffered an adverse action and perhaps even a constructive discharge based on the “cumulative effect” of the employer’s actions.

The post St. Paul Teacher Gets Day in Court – School District Asks “Where’s the Evidence?” appeared first on Felhaber Larson.

Tracy Harrell, a lead customer service representative at Handi Medical, was approved for intermittent FMLA leave to care for her husband who has severe bipolar disorder.

Employee Storms Out, gets disciplined

After hearing that temporary changes in her department would result in her demotion, Harrell called her husband, who became angry and threatened to come to her offices to talk with the CEO. Harrell left the office because she was worried about her husband but was heard to say on her way out that she “has had it with this place” and swore loudly within earshot of customers. When asked a question by a co-worker, Harrell purportedly responded, “You are going to need to talk to [another manager]. I am done. I got to go. I am done right now.”

A few days later, CEO Mike Bailey met with Harrell and gave her a written warning stating that failure to observe workplace rules would result in further discipline, including termination. Harrell denied that she swore and said that she was frantic about her husband. When Bailey said it seemed like she always had an excuse, Harrell responded that Bailey was using her husband’s disability against her.  At that point, the HR Director and another manager joined the meeting.

As the discussion got more heated regarding Harrell’s claim that she was discriminated against because of her husband’s condition, Bailey said that if Harrell “truly felt the way that she was describing that she would be better off working elsewhere.” According to Harrell, the other company officials at the meeting observed that she and her family were unhappy, and said that “maybe we should—can find an exit strategy when [the CFO] returns.”

Employee Storms Out Again, Gets Fired

Harrell left the meeting, muttering the company motto—“enriching lives”—in a disparaging way, at which point Bailey called Harrell back into his office and fired her.

Harrell sued the company in federal court claiming that she was discriminated against based on her marital status and retaliated against her for opposing that discrimination, in violation of the Minnesota Human Rights Act (“MHRA”), which among other things protects employees from discrimination “on the basis of the identity, situation, actions, or beliefs of a spouse.”

The district court dismissed her claims, prompting Harrell to appeal to the U.S. Court of Appeals for the Eighth Circuit.

Employee: “It’s All About My Husband”

Under the MHRA, Harrell’s claims of discrimination and retaliation required her to establish that suffered some sort of adverse employment action and a causal connection between that adverse action and her protected status (marital status) and/or protected activity (complaining about discrimination).  The lower court concluded that the talk of an exit strategy did not rise to the level of an adverse employment action because “there was no agreement that an ‘exit strategy’ would actually happen or that Harrell would ultimately be terminated,”

The Eighth Circuit seemed less certain but ultimately declined to address that issue because the case could be decided on other grounds, namely that Harrell had failed to demonstrate that she engaged in protected activity.  They explained that while an employee who opposes a practice forbidden under the MHRA does in fact engage in protected activity, not every complaint about discrimination is protected. Instead, an employee must have a good-faith reasonable belief that the conduct being opposed is actually a violation of the MHRA.

Employer (And Court) Agree: “No, It’s about you”

Here, the alleged protected conduct was Harrell’s complaint that Bailey, by issuing the written warning, was discriminating against her because of her husband’s illness and thus her marital status. The court concluded that while Harrell’s outburst may have been triggered in part by her husband’s situation, it simply did not support a reasonable belief that Bailey actually issued the written warning because of her marital status.

Moreover, the Eighth Circuit explained that Harrell’s marital status did not “give her license to engage in unprofessional conduct that would be unacceptable from any other employee.” The court concluded that a “baseless accusation that an employer violated the MHRA is not protected opposition under the reprisal statute.”

The appeals court similarly disposed of Harrell’s marital-status discrimination claim. Although the company mentioned the “exit strategy” after Harrell complained that her husband’s situation was being used against her, no facts supported an inference that her termination was based on her marital status. To the contrary, the court noted that the company had long granted FMLA leave to her to care for her husband.  While the company did mention that Harrell and “her family” were unhappy, this was insufficient to show that the company’s actions were based on her husband’s situation rather than Harrell’s conduct and attitude.

Bottom Line

This is a useful case for Minnesota employers because it clarifies that simply claiming discrimination, without any real justification for doing so, does not automatically rise to the level of protected activity.

We hope that future decisions will help clarify the factors to consider in deciding whether an employee’s complaint is actually based on a reasonable good faith belief.

The post Complaints About Discrimination Can Be Protected Activity But Not All Complaints Are Protected appeared first on Felhaber Larson.

Adrian Bryant worked for four years as a deckhand on a barge operated by Jerry Sand Co. Throughout his employment, Bryant’s supervisor Jerry Skaggs taunted and harassed Bryant with frequent racial slurs and derogatory names. Skaggs also assigned Bryant to more difficult tasks, including one occasion when Skaggs made Bryant paint rails in the hot sun and would not allow him to drink water or come into the air conditioned room. When Bryant complained that he felt sick, Skaggs made him continue working and racially insulted him. Bryant ended up suffering a heart attack and missing two weeks of work.

Many Days Late, Many Dollars Short

The company had no human resources personnel, nor any harassment or anti-discrimination policies. Bryant complained twice to his manager and four times to the company president but nothing was done. When another employee submitted an anonymous complaint on Bryant’s behalf, the employer did investigate and confirmed the racist comments by Skaggs but still did nothing about them. A short time later, Bryant was fired for absenteeism.

Bryant sued in federal court claiming a racially hostile work environment and retaliatory termination. The district court dismissed the retaliation claim but allowed the harassment claim to go to a jury, who found in Bryant’s favor. Since they determined that Bryant suffered no actual monetary damages, the jury gave him a nominal award of compensatory damages of just $1.00.   However, they awarded him $250,000 in punitive damages.

The employer appealed the punitive damages award to the Eighth Circuit Court of Appeals (which covers Minnesota), offering two arguments: (1) there was insufficient evidence to justify an award of punitive damages; and (2) the amount of $250,000 violates due process because it is excessive and disproportionate to the compensatory damages award.

Jury’s Award Was Right on the Money

As for the contention that there was no basis for awarding punitive damages, the court essentially responded “You must be joking.” They noted that an award of punitive damages requires a showing that the employer’s discriminatory practice was perpetrated with malice or a reckless indifference to the employee’s legal rights.  They then found that Bryant met his burden by demonstrating that the employer took no action to protect Bryant from Skaggs’ behavior despite frequent complaints, as well as corroboration from other employees.

In addition, the company had no policies designed to inform employees of their rights and responsibilities in regard to harassment and discrimination in the workplace.  The Court therefore had no problem affirming the jury’s determination that the employer acted with reckless indifference to Bryant’s right to work in an atmosphere free from illegal racial harassment.

The court also ruled that Bryant’s punitive damage award was not excessive or disproportionate to the actions in the case.  They explained that while the amount may seem a bit top-heavy, “the degree of a party’s reprehensibility is the most important’ factor in the due process analysis.” Because Skaggs’ conduct was severe and went unchecked despite several complaints by Bryant and a second employee, the court felt they should “decline to place undue weight on the mathematical ratio between compensatory and punitive damages.”  They therefore concluded that the damage award did not violate the employer’s right to due process.

Bottom Line

The import of this case is pretty simple.  Have an anti-harassment policy, follow it, don’t ignore complaints or evidence of wrongdoing and take timely and appropriate action to prevent and stop harassment. The employer in this case probably would have fared much better had they even followed just some of these suggestions.

The post One Dollar for Damages but $250K for Punishment is Just Fine With the Court appeared first on Felhaber Larson.

Doug Jennings (Caucasian) hired Mathlon Pulliam (African American) to work under him in a newly created Analyst position at Loews Company. Unfortunately, things did not go well right from the beginning and Pulliam fell behind schedule in his most critical project.  Jennings admonished Pulliam that he was too “hands off” with the project and needed to get more personally involved.

Same Actor Rule

Seven months into the project, and after consulting with a Human Resources Representative, Jennings fired Pulliam. Pulliam sued in federal court for race discrimination, but North Carolina Federal District Court Judge Frank Whitney dismissed the claim based primarily upon the “same actor” rule.  The “same actor” rule provides that when the same company official does both the hiring and the firing, and they both occur within a relatively short period of time, there is a strong inference that the termination was not based on illegal motivation.

Here, Judge Whitney’s found the seven-month interval between hiring and firing to be short enough to allow the same actor rule to apply.  The fact that Jennings consulted the human resource department prior to termination was not sufficient to undermine the same actor rule since that was done merely to obtain a “sounding board” and Jennings still was the person with final authority to make the termination decision. (The judge also observed that the HR Rep was also African American, which would also weaken Pulliam’s claim even in the absence of the same actor inference).

Is There An Exception to the Rule?

The judge cautioned, however, that the same actor rule is only an inference, and it can still be overcome with the presentation of evidence showing that the reason offered for termination is a pretext for illegal discrimination.  In this regard, Pulliam offered up the following:

– On one occasion, Jennings made an offhand remark to Pulliam about Ebony Magazine, which is marketed to African Americans;

– Jennings frequently invited white colleagues to coffee or lunch and not him;

– When Pulliam was going to hire a friend for the project, Jennings hired him for another team; and

– A note from the HR Rep that the termination was “more about fit than performance.”

Judge Whitney concluded that this evidence was “far from egregious”, which is what is required to overcome the strong inference created by the same actor rule.  The judge concluded that the Ebony Magazine remark and the note from the HR Rep were merely isolated statements of minimal value, while Jennings’ failure to invite Pulliam to lunch merely showed that he did not (and was not legally required to) consider Pulliam to be his friend.  Finally, even if the assertion about hiring away Pulliam’s friend was true, it had no reasonable bearing on a claim of race discrimination.

Therefore, in the absence of any evidence approaching the high standard of proof needed to overcome the same actor rule, Pulliam’s claim was dismissed.

Bottom Line

The same actor rule is a very effective defense but all the right elements have to be there.  The same employer official has to have had final authority for both hiring and firing, the time frame at issue has to have been relatively short and there cannot have been any intervening act that might give rise to a strong inference of improper motive.

The employer in this case hit this trifecta and received a quick dismissal as a result.

The post “Same Actor” Rule Results in Dismissal of Race Discrimination Claim appeared first on Felhaber Larson.

The MEPA requires Massachusetts employers to pay equal pay for work that is comparable in regard to (1) skill; (2) effort; (3) responsibility; and (4) working conditions.  It is the first such statute of its kind in the United States but is already being looked at by other states as a model for how to address pay disparities between the genders in today’s workplace.  Minnesota, which already follows the comparable work concept for state and local government employees, may not be too far behind in enacting similar legislation on a state-wide basis.

Law May Be Instrument of Change

As soon as the Massachusetts law took effect, Elizabeth Rowe, principle flutist of the Boston Symphony Orchestra (BSO), filed a lawsuit claiming that she performs work comparable to that of the principle oboist (a man) yet is paid about $70,000 less.  Rowe’s lawsuit alleged that their responsibilities as section are the same and that both also perform as members of the Boston Symphony Chamber Players (a smaller ensemble of principal musicians who perform and record separately from the larger orchestra).  In addition, Rowe has been profiled as a soloist more than any other of the principal musicians in the BSO and she has been highlighted many times in the BSO’s marketing campaigns.  The lawsuit concluded that the similarity of their positions did not warrant Rowe’s receipt of only 75% of what the principal oboist makes.

The BSO defended on the grounds that the flutist and oboist actually do not perform the same work. They contended that the oboe is a more difficult instrument to play and that the greater shortage of skilled oboists allows such practitioners to negotiate and command a higher compensation rate.  The BSO further argued that differences in promotional duties, instrument cost and many other variables also affect compensation decisions.

Rowe’s lawsuit added a retaliation component in regard to the BSO’s request that Rowe participate in a National Geographic documentary episode on the topic of blind auditions (the practice of requiring musicians to audition behind a curtain so as to conceal gender, race and other identifying characteristics).  Rowe alleged that when she persisted in raising issues of gender disparity in pay, however, the offer to participate in the documentary was rescinded.

The case was expected to establish some guidelines for determining how to compare the four factors set forth above but after the parties submitted to mediation, the matter was settled with a very restrictive confidentiality clause.  Thus, we do not yet know how a court will interpret the critical factors and we will have to await future cases.

Bottom Line

Again, this is currently just an issue in Massachusetts but it is important to remember that both the Equal Pay Act and Title VII were enacted in the early 1960’s, more than 50 years ago.  It would not be at all surprising to see other states, including Minnesota, follow Massachusetts’ lead in reevaluating pay equity concepts in light of 50 years of change in the American workplace.

Minnesota employers may want to start thinking about how they might tune up their compensation systems if we adopt the equal pay for comparable work standard.

The post Symphony Flutist Premiers Possible New Wave of Pay Equity Claims appeared first on Felhaber Larson.

Darrell Patterson worked at the 24-hour Walgreens Customer Care Center in Orlando, FL.  Patterson informed Walgreens up front as a Seventh-day Adventist, his faith demanded that he not work from sundown Friday through sundown on Saturday.  The company was able to accommodate Patterson’s religious needs by allowing him to swap shifts with other employees whenever a need arose that would require him to work during his Sabbath.

Patterson was promoted several times, eventually obtaining one of two trainer positions at the Orlando facility. Patterson’s religious beliefs were accommodated in this role through his supervisor’s agreement that training classes would only be scheduled from Sunday through Thursday.

There’s No Rest on This Weekend

This arrangement worked well until the Walgreens Call Center in Muscle Shoals, AL had to close suddenly (the court decision never explained why).  The Orlando Call Center employees then had to be trained immediately on how to handle the approximately 50,000 additional calls per month that they would now be expected to handle.  Patterson was directed to conduct that training the following day, which happened to be a Saturday, and Patterson refused.

Patterson’s supervisor told him that if he could not do the training, he needed to find someone else who could. Naturally, Patterson contacted the other trainer but she was unable to fill in, and Patterson took no other steps to find a replacement.  Instead, he just left a message for his supervisor informing her that he would not be coming in on Saturday.  This caused the training to be delayed until the following Tuesday.

When Patterson returned to work from the weekend, he met with his supervisor and a human resources representative to review the matter.  Patterson reaffirmed that he would never agree to work weekends under any circumstances.  The HR representative suggested that perhaps he could find another job within Walgreens that had a larger pool of potential substitutes for those occasions when he might be asked to work during the weekend.  Patterson responded by asking for a firm guarantee that he would never have to work during his Sabbath.

The Employer’s Burden is Light

Walgreens rejected Patterson’s request, noting that he was one of only two people in his position and that his counterpart had already provided notice of intent to resign. In light of the recent emergency involving the closed facility, and the possibility that other similarly urgent circumstances might arise, they simply could not guarantee that Patterson would not be required to work during the period of his religious observance.  They therefore terminated his employment.

Patterson sued for religious discrimination under Title VII.  After the lower court dismissed the claim on summary judgement, Patterson appealed to the 11th Circuit Court of Appeals, who acknowledged that Title VII does indeed require employers to accommodate an employee’s bona fide religious beliefs as long as the accommodation does not pose an undue hardship for the employer.  The Appeals Court cautioned, however, that the U.S. Supreme Court has already declared that the employer’s obligation in this regard does not require anything more than a de minimis (minimal) cost or inconvenience.

Turning to Patterson’s claims, the appeals court concluded that Walgreens met their duty to accommodate Patterson’s religious observances by allowing him to switch shifts with a co-worker or try to secure another position that would make it easier for him to do so in the future.  The possibility that Patterson might be called upon to work during the weekend, however, meant that Patterson’s requested accommodation – a guarantee against weekend work – was an undue hardship for the company.  The appeals court therefore affirmed the dismissal of Patterson’s case.

Bottom Line

While an employer must accommodate an employee’s religious observances, the bar for what constitutes an undue hardship is set substantially lower in such cases than for disability accommodation matters under the Americans with Disabilities Act.  In the case of weekend work, employers need to be open to the employee’s suggestions but probably need not do anything more than simply let the employee switch shifts with a co-worker.

Employers should also consider posting a request for volunteers if feasible, or even asking (but not requiring) some co-workers to switch, but that is the extent of the employer’s burden in such matters.

Interestingly, Patterson has appealed to the Supreme Court and is being supported by a number of religious organizations seeking enhanced protections for employees requiring accommodations for religious observances. We will watch to see if any changes result from this.

The post Court Says Employers Must Accommodate Religious Beliefs But Not All That Much appeared first on Felhaber Larson.

Karl Sicuso, age 60, was hired as a cook and kitchen worker at the Carrington Golf Club.  When he was fired just two months later, Sicuso met with the owner, Gary Jonas, to find out more about why he was let go.

Nice Isn’t Always Nice

Sicuso secretly taped the entire conversation and it did not go well for Jonas.  He spent the majority of the meeting explaining to Sicuso that he just did not fit in with the other staff members.  Some of the more noteworthy exchanges were as follows:

Jonas: When you first came here, before we even hired you, I said that the problem is it’s a young bunch of people and you’re an older guy. Sometimes that don’t work.

Sicuso: So basically, the age…

Jonas:  It’s a generational difference

*   *   *   *

Sicuso: So you think its probably the age difference

Jonas: I think that’s probably a big part of it, from day one.

*   *   *   *

Sicuso: Because of the young kids, it’s hard for older people to click together. They don’t like to see older people maybe in there or something.

Jonas: Yeah. Plus, I think, innately, younger people want to respect older people. They want to. They’re not any good at it, but they want to respect them. Then they have a person come in there and they feel like, well, I gotta respect this person. I can’t be myself with this person. And I think that where the — it’s not a big deal, but if that chemistry ain’t right as a group, I got a problem.

Jonas later explained that he was just trying to let Sicuso down easy and make him feel better about getting fired.  Not surprisingly, the attempt at a soft landing just landed Jonas in court as Sicuso filed a lawsuit alleging age discrimination.   The judge rejected  the employer’s motion to dismiss the case and the matter is headed for a jury trial.

Bottom Line

While Jonas’s heart was in the right place, his brain should have gotten there first.  It is never easy to get fired and there is little that an employer can do to change that reality.  Instead of looking for false reasons to cushion the blow, an employer can show true kindness by being respectful toward to the employee while offering direct and truthful communication about the termination decision.

After all, will an employee really feel better about getting fired by hearing that the decision is based on a legally protected characteristic?

The post Nice Guys End Up in Court appeared first on Felhaber Larson.

Jena McClellan alleged that after she told her employer, Midwest Machining, Inc., that she was pregnant, she was harassed, criticized for missing work due to pre-natal medical appointments and terminated despite an excellent work record.  On her last day, the company president called her in and allegedly bullied her into accepting a modest severance payment in return for a separation agreement and release of claims.

Where’s the Payback?

She later sued the company, contending that the separation agreement was invalid because she was coerced into signing it and that she should be allowed to proceed with her claim of pregnancy discrimination.  The trial court dismissed the claim on the grounds that McClellan failed to tender back (repay) the severance pay and therefore had ratified her acceptance of the separation agreement.

On appeal, however, the Sixth Circuit Court of Appeals reversed, declaring that despite not repaying the severance, McClellan could proceed with her claim that the agreement was invalid and that she was discriminated against unlawfully.   They explained that while tender back would be required in most civil cases, federal discrimination claims are different because the litigant, in addition to seeking personal relief, is also pursuing the public interest in eliminating discrimination in the workplace.

Moreover, the “economic realities” are that in many cases, the employee will have already spent the money and will not have the ability to pay it back.  Employers would then be less motivated to honor their obligations under the separation agreement knowing that the employee might not be able to meet the tender-back requirement in order to sue.

As a result, the Sixth Circuit concluded that while the severance amount should be deducted from McClellan’s monetary damages if she ultimately prevails in her claims, she would not be required to tender back the severance in order to pursue her legal claims.

Special Note for Minnesota Employers: In case you are feeling fortunate that this was a Sixth Circuit decision and would not apply in Minnesota, bear in mind that the court in this case made special reference to the fact that the Eight Circuit Court of Appeals – which covers Minnesota – has already ruled that litigants in discrimination cases need not tender back their severance payments.

Bottom Line

This case undermines the finality of separation agreements, one of the primary reasons for offering them in the first place.  Therefore, if employees are now freer to sue without having to worry about paying back the severance, employers must do everything they can to insure their agreements are valid.

This means that in addition to including the necessary consideration and rescission periods required under certain state and federal discrimination laws, be sure that the agreement is clear and easy enough to understand, that the employee’s questions are answered and that there is no hint of coercion of any sort directed toward the employee.

If it can be shown that the employee had a fair opportunity to evaluate the benefits and burdens of signing the agreement, a judge is not likely to allow that employee to further litigate claims that were willfully and voluntarily released.

The post Court Says Employee Who Signed Severance Agreement Can Still Sue…and Keep the Money appeared first on Felhaber Larson.

Commission’s Decision was Half-Baked

In a 7-2 decision, the court vacated the determination against Phillips but essentially side-stepped the big issues of discrimination and religious freedom.  Instead, they ruled that the Colorado State Commission proceedings were riddled with hostility and religious bias such that Phillips did not receive a fair hearing on his defense.

A substantial factor to this ruling was the behavior of then-Commissioner Diann Rice who stated during the proceedings that “freedom of religion and religion has been used to justify all kinds of discrimination throughout history …. to me it is one of the most despicable pieces of rhetoric that people can use.” This prompted Justice Kennedy to observe in the majority decision that the Commission seemed “neither tolerant nor respectful of Mr. Phillips’ religious beliefs.”  He found the “commission’s hostility to be inconsistent with the First Amendment’s guarantee that our laws be applied in a manner that is neutral toward religion.”

Bottom Line

It would appear that the Colorado Commission’s handling of the case was a recipe for disappointment for those who await determination of the critical question of whether a business can refuse to conduct business if doing so impinges upon the business owner’s religious beliefs.  The question will have to wait for another day and another case, and the Supreme Court’s decision left significant room for doubt as to how they might rule if and when the religious issue is properly presented to them.

Until then, Minnesota employers should continue to operate just as they have and wait for these issues to rise.

We gratefully acknowledge Summer Associate Kau J. Guannu’s substantial contribution to this post.

The post Slicing Through the Layers of the SCOTUS Cake Baking and Religious Freedom Decision appeared first on Felhaber Larson.

We wrote about this issue in a previous post back in 2015 when a customer in Applebees assaulted another diner for not speaking English in the restaurant.  At that time, we suggested that employers seeking to head off such conflicts by requiring employees to speak English at work should probably scrap that idea and come up with a Plan B.

A Few Words About Language

Courts and the Equal Employment Opportunity Commission (“EEOC”) will often view “English Only” policies as evidence of national origin discrimination under Title VII if they are inflexibly enforced without regard to the particular circumstances.  As a result, an employer cannot discipline two employees who, for example, choose to speak Spanish to each other at work, even if it makes a co-worker feel uncomfortable or excluded.

On the other hand, employers may require employees to speak only English in the work place at certain times if the directive is justified by business necessity. The EEOC has explained in its Compliance Manual that an English Only policy is justified by business necessity “if it is needed for an employer to operate safely or efficiently.” The following examples may justify an English Only policy:

1. For necessary job-related communications with customers, coworkers, or supervisors who only speak English;
2. In emergencies or other situations in which workers must speak a common language to promote safety;
3. For cooperative work assignments in which the English-only rule is needed to promote efficiency; and
4. To enable a supervisor who only speaks English to monitor the performance of an employee whose job duties require communication with coworkers or customers.

Even if there is a need for English to be spoken in these circumstances, an employer may not impose a blanket policy requiring English to be spoken at all times – the policy must be tailored to the specific circumstance for which English is required.

Bottom Line

In an increasingly diverse workforce, employees will frequently wish to converse with each other in their native language. As long as doing so does not impede production or interfere with necessary communication on the job, they should be allowed to do so.  Otherwise, you or your organization might end up the subject of the next viral video on this issue.

The post Viral Anti-Spanish Rant Inspires This Reminder About “English Only” Workplace Rules appeared first on Felhaber Larson.

The National Women’s Law Center reports that women in the U.S. who work full time are paid 80 cents on every dollar paid to men.  For women of color, the wage gap is even larger.  Women of every race, at all education levels, are paid less than men.  And, as women’s careers progress, the wage gap gets larger.

The Equal Pay Act Has Not Brought Equal Pay

The Equal Pay Act has been the law of the land for more than 50 years, yet the wage gap is nowhere near closed.  In fact, the American Association of University Women (AAUW) reports that at the rate of change in pay between 1960 and 2016, women are not expected to reach pay equity with men until 2059.  But even that slow process has stalled more recently, leaving us with the prospect that women will not reach pay equity with men until 2119.

Clearly, we cannot wait until 2119 or even 2059 to address this issue.  A number of states have passed or are considering strong new legislation that will aggressively seek to close the wage gap.  Meanwhile, employees have banded together in class actions lawsuits that have generated verdicts or settlements exceeding one hundred million dollars in some cases.  The cases are being filed from Silicon Valley to Wall Street and everywhere in between…including Minnesota.

What should you as an organization be doing now?  Pay equity evaluations and surveys.  Every organization should be comparing the pay of men and women in equivalent roles to see if you have any pay inequity issues that need to be addressed.  Figure out the factors that explain any pay differences and if those factors seem questionable, change your policies and practices.  There are lots of great consultants and experts who can help you do this analysis but you can also accomplish it internally.

Bottom Line

What should you do if you find an inequity?  Make a change now.  The Equal Pay Act has a two year statute of limitations for non-willful claims, and a three year statute of limitations for willful claims.  It is therefore to your advantage to make changes as soon as possible because every day in which no gap exists means a day less of potential liability if litigation ever takes place.  Just as importantly, it is the right thing to do for your workforce as a whole.

The post Pay Equity – It’s Not Just For Hollywood appeared first on Felhaber Larson.

The case was brought by skydiving instructor Donald Zarda, who claimed he was fired after revealing to a client that he was gay.  A federal judge in New York originally dismissed the case and a three-judge panel of the 2^nd Circuit Court of Appeals affirmed.  The matter was then presented to the full 2^nd Circuit (covering New York, Vermont and Connecticut) for review.

Differential Treatment

By a 10-3 majority, the 2^nd Circuit ruled in Zarda’s favor, concluding that “[s]exual orientation discrimination is a subset of sex discrimination because sexual orientation is defined by one’s sex in relation to the sex of those to whom one is attracted.”  Therefore, it is “impossible for the employer to discriminate on the basis of sexual orientation without taking sex into account.”

The opinion bolstered this conclusion in several ways.  First, it posed the question of whether Zarda would have been treated differently had he been a woman, and determined that the answer presumably would have been yes – since Zarda was fired for expressing romantic attraction to men, expressing that same attraction as a woman probably would not have led to termination.

Gender Stereotypes

In addition, the opinion noted that Title VII bars employers from punishing workers for their failure to conform to gender norms. In this case, homosexuality “represents the ultimate case of failure to conform to gender stereotypes,” namely the stereotype that men should only date women.   As such, firing Zarda for not conforming to the sex stereotype violated Title VII.

Finally, the opinion likened this issue to cases where employees are considered to have been victimized by race discrimination if they were fired for being married to a person of a different race.  If Title VII bans “associational discrimination” based on race, why would it not also ban such discrimination based on sex?

Accordingly, the 2^nd Circuit joined with the 7^th Circuit (and disagreed with the 11^th Circuit who has ruled exactly the opposite) in declaring that discrimination based on sexual orientation violates Title VII’s ban on sex discrimination.  Unfortunately, this decision came too late to benefit Zarda himself, who died in a base-jumping accident in Switzerland in 2014.  His estate and relatives have elected to carry on with the case.

Bottom Line

What is the impact in Minnesota?  Not much, since the Minnesota Human Rights Act has prohibited discrimination based on sexual orientation for many years.  In neighboring states like North Dakota where there is no similar prohibition in the state law, this ruling could be major.  While the 2^nd Circuit precedent does not automatically apply to employers here in the 8^th Circuit, the fact that another federal circuit has ruled in this fashion may eventually influence the 8th Circuit to rule similarly.  That in turn would allow Minnesota employees to pursue claims in the federal administrative and judicial arenas in addition to the state agencies and courts.

As this issue continues to unfold nationally, we can expect that the United States Supreme Court will eventually weigh in to decide the matter.  Congress could also choose to amend Title VII to declare an explicit ban on sexual orientation discrimination.  Until either of those events transpires, however, we anticipate that this show-down in the federal circuits will continue.

The post Federal Appeals Court Says Sexual Orientation Bias Violates Title VII; Supreme Court to Weigh In? appeared first on Felhaber Larson.

Johnny, the African-American employee, got into a shouting match with Nick, the Caucasian co-worker, after Nick allegedly insulted then-President Obama and called Johnny “boy” one or more times. The exchange never got physical but the company, Transplace Freight Services, fired them both for breaching their core value of “Respecting the Individual.”  At the time, Johnny was the only African-American employee working at that particular location.

How Can Equal Treatment Be Discriminatory?

Johnny sued for race discrimination under Title VII of the Civil Rights Act of 1964 and the Arkansas Civil Rights Act claiming that he was the victim in the fracas, that the company had been looking for a chance to terminate him and that the decision to do so because of the fight was just a pretext for illegal race discrimination.  The company brought a motion for summary judgment (early dismissal).

The district court judge found that Johnny easily met the first three of the four elements of the prima facie case needed to move forward, namely that he (1) is a member of a protected class, (2) he was meeting his employer’s legitimate expectations, and (3) he suffered an adverse employment action. The fourth element – that other similarly situated employees not within the protected class were treated differently – was also satisfied after Johnny presented evidence that several Caucasian employees involved in previous verbal altercations had not been fired.

With Johnny having carried his initial burden of proof, it fell to the company to offer a legitimate, non-discriminatory reason for the termination. They accomplished this by explaining that the altercation violated their core value and that both participants had been treated equally.  Since two employees of different races were terminated for the same reason, how could one of them claim to be treated in a discriminatory manner?

Employer’s Defense Doesn’t Add Up

Johnny replied that he was not the aggressor but rather, the victim of a racially motivated attack by a White co-worker so the two employees were not actually guilty of the same offense.  In addition, the company had never fired anyone for a verbal altercation so why did they all of a sudden start doing so when it involved the only African American employee on the premises?

Johnny essentially argued that the company just seized on this incident as a way to finally get rid of him because of his race.  They should not be allowed to get off the hook for treating him more harshly than all the previous employees involved in verbal disputes just because they decided to sacrifice a White employee this time to make it look equal.

The court decided that Johnny had done enough to allow his claim to move forward to a full trial and they therefore denied the motion for dismissal.  The judge explained that Johnny was not required to prove that racial discrimination was the one and only reason why he was fired. Instead, he just needed to show that his race was a motivating factor for the decision, even if there were other legitimate factors present as well.  By presenting evidence that could discredit the company’s stated reasons for their decision, he created “a reasonable inference of discriminatory animus” on the company’s part and should be allowed to pursue the claim further.

This does not necessarily mean that the judge thought the case was a winner but rather, Johnny’s case wasn’t a sure-fire loser simply because two employees of different races were both fired for the same offense.

Bottom Line

This is a very interesting analysis of what many of us would have thought was a simple non-issue of two employees being treated exactly the same.  It is a good reminder that situations that seem simple may still pose very complex issues beneath the surface.  As such, it is always a good idea to avoid quick decisions and to examine issues carefully from all perspectives before reaching a conclusion.

Since this case came from the federal district court in Arkansas, any appeal will be heard by the 8th Circuit, which covers Minnesota.  Therefore, the analysis of this case could have a significant impact for Minnesota employers.

The post Two Got Fired For Fighting But One Still Gets to Sue For Discrimination appeared first on Felhaber Larson.

Kneeling Gets a Rise Out of the President

For those who haven’t followed this issue, it began last year when Colin Kaepernick, a (now former) member of the San Francisco 49’ers, began kneeling on one knee during the pre-game playing of the National Anthem. Kaepernick said he wanted to draw attention to issues of racial injustice and police brutality.  Thereafter, a few other players here and there chose to emulate this practice.

Opinions on all of this are divided. Many say that that protests show disrespect for the flag, our country and everyone who served in the military to protect us.  Others contend that the protests honor the fundamental freedom of expression that the flag and our anthem symbolize.  In between are a great number of fans who believe that regardless of how valid one or the other of these beliefs might be, the pre-game ritual of playing the national anthem is not the proper time or place for a demonstration.

The issue came to a head this weekend.  First, President Trump gave a speech that included a stinging criticism of players who protested in this fashion.  He then suggested that the team owners should fire anyone who did not stand at respectful attention during the anthem and suggested that fans boycott the NFL until that happened.

On Sunday, players reacted in a variety of ways.  Some knelt during the anthem for the first time in their careers while many others locked arms with teammates in a show of unity.  Three full teams elected to remain in the locker room until the anthem concluded.  In general, the team owners appeared to support their players, including a few who appeared on the sidelines and stood arm-in-arm with their team.

No Leg to Stand On

Beyond the politics of all this, President Trump’s call for the protesting players to be cut from their teams and for a consumer boycott raises some interesting employment law questions. Can a team lawfully terminate a player for protesting during the National Anthem?  Probably, unless there is something specifically written into the player’s individual contract that would prohibit it.

First, it is generally understood that like all other employees in the private sector, the players have no First Amendment rights.  As we wrote in Red Hot and Blue: Controlling Political Talk at Work, private employers are free to regulate political activities and speech at their work sites.

Would standing arm-in-arm in unified defiance of the president’s speech be considered “protected concerted activity” under the National Labor Relations Act?  Unlikely since the players would simply be responding to a politician’s words, not to any actions or decisions by their employers that impact their working conditions.  Of course, the players are also covered by a collective bargaining agreement so their labor union can be expected to jump in if there is any hint of a player being cut from the team in violation of the contract.

Racial Claims On Shaky Footing

Obviously, there is a racial element to the protests.  Kaepernick himself has stated that his protest is rooted in issues of racial injustice, and many of those who emulated him have said the same.  Even so, federal and state discrimination laws would probably not protect the players even though they might contend that they are being retaliated against for opposing racial discrimination and harassment.  Title VII and its state law counterparts focus only on whether the employee is suffering retaliation for opposing discriminatory workplace practices, not for speaking out in general over issues of race.

Despite the lack of actual legal protections for the players, the owners seem to be standing (or kneeling) behind their players at this point.  However, what if the president’s call for a boycott actually led to a fan revolt over this issue?

Going Out on a Limb

Assume that a team elected not to cut a player after last Sunday’s protests but then changed their mind after they began to see empty seats and declining revenues as a result of a fan boycott.  The team might have to “cede the moral high ground” but could still contend that the termination was lawful since the employee’s political expressions were not protected.

There has been some talk cutting players on this basis might present a case of racially motivated “customer preference” under discrimination law.  Title VII has been interpreted to prohibit employment actions based on the preferences expressed by customers or clients (or preferences that the employer might believe exist), for employees of a particular race.  As an example, a retail store could not terminate a minority employee because they hear that White customers will not shop there, nor could a pizza delivery operation decline to hire an African American delivery driver to work in a predominantly White neighborhood.

Given the racial genesis of the protests, what if the player cut from the team after the boycott began could show – through opinion surveys or media polls, for example – that the boycott was predominantly the public’s pushback against the underlying racial opinions expressed by the protesting players rather than just the protests themselves?  Since the team chose not to fire him initially, the player might argue that he was let go only after the fans demonstrated their racial preferences against him and his beliefs.

That sounds like a stretch but this is an intriguing set of circumstances involving a very racially charged issue together with unusual juxtapositions of politicians, business owners and workers.  It seems ripe for a unique legal precedent.

Bottom Line

We expect this issue to simmer down shortly but it is unlikely to go away.  After all, Kaepernick remains unsigned by any NFL team and there is still significant debate as to whether this is the result of a league boycott or merely his 2016 job performance.  If more protesting players get cut and are unable to latch on with other teams, suspicions about the teams’ motivations might increase and bubble over.

Whether you care about football or not, this is going to be an interesting story as it continues to unfold.

The post What Employers Knee-d to Know About NFL Anthem Protests appeared first on Felhaber Larson.

Well, her appeal may have been too much for the boss’s wife but it apparently was well received by the New York Supreme Court who reinstated her discrimination claims and ordered her case to proceed to trial.

Jealousy Is Green…So Is Money

Dilek Edwards worked as a yoga instructor and massage therapist at Wall Street Chiropractic and Wellness (“WSCW”), which was owned by the husband and wife team of Charles Nicolai and Stephanie Adams.  Nicolai and Edwards worked quite professionally together, though Nicolai once remarked that Adams might become jealous because Edwards was “too cute.”

Nicolai’s prediction was spot on since Adams eventually texted Edwards to say that she was no longer welcome at WSCW and to “stay the f*** away” from Nicolai.  The next day, Nicolai confirmed the termination via email, leading Edwards to sue for sex discrimination under state law and the city administrative code.

Edwards claimed that she was fired because of her looks and that this would not have happened to her if she was male.  The lower court judge disagreed, noting that there was no implication that she was “treated differently than male employees,” or that she was fired because of her “status as a woman.” She was simply the target of a spouse’s jealously which is not a protected status under applicable law.

Lawsuit May Cost a Pretty Penny

The higher court reversed, explaining that firing Edwards to appease Adams’ jealousy over a potential romantic attraction was “sexual in nature” and that “adverse employment actions motivated by sexual attraction are gender based and, therefore, constitute unlawful gender discrimination.”

The court distinguished this case from those where employees were fired after consensual affairs with their employers.  In those cases, there was no discrimination because the employees were dismissed due to their behavior, not their gender.  In Edwards’ case, however, there as no behavior on her part that caused the termination – it was based purely on the jealousy over possible sexual attraction and that, in the eyes of the appeals court, was sufficient for a discrimination claim.

Bottom Line

This is an unusual case which, if it isn’t settled, is likely to produce some interesting court decisions down the road.

For now, it seems that employment actions based on purely personal characteristics should be avoided since they may subject an employer to the whims of a court system that has not yet determined how such cases are to be decided.

Those of us who bear the burden of being too cute can therefore take some small comfort from the benefits afforded by this decision.

The post Employee Who Got the Boot For Being Too Cute Can Pursue Her Suit appeared first on Felhaber Larson.

Biagio Stragapede, a water worker for the City of Evanston, Illinois, suffered a traumatic brain injury after accidentally driving a 4-inch nail through his skull at home with a nail gun. After nine months off, Stragapede felt ready to return but the City first referred him to Dr. Zoran Grujic for a specialized neurological assessment. Dr. Grujic cleared Stragapede to return to work.

Employer Facts Won’t Hold

By the third week of Stragapede’s return, however, the City had accumulated a list of “concerns” regarding his job performance. Those concerns included:

–  He needed help changing out a water meter;

–  He was observed by a co-worker driving through an intersection while looking at his lap instead of the road (with a green light and no pedestrians in the vicinity);

–  He was unable to complete a specific work task after two hours;

–  He drove to the wrong location on two occasions – once going to Green Bay Road instead of Gross Point Road, and once driving to Colfax Place instead of Colfax Street.

–  He tripped on some steps and suffered a toe injury.

The City reported the incidents to Dr. Grujic who determined without re-examining Stragapede or consulting with anyone else that these incidents stemmed from the brain injury and proved that he could not perform the essential functions of his job. The City thereupon terminated Stragapede’s employment, leading him to sue for disability discrimination under the Americans with Disabilities Act (ADA).

Jury Hits It On the Head

A jury ruled in Stragapede’s favor, and the Seventh Circuit Court of Appeals affirmed in a decision that reminds all of us that while reasonable people can differ, it is best not to leave room for argument.

Once a jury issues their verdict, it is difficult for the losing side to successfully appeal.  This is because a case that has made it to the jury trial stage has probably already been subjected to a motion for summary judgment.  This is a request by one party (or sometimes both) for the judge to decide that even if  all of the facts are interpreted favorably for the other side, the requesting party is still entitled to win the case as a matter of law.  If the motion is denied, it is because the judge determines that a reasonable jury could find in favor of one party or the other.

If a reasonable jury can find for either side, then appealing that determination is going to be difficult. It is not enough simply to persuade the appeals court that the jury was wrong; the court must be convinced that no reasonable jury could have rendered the particular verdict being appealed and that the appealing party is legally entitled to win the case.

That is why it is so important for employers to make sure that their employment decisions are based on substantial and provable factors. This evidence must carry the day at trial or be so overwhelmingly convincing that an appeals court will be unable to envision a reasonable person reaching any other conclusion.

Driving the Point Home

This is where the Stragepede’s employer fell short.

First, the City should have insisted that the doctor examine Stragapede again and that he not simply rely on their input for changing his opinion of Stragapede’s abilities so quickly. In other words, they should have insured that Dr. Grujic appeared to be an independent and objective evaluator of up-to-the minute medical data.  Otherwise, the jury could decide that the doctor was acting on incomplete data and his opinion was not reliable.  Instead, they could reasonably rely on the doctor’s original determination that Stragapede was fit for duty.

Second, the City should have made sure that their evidence was consistent. In this instance, while one supervisor felt that Stragapede could not perform the essential functions of the job, his direct supervisor maintained a very different opinion. Therefore, a reasonable jury could have decided that the testimony of the primary supervisor, who had more first-hand experience observing Stragapede’s work, was more believable and more indicative of the fact that Stragapede could in fact perform his job duties capably.

Third, in seeking to establish that an employee’s medical condition renders them a threat to health or safety, make sure that such a threat really exists. In this instance, the employer relied on some examples of inadequate job performance (no actual threat there), a couple of incidents of going to the wrong address (he wasn’t an ambulance driver), one toe-stub on the stairs and one admittedly dumb thing in the car that probably is something that other employees have done from time to time.  Adding it all up, a jury was certainly entitled to conclude that the employee did not pose a direct threat to health or safety.

Bottom Line

The employer in this case presumably felt that they had good reason to take the action that they did.  After all, they had evidence of Stragapede’s shortcomings and a letter from a doctor stating that he could not do the job.  Unfortunately, these facts also allowed for a very reasonable and credible alternative narrative, and that’s the one that the jury believed.

We know that not every employment decision will 100% airtight and unassailable – that is an unattainable goal.  Nevertheless, when approaching a possible termination based on a medical issue, remember that juries are just regular people and reasonable people can differ on just about anything.

Therefore, employers should do their best to minimize those possibilities by making sure that the medical opinions are based on up-to-date data, that the evidence is consistent and that the decision leaves little room for question.  In other words, make sure you nail it.

The post Jury Nails Employer for Weak Disability Discrimination Defense appeared first on Felhaber Larson.

Two African American laborers sued staffing agency STI Group after being fired from their jobs at Chesapeake Energy Corp. The workers had been told by their supervisor at Chesapeake that they would be fired if they “[N-word]-rigged” the fence-clearing task to which they were assigned.

Word Gets Out

The two men reported the comment two weeks later and were terminated thereafter with no reason being given. While they were rehired after a short time, they were let go again for “lack of work.”

They sued for racial harassment under federal law but the lower court dismissed, finding that they failed to meet the legal standard of proving offensive conduct that was “pervasive and regular.” The two men appealed to the Third Circuit in Philadelphia, who overturned the lower court and remanded the case for trial.  The Third Circuit ruled that the lower court applied the wrong legal standard and should have looked to whether the conduct complained of was “severe or pervasive.”

Is it And or is it Or?

The Third Circuit confessed that their prior rulings probably caused some confusion because in some cases they announced that the offending conduct had to be “severe and pervasive” while in others they applied the standard of “pervasive and regular.”  In one case, they actually declared the standard to be “pervasive and regular” yet they actually applied the “severe or persuasive” standard to decide the case.

Thus, the Third Circuit felt compelled to clear up this ambiguity and they did so by announcing that in this case and all others in the future, they would look to determine whether the offending conduct giving rise to the harassment claim was sufficiently “severe or pervasive” as to create a hostile work environment.  In so doing, the court explained that they were following precedent from the US Supreme Court and a number of other Circuit Courts in adhering to a standard that allowed for “alternative possibilities.”  This threshold of hostility can be met either by a single incident that is sufficiently egregious or by behaviors that are less offensive but more frequent.

Applying this standard in what the court deemed a “context-specific” basis, they ruled that the single use of the ugly racial term in this case was sufficiently severe to articulate a viable claim of hostile work environment harassment.

Bottom Line

This may make it a little harder to get early dismissal of harassment claims.  However, regardless of the standard used to determine whether a claim may proceed, our standards for how to address such claims remain unchanged.

Employers should still have clear, firm harassment prevention policies in place and everyone – especially supervisors and managers – should be reminded of their obligations not to use offensive terminology in the workplace.   If a report of offensive behavior is made, it should be investigated and resolved in a timely and appropriate manner.

That’s our word to the wise.

The post In Some Cases Even a Single Word Can Create a Hostile Environment appeared first on Felhaber Larson.

In the typical case, a charge from the EEOC is accompanied by an information request seeking a list of employees with various identifying information, including home address and telephone number.

Often, these requests are burdensome and seem to be mere fishing expeditions because they seek a large amount of data about departments, facilities and job classifications that are unrelated to the charge at hand.

Hand Over Everything

In the case that the Supreme Court reviewed, Damiana Ochoa took a maternity leave from her physically demanding job with the employer. When she sought to return, the company applied its standard rule of requiring a physical evaluation of everyone hired into that job or returning to it after more than 30 days.

Ochoa failed the evaluation three times and was subsequently terminated, leading her to file a charge of sex discrimination with the Equal Employment Opportunity (EEOC). As part of their investigation, the EEOC issued a relatively standard information request seeking the names, addresses, telephone numbers and other identifying information of every employee who had been required to undergo the evaluation. However, when they expanded the inquiry to cover the company’s entire national operations (and also to request information regarding possible age-based motivations), the company declined to respond, leading the EEOC to issue subpoenas for the requested information.

Still, the company balked, leading the EEOC to file an action with the federal district court to enforce the subpoenas. The District Judge declined, finding that the requested information to be irrelevant to the claims since the employees whose addresses and phone numbers were sought would not have any insight into whether the company’s practices were or were not illegal.   The Ninth Circuit Court of Appeals reversed, leading to an appeal to the Supreme Court seeking a ruling on the correct standard to apply in evaluating the legitimacy of an EEOC subpoena.

A High Bar is Set

The Supreme Court declared that an EEOC subpoena should always be enforced unless a court concludes that it was an abuse of their discretion to issue it in the first place. This abuse-of-discretion threshold is a very high bar to meet, and is consistent with what the Supreme Court has already deemed proper for the  National Labor Relations Board (“NLRB”), another federal agency that issues subpoenas under similar circumstances.

The Supreme Court did, however, give employers a little breathing room on this issue. They ruled that the decision to enforce an EEOC subpoena is not to be decided according to precise or standardized rules of what is or is not an abuse of discretion.  Instead, each subpoena must be reviewed on a case-by-case basis according to the particular circumstances of the case at hand, and employers will still get a shot at proving that the subpoena seeks irrelevant information, is excessively burdensome or in some other manner is completely inappropriate.

Bottom Line

This was a disappointing decision for employer that will make defending EEOC charges more time-consuming and difficult.

Still, employers should continue trying to limit the scope of EEOC information requests through negotiation and compromise in the hope that the agency is not interested in receiving excessive information any more than you are in providing it.

The post Supreme Court Affirms Broad EEOC Subpoena Powers appeared first on Felhaber Larson.

The lawsuit involved two companies, one based in Belgium and the other in France, each being sued by a female employee who had been terminated for refusing to comply with their employers’ policies banning visible signs of their political, philosophical, or religious beliefs in the workplace.

The European Court of Justice determined that the employers did not discriminate because their policies forbade any expression of religious belief in the workplace.  Therefore, these two employees were not being singled out for their expressions of their Muslim faith.

Our Equal Treatment Goes One Step Further

In the United States, Title VII is usually interpreted to prohibit such policies even if applied equally among all religious groups. For example, in Abercrombie & Fitch Gets Dressed Down in Religious Accommodation Case we reported on the U.S. Supreme Court ruling against the retailing giant for refusing to hire a Muslim woman who wore a headscarf (hijab) since the decision was premised on the fact that the applicant was Muslim.

The key issue in the Abercrombie case, as in many such matters, was Title VII’s requirement of reasonable accommodation. When a seemingly neutral and uniformly-applied policy burdens an employee’s religious beliefs or practices, the employer must determine whether reasonable accommodation can be provided to permit the employee to remain employed despite noncompliance with the policy.

Examples of Accommodation

Typical examples include scheduling around an employee’s observance of a religious holiday or allowing an employee to wear religious garb such as a yarmulke or hijab (or perhaps even a colander if the employee is a Pastafarian).  However, if the employer can demonstrate that the accommodation of the employee’s religious practice poses an “undue hardship”, the employer may decline to accommodate and may insist that the employee comply with the challenged policy.

Contrary to the elevated threshold for proving undue burden under the Americans with Disabilities Act, the standard for proving undue hardship for religious accommodation is rather minimal.  The Equal Employment Opportunity Commission (EEOC) explains: “An accommodation may cause undue hardship if it is costly, compromises workplace safety, decreases workplace efficiency, infringes on the rights of other employees, or requires other employees to do more than their share of potentially hazardous or burdensome work.”  EEOC recommends such relatively unobtrusive accommodations as flexible scheduling or voluntary shift swaps.

Bottom Line

Unlike in Europe, equal treatment is not equal enough for American employers whose employees contend that their work infringes on their religious beliefs.  When faced with such a claim, you might not have to do much but you have to at least give some thought to whether you can make a modest adjustment that will allow the employee to continue working while also meeting his or her religious obligations.

The post U.S. More Accommodating to Employee Religious Practices Than Europe appeared first on Felhaber Larson.

While Title VII does not explicitly identify sexual orientation as a protected classification, courts have been inching toward this conclusion for many years. As far back as 1989, the US Supreme Court ruled that sex stereotyping, e.g. treating a woman adversely because she does not act as a woman is “expected” to act, is prohibited.

Since then, some lower courts have extended this reasoning to find against employers who discriminate against gay people. Those courts contend that in seeking affection from members of the same sex, gay people do not behave the way we would expect people of their gender to behave.  Therefore, discriminating against them on that basis is in fact unlawful gender stereotyping under Title VII.

What the Court Said

Against this backdrop, the Seventh Circuit Court of Appeals heard the case of Kimberly Hively, a lesbian woman, who was a part-time adjunct professor for Ivy Tech Community College in Indiana. In 2014, after being rejected repeatedly for full time positions and then having her part time contract discontinued, Hively sued the school under Title VII claiming that had been discriminated against based on her sexual orientation.

The lower court dismissed the claim, observing that Title VII only protects against discrimination based on race, color, religion, sex and national origin. Hively appealed to the Seventh Circuit who framed the issue as follows: “[W]hether actions taken on the basis of sexual orientation are a subset of actions taken on the basis of sex” and therefore unlawful discrimination under Title VII?  In other words, is sexual orientation discrimination inherently sex discrimination?

The Seventh Circuit said yes, that it was a “common-sense reality that it is actually impossible to discriminate on the basis of sexual orientation without discriminating on the basis of sex . . . .”

The Court relied heavily on a hypothetical “in which Hively is a man, but everything else stays the same: in particular, the sex or gender of the partner.” In other words, by assuming Hively were a man in a relationship with a woman (rather than a woman in a relationship with a woman), “the outcome would be different.” According to the Court, this hypothetical, coupled with Supreme Court precedent mentioned above, demonstrated that discriminatory behavior on the basis of sexual orientation does not exist without taking the victim’s sex into account.

The Impact

This decision is a departure from what other courts are saying – in fact, every other federal circuit court that has looked at this issue, including Minnesota’s Eighth Circuit, has concluded to the contrary and held that Title VII’s protections do not extend to discrimination on the basis of sexual orientation.

That just makes the Seventh Circuit’s decision that much more significant. Now that there is a split among the circuits, (albeit a lopsided one), review and resolution by the US Supreme Court is more likely and perhaps inevitable.

Here in Minnesota, employers may not feel much of an effect because the Minnesota Human Rights Act already prohibits discrimination on the basis of sexual orientation (and gender identity). Thus, even if the Eighth Circuit adopts the Seventh Circuit’s position in the future, life for Minnesota’s employers will not feel much different.

In the states comprising the Seventh Circuit (Wisconsin, Illinois, and Indiana), life is going to be very different indeed, and employers there should immediately begin reevaluating their policies and procedures to ensure a workplace free of sexual orientation discrimination.

Bottom Line

As noted above, Minnesotans have been insulated from the debate over Title VII’s impact on sexual orientation discrimination because our state law encompassed that issue years ago.

Outside the Gopher State, however, the issue just escalated in a hurry as a result of the Hively decision.  Other circuits that haven’t yet weighed in may now find it easier to side with the Seventh Circuit now that the table has been set for them.  In turn, a more even split in the circuits could fast track the issue up to the Supreme Court.

This is going to get very interesting.

The post First Ever Appeals Court Ruling That Title VII Bars Sexual Orientation Discrimination appeared first on Felhaber Larson.

Title IX of the Education Amendments of 1972 provides “No person in the United States shall, on the basis of sex, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any education program or activity receiving Federal financial assistance.”

Title IX Expanding

Among many other applications, Title IX is the law upon which colleges and universities rely in enforcing policies prohibiting sexual violence and harassment, as we saw recently in the investigation of sexual assault allegations involving members of the University of Minnesota football team. Investigations into alleged Title IX violations are often cumbersome and lengthy due to significant procedural protections built into the process.

A new ruling from the United States Court of Appeals for the Third Circuit may expand the application of those Title IX procedures to student-employees.  In that case, the appeals court determined that a private teaching hospital in Philadelphia was potentially liable under Title IX to a female former medical resident who claims she was sexually harassed by the director of her radiology residency program.  The hospital claimed that Title IX did not apply since they were not actually an educational institution.  The court disagreed, explaining that an entity can be considered an educational program under the law if it has “features such that one could reasonably consider its mission to be, at least in part, educational.”

Why Does This Matter?

As a result, teaching hospitals and any other business that employ student interns or persons in a dual student-employee role may now be covered under Title IX. Why does this matter since those institutions are covered under Title VII’s prohibitions against sex discrimination and sexual harassment anyway? For one thing, Title IX does not require an employee to first file an administrative charge with a government agency as is required under Title VII.  In addition, Title IX imposes certain training and procedural requirements that do not exist under Title VII, including a unique hearing process.

Perhaps the most singular aspect of Title IX is the requirement that each covered institution must appoint a Title IX Coordinator. A Title IX Coordinator is someone who is well versed in the education law and ensures an institution remains compliant with the law. The Title IX Coordinator also reviews the institution’s compliance program for patterns of inequity or other deficiencies.

Of course, decisions from other jurisdictions do not necessarily apply in Minnesota.  Still, courts all over the country look for guidance from other jurisdictions when faced with similar issues and Minnesota is no exception.   Therefore, on the basis of this new Third Circuit decision, teaching hospitals and any other business in Minnesota that employs student interns or students in a dual student-employee role should reassess their legal obligations to such individuals and decide whether they should make sure that Title IX procedures are effectuated.

Bottom Line

If you are an institution that might be affected by this ruling, do not despair that you have not been compliant.  The most critical aspect of Title IX compliance is the same as it is for staying safe under Title VII – conducting prompt and thorough investigations of any complaints of sex discrimination.

Title IX coverage just means that you will need to implement some new procedures and safeguards going forward.

The post More Businesses May Be Subject to Title IX for Student Employees and Interns appeared first on Felhaber Larson.

Not updated since 2002, the guidance offers a number of important insights into how the EEOC intends to handle national origin discrimination cases, which now account for 11% of all charges filed with the EEOC.  Given EEOC’s expanding definition of the phrase “National Origin”, that number may increase dramatically.

What is National Origin?

The guidance defines “National Origin” quite broadly, noting that discrimination on this basis might arise because of where the person (or that person’s ancestors), is from, or because the person has “the physical, cultural, or linguistic characteristics of a particular national origin group.” The place where the person is from can be a country, a former country or a geographic region. National origin can also refer to a “national origin group,” or an “ethnic group,”, which EEOC says is a group of people with a “common language, culture, ancestry, race, and/or other social characteristics.” EEOC offered the examples of “Hispanics” or “Arabs” as national origin groups.

The guidance particularly points out that national origin discrimination also encompasses differential treatment based on the fact that a person is not from a particular ethnic group (e.g. adverse treatment because a person is not Hispanic). It also includes adverse action based on the fact that an individual is perceived to be (but is not actually) of a particular national origin, as well as discrimination based on a person’s association with others of a particular origin.

Accent, Fluency and “English Only” Policies

The new guidance explains that employment decisions based on accent or fluency in English must be job-related and consistent with business necessity.  An employer must be prepared to prove that a strong accent or lack of fluency in English materially interferes with the person’s job performance.  “Blanket” rules requiring that English (or perhaps some other language) be spoken at all times in the work place will be considered presumptively unlawful and the more restrictive the policy, the greater the likelihood that the EEOC will find that is it not a business necessity.

The guidance also addresses a wide range of interesting, related topics, such as the relationship between human trafficking and harassment, intersectional discrimination (discrimination based on the combination of two or more protected classes, e.g., adverse treatment of Asian females but not Asian males), citizenship issues and customer/co-worker preferences to work in specific groups based on national origin.

“Promising Practices”

The EEOC is reluctant to identify “best” practices because they view each workplace as unique.  Instead, as they have done previously, they offer a list of “Promising Practices” in regard to national origin discrimination.  They largely consist of standard recommendations for good human resources practices, such as:

– Use a variety of recruitment methods to attract as diverse a pool of job seekers as possible.

– Establish written objective criteria for evaluating candidates, and apply those criteria consistently .

–  Use fair and corrective progressive discipline policies .

–  Ensure effective communication of policies, including translation of policies into the languages spoken by employees.

–  Clearly communicate to employees that harassment will not be tolerated and that employees who violate the prohibition against harassment will be disciplined.

 Although not exactly ground-breaking insights, the Promising Practices are nevertheless helpful reminders.

The new guidance is accompanied by  a small business fact sheet and an FAQ.

Bottom Line

Our bruising presidential campaign generated some raw feelings in regard to national origin-related issues.  Although much of that may fade, we anticipate that there will be heightened emphasis on national origin in the months ahead and that some of that emphasis will find its way into the work place.

The EEOC guidance may prove to be a useful resource in determining employer’s rights and obligations in this arena.

The post EEOC Issues Updated Guidance on National Origin Discrimination appeared first on Felhaber Larson.

CMS of Mobile, Alabama, hired Chastity Jones as a customer service representative.  The job was performed solely via telephone and computer with no personal interactions with customers.  However, when the company told Jones, an African American, that she would have to cut her dreadlocks,  Jones refused.  The company then rescinded the job offer.

Dreadlocks Don’t Make the Cut

CMS maintained a grooming policy that read:

“All personnel are expected to be dressed and groomed in a manner that projects a professional and businesslike image while adhering to company and industry standards and/or guidelines. . . [H]airstyle should reflect a business/professional image. No excessive hairstyles or unusual colors are acceptable.

Jones filed a charge of race discrimination with the Equal Employment Opportunity Commission (EEOC) who found in her favor.  They then sued CMS in Federal court on Jones’ behalf, claiming that enforcing the grooming policy to preclude dreadlocks was an act of intentional race discrimination against African Americans.

The District Court dismissed the case, determining that Title VII protects against discrimination only on the basis of immutable characteristics, i.e. those that people typically cannot change, such as race, color, or natural origin. Notwithstanding that a particular hairstyle (or manner of dress or other cultural attribute) may be very closely associated with a certain race, it is a changeable matter of personal choice that the law simply does not protect. EEOC then appealed to the 11^th Circuit Court of Appeals.

A Matter of Style And Substance

In reviewing the matter, the Appeals Court emphasized that the EEOC chose not to argue the case under the theory of disparate impact.  A disparate impact claim requires a showing that an otherwise neutral employment policy has a disproportionately adverse effect upon a protected group, and that the business purpose of such a policy does not justify the discriminatory impact. Therefore, EEOC could not attack the grooming policy on the grounds that it unfairly screened out African Americans from employment with CSM.

Instead, EEOC claimed that by deciding that dreadlocks were not “professional” or “businesslike” as the grooming policy requires, CSM intentionally sought to keep black persons from working for them.  They agued that race is more than merely a set of physical characteristics.  Instead, the concept is a social construct that encompasses cultural manifestations such as hair, clothing and “grooming practices.”

In particular, although not exclusive to black persons, EEOC suggested that dreadlocks are generally viewed as a racial characteristic of black people due to the unique texture of their hair and how well it adapts to that type of styling.   When black persons “choose to wear and display their hair in its natural texture in the workplace, rather than straightening it or hiding it, they are often stereotyped as…not sufficiently assimilated into the corporate and professional world of employment.” Such stereotyping is precisely what Title VII was enacted to address.

EEOC’s Claim Gets Sheared

The Court of Appeals disagreed, noting that while Title VII does not define the term “race”, it seems likely that Congress intended it to apply to “common physical characteristics shared by a group of people and transmitted by their ancestors over time.” They concluded that it is “not much of a linguistic stretch” to find that this refers to traits that are a “matter of birth, and not culture.”

The court acknowledged that there might be a fine line between what are immutable and mutable characteristics of race but in light of the complexity of race issues today, it would be best to let Congress resolve what Title VII actually means when it refers to “race.” Until then, the court’s job is to interpret and apply the law as it exists, and they felt that the law did not offer protection to voluntary choices of how employees choose to dress or wear their hair.

Bottom Line

It is not clear why EEOC elected not to pursue this matter as a disparate impact case.  Perhaps the policy’s ban on all “excessive hairstyles or unusual colors” suggested to them that dreadlocks would only be one of many hairstyles to be outlawed, and that the racial impact of the policy would be diluted.

Do not be surprised if EEOC considers issuing new regulations or guidance advising us that banning dreadlocks or other cultural manifestations of racial identity constitute unlawful racial discrimination.  This would give them a little more support if they choose to take up this challenge again in a future case.

The post Court Upbraids EEOC For Contesting No-Dreadlocks Policy appeared first on Felhaber Larson.

Frank Branham applied for a vacant maintenance worker position at Detroit Baptist Manor. He made it through the screening by Human Resources and was referred for an interview with Paul Doelle, Director of Operations.

Even Fools are Thought Wise When They Keep Silent

Branham claimed that during the interview, Doelle said he “was not looking to hire anyone at [Branham’s] age because he had enough staff that was 40 or 50-year-old guys” and that he “needed younger men that can be able to climb ladders and get on the roof.” Doelle admitted that he “probably” referred “to the age of [his] staff” and that he told Branham that he “already had staff members in their forties and fifties.”

Branham emailed his HR contact to complain about Doelle’s statements and the fact that his age obviously was going to keep him from getting the job. Ultimately, the company decided not to fill the opening, prompting Branham to sue for age discrimination under federal and state law.  The company eventually filed a motion for summary judgment (early dismissal) with Federal District Court Judge Judith Levy.

Speak Only If It Improves Upon the Silence

The company argued that since nobody was hired for the position, Branham cannot prove that he was wrongfully denied a job or that he was treated differently from any other applicant.  In short, if a job is not filled, there really was no opening to begin with.

Branham responded that of course there was an opening.  Why else would he have been recruited, screened and interviewed without anyone ever mentioning the fact that there was no actual job to fill?  The fact that the company ultimately decided not to hire anyone does not relieve them of liability for a specific decision to deny him the job once they learned how old he was.

The Judge Has Heard Enough 

Judge Levy denied the dismissal motion and ordered the case to proceed to a full jury trial.  She ruled that it certainly could be inferred from Doelle’s remarks that the company was indeed looking to hire a maintenance worker, just not one as old as Branham. After all, HR had written Branham before the interview to confirm his interest in “the General Maintenance job opening” and it was clear that nobody ever told Branham that there were no jobs available during any of the multiple contacts they had with him.

It also was not lost on the judge that the company was well aware of Branham’s concerns about age discrimination.  Therefore, as if to provide the jury with a clear road map, she quite pointedly wrote that it was best for a jury to determine if the company did have a vacant position but chose not to fill it in order to have a better defense to a potential lawsuit.

Bottom Line

It is impossible to take back words once they are spoken.  The employer tried the best they could to minimize the impact but the judge appears to have seen through it.

Employers should never let up in reminding their managers and supervisors just how dangerous it can be to make reference to an applicant’s or employee’s race, gender, age or other protected characteristic in an employment-related interaction.

The post Talk is Cheap but Age-Based Remarks Will Cost you appeared first on Felhaber Larson.

Susan Bronson, a 42-year old Indian American female, worked at Henry Ford Health System (HFHS) in Michigan as a staff nurse. She applied for a promotion to Clinical Coordinator in November, 2013, but was turned down in favor of a White nurse.

Bronson eventually sued, claiming that she was discriminated against because of her race, and also subjected to retaliation after complaining about race discrimination.  The employer filed a motion for summary judgment (early dismissal) which the court denied.

Mistake #1

HFHS defended their decision not to promote Bronson by arguing that she did not accept criticism well, failed to “take ownership,” did not possess leadership qualities and did not participate in unit activities. The successful applicant, on the other hand, was reputed by her peers to be a good leader.

Using subjective factors to make employment decisions can be problematic and subject to dispute unless more objective criteria are employed to define those factors.  Identifying a lack of “ownership” or being a poor “leader” will be much more persuasive if those labels are accompanied by more specific details or actual examples of such behavior.  In short, it is always best to “objectify” subjective impressions.

Mistake #2

The employer’s rationale for not promoting Bronson took a big hit when the judge noted that in Bronson’s 2012 performance review, her supervisor wrote that Bronson was a team player, volunteered for overtime if staffing was short, and promoted positive team spirit. Bronson was rated as a “4.0 – Exceeds Expectations.”  In 2013, another supervisor also rated Bronson at “4.0 – Exceeds Expectations,” noting that Bronson was “sincere, courteous and friendly.”

The employer argued that these past evaluations were not relevant in determining the legitimacy of their current assessments of Bronson’s fitness for the job. The court scoffed at this suggestion, however, noting that the employer advanced no reasoning or court precedent whatsoever for such a conclusion.

In drawing conclusions about an employee’s suitability for a new assignment or a promotion, do your homework. Review the employee’s work record and what past supervisors and/or coworkers might have said about the individual.  That’s not to say that you have to rely on a prior evaluation or are precluded from having a different opinion. After all, the employee’s work may have slipped or the previous supervisor may have had more relaxed standards.  Nevertheless, a negative performance assessment on the heels of good reviews in the past will be viewed skeptically unless some proof is offered in the form of specific and objective factors.

Mistake #3

The judge also observed that the successful candidate did not actually meet the minimum qualifications for the job.  This one is simple – if you are going to have minimum qualifications, make sure that the successful candidate actually possesses them.

Hiring someone whom you have already deemed unqualified could easily influence a judge or agency to believe that the rationale for not hiring qualified protected class applicants is a smokescreen for an illegal motivation.  The chances of such a ruling increase if the justification for ignoring the minimum qualifications is vague, overly subjective or, as explained below, just plain weird.

Mistake #4

The employer proffered a most unique defense as to why the successful candidate did not meet the stated minimum qualifications for the position.  They said that this was a mistake, that the candidate’s resume should never have been passed along for further consideration and that the employee responsible for the error had been disciplined.  In other words, their decision to consider that candidate was an innocent mistake, not an act of intentional discrimination.

An innocent mistake can be a viable defense to a discrimination claim since the ultimate question is whether the claimant has been the victim of intentional discrimination.  In this instance, however, the judge was quick to point out that the error in passing the resume on for further consideration still did not explain why the employer overlooked the lack of credentials and actually hired the candidate.  Thus, putting the resume forward for consideration may have been an innocent mistake, but the decision to hire an unqualified applicant was not.

All in all, the Court ruled that Bronson had effectively raised legitimate questions of fact as to whether her race had improperly been considered in her failure to be promoted. As such, the employer’s motion to dismiss the discrimination claim before trial had to be denied.

At Last, the Employer Got One Right

In fairness, it should be pointed out that the employer did successfully persuade the judge to dismiss the retaliation claim.  Bronson’s allegations of retaliation included being assigned extra work, receiving unfairly critical evaluations, not being assigned to leadership roles in her unit, and having her work unduly monitored and criticized.

The judge concluded that taken together, these assertions did not rise to the level of sufficiently adverse employment action to permit the retaliation claim to proceed to trial.

Bottom Line

This was a textbook example of how not to make a hiring or promotional decision.  In all instances, it is advisable to have appropriate and provable criteria for the decision, to hold all candidates to the same standard for meeting the criteria and to make sure that the judgments made about each candidate are valid and supported by reliable evidence.

There may have been more but we counted at least four significant errors in the employer’s handling of this matter.  Perhaps the fifth mistake was not finding a way to settle the case before it got this far.

Critical developments such as this will be the focus of the Felhaber Labor & Employment Seminar on October 28, 2016.  You can view the seminar agenda and .access our online registration by clicking here.

The post Let’s Count All the Mistakes in a Single Bad Hiring Decision appeared first on Felhaber Larson.

The case is one of the first two lawsuits that the U.S. Equal Opportunity Commission (“EEOC”) has filed alleging that bias against transgender employees constitutes illegal sex discrimination.

In granting the employer’s motion for summary judgment, the U.S. District Court concluded that the employer met its burden in demonstrating that it is exempt from Title VII under the Religious Freedom Restoration Act (“RFRA”).

The EEOC’s lawsuit alleged that G.R. Harris Funeral Homes, Inc. discriminated based on sex against the transgender funeral director in violation of Title VII of the Civil Rights Act of 1964 by firing her “because she is transgender, because she was transitioning from male to female, and/or because she did not conform to the employer’s gender-based expectations, preferences, or stereotypes.”

Though on its face Title VII does not ban discrimination against transgender individuals or include gender identity as a protected class, several courts have concluded that the prohibition against sex discrimination includes gender stereotyping—and the Supreme Court has held that “gender must be irrelevant to employment decisions.”

The EEOC’s position is that discrimination against employees because they are transgender, because of their gender identity, and/or because they have transitioned is illegal discrimination because of sex since it imposes expectations or stereotypes regarding how someone ‘born’ to that sex should live or look.

Background

While the owner of Harris Funeral Homes, Thomas Rost, is a devout Christian, the corporation is not affiliated with or part of any church and its articles of incorporation do not avow any religious purpose. The homes serve clients of all faiths and their employees are not required to hold any religious view.

The company’s website contains passages of scripture and Rost has placed Christian devotional materials and small cards containing Bible verses in the funeral homes. The court observed that it was undisputed that Rost sincerely believes that the “Bible teaches that a person’s sex (whether male or female) is an immutable God-given gift and that it is wrong for a person to deny his or her God-given sex.”

The funeral homes maintain a dress code for employees, requiring men to wear suits and ties and women to wear skirt suits. After male employee Andrew Stephens began transitioning to female employee Aimee Stephens, she began wearing skirts-suits and consequently, was fired.

Rost admits that Stephens was fired because Stephens intended to “dress as a woman.”

Court Decision

The funeral home defended its termination decision on the grounds that enforcement of a sex-specific dress code is not impermissible sex stereotyping under Title VII. In addition, on the heels of the Supreme Court’s decision in Burwell v. Hobby Lobby Stores, Inc., they argued that the RFRA prohibits the EEOC from applying Title VII to force the funeral home to violate their sincerely held religious beliefs. In Hobby Lobby, the Supreme Court granted the craft-store giant a religious exemption from providing its employees with insurance coverage for contraceptives.

The court rejected the funeral home’s first defense, noting recent precedent “an employer who discriminates against women because, for instance, they do not wear dresses or makeup, is engaging in sex discrimination because the discrimination would not occur but for the victim’s sex.” Therefore, it ordinarily is considered illegal for an employer to terminate an employee for wearing clothing viewed as not gender-appropriate.

Religious Freedom is Paramount

However, the court agreed that the funeral home was exempt from Title VII because of Rost’s sincerely held Christian beliefs under the RFRA, which requires religious exemptions even from generally applicable federal statutes.

The RFRA provides that if an individual (and here, a corporation is deemed an individual) holds a sincere religious belief and a federal law substantially burdens the person’s ability to act consistently with that belief, the government must grant an exemption from the law unless (1) the law serves a compelling government interest; and (2) denying the exemption is the least restrictive means of serving that interest.

Here, it was undisputed that Rost’s beliefs were sincerely held, and the court determined that the funeral home met its initial burden of showing that enforcement of Title VII, and the body of sex-stereotyping case law that has developed under it, would impose a substantial burden on its ability to conduct business in accordance with its sincerely held religious beliefs.

Having found that enforcement of Title VII would be a substantial burden to its religious exercise, the burden shifted to the EEOC to prove that: (1) application of the burden is in furtherance of a compelling government interest; and (2) is the least restrictive means of furthering that compelling government interest.

While the judge agreed that protecting employees from gender stereotyping in the workplace is a compelling governmental interest, he concluded that EEOC had failed to show that enforcement of Title VII in this instance is the least restrictive means of protecting employees from gender stereotyping. In fact, the court suggested:

If the compelling interest is truly in eliminating gender stereotypes, the Court fails to see why the EEOC couldn’t propose a gender-neutral dress code as a reasonable accommodation that would be a less restrictive means of furthering that goal under the facts presented here.

Bottom Line

This case is just the beginning of what is likely to be a flood of cases revolving around whether Title VII’s ban on sex discrimination applies to sexual orientation discrimination, and whether the religious exemption under the RFRA will provide a valid defense.  EEOC has already indicated that they will appeal this decision, and more litigation from the agency is already in the works.

As the saying goes (in a slightly cleaned-up way), this stuff is about to get real.

The post Court Blesses Religious Defense to Transgender Bias Claim appeared first on Felhaber Larson.

Dilek Edwards worked as a yoga instructor and massage therapist at Wall Street Chiropractic and Wellness (“WSCW”), which was owned by husband and wife Charles Nicolai and Stephanie Adams. Nicolai hired, trained and supervised the employees, including Edwards.

The work relationship between Nicolai and Edwards was strictly professional, though Nicolai once remarked that Adams might become jealous because Edwards was “too cute.” Nicolai’s hunch came true a few months later when Adams texted Edwards that she was no longer welcome at WSCW and to “stay the f*** away” from Nicolai. The next day, Nicolai fired Edwards via email and threatened to call the police if she returned to WSCW.

Edwards then sued Nicolai and Adams for sex discrimination in violation of state and city law.

A Spouse’s Jealously Prevails

The state statute and city administrative code at issue both prohibit employers from discriminating on the basis of an individual’s sex or gender, among other protected classes. Edwards specifically alleged that she was fired because Nicolai (and Adams) thought Edwards was “too cute” and that this would not have happened to her if she was male.

The judge disagreed, however, dismissing the case because Edwards failed to articulate a viable legal claim.  The judge observed that Edwards’ complaint was devoid of any contention that she was “treated differently than male employees,” or that she was fired based on her “status as a woman.” Instead, Edwards only claimed that she was discriminated against because of a spouse’s jealously, and being the target of that emotion is not protected under the applicable laws.

The judge specifically explained:

“With respect to whether appearance can be the basis of a discrimination claim…..courts have not found discrimination when the subject conduct or policy was not applied differently to men and women.”

Not the First Time

The judge explained that there is legal precedent for this decision, pointing to a 2013 Iowa case  where an employer fired an employee because his wife felt that the employee posed a threat to their marriage. Interestingly, this belief came about after she discovered that her husband had sent a series of personal and sexually-oriented text messages to the employee.

The judge in that case ruled that firing an employee because of a spouse’s perception of a threat to the marriage does not constitute unlawful sex discrimination.  Unfortunately for Edwards, the judge in her case felt the same way.

Bottom Line

This case reinforces that employment actions based on purely personal characteristics are not likely to be deemed illegally discriminatory unless, of course, those characteristics (e.g. race) have been specifically protected in the laws.

As such, this decision is a comfort to employers, but not to those of us who must live every day knowing that we could lose our jobs because we bear the burden of being too cute.

The post Employee Fired for Being Too Cute Has No Claim appeared first on Felhaber Larson.

Oscar Olivares, a supervisor at Brentwood Industries, alleged that after suggesting that some of his crew’s temporary workers get applications for regular jobs, he was told that the company did not want to hire more Mexican workers. A few weeks later, he was fired when it was discovered that two of his employees were not wearing their personal protective equipment.

Olivares sued the company for race discrimination and the jury issued a verdict in his favor. However, since he had obtained new employment and failed to prove any actual monetary harm, the jury awarded him the grand total of one dollar for his troubles.

Jury Award Makes Cents Sense

Olivares appealed the damage award to the Eighth Circuit Court of Appeals but to no avail. The Appeals Court ruled that without proof of lost earnings, the jury had no choice but to award only nominal damages, and the one dollar verdict certainly fit that bill.

Olivares then asserted that in the absence of monetary damages, he should have been awarded reinstatement to his previous job or one just like it. However, the court denied this request, noting first that there were no other comparable supervisory positions into which he could be placed.  Even if there was, the court concluded that “serious trust issues” between Olivares and the company were a sufficient basis for denying reinstatement.

Court Doesn’t Back Front Pay

Olivares tried one last approach, claiming that if reinstatement was not possible he should receive front pay instead. The Court shot this down as well, claiming that in the absence of evidence of lost wages, the front pay request was just as speculative, and just as inappropriate, as the back pay demand.

Bottom Line 

Legendary football coach Vince Lombardi once said that “Winning isn’t everything, it’s the only thing.”  In this instance, winning truly was the only thing for the terminated employee because he ended up with nothing else – no damages, no reinstatement and no front pay.  We can’t help but think that like so many employment-related disputes, this matter could have been resolved in a more efficient and effective manner.

The post Fired Worker “Successfully” Sues for One Dollar appeared first on Felhaber Larson.

Leontine Robinson, who handled patient intake and registration in the emergency room, argued that the mandatory vaccination violated her religious beliefs as a Muslim and that she should be exempted. The hospital declined, but offered her time to seek another position within the hospital and assistance in locating such a position.

When Robinson was unable to secure a new job, the hospital designated her as a voluntary termination which would allow her to reapply for future jobs at the hospital.  Robinson then sued the hospital for religious discrimination.

 Vaccination Policies Gets a Shot in the Arm

Title VII of the Civil Rights Act of 1964 requires employers to reasonably accommodate an employee’s religious beliefs or practices, unless doing so would cause an undue hardship.  The threshold for proving undue hardship in religious accommodation matters is rather low.  The employer need only show that the requested accommodation  caused more than a minimal burden on the business.  Examples of possible accommodations include flexible scheduling, redistribution of some job tasks or modifications of policies or procedures.

In this case, the judge ruled that Robinson’s request to be permitted to continue doing her job without the vaccination was an undue hardship.  The judge explained that health care employees are at high risk for exposure to influenza and for passing it on to vulnerable patients.  Allowing Robinson to keep doing her job without the vaccine could have placed vulnerable patients at risk and there simply was no practical way to insure that she worked only with the less vulnerable patients.

The Court further noted that the hospital provided a reasonable accommodation by encouraging Robinson to transfer and offering assistance in doing so.  Although Robinson claimed that they could have done more to help her, the judge explained that there was no legal duty to create a new job to accommodate her.  The hospital’s efforts in granting time off, facilitating her job search and preserving her ability to reapply by calling her termination voluntary all contributed to the conclusion that the hospital met its obligation under the law to accommodate Robinson.

Bottom Line

This decision bolsters the legitimacy of mandatory vaccination programs for employees with direct patient care responsibilities.  It also reemphasizes the rather minimal burden of reasonable accommodation for religious needs, in contrast to the stringent requirements under the Americans with Disabilities Act (ADA).

Ultimately, this case is also a victory for hospital patients who benefit from a little more protection from contagion by those who are hired to care for them.

The post Employee Can’t Skip Flu Vaccine on Religious Grounds appeared first on Felhaber Larson.

As the undisputed masters of the exasperated eye roll, teenagers everywhere will feel validated by this ruling if they ever stop texting and looking at their phones long enough to read it.

Almost 15 Years of Accommodation

Wal-Mart employee Kathy Kelleher was diagnosed with Multiple Sclerosis (MS) in 1997, resulting in her receiving a series of job accommodations over the ensuing years. In June 2011, Kelleher requested yet another accommodation accompanied by a doctor’s note listing various lifting, bending, walking and ladder-climbing restrictions.

The company determined that they could not accommodate those restrictions and invited Kelliher to take FMLA or personal leave, and to apply for open positions within her work restrictions. Her store manager, however, went the extra mile and concluded that Kelliher could handle the overnight cashier position.  The cashier job is somewhat less strenuous and offered a $.20/hour raise.

Employee Still Grumbles

Kelleher worried that the job might be too strenuous, however, and she was afraid that customers would make comments about her. Nevertheless she took the job, claiming later that she felt pressured to do so because the company had no other options for her.

Thereafter, she claimed she was retaliated against because she was rated as a “solid performer” on her performance evaluation when she had earned an “exceeds expectations” rating in the past. She also complained about receiving a slightly lower raise than she had in previous years.  Saving the “best” for last, Kelliher claimed that she had been harassed because she had to work alone, she was constantly being asked if her work was completed, and managers would roll their eyes and act exasperated when they interacted with her.

Appeals Court Shrugs Off Claims

The Eighth Circuit Court of Appeals rejected these claims (and probably rolled their eyes when doing so).  For one thing, retaliation claims require proof of an adverse action, and a poor review does not rise to that level since there is no tangible detriment tot he employee.  If there is a change in pay that accompanies such a review, a court might feel differently but even then the employee would still have to show that the company’s stated reasons for those reviews were pretextual for an illegal motive.  Kelliher failed to convince the court that Wal-Mart’s explanation – diminished job  performance – was covering up an impermissible rationale.  Therefore, the performance reviews were legitimate and so too were the smaller raises based upon them.

The Court also gave a thumbs down to the harassment claim, noting that “simple teasing, offhand comments, and isolated incidents (unless extremely serious)” do not meet the standard of  behavior that is “sufficiently ‘severe or pervasive’ to affect a term, condition, or privilege of the plaintiff’s employment.”  Occasional “looks” and eye rolls directed toward Kelliher may have been annoying or unkind, but they did not alter her working conditions, nor were they sufficiently frequent, severe or threatening to create an illegally  hostile work environment.  Therefore, case dismissed.

Bottom Line

People seem to be more sensitive these days and feelings seem to get hurt much more easily than before.  It is good to know that the courts are still holding the line against allowing small hurts and perceived slights to become legitimate catalysts for lawsuits.

The post Judges and Teens Agree: Eye Rolling is Not Harassment appeared first on Felhaber Larson.

Truer words were never spoken for one unhappy employer when a federal appeals court overturned the dismissal of a sex discrimination lawsuit because of some ill-chosen words that allegedly were spoken by a manager.

Snatching Defeat From the Jaws of Victory

When Donna Morrow was fired from her job at Zale Corp., she sued the company for sex discrimination under Title VII of the Federal Civil Rights Act of 1964.  When all of the depositions and other pre-trial discovery ended, the company brought a motion for summary judgment (early dismissal), which the trial judge granted.

Morrow appealed to the Eighth Circuit Court of Appeals, arguing that the lower court improperly minimized the degree to which one particular manager, John Dougherty, influenced the decision to terminate her.  Morrow pointed to evidence that she claimed showed that Dougherty participated in the investigation leading up to her termination, and also that he actually was the person who informed her of the termination decision.

If Dougherty was involved in the actual decision to terminate her, Morrow  claimed that she should have been allowed to present evidence that he was biased against her because of her gender.  This would create an inference an illegal motive – sex discrimination – for the company’s decision to let her go.  Morrow’s evidence of Dougherty’s gender bias included the following statements that she attributed to him:

–  She should step down because she was “a female” and “a single mom”;

–  It is a “man’s world”; and

–  She needed to “man up.”

Not Just  Sticks and Stones

The Eighth Circuit Court of Appeals agreed with Morrow, noting that if Dougherty actually was a decision-maker in the matter, these remarks could be viewed as direct evidence of an illegally discriminatory motive for the termination. Therefore, Morrow should not have been denied the chance to present her evidence of these statements at a trial.  The Appeals Court ruled that the matter should be returned  to the trial judge so that Morrow could have her day in court.

This decision does not mean that the company discriminated against Morrow or that she is likely to win the case when all is said and done. It simply means that there was enough evidence of a possible wrongful motive that it was premature to dismiss the case at such an early stage.

Even so, this decision sends a powerful message to employers.  The company put in a great deal of time and effort investigating the matter and making the termination decision.   They incurred significant expense in defending their actions and pursuing dismissal of the claims.  All of this was undone, however, simply because one manager who maybe was involved in the termination just maybe made some inappropriate gender-related remarks. This was enough to persuade a federal appeals court that an employee was entitled to her shot at proving that the whole termination process was tainted.

Bottom Line

No matter how much effort is put into managing an employee’s job performance constructively and fairly, that employee is going to pick up on any words that might reflect a bias based on gender, race or any other legally protected classification. Even spoken in jest or taken out of context, such remarks have the potential to be viewed as evidence of a manager’s true feelings about the employee.

Some might say that employees should be less sensitive or that this is political correctness going too far.  However, as long as we keep reading decisions like this one, directing managers to refrain from such talk is still good business.

The post Would Telling Her To “Person Up” Have Been Better? appeared first on Felhaber Larson.

The workers, who are mostly Somalian immigrants, allege that the Cargill facility in Fort Morgan, Colorado, restricted them from leaving their work stations for brief prayer sessions. They contend that this deviated from a long-standing practice that was more lenient in regard to prayer breaks.

Workers Lose Faith in Employer Practice 

The issue came to a head in December last year when the workers claimed that they were not allowed to leave their work stations to pray. Thereafter, they walked off their jobs and then refused to report for work or call in for three consecutive days, which violated the company’s attendance policy.  As a result, Cargill terminated their employment.

The discrimination charges were filed with the Equal Employment Opportunity Commission (EEOC) and revolve around an employer’s obligation under Title VII of the Federal Civil Rights Act to afford reasonable accommodation to the religious beliefs of their applicants and employees. Possible accommodations might include flexible scheduling, relaxed dress or grooming standards or granting unpaid time off for religious observance.  Flexible scheduling to permit employees time to pray during the working day has frequently been identified as one such accommodation.

However, it is also clear under Title VII that accommodation need not be provided if it results in an undue hardship to the employer. Unlike the elevated threshold under the Americans with Disabilities Act (ADA), the standard for showing undue hardship for religious accommodation is rather minimal.  The EEOC explains that hardship exists if there is more than a minimal cost or disruption to the business, and that hardship may be present “if a requested accommodation is costly, compromises workplace safety, decreases workplace efficiency, infringes on the rights of other employees, or requires other employees to do more than their share of potentially hazardous or burdensome work.”

Company Preaches Productivity

When this story was first reported, Cargill announced that there had not been any change in their approach to prayer breaks and that such breaks were allowed for small groups of workers.  They added that accommodating larger groups who wanted to pray together was difficult because it interfered with its operations as a USDA-inspected plant that processes meat.  They have not commented publicly since the charges were filed.

Cargill is not alone in finding themselves defending these claims. Employers across the country, in large and small communities, are struggling with how to accommodate the increasing diversity in the workforce while maintaining their businesses’ productivity.  In many instances, workers feel dissatisfied with the efforts made to accommodate their religious needs while employers become frustrated in trying to meet ambitious production schedules without enough workers on the assembly line.

Unfortunately, there is no bright line rule for defining when an accommodation request is “reasonable.” While the threshold for proving hardship is relatively low, employers are still obligated to consider accommodation requests in good faith and in recognition that they must undertake some effort to find a workable solution.

The best way to start is with an interactive process with the affected employees to determine the precise contours of what they need.  Effective compromise often results from a reasoned discussion of what the employees and employer need.  After that, the employer should evaluate the impact of granting the accommodation.  While mere inconvenience is not a sufficient basis for denial, a real impact in terms of cost, safety, production or morale probably will be

Bottom Line:

The EEOC charges were just filed so there may be a long wait before anything develops in this case.  Still, this is a valuable reminder that with their increasingly diverse workforce, employers must listen to employees’ requests for religious accommodation and seek ways to grant those requests without burdening the business.

It may not be easy to satisfy both sides of the discussion, but a reasonable compromise is usually better than a pile of EEOC charges and possible litigation.

The post Cargill Case Is Battle of Prayer v. Production appeared first on Felhaber Larson.

Absolute Policies are Absolutely Wrong

Due to some personal medical issues, Fatima Salem, a nurse at Houston Methodist Hospital, took a leave of absence under the Family and Medical Leave Act (FMLA). She returned for a short time two months later but then needed to go back on leave, this time for a period that would exceed her remaining FMLA eligibility. This meant that she would also exceed the limits of the Hospital’s policy restricting any leave of absence to no more than six months. When Salem asked the Hospital to waive this policy in her case, they declined and ended up terminating her employment when she was not able to return to work within the requirements of the policy.

Salem filed a discrimination charge with the Equal Employment Opportunity Commission (EEOC) claiming that the application of the employer’s policy capping leaves of absence at six months was a failure to accommodate under the Americans with Disabilities Act (ADA).She also alleged that the corresponding termination violated the ADA as well. The EEOC agreed that the six-month limit on leaves violated the ADA because it created an artificial means of avoiding the employer’s duty to engage in an interactive process to see if a reasonable accommodation for the employee might be feasible. In other words, this one-size-fits-all policy is completely at odds with the individualized analysis that the ADA requires for all cases.

Based on the specific facts of the case, however, the EEOC also ruled that they were unable to conclude that the termination itself violated the ADA.

No Harm, No Foul

Salem subsequently marched right into federal court to sue the Hospital based on the same facts and offering the same arguments. Federal Judge Nancy Atlas also criticized the Hospital’s refusal to consider bending their six-month restriction on the duration of leaves.   Nonetheless, she concluded that the employer had not unlawfully failed to reasonably accommodate for one very simple reason – Salem had never demonstrated that any accommodation might be possible because she did not inform the Hospital of a date on which she might return.

Judge Atlas explained that had Salem offered a projected date for her possible return, the Hospital could have considered their options and determined whether they might be able to work around Salem’s absence until she was able to resume working. But, by asking only to be gone from work without indicating when she might be back, if ever, her request was tantamount to an indefinite leave of absence which the court considered unreasonable. Salem therefore was not permitted to take her case to trial and her claims were dismissed in their entirety.

Bottom Line

This decision is a very important reminder of how policies on leaves of absence should be enforced. Certainly, it is reasonable to maintain guidelines on how long leaves of absence may last. However, using those guidelines to inflexibly deny any medical leave that might exceed the limit invites liability under the ADA, which mandates individualized analysis of each case to determine whether a reasonable accommodation might be possible. Simply standing behind such a policy to decline a leave for an extra week or two, or even more depending upon the circumstances, flies in the face of the this requirement of individualized consideration.

As seen in this case, courts are increasingly unwilling to consider an indefinite leave of absence to be a reasonable accommodation. It is not at all uncommon for an employee to present a doctor’s note requesting a leave of absence for a specific period (three months, for example) at the end of which the employee will be reevaluated. When the reevaluation takes place, the employee returns with another note seeking three more months and another reevaluation, and so on and so on.

At some point, it becomes clear that such employees no longer are seeking leaves to permit them to return to work to perform the essential functions of their jobs.. Instead, they are just seeking to be gone and are unlikely ever to return. In such instances, the leave of absence is no longer reasonable and as this case demonstrates, courts are increasingly likely to support employers will who say enough is enough. The key for the employer, of course, is to know when to make that call and for this, inflexible standards are no substitute for an individualized evaluation of each and every situation that comes up.

The post Employer’s Policy Was Illegal But Enforcing it Was Not – Huh? appeared first on Felhaber Larson.

A patron at a bar smashes a beer mug across the face of someone seated nearby. A scene at the saloon in an old cowboy movie? No – just a casual dinner at Applebee’s in Coon Rapids, MN, a few weeks ago where the victim is said to have angered the offender by conversing with her family in Swahili, the victim’s native language.

Obviously, this is not an example of good problem-solving skills, especially in an environment where the offender could have chosen simply to get up and leave rather than commit a possibly felonious assault. But what if this had taken place in a workplace setting where an employee is not free to leave? Does the potential for this sort of conflict permit an employer to take precautions by requiring employees only to speak English at work?

English Only Rules

Probably not. Employer policies requiring that English be spoken at all times in the work place (commonly referred to unsurprisingly as “English Only” policies) tend to be viewed as national origin discrimination under Title VII by the courts and the Equal Employment Opportunity Commission (“EEOC”) if they are inflexibly enforced without regard to the particular circumstances. As a result, an employer cannot discipline two employees who, for example, choose to speak Spanish to each other at work, even if it makes a co-worker feel uncomfortable, excluded or even interested in smashing a mug across their faces.

On the other hand, employers may require employees to speak only English in the work place at certain times if the directive is justified by business necessity. The EEOC has explained in its Compliance Manual that an English Only policy is justified by business necessity “if it is needed for an employer to operate safely or efficiently.” The following examples may justify an English Only policy:

1. For necessary job-related communications with customers, coworkers, or supervisors who only speak English;
2. In emergencies or other situations in which workers must speak a common language to promote safety;
3. For cooperative work assignments in which the English-only rule is needed to promote efficiency; and
4. To enable a supervisor who only speaks English to monitor the performance of an employee whose job duties require communication with coworkers or customers.

Bottom Line:

In an increasingly diverse workforce, employees will frequently wish to converse with each other in their native language. As long as doing so does not impede production or interfere with necessary communication on the job, they should be allowed to do so.

The post English Only Rules and the Applebee’s Assault appeared first on Felhaber Larson.

But there was more.  The next day, Amelia Rayno, a sports writer for the Minneapolis Star Tribune, published a story recounting sexually aggressive behaviors she encountered from Teague, with whom she interacted regularly in her role as the beat reporter for U of M basketball.  Rayno had agreed to meet Teague for a drink, as she had done several times in the past in pursuit of information about Gopher sports.  She assumed that this would also be a discussion about basketball and U of M athletic department but, as Rayno reported, Teague grabbed at her, tried to put his arm around her and talked about their “chemistry.” Rayno said nothing to anyone about this incident at the time, but subsequent repeats of the behavior eventually led Rayno to seek out the Star Tribune Human Resources Department.

Rayno’s story described what is often referred to as “third party harassment”, i.e. harassing behavior endured by an employee at the hands of someone who does not work for the same company.  It might be a customer or client, a vendor, an independent contractor or a member of the general public.  Still, the behavior likely conflicts with the employer’s anti-harassment policy which usually promises protection against such behavior even if the perpetrator is employed by someone else.

Harassment Game Plan

In a typical harassment scenario involving two employees of the same company, the employer generally is not liable for the harassment unless they knew or should have known about the issue and then failed to take timely remedial action.  This remedial action could take the form of disciplinary action or even termination depending on the seriousness and frequency of the harassing behavior.  In addition, the employer might consider changing the offender’s work location or schedule to minimize further interaction with the complaining employee.  Other methods of persuasion might include a demotion, a salary reduction or additional training on appropriate workplace behavior.  Since the employer control’s the offender’s employment circumstances, they have a great many options from which to choose.

An employer’s menu of options for responding to a claim of third party harassment is much more limited because of the diminished ability to exercise control over the offender’s employment.  In some cases, the employer might be able to contact the offender’s employer to seek relief, or perhaps reassign their own employee to an account or location that eliminates their contact with the offending individual.

If these methods are not viable, or if they did not relieve the problem, the employer might have to consider discontinuing the relationship with the offender and the customer or vendor who assigned that individual to work with the company. In all such cases, the employer must try to minimize any actual impact on the complaining employee so as to avoid any appearance of reprisal for having raised the concern.  For example, if reassignment to a new account or location is to be considered, the employer should make sure that this does not represent a loss of pay, status or convenience for the complaining employee.

This can be tricky.  If the offending person is, or works for, the employer’s biggest customer, the harassed employee may not want to miss the opportunity of working on that account, and the employer may be wary losing the business.   Similarly, if the employee’s job absolutely requires interaction with the offender because that is what the employee was hired to do, the choices for how to respond to harassment may not be all that clear.

Response was a Slam Dunk

In Rayno’s situation, the Minneapolis Star Tribune’s response was a slam dunk.  Rayno reported that after informing the newspaper, they gave her several options:

• The company could contact Teague to demand that he cease the inappropriate behavior;
• They could contact Teague’s superiors to inform them of his behavior;
• They could switch her to a different (but presumably equally prestigious) beat; or
• They could accept Rayno’s request that she simply be allowed to wait to see if Teague’s behavior persisted.

Ultimately, the Star Tribune accepted Rayno’s request that they hold off on taking any further action so that she could continue covering Gopher basketball the way she wanted. Still, they let her know that they stood behind her and would carry the matter forward if need be. This fulfilled their legal obligation to protect her from harassment by a third party, but it also respected the employee’s desire not to impair her working relationship with her primary “customer.” In so doing, Rayno’s and the Star Tribune’s patience carried the day – Rayno’s work with U of M basketball continues but now without the burden of facing further inappropriate advances from Teague.

Bottom Line

Third party harassment cases can be nuanced and complex. Employers facing those challenges would be wise to follow the Star Tribune’s lead in making sure that your employees are protected against harassment regardless of its source and to take timely and appropriate action whenever such harassment shows itself.

The post Newspaper’s Response to Harassment Report Was a Winner appeared first on Felhaber Larson.

Background

Retail giant Abercrombie & Fitch maintains an employee dress code called the “Look Policy.”  In addition to specifying the style of clothes employees are required to wear, the Look Policy forbids black clothing and caps, though the term “cap” is not defined.  If an applicant needs an accommodation from its Look Policy, Abercrombie policy requires the interviewer to contact the Human Resources Department for approval.

In 2008, Samantha Elauf, a practicing Muslim, wore a hijab (a headscarf) in her interview. Elauf never mentioned her headscarf or a need for accommodation from the Look Policy.  The interviewer also did not mention the headscarf, though she contacted her district manager, who told her to lower Elauf’s rating on the appearance section of the application, which lowered her overall score and prevented her from being hired.

The Equal Employment Opportunity Commission (EEOC) sued Abercrombie, claiming that the company discriminatorily refused to hire Elauf because of her headscarf. Abercrombie responded that Elauf had a duty to inform the interviewer that she required an accommodation from the Look Policy and that the headscarf was not the expression of a sincerely held religious belief.

The lower court ruled in favor of the EEOC but the Tenth Circuit Court of Appeals reversed, concluding that Abercrombie did not have “actual knowledge” of Elauf’s need for a religious accommodation and therefore couldn’t be liable for failing to offer it.

Supreme Court Sides with the EEOC

Justice Scalia’s majority opinion declared that the employer does not need “actual knowledge” of the applicant’s need for a religious accommodation in order to violate Title VII.  Unlike the ADA, which requires accommodations for “known physical or mental limitations” (emphasis supplied), the Court noted that “Title VII contains no such limitation.” Instead, the key inquiry is the employer’s motives for the employment decision, and employers that suspect an applicant may need a religious accommodation violate Title VII when they act on that suspicion.

Even though actual knowledge is not required, the Court did say that some sort of knowledge (or at least a suspicion) that an accommodation is needed may be necessary to raise an inference of unlawful motive.  According to the Court:

[I]t is arguable that the motive requirement itself is not met unless the employer at least suspects that the practice in question is a religious practice—i.e., that he cannot discriminate “because of” a “religious practice” unless he knows or suspects it to be a religious practice.

Still, the Court concluded that Title VII requires more than mere “neutrality” regarding religious practices.  Instead, Title VII affirmatively requires employers to refrain from adverse action based on applicant’s or employee’s religious practices.

Bottom Line

Job applicants need only show that a possible need for accommodation was a motivating factor in the employment decision, even if there was no actual knowledge that an accommodation was needed. Employers therefore should avoid even the appearance that a concern for religious accommodation motivated an adverse employment decision.

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In EEOC v. Ford Motor Co., No. 12-2484 (6th Cir. April 22, 2014), the EEOC sued Ford Motor Company, who rejected a request by a “re-sale buyer” to telecommute as an accommodation for her disability.  Ford maintained that regular and predictable attendance was essential to be a fully functional member of the resale team, as evidenced by the employee’s three previous telecommuting stints, all of which failed miserably.

While EEOC showed that other re-sale buyers had been allowed to telecommute,  the appeals court observed that they only did so once a week and offered to come into the office on their telecommute days if needed.  In this instance, the employee sought four telecommuting days at her discretion and did not want to be required to report to the office on those days.

The court also noted that Ford had offered other accommodations (i.e. moving her desk closer to the bathroom and finding the employee another job more suitable for telecommuting), and that the employee herself admitted that she could not perform 4 of her 10 main job responsibilities from home and that her absences from work caused her to make mistakes.

Ultimately, the Sixth Circuit concluded that the re-sale buyer position was highly interactive and required extensive face-to-face interactions.  Therefore, physical attendance was an essential requirement of the job and that the employee therefore was not a qualified disabled person entitled to her requested accommodation.

Key Take Away

This decision sides with the majority of federal courts addressing this issue.  Bear in mind, however, that this decision did not determine that telecommuting is always unreasonable – it just ruled that it was not required in this particular case.

The Appeals Court gave significant weight to the fact that Ford attempted to accommodate Harris on numerous occasions, all of which failed or were rejected by Harris.  This is a signal that employers should continue to engage in the interactive process with disabled employees in an attempt to accommodate their disabilities.  While not required in the Ford case, telecommuting should certainly still be evaluated as one potential option depending on the specific job requirements.

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Background

Peggy Young’s doctor restricted her to lifting no more than 20 pounds during her pregnancy.  As a UPS driver, however, her job required that she be able to lift parcels weighing up to 70 pounds.

UPS did have several reserved “light-duty” jobs that could have accommodated Young’s restriction but by internal policy, these jobs were limited to three classes of employees:

• Those injured on the job,
• Those with disabilities as defined by the Americans with Disabilities Act, and
• Those who have lost their certification to drive commercial motor vehicles.

Since Young did not fall within any of these categories, UPS denied her a light duty position, leading her to sue UPS for violating the PDA.  UPS responded that its policy was “pregnancy-blind” in that the company’s limits on accommodation applied to everyone and did not single out pregnant workers for less favorable treatment.

The trial court granted UPS’s motion for dismissal and the U.S. Fourth Circuit Court of Appeals affirmed, leading to the Supreme Court’s review.

EEOC Issues Guidance Advocating Reversal

We reported in July 2014, that the Equal Employment Opportunity Commission (EEOC) issued Enforcement Guidance advocating that policies limiting light duty to workers injured on the job and/or to employees with disabilities under the ADA violate the PDA.  The Guidance contends that such policies ignore the PDA’s clear admonition that pregnant workers must be treated the same as non-pregnant workers similar in their ability or inability to work. Therefore, pregnant employees must be accommodated in the same manner as non-pregnant employees.

As a result, the case became a battle of two extremes – the EEOC Guidance contending that  pregnant employees must always be accommodated like other disabled employees, and UPS’s “pregnancy blind” policy that essentially excludes pregnant employees from such accommodations.  After all, the ADA excludes pregnancy from the definition of disability and it is highly unlikely that an employee would become pregnant on the job.

Supreme Court Forges Middle Ground

As is often the case, the U.S. Supreme Court took the middle ground in ruling that a “pregnancy-blind” policy may violate the PDA where a plaintiff can show that the policy “impose[s] a significant burden on pregnant workers, and that the employer’s ‘legitimate, nondiscriminatory’ reasons are not sufficiently strong to justify the burden . . . .”  According to the Court, a plaintiff can make such a showing where she can show that “the employer accommodates a large percentage of non-pregnant workers while failing to accommodate a large percentage of pregnant workers.”

The Court rejected Young’s (and EEOC’s) argument, expressing doubt that the PDA was intended to “grant pregnant workers an unconditional most-favored-nation status.”  In fact, they rejected outright the idea that the PDA requires pregnant employees to be treated the same as other people.

However, the Court also rebuffed UPS’s position that so-called “pregnancy-blind” policies are immune from PDA scrutiny.  The Court explained that an employee could still claim that denial of an accommodation constituted discriminatory treatment under the PDA, requiring that the employer defend with “legitimate, nondiscriminatory” reasons for denying the accommodation.  The Court made it very clear that such reasons must be more than simple claims that the accommodations would be expensive or less convenient.  For this reason, the Court suggested that a pregnant employee could prevail by showing that “the employer accommodates a large percentage of non-pregnant workers while failing to accommodate a large percentage of pregnant workers.”

The Court remanded the case back to the lower court to determine whether Young came forward with sufficient evidence that UPS’s policy violated the PDA.

Bottom Line

The Court’s decision can be viewed as a win for both sides.  On the one hand, employers can no longer rely on “pregnancy-neutral” policies to avoid liability under the PDA.  On the other, the EEOC’s position that all such policies violate the PDA must go back to the drawing board.

While this case is significant generally, Minnesota employers are less affected by it for two reasons: (1) the Minnesota Human Rights Act has required accommodation of pregnancy for many years; and (2) the recently enacted Women’s Economic Security Act extended that protection to require certain accommodations even in the absence of a doctor’s note.

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While the new Guidance does not have the force of formal regulations, employers should be aware that the EEOC will be actively prosecuting cases in accordance with the new Guidance. For Minnesota employers, the new Guidance comes on the heels of the Women’s Economic Security Act, which requires employers to provide pregnant employees with certain accommodations even in the absence of a doctor’s note.

“Fundamental Requirements” of the PDA

The Guidance begins with what the EEOC considers to be the two “fundamental requirements” of the PDA: (1) an employer may not discriminate against an employee on the basis of “pregnancy, childbirth, or related medical conditions” and (2) women affected by those conditions must be “treated the same as other persons not so affected but similar in their ability or inability to work.” These tenets are the basis for the EEOC’s guidance.

Expansive PDA Coverage

The first question addressed by the EEOC Guidance is what constitutes “pregnancy, childbirth, and related medical conditions” under the PDA. Throughout the years, various lawsuits have raised questions of whether discrimination on the basis of contraceptive coverage, infertility, and lactation fall within the purview of the PDA.

The Guidance takes the position that Title VII, as amended by the PDA, prohibits discrimination based on current pregnancy, past pregnancy, potential or intended pregnancy, and medical conditions related to pregnancy. While an employer is not liable for pregnancy discrimination if the woman’s condition was neither revealed nor obvious, it is liable for adverse decisions based on stereotypes or assumptions about a pregnant woman’s capacity to work, as well as for decisions motivated by a past pregnancy. According to the Guidance, even before a pregnancy occurs, employers cannot discriminate on the basis of potential pregnancy or reproductive risk.  The Guidance also makes clear that employers cannot discriminate on the basis of a woman’s intentions to become pregnant.

The Guidance also weighs in on prescription contraceptives.  Specifically, because prescription contraceptives are available only for women, the Guidance states that an employer’s explicit refusal to offer insurance coverage for them constitutes unlawful sex discrimination.  In addition, although the PDA expressly states that employers do not have to provide insurance coverage for abortion, the Guidance states that “Title VII protects women from being fired for having an abortion or contemplating having an abortion.”  The Guidance also states that “it would be unlawful for a manager to pressure an employee to have an abortion, or not to have an abortion, in order to retain her job, get better assignments, or stay on a path for advancement.”

“Equal Treatment” Prohibits “Discriminatory” Light Duty Jobs

The second key issue addressed by the Guidance relates to an employer’s failure to accommodate pregnancy-related incapacity despite accommodating similar incapacity for at least some other workers. For example, an employer may have several light duty positions that it offers to employees who are injured on the job, but not to any other employees. While some courts have considered such a policy violative of the PDA’s command to treat pregnant employees “the same . . . as other persons not so affected,” other courts have found such policies to be lawful.

For example, in Young v. United Parcel Service, Inc., 707 F.3d 437 (4th Cir. 2013), UPS had a policy limiting light duty to: (a) employees injured on the job, (b) employees who have disabilities within the meaning of the ADA, and (c) employees who have lost their certification to drive commercial motor vehicles. UPS denied a light duty position to a pregnant employee who had a lifting restriction during her pregnancy. The court noted that the policy was “pregnancy blind” and refused to transform “an antidiscrimination statute into a requirement to provide accommodation to pregnant employees, perhaps even at the expense of other, nonpregnant employees.” Earlier this month, the Supreme Court agreed to review the case.

While the Supreme Court will ultimately determine whether a “pregnancy blind” policy is lawful under the PDA, the EEOC Guidance takes the position that Young should be overturned:

The Commission rejects the position that the PDA does not require an employer to provide light duty for a pregnant worker if the employer has a policy or practice limiting light duty to workers injured on the job and/or to employees with disabilities under the ADA. . . . This analysis is flawed because it rejects the PDA’s clear admonition that pregnant workers must be treated the same as non-pregnant workers similar in their ability or inability to work.

Instead, the EEOC Guidance concludes:

An employer may not refuse to treat a pregnant worker the same as other employees who are similar in their ability or inability to work by relying on a policy that makes distinctions based on the source of an employee’s limitations (e.g., a policy of providing light duty only to workers injured on the job).

The EEOC does make clear that the employer can require the employee to follow the same set of procedures as well as evaluate the pregnant employee’s request for a reasonable accommodation in the same manner that it evaluates other potential accommodations:

[A] pregnant worker who needs changes in her duties or schedule would be responsible for conveying the request to her supervisor and for providing reasonable documentation of her limitations if this is what the employer requires of employees who seek workplace changes for reasons other than pregnancy. Similarly, if a pregnant worker requests a change that the employer is providing as a reasonable accommodation to a co-worker with a disability, the employer may evaluate the pregnant employee’s request in light of whether the change would constitute an “undue hardship,” since this would amount to treating the pregnant employee the same as an employee with a disability whose accommodation request would also be subject to the defense of undue hardship.

In summary, under the new EEOC Guidance, an employer that offers such light duty accommodations is required to provide a pregnant employee with a similar light duty accommodation, despite the fact that the employee’s inabilities are related solely to her pregnancy and have no relation to the workplace and may not even qualify as a medical disability. In fact, the EEOC specifically states that light-duty programs that are restricted to workers injured on the job violate the PDA.

Bottom Line

The take-away for employers is two-fold. First, employers should consider carefully all actions that may be taken, or not taken, if an employee situation involves pregnancy.  Second, employers that have a light duty program that is limited to employees who have work-related injuries may want to re-consider this policy – at least until the Supreme Court issues its decision in Young.

The post EEOC Announces Tougher Rules Protecting Pregnant Workers appeared first on Felhaber Larson.

Prior to the moratorium, the OFCCP asserted jurisdiction over health care providers that entered into subcontracts to provide medical services on behalf of TRICARE, the U.S. Department of Defense’s healthcare program for military personnel and their families. According to the OFCCP, health care providers’ contractual relationship with a TRICARE administrator rendered them “federal subcontractors” subject to OFCCP oversight. Health care providers, however, vigorously contested the OFCCP’s oversight, arguing that their TRICARE subcontracts did not cause them to become covered subcontractors.

OFCCP to Spend Next 5 Years  Educating TRICARE Subcontractors

In DIR 2014-01 – TRICARE Subcontractor Enforcement Activities, the OFCCP announced the five-year moratorium and the OFCCP’s plan to focus on “outreach and technical assistance to educate [the] TRICARE subcontractor community about their affirmative action obligations.” During this time, the OFCCP also will attempt to clarify who is a covered subcontractor by “working with other federal agencies.”

While the OFCCP will continue to investigate complaints of discrimination, all enforcement related to affirmative action programs and recordkeeping will cease, effective immediately, for the next 5 years. The OFCCP will administratively close any open cases within 30 business days. If a TRICARE subcontractor receives a desk-audit letter from the OFCCP, the entity should send a copy of its agreement to participate in the TRICARE program along with a written request to administratively close the audit to the local OFCCP office.

Bottom Line

Health care providers who are currently subject to an OFCCP audit solely because they are a TRICARE subcontractor are “off the hook.” Moreover, during the next five years, the OFCCP will not initiate any audits of TRICARE subcontractors. During the moratorium, TRICARE subcontractors should pay careful attention to the OFCCP’s “outreach and technical assistance” as the assistance will likely foreshadow the OFCCP’s post-moratorium definition of a subcontractor.

Stay tuned for further developments.

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An employer that exercises particularly aggressive interrogation tactics during internal investigations risks later allegations of intimidation and coercion by the employees who were interviewed. For example, auto parts retailer AutoZone has been subject to a series of lawsuits in recent years brought by former employees claiming that they were pressured into providing false confessions due to the intimidating interrogation techniques allegedly used by the company, as recently reported in the New York Times. Legal claims in lawsuits like these may include false imprisonment, invasion of privacy, defamation, and negligent or intentional infliction of emotional distress, among others.

To reduce the risk of allegations of coercion, employers should keep the following practical considerations in mind when conducting interviews during investigations of employee misconduct:

• Use a trained investigator or HR employee to conduct interviews.

• Define the scope of the investigation in advance of any interviews, and consider preparing an outline of the information sought.

• No matter how sound the “evidence” may be, always interview the alleged wrongdoer and give him or her an opportunity to respond to the allegations.

• Ask the employee to come with you for the interview, but if possible, do not order him or her to do so.

• Do not make threats in general or threaten to call the police if the employee is not cooperating or refuses to answer. But, if the employee does refuse to cooperate, you may tell the employee that you will draw your own conclusions without the employee’s input.

• Advise the employee at the outset that he or she is free to leave the interview at any time.

• If appropriate, consider having a second person attend to serve as a witness. However, keep in mind that having too many people present may increase the interviewee’s perception of intimidation.

• Union employees have the right to have a steward present during an investigative interview that could lead to discipline of the employee being interviewed.

• Interview any witnesses identified by either side; do not selectively interview only the witnesses identified by one side but not the other.

• Exercise caution when using recording devices. Federal and state law restrict the use of audio and video recording in certain circumstances. In Minnesota, for example, audio recording is lawful if one party to the conversation consents. Likewise, an employer may utilize video (but not necessarily audio) surveillance except in those areas where employees have a reasonable expectation of privacy. Note: Surveillance is a mandatory subject of bargaining, so employers with union employees may not unilaterally impose video surveillance.

In addition to these practical tips, employers should be very careful when instructing employees to keep investigations confidential. In Banner Health System, 358 NLRB 93 (2012), the National Labor Relations Board held that blanket policies prohibiting employees from discussing ongoing investigations violate the National Labor Relations Act as a matter of law. Instead, employers must determine whether confidentiality is required on a case-by-case basis based on certain considerations, including whether the witnesses may need protection, evidence is in danger of being destroyed, testimony is in danger of being fabricated, or there is a need to prevent a “cover up.”

Bottom Line

Be well prepared before conducting interviews during investigations of employee misconduct. In addition, avoid using intimidating and threatening interrogation techniques. While internal investigations are commonplace and necessary, employers can avoid decreased morale and increased litigation by conducting such investigations reasonably and fairly.

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