Showing posts with label EEOC. Show all posts
Showing posts with label EEOC. Show all posts

Wednesday, January 4, 2017

THE $300,000 FLU SHOT


While getting a flu shot may result in a temporarily sore arm, a Pennsylvania hospital is feeling some significant financial pain in its bank account after settling a lawsuit over its mandatory flu shot policy. 
As first reported here back in October 2016, the Equal Employment Opportunity Commission (“EEOC”) has filed lawsuits nationwide against healthcare facilities which require that their employees receive seasonal flu vaccines.  The EEOC’s position is that such policies violate Title VII of the Civil Rights Act (“Title VII”) by failing to accommodate the religious beliefs of healthcare employees.
 
As previously reported, one of the hospitals being sued by the EEOC was Pennsylvania-based Saint Vincent Health Center.  On December 23, 2016, Saint Vincent agreed to settle the EEOC lawsuit for $300,000, which includes back pay and compensatory damages to six former employees who were fired for failing to comply with the hospital’s policy.  The settlement also requires offers of reinstatement to the six employees, and includes a consent decree requiring injunctive relief.
To recap the facts of the lawsuit, the EEOC alleged that in October 2013, Saint Vincent implemented a mandatory seasonal flu vaccination requirement for its employees unless they were granted an exemption for medical or religious reasons. Under the policy, employees who received an exemption were required to wear a face mask while having patient contact during flu season in lieu of receiving the vaccination. Employees who refused the vaccine but were not granted an exemption by the Health Center were fired. 

From October 2013 to January 2014, the six employees identified in the EEOC’s lawsuit t requested religious exemptions from the flu vaccination requirement based on sincerely held religious beliefs, and the Health Center denied their requests. When the employees continued to refuse the vaccine based on their religious beliefs, they were terminated. In its lawsuit, the EEOC stressed that during the same period, the hospital granted fourteen (14) vaccination exemption requests based on medical reasons while denying all religion-based exemption requests.

Under the consent decree, if Saint Vincent chooses to require employee influenza vaccination as a condition of employment, it must grant exemptions from that requirement to all employees with sincerely held religious beliefs who request exemption from the vaccination on religious grounds unless such exemption poses an undue hardship on the Health Center's operations, and it must also notify employees of their right to request religious exemption and establish appropriate procedures for considering any such accommodation requests.
The decree also requires that when considering requests for religious accommodation, the Health Center must adhere to the definition of "religion" established by Title VII and controlling federal court decisions, a definition that forbids employers from rejecting accommodation requests based on their disagreement with an employee's belief; their opinion that the belief is unfounded, illogical, or inconsistent in some way; or their conclusion that an employee's belief is not an official tenet or endorsed teaching of any particular religion or denomination. The decree further requires that Saint Vincent provide training regarding Title VII reasonable accommodation to its key personnel and that it maintain reasonable accommodation policies and accommodation request procedures that reflect Title VII requirements.

Does this mean mandatory vaccination policies at healthcare facilities are prohibited?  According to the EEOC’s Philadelphia District regional attorney, Debra M. Lawrence:
While Title VII does not prohibit health care employers from adopting seasonal flu vaccination requirements for their workers, those requirements, like any other employment rules, are subject to the employer's Title VII duty to provide reasonable accommodation for religion.  In that context, reasonable accommodation means granting religious exemptions to employees with sincerely held religious beliefs against vaccination when such exemptions do not create an undue hardship on the employer's operations.

However, reasonably accommodating healthcare employees who have direct contact with patients may be easier said than done.  According to the Centers for Disease Control and Prevention, the flu is highly contagious and people with flu can spread it to others up to about 6 feet away. Most experts think that flu viruses are spread mainly by droplets made when people with flu cough, sneeze or talk. These droplets can land in the mouths or noses of people who are nearby or possibly be inhaled into the lungs. Less often, a person might also get flu by touching a surface or object that has flu virus on it and then touching their own mouth or nose. 
While the effects of the flu on most people are not life-threatening, the CDCP notes that severe cases of the flu can result in death for some people, such as the elderly, young children, and persons with certain health conditions, including weakened immune systems.  The consent decree does allow Saint Vincent to adopt on-the-job precautions to avoid the transmission of the flu to its patients by employees who have been granted a religious exemption.




Tuesday, December 20, 2016

EMPLOYMENT LAW AND A NEW ADMINISTRATION

 

One of the biggest employment law developments of 2016 will carry over into 2017 and a new administration.  Employers nationwide spent much of the past year preparing for the December 1, 2016 implementation of the Department of Labor’s (“DOL”) Final Rule, bumping the minimum salary level for white collar exemptions under the Fair Labor Standards Act ("FLSA") from $23,660 annually ($455 per week) to $47,476 annually ($913 per week).  However, just days before this key initiative of the Obama administration was to go into effect, a federal judge in Texas issued a nationwide preliminary injunction, finding the DOL had likely exceeded its authority under the FLSA. While breathing a sigh of relief, employers were left wondering what would happen next.
Current Labor Secretary Thomas Perez has since appealed the decision to the U.S. Court of Appeals for the Fifth Circuit, seeking expedited review.  However, even under the expedited briefing schedule set by the Fifth Circuit, oral argument would not take place until at least February 2017, which would be after Donald Trump takes office.  This would allow the DOL, under Trump’s expected Labor Secretary Andy Puzder, to abandon the appeal.  Puzder, who is the current CEO of the parent company of Hardee’s and Carl’s Jr., has gone on record as to his strong opposition to the DOL’s overtime rule. 
My first prediction of 2017 is the Final Rule and its increased minimum salary requirement never goes into effect. Not surprisingly, Puzder also opposes efforts to increase the minimum hourly wage to $15, claiming such a significant increase would hasten the move to automation in the fast food industry and cost jobs.
In these waning days of 2016, the Equal Employment Opportunity Commission (“EEOC”) offered guidance to employers as to the rights of employees with mental illnesses under the Americans with Disabilities Act, and issued updated enforcement guidelines on national origin discrimination, including question and answer guidance and advice for small businesses.  Generally, national origin discrimination refers to: (a) treating an individual less favorably because he or she is from a certain place or has the physical, cultural, or linguistic characteristics of a particular national origin (ethnic) group; or (b) using an employment policy or practice that disproportionately impacts people on the basis of national origin and is not shown to be job related and consistent with business necessity. 
President Trump also will be putting his stamp on the EEOC.  As previously reported,  over the last eight years, the EEOC has taken a very aggressive posture toward employers, including lawsuits against companies over criminal background checks and separation agreements.  The EEOC’s actions and litigation conduct earned it some harsh words and harsh rulings from a number of federal courts. 
President Trump will select a new EEOC Chairman and a new EEOC General Counsel in 2017, both of whom will set the tone and agenda of the agency going forward.  With the Trump administration’s focus on reducing regulations faced by businesses, one target could be recent major revisions to the Employer Information Report (EEO-1).  With a focus on equal pay issues, the new form will require employers to list employee pay and hours by categories of sex, race and ethnicity.  The regulations are slated to go into effect in March 2018, but under a new administration, could be revised or even abandoned.


Thursday, October 27, 2016

EMPLOYMENT LAW "SOUP OF THE DAY"


 
Welcome to another serving of "Employment Law Soup of the Day", where we look at the sometimes less than appetizing developments facing employers and HR professionals.  Topping the menu today is the Occupational Safety and Health Administration's ("OSHA") new position regarding mandatory drug/alcohol testing of employees  following involvement in a work-place accident.

It’s a very common practice among many employers to require such mandatory testing following an accident or injury, and it is usually spelled out in their drug/alcohol testing policies.  Employers also frequently require such mandatory testing as part of their workers’ compensation coverage, because in most states, being intoxicated or impaired at the time of a workplace accident can bar an employee’s entitlement to benefits.  The fact that such a neutral policy applies to anyone who is involved in an accident also removes the risk of claims of discriminatory testing.  It is also common sense that employers would want to know if an employee’s drug or alcohol use caused or contributed to a workplace accident.
However, under new anti-retaliation provisions in its new injury and illness tracking rule, OSHA has taken the position that such mandatory or “blanket” post-accident testing can discourage employees from reporting accidents and can be considered an illegal act of retaliation unless the employer had an “objectively reasonable basis for testing” under the individualized circumstances of the accident. As stated in guidelines issued on October 19, 2016:

When OSHA evaluates the reasonableness of drug testing a particular employee who has reported a work-related injury or illness, it will consider factors including whether the employer had a reasonable basis for concluding that drug use could have contributed to the injury or illness (and therefore the result of the drug test could provide insight into why the injury or illness occurred), whether other employees involved in the incident that caused the injury or illness were also tested or whether the employer only tested the employee who reported the injury or illness, and whether the employer has a heightened interest in determining if drug use could have contributed to the injury or illness due the hazardousness of the work being performed when the injury or illness occurred. OSHA will only consider whether the drug test is capable of measuring impairment at the time the injury or illness occurred where such a test is available. Therefore, at this time, OSHA will consider this factor for tests that measure alcohol use, but not for tests that measure the use of any other drugs. The general principle here is that drug testing may not be used by the employer as a form of discipline against employees who report an injury or illness, but may be used as a tool to evaluate the root causes of workplace injuries and illness in appropriate circumstances.

 Enforcement of the anti-retaliation provisions was to have gone into effect in August 10, 2016, but OSHA has now delayed enforcement until December 1, 2016 to allow a federal court in Texas to rule on a legal challenge to the anti-retaliation restrictions involving post-accident testing. The suit seeks to block enforcement while the lawsuit is pending.  The Employee with the Dragon Tattoo will be following the case and will keep you updated.

Next on the menu is the Equal Employment Opportunity Commission’s (“EEOC”) five-year plan or more specifically, its Strategic Enforcement Plan 2017 – 2021 (“SEP 2017-2021”), which it unveiled earlier this month.  In its earlier Strategic Enforcement Plan 2013 -2016, the EEOC outlined its investigation, enforcement and litigation strategies and states the following nationwide priorities: (1) eliminating barriers in recruitment and hiring, (2) protecting immigrant, migrant and other vulnerable workers, (3) addressing emerging and developing issues, (4) enforcing equal pay laws, (5) preserving access to the legal system, and (6) preventing harassment through systemic enforcement and targeted outreach.

In addition to its earlier stated priorities, the EEOC says its SEP 2017-2012 will focus on alleged backlash discrimination against those who are Muslim or Sikh, or persons of Arab, Middle Eastern or South Asian descent, as well as persons perceived to be members of these groups, referencing terrorist attacks in the United States and abroad which the EEOC believes have increased the likelihood of discrimination against these communities.  The EEOC also will target what it perceives as a lack of diversity in the technology industry, as well as “issues related to complex employment relationships in the 21st century workplace”, such as temporary workers, , independent contractor issues, and the on-demand or “gig” economy.

Lastly, a follow-up on an interesting religious discrimination case I first reported on back in 2014, involving a belief system called “Onionhead”.  The EEOC sued a New York-based health network on behalf of ten employees, for allegedly coercing the employees to participate in religious practices and terminating those employees who objected or did not participate fully.  According to the EEOC, the Onionhead religion “included group prayers, candle burning, and discussions of spiritual texts. The religious practices are part of a belief system that the defendants' family member created, called Onionhead. Employees were told to wear Onionhead buttons, put Onionhead cards near their work stations and keep only dim lighting in the workplace.  The company in turn argued that Onionhead was not a religion, but was simply a cartoon character used to develop workplace problem solving and conflict resolution skills, and to improve communication and foster teamwork. 

As I noted back in my original article, if a client approached me about implementing such a program in the workplace, I would consider it “just asking for trouble” and would strongly advise against it.  Under Title VII’s prohibition against religious discrimination, the definition of a religion is construed very broadly, and as described, the Onionhead program appeared to carry many of the trappings of a religious belief, including images of the cartoon character “Onionhead” surrounded by cartoon angels.

Well, on September 30, 2016, a New York federal district court Judge granted the EEOC’s motion for partial summary judgment as to the specific issue of whether the Onionhead beliefs constituted a religion.  In a 102 page opinion, the district court ruled that for purposes of Title VII, Onionhead was a religion, allowing the case to proceed to trial.  Reportedly, the employer is seeking to have the district court judge reconsider her decision, while the EEOC argues the employer’s proposed motion for reconsideration would be futile and result in undue delay of the trial.

While the Onionhead lawsuit is not your ordinary “failure to accommodate” religious discrimination case, it serves as a warning of the need for proper training of supervisors, especially in light of the recent Supreme Court decision in EEOC v. Abercrombie & Fitch Stores, Inc.  Until the next “Employment Law Soup of the Day”, bon appétit!


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Sunday, October 16, 2016

U.S. SUPREME COURT PASSES ON WEIGHTY ISSUE OF OBESITY AS A DISABILITY UNDER THE ADA





The United States Supreme Court has declined to hear an appeal of a decision by the Court of Appeals for the Eighth Circuit, which held that that an obese job applicant was not disabled for purposes of a lawsuit under the Americans with Disabilities Act ("ADA"). By declining to hear the case, the Supreme Court left unresolved an issue splitting federal courts, and leaving employers without guidance as to reasonable accommodations and other requirements under the ADA.
 
Obesity is a subject most employers are likely to face. According to the Centers for Disease Control and Prevention ("CDCP"), more than one-third (36.5%) of U.S. adults qualify as obese (my home state has unfortunately once again tied for the silver medal in this competition). This has a significant impact on employee health-related costs. Obesity-related conditions include heart disease, stroke, type 2 diabetes and certain types of cancer, some of the leading causes of preventable death. The CDCP estimates that the annual medical cost of obesity in the U.S. is $147 billion, and the medical costs for people who are obese are $1,429 higher than those of normal weight.

The story of Morriss v. BNSF Railway Company began in 2011. Melvin Morriss applied for a machinist position with BNSF Railway Company ("BNSF"), and was extended a conditional offer of employment. Because the position was safety sensitive, however, the offer of employment was contingent on a satisfactory medical review.

BNSF doctors conducted two physical examinations of Morriss, who was 5’10" tall. In the first, Morriss weighed 285 pounds and had a body mass index ("BMI") of 40.9. In the second, he weighed 281 pounds and had a BMI of 40.4. BNSF’s policy was not to hire a new applicant for a safety-sensitive position if his BMI equaled or exceeded 40. The company notified Morriss by e-mail that he was "[n]ot currently qualified for the safety sensitive Machinist position due to significant health and safety risks associated with Class 3 obesity ([BMI] of 40 or greater)", and revoked its conditional offer of employment. Other than being overweight, Morriss had no other health problems, was not diabetic, and experienced no difficulties or limitations in his daily activities.

Morriss filed a lawsuit under the ADA, which was dismissed by a Nebraska federal District Court, which held that Morriss had failed to provide any evidence that his obesity was an actual disability under the ADA. The court first noted that to succeed on this claim, Morriss was required to show that his obesity was a physical impairment, defined under the ADA as a physiological disorder or condition that affects a major body system. Morriss appealed the decision to the United States Court of Appeals for the Eighth Circuit.
 
Prior to the ADA Amendments Act of 2008 ("ADAAA"), the Equal Employment Opportunity Commission ("EEOC") took the position that "except in rare circumstances, obesity is not considered a disabling impairment." However, after enactment of the ADAAA, the EEOC broadened the definitions of what constituted a disability, and concluded that weight outside the normal range, that was the result of a physiological disorder, constituted a disability.
 
However, despite the ADAAA’s more expansive definitions, on appeal, the Eighth Circuit’s opinion rejected Morriss’s arguments, and affirmed the District Court’s holding:  


"Morriss contends that his obesity, in and of itself, is a physical impairment because it has been labeled ‘severe,’ ‘morbid,’ or ‘Class III’ obesity. This contention garners no support from the EEOC regulations, which state that weight is merely a physical characteristic—not a physical impairment—unless it is both outside the normal range and the result of an underlying physiological disorder.


As previously noted, Morriss has provided no evidence to prove that his obesity is the result of a physiological disorder, and so he instead cites the EEOC Compliance Manual, which states that, while ‘normal deviations’ in weight ‘that are not the result of a physiological disorder are not impairments[,] . . . [a]t extremes, . . . such deviations may constitute impairments.’ The Compliance Manual also states that ‘severe obesity,’ namely, ‘body weight more than 100% over the norm,’ is an impairment. We first note that this Compliance Manual pronouncement directly contradicts the plain language of the Act, as well as the EEOC’s own regulations and interpretive guidance, which, as previously explained, all define ‘physical impairment’ to require an underlying physiological disorder or condition.


In sum, we conclude that for obesity, even morbid obesity, to be considered a physical impairment, it must result from an underlying physiological disorder or condition. This remains the standard even after enactment of the ADAAA, which did not affect the definition of physical impairment. Because Morriss failed to produce evidence that his obesity was the result of an underlying physiological disorder or condition, the district court properly concluded that Morriss did not have a physical impairment under the ADA."


The Eighth Circuit is not the first U.S. appellate court, post ADAAA, to require that obesity or morbid obesity must be caused by a physiological condition to be considered a disability. See EEOC v. Watkins Motor Lines, Inc., 463 F.3d 436 (6th Cir. 2006).

However, federal courts have ruled otherwise, and held that severe obesity, in of itself, is enough to constitute a disability under the ADA, as amended by the ADAAA.   The case of   EEOC v. Res. For Human Dev., Inc., 827 F.Supp. 2d 688 (E.D. La. 2011) involved a woman named Lisa Harrison, who worked as a prevention / intervention specialist at a non-profit Louisiana addiction treatment facility. In its suit, the EEOC charged the facility violated the ADA when it fired Harrison because of her severe obesity, even though she was able to perform the essential functions of her job.  Before the EEOC filed suit, Harrison died.  In denying the employer’s summary judgment motion to dismiss the case, and sending it to trial, the District Court’s opinion held that:


"A careful reading of the EEOC guidelines and the ADA reveals that the requirement for a physiological cause is only required when a charging party's weight is within the normal range. 29 C.F.R. § 1630.2(h). However, if a charging party's weight is outside the normal range that is, if the charging party is severely obese there is no explicit requirement that obesity be based on a physiological impairment. At all relevant points, Harrison was severely obese; when she was hired, she weighed in excess of 400 pounds, and when she was terminated, she weighed in excess of 500 pounds."

However the case never went to trial. Following the District Court’s ruling against the employer, the addiction treatment facility settled with the EEOC for $125,000.

So after the Supreme Court’s decision to not review the Eighth Circuit ruling in Morriss, where does this leave employers? First of all, employers should not consider the Morriss ruling to mean that obesity can never be a disability under the ADA. As in all such cases, a determination of whether an employee has a covered disability requires an individualized assessment of the particular facts and circumstances. However, the ruling by the District Court in Louisiana also should be troubling to employers, because under that interpretation, more than a third of the adults in this country could conceivably be considered disabled, based on the CDCP’s statistics. Expect to see the Supreme Court forced to weigh-in on this issue in the future. 


Sunday, October 2, 2016

EEOC PAYS SETTLEMENT FOR VIOLATING OVERTIME RULES AND THE NLRB PAYS THE PRICE FOR “ADMINISTRATIVE HUBRIS”


Welcome back to another episode of “Federal Employment Agencies Behaving Badly” and in this week’s episode, we’ll start off with the Equal Employment Opportunity Commission (“EEOC”), the federal agency tasked with enforcing the nation’s anti-discrimination laws.  While the EEOC does not enforce the Fair Labor Standards Act (“FLSA”) and the laws regarding overtime pay, it is required to comply with the FLSA as it relates to the agency’s own employees. As a reminder of this fact, the EEOC has now agreed to pay a $1.53 Million settlement for failing to properly pay overtime to its employees.
The case began back in 2006, and in 2009, an arbitration ruling found the EEOC had violated the FLSA by requiring investigators, mediators and paralegals to work during lunch hours, on weekends, or after hours, and then forcing them to accept compensatory time instead of the overtime pay they were entitled to for their overtime errors.  EEOC employees described what they were subjected to as “forced volunteering.”  The ruling held:
There is an entitlement to overtime, whereas compensatory time operates as an alternative, should the employees request it . . .  Put another way, it is incorrect to view the FLSA as providing non-exempt employees with the option of selecting either overtime or compensatory time. The right is to overtime; compensatory time is the option.”

The arbitration ruling seven years ago urged the EEOC and the union representing the federal employees to reach a settlement, however, an agreement was not reached until September 22, 2016. 
Despite the settlement, the union was critical of the EEOC’s role in the long delay toward resolving the dispute.  According to National Council of EEOC Locals, No. 216 President Gabrielle Martin “It has been very frustrating to employees that this case has gone on for a decade during which employees retired or unfortunately passed away . . . It is a sad irony that the agency charged with preventing discrimination against workers violated the rights of its employees.”
Our next segment deals with the National Labor Relations Board (“NLRB”), which is the federal agency charged with enforcing U.S. labor law and investigating and remedying unfair labor practices.  A federal appeals court judge has now ordered the agency to pay a company nearly $18,000.00 in legal fees for engaging in “bad faith litigation” and engaging in “administrative hubris”
In Heartland Plymouth Court MI, LLC v. NLRB, a company sought legal fees after it had successfully appealed an NLRB ruling that incorrectly found the company had violated a collective bargaining agreement by reducing employee hours.  In the opinion, Judge Janice Rogers Brown of the United States Court of Appeals for the D.C. Circuit found that the NLRB had taken positions unsupported by the law, which placed the employer in the untenable position of having to incur the costs of an unjustified settlement demand, or the legal costs of appealing the NLRB’s improper ruling:
  Facts may be stubborn things, but the Board’s longstanding “nonacquiescence” towards the law of any circuit diverging from the Board’s preferred national labor policy takes obduracy to a new level. As this case shows, what the Board proffers as a sophisticated tool towards national uniformity can just as easily be an instrument of oppression, allowing the government to tell its citizens: “We don’t care what the law says, if you want to beat us, you will have to fight us.”  It is clear enough that the Board’s conduct was intended to send a chilling message to Heartland, as well as others caught in the Board’s crosshairs.
 
Let the word go forth: for however much the judiciary has emboldened the administrative state, we “say what the law is.” In other words, administrative hubris does not get the last word under our Constitution. And citizens can count on it.
 

A MESSAGE TO READERS OF "THE EMPLOYEE WITH THE DRAGON TATTOO"  

 A reader of this blog recently asked if she could be included on an e-mail list for new posts.  I currently do not have an e-mail service but it seems like an excellent idea and I will be setting it up in the very near future.  If you would like to be included, please send your name, your company, and your e-mail to me at fijmanm@phelps.com.  Thanks! 



Saturday, September 24, 2016

THE EEOC GETS A DREAD (LOCKS) RULING


Back in October 2013, The Employee With The Dragon Tattoo told you about how the Equal Employment Opportunity Commission ("EEOC") had filed suit against Catastrophe Management Solutions Inc. (“CMSI”), an Alabama based insurance claims company.  The lawsuit alleged the company violated Title VII of the Civil Rights Act by discriminating against an African-American job applicant on the basis of race because she wore dreadlocks. The case highlighted the employment issues that can arise over workplace grooming policies, and also sparked sharp criticism against the EEOC’s position from the business community, as well as on the pages of the Wall Street Journal.
 
However, in a recent ruling, the U.S. Court of Appeals for the Eleventh Circuit has upheld the employer’s workplace ban on dreadlocks and rejected the EEOC’s hard-edged position that a mutable choice, such as hairstyle, equals an immutable trait such as race.
 
The case began back in 2012.  Chastity Jones was offered a position with CMSI as a customer service representative. At the time of her interview, Jones, who is black, had blond hair that was dreaded in neat curls, or “curllocks.” CMSI’s grooming policy required employees 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]airstyles should reflect a business/professional image.  No excessive hairstyles or unusual colors are acceptable.”  When the manager in charge told Jones that the company did not allow dreadlocks and that she would have to change her hairstyle in order to obtain employment. Jones declined to do so, and the manager immediately rescinded the job offer.
 
In the lawsuit, the EEOC argued that CMSI’s ban on dreadlocks and the imposition of its grooming policy on Jones discriminated against African-Americans based on physical and/or cultural characteristics.  At the time of the filing of the lawsuit, Delner Franklin-Thomas, district director for the EEOC's Birmingham District Office, stated, “Generally, there are racial distinctions in the natural texture of black and non-black hair. The EEOC will not tolerate employment discrimination against African-American employees because they choose to wear and display the natural texture of their hair, manage and style their hair in a manner amenable to it, or manage and style their hair in a manner differently from non-blacks.” 

The lower federal court later dismissed the lawsuit on the basis that unlike race, “a hairstyle, even one closely associated with a particular ethnic group, is a mutable characteristic.”  The EEOC appealed to the Eleventh Circuit, arguing that dreadlocks are a natural outgrowth of the immutable trait of race and that a policy forbidding dreadlocks could be a form of racial stereotyping.
 
In his recent article discussing the Eleventh Circuit’s ruling against the EEOC, my colleague Day Peake, in Phelps Dunbar’s Mobile, Alabama Office, explained the appellate court’s rationale:
 
The Eleventh Circuit held that Title VII’s prohibition on intentional discrimination does not protect hairstyles culturally associated with race. Rather, it prohibits intentional discrimination based on immutable traits such as race, color or national origin. By this rationale, the court explained, discrimination based on black hair texture, such as a natural Afro, would violate Title VII. A prohibition on an all-braided hairstyle, however, addresses a mutable choice and does not implicate Title VII’s proscription of intentional race discrimination.
This decision offers an important exploration of the definition of “race,” which is not defined in Title VII. EEOC relied on its Compliance Manual definition, which provides that “Title VII prohibits employment discrimination against a person because of cultural characteristics often linked to race or ethnicity, such as a person’s name, cultural dress and grooming practices, or accent or manner of speech.” The court chose not to give this guidance much deference or weight in its analysis because the court found the guidance to be contradictory to a position taken by EEOC in an earlier administrative appeal.
The Eleventh Circuit also rejected and criticized the EEOC’s argument on appeal that CMSI’s grooming policy was illegal under a theory of disparate impact, which does not require proof of discriminatory intent, as opposed to disparate treatment, which would constitute intentional discrimination.
In addition to a victory for CMSI, the Eleventh Circuit also vindicated the Wall Street Journal’s assessment of the EEOC’s lawsuit back in 2013:
Apparently Ms. Franklin-Thomas has never seen dreadlocked whites (like the Counting Crow's Adam Duritz) or Latinas (like Shakira). Catastrophe's policy is in fact racially neutral because it enjoins all employees, regardless of race, "to be dressed and groomed in a manner that projects a professional and businesslike image," including "hairstyle." The company determined that dreadlocks don't meet that standard, as is its right . . . The larger travesty of this case and other misbegotten EEOC crusades of late is that they take time and resources away from individuals with legitimate claims of employment discrimination. Banning dreadlocks doesn't qualify.
Notwithstanding the Eleventh Circuit’s ruling, issues of workplace grooming and dress codes are often case and fact specific, and can easily turn into a litigation minefield, particularly over issues of religious accommodation.  This was highlighted recently in the United States Supreme Court’s ruling in EEOC v. Abercrombie & Fitch Stores (2015). 
Employers should carefully and regularly review such policies, and consult with counsel prior to taking adverse employment actions based on violations of such policies that might implicate a protected class of employees under Title VII.
A MESSAGE TO READERS OF "THE EMPLOYEE WITH THE DRAGON TATTOO"  
 A reader of this blog recently asked if she could be included on an e-mail list for new posts.  I currently do not have an e-mail service but it seems like an excellent idea and I will be setting it up in the very near future.  If you would like to be included, please send your name, your company, and your e-mail to me at fijmanm@phelps.com.  Thanks! 

 


Tuesday, September 20, 2016

EEOC SUES EMPLOYER OVER POSITIVE DRUG TEST FOR PRESCRIPTION OPIOID PAINKILLER


            In recent years, the abuse of prescription opioid pain medication has become a widely reported national epidemic. The New England Journal of Medicine reports millions of Americans are addicted to prescription pain medications, and The Centers for Disease Control and Prevention finds that more people died from drug overdoses in 2014 than in any year on record, with the majority of deaths from opioids, and 78  Americans die every day from an opioid overdose.  Prescription opioid abuse also has been linked to the national increase in heroin addiction.  Commonly prescribed opioid painkillers include Hydrocodone (Vicodin), Oxycodone(OxyContin, Percocet), morphine (Kadian, Avinza) or medications containing Codeine.
            However, a recent lawsuit by the Equal Employment Opportunity Commission (“EEOC”) against a Sioux Falls, South Dakota Casino reveals the tension between an employer’s concern about prescription drug abuse in the workplace and complying with the Americans with Disabilities Act (“ADA”).
            According to the facts given in the lawsuit, Kim Mullaney applied for a position with Happy Jack’s Casino.  The EEOC’s lawsuit states that Mullaney had a recognized disability under the ADA involving chronic pain, and had a valid prescription for the prescription drug Hydrocodone.  Mullaney received a job offer from Happy Jack’s, but the offer was withdrawn after a routine pre-employment drug test came back positive for Hydrocodone.  According to the lawsuit, Mullaney told Happy Jack's Casino that the test reflected prescription drugs that she took for her disability, and even though she told them that she would provide additional information if needed, Happy Jack's Casino refused to hire her.  According to the Complaint:

Because [Happy Jack’s] didn’t offer Mullaney a chance to offer proof that the drugs were prescribed by a doctor for a medically-recognized condition, the company violated the Americans With Disabilities Act.  Blanket drug-testing rules that cover legally-prescribed medications do not comport with the law


            Typically, most company drug testing policies include provisions that allow employers to either disclose their legally prescribed prescription in accordance with the ADA, or to otherwise explain or contest a positive test result.  However, this lawsuit should service as a notice for employers to review their current drug testing policies.  This workplace issue is further complicated by the ongoing decriminalization of marijuana in the United States.   Approximately half the states already have legalized marijuana, for either medical or recreational use, and another eight states will be voting on the issue in November.
 

A MESSAGE TO READERS OF "THE EMPLOYEE WITH THE DRAGON TATTOO" 

 A reader of this blog asked if she could be included on an e-mail list for new posts.  I currently do not have an e-mail service but it seems like an excellent idea and I will be setting it up in the very near future.  If you would like to be included, please send your name, your company, and your e-mail to me at fijmanm@phelps.com.  Thanks! 

 


Thursday, June 30, 2016

FIFTH CIRCUIT SLAMS THE DOOR ON CRIMINAL RECORD DISCRIMINATION LAWSUIT




The United States Court of Appeals for the Fifth Circuit has rejected an unsuccessful job applicant’s claim that he was denied employment because of his criminal record.  The Plaintiff in Noris Rogers v. Pearland School District unsuccessfully argued that his history of felony convictions for drug offenses, including the sale of heroin, amounted to race discrimination under a disparate impact theory of liability.

In recent years, the Equal Employment Opportunity Commission (“EEOC”) has filed a number of high-profile lawsuits against companies, taking the position that utilizing criminal background checks in making employment decisions may be a violation of Title VII of the Civil Rights Act of 1964.  The stated rationale for the EEOC’s stance is that employers’ reliance on criminal records as a factor in hiring decisions disproportionately affects, or has a “disparate impact” on African-Americans and Hispanics, who statistically have higher rates of arrest and criminal conviction. 

In Rogers, the African-American Plaintiff applied for a job as a master electrician for a Texas school district.  On the application, Rogers responded “No” to all questions regarding criminal history, including whether he had ever been convicted of or pled guilty to a criminal offense, and gave his consent for a criminal background check.  The background check revealed that Rogers had multiple felony drug convictions.  When asked by the school district’s human resources director about the incorrect information, Rogers became angry, raised his voice and had to be asked to leave.  The school district later hired an African-American male for the position.

A few months later, the successful applicant resigned and the position again became available.  Rogers reapplied, this time disclosing his criminal record on the application.  The school district did not hire Rogers because of his “lack of candor” in disclosing his criminal record the first time.  In his lawsuit, Plaintiff claimed the real reason was race discrimination based on his drug arrests, and not on the fact he lied on his job application.  The Texas trial court granted the school district’s summary judgment motion, dismissing the case, and Rogers appealed the ruling to the Fifth Circuit.

In holding that the trial court was correct in dismissing the case, the Fifth Circuit rejected Rogers’ claim that the School District maintains a policy of “excluding from consideration for employment all persons who have been convicted of a felony.”While the Fifth Circuit noted that under the school district’s actual policy, a felony conviction would be an adverse factor in an application, it is  “not an automatic bar to employment.” In addition, the record shows that the School District follows procedures that require the opportunity for an in-person meeting with any applicant to discuss the applicant’s criminal history. The record also shows that the School District recently hired several employees who had felony and misdemeanor convictions.  The Court discounted Rogers’ comparator of a white school district employee who failed to disclose on a job application a misdemeanor charge of marihuana possession thirty years earlier.

While not discussed in detail in the Fifth Circuit’s Opinion, it appears the school district’s policy was in line with the recently updated EEOC guidelines, which put the burden on employers to develop screening guidelines to individually assess each applicant/employee to determine whether a criminal history may be used as a factor in any employment decision.  Under the EEOC’s guidelines, for an employer to avoid Title VII disparate impact liability for excluding an individual with a criminal record, the employers must show that any reliance on a criminal history is job related and consistent with business necessity.  In doing so, an employer must show that it considered three factors: (1) the nature and gravity of the offense, (2) the amount of time since the conviction, and (3) the relevance of the offense to the type of job being sought. 

The case highlights the need for employers to have such screening guidelines in place, proper documentation to support any employment decision based on a criminal history, and not to have any blanket-ban on employing individual with a criminal history.

Sunday, June 5, 2016

RELIGIOUS DISCRIMINATION….OR INFECTIOUS INSUBORDINATION?


The Equal Employment Opportunity Commission (“EEOC”) has filed suit against a Massachusetts hospital, alleging it discriminated against an employee on the basis of religion when it fired her for not complying with a facemask requirement after she declined a flu shot for religious reasons.  EEOC v. Baystate Med. Ctr., Inc. raises unique issues of what constitutes a reasonable accommodation to religious practices under Title VII of the Civil Rights Act of 1964 (“Title VII)”, as well as the scope of what is an undue hardship for employers, especially in the context of a health care provider.

In the federal lawsuit filed on June 2, 2016, the EEOC alleges that Baystate Medical Center fired administrative employee Stephanie Clarke after she sought a religious accommodation from the hospital’s mandatory employee immunization policy.  The hospital had an accommodation policy for employees who refused flu shots for religious reasons, which required such employees to wear a surgical facemask while at work.  The hospital suspended Clark without pay after she failed to wear the mask consistently, complaining she was not able to adequately communicate as part of her job while wearing the mask, which covered her nose and mouth.  She was told that she could not return to work until she either received an immunization or wore the mask at all times.  When Clark declined either option on the basis of a religious objection, the hospital treated her response as a job resignation.

Title VII prohibits employment discrimination based on religion, and imposes on employers a proactive duty to accommodate sincerely held religious practices that may conflict with workplace practices, as long as the religious practice does not impose an undue hardship on the employer.  For purposes of religious accommodation under Title VII, undue hardship is defined by courts as a “more than de minimis” cost or burden on the operation of the employer's business. For example, if a religious accommodation would impose more than ordinary administrative costs, it would pose an undue hardship. This is a lower standard than the Americans with Disabilities Act undue hardship defense to disability accommodation.

What raises the not-so-clear issues in this lawsuit is that Clark was not a healthcare worker, but instead an administrative talent acquisition consultant, who, while she worked at the hospital, had no direct contact with patients.  In public statements, the hospital has asserted that its policy of requiring employee immunizations or alternatively, for objecting employee to wear a facemask, is a reasonable measure to ensure patient safety.  While it is anticipated the EEOC will argue that Clark’s lack of patient contact renders the hospital’s actions unreasonable, it is as likely that the hospital could argue that because of the infectious nature of the flu, a non-healthcare worker present in the hospital could infect other employees who ultimately would have contact with patients, including those with weakened immune systems.  
  
An issue that also is likely to arise is whether wearing a facemask is actually an effective reasonable accommodation for purposes of patient safety.  The federal Centers for Disease Control have noted that it is unclear how well masks work to prevent transmission of the flu, or to what extent masks actually block or filter viruses from the air.  However, some experts note that they do offer some level of protection.  As such, the case also will place before the federal court the issue of whether a healthcare facility should be given deference in determining policies for patient safety, and whether having to modify such policies constitutes an undue hardship under Title VII.
Whether Clark’s objection to flu shots is a sincerely held religious practice is unlikely to become an issue in the case.  Title VII construes religion very broadly, and in religious discrimination cases, courts are often reluctant to “play God” by deciding what is or is not a sincerely held religious belief or practice.  In the EEOC lawsuit, it infers that Clark’s objection is based on her personal interpretation of the Bible. 

However, as previously noted in The Employee with the Dragon Tattoo, despite such judicial deference, on occasion a court will find that an employee’s claimed religious practice simply does not pass the smell test.  In Copple v. California Department of Corrections and Rehabilitation (Cal. Ct. App. 4th Dist.), the California Court of Appeals has held that a prison guard’s self-created church of “Sun Worshiping Atheism” was not a protected religion, and the employer had no duty to accommodate the plaintiff’s belief in getting a full night’s sleep by waiving mandatory overtime hours.