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

Sunday, June 5, 2016


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. 

Wednesday, September 24, 2014

EEOC Targets Mandatory Arbitration Agreements in Lawsuit Against Restaurant Franchisee

          A Florida company that owns franchise restaurants, such as Applebee’s and Panera Bread, has been sued by the Equal Employment Opportunity Commission (“EEOC”) for making its employees sign mandatory arbitration agreements.  The lawsuit, filed September 18, 2014 in the U.S. District Court for the Southern District of Florida, is the latest instance of the EEOC targeting employer practices which the agency  views as limiting employees’ right to file charges of discrimination or bring lawsuits under Title VII and other employment discrimination statutes.
            According to the agency’s allegations in EEOC v. Doherty Enterprises, Inc. (Civil Action No. 9:14-cv-81184-KAM), the company “requires each prospective employee to sign a mandatory arbitration agreement as  a condition of employment.  The agreement  mandates that all employment-related claims -- which would otherwise allow  resort to the EEOC -- shall be submitted to and deter­mined exclusively by  binding arbitration.”  The EEOC alleges the arbitration agreements interfere with employees' rights to file discrimination charges and “violates Section 707 of Title VII of the Civil  Rights Act of 1964, which prohibits employer conduct that constitutes a pattern  or practice of resistance to the rights protected by Title VII.
            The lawsuit is not surprising since the EEOC made it clear in its 2013 – 2016 Strategic Enforcement Plan that “[t]he EEOC will target policies and practices that discourage or prohibit individuals from exercising their rights under employment discrimination statutes, or that impede the EEOC's investigative or enforcement efforts.”  However, while these type of “test” cases by the agency result in substantial legal costs for employers, the EEOC does not seem to have been getting much bang for its buck when it actually gets in front of a federal judge.
            As noted in my September 21, 2014 posting, “EEOC Experiences “Separation Anxiety”in Lawsuit Against CVS”, last week the EEOC suffered a big defeat in their controversial lawsuit against CVS Pharmacy, over the drug store chain’s use of separation agreements for departing employees.  In that lawsuit, the EEOC had taken the same approach as it has in this latest case, alleging the drug store chain’s use of very standardized separation agreements demonstrated a pattern and practice of CVS interfering with employees' Title VII in a way that “deters the filing of charges and interferes with employees' ability to communicate voluntarily with the EEOC.” 
            In comments about the agency’s lawsuit against Doherty Enterprises, EEOC Regional Counsel Robert E. Weisberg left little doubt that more lawsuits over arbitration agreements can be expected:
"Employee communication with the  EEOC is integral to the agency's mission of eradicating employment discrimination.  When an employer forces all complaints about  employment discrimination into confidential arbitration, it shields itself from  federal oversight of its employment practices.   This practice violates the law, and the EEOC will take action to deter further use of these types of overly broad arbitration agreements."
        As was the case of separation agreements in the CVS lawsuit, mediation agreements are commonly used by employers nationwide, and the EEOC’s litigation focus is troubling to the business community.  For employers who utilize arbitration agreements, it would be advisable to have them reviewed by legal counsel.
 Mark Fijman is a labor and employment attorney with Phelps Dunbar, LLC, which has offices in Louisiana, Mississippi, Florida, Texas, Alabama, North Carolina and London. To view his firm bio, click here. He can be reached at (601) 360-9716 and by e-mail at

Sunday, September 21, 2014

EEOC Experiences “Separation Anxiety” in Lawsuit Against CVS

          The details are still yet to be known, but word out of Chicago is that the EEOC has suffered a big defeat in their controversial lawsuit against CVS Pharmacy, over the drug store chain’s use of separation agreements.  Employers commonly use separation or severance agreements when the employment relationship ends. In exchange for some type of payment, the employee agrees to a general release of any potential claims he or she might have against the employer, and possibly other provisions, such as confidentiality and non-disparagement clauses.
As reported in my August 8, 2014 post “Mad Men: The EEOC Advertises its Aggressive Agenda”, earlier this year, the EEOC filed a lawsuit against CVS, claiming the drug store chain’s use of its standard separation agreement demonstrated a pattern and practice of CVS interfering with employees' Title VII in a way that “deters the filing of charges and interferes with employees' ability to communicate voluntarily with the EEOC.” 
The EEOC’s lawsuit was troubling for many in the business community, because employers nationwide commonly use the language being attacked in the CVS agreements. In the event the EEOC were to prevail, it could have result in chaos for many businesses, casting into doubt the validity of such standard severance agreements, and potentially allowing former employees to revive previously barred claims.  
On September 18, 2014, U.S. District Court Judge John Darrah verbally granted CVS’s motion to dismiss based on the EEOC’s failure to state a claim, and an opinion is expected shortly that will give the Court’s basis for dismissing the EEOC’s lawsuit.  CVS has announced it is pleased with the decision and the EEOC is withholding comment until it sees the Judge’s written opinion.
It is not surprising that the EEOC filed the lawsuit.  In its Strategic Enforcement Plan for 2013-2016, the EEOC had announced its intent to target employer policies it claimed discouraged or prohibited individuals from exercising their legal rights, including overly broad waivers or settlement provisions that prohibited filing EEOC charges or providing information in EEOC or other legal proceedings.
In its rush to file a “test” case, the EEOC might have made the error of simply picking the wrong defendant to go after, or not bothering to actually read the agreements in question.  When it filed its motion to dismiss, CVS noted that its separation agreements expressly allowed for employees to participate with and cooperate in any investigation by a government agency, including the EEOC. Specifically, CVS’s agreements expressly note that none of the provisions are:
“[I]ntended to or shall interfere with employee’s right to participate in a proceeding with any appropriate federal, state or local government agency enforcing discrimination laws, nor shall this Agreement prohibit employee from cooperating with any such agency in its investigation,” provided of course that the employee waives her entitlement to monetary and other relief.

       The decision in the CVS case may not bode well for a similar lawsuit filed by the EEOC in the United States District Court of Colorado.  Some legal commentators have suggested that the EEOC may be trying to use this type litigation to impose new guidelines for such agreements, or perhaps as a prelude to more formalized regulation

Mark Fijman is a labor and employment attorney with Phelps Dunbar, LLC, which has offices in Louisiana, Mississippi, Florida, Texas, Alabama, North Carolina and London. To view his firm bio, click here. He can be reached at (601) 360-9716 and by e-mail at