Showing posts with label retaliation. Show all posts
Showing posts with label retaliation. Show all posts

Thursday, October 27, 2016


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 app├ętit!


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Thursday, September 1, 2016

The EEOC Issues Employers New Enforcement Guidelines on Retaliation


         Nearly half of all claims filed with the U.S. Equal Employment Opportunity Commission (“EEOC”) address allegations of retaliation.         Retaliation occurs when an employer takes a materially adverse employment action against an employee for engaging in protected activity under Title VII of the Civil Rights Act of 1964 (“Title VII”), the Age Discrimination in Employment Act (“ADEA”) or any of the other federal anti-discrimination laws administered by the EEOC.  Generally, protected activity consists of either filing an EEOC Charge of Discrimination, or opposing unlawful employment actions.
        The EEOC has now issued its final Enforcement Guidance on Retaliation to replace its 1998 Compliance Manual section on retaliation. In the 18 years since the 1998 guidelines, the United States Supreme Court has issued numerous rulings concerning retaliation claims, and the new enforcement guidelines are intended to assist employers in addressing retaliation claims and avoiding liability.
            Not surprisingly, the EEOC’s new guidelines take a very broad and expansive view of what constitutes protected activity for purposes of triggering a retaliation claim. For instance, the EEOC states that “sometimes there is retaliation before any ‘protected activity’ occurs. For example, an employment policy that discourages the exercise of equal employment rights could itself be unlawful.”  Other examples of protected activity listed in the guidelines include:
·         Taking part in an internal or external investigation of employment discrimination, including harassment;
·         Filing or being a witness in a charge, complaint, or lawsuit alleging discrimination;
·         Communicating with a supervisor or manager about employment discrimination, including harassment;
·         Answering questions during an employer investigation of alleged harassment;
·         Refusing to follow orders that would result in discrimination;
·         Resisting sexual advances, or intervening to protect others;
·         Reporting an instance of harassment to a supervisor;
·         Requesting accommodation of a disability or for a religious practice; or
·         Asking managers or co-workers about salary information to uncover potentially discriminatory wages.
            In its guidelines, the  EEOC stresses that the protections against retaliation apply not only to current employees (full-time, part-time, probationary, seasonal, and temporary), but also to applicants and to former employees.  The guidelines also note that the protections apply regardless of an applicant or employee's citizenship or work authorization status.  The guidelines offer the following examples:
·         A supervisor cannot refuse to hire an applicant because of his EEOC complaint against a prior employer, or give a false negative job reference to punish a former employee for making an EEOC complaint.
·         An employer suspects a worker is undocumented but does not attempt to verify her authorization to work as required by the immigration laws. If the worker raises an EEOC complaint, such as sexual harassment or national origin discrimination, and the employer then threatens to expose the worker's immigration status as punishment for complaining about EEOC violations, the employer would violate the ban on retaliation.
            The EEOC guidelines make it clear that an employee does not have to be terminated or demoted to have a viable retaliation claim, and much lesser employment actions can be enough to impose liability.  The EEOC’s standard is that an employer is not allowed to do anything in response to protected activity that would discourage someone from resisting or complaining about future discrimination.  For example, depending on the facts of the particular case, it could be retaliation because of the employee's protected activity for an employer to:
·         reprimand an employee or give a performance evaluation that is lower than it should be;
·         transfer the employee to a less desirable position;
·         engage in verbal or physical abuse;
·         threaten to make, or actually make reports to authorities (such as reporting immigration status or contacting the police);
·         increase scrutiny;
·         spread false rumors, treat a family member negatively (for example, cancel a contract with the person's spouse); or
·         take action that makes the person's work more difficult (for example, punishing an employee for an EEOC complaint by purposefully changing his work schedule to conflict with family responsibilities).
            The EEOC guidelines acknowledge that engaging in protected activity does not shield an employee from discipline or discharge. Employers are free to discipline or terminate workers if motivated by non-retaliatory and non-discriminatory reasons that would otherwise result in such consequences. It is not uncommon for poorly performing employees, aware that they face discipline or termination, to suddenly file a baseless EEOC Charge or assert frivolous claims of discrimination as a form of “job insurance”, knowing that employers will then be worried that justifiable actions might be perceived as retaliatory.  Examples of non-retaliatory and non-discriminatory reasons for discipline or termination include poor job performance or low productivity, or where the employee's actions in opposing discrimination interfered with job performance or involved something illegal or disruptive to the workplace.
            To avoid retaliation claims, the EEOC advises maintaining a written and easily understood anti-retaliation policy, combined with training.          Supervisors and managers may not know that certain acts are considered illegal retaliation or interference. Employees may benefit from instruction on how to handle tough situations where retaliation or interference is likely to occur.  The importance of documentation and review of employment actions is also stressed.  The guidelines suggest that managers and supervisors may be more aware of actions that can be viewed as retaliatory if they are required to justify negative employment actions in writing. Other supervisors could be asked to review these negative actions to ensure that they are justified and consistent with existing practice.