Tuesday, August 11, 2015



Human Resources professionals are an unflappable bunch, and after a few years on the job, there are very few issues that have not crossed their desks. Dealing with the intricacies of the FLSA, the FMLA, the ADA and the rest of the alphabet of federal employment laws is just an average day at the office. However, even those HR managers who combine the grit of John Wayne, the determination of Margaret Thatcher, the inventiveness of MacGyver and the patience of a kindergarten teacher, occasionally still encounter issues outside their comfort zone. These can range from addressing new and cutting edge employment matters, to dealing with awkward and uncomfortable situations for which there is sometimes no clear or easy answer. The purpose of this paper, as noted by its title, is to offer some employment law guidance and advice for some of the workplace issues that put the "OMG" in "HR"

The Smelly Employee

 The smelly employee issue invariably begins with complaints to HR from olfactorily offended coworkers. Depending on the situation, the solution may not be found in employment law, but simply may require sensitive but direct communication with an employee practicing poor personal hygiene. In other instances, where potential issues of discrimination or harassment arise, the answer may need to be found by interpreting the requirements of federal laws such as the Americans with Disabilities Act ("ADA").

Poor Personal Hygiene/Body Odor, Etc.

This is an issue that should be handled by HR and not by other employees. Co-workers leaving anonymous notes or deodorant or soap on an employee’s desk simply aggravate an already awkward situation, and also potentially could lay the groundwork for claims of discrimination or a hostile work environment. Even where there is no legal issue, nothing is gained by actions that would result in the embarrassment of the employee. Suggested best practices include the following:
  •  Schedule a meeting with the employee to privately discuss the issue.

  • Acknowledge the awkwardness of the situation and note there is no intention to embarrass the employee. Avoid identifying the co-worker(s) who complained about the employee’s personal hygiene/body odor, breath, etc.

  • Be direct and clearly and calmly state the problem.

  • If the employee does not identify or indicate a medical cause for the body odor problem, act according to the company’s policy for addressing violations of dress code/grooming standards.

  • Set a reasonable period for resolving the problem, and offer assistance if possible.

  • Monitor progress and acknowledge improvement.

  • Do not raise possible medical causes unless prompted by the employee, and if so, address issues of reasonable accommodation as discussed below
Poor Personal Hygiene/Body Odor as an ADA Issue
The ADA prohibits discrimination by all private employers with 15 or more employees. In addition, the ADA prohibits all public entities, regardless of the size of their work force, from discriminating in employment against qualified individuals with disabilities. Under the ADA, a disability is defined as:
  • A physical or mental impairment that substantially limits one or more major life activities of such individual;
  • A record of such an impairment; or
  • Being regarded as having such an impairment.
While the Americans with Disabilities Amendments Act of 2008 ("ADAAA") significantly broadened the scope of what is considered a disability under the ADA, offensive body odor, standing alone, is not considered a disability. However, it can serve as the basis of an ADA claim when the body odor is caused by an underlying medical condition that is considered a protected disability under the ADA. If the employee volunteers such information, it becomes the responsibility of the employer to begin the interactive process of reaching a reasonable accommodation of the employee’s disability. Employers also need to be mindful that any harassing behavior by coworkers toward an employee with such a condition, such as insults or offensive jokes, could create liability for a hostile work environment if the employer does not take action to address and correct the situation.
In some instances, body odor or offensive breath can be caused by medical conditions or medications required to treat an employee’s medical condition. In recent years, this issue also has wafted through the courts in the context of excessive flatulence in the workplace serving as the basis for claims under the ADA.
This was addressed in a Washington Post article entitled "The Ballad of the Farting Federal Employee" which dealt, appropriately enough, with a federal employee in the Social Security Administration Office of Disability Operations in Baltimore. The article addressed the tortured process of the employer dealing with an employee with uncontrollable flatulence. After numerous complaints from co-workers in the office, who reported 60 instances of notable workplace flatulence by the employee, the supervisor sought to address the issue with the employee and ultimately issued an official reprimand to the employee. The following excerpt from the written reprimand places the facts in context:
"On May 18, 2012, your supervisor, [REDACTED], during a performance discussion with you, discussed the fact that your coworkers were complaining about your flatulence in the workplace and went on to state that it was the reason none of them were willing to assist you with your work. On July 17, 2012, I spoke with you in regards of your releasing of bodily gas in the module during work hours. I asked if you could make it to the rest room before releasing the awful and unpleasant odor. I informed you that the smell from your being flatulent disturbed the work environment. Several of your coworkers complained about your flatulence. You said you would try not to pass gas and that you would turn your fan on when it happens. I explained to you that turning on the fan would cause the smell to spread and worsen the air quality in the module."
During this process, the employee apparently provided the agency with proof of unspecified medical conditions that could prevent him from working full days at times, but the reprimand noted that "… nothing that you have submitted has indicated you would have uncontrollable flatulence. It is my belief that you can control this condition."
However, without explanation, citing privacy concerns, the agency suddenly rescinded the reprimand when the issue came to the attention of senior officials. While the details of the reprimand being dropped are not known, it is a fair assumption that the decision occurred when someone realized that the scenario raised issues of the ADA and inadequate efforts at reasonable accommodation. It is unknown what later efforts were made to reasonably accommodate the employee’s medical condition.
In a similar case involving a federal employee, an employee with the U.S. Department of Agriculture claimed he was subject to disability discrimination because of "excessive flatulence" he claimed was caused from a celiatic disease. However, the employee’s claimed medical condition had not been diagnosed by a physician, and a medical report stated his flatulence was "medically trivial and is physically normal." An EEOC administrative judge dismissed the employee’s claim of discrimination because he had failed to show he had a disability for purposes of the ADA, and on appeal the decision was later affirmed.
However, in that case, the dismissal of the employee’s case hinged on his inability to produce any evidence or documentation of a diagnosed medical condition. In a different instance, where an employee could establish an actual medical diagnosis of irritable bowel syndrome or related ailment, an employer could conceivably be subject to liability for disability discrimination for failure to accommodate under the ADA, or for harassment for reprimanding or otherwise disciplining an employee because of a medical condition.
Sometimes the ADA focus is not the "smelly employee" but instead the co-worker who is on the receiving end of the unwelcome odors. This arises most commonly with employees who have medical conditions that make them allergic or severely sensitive to odors, such as a coworker wearing strong perfume or cologne. The Equal Employment Opportunity Commission ("EEOC") takes the position that under the ADAAA, an employee may be disabled if a workplace odor causes asthma or causes an otherwise normal reaction or allergy to become severe. Federal court cases strongly suggest that employers should take such matters seriously.
In McBride v. City of Detroit, a municipal employee with a severe chemical allergy claimed she was disabled because of exposure to a co-worker’s perfume, as well due to exposure to a plug-in air freshener and potpourri in the office restroom. A federal District Court found she was disabled because she was substantially limited in the major life activity of breathing, and her medical records showed her disability was triggered by irritating odors in the workplace. The District Court held there was a fact question as to whether the employer had sufficiently engaged in the interactive process of seeking a reasonable accommodation, but did hold that the employee’s request for a fragrance-free workplace was unreasonable and would imposes an undue hardship on the employer. Other options that were discussed involved the transfer of the employee or the co-worker wearing perfume to a different part of the office. The District Court set the case for trial but the City eventually ended up settling the case for $100,000.00.
In a similar case in Pennsylvania, a federal District Court ruled that an employer reasonably accommodated an employee with perfume allergies by adopting a "no-perfume" policy. Other steps taken by the employer included moving the employee’s desk, and giving her a desktop air filter and fan. However, after returning from a three-month leave, her attendance became erratic, resulting in her termination, and she brought suit under the ADA. The District Court dismissed her case, holding that her request for a fragrance free workplace was unreasonable and the employer’s actions constituted a reasonable accommodation. The U.S. Court of Appeals for the Third Circuit later affirmed the dismissal of the case.
So how does an employer reasonably accommodate the smelly employee or the coworkers who smell them? Under the ADA, the duty to provide reasonable accommodation is a fundamental statutory requirement, unless to do so would cause the employer undue hardship. In general, an accommodation is any change in the work environment or in the way things are customarily done that enables an individual with a disability to enjoy equal employment opportunities. There are three categories of reasonable accommodations:
  • Modifications or adjustments to a job application process that enable a qualified applicant with a disability to be considered for the position such qualified applicant desires; or
  • Modifications or adjustments to the work environment, or to the manner or circumstances under which the position held or desired is customarily performed, that enable a qualified individual with a disability to perform the essential functions of that position; or
  • Modifications or adjustments that enable a covered entity's employee with a disability to enjoy equal benefits and privileges of employment as are enjoyed by its other similarly situated employees without disabilities.
In general, there are a number of possible reasonable accommodations that an employer may have to provide in connection with modifications to the work environment or adjustments in how and when a job is performed. These include, but are not limited to:
  • Making existing facilities accessible;
  • Job restructuring;
  • Part-time or modified work schedules; or
  • Reassignment to a vacant position.
All situations are fact-intensive and have to be addressed and resolved on a case-by-case basis. As to the instances described above, when an employee has body odor or other similar problem because of a medical condition, the first step is determining whether it actually constitutes a disability under the ADA, which can require medical certification that shows the condition impairs a major life activity. This information also is essential in trying to determine a reasonable accommodation.
  • As part of the interactive process, discuss possible accommodations with the employee and whether they can be implemented without undue hardship;
  • Work with the employee and his or physicians or dietitians to explore changes in medication or diet that could lessen body odor, bad breath or gastrointestinal problem.
  • For employees with gastrointestinal problems resulting in odor or flatulence, reasonable accommodations can include providing the employee the ability to take additional and more frequent bathroom breaks. In some cases, an employee utilizing specialized filtered undergarments has addressed the issue.
  • Examine the possibility of repositioning the employee in the workplace and whether fans or air circulation or filtering equipment can lessen the unpleasant impact on other employees.
  • Depending on the position and job responsabilities, allowing the employee to telecommute or work from home might be a reasonable accommodation.
  • For employees who are sensitive to certain workplace odors, changing their workplace/office locations to an area of less exposure could be a reasonable accommodation. Workplace odors triggering a medical condition also may be more generalized, such as the odors from copy machines or printers or from cleaning products.
  • A perfume/cologne free policy can be a reasonable accommodation. While other employees may find it unreasonable, wearing perfume or cologne in the workplace is not a protected right
Bathroom Battles

While not even on the HR radar just a few years ago, restroom access for transgender employees has become an increasingly common issue for employers. Not surprisingly, this can cause uncomfortable situations in the workplace, such as when female employees complain about a biologically male employee, who identifies as a woman, using the ladies restroom.
 Recent actions by the EEOC, Department of Labor and OSHA take the position that transgender employees should have access to restrooms that correspond to their gender identity, and spell out an employer’s obligations.
According to the Williams Institute at the University of California-Los Angeles, an estimated 700,000 adults in the United States are transgender—meaning their internal gender identity is different from the sex they were assigned at birth (e.g., the sex listed on their birth certificate). For example, a transgender man may have been assigned female at birth and raised as a girl, but identify as a man. Many transgender people transition to live their everyday life as the gender they identify with. Thus, a transgender man may transition from living as a woman to living as a man. Similarly, a transgender woman may be assigned male at birth, but transition to living as a woman consistent with her gender identity. Transitioning may involve social changes (such as going by a new first name), medical steps, and changing identification documents.
Traditionally, transgender employees would not have fallen under the protection of Title VII of the Civil Rights Act of 1964. However, the EEOC’s Strategic Enforcement Plan for 2013 - 2016, lists "coverage of lesbian, gay, bisexual and transgender individuals under Title VII's sex discrimination provisions, as they may apply" as an enforcement priority.
 The EEOC takes the position that discrimination against an individual because that person is transgender is a violation of Title VII's prohibition of sex discrimination in employment, and transgender employees may bring valid Title VII sex discrimination claims. Therefore, the EEOC will accept and investigate charges from individuals who believe they have been discriminated against because of transgender status (or because of gender identity or a gender transition). As demonstrated just recently, this includes claims based on restroom access.
 On April 1, 2015, the EEOC ruled that the Department of the Army discriminated against a transgender woman by refusing to let her use the woman’s restroom. Tamara Lusardi, is an Army veteran and civilian software specialist who transitioned from male to female. Lusardi was employed by the  U.S. Army Aviation and Missile Research, Development and Engineering Center in Alabama. Lusardi filed an EEOC Charge after she was told her use of a common women's restroom was making co-workers uncomfortable and to use a unisex bathroom instead.
The EEOC awarded Lusardi monetary damages and ordered the Army to impose discrimination training for supervisors and employees at the facility. What is noteworthy is that the EEOC opinion noted that coworkers discomfort was not a legitimate basis to deny restroom access. In the opinion, the EEOC held:
"In summary, we find that complainant proved that she was subjected to disparate treatment on the basis of sex when she was denied equal access to the common female restroom facilities," the opinion states. "We further find that the agency is liable for subjecting complainant to a hostile work environment based on sex by preventing her from using the common female restroom facilities and allowing a team leader intentionally and repeatedly to refer to her by male names and pronouns and make hostile remarks well after he was aware that complainant’s gender identity was female."
So how should employers address the issue of transgender employees and restroom access so as to comply with the law and avoid potential liability? Answers can be found in U.S. Occupational Safety and Health Administration’s ("OSHA") new publication "A Guide to Restroom Access for Transgender Workers." The Guide suggests the following best practices:
  • Implement written policies to ensure that all employees—including transgender employees—have prompt access to appropriate sanitary facilities.
  • All employees should be permitted to use the facilities that correspond with their gender identity. For example, a person who identifies as a man should be permitted to use men’s restrooms, and a person who identifies as a woman should be permitted to use women’s restrooms.
  • The employee should determine the most appropriate and safest option for him or herself.
  • Options include single-occupancy gender-neutral (unisex) facilities; and use of multiple-occupant, gender-neutral restroom facilities with lockable single occupant stalls. (Employees may choose but are not required to use these options).
  • Regardless of the physical layout of a worksite, all employers need to find solutions that are safe and convenient and respect transgender employees.
  • Employees are not asked to provide any medical or legal documentation of their gender identity in order to have access to gender-appropriate facilities.
  • No employee should be required to use a segregated facility apart from other employees because of their gender identity or transgender status.
  • Under OSHA standards, employees generally may not be limited to using facilities that are an unreasonable distance or travel time from the employee’s worksite.
Domestic Violence
Domestic violence, sexual violence, dating violence, and stalking are workplace issues and impact the workplace even if the incidents occur elsewhere. A 2005 national survey by the Corporate Alliance to End Partner Violence found that 21% of full-time employed adults were victims of domestic violence and 64% of them indicated their work performance was significantly impacted. The overwhelming majority were women. According to a study by the U.S. Centers for Disease Control, the annual cost of lost productivity due to domestic violence is estimated as $727.8 million with over 7.9 million paid workdays lost per year.
 According to research by the Society for Human Resource Management ("SHRM"), 65 percent of companies do not have a formal workplace domestic violence policy, and only 20 percent offer any type of training on domestic violence to its supervisors or employees. Of those companies surveyed, 19 percent had experienced a domestic violence related incident within the previous year.
While there may be a tendency for employers to try to avoid this difficult issue or consider it an outside family matter", it is an issue employers need to address directly. This includes developing a domestic violence policy and training managers.
In addition to the human misery and lost productivity from domestic violence, the EEOC also takes the position that employers can be liable under Title VII and the ADA for improper employment decisions made on the basis of an employee’s status as a victim of domestic violence.  Title VII prohibits disparate treatment based on sex, which may include treatment based on sex-based stereotypes. The EEOC provides the following examples of employment decisions that may violate Title VII and involve applicants or employees who experience domestic or dating violence, sexual assault, or stalking:
  • An employer terminates an employee after learning she has been subjected to domestic violence, saying he fears the potential "drama battered women bring to the workplace."
  • A hiring manager, believing that only women can be true victims of domestic violence because men should be able to protect themselves, does not select a male applicant when he learns that the applicant obtained a restraining order against a male domestic partner.
  • An employer allows a male employee to use unpaid leave for a court appearance in the criminal prosecution of an assault, but does not allow a similarly situated female employee to use equivalent leave to testify in the criminal prosecution of domestic violence she experienced. The employer says that the assault by a stranger is a "real crime," whereas domestic violence is "just a marital problem" and "women think everything is domestic violence."
Title VII prohibits sexual or sex-based harassment. Harassment violates Title VII if it is sufficiently frequent or severe to create a hostile work environment, or if it results in a "tangible employment action," such as refusal to hire or promote, firing, or demotion. For example:
  • An employee's co-worker sits uncomfortably close to her in meetings, and has made suggestive comments. He waits for her in the dark outside the women's bathroom and in the parking lot outside of work, and blocks her passage in the hallway in a threatening manner. He also repeatedly telephones her after hours, sends personal e-mails, and shows up outside her apartment building at night. She reports these incidents to management and complains that she feels unsafe and afraid working nearby him. In response, management transfers him to another area of the building, but he continues to subject her to sexual advances and stalking. She notifies management but no further action is taken.

  • A seasonal farmworker's supervisor learns that she has recently been subject to domestic abuse, and is now living in a shelter. Viewing her as vulnerable, he makes sexual advances, and when she refuses he terminates her.
Title VII prohibits retaliation for protected activity. Protected activity can include actions such as filing a charge of discrimination, complaining to one's employer about job discrimination, requesting accommodation under the EEO laws, participating in an EEOC investigation, or otherwise opposing discrimination. For example:
  • An employee files a complaint with her employer's human resources department alleging that she was raped by a prominent company manager while on a business trip. In response, other company managers reassign her to less favorable projects, stop including her in meetings, and tell co-workers not to speak with her.
The ADA prohibits different treatment or harassment at work based on an actual or perceived impairment, which could include impairments resulting from domestic or dating violence, sexual assault or stalking. For example:
  • An employer searches an applicant's name online and learns that she was a complaining witness in a rape prosecution and received counseling for depression. The employer decides not to hire her based on a concern that she may require future time off for continuing symptoms or further treatment of depression.

  • An employee has facial scarring from skin grafts, which were necessary after she was badly burned in an attack by a former domestic partner. When she returns to work after a lengthy hospitalization, co-workers subject her to frequent abusive comments about the skin graft scars, and her manager fails to take any action to stop the harassment.
The ADA requires employers to provide reasonable accommodation requested for an actual disability or a "record of" a disability. An actual disability is a physical or mental impairment that substantially limits one or more major life activities. (which include major bodily functions). A "record of" a disability is a past history of a substantially limiting impairment. In the context of domestic violence, examples of a reasonable accommodation might include:
  • An employee who has no accrued sick leave and whose employer is not covered by the FMLA requests a schedule change or unpaid leave to get treatment for depression and anxiety following a sexual assault by an intruder in her home. The employer denies the request because it "applies leave and attendance policies the same way to all employees."
  • In the aftermath of stalking by an ex-boyfriend who works in the same building, an employee develops major depression that her doctor states is exacerbated by continuing to work in the same location as the ex-boyfriend. As a reasonable accommodation for her disability, the employee requests reassignment to an available vacant position for which she is qualified at a different location operated by the employer. The employer denies the request, citing its "no transfer" policy.
What are some warning signs and symptoms that may indicate to an employer that an employee is the victim of domestic violence?
  • Arriving to work late or very early
  • Unplanned or increased use of earned time or paid time off
  • Decreased productivity
  • Tension around receiving repeated personal phone calls
  • Wearing long sleeves on a hot day or sunglasses inside
  • Difficulty in making decisions alone
  • Difficulty concentrating on tasks
  • Avoiding windows, main entrance of office
  • Repeated discussion of marital or relationship problems
  • Flowers or gifts sent to employee at the workplace for no apparent reason
  • Bruises, chronic headaches, abdominal pains or muscle aches
  • ague, non-specific medical complaints
  • Sleeping or eating disorders
  • Signs of fear, anxiety or depression
  • Fatigue
  • Intense startle reactions
  • Suicidal or homicidal thoughts
  • Nightmares or flashbacks
As discussed above, employers should develop their own domestic violence program in conjunction with their HR professionals and legal counsel to respond effectively to this serious problem and ensure compliance with Title VII and the ADA. "Workplaces Respond to Domestic and Sexual Violence" is an organization funded by the U.S. Department of Justice Office on Violence Against Women. It offers the following advice to supervisors who think an employee is the victim of domestic violence, and do not know how to address the situation.
  • Obtain facts, not rumors or gossip. The employee is the best source of information, but consider carefully how you approach him or her. 
  • Speak to the employee privately, and provide the work-related basis for your inquiry and concern. It is best not to make assumptions about an employee’s personal life. For example, state "I have noticed you aren’t acting like yourself, is something going on that you would like to talk about?" versus "I think you may be having trouble at home, is that why you have been late to work recently?"
  • If the employee discloses the violence, ask "How can I help you?"  Convey the message: "You do not deserve this violence" and offer to support the victim’s efforts to achieve safety.
  • Provide a list of community based service organizations to assist the employee. As the employer, it is not your job to be an expert on violence, and you should not counsel the employee about what to do.
  • Are there any immediate safety concerns for the employee and the workplace? Consult with the victim, your security and human resources personnel, your legal counsel, and as appropriate, law enforcement to determine an appropriate course for ensuring that your employees and workplace(s) are secure.
  • Explain your workplace’s policy on leave for victims of violence.
  • Explain other personnel policies in your workplace that may address these issues.
  • Explain to the employee-victim that, to the extent possible, his or her personal information will be kept confidential.
  • Employers should share an employee’s confidential disclosures about violence only on a "need to know" basis. The list of individuals who must be informed for security reasons should be developed with a victim’s input and consent. If additional individuals must be informed of the violence or threat of harm, the victim should be advised before the information is disclosed.
  • In consultation with your security personnel, other assistance may be offered to victims of domestic violence such as providing escorts from the workplace to the parking lot and screening calls to the workplace.
Workplace Romance

Workplace romances are nothing new and if anything, have become more common. With the amount of time people spend working and the increased percentage of women in the workplace, it’s no surprise that the workplace is fertile ground for couples to meet. People who work together also usually live within a reasonable dating distance, and because they share a workplace, they see each other on a daily basis.  Coworkers in similar jobs may also be approximately the same age, and share similar interests both inside and outside of work.  As such, the workplace creates an inadvertent dating pool.  In 2013, SHRM released its Workplace Romance Survey. The results were as follows:
  • 43% of HR professionals reported romances in their workplaces.

  • 42% have a written or verbal policy on workplace romances.

  • 32% of HR professionals say employers have the right to prohibit workplace romance between employees.

  • 49% say it depends on the situation.

  • 99% of organizations that have workplace romance policies do not permit a romance between a supervisor and a subordinate.

  • 5% of organizations require coworkers involved in a workplace romance to sign a written acknowledgment that the relationship is consensual.
Workplace romances can be an awkward issue for HR professionals who do not relish the role of being the "Romance Police." Many would rather not get involved in employees’ personal lives unless it is causing problems in the workplace. However, the problems that can result are serious, and include allegations of sexual harassment, hostile work environment, favoritism, and disruption of the workplace, especially when the relationship sours.
While an employer could develop an absolute draconian "non-fraternization" policy, based on human nature and the statistics above, it likely would be difficult or impossible to enforce. Faced with that reality, your policy on workplace romance should include the following:

    • An absolute ban on romantic/sexual relationships between supervisors and subordinate employees. It is not uncommon that once a consensual relationship ends, the subordinate employee will subsequently claim they were coerced by the supervisor and will file a Title VII lawsuit for sexual harassment.

    • Advise employees that while romantic relationships between co-workers are not prohibited, the company expects professional behavior regardless of the personal relationship.

    • Advise employees that unprofessional behavior following the breakup of an office relationship will not be tolerated, and will result in disciplinary action, up to and including termination.

    • Employees need to be made aware that the company will not tolerate sexual liaisons or sexual behavior at work.

    • The company’s sexual harassment/discrimination policy should be posted and all employees should be trained as to the company’s policy. 

    • Consider a policy requiring both individuals to enter into a written agreement: (1) voluntarily disclosing their relationship, (2) acknowledging their understanding of the company’s sexual harassment and discrimination policy, and (3) acknowledging that if the relationship causes disturbance in the workplace, they may be subject to discipline, up to and including termination.  Such an agreement also requires either party to promptly report to management anything relating to the relationship or a broken offrelationship that might serve as the basis of a harassment complaint.

As noted above, the sampling of "OMG" issues that put you outside your comfort zone can range from the uncomfortable (the smelly employee) to the deadly serious (domestic violence). With the rapidly changing employment law landscape, new "OMG" issues are inevitable. However, the combination of experience, proper training and knowledge of the law should enable HR professionals to make correct and timely decision.

Mark Fijman is a labor and employment attorney with Phelps Dunbar, LLP, 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 fijmanm@phelps.com



Tuesday, March 31, 2015

Sun Worshipping Atheist Loses Religious Discrimination Suit

In religious discrimination cases under Title VII, courts are often reluctant to “play God” by deciding what is or is not a sincerely held religious belief or practice. The cases usually hinge on whether the employer reasonably accommodated the employee’s religious conflict with a workplace policy, or whether the requested accommodation imposed an undue hardship on the employer.  As noted in my original article “The Employee with the Dragon Tattoo”, even tattoos and piercings have been recognized as sincerely held religious practices.

However, the California Court of Appeals has held that a prison guard’s self-created church of “Sun Worshiping Atheism” is 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. [Marshel Copple v. California Department of Corrections and Rehabilitation (Cal. Ct. App. 4th Dist.)]

When hired at the prison, Marshel Copple was told there was mandatory overtime. However, shortly after being hired, he requested to work only 8 hour shifts based on Sun Worshiping Atheism’s religious tenets of praying in the sun, exercising, socializing, getting fresh air, sleeping well and being skeptical in all things.  When the prison declined to accommodate his request, he refused to work three overtime shifts and subsequently resigned, claiming constructive discharge. He filed an EEOC Charge, which was dismissed and and subsequently brought suit under California’s Fair Employment and Housing Act.  Following a summary judgment ruling against him in a lower court, he appealed the adverse ruling.

In affirming the dismissal of the lawsuit, the California appellate court held that religions address “fundamental and ultimate questions having to do with deep and imponderable matters”, and that Sun Worshiping Atheism was simply a practice of living a healthy lifestyle, with none of the trappings of a religion.

In my post “Sign of the Beast Hand Scanning Case Provides Valuable Lesson to Employers", I discussed how an employer’s failure to accommodate an employee’s religious beliefs resulted in a high dollar jury verdict for the employee.  In that case, the employee was denied a reasonable accommodation to his religious belief that the technology behind the employer’s hand scanning time clock system had a connection to the “mark of the beast”  as alluded to in the Book of Revelation in the New Testament of the Bible. 

However in a recent similar case, the United States Court of Appeals for the Sixth Circuit found in favor of the employer, where the employee refused to provide a Social Security number because he considered it the “mark of the beast.”  In Yeager v. FirstEnergy Generation Corp. (6th Cir.), the Sixth Circuit held an employer has no duty to accommodate a religious belief where such an accommodation would violate a federal statute, which in this case, required the employer to collect and report the Social Security numbers of their employees.

Mark Fijman is a labor and employment attorney with Phelps Dunbar, LLP, 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 fijmanm@phelps.com

Saturday, March 28, 2015

NLRB Launches New Comprehensive Attack Against Employee Handbook Provisions

In previous posts, such as “NLRB says ‘No Workplace Secrets Allowed!’” I noted that in recent years, the National Labor Relations Board (“NLRB”) has taken an aggressive “bigfoot” approach against many commonly utilized employee handbook policies.  The NLRB’s justification for filing complaints against employers was that overbroad language in employee handbooks purportedly violated the National Labor Relations Act (“NLRA”).  

The first notable example was when the NLRB used the same rationale to find many employers’ social media policies to be in violation of the NLRA.  Another lesson employers learned from the NLRB’s assault on workplace social media policies is that an employer can be found in violation on the basis of an overbroad policy alone, even if there is no action taken against an employee for violation of the policy.  As many employers also learned from the NLRB’s social media focus, even non-union employers can be found in violation of the NLRA. 

Earlier this month, the NLRB issued a 30-page report intended to offer guidance to employers in drafting handbook provisions that will withstand the NLRB’s scrutiny.  The NLRB states the report is intended to address what it describes as “an evolving area of labor law.” This includes routine and longstanding employment policies that the NLRB believes have a chilling effect on employees’ concerted activities protected by Section 7 of the NLRA.

What types of handbook policies have drawn the NLRB’s ire? Examples include employer confidentiality provisions that forbid employee disclosure of “employee information” or “ another’s confidential or other proprietary information.”  The NLRB believes such policies are overbroad when they are not narrowly tailored to protect trade secrets or proprietary information as opposed to violating Section 7 by forbidding discussion of wages or other terms and conditions of employment among employees.  The NLRB report also considers policies that call for employees to be respectful of others in the company or to avoid derogatory comments to also be overbroad and possibly constitute a violation of Section 7. The NLRB report stresses that violations will be found for “even well-intentioned rules”, even when there is no intent to violate Section 7. 

The NLRB’s release of the comprehensive report can reasonably be seen as a warning of another round of aggressive action by the NLRB against employers, similar to what was seen when the Board began going after employers for their social media policies.  This should not be a surprise from an exceedingly political Board, which has actively advanced the administration’s extreme pro-union positions. 

In light of the NLRB report, employers would be well advised to promptly conduct a comprehensive review of all handbook policies to revise any potentially overbroad language, so as to avoid showing up on the NLRB’s radar.  

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 fijmanm@phelps.com

Wednesday, March 18, 2015

Settlement in HIV Termination Lawsuit Highlights Continuing Employer Confusion over ADA

A nationwide manufacturer and distributor of fruit juice will pay $125,000 to settle a lawsuit brought by the EEOC on behalf of an employee who was terminated after the company learned he was HIV-positive. [EEOC v. Gregory Packaging, Inc. (N.D. Ga.]  The fact that the employer specifically told the man he was being terminated because of his HIV status highlights continuing employer confusion over the Americans with Disabilities Act (“ADA”), even twenty-five years after its passage, and especially as it relates to employees with HIV/AIDS.

The plaintiff in the case was employed as a machine operator at the Newnan, Georgia facility of Gregory Packaging, Inc., a company that sells juice products to school districts and medical institutions. When the employee developed a skin rash unrelated to his HIV, rumors began to circulate among other employees that the employee’s rash was the result of AIDS.  In an effort to quash the rumors, the employee informed his supervisor that while he did have HIV, the skin condition was unrelated, and there was no danger of him transmitting HIV to food products or co-workers.  Despite his good job performance, and no evidence of a health risk, the employee was terminated approximately a month later.  He was informed the reason he was being fired was because he had HIV.

The employee declined a separation agreement offered by the company, which included a release of claims. The Equal Employment Opportunity Commission (“EEOC”) subsequently brought a lawsuit on the employee’s behalf, alleging violations of the ADA and similar claims brought under Georgia state law.  Despite the company’s early efforts to fight the lawsuit, the case was settled pursuant to a court-approved consent order, which provided for the $125,000 payment by the New Jersey based company, and required equal employment opportunity training and reporting to the EEOC.

What is most surprising about this case, is that even before the ADA’s expansion under the Americans with Disabilities Amendment Act (“ADAAA”), it was generally established that a person with HIV/AIDS met the Act’s definition of an individual with a disability.  Furthermore, as noted in EEOC guidelines, even those who are regarded as having HIV/AIDS are protected under the Act, even if they do not have the disease.  The example given by the EEOC is a person being fired on the basis of a rumor that he had AIDS, even though he was not infected.

Employers involved in the food and restaurant industry are often at the focus of these types of lawsuits. As was the case at Gregory’s Georgia facility, the situation is often fueled and exacerbated  by rumors spread by co-workers or customers, and fears of HIV/AIDS being transmitted through an employee’s contact with food products.   

According to the Department of Health and Human Services, HIV/AIDS is not a disease that can be transmitted through food handling. Diseases that can be transmitted by an infected person handling food include (1) noroviruses, (2) the Hepatitis A virus, (3) Salmonella, (4) Shigella, (5) Staphylococcus, and Streptococcus.  For more detailed information, employers in the food service/restaurant industry can find guidance through the EEOC publication “How to Comply with the Americans withDisabilities Act: A Guide for Restaurants and Other Food Service Employers.”

Employer’s also need to be aware that in the context of HIV/AIDS, the ADA also protects employees who do not have the disease, but have an association or relationship with someone who does.  In the EEOC guidelines, examples of employment discrimination against persons with HIV or AIDS include:

         An automobile manufacturing company that had a blanket policy of refusing to hire anyone with HIV or AIDS.

         An airline that extended an offer to a job applicant and then rescinded the offer after the employer discovered (during the post-offer physical) that the applicant had HIV.

         A restaurant that fired a waitress after learning that the waitress had HIV.

         A university that fired a physical education instructor after learning that the instructor’s boyfriend had AIDS.

         A County tax assessment office that cancelled training opportunities for an accountant following her disclosure that she had HIV.

         A retail store that generally rotated all sales associates between the sales floor (where they could earn commissions) and the stock room (where they processed merchandise) except for the sales associate who was rumored to have HIV, who was never rotated to the floor.

         A call center employee who was denied a promotion to shift manager because his employer believed the employee would be unreliable since he had AIDS.

         A company that contracted with an insurance company that had a cap on health insurance benefits provided to employees for HIV-related complications, but not on other health insurance benefits.

While the ADA does include a “direct threat” defense in regard to employees who pose a significant risk of substantial harm to the health and safety of the employee or others, the defense  requires medical or other objective evidence, as opposed to subjective beliefs or assumptions based on stereotypes.  However, the take-away from this case is that proper training of supervisors in addressing ADA issues is a much better and less expensive option than having to establish defenses after a suit has been filed.

Mark Fijman is a labor and employment attorney with Phelps Dunbar, LLP, 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 fijmanm@phelps.com

Saturday, March 7, 2015

“Sign of the Beast” Hand Scanning Case Provides Valuable Lesson to Employers

An employer’s use of a high-tech device to stay in compliance with the Fair Labor Standards Act (“FLSA”) has resulted in a large dollar jury verdict in a religious discrimination case, as well as continued scrutiny from the Equal Employment Opportunity Commission (“EEOC”).  [EEOC v. Consol Energy, Inc., N.D. W.Va.] The case should serve as a valuable lesson to employers when it comes to providing for reasonable accommodation of religious practices, as required under Title VII of the Civil Rights Act of 1964.

Accurate time-keeping of employee work hours is a requirement of the FLSA, but employers routinely have to deal with employees who forget to properly clock-in or clock-out, or who sometimes arrange for friends/co-workers to falsify work hours by having them clock-in for the otherwise absent employee.  One high-tech solution that employers have started using is biometric devices, which scan an employee’s unique fingerprint or handprint to simplify the process and to guarantee that the person clocking-in is the actual employee.  How could anything go wrong with such a fool-proof and elegant solution?  That question would best be directed to mining company Consol Energy, Inc.

Consol operates a coal mine in West Virginia, and utilizes a biometric hand scanning device to track employee work hours for purposes of payroll and FLSA compliance.  One employee, Christian Beverly Butcher, told his supervisor that he could not comply with the hand scanning policy because he believed the technology has a connection to the “mark of the beast” and the Antichrist, as alluded to in the Book of Revelation in the New Testament of the Bible. 

As a proposed reasonable accommodation, the company offered to allow Butcher to scan his left hand with his palm up, which he declined.  Butcher resigned, stating that he was doing so involuntarily.  He brought his complaint to the EEOC, which filed suit on his behalf against the company, alleging that Consol had violated Title VII by failing to reasonably accommodate Butcher’s sincerely held religious beliefs.

A federal judge in West Virginia denied Consol’s effort to have the lawsuit dismissed on a motion for summary judgment, and in January 2015, a jury ruled in Butcher’s favor and awarded $150,000.00 in compensatory damages.  The EEOC has since filed a post-trial motion seeking an additional $413,000 in front and backpay.  Adding insult to injury, on March 4, 2015, the EEOC moved the District Court to grant an injunction barring the company from forcing its employees to use biometric hand scanning systems, arguing that there is a risk the company will continue to violate anti-discrimination laws.

Religious accommodation cases can be a minefield for employers. The lesson to be learned from this case is that Title VII and the EEOC take a very broad view of religion, and generally, courts do not want to be placed in the position of deciding what is or is not a bona fide religion or religious practice or belief.  Accommodations are not required if the employer would suffer undue hardship – that is, “more than de minimis “ or a minimal cost. Whether an accommodation would be an undue hardship is determined on a case-by-case basis, and considers the potential burden on an employer’s business in addition to any monetary costs. 

While a reasonable accommodation does not have to be the particular accommodation preferred by the employee, it does have to be an accommodation that resolves the religious conflict with the workplace practice.  In this case, the company’s offer to let Butcher scan his left hand, palm up as opposed to his right hand, palm down, did not resolve the essential conflict between Butcher’s sincerely held religious belief and the company’s biometric time recording system.  In this case, the company could have avoided very expensive litigation simply by allowing Butcher to have used a non-biometric time recording system, such as a manually filled-out time card.

It is for this reason, that employers are well advised to include in their employee handbooks language that makes employees aware of their right to request religious accommodation.  Employers also should provide training to supervisors on how to recognize religious accommodation issues and how to successfully address such requests. 

Religious accommodation cases typically involve conflicts between religious practices and uniformly applied workplace dress codes or grooming standards, or workplace schedules that conflict with an employee’s Sabbath or other religious holidays.  However, every case can vary.  As noted in the original article from which this blog draws its name, even an employee’s tattoo can raise religious accommodation issues.  While the religious conflict in EEOC v. Consol Energy, Inc. is not something usually encountered by employers, it illustrates that every religious accommodation issue needs to be addressed on a case-by-case basis, and that there is no “one-size fits-all” solution.

Mark Fijman is a labor and employment attorney with Phelps Dunbar, LLP, 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 fijmanm@phelps.com