Thursday, May 26, 2016

Message to Employers: “We’re from the Government . . . and we’re not here to help!”


Employers can expect some new challenges in responding to EEOC Charges and with eight months to go before a new administration, the White House has announced it is targeting the use of non-compete agreements, commonly used by many American employers to safeguard business interests and protect trade secrets and confidential information.  Employers also are facing a December 1, 2016 deadline to decide how to address the Department of Labor’s final Rule on the Fair Labor Standard Act’s “white collar exemption”, which has more than doubled the salary requirement employers must meet to claim the exemption from employee overtime.
EEOC Issues Standards for Employer Position Statements
The Equal Employment Opportunity Commission (“EEOC”) has issued first-time-ever national standards and procedures it expects employers to follow in responding to an employee EEOC Charge of Discrimination.  While some of the procedures are nothing new, and reflect long-standing practices, one aspect should cause employers and their legal counsel concern.
The new guidelines dictate that employers provide very detailed information and specific information, which is comparable to information a plaintiff’s attorney would typically request in litigation discovery.  In the new procedures, the EEOC explicitly states it  will provide a copy of the employer’s EEOC Response and any attached documents to the Charging employee at their request, and allow them to file a rebuttal statement, which will not be provided to the employer.  In essence, the EEOC will facilitate the employee’s pre-litigation discovery, but leave the employer in the dark.  This presents a quandary for employers.  Typically, you want to present your strongest arguments in your position statement.  However, knowing that particular information and legal theories presented to the EEOC will be seen by the employee and his or her attorney raises the issue of how much to include, knowing that litigation is likely to follow the filing of the Charge.  The EEOC procedures give no basis as to why the employer is not allowed access to the employee’s rebuttal statement.
The procedures also require that if any reference to trade secrets or confidential business or financial information is made in the employer’s position statement, copies of such documents must be provided as separate attachments.  The procedures note the “EEOC will review attachments designated as confidential and consider the justification provided, as the agency will not condone blanket or unsupported assertions of confidentiality.”  What this means is that the EEOC will decide whether it considers the documents confidential, and if it does not, such documents could be provided to the Charging employee and their attorney.  The procedures also provide a much stricter standard for granting employers extensions of time to submit their position statements.  The EEOC now requires that all position statements and documents be filed digitally via an EEOC Internet portal.
White House Targets Non-Compete Agreements
Earlier this month, the White House released a report highly critical of the use of non-compete agreements by American employers, and listed what it considered the seven (7) problem areas of non-compete agreements:  
  1. Workers who are unlikely to possess trade secrets (i.e., low wage workers) who are nevertheless required to sign non-competes
  2. Workers who are only asked to sign a non-compete after accepting a job offer (thereby reducing their bargaining power)
  3. The lack of clarity to workers regarding the meaning and implications of the non-compete
  4. Overly broad non-compete agreements
  5. No consideration for non-compete beyond continued employment
  6. Non-competes that prevent workers from finding new work - even when they were fired without cause
  7. How non-competes restrict consumer choice
While such restrictive employment covenants are generally not favored by the courts, they will be enforced if the terms of the agreement are reasonable under the particular circumstances.  Generally, there are three requirements: (1) the employer has a valid interest to protect; (2) the geographic restriction is not overly broad; and (3) a reasonable time limit is given.  The employer bears the burden of proving the reasonableness of the agreement.  The reason these types of agreements are construed very narrowly is that most courts recognize that an employer is not entitled to protection against ordinary competition from a departing employee.  Non-compete agreements can be valuable tools to protect an employer’s legitimate business interests, but generally, it is inadvisable to have low level employees sign such agreements, because they are typically not going to possess the confidential information that would warrant enforcement of the agreement.
The White House cannot take any direct action, because such agreements are governed under the individual laws of each state, and are not governed by federal law.  The Report indicates that the Administration “will identify key areas where implementation and enforcement of non-competes may present issues, examine promising practices in states, and identify the best approaches for policy reform”, suggesting plans to lobby state legislators and policymakers in the individual states.
DOL Final Rule for FLSA White Collar Exemption
After significant delay, the U.S. Department of Labor (DOL”) announced its final rule updating the regulations applicable to white collar exemptions, which will go into effect December 1, 2016. The DOL estimates that, absent employer action, the change will entitle more than 4 million white collar workers currently classified as exempt to overtime eligibility.
The Fair Labor Standards Act (“FLSA”) generally requires that most employees be paid at least minimum wage for all hours worked and overtime pay for all hours worked over 40 hours in a workweek. However, employees employed as bona fide executive, administrative and (most) professional (“white collar”) employees are exempt from both minimum wage and overtime pay if they meet two key requirements: are paid more than a specified weekly salary on a fixed salary or “fee” basis and perform certain job duties. 

The most significant change in the final rules is that it more than doubles the required salary to $913 per week, or $47,476 annually.  The previous standard was $455 per week, or $23,660 annually. The new rule establishes a mechanism whereby the salary and compensation levels will be updated every three years, with the first update taking effect January 1, 2020.  Encompassed within the white collar exemptions are highly compensated employees who earn a higher total annual compensation level than the other categories of white collar employees and satisfy a minimal duties test. Currently, the minimum annual compensation threshold for highly compensated employees is $100,000. The final rule increases this threshold to $134,004.

In the U.S. Department of Labor Blog, the DOL has offered the following suggestions to employers on how to adapt to the upcoming new requirements:•Raise salary and keep the employee exempt from overtime: Employers may choose to raise the salaries of employees to at or above the salary level to maintain their exempt status, if those employees meet the duties test (that is, the duties are truly those of an executive, administrative or professional employee). This option works for employees who have salaries close to the new salary level and regularly work overtime.
    • Raise salary and keep the employee exempt from overtime: Employers may choose to raise the salaries of employees to at or above the salary level to maintain their exempt status, if those employees meet the duties test (that is, the duties are truly those of an executive, administrative or professional employee). This option works for employees who have salaries close to the new salary level and regularly work overtime.
    • Pay overtime in addition to the employee’s current salary when necessary: Employers also can continue to pay their newly overtime-eligible employees the same salary, and pay them overtime whenever they work more than 40 hours in a week. This approach works for employees who work 40 hours or fewer in a typical workweek, but have occasional spikes that require overtime for which employers can plan and budget the extra pay during those periods. 
    • Evaluate and realign hours and staff workload: Employers can ensure that workload distribution, time and staffing levels are all managed appropriately for their white-collar workers who earn below the salary threshold. For example, employers may hire additional workers.

Despite the happy talk from the DOL, the business community is highly critical of the new final rule.  Lower-wage business and service industries call the move a business and career killer, with limited to no benefit to the employees it is supposed to help.  According to the National Retail Federation (“NRF”), instead of increasing salaries to raise workers above the overtime threshold, many businesses will simply reclassify professionals as hourly workers, removing their existing perks, flexibility, and benefits. Likewise, the NRF expects most businesses will pay the required overtime, but simply cut base pay to compensate for the cost.
In light of broad reach of the dramatically increased salary threshold, as well as the virtually automatic increase every three years, it is imperative that employers begin analyzing their salaried exempt workforce to prepare for compliance by December 1, 2016, if they have not done so already.

Tuesday, September 1, 2015

“Sign of the Beast” Lawsuit - Part II

 


I’ll admit the title of this post sounds like the title of a bad horror movie, and for the owners of a West Virginia coal mine, a religious discrimination/failure to accommodate lawsuit is turning into a real-life legal horror show. The federal judge in the case last week granted the Equal Employment Opportunity Commission’s ("EEOC") motion for additional damages, bringing the verdict against the employer to $586,860 in lost wages, benefits and compensatory damages.

In my previous post, "Sign of the Beast" Hand Scanning Case Provides Valuable Lesson to Employers, I related how an employer’s use of a high-tech hand scanning device to keep track of payroll and stay in compliance with the Fair Labor Standards Act ("FLSA") 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.]
 
One employee, Beverly H.R. Butcher Jr., 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.
 
In January 2015, a jury ruled in Butcher’s favor and awarded $150,000.00 in compensatory damages. However, that was not the end of the case. In a post-trial motion, the EEOC sought an additional $413,000 in front and back pay.
 
On August 21, 2015, U.S. District Judge Frederick P. Stamp awarded Butcher an additional $436,860.74 in front and back pay, even more than the EEOC had originally requested. The Judge also ordered a three year injunction against Consol Energy, prohibiting the company from denying reasonable accommodations regarding the use of the hand scanning system. The Court also ordered that the company provide training to employees on religious accommodation. Not surprisingly, the company plans to appeal the verdict in the case.
 
This case should serve as a serious wake-up call to employers about recognizing religious accommodation issues under Title VII, and engaging in the interactive process of reaching an accommodation if it can be done without undue hardship. Just from the facts of this case, it’s clear no real attempt was made to accommodate Butcher, and it does not appear that the company took the issue seriously.
 
The need for employers to train supervisors on religious accommodation was recently highlighted in the recent Supreme Court decision in EEOC v. Abercrombie & Fitch Stores, Inc. In my post Ignorance is not Bliss: Religious Discrimination after the Supreme Court’s Decision in EEOC v. Abercrombie & Fitch Stores, I discussed how the Court’s ruling now imposes a heightened standard on employers, and how the EEOC’s new guidelines for accommodating religious garb can serve as a roadmap to hopefully avoiding the type of lawsuit and verdict discussed above.
 
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

Monday, August 31, 2015

Deadline Approaching for EEO-1 Filings with the EEOC


 
The deadline for designated employers to file their annual Employer Information Report ("EEO-1") with the Equal Employment Opportunity Commission ("EEOC") is September 30, 2015.
The EEO-1 Report is a compliance survey mandated by federal statute and regulations. The survey requires company employment data to be categorized by race/ethnicity, gender and job category. The form is used by the EEOC to obtain information to support civil rights enforcement and to analyze employment patterns, such as the representation of female and minority workers within companies, industries or regions. The Office of Federal Contract Compliance Programs ("OFCCP") uses the data to determine which employers to select for compliance reviews. OFCCP's system uses statistical assessment of EEO-1 data to select facilities where the likelihood of systematic discrimination is the greatest.
An employer is required to file an EEO-1 with the EEOC’s Joint Reporting Committee if it meets the following criteria:
  • Subject to Title VII of the Civil Rights Act of 1964, as amended, with 100 or more employees; or
  •  
  • Subject to Title VII of the Civil Rights Act of 1964, as amended, with fewer than 100 employees if the company is owned by or corporately affiliated with another company and the entire enterprise employs a total of 100 or more employees; or

  • Federal government prime contractors or first-tier subcontractors subject to Executive Order 11246, as amended, with 50 or more employees and a prime contractor first-tier subcontract amounting to $50,000 or more.

For employers meeting any of the criteria above, the filing of an EEO-1 is required by law and is not voluntary. Failure to file an EEO-1 can result in financial penalties, and for government contractors also can include debarment or ineligibility for federal contracts.
Information regarding the EEOC’s on-line filing system, filing instructions and sample forms can be located by clicking here.
 
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



Sunday, August 23, 2015

IGNORANCE IS NOT BLISS: RELIGIOUS ACCOMMODATION AFTER THE SUPREME COURT’S DECISION IN EEOC v. ABERCROMBIE & FITCH STORES, INC.

      I.  Introduction
      Title VII of the Civil Rights Act of 1964 ("Title VII") prohibits employment discrimination based on religion, and imposes on employers a proactive duty to accommodate religious practice that may conflict with workplace practices, as long as the religious practice does not impose an undue hardship on the employer.
      However, should an employer be liable under Title VII if they do not have actual knowledge of the need to accommodate a religious practice? Under a heightened standard imposed on employers by the United States Supreme Court in EEOC v. Abercrombie & Fitch Stores, Inc., the answer is "yes". While the ruling should not cause most companies any employment problems of "biblical proportions", it does serve as a warning to employers to pay attention for potential religious accommodation issues, be mindful of recent guidelines of the Equal Employment Opportunity Commission ("EEOC"), and to evaluate their current interview, hiring and employment policies.

      II.  The Abercrombie "Look"
      Abercrombie & Fitch ("Abercrombie") was founded in 1892 as a high-end outfitter for hunting and fishing, but the once elite company went bankrupt in 1976. A couple of years later the defunct company’s name was purchased and the new company shifted its focus to selling pricey "neo-preppy" clothing aimed at teenagers and young adults. Abercrombie pushed a very sexualized branding in its advertising and marketing in television commercials and in its stores. The company also openly promoted an elitist and exclusionary branding to its products. When asked once why he refused to make clothes in larger sizes for women, Abercrombie CEO Michael Jeffries stated the following:
      "In every school there are the cool and popular kids and the not-so-cool kids. We go after the cool kids. We go after the attractive all-American kid with a great attitude and a lot of friends. A lot of people don’t belong in our clothes, and they can’t belong. Are we exclusionary? Absolutely."
In the same interview, Jeffries noted that the company only hired good-looking people to sell their products because they attracted other good-looking people. To that end, Abercrombie imposed what it called its "Look Policy" on its young sales staff. Instead of being called sales people, they were given the title of "models". The Look Policy set very strict standards and guidelines, including detailed charts as to what hairstyles both female and male employees were allowed to have, and what clothes they were supposed to wear to fit into Abercrombie’s image. The look policy was strictly enforced. One particular part of the Look Policy, which would play a key role in the Supreme Court case, read as follows:

"For example, head coverings, including baseball caps, are not permitted. For certain purposes, such as religion or disability, however, associates may be permitted to wear approved head coverings."
      III.  Samantha Elauf Applies to Work at Abercrombie
      
In 2008, Samantha Elauf, a practicing Muslim, applied for a position at a Tulsa, Oklahoma Abercrombie store. Heather Cooke, the store’s assistant manager, subsequently interviewed the 17-year-old girl. As part of her religious practice, Elauf wears a headscarf (or hijab), and she did so in her interview. During the interview, Elauf and Cooke made no mention of the headscarf, nor did Elauf indicate that she would need any religious accommodation.

Cooke gave Elauf a favorable rating on her interview, which qualified Elauf to be hired. However, Abercrombie’s Look Policy, prohibited head coverings and caps, and Cooke was concerned that Elauf’s headscarf would conflict with this policy. When Cooke contacted the district manager, Randall Johnson, to determine whether the headscarf constituted a "cap" within the meaning of the Look Policy, Johnson indicated that the headscarf would violate the policy. Although Cooke informed Johnson that she believed Elauf wore the headscarf because of her faith, Johnson directed Cooke to lower Elauf’s rating on the appearance portion of the evaluation, which caused Elauf’s overall score to fall below the threshold necessary to be hired. Accordingly, Abercrombie did not hire Elauf. It is noteworthy that Abercrombie’s written policy did provide for making an accommodation for religious practices.

IV.  Elauf's Religious Discrimination Lawsuit in the Lower Courts

The EEOC sued Abercrombie on behalf of Elauf, alleging that Abercrombie violated Title VII by refusing to hire Elauf because of her headscarf. In response, Abercrombie argued that Elauf had a duty to inform the company that she required an accommodation from the Look Policy, and in essence, stated that Title VII did not impose a duty to "guess" whether someone needed a religious accommodation. The federal trial court granted summary judgment in favor of the EEOC on the ground that Abercrombie had actual notice of Elauf’s religious practice of wearing a headscarf because of Cooke’s assumptions about Elauf’s religion and reason for wearing the headscarf.

In reversing the trial court’s decision and granting summary judgment in favor of Abercrombie, the United States Court of Appeals for the Tenth Circuit concluded that ordinarily an applicant (or employee) must establish that she informed the employer that she needed an accommodation for a particular religious practice due to a conflict between the practice and the employer’s work rules.

V.  The Supreme Court Sets a Heightened Standard for Employers
The U.S. Supreme Court reversed the ruling of the Tenth Circuit in an 8 to 1 decision. In doing so, the Supreme Court held that, to prevail in a disparate-treatment claim, "an applicant need only show that his need for an accommodation was a motivating factor in the employer’s decision," not that the employer had knowledge of his need. According to the Court, while some anti-discrimination statutes, such as the Americans with Disabilities Act of 1990, impose a knowledge requirement, Title VII does not. Instead, Title VII prohibits certain motives. As such, "an employer who acts with the motive of avoiding accommodation may violate Title VII even if he has no more than an unsubstantiated suspicion that accommodation would be needed." (emphasis added). In other words, "[a]n employer may not make an applicant’s religious practice, confirmed or otherwise, a factor in employment decisions." (emphasis added). Despite the Court’s ruling in this regard, the Court recognized that the applicant (or employee) must actually require an accommodation for the employer to violate Title VII.
In essence, the Supreme Court held that actual knowledge is not required to trigger an employer’s duty to accommodate a religious practice, and that suspicion alone could be enough to impose liability. In this case, it was undisputed that the Abercrombie Assistant Manager at least suspected the headscarf was worn for religious reasons, and that suspicion resulted in Elauf not being hired.
The Court did note in its decision that the motive requirement may not be met if the employer does not suspect that the practice in question is a religious practice. Although the Court declined to specifically address this issue, the Court indicated that an employer might avoid liability if the evidence shows that the employer neither suspected nor had knowledge that a practice is a religious practice.
Where does this leave employers? As a general practice, it is a wise idea for employers to avoid asking applicants about their religious practices, or making unsupported assumptions based on ethnic or religious stereotyping. But in light of the Supreme Court’s decision, and employer who has any reason to believe or even suspect an accommodation may be needed should consider opening up a dialogue with the applicant to begin the interactive process. This could involve:
    • Explaining the relevant work rule

    • Asking if the applicant could comply with the workplace requirement or would an accommodation be required



    • Analysis of whether required/requested accommodation is reasonable or would impose an undue hardship




    • If unclear, seek advice from legal counsel
VI.  EEOC Issues Guidelines for Accommodating Religious Practices
On March 6, 2014, the EEOC issued a new technical assistance publication addressing workplace rights and responsibilities with respect to religious dress and grooming under Title VII. The question-and-answer guide, entitled
"Religious Garb and Grooming in the Workplace: Rights and Responsibilities," and an accompanying fact sheet, is intended to offer practical advice for employers and employees, and presents numerous case examples based on the EEOC's litigation.
Examples of religious dress and grooming practices include wearing religious clothing or articles (e.g., a Muslim hijab (headscarf), a Sikh turban, or a Christian cross); observing a religious prohibition against wearing certain garments (e.g., a Muslim, Pentecostal Christian, or an Orthodox Jewish woman's practice of not wearing pants or short skirts), or adhering to shaving or hair length observances (e.g., Sikh uncut hair and beard, Rastafarian dreadlocks, or Jewish peyes (sidelocks)).
As noted above, employers covered by Title VII must accommodate exceptions to their usual rules or preferences to permit applicants and employees to follow religiously mandated dress and grooming practices unless it would pose an undue hardship to the operation of an employer's business. Topics covered in the guidelines include:
    • Prohibitions on job segregation, such as assigning an employee to a non-customer service position because of his or her religious garb




    • Accommodating religious grooming or garb practices while ensuring employer workplace needs




    • Avoiding workplace harassment based on religion, which may occur when an employee is required or coerced to forgo religious dress or grooming practices as a condition of employment




    • Ensuring there is no retaliation against employees who request religious accommodatio
What are the major points that employers should note from the EEOC’s guidelines? They are as follows:
    • "Magic words" are not required for an accommodation request if it is obvious that a particular practice is religiously-motivated and conflicts with a work policy

    • An employer cannot justify a refusal to accommodate based on its belief that the employee’s religious beliefs are not "sincerely held"




    • Title VII defines religion very broadly to include not only traditional, organized religions but also religious beliefs that are new, uncommon, not part of a formal church or sect, only subscribed to by a small number of people, or may seem illogical or unreasonable to others




    • Title VII protects employees who are discriminated against because they profess no religion




    • Employer must show actual "undue hardship" and not speculative hardship




    • Customer complaints or preference is not an undue hardship and not a defense for failure to accommodate




    • Co-workers' disgruntlement or jealousy about the religious accommodation is not considered undue hardship




    • Segregating the employee or moving the employee to a position not dealing with customers violates Title VII




    • When an exception is made as a religious accommodation, the employer may still refuse to allow exceptions sought by other employees for secular reasons



Case examples in the EEOC guidelines include the following:




EXAMPLE 1 - New Observance


Eli has been working at the Burger Hut for two years. While in the past he has always worn his hair short, he has recently let it grow longer. When his manager advises him that the company has a policy requiring male employees to wear their hair short, Eli explains that he is a newly practicing Nazirite and now adheres to religious beliefs that include not cutting his hair. Eli's observance can be sincerely held even though it is recently adopted.




EXAMPLE 2 - Observance That Only Occurs at Certain Times or Irregularly


Afizah is a Muslim woman who has been employed as a bank teller at the ABC Savings & Loan for six months. The bank has a dress code prohibiting tellers from wearing any head coverings. Although Afizah has not previously worn a religious headscarf to work at the bank, her personal religious practice has been to do so during Ramadan, the month of fasting that falls during the ninth month of the Islamic calendar. The fact that Afizah adheres to the practice only at certain times of the year does not mean that her belief is insincere.




EXAMPLE 3 - Employment Decision Based on Customer Preference


Adarsh, who wears a turban as part of his Sikh religion, is hired to work at the counter in a coffee shop. A few weeks after Adarsh begins working, the manager notices that the work crew from the construction site near the shop no longer comes in for coffee in the mornings. When the manager makes inquiries, the crew complains that Adarsh, whom they mistakenly believe is Muslim, makes them uncomfortable in light of the anniversary of the September 11th attacks. The manager tells Adarsh that he will be terminated because the coffee shop is losing the construction crew's business. The manager has subjected Adarsh to unlawful religious discrimination by taking an adverse action based on customer preference not to have a cashier of Adarsh's perceived religion. Adarsh's termination based on customer preference would violate Title VII regardless of whether he was correctly or incorrectly perceived as Muslim, Sikh, or any other religion.
Employers may be able to prevent this type of religious discrimination from occurring by taking steps such as training managers to rely on specific experience, qualifications, and other objective, non-discriminatory factors when making employment decisions. Employers should also communicate clearly to managers that customer preference about religious beliefs and practices is not a lawful basis for employment decisions. When an exception is made as a religious accommodation, the employer may nevertheless retain its usual dress and grooming expectations for other employees, even if they want an exception for secular reasons. Co-workers' disgruntlement or jealousy about the religious accommodation is not considered undue hardship, nor is customer preference.



EXAMPLE 4 - Exception to Uniform Policy as a Religious Accommodation


Based on her religious beliefs, Ruth adheres to modest dress. She is hired as a front desk attendant at a sports club, where her duties consist of checking members' identification badges as they enter the facility. The club manager advises Ruth that the club has a dress code requiring all employees to wear white tennis shorts and a polo shirt with the facility logo. Ruth requests permission as a religious accommodation to wear a long white skirt with the required shirt, instead of wearing shorts. The club grants her request, because Ruth's sincerely held religious belief conflicts with the workplace dress code, and accommodating her would not pose an undue hardship. If other employees seek exceptions to the dress code for non-religious reasons such as personal preference, the employer is permitted to deny their requests, even though it granted Ruth a religious accommodation.
How will an employer know when it must consider making an exception to its dress and grooming policies or preferences to accommodate the religious practices of an applicant or employee? Typically, the employer will advise the applicant or employee of its dress code or grooming policy, and subsequently the applicant or employee will indicate that an exception is needed for religious reasons. Applicants and employees will not know to ask for an accommodation until the employer makes them aware of a workplace requirement that conflicts with their religious practice. The applicant or employee need not use any "magic words" to make the request, such as "accommodation" or "Title VII." If the employer reasonably needs more information, however, the employer and the employee should discuss the request. In some instances, even absent a request, it will be obvious that the practice is religious and conflicts with a work policy, and therefore that accommodation is needed.




EXAMPLE 5 - Employer Knowledge Insufficient


James's employer requires all of its employees to be clean-shaven. James is a newly hired employee, and was hired based on an online application and a telephone interview. When he arrives the first day with an unshorn beard, his supervisor informs him that he must comply with the "clean-shaven" policy or be terminated. James refuses to comply, but fails to inform his supervisor that he wears his beard for religious reasons. James should have explained to his supervisor that he wears the beard pursuant to a religious observance. The employer did not have to consider accommodation because it did not know that James wore his beard for religious reasons.




EXAMPLE 6 - Employer Knowledge Sufficient


Same facts as above but, instead, when James's supervisor informs him that he must comply with the "clean-shaven" policy or be terminated, James explains that he wears the beard for religious reasons, as he is a Messianic Christian. This is sufficient to request accommodation. The employer is permitted to obtain the limited additional information needed to determine whether James's beard is worn due to a sincerely held religious practice and, if so, must accommodate by making an exception to its "clean-shaven" policy unless doing so would be an undue hardship.




EXAMPLE 7 - Employer Believes Practice Is Religious and Conflicts with Work Policy


Aatma, an applicant for a rental car sales position who is an observant Sikh, wears a chunni (religious headscarf) to her job interview. The interviewer does not advise her that there is a dress code prohibiting head coverings, and Aatma does not ask whether she would be permitted to wear the headscarf if she were hired. There is evidence that the manager believes that the headscarf is a religious garment, presumed it would be worn at work, and refused to hire her because the company requires sales agents to wear a uniform with no additions or exceptions. This refusal to hire violates Title VII, even though Aatma did not make a request for accommodation at the interview, because the employer believed her practice was religious and that she would need accommodation, and did not hire her for that reason. Moreover, if Aatma were hired but then instructed to remove the headscarf, she could at that time request religious accommodation.




EXAMPLE 8 - Assigning Employee to "Back Room" Because of Religious Garb


Nasreen, a Muslim applicant for an airport ticket counter position, wears a headscarf, or hijab, pursuant to her religious beliefs. Although Nasreen is qualified, the manager fears that customers may think an airport employee who is identifiably Muslim is sympathetic to terrorist hijackers. The manager, therefore, offers her a position in the airline's call center where she will only interact with customers by phone. This is religious segregation and violates Title VII.
As a best practice, managers and employees should be trained that the law may require making a religious exception to an employer's otherwise uniformly applied dress or grooming rules, practices, or preferences. They should also be trained not to engage in stereotyping about work qualifications or availability based on religious dress and grooming practices. Many EEOC settlements of religious accommodation cases provide for the employer to adopt formal religious accommodation procedures to guide management and employees in handling these requests, as well as annual training on this topic.
May an employer accommodate an employee's religious dress or grooming practice by offering to have the employee cover the religious attire or item while at work? Yes, if the employee's religious beliefs permit covering the attire or item. However, requiring an employee's religious garb, marking, or article of faith to be covered is not a reasonable accommodation if that would violate the employee's religious beliefs.




EXAMPLE 9 - Covering Religious Symbol Contrary to Individual's Religious Beliefs


Edward practices the Kemetic religion, an ancient Egyptian faith, and affiliates himself with a tribe numbering fewer than ten members. He states that he believes in various deities and follows the faith's concept of Ma'at, a guiding principle regarding truth and order that represents physical and moral balance in the universe. During a religious ceremony he received small tattoos encircling his wrist, written in the Coptic language, which express his servitude to Ra, the Egyptian god of the sun. When his employer asks him to cover the tattoos, he explains that it is a sin to cover them intentionally because doing so would signify a rejection of Ra. Therefore, covering the tattoos is not a reasonable accommodation, and the employer cannot require it absent undue hardship.




EXAMPLE 10 - "Image"


Jon, a clerical worker who is an observant Jew, wears tzitzit (ritual knotted garment fringes at the four corners of his shirt) and a yarmulke (or skull cap) in conformance with his Jewish beliefs. XYZ Temps places Jon in a long-term assignment with one of its client companies. The client asks XYZ to notify Jon that he must remove his yarmulke and his tzitzit while working at the front desk, or assign another person to Jon's position. According to the client, Jon's religious attire presents the "wrong image" and also violates its dress code prohibiting any headgear and requiring "appropriate business attire." XYZ Temps may not comply with this client request without violating Title VII.
The client also would violate Title VII if it changed Jon's duties to keep him out of public view, or if it required him not to wear his yarmulke or his tzitzit when interacting with customers. Assigning Jon to a position out of public view is segregation in violation of Title VII. Moreover, because notions about customer preference (real or perceived) do not establish undue hardship, the client must make an exception to its dress code to let Jon wear his religious garb during front desk duty as a religious accommodation. XYZ should strongly advise its client that the EEO laws require allowing Jon to wear this religious garb at work and that, if the client does not withdraw its request, XYZ will place Jon in another assignment at the same rate of pay and decline to assign another worker to the client.
An employer's reliance on the broad rubric of "image" or marketing strategy to deny a requested religious accommodation may amount to relying on customer preference in violation of Title VII, or otherwise be insufficient to demonstrate that making an exception would cause an undue hardship on the operation of the business.




EXAMPLE 11 - "Image"


Tahera, an applicant for a retail sales position at a national clothing company that carries current fashions for teens, wears a headscarf in accordance with her Muslim religious beliefs. Based on its marketing strategy, the company requires sales personnel to wear only clothing sold in its stores, and no headgear, so that they will look like the clothing models in the company's sales catalogues. Although the company believes that Tajera wears a headscarf for religious reasons, the company does not hire her because it does not want to make an exception. While the company may maintain its dress and grooming rule for other sales personnel, it must make an exception for Tahera as a religious accommodation in the absence of employer evidence of undue hardship.
In many jobs for which employers require employees to wear uniforms (e.g., certain food service jobs or service industry jobs), the employee's beliefs may permit accommodation by, for example, wearing the item in the company uniform color(s). Employers should ensure that front-line managers and supervisors understand that if an employee's proposed accommodation would pose an undue hardship, the employer should explore alternative accommodations.




EXAMPLE 12 - Public Employee


Elizabeth, a librarian at a public library, wears a cross as part of her Catholic religious beliefs. In addition, after church services she attends on Ash Wednesday each year, Elizabeth arrives at work with a black ash mark on her forehead in the shape of a cross, which she leaves on until it wears off. Her new supervisor directs her not to wear the cross in the future while on duty, and to wash off the ash mark before reporting to work. Because Elizabeth's duties require her to interact with the public as a government employee, the supervisor fears that her cross and ash mark could be mistaken as government endorsement of religion in violation of the Establishment Clause of the First Amendment to the U.S. Constitution. He cites the need to avoid any appearance of religious favoritism by government employees interacting with the public, and emphasizes that librarians must be viewed as impartial with respect to any information requests from library patrons. However, because the librarian's cross and ash mark are clearly personal in this situation, they would not cause a perception of government endorsement of religion. Accordingly, accommodating Elizabeth's religious practice is not an undue hardship under Title VII.




EXAMPLE 13 - Public Employee


Gloria, a newly hired municipal bus driver, was terminated when she advised her supervisor during new-employee orientation that due to the tenets of her faith (Apostolic Pentecostal), she needs to wear a skirt rather than the pants required by the transit agency dress code. Absent evidence that the type of skirt Gloria must wear would pose an actual safety hazard, no undue hardship would have been posed by allowing this dress code exception, and Gloria's termination would violate Title VII.
Government agency employers, like private employers, must generally allow exceptions to dress and grooming codes as a religious accommodation, although there may be limited situations in which the need for uniformity of appearance is so important that modifying the dress or grooming code would pose an undue hardship. Therefore, it is advisable in all instances for employers to make a case-by-case determination of any needed religious exceptions.




EXAMPLE 14 - Long Hair


David wears long hair pursuant to his Native American religious beliefs. He applies for a job as a server at a restaurant that requires its male employees to wear their hair "short and neat." When the restaurant manager informs David that if offered the position he will have to cut his hair, David explains that he keeps his hair long based on his religious beliefs and offers to wear it in a ponytail or held up with a clip. The manager refuses this accommodation and denies David the position because he has long hair. Since David could have been accommodated without undue hardship by wearing his hair in a ponytail or held up neatly with a clip, the employer violated Title VII.




EXAMPLE 15 - Facial Hair


Prakash, who works for CutX, a surgical instrument manufacturer, does not shave or trim his facial hair because of his Sikh religious observance. When he seeks a promotion to manage the division responsible for sterilizing instruments, his employer tells him that he must shave or trim his beard because it may contaminate the sterile field. All division employees are required to be clean-shaven and wear a facemask. When Prakash explains that he does not trim his beard for religious reasons, the employer offers to allow Prakash to wear two facemasks instead of trimming his beard. Prakash thinks that wearing two masks is unreasonable and files a Title VII charge. CutX will prevail because it offered a reasonable accommodation that would eliminate Prakash's religious conflict with the hygiene rule.




EXAMPLE 16 - Facial Hair


Raj, a Sikh, interviews for an office job. At the end of the interview, he receives a job offer but is told he will have to shave his beard because all office staff is required to be "clean shaven" to promote discipline. Raj advises the hiring manager that he wears his beard unshorn because of his Sikh religious practice. Since no undue hardship is posed by allowing Raj to wear his beard, the employer must make an exception as an accommodation.




EXAMPLE 17 - Clothing Requirements Near Machinery


Mirna alleges she was terminated from her job in a factory because of her religion (Pentecostal) after she told her supervisor that her faith prohibits her from wearing pants as required by the company's new dress code. Mirna requested as an accommodation to be permitted to continue wearing a long but close-fitting skirt. Her manager replies that the dress code is essential to safe and efficient operations on the factory floor, but there is no evidence regarding operation of the machinery at issue to show that close-fitting clothing like that worn by Mirna poses a safety risk. Because the evidence does not establish that wearing pants is truly necessary for safety, the accommodation requested by Mirna does not pose an undue hardship.




EXAMPLE 18 - Head Coverings That Pose Security Concerns


A private company contracts to provide guards, administrative and medical personnel, and other staff for state and local correctional facilities. The company adopts a new, inflexible policy barring any headgear, including religious head coverings, in all areas of the facility, citing security concerns about the potential for smuggling contraband, interfering with identification, or use of the headgear as a weapon. To comply with Title VII, the employer should consider requests to wear religious headgear on a case-by-case basis to determine whether the identified risks actually exist in that situation and pose an undue hardship. Relevant facts may include the individual's job, the particular garb at issue, and the available accommodations. For example, if an individual's religious headgear is or can be worn in a manner that does not inhibit visual identification of the employee, and if temporary removal may be accomplished for security screens and to address smuggling concerns without undue hardship, the individual can be accommodated.




EXAMPLE 19 - Kirpan


Harvinder, a Sikh who works in a hospital, wears a small (4-inch), dull, and sheathed kirpan (symbolic miniature sword) strapped and hidden underneath her clothing, as a symbol of her religious commitment to defend truth and moral values. When Harvinder's supervisor, Bill, learned about her kirpan from a co-worker, he instructed Harvinder not to wear it at work because it violated the hospital policy against weapons in the workplace. Harvinder explained to Bill that her faith requires her to wear a kirpan in order to comply with the Sikh code of conduct, and gave him literature explaining that the kirpan is a religious artifact, not a weapon. She also showed him the kirpan, allowing him to see that it was no sharper than the butter knives found in the hospital cafeteria. Nevertheless, Bill told her that her employment at the hospital would be terminated if she continued to wear the kirpan at work. Absent any evidence that allowing Harvinder to wear the kirpan would pose an undue hardship in the factual circumstances of this case, the hospital is liable for denial of accommodation.




EXAMPLE 20 - Retaliation for Requesting Accommodation


Salma, a retail employee, requests that she be permitted to wear her religious headscarf as an exception to her store's new uniform policy. Joe, the store manager, refuses. Salma contacts the human resources department at the corporate headquarters. Despite Joe's objections, the human resources department instructs him that under the circumstances there is no undue hardship and that he must grant the request. Motivated by reprisal, Joe shortly thereafter gives Salma an unjustified poor performance rating and denies her request to attend training that he approves for her co-workers. This violates Title VII.
Title VII prohibits retaliation by an employer because an individual has engaged in protected activity under the statute, which includes requesting religious accommodation. Protected activity may also include opposing a practice the employee reasonably believes is made unlawful by one of the employment discrimination statutes, or filing a charge, testifying, assisting, or participating in any manner in an investigation, proceeding, or hearing under the statute.




EXAMPLE 21 - Co-Worker Harassment


XYZ Motors, a large used car business, has several employees who are observant Sikhs or Muslims and wear religious head coverings. A manager becomes aware that an employee named Bill regularly calls these co-workers names like ‘diaper head," "bag head," and "the local terrorists," and that he has intentionally embarrassed them in front of customers by claiming that they are incompetent. Managers and supervisors who learn about objectionable workplace conduct based on religion or national origin are responsible for taking steps to stop the conduct by anyone under their control.
Religious harassment under Title VII may occur when an employee is required or coerced to abandon, alter, or adopt a religious practice as a condition of employment. Religious harassment may also occur when an employee is subjected to unwelcome statements or conduct based on religion. Harassment may include offensive remarks about a person's religious beliefs or practices, or verbal or physical mistreatment that is motivated by the victim's religious beliefs or practices. Although the law does not prohibit simple teasing, offhand comments, or isolated incidents that are not very serious, such conduct rises to the level of illegal harassment when it is so frequent or severe that it creates a hostile or offensive work environment or when it results in an adverse employment action (such as the victim being fired or demoted). The harasser can be the victim's supervisor, a supervisor in another area, a co-worker, or even a third party who is not an employee of the employer, such as a client or customer.
An employer is liable for harassment by co-workers and third parties where it knew or should have known about the harassment and failed to take prompt and appropriate corrective action. An employer is always liable for harassment by a supervisor if it results in a tangible employment action, such as the harassment victim being fired or demoted. Even if the supervisor's harassment does not result in a tangible employment action, the employer will still be liable unless it exercised reasonable care to prevent and correct promptly any harassing behavior (such as having an effective complaint procedure) and the harassed employee unreasonably failed to take advantage of opportunities to prevent or correct it (such as failing to use the complaint procedure).
Workplace harassment and its costs are often preventable. Clear and effective policies prohibiting ethnic and religious slurs and related offensive conduct are essential. Confidential complaint mechanisms for promptly reporting harassment are critical, and these policies should encourage both victims and witnesses to come forward. When harassment is reported, the focus should be on action to end the harassment and correct its effects on the complaining employee. Employers should have a well-publicized and consistently applied anti-harassment policy that clearly explains what is prohibited, provides multiple avenues for complaints to management, and ensures prompt, thorough, and impartial investigations and appropriate corrective action.
The policy should also assure complainants that they are protected against retaliation. Employees who are harassed based on religious belief or practice should report the harassment to their supervisor or other appropriate company official in accordance with the procedures established in the company's anti-harassment policy.
Once an employer is on notice of potential religious harassment, the employer should take steps to stop the conduct. To prevent conflicts from escalating to the level of a Title VII violation, employers should immediately intervene when they become aware of abusive or insulting conduct, even absent a complaint.



VII.  Reasonable/Unreasonable Accommodations?


Court cases illustrate how case-by-case and fact intensive the process of reasonable accommodation can be, and the high cost of mistakes or poor judgment. This is illustrated in a case where an employer’s use of a high-tech device to stay in compliance with the Fair Labor Standards Act resulted in a large dollar jury verdict as well as continued scrutiny from the EEOC.

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 foolproof and elegant solution? That question would best be directed to mining company Consol Energy, Inc.
Consol operates a coalmine in West Virginia, and utilizes a biometric hand scanning system 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 also sought an additional $413,000 in front and backpay. Adding insult to injury, the EEOC later 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.
However, slightly different facts can yield significantly different results. In Yeager v. FirstEnergy Generation Corp. (6th Cir.), the court 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."  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.


VIII.  "Sincerely Held" Beliefs

As noted above, 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. 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 an earlier article,

"The Employee with the Dragon Tattoo", even tattoos and piercings have been recognized as sincerely held religious practices. However, sometimes even the courts find that certain purported "sincerely held" beliefs do not pass the smell test.
In Marshel 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.
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 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.
IX.  Conclusion

Employers cannot anticipate every possible religious practice that may conflict with an employment policy in today’s diverse and multi-cultural workplace. However employers need not become theological scholars to avoid the "unholy war" of litigation, but instead address each issue that arises on a case-by-case basis in an interactive process with the employee. In light of the ruling in EEOC v. Abercrombie & Fitch Stores, Inc., employers also need to be alert to those situations where the need for accommodation may not be actually known, or overtly requested, but where there is enough information to warrant further inquiry.



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, August 11, 2015

OUTSIDE YOUR COMFORT” ZONE: WORKPLACE ISSUES THAT PUT THE “OMG” IN “HR”

 
 

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
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  • 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;
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  • Job restructuring;
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  • Part-time or modified work schedules; or
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  • 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.
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  • 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.
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  • 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.
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  • Employees are not asked to provide any medical or legal documentation of their gender identity in order to have access to gender-appropriate facilities.
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  • No employee should be required to use a segregated facility apart from other employees because of their gender identity or transgender status.
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  • 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."
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  • 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.
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  • 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."
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  • 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
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  • Unplanned or increased use of earned time or paid time off
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  • Decreased productivity
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  • Tension around receiving repeated personal phone calls
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  • Wearing long sleeves on a hot day or sunglasses inside
  • Difficulty in making decisions alone
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  • Difficulty concentrating on tasks
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  • Avoiding windows, main entrance of office
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  • Repeated discussion of marital or relationship problems
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  • Flowers or gifts sent to employee at the workplace for no apparent reason
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  • Bruises, chronic headaches, abdominal pains or muscle aches
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  • ague, non-specific medical complaints
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  • Sleeping or eating disorders
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  • Signs of fear, anxiety or depression
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  • Fatigue
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  • Intense startle reactions
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  • Suicidal or homicidal thoughts
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  • 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. 
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  • 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?"
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  • 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.
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  • 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.
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  • 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.
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  • Explain your workplace’s policy on leave for victims of violence.
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  • Explain other personnel policies in your workplace that may address these issues.
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  • Explain to the employee-victim that, to the extent possible, his or her personal information will be kept confidential.
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  • 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.
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  • 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