THE EEOC CATCHES THE FLU BUG

 

Back in June, when flu season was still just a sneeze on the horizon, I reported in “Religious Discrimination or Infectious Insubordination?” on how the Equal Employment Opportunity Commission (“EEOC”) was suing a Massachusetts hospital for religious discrimination over its policy of mandatory flu shots.

 

While not as infectious as the influenza virus itself, the EEOC’s litigation over this issue also appears to be spreading across the country.  In  EEOC v. Saint Vincent Health Center, the EEOC has filed suit against a Pennsylvania hospital, alleging the facility violated Title VII of the Civil Rights Act (“Title VII”) by failing to accommodate the religious beliefs of six employees and terminating their employment.

According to the EEOC's lawsuit, in October 2013, Saint Vincent Health Center implemented a mandatory seasonal flu vaccination requirement for its employees unless they were granted an exemption for medical or religious reasons. Under the policy, employees who received an exemption were required to wear a face mask while having patient contact during flu season instead of receiving the vaccination.

In its lawsuit, EEOC alleges that the six employees requested religious exemptions from the flu vaccination requirement based on religious beliefs, and that the facility denied their requests. When the employees continued to refuse to get a flu shot, they were fired.  The lawsuit makes a point of noting that during the same period, the hospital granted 14 vaccination exemption requests based on non-religious medical reasons. 

In addition to this newest case in Pennsylvania, and the one in Massachusetts, the EEOC also has filed a similar lawsuit against a hospital in North Carolina for failing to accommodate employees’ religious objections to mandatory flu shots.

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

Whether the EEOC or the healthcare facilities will prevail in these lawsuits will likely hinge on whether it is an undue hardship to offer an accommodation to a policy aimed at protecting the health and safety of patients.  In the Massachusetts and Pennsylvania cases, an accommodation of wearing a facemask to prevent contagion was refused by employees.  In the North Carolina case, the failure to accommodate claim is based on the employee requesting an exemption after the deadline for getting a flu shot already had passed.

According to the Centers for Disease Control and Prevention, the flu is highly contagious and people with flu can spread it to others up to about 6 feet away. Most experts think that flu viruses are spread mainly by droplets made when people with flu cough, sneeze or talk. These droplets can land in the mouths or noses of people who are nearby or possibly be inhaled into the lungs. Less often, a person might also get flu by touching a surface or object that has flu virus on it and then touching their own mouth or nose.  While the effects of the flu on most people are not life-threatening, the CDCP notes that severe cases of the flu can result in death for some people, such as the elderly, young children, and persons with certain health conditions, including weakened immune systems.

Back in August of this year, a federal court in Pennsylvania dismissed a similar lawsuit brought by a hospital employee in Fallon v. Mercy Catholic Medical Center.  In dismissing the plaintiff’s Title VII religious discrimination, the court’s opinion focused on the fact that the employee’s secular objections to receiving a flu shot simply were not entitled to the religious protections of Title VII:

In sum, Fallon clearly fails to state a claim for religious discrimination under Title VII. He does not belong to a religious congregation, nor does he claim that his reasons for refusing to be vaccinated are based on “religious beliefs,” sincerely held or otherwise. To the contrary, Fallon’s stated opposition to vaccinations is entirely personal, political, sociological and economic—the very definition of secular philosophy as opposed to religious orientation. To adopt Fallon’s argument that he need only show a strongly held moral or ethical belief in lieu of a sincere religious belief would contravene Third Circuit and Supreme Court precedent and would potentially entitle anyone with “strongly held” beliefs on any topic to protection under Title VII’s religious discrimination provision.

However, it remains to be seen whether the court’s ruling in Fallon will be of much help to the Pennsylvania hospital in the EEOC’s latest lawsuit.  Title VII and courts generally construe 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 EEOC GETS A DREAD (LOCKS) RULING

Back in October 2013, The Employee With The Dragon Tattoo told you about how the Equal Employment Opportunity Commission ("EEOC") had filed suit against Catastrophe Management Solutions Inc. (“CMSI”), an Alabama based insurance claims company.  The lawsuit alleged the company violated Title VII of the Civil Rights Act by discriminating against an African-American job applicant on the basis of race because she wore dreadlocks. The case highlighted the employment issues that can arise over workplace grooming policies, and also sparked sharp criticism against the EEOC’s position from the business community, as well as on the pages of the Wall Street Journal.

 

However, in a recent ruling, the U.S. Court of Appeals for the Eleventh Circuit has upheld the employer’s workplace ban on dreadlocks and rejected the EEOC’s hard-edged position that a mutable choice, such as hairstyle, equals an immutable trait such as race.
 

The case began back in 2012.  Chastity Jones was offered a position with CMSI as a customer service representative. At the time of her interview, Jones, who is black, had blond hair that was dreaded in neat curls, or “curllocks.” CMSI’s grooming policy required employees to be “dressed and groomed in a manner that projects a professional and businesslike image while adhering to company and industry standards and/or guidelines . . . [H]airstyles should reflect a business/professional image.  No excessive hairstyles or unusual colors are acceptable.”  When the manager in charge told Jones that the company did not allow dreadlocks and that she would have to change her hairstyle in order to obtain employment. Jones declined to do so, and the manager immediately rescinded the job offer.
 

In the lawsuit, the EEOC argued that CMSI’s ban on dreadlocks and the imposition of its grooming policy on Jones discriminated against African-Americans based on physical and/or cultural characteristics.  At the time of the filing of the lawsuit, Delner Franklin-Thomas, district director for the EEOC's Birmingham District Office, stated, “Generally, there are racial distinctions in the natural texture of black and non-black hair. The EEOC will not tolerate employment discrimination against African-American employees because they choose to wear and display the natural texture of their hair, manage and style their hair in a manner amenable to it, or manage and style their hair in a manner differently from non-blacks.” 

The lower federal court later dismissed the lawsuit on the basis that unlike race, “a hairstyle, even one closely associated with a particular ethnic group, is a mutable characteristic.”  The EEOC appealed to the Eleventh Circuit, arguing that dreadlocks are a natural outgrowth of the immutable trait of race and that a policy forbidding dreadlocks could be a form of racial stereotyping.
 

In his recent article discussing the Eleventh Circuit’s ruling against the EEOC, my colleague Day Peake, in Phelps Dunbar’s Mobile, Alabama Office, explained the appellate court’s rationale:
 

The Eleventh Circuit held that Title VII’s prohibition on intentional discrimination does not protect hairstyles culturally associated with race. Rather, it prohibits intentional discrimination based on immutable traits such as race, color or national origin. By this rationale, the court explained, discrimination based on black hair texture, such as a natural Afro, would violate Title VII. A prohibition on an all-braided hairstyle, however, addresses a mutable choice and does not implicate Title VII’s proscription of intentional race discrimination.

This decision offers an important exploration of the definition of “race,” which is not defined in Title VII. EEOC relied on its Compliance Manual definition, which provides that “Title VII prohibits employment discrimination against a person because of cultural characteristics often linked to race or ethnicity, such as a person’s name, cultural dress and grooming practices, or accent or manner of speech.” The court chose not to give this guidance much deference or weight in its analysis because the court found the guidance to be contradictory to a position taken by EEOC in an earlier administrative appeal.

The Eleventh Circuit also rejected and criticized the EEOC’s argument on appeal that CMSI’s grooming policy was illegal under a theory of disparate impact, which does not require proof of discriminatory intent, as opposed to disparate treatment, which would constitute intentional discrimination.

In addition to a victory for CMSI, the Eleventh Circuit also vindicated the Wall Street Journal’s assessment of the EEOC’s lawsuit back in 2013:

Apparently Ms. Franklin-Thomas has never seen dreadlocked whites (like the Counting Crow's Adam Duritz) or Latinas (like Shakira). Catastrophe's policy is in fact racially neutral because it enjoins all employees, regardless of race, "to be dressed and groomed in a manner that projects a professional and businesslike image," including "hairstyle." The company determined that dreadlocks don't meet that standard, as is its right . . . The larger travesty of this case and other misbegotten EEOC crusades of late is that they take time and resources away from individuals with legitimate claims of employment discrimination. Banning dreadlocks doesn't qualify.

Notwithstanding the Eleventh Circuit’s ruling, issues of workplace grooming and dress codes are often case and fact specific, and can easily turn into a litigation minefield, particularly over issues of religious accommodation.  This was highlighted recently in the United States Supreme Court’s ruling in EEOC v. Abercrombie & Fitch Stores (2015). 

Employers should carefully and regularly review such policies, and consult with counsel prior to taking adverse employment actions based on violations of such policies that might implicate a protected class of employees under Title VII.

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

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



 



“♫ Sign, Sign, Everywhere a Sign ♪”: The EEOC and DOL Sing a New Tune on Required Postings

 Those old enough  may remember the 1970 one-hit-wonder “Signs” by the rock group Five Man Electric Band, with its chorus of:

Sign, sign, everywhere a sign

Blockin’ out the scenery, breakin’ my mind

Do this, don’t do that, can’t you read the sign?

 In some recent announcements, the Equal Employment Opportunity Commission (“EEOC”) and the U.S. Department of Labor (“DOL”) are calling the tune on employer requirements for posting employee notices of their rights under Title VII of the Civil Rights Act of 1964 (“Title VII”), the Americans with Disabilities Act (“ADA”), the Genetic Information Nondiscrimination Act (“GINA”), and the Family and Medical Leave Act (“FMLA”)  Unlike the 1970 song, the requirements do not address a protected class of “long haired freaky people”, but do impose financial penalties for noncompliance.

Effective July 5, 2016, the EEOC’s new rule more than doubles the maximum fine against employers for not complying with the posting requirements under Title VII, the ADA and GINA.  Employers will now face a maximum penalty of $525 per violation, up from $210.  The penalty last changed in 2014, when the EEOC increased it from $110 to $220.

Under the law, employers with 15 or more employees are required to post a notice describing their rights under federal laws prohibiting job discrimination based on race, color, sex, national origin, religion, age, equal pay, disability, or genetic information.  These Equal Employment Opportunity (“EEO”) posters are required to be placed in a conspicuous location in the workplace where notices to applicants and employees are customarily posted.  In addition to physically posting the notices, the EEOC encourages employers also to post similar electronic notices on their internal websites in a conspicuous location.  However, such an electronic posting does not fulfill the requirement of an actual physical posting in the workplace.  If employees do not understand or read English, the employer must provide notice in the appropriate language.

Employers frequently get themselves in trouble for perfunctorily putting these posters where they cannot be readily seen by employees, or not posting them at all.  When an EEOC investigator stops by, often the first thing they inquire about is the EEO poster, and being out of compliance is not an auspicious way to begin an EEOC investigation.  Printable posters in English and other languages are available from the EEOC website, although commercially purchased posters also will meet the requirement.

In other posting news, the DOL recently issued a new FMLA poster to replace the previous one required to be displayed by employers.  For the time being, the DOL is not requiring employers to replace their existing posters until further notice.  However, it is important that employers review their existing FMLA policies to make sure the written policies contain all of the information and requirements contained in the new poster, and if not, update them accordingly.  As with the posting requirements for the EEO posters, employers are required to post the FMLA posters in a conspicuous place in the workplace, and can face monetary fines for noncompliance.  For more detailed information, the DOL’s Wage and Hour Division has put out a publication entitled The Employer’s Guide to the Family Medical Leave Act.

 



“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

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



THE LEGAL PITFALLS OF WORKPLACE ROMANCE

 

Birds do it, bees do it,

Even educated fleas do it,

Let’s do it, let’s fall in love

                        Let’s Do It (Cole Porter 1928)

I.  Introduction

History is full of great romances.  Romeo and Juliet, who defied their families for true love.   Rhett and Scarlett’s tumultuous love was set against the backdrop of the Civil War.  And of course, the classic workplace romance at the Daily Planet between Clark Kent/ Superman and Lois Lane.

But for Larry, GeneriCorp’s Human Resources Director, the great romance he’s concerned about is between Shipping Department Manager Ken Worth and Shipping Clerk Lola Rider.  Ken is Lola’s direct supervisor.  Larry learned about the couple’s sexual relationship after other female clerks in the Shipping Department angrily complained about Ken’s plans to promote Lola to the newly created and higher paying position of Assistant Shipping Manager. 

All indications at this point are that the relationship is consensual.  Morale is suffering in the Shipping Department amid complaints of favoritism and Larry is concerned about whether the company may have more serious potential legal problems.

II.  The Workplace as a “Dating Pool” 

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 a survey of U.S. workers by the staffing and recruiting business Spherion Corporation, 39% of workers said they have already had a workplace romance and the same percentage would consider it.  Looking at the workplace relationships, the survey found 27% involved couples dating for just a few weeks or less, 30% dating for several months, 15% dating several years and 25% resulting in marriage of coworkers.  As the survey indicates, the majority of these relationships are short term and when the romance sours or goes bad, it can be really bad and cause serious problems for employers.  The Spherion Corporation survey noted that nearly half of all employees surveyed (46%) said they felt that dating a coworker would jeopardize their job security or career advancement opportunities.

III.  Non-Fraternization Policies

In this case, GeneriCorp does not have a non-fraternization policy, which would otherwise address Ken and Lola’s workplace romance.  In this regard, GeneriCorp is not unique. A recent survey by the Society for Human Resource Management  showed that 72 % of the employers who responded said they did not have a written non-fraternization policy, 14 % said they had a non-written policy that was understood within their workplace, and only 13 % indicated they had a formal written policy.  However, even when there is a policy, many employers adopt an enforcement attitude of benign neglect. 

This is not surprising.  It’s an awkward subject for some employers and Human Resource 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, such policies are important so employers can clearly communicate to employees what is and is not appropriate in the workplace and to protect themselves from legal liability and disruption of the work environment.

What are some of the specific reasons for adopting such a policy?  It addresses and hopefully prevents problems arising from:

·         Favoritism/perceptions of favoritism (and the ensuing rumor mill)

·         Disruption of the workplace (including extramarital affairs)

·         Conflicts of interest

·         Confidentiality (nondisclosure agreements, trade secrets, salary information, etc.)

·         Hostile Work Environment

·         Sexual Harassment (including repeated unsolicited requests for dates)

The purpose of this article is primarily to address the issues that arise from consensual workplace romances, and it is not intended to address the broader area of sexual harassment.  However, as noted above, the problem with certain office romances, especially between supervisors and subordinates, is that they may not be consensual, and in fact may be coerced.  Contrary to the traditional Title VII scenario in such cases, in recent years there has been an increase in the number of EEOC charges filed by male employees, complaining of sexual harassment from female supervisors.  Any such  issues should be addressed fully by the sexual harassment policy employers should already have in place. A non-fraternization policy should be utilized in conjunction with the sexual harassment policy.

A.        Supervisor and Subordinate Relationships

In the case of the romance between GeneriCorp Shipping Manager Ken Worth and Shipping Clerk Lola Rider, what are the legal issues?  Assuming that it is a voluntary consensual relationship, there would not appear to be any liability for GeneriCorp under Title VII for sexual harassment and/or sexual discrimination. 

  However, what about the claims of favoritism from the other female clerks in the Shipping Department, who are upset that Lola is getting a promotion from her boss and new boyfriend?  Do these other employees have a Title VII claim against GeneriCorp for favoritism shown to a co-worker who is sexually involved with a supervisor?

According to the EEOC, the answer, in regard to “insolated instances” of sexual favoritism, is “no.”  The EEOC Policy Guidance on Employer Liability under Title VII was adopted January 12, 1990, and was updated in June 1999.  It provides that:

Not all types of sexual favoritism violate Title VII.  It is the Commissioners position that Title VII does not prohibit isolated instances of preferential treatment based on consensual romantic relationships.  An isolated instance of favoritism toward a “paramour” (or a spouse or friend) may be unfair, but it does not discriminate against women or men in violation of Title VII, since both are disadvantaged for reasons other than their genders.  A female [plaintiff] who is denied an employment benefit because of such sexual favoritism would not have been treated more favorably had she been a man nor, conversely, was she treated less favorably because she was a woman.[1]

In essence, the EEOC is saying that while other employees in the workplace, both men or women, may feel the situation is unethical or unfair, it is not sexual discrimination because both groups are disadvantaged for reasons other than their gender.  However, the EEOC Policy Guidance also notes that:

Managers who engage in widespread sexual favoritism may also communicate a message that the way for women to get ahead in the workplace is by engaging in sexual conduct or that sexual solicitations are a prerequisite to their fair treatment.  This can form the basis of an implicit “quid pro quo” harassment claim for female employees, as well as a hostile work environment claim for both women and men who find this offensive.

 

The EEOC authority has been cited favorably by federal courts within the Fifth Circuit (which encompasses Louisiana, Mississippi and Texas) in dismissing such claims of sexual favoritism.  The Fifth Circuit itself has also held that an employee does not have a cause of action for retaliation for reporting a supervisor’s sexual relationship with a subordinate coworker.[2]

However, there is some indication that courts may be taking a more nuanced view on sexual favoritism based on consensual relationships. The key phrase in the EEOC Policy Guidance is that “Title VII does not prohibit isolated instances of preferential treatment based on consensual romantic relationships.” 

In a recent case by the California Supreme Court, it was held that widespread and overt sexual favoritism resulting from consensual relations could create a cause of action for sexual harassment and hostile work environment.  This ruling may reflect a trend in how courts view such cases.

 In Miller v. Department of Correction, 36 Cal. 4^th  446 (Cal. 2005), two former female employees at a California prison claimed that the warden gave unwarranted favorable treatment to numerous female employees with whom he was having sexual affairs, and they claimed it amounted to sexual harassment and discrimination.  The case was dismissed at the trial stage but the California Supreme Court reinstated the lawsuit.  While it was a state court claim, the California Supreme Court relied on the federal EEOC Policy Guidance.  In finding for the Plaintiffs, the Court held:

[A]lthough an isolated instance of favoritism on the part of a supervisor toward a female employee with whom the supervisor is conducting a consensual sexual affair would not constitute sexual harassment, when such sexual favoritism in a workplace is sufficiently widespread it may create an actionable hostile work environment in which the demeaning message is conveyed to female employees that they are viewed as “sexual playthings” or that the way required for women to get ahead in the workplace is to engage in sexual conduct with their supervisors or the management. (emphasis added).

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.    Aside from any potential legal liability, the issue of a supervisor sexually involved with a subordinate can result in acrimony and disruption in the workplace if the relationship ends badly.  Even assuming the relationship continues happily, the impact in the workplace can be disgruntled coworkers, poor morale and a never-ending distraction from the real work of your business.

An employer’s non-fraternization policy should strictly prohibit romantic relationships between supervisors and subordinate employees or any employee who falls under that supervisor’s chain of supervision.  Companies that are large enough sometimes have policies that allow the supervised employee to transfer, if possible, to a different department, where they would not be supervised by their love interest.  However, this potentially opens the door to claims of employees being treated differently on the basis of their gender.  A zero tolerance policy best protects the employer.

While this type of policy may seem harsh and draconian, it is important to remember that the purpose of your business is not to be a dating service or a singles bar.  You did not create the situation, the two employees who started the relationship created the problem.  Having been involuntarily placed in the position of having to deal with it, this is the best option to avoid possible legal liability and problems in the workplace.  In the instance of a violation of the policy, the following procedure can be followed:

(1)   Call them in and talk to them separately;

(2)   Tell them that you have reason to believe that they are involved in a sexual relationship with the other employee;

(3)   Make them aware that the company has serious concerns because a relationship between a supervisor and a subordinate employee leaves the company open to claims of sexual harassment, hostile work environment, retaliation or favoritism;

(4)   Inform both employees that it put the company in position where it has to do something to avoid legal liability and/or disruption to the workplace, and the situation  cannot continue;

(5)   Tell both of them they have until noon the next day or some other deadline to decide between themselves which of them is going to voluntarily decide to resign, and if they can’t, both of them will be terminated.  This avoids later claims of sex discrimination, because the employer’s decision is not based on gender and in the event they cannot decide, both genders are treated equally.  Some employers may elect to terminate one of the employees based on their respective employment history, position and seniority.  However, this opens the door to claims that employees of different genders were treated differently.

Some employers adopt non-fraternization policies that discourage but do not strictly forbid relationships between supervisors and employees who do not fall under their chain command.  Such policies require that the relationship must be disclosed by the supervisor to his or her manager or the next person up the supervisory chain.  The higher supervisory official then must assess the situation and make a recommendation to resolve any actual or potential conflict created by the relationship.  However, such policies may not address all of the potential problems. Likewise it results in  company managers using company time to “assess” romantic relationships.

 B.        Coworker Relationships

Fresh on the heels of addressing the Ken and Lola romance in the Shipping Department, Larry the Human Resources Manager is faced with another office love affair.  This time it’s over in the Data Processing Department.  Larry learns that Data Entry Clerks Ivy Pod and  Pete Dief have been dating quietly for six months, and generally few people at GeneriCorp know they are an item.  Neither Ivy nor Pete have any supervisory authority over each other.

It’s estimated that 80% of office romances involve similarly situated co-workers. Romantic relationships between co-workers with no supervisory authority over the other still present many of the same potential problems for the employer.  While there is less potential for sexual coercion than in a supervisor - subordinate situation, there is still plenty of opportunity for disruption of the workplace during the relationship, and even more so after an unhappy breakup.

Adopting the same zero tolerance policy as to co-worker romances is an option.  However, Human Resource professionals report such policies are harder to enforce in a co-worker scenario. Employees resent the intrusion into what they perceive as their private lives and they are more likely to keep the workplace relationships underground, putting more effort into “beating the system” as opposed to complying with a no-dating policy.

Taking into account the realities of the workplace and the reluctance to be the “Romance Police”, some employers have adopted policies that allow co-workers to date but require both individuals to enter into written agreements: (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-off relationship that might serve as the basis of a harassment complaint. 

Such an agreement is a way for employers to preemptively avoid problems with office romances.  If you need such a policy drafted for your business or a non-fraternization policy, please feel free to contact me and we can discuss what type of policy or agreement would work best for your workplace.

                        IV.  Tips for Dealing with Workplace Romances  

Office romances are often the focus of intense gossip, so Human Resources professionals and supervisors need to know to keep their ears open for news about job or career damaging behavior resulting from such relationships.  Supervisors need to know the appropriate disciplinary measures to take if a romance derails and the resultant employee behavior disrupts the workplace.

Employees need to be made aware that the company will not tolerate sexual liaisons or sexual behavior at work and any such relationships need to be kept entirely separate from the work environment. The company’s sexual harassment and non-fraternization policy needs to be posted and all employees should be trained as to the company’s policy.  If romance becomes sexual harassment, supervisors, working in concert with Human Resources, needs to know what to do to take immediate action.

V.  Conclusion

Paraphrasing the old song at the start of this paper, if birds and bees and educated fleas fall in love, the odds are employees at your company are doing the same.  Having the appropriate policies and training in place can help prevent legal woes  as well as workplace headaches and heartaches

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

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[1] See EEOC Policy Guidance on Employer Liability under Title VII for Sexual Favoritism No. 915.048

 

[2]       See Ellert v. Univ. of Texas, 52 F.3d 543 (5^th Cir. 1995) (“Even if [Plaintiff’s] knowledge of the affair was the true animus behind the discharge decision, it was a motivation that did not rely upon her gender and, as such, it was not within the ambit of Title VII’s protections.”).

EEOC Tells Employers “If you like your Criminal Background Check…you Can Keep your Criminal Background Check”

 After suffering defeats over its efforts to enforce guidelines on the use of criminal background checks, it appears the Equal Employment Opportunity Commission (“EEOC”) has launched its version of a charm offensive, while simultaneously girding for appellate battle over its latest courtroom loss.

At the recent American Bar Association's Annual Labor and Employment Conference, top EEOC officials argued that the federal agency was not trying to prevent employers from using background checks. The EEOC’s Senior Counsel James Paretti said the EEOC’s new guidelines merely seek a balance between employers’ interests in protecting property and ensuring personal safety, and making sure that minority job seekers are not subjected to disparate impact discrimination under Title VII.

Paretti denied that the EEOC was administratively seeking to create a new protected class of individuals with criminal records. Under the 2012 enforcement guidelines, the stated rationale for the EEOC’s position was that employers’ reliance on criminal records as a factor in hiring decisions disproportionately affects minorities, who statistically have higher rates of arrest and criminal conviction, i.e. disparate impact.

One continuing complaint about the EEOC’s guidelines is that it places significant costs on employers to create and maintain screening systems to evaluate whether an individual with a criminal record should be excluded on the basis of business necessity, using factors such as the severity of the crime, the period of time since conviction and the specific duties and responsibilities of the job sought. The guidelines further require employers to allow for an additional individualized assessment to those excluded by the initial screening, to explain why they should not be disqualified.

In what appears to be a new approach by the EEOC, Paretti strongly suggested that while employers are free to use background checks, they should not do them until after employers already have determined that the applicant meets all other job qualifications. In a less than subtle threat, EEOC Commissioner Chai Feldblum noted that the agency was looking into whether the EEOC would consider it a record-keeping violation if employers did not retain data on the disparate impact the an employer’s background screening had on minorities.

I have two thoughts on this. First, requiring employers to go through the time and expense of ensuring an applicant’s qualifications, and then leaving a background check until last, could result in wasted efforts and additional costs. For example, an employer could spend significant time and effort confirming that a candidate is ideally qualified to be a daycare administrator, only to find out at the end, per the EEOC’s suggestion, that the job candidate is a convicted sexual offender, and ineligible for such a position.

Second, the EEOC’s intimation that employers who use background checks could be subject to even more stringent record-keeping requirements, belies their claim that they are not trying to eliminate employers from using background checks.

In a related note, you may recall in my September 30, 2013 posting, the EEOC suffered a court defeat in the case of EEOC v. Freeman. In that case, a District Court in Maryland granted summary judgment in favor of the defendant employer Freeman, dismissing the plaintiff EEOC’s claim that Freeman’s background check policies violated Title VII. In the Court’s opinion, it issued a stinging rebuke to the EEOC for pursuing a disparate impact discrimination claim based on “a theory in search of facts to support it.”

On November 6, 2013, the EEOC appealed the District Court’s dismissal of the case to the U.S. Court of Appeals for the Fourth Circuit. Other than the loss of face over the Court’s rejection of their theory of liability, the EEOC has another strong motivation to appeal the adverse ruling. Following the ruling in its favor, Freeman filed a motion to require the EEOC to cover the company’s $1.2 million dollars in attorneys’ fees.

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

Workplace Profanity Can Support Religious Discrimination Claim

A ruling by a federal District Court in Oregon should serve as a warning to employers that a co-worker’s use of profanity in the workplace may be enough to support a triable religious discrimination hostile work environment claim under Title VII of the Civil Rights Act (“Title VII”). In Griffin v. City of Portland, the Court noted that while not every use of profanity that occurred was enough to prove it was directed at the plaintiff because of her protected class, there was sufficient evidence to put the case in front of a jury.

For an excellent in-depth analysis of the case, I would direct you to an article authored by MaryJo Roberts, of my firm’s New Orleans office. For purposes of this posting the facts are as follows.

The plaintiff in the case, Kellymarie Griffin, described herself as a devout Christian. She alleged that co-workers frequently used profanity in the workplace, including the names of God and Jesus Christ in their curse words. The Plaintiff alleged that because of her deep religious beliefs, she was offended by such profanity and would inform her co-workers that such language was offensive to her. From the facts of the case, it appears that for the most part, such profanity from her co-workers was not directed at her because of her faith or on the basis of religious animus, and the co-workers generally refrained from cursing in her presence after she spoke with them.

More troubling were specific comments from plaintiff’s co-worker Theresa Lareau. According to the lawsuit, Lareau called plaintiff a “wacko” and told plaintiff that she prayed to something “that didn’t exist.” On one occasion, after plaintiff complained about profanity, Lareau allegedly told her "I'm sick of your Christian attitude, your Christian [expletive] all over your desk, and your Christian [expletive] all over the place" and Ms. Lareau accused Plaintiff of using her religion for attention.

Plaintiff filed a lawsuit claiming she was subjected to a religiously hostile work environment because of her religion. Her employer sought to have the case dismissed on summary judgment, but the District Court denied the City’s motion, allowing the case to proceed to trial. The Court held that "not every allegation of offensive conduct" by Plaintiff's co-workers will ultimately be pertinent to the question [of] whether Ms. Griffin was subjected to a hostile work environment because of her protected status”, but that she had "shown sufficient evidence of religiously discriminatory conduct to make out a claim for hostile work environment religious discrimination as a matter of law."

The Court’s opinion distinguished between profanity that directly implicated religious ideas and profanity that were simple secular epithets. Of note was the Court’s observation that the absence of a hostile intent was not enough to insulate an employer from liability and “if conduct occurred 'because of' a plaintiff's protected status, even if the actor does not intend hostility or even know that the conduct may be perceived as hostile, that conduct is relevant to whether the plaintiff experienced a hostile work environment." The Court also found there was a jury question as to whether the City had taken sufficient action to remedy the alleged religious discrimination.

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

The EEOC’s Title VII Conciliation Duty Remains Fair Game for Judicial Review

I am going to apologize in advance for this “Employee with the Dragon Tattoo Employment Law Blog” posting, because I suspect it will likely contain more than your daily suggested requirement of “legal-ese”. However, the issue of the Equal Employment Opportunity Commission’s (“EEOC”) duty to engage in conciliation before suing an employer seems to be developing into another ongoing showdown between the agency and the federal courts. It is also an important issue for employers.

What prompted this posting was an editorial in the Wall Street Journal entitled "Is the EEOC Above the Law?"  It addressed the EEOC’s recently stated position that the EEOC’s conciliation efforts with employers, or lack thereof, were not subject to review by the courts. As detailed in the editorial, the EEOC subsequently received a severe slap-down by a U.S. District Judge in Texas. It also got me thinking about a case I had a number of years ago where the question of “good faith conciliation” became a significant issue.

For non-lawyers (and other well-adjusted folks) “conciliation” is just a fancy word for trying to reach a settlement before an EEOC Investigation and determination evolves into an actual lawsuit brought by the agency.  It's an option many employers want to at least explore before having to engage in the costly defense of a discrimination suit brought by a government agency. 

When the EEOC makes a “reasonable cause” determination in the course of investigating a charge of discrimination, it triggers a mandatory responsibility under 42 U.S.C. § 2000e-5(f)(1) to engage in good faith conciliation efforts before filing a lawsuit. This responsibility is not supposed to be a mere formality that is satisfied by merely making a few telephone calls and then checking a box on an agency form. Conciliation, after all, serves important public interests by, among other things, guaranteeing administrative due process to the accused, protecting the public from unwarranted litigation expense, and conserving scarce administrative and judicial resources. It is for these reasons that federal courts uniformly recognize that the responsibility of good faith conciliation is so important that honoring it is a condition precedent to the EEOC filing a lawsuit.

Good faith conciliation efforts depend on the honest and straightforward communication of basic factual information. Common sense dictates that good faith conciliation efforts do not include “hiding the ball” by failing to communicate, or worse, withholding, basic factual information, since such tactics obviously deprive the accused of both the opportunity to respond to claims against it and the ability to understand the basis of any damages sought in settlement of those claims. Rather, good faith conciliation efforts can only occur when the EEOC “lays the cards on the table” by disclosing factual information sufficient to afford the accused with a reasonable opportunity to respond to the claims and damages at issue before the EEOC commits itself to litigation.

To satisfy the statutory requirement of good faith conciliation, the EEOC must: (1) outline to the employer the reasonable cause for its belief that the law has been violated; (2) offer an opportunity for voluntary compliance; and (3) respond in a reasonable and flexible manner to the reasonable attitudes of the employer. If a court finds that the EEOC terminated conciliation prematurely or failed to conciliate in good faith, it may stay the action and compel the EEOC to conciliate or dismiss the lawsuit. 42 U.S.C. § 2000e-5(f)(1) (1976) (the court may “in its discretion stay further proceedings for not more than sixty days pending further efforts of the Commission to obtain voluntary compliance”); see also EEOC v. Agro Dist., LLC, 555 F.3d 462, 469 (5th Cir. 2009) (“Courts remain free to impose a stay for the EEOC to continue prematurely terminated negotiations, and where the EEOC fails to act in good faith, dismissal remains an appropriate sanction.”).

So what are some hallmarks of “bad faith” conciliation? Denying an employer’s reasonable request for a face-to-face meeting is a common and compelling factor in finding that the EEOC has failed to conciliate in good faith. See, e.g., EEOC v. Agro Dist., LLC, 555 F.3d 462, 469 (5th Cir. 2009); EEOC v. Pacific Maritime Assoc., 188 F.R.D. 379, 380-381 (D. Or. 1999).

Another tactic found by the courts to be unreasonable and in bad faith is if the EEOC takes an “all-or-nothing” approach to settlement. See, e.g., Agro, 555 F.3d at 468 (“The EEOC's take-it-or-leave-it demand for more than $150,000 represents the coercive, ‘all-or-nothing approach’ previously condemned by this court…”); EEOC v. Asplundh Tree Expert Co., 340 F.3d 1256, 1259 (11th Cir. 2003) (“As we have said before, such an ‘all or nothing’ approach on the part of a government agency, one of whose most essential functions is to attempt conciliation with the private party, will not do”).

Lastly, federal courts have held that the EEOC’s failure to explain its monetary demands is not reasonable and does not allow a defendant to properly respond. See, e.g., EEOC v. Golden Lender Fin. Group, No. 99 CIV. 8591 (JGK), 2000 WL 381426, at *5 (S.D. N.Y. Apr. 13, 2000) (holding that the EEOC did not meet its statutory obligation to conciliate when it ended conciliation after the charged party sought additional information regarding the requested damages of certain alleged victims); EEOC v. Pac. Mar. Ass’n, 188 F.R.D. 379, 381 (D. Or. 1999) (ordering a stay for further conciliation where “meaningful conciliation efforts were thwarted” during conciliation after “[c]ounsel for [defendant] reasonably requested that the EEOC investigator explain his calculation of the monetary settlement offered”).

In the case I was involved in, my co-counsel and I were faced with all three of the tactics described above. We were representing an out-of-state company in a sexual harassment claim brought by a number of employees, and the particular out-of-state EEOC office had filed suit after very perfunctory and unproductive conciliation.  The client had responded promptly and correctly when it discovered the actions of a rogue supervisory employee, yet the EEOC was demanding an excessive "take-it-or-leave-it" monetary settlement, wildly disproportionate to actual damages in the case.

We responded by filing a motion with the court to stay litigation and compel good faith conciliation. In a well-reasoned opinion, the U.S. Magistrate assigned to the case ruled in our favor and ordered the EEOC back to the table.  While the case was not resolved at the "re-conciliation", it laid the groundwork for a later settlement of the case for a reasonable amount.

I think the ability of the federal courts to review the EEOC’s conciliation efforts is a valuable protection for employers, and without it, the statutory requirement of conciliation would become meaningless. In fairness and full disclosure, my overwhelming experience with the EEOC in this regard, especially the local office here in Jackson, Mississippi, has been positive and the people professional and upfront in conciliation negotiations. However, as shown by the many court opinions on the subject, bad faith conciliation occurs and the judiciary is a vital check to such abuse.

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

Improving Prospects for Federal Law Protecting Against Sexual Orientation/Gender Identity Discrimination

For decades, legislation has been unsuccessfully introduced in Congress to include sexual orientation/gender identity as protected categories under Title VII.  As the law currently stands, an employee has no cause of action against an employer for adverse employment actions based on the employee being lesbian, gay, bisexual or transgender (“LGBT”).  However, in light of the Supreme Court’s recent overturning of the Defense of Marriage act, and changing societal attitudes, that could be about to change.

According to political observers and employment law experts, the Employment Non-Discrimination Act (“ENDA”) has very good prospects of being enacted within the next year. ENDA would put in place put a nationwide ban on workplace discrimination based on sexual orientation and gender identity. 

According to an article published by Ben James in Employment360, the evolving attitude of the American public on LGBT issues “has created a critical mass to make this the best time and the best opportunity for ENDA to pass.

ENDA’s improved prospects for passage comes after the Equal Employment Opportunity Commission’s (“EEOC”) release late last year of its Strategic Enforcement Plan (“SEP”) for 2013-2016.  In the SEP, the EEOC made it clear, that despite sexual orientation not being a protected class under Title VII or any other federal law, it intended to bring cases against employers for LGBT discrimination by construing such instances as “sexual stereotyping” under Title VII’s general prohibition against gender discrimination.

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.