Employment Discrimination Report : New York Attorneys & Lawyers for Labor Discrimination Defense : Fox Rothschild LLP

Two recent settlements demonstrate that there are still issues for women in jobs that are traditionally held by men and that the Justice Department is focused on changing this.

On June 18th, a District of Massachusetts judge approved a $736,000 settlement for 30 female candidates who were denied jobs as state prison guards after failing the physical fitness examination.   The federal government had filed suit challenging the test as having a disparate impact on women since 96% of men passed and the pass rate for women was between 55 and 84%.

The Justice Department also announced another settlement on June 22nd with the town of Davie, Florida.  In this case, the Justice Department alleged that the town's policy of denying pregnant firefighters' leave as a reasonable accommodation until the employee was in her second trimester was discriminatory.

As we have previously blogged gender claims have been on the rise (see June 4th blog on the "Great Lactation Case").  We have also blogged that the EEOC has been challenging as discriminatory more blanket policies of employers, including testing and screening procedures for applicants.  (see January 9th blog on employers requiring high school diplomas).

Now is just as good a time as any for employers to review their policies to see if they have any similar blanket policies that could get them in trouble.

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Happy Take Your Dog to Work Day! 

A few months ago I broached the subject of the National Take Your Dog to Work Day with our Office Administrator, sort of feeling the waters if she thought our Office Managing Partner could be persuaded.  I made an impassioned plea that my dog would be a very good dog in the office.  I even sent her an adorable photo, see Exhibit A:

Our Office Administrator's response:  What about people with allergies? 

She had a good point.  It did not seem worth it to try to figure out how to accommodate those with allergies simply because I would like to have my dog at work.

Her comment got me thinking about what happens when employees' disabilities collide.  For example, one employee needs a service dog and another employee is deathly allergic to dogs. 

How does an employer accommodate both or can an employer accommodate both?  Does the service dog trump the allergy because employers are required to permit access to service dogs under Title III of the ADA separate and apart from their obligation to accommodate employees? 

I managed to give myself a headache thinking about this. This question does not have an easy answer.  However, under the revised ADA regulations and recent case law, employers need to be more creative than ever when thinking about what accommodations can be done, such as flex time so the employees are not in the office at the same, in addition to the usual solution which might be physically locating the employees' work spaces far away from each other.

As usual, when in doubt considering accommodation requests, it is wise for managers to consult human resources and/or legal counsel.

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Lately the legal coverage on social media is the supposedly widespread practice of employers demanding access to applicants' and employees' social media accounts.  We blogged on May 11th about why employers should be concerned about the rash of legislation restricting employers' access to these accounts, so we don't need to rehash it here.

For those keeping count, Maryland is still the only state to have such a bill signed into law, but the National Conference of State Legislatures reports that as of June 5, 2012, 12 other states have proposed legislation pending that would ban employers' access to social media accounts.

There are legitimate reasons an employer may need to access social media, for example, investigating claims of insider trader or a harassment complaint.  However, there are already federal and state laws that impact how an employer may access electronically stored information and to what use the information may be put. 

Most notably, the federal Stored Communications Act has been used by employees to argue that employers have improperly accessed email and other electronic information. 

In addition, the National Labor Relations Board has jumped with both feet into the fray and has issued rulings that an employers' social media policies, even in an non-unionized facility, violate the National Labor Relations Act's protections of concerted activity.  In order to insure proper notice to employees, social media policies need to be carefully drafted.

 I did a presentation in February 2012 that addresses all of these issues and thought it might be helpful to attach a copy here.  To access my slides: http://www.slideshare.net/cstoneburner/social-media-policiespowerpointforlaborandworkforcedevelopmentinreview

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We reported earlier today of an egregious Title VII case of discrimination based upon religion where a job applicant was grilled about his church, his beliefs, and even if and when “he was saved.” We expressed disbelief that a multi-state company either has no relevant polices or employee handbook, or conducts so little training that it’s managers are permitted to make such inquiries.

We just learned of another case, reported in Business Management Daily, in which the reporter seemed similarly bemused, stating by way of a preface that “Most religious discrimination lawsuits involve allegations of subtle mistakes—e.g., a manager didn’t understand that an employee had a legitimate need for religious accommodation. But there was nothing subtle about the allegations in a recenently settled case involving Cincinnati-based Convergys Corp.” Sounds like the Voss Electric case we discussed this morning, but with one difference – it was the company’s recruiter who ignored the law.

In this case, an applicant for a call center position informed the recruiter for the company that, for religious reasons, she could not work on the Jewish Sabbath. The recruiter told the applicant that she would not be considered for the job unless she could work Saturdays, and therefore stopped the interview. The applicant then filed an EEOC charge of discrimination.

As we have often noted, employees (or applicants) are entitled to reasonable accommodations for their religious beliefs – something that this recruiter apparently did not know, since he/she never discussed any possible accommodation with the applicant.   But it was the company that paid the price for this recruiter’s lack of knowledge or understanding: they settled by paying the applicant $15,000, and entered into a two-year consent decree which obligates it to make sure that its recruiters are trained on religious discrimination, and requires it to notify all future applicants that accommodations may be available.
 

Once again -- training, training, and yet more training!

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I was surprised to learn from Vindy.com that the EEOC has a “mobile outreach center,” at least in Youngstown, Ohio, that takes employee complaints by appointment, and that “Walk-ins also are accepted.”  

However, I was dismayed to see that because the EEOC this Friday is visiting the local NAACP, several online comments to this story reeked of racism.      

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It is difficult to believe that these days a multi-state company either has no relevant polices or employee handbook, or conducts so little training that it’s managers are permitted to ask a job applicant in-depth questions about his religious beliefs and affiliations, and then refuse to hire him when they do not agree with or like his responses. 

The EEOC unsurprisingly jumped on this one, apparently because the managers of Voss Electric Company allegedly so egregiously violated Title VII. Amazingly an EEOC trial attorney claimed that “Voss Lighting appears to have a corporate culture that requires employees adhere to certain religious beliefs that have absolutely no bearing on the business of selling lighting  products.”  

The EEOC sued Voss Electric Company (also known as Voss Lighting), a leading supplier of specialized replacement lighting products with offices in 16 US cities. According to the complaint, Voss Lighting advertised a vacancy for an “operations supervisor,” a  position which involved no religious duties or responsibilities. Edward Wolfe applied and was considered qualified for the position. 

However, two managers asked him repeatedly about his religious activities and beliefs; to identify every church he had attended over several years; where and when he was “saved” and the circumstances that led up to it; and whether he “would have a problem” coming into work early to attend Bible study.  At the second interview, the branch manager became upset over Wolfe’s responses and he was refused employment.  

As expected, the EEOC is seeking not only back pay, compensa­tory and punitive damages and reinstatement or front pay for Wolfe, but also a court order prohibiting Voss Lighting from any further such religious discrimination against applicants.  

Please don’t be a Voss. Know the law and have your managers and employees act accordingly.

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A great resource has been posted online for employers, lawyers, and anyone interested in a compendium of all state laws regarding gay and transgender employees. Written by Jerome Hunt and just released by the Center for American Progress Action Fund, this 84-page report notes that there is no current federal law which provides the gay and transgender workforce protections against workplace discrimination based on real or perceived sexual orientation or gender identity.

And Congress has yet to pass the Employment Non-Discrimination Act, or ENDA, which would apply to all federal, state, and local government agencies; employment agencies; unions; and private employers with 15 or more employees.

The report further notes (as we have discussed in frequent blog entries) that “Sixteen states and Washington, D.C. have passed laws that prohibit discrimination on the basis of sexual orientation and gender identity. An additional five states have passed laws or enacted policies that prohibit discrimination on the basis of sexual orientation, but not gender identity.”

After this preface, the report catalogues which states have such laws, ranks the state laws as to the degree of protection afforded to gay and transgender employees, and recites the remedies and penalties under each law.

This could become an indispensable tool in employment law.

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Yesterday we noted that according to one survey, gender discrimination is prevalent in the British workforce. Today, we note an equally disturbing state of affairs in India – the continued existence of the caste system and its impact on employment.  Caste and related discrimination is still practiced against 160 million Indians known as Dalits, especially Dalit women, who make up close to one-half of this group.

A 2007 Indian report states that: “The discrimination that Dalit women are subjected to is similar to racial discrimination, where the former is discriminated and treated as untouchable due to descent, for being born into a particular community, while the latter face discrimination due to colour. The caste system declares Dalit women as ‘impure’ and therefore untouchable and hence socially excluded. This is a complete negation and violation of women’s human rights. … Dalit women are thrice discriminated, treated as untouchables and as outcastes, due to their caste, face gender discrimination being women and finally economic impoverishment due to unequal wage disparity, with low or underpaid labour.”

The Hindustan Times has published a sad article by Pankaj Mullick on this caste discrimination, notes its existence not only in small villages, but also in cities, and states that “Atrocities against Dalit women include: Verbal abuse and sexual epithets, naked parading, pulling out of teeth, tongue and nails, and violence, including murder. Dalit women are also threatened by rape as part of collective violence by higher castes.”

Moreover, the caste system still resists change in the employment arena – an anthropologist claims that “In certain professions, especially academia and media, recruitment of lower-caste candidates is discouraged by the higher-ups. There is a fear of new opinions coming in conflict with existing thought. This resistance is also seen in art, cinema and the sciences — all influential professional spheres.”

The only positive news is that economics is forcing people of different castes to work together. As the above-quoted anthropologist joked, “Once there weren’t enough worldly goods to own and people thought more about life after death. Now, they think, ‘if I am without a good car or an AC, I am in hell’. The fear of hell within their lifetime is greater than the fear of hell after.” 

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Great Britain’s AdviseMeBarrister.com. just conducted an online survey to determine whether gender discrimination still exists in Great Britain, and if so, to what extent.  The results shocked them, because about half of all women had experienced sexual harassment in the workplace. 

Although from the news reports it appears that the survey was not necessarily designed to assure its accuracy, or to do anything more than solicit comments from potential clients – a pool of respondents very likely skewed towards those who indeed suffered discrimination and/or gender harassment, the results are nonetheless disturbing. 

As reported in The Times of India, which took its report from the Daily Mail:     

-- half of women believe that they are sexually discriminated daily; 

                -- of women who claim to have suffered harassment, four out of 10 have been touched in a way that made them feel uncomfortable, and more than 25% have been kissed by a co-worker against their will;

--  two thirds of women reported that they had experienced inappropriate comments about their dress, and 40% were forced to “dress down” because of this.

As a result of this workplace harassment, one out of three women have contemplated quitting, and 25% have suffered mental or physical health problems. 

Yet only 20% of women have reported such discriminatory acts because they feared that people would not believe them (over 50%), they did not want “a black mark” (29%), they feared being branded “a trouble maker” (31%), or believed that they would not receive a promotion (12%). 

Scientific or not, this survey should alert employers to the nature and extent of reported workplace gender discrimination, and remind them to maintain and publicize a “zero tolerance” policy towards any kind of harassing behavior, and regularly conduct anti-discrimination training programs for both managers and all other employees.       

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The EEOC has just announced that it has settled an ADA suit against a Maryland company which, it was alleged, discriminated against an employee with hemophilia based upon the company’s “perception of his disability.”

What is interesting about the consent decree that was entered into is the wide range of remedies that the EEOC sought, and the variety of actions which the company is now required to take, besides simply paying the employee $50,000. An EEOC attorney stated that “This settlement achieves the EEOC’s objectives by providing relief to the victim while implementing measures to prevent future discrimination and retaliation.”

As the EEOC press release has described it, in settling the case the company must now:

• Refrain from retaliating against any person because that person complained about, or participated in the investigation of, any charge of employment discrimination;

• formulate written policies which provide for an effective complaint process for employees and independent contractors who work for the company to report employment discrimination and retaliation;
 

• provide a toll-free number and e-mail address that employees may use to report allegations of discrimination and retaliation;
 

• post a notice to employees on its commitment to follow the provisions of the ADA;
 

• identify its equal employment opportunity officer and provide an expert to evaluate future requests for reasonable accommodations under the ADA;
 

• submit reports to EEOC on the outcomes of its internal anti-discrimination investigations and reasonable accommodation requests;
 

• provide training to the manager and supervisors on the anti-discrimination provisions of Title VII of the Civil Rights Act of 1964, the ADA, the Age Discrimination in Employment Act and the Genetic Information Nondiscrimination Act; and
 

• submit reports to the EEOC regarding the company’s compliance with the consent decree.

 

Employers who think that the payment of money is the sum total of what it may be required to do if it is sued for discrimination should think twice. Money may be the least of it. 

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Adam Liptak of The New York Times reported today that a large majority of the American public believes that Supreme Court decisions are influenced by the political and personal views of the individual justices.  Moreover, only 44% of respondents approve of the way that the Court is handling its job.

Liptak surmised that this could be a due to the general current disaffection with all government branches and agencies, or "it also could reflect a sense that the court is more political, after the ideologically divided 5-to-4 decisions in Bush v. Gore, which determined the 2000 presidential election, and Citizens United, the 2010 decision allowing unlimited campaign spending by corporations and unions."

With the Court having no independent means of enforcing its decisions, its authority, power and legitimacy is due, in large part, to the public perception that it is not political and that its decisions adhere to legal precedents --  a perception previously carefully cultivated and guarded by the Court.  This new poll, and the reasonable assumption made by Liptak, merely underscores that the Court's recent de-legitimatization in the eyes of the public is a function of its own political activism.  And this bodes poorly for law and justice.

The good news is that Congress' approval rating is a whopping 15% -- which makes the Court's approval rating look fabulous by comparison.

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We recently wrote that Title VII does not prohibit dress or grooming rules per se, but that such rules may run afoul of Title VII if they have a disparate impact on, for example, employees who have religious beliefs which require a certain dress or hair style.

With regard to hair styling in particular, we quoted a Missouri Department of Labor spokeswoman:
"An employer may condition a job on an employee's compliance with the employer's hair styling preferences, unless the employee's alternative hair styling preference is connected with the employee's inclusion in a protected category. For example, a particular hair style may be a tenet of the employee's religion, or the employer may decline to hire a prospective employee because the employee is considered to be disabled because of his or her hair style (such as believing someone without hair to be suffering from cancer)."

We just found a very comprehensive article on workplace dress codes, and whether they may impact not only the religious beliefs of employees, but also have a disparate gender impact.

The Business Management Daily of June 4, 2012 prefaces its article by noting that “Female employees who are accused of wearing clothing that is too revealing may complain of sexism. Male employees prohibited from wearing shorts, for example, may argue that a double standard exists because females are permitted to wear skirts. But don’t let employees’ complaints prevent you from upholding your company’s appearance standards. Employers have the right to define appropriate attire in their workplaces.”

The article then goes on to describe what is appropriate workplace dress, and what is appropriate workplace dress codes, and poses a set of questions and challenges you to “Test your casual dress code policy against these questions to see if you are on safe ground.”

Read it!
 

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Perhaps it is because I just got back from a lovely vacation in Turkey, that I am thinking of how important vacations are for employees to recharge.  I mean, who wouldn't be relaxed after spending a week here (this is actually the view from the villa where I stayed):

Now that vacation season is here, it is a good time to think about how scheduled vacations are going to impact employees' requests for leave due to a medical condition.  The ADA and local discrimination laws generally provide that an employer must only make a reasonable accommodation where doing so does not cause an undue hardship to the employer.  What is an undue hardship is the cause of much debate, but one factor considered is the ease and/or cost of covering for the employee on leave.

I have had problems with clients where vacation requests must be made several months in advance for traditional busy seasons for the employer.  In those cases, managers have, without thoroughly examining the issues, denied an employees' medical leave request because there either was not enough advance notice or there were already three employees on the shift out at the same time.

This can be a tricky issue because it is often difficult, if not impossible, to tell employees who have already been approved for vacation months in advance and booked and paid for their travel that their vacation has been revoked.  This is another reason why managers must be trained on how to handle requests for leave and should be coordinating those requests through Human Resources or legal counsel.

In the meantime, I will be dreaming of my next vacation. 

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A lawsuit was just filed Tuesday by the former equipment manager of the football St. Louis Rams, alleging that he was fired last year at age 55 because of his age -- he claims that Rams’ coach Steve Spagnuolo told him in 2009 that he “was too old for his job,” and further that NFL stood for “Not For Long employment."

Plaintiff began working with his father for the Rams when he was 11, became equipment manager in 1986, and in 1997 was named NFL Equipment Manager of the Year.

Plaintiff claims that while Spagnuolo was the coach, at least six other employees were fired or forced to retire.
 

Read more at SB Nation St. Louis. 

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Seems like the “Great Texas Lactation Case” is the significant case that we predicted some time ago.   Blog of February 9, 2012.

The EEOC is seeking to reverse a Texas judge’s decision which denied the Title VII claim of a woman who alleged that she was fired for seeking to pump breast milk while on the job. He famously (notoriously?) said that "Lactation is not pregnancy, childbirth, or a related medical condition." The EEOC argues that the Pregnancy Discrimination Act and Title VII protect women from being fired for lactation and breast pumping.

The Texas Pediatric Society and the Texas Medical Association has filed a “friend of the court brief” in support of the EEOC’s appeal, arguing that “since the yielding of milk by mammary glands is a medical condition caused by pregnancy and childbirth, lactation is a ‘related medical condition’ as contemplated by Title VII.”

And now the employer has just filed its appeals brief, in which it argues that even if Title VII prohibits “lactation discrimination,” it does not prohibit “breast pumping discrimination.”
 

Getting interesting. But we are still putting our betting money on a reversal. 

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