The EEOC has recently filed an action in the Western District of Wisconsin entitled EEOC v. Baumann Farms, LLP alleging that the employer has an “English-only policy that discriminates against non-English speaking Hispanic employees based on national origin” in violation of Title VII. The complaint does not offer much detail on what’s in the policy—EEOC only alleges that the policy requires non-English speaking employees to speak English in the employer’s presence or over radio/phone communications. The employer had not yet answered the complaint, so it’s too early to tell whether the employer’s English-only policy is structured in such a way that actually violates Title VII. The EEOC’s allegations regarding the English-only policy are tacked on to a complaint much more focused on sex discrimination and harassment. However, the newly-filed action is a good reminder that employers need to be aware of the potential pit falls in language-restriction policies because the EEOC may be looking for and scrutinizing English-only policies during investigations of other types of discrimination.

Title VII prohibits discrimination on the basis of national origin. The EEOC views English-only policies with suspicion regarding national origin discrimination “because an individual’s primary language is closely tied to his or her cultural and ethnic identity.” The EEOC will presume that a policy requiring that English be spoken “at all times in the workplace” violates Title VII. Additionally, the EEOC will scrutinize English-only policies when the employer has failed to consider whether there is a good business reason for the policy. Expect the EEOC to dig into job duties and question whether those duties require an ability to speak English. Context regarding the languages spoken by the employer’s customers, vendors, and other employees may also come into play when the EEOC is investigating language-restriction policies.

Employers with English-only or other language-restrictive policies should review their policies and practices to ensure they do not run afoul of Title VII. Employers should analyze the need for such policies, which can include customer service needs, health and safety, and efficient business operations. The policy should also be reviewed to ensure it’s tailored to apply only to the workers, work areas, circumstances, times, and job duties necessary to address the identified business reasons for the policy. Employees should be notified of the expectations and limitations of any language-restriction policy, and the consequences for violations of the policy. Finally, employers should also be cognizant of how the policy is being enforced in practice. For example, if the written policy only requires English to be spoken at workstations or while an employee is on the clock, then managers should not discipline employees for speaking other languages while in the lunchroom or taking a break.

Consideration of whether a language-restrictive policy violates Title VII is highly circumstantial. Fox Rothschild’s Labor & Employment attorneys are available to conduct a compliance review of any existing or contemplated employment policies. Should you find that your business is facing an EEOC investigation or other challenge related to an English-only or language-restrictive policy, we recommend you consult an employment attorney as early in the process as possible.

Earlier this year, Montana became the first state to make discrimination based on vaccination status in employment illegal. Specifically, House Bill 702, passed as an amendment to the Montana Human Rights Act, prohibits discrimination by employers based on vaccination status or possession of an “immunity passport.” The law defines “immunity passport” as a document, digital record, or software application indicating that a person is immune to a disease, either through vaccination or infection and recovery. “Vaccination status” is defined as an indication of whether a person has received one or more doses of a vaccine.

The law also prohibits employers from mandating individuals receive “any vaccine whose use is allowed under an emergency use authorization or any vaccine undergoing safety trials.”

Since the law’s enactment, the Montana Department of Labor & Industry has released a set of FAQs regarding the law. The FAQs provide helpful clarification on the following key employment practices:

  • The law does not prohibit an employer from asking about vaccination status or whether an employee has an immunity passport. However, the FAQs warn that employers should not discriminate against employees that refuse to respond.
  • The law also does not prohibit employers from offering incentives to persons to voluntarily become vaccinated so long as the incentive is not so substantial as to be considered coercive (specifically, the FAQs explain that a small gift, such as a water bottle or gift card worth less than $25, would generally not be considered discriminatory).
  • The law prohibits (with exceptions for certain healthcare facilities) an employer from requiring an employee wear a mask on their premises or during the course of employment if they choose not to share their vaccination status or share that they are not vaccinated. However, the FAQs clarify that the law does not prohibit employers from requiring everyone on their premises or during the course of employment to wear masks, regardless of vaccination status, as long as there is a provision for accommodations for persons based on sincerely held religious beliefs or disability.

Fox Rothschild’s Labor & Employment attorneys are available to assist employers with compliance with this Montana law and with the development of their COVID-19 employment policies and procedures.

 

On September 9, 2021, President Biden announced impending COVID-19 vaccine requirements that will apply to federal workers, federal contractors, and private employers with more than 100 employees. If you are an employer in one of these categories, here is what you need to know:

Employers with 100 or More Employees – Vaccine/Testing Requirements Coming Soon

The Occupational Safety and Health Administration (OSHA) is in the process of developing an Emergency Temporary Standard (ETS) that will direct all employers with 100 or more employees to require employees to be either: 1) fully vaccinated or 2) to submit a weekly negative COVID test before coming to work. Employers must also provide employees with paid time off to get vaccinated and to recover from any side effects.

While we do not yet know all the details of the ETS, OSHA has indicated that the 100-employee requirement will be calculated on a company-wide basis. Additionally, the ETS will not apply to employees who work remotely.

The ETS will be effective as soon as it is published but can only be utilized for six months. After that time, it must be replaced by a permanent OSHA standard that has gone through the formal rulemaking process, including public notice and comment. This rule is expected to impact over 80 million workers.

Federal Workers – Must Be Fully Vaccinated By November 22, 2021

All federal employees need to be fully vaccinated by November 22, 2021. In order to meet this deadline, employees must have had their last dose of the vaccine no later than November 8, 2021. The vaccine requirement applies to all federal workers regardless of location, including employees who work remotely. Employees will be required to provide documentation that they have been vaccinated and will be subject to discipline and possible removal from federal service for refusing to obtain a vaccination. However, federal agencies will provide reasonable accommodations for employees who cannot be vaccinated because of a disability or a sincerely held religious belief, practice, or observance.

Federal Contractors – Vaccine Requirements Expected By September 24, 2021

According to the September 9, 2021 “Executive Order on Ensuring Adequate COVID Safety Protocols for Federal Contractors,” federal contractors and subcontractors will be required to comply with forthcoming workplace safety guidance that the Safer Federal Workforce Task Force will issue by September 24.

Although the Executive Order does not explicitly mention vaccine requirements, President Biden’s announcement notes that the federal worker vaccine mandate will be extended to employees of contractors that do business with the government. Therefore, it is likely that the federal contractor requirements will mirror the current requirements for federal employees. The requirements will apply to any workplace locations in which an individual is working on or in connection with a federal government contract or contract-like instrument.

The upcoming safety guidance (and likely vaccine requirement) will apply to any new contract or new contract-like instrument, including a new solicitation, extension, renewal, or exercise of an option that meets any of the following criteria:

  • A procurement contract for services, construction, or a leasehold in real property;
  • A contract covered by the Service Contract Act (SCA);
  • A contract for concessions;
  • A contract in connection with federal property or lands offering services for federal employees, dependents, or the general public; or
  • Subcontracts to executive-agency contracts for services.

However, the new safety requirements will NOT apply to:

  • Grants;
  • Contracts with Indian Tribes;
  • Contracts with a value equal to or less than the simplified acquisition threshold (currently $250,000);
  • Agreements involving employees performing work outside the United States; or
  • Subcontracts solely for the provision of products.

Healthcare Workers – Interim Rule Expected in October

The Centers for Medicare and Medicaid Services (CMS) is in the process of developing an interim rule that will require workers at facilities receiving Medicare or Medicaid reimbursements to be fully vaccinated. The interim rule will build on the existing requirement for nursing homes and will apply to hospitals, dialysis facilities, ambulatory surgery centers, home health agencies, and other facilities participating in Medicare and Medicaid programs. CMS anticipates issuing the interim rule in October.

Texas is not known for its employee-friendly laws. But on September 1, 2021, two amendments to the state labor code (H.B. 21 and S.B. 25) went into effect—providing a Texas-sized expansion of employee protections when it comes to sexual harassment in the workplace.

Longer Time Limit to File Sexual Harassment Claims

Employees now have an expanded time limit to file a complaint of sexual harassment. For conduct occurring on and after September 1, 2021, employees have 300 days from the date the sexual harassment occurred to file a complaint with the Texas Workforce Commission—up from the previous 180 day limit. This applies only to complaints of sexual harassment. Discrimination complaints on the basis of protected class under Texas labor law (race, color, disability, religion, sex, national origin, or age) must still be filed within the 180-day limit.

All Texas Employers Are Subject to Sexual Harassment Claims 

The definition of “employer” is significantly expanded for sexual harassment claims. Previously, an employer had to have at least 15 employees to face a claim of sexual harassment. Now, every Texas employer with at least one employee is subject to the new sexual harassment law.

Potential Liability Beyond the Employer 

Not only can the employer be held liable for sexual harassment, but the definition of “employer” is also expanded to include any person who “acts directly in the interests of an employer in relation to an employee.” This means that supervisors, human resource employees, and co-workers—even contractors and vendors who work with the employer—could be individually-named in a complaint filed with the state commission or in a subsequent lawsuit. The expansion of potential liability to people other than the employer itself is not commonly seen in other jurisdictions.

What constitutes sexual harassment?

The new Texas law provides a specific definition of “sexual harassment”:

  • An unwelcome sexual advance,
  • A request for a sexual favor, or
  • Verbal or physical conduct of a sexual nature;

When:

  • Submission to the advance, request, or conduct is made a term or condition of employment;
  • Submission to or rejection of the advance, request, or conduct is used as the basis for a decision affecting employment;
  • The advance, request, or conduct has the purpose or effect of unreasonably interfering with work performance; or
  • The advance, request, or conduct has the purpose or effect of creating an intimidating, hostile, or offensive working environment

Employer Defenses

An employer commits an “unlawful employment practice” under Texas’ new law if sexual harassment occurs and the employer or the employer’s agents or supervisors:

(1) Know or should have known that sexual harassment was occurring, and

(2) Fail to take immediate and appropriate corrective action.

Employers that take steps to learn of sexual harassment occurring in the workplace and engage in immediate and appropriate action in response have a solid defense to sexual harassment claims. The new law does not define “immediate” or “appropriate corrective action,” so these terms will likely need more definition from the courts.

Prudent employers of all sizes in Texas should review their employment policies and practices regarding sexual harassment—or put them in place if none currently exist. Given the expansion of potential liability to other employees—like managers and human resource representatives— employers should ensure that they have a robust procedure providing employees with a means to report sexual harassment and for investigating any reports. Taking a head-in-the-sand approach will not shield an employer from liability—employers that “should have known” harassment was occurring but did not because of failure to put into place adequate reporting mechanisms will likely not have a defense. Training on sexual harassment for employees at all levels is highly recommended.

Fox Rothschild’s Labor & Employment attorneys are available to review workplace policies and conduct trainings to help ensure compliance with the new Texas laws.

When Colorado’s Equal Pay for Equal Work Act (“EPEWA”) went into effect at the beginning of 2021, Colorado became the first state in the U.S. to require employers to disclose compensation (or a range of compensation) in its public job postings. The far-reaching job-posting requirements, intended to combat pay discrimination, have had some unintended consequences. Most notably, the law has made national headlines as some employers have attempted to avoid the compensation-posting requirements by excluding Colorado workers from applying to remote job listings with phrases like “the position may not be performed remotely from Colorado” or “role can be performed anywhere in the United States except Colorado.”

On July 21, the Colorado Department of Labor and Employment (“CDLE”) issued a revised Interpretive Notice & Formal Opinion (“INFO #9”) to clarify its interpretation of the EPEWA (and to stop the trend of job postings excluding Colorado workers). Here are the key takeaways from INFO #9 for employers to consider when posting a job:

Who is required to comply with the EPEWA?

  • Any entity that employs at least one person in Colorado.

What compensation information must be included in a job posting to be compliant with the EPEWA?

  • The rate of compensation (or a range of compensation). If the posting includes a range, it must include both the lowest and highest pay the employer genuinely believes it might pay for the particular job. Ranges cannot be left open-ended, so an employer cannot post “$60,000 and up” or “up to $60,000.”
  • A general description of bonuses, commissions, or other compensation.
  • A general description of benefits being offered with the position, such as health care, retirement benefits, paid days off, and tax-reportable benefits. However, “minor perks” like on-site gyms, nap rooms, or free ice cream do not need to be included.
  • The compensation information can be included in a linked document or page rather than on the job posting itself as long as the posting clearly explains that the compensation can be found through the link.

Are there any exceptions to the compensation-posting requirement for out-of-state jobs?

  • If a covered entity posts a job that will be performed entirely outside Colorado because the job is tied to non-Colorado worksites, the posting does not need to include compensation information. For example, if a restaurant posts a job for a server position in North Dakota, the posting does not need to include compensation information because the job would be performed entirely outside Colorado and is tied to a non-Colorado worksite.

Can an employer hiring for a remote position avoid the compensation-posting requirement by specifying that the job “cannot be performed in Colorado” or otherwise excluding Colorado applicants?

  • No. If an employer posts a remote job (i.e., a job that could be performed anywhere), it must include compensation and benefits information. According to INFO #9, “a remote job posting, even if it states that the employer will not accept Colorado applicants, remains covered by the Act’s transparency requirements.” The CDLE has clarified that a remote job excluding Colorado applicants would not fall into the narrow exception for out-of-state worksites.

Does the EPEWA have any requirements about posting for promotional opportunities?

  • Yes. Employers are required to make reasonable efforts to announce promotional opportunities to all Colorado employees prior to making a promotion decision. These announcements must include the job title, instructions for applying, and compensation (unless the position is tied to a non-Colorado worksite).
  • The term “promotional opportunity” is interpreted very broadly to include any job that is superior to another job in terms of compensation, benefits, status, duties, opportunities, or access to further career advancement.
  • There are a few exceptions to the notice requirement:
    • Employers do not have to provide notice of a promotional opportunity if the opportunity is to replace an incumbent employee who is unaware of their impending separation.
    • Employers do not have to provide notice of a promotion where consideration for the promotion automatically follows a trial period of less than one year as memorialized in writing (through offer letter, contract, or handbook).
    • No notice is required for temporary positions lasting less than six months.

If you have questions about the EPEWA, Fox Rothschild’s Labor & Employment attorneys are available to review job postings, notices, and workplace policies to help ensure compliance with the law.

Employers are generally familiar with the Age Discrimination in Employment Act of 1967 (ADEA), which prohibits discrimination against employees age 40 and older on the basis of age. In 2009, the U.S. Supreme Court clarified in Gross v. FBL Financial Services that plaintiffs bringing ADEA claims must prove that age was the “but for” cause of the adverse employment action, closing the door to plaintiffs who could only show that age was one factor among other factors at play in an employment decision. In other words, a plaintiff could not succeed in a “mixed motive” ADEA age discrimination claim in the way that plaintiffs bringing race or gender discrimination claims under Title VII could.

Now, Congress is making moves towards nullifying Gross. On June 23, 2021, the U.S. House of Representatives passed the Protecting Older Workers Against Discrimination Act (POWADA). If passed by the Senate and signed into law, POWADA would allow plaintiffs to bring ADEA age discrimination claims under a mixed motive theory. Plaintiffs alleging age discrimination could prevail in court by demonstrating that age was a motivating factor, even though other, non-age factors also motivated the employer’s decision. POWADA intends to lower the plaintiff’s standard of proof and may result in more-favorable outcomes for ADEA plaintiffs, which in turn may encourage the filing of more age discrimination lawsuits against employers.

Interestingly, the POWADA limits the forms of relief an ADEA plaintiff relying on a mixed motive theory could obtain from the court. If a plaintiff asserting an ADEA age discrimination claim is only able to prove that age was one motivating factor among others for an employment decision, the court would be permitted to grant declaratory relief, injunctive relief, and attorney’s fees and costs—but cannot award damages or issue an order requiring admission, reinstatement, hiring, promotion, or payment.

Fox Rothschild Labor & Employment attorneys will continue to monitor the progress of POWADA and provide updates should it continue to advance.

The U.S. Equal Employment Opportunity Commission (“EEOC”) recently updated and expanded its guidance regarding the COVID-19 pandemic and federal anti-discrimination laws, including the Americans with Disabilities Act (“ADA”) and Title VII of the Civil Rights Act (“Title VII”). The guidance, initially issued in December of 2020, covers communicating with employees regarding their COVID-19 diagnosis or vaccination status, COVID-19 vaccine mandates, and responding to employee requests for reasonable accommodations to COVID-19 safety measures.

The updated guidance now covers offering incentives to employees to get vaccinated or to provide proof of vaccination status, among other issues. Specifically, the guidance provides:

  • Federal EEO laws do not prevent an employer from requiring all employees physically entering the workplace to be vaccinated for COVID-19, so long as the employer complies with the reasonable accommodation provisions of the ADA and Title VII and the employer ensures its vaccine requirement does not have a disparate impact on (or disproportionately exclude) employees based on their race, color, religion, sex, or national origin under Title VII.
  • Federal EEO laws do not prevent or limit employers from offering incentives to employees to voluntarily provide documentation or other confirmation of vaccination obtained from a third party, such as a pharmacy, personal health care provider, or public clinic. If employers choose to obtain vaccination information from their employees, employers must keep vaccination information confidential pursuant to the ADA just like any other medical information.
  • An employer may also offer an incentive to employees to become vaccinated, including for receiving the vaccination from the employer, if the incentives are not so large to be considered coercive. Because vaccinations require employees to answer pre-vaccination disability-related screening questions, a very large incentive could make employees feel pressured to disclose protected medical information. The limitation that the incentive not be so large to be considered coercive does not apply if the employee receives the vaccine from a third party (and not the employer).
  • Employers may also provide employees and their family members with information to educate them about COVID-19 vaccines and raise awareness about the benefits of vaccination. The guidance links to specific resources employers can share with their employees.
  • Finally, the guidance covers issues related to an employer inquiring about an employee’s family member’s vaccination status under the Genetic Information Nondiscrimination Act (“GINA”).

This updated guidance answers COVID-19 questions only from the perspective of the EEO laws. Employers will still be required to carefully consider all relevant factors, including other applicable federal, state and local laws, in setting their policies regarding COVID-19 vaccinations in the workplace.

As we’ve written before, the Supreme Court decided in Bostock v. Clayton County, Ga. that sexual orientation and gender identity discrimination is prohibited under Title VII of the Civil Rights Act of 1964. Since the Bostock decision, the EEOC has launched a new resource page on sexual orientation and gender identity, which outlines the agency’s general views with respect to enforcement in these areas.

With these developments, some have questioned whether the Equality Act, which has passed the House of Representatives and awaits a vote in the Senate, would be redundant. Although there is some overlap with the Bostock decision, the Equality Act has key differences.

Some of those key differences in the Equality Act include:

  • Stating expressly that sexual orientation and gender identity are included in the definition of sex under Title VII;
  • Further defining sex as including pregnancy, childbirth, or related medical conditions, sex stereotypes, and sex characteristics including intersex traits;
  • Stating specifically that gender identity discrimination includes denying a person access to a shared facility (such as a restroom, dressing room, or locker room) that corresponds to the person’s gender identity; and
  • Clarifies that discrimination based on the sex of another person with whom the individual is (or has been) associated is prohibited.

In addition to these differences, there’s another crucial distinction: Bostock is merely case law. As such, it could be reversed or limited by future decisions of the Court. The Equality Act would specifically codify these points (and other matters, as it also has provisions addressing housing, education, health care, and other settings) as an express matter of statute.

As always, we will continue to follow this issue and provide updates on the Equality Act should it continue to advance.

Last June, in Bostock v. Clayton County, Ga., the Supreme Court ruled that Title VII of the Civil Rights of 1964 prohibits discrimination in the workplace based on sexual orientation or gender identity. We covered that historic ruling, and you can find our original article here. 

Although the Court’s ruling was broad in a sense, it was limited in another, as the Court took pains to say that it was not deciding certain issues (such as religious exemptions or facilities access). Rather, the Court repeatedly stated it was focused on the simple issue of an employee being terminated for their sexual orientation or gender identity. This part of the ruling has left some employers wondering how they should work through other workplace issues in light of the Court’s ruling.

To that point, the EEOC has launched a resource page on sexual orientation and gender identity. The page includes the EEOC’s position on what kinds of acts in the workplace can constitute employment discrimination or harassment based on sexual orientation or gender identity. It also links to the EEOC’s more detailed technical guidance document on this issue, provides a fact sheet on notable litigation the EEOC is following, and includes litigation and enforcement statistics.

As the law continues to evolve and progress, the EEOC’s resource hub is worth your time – check it out.

The Equal Employment Opportunity Commission (“EEOC”) recently issued its long-awaited guidance regarding the implications of mandating COVID-19 vaccinations in the workplace under certain EEO laws. In general, the guidance confirms that employers can require that employees receive a COVID-19 vaccination as a condition of employment in certain circumstances, provides guidance on how to communicate with employees about vaccination status, and addresses responding to employee objections to being vaccinated.  Below are some of the key takeaways from the guidance.

Considerations under the ADA and Title VII:

  • Under the Americans with Disabilities Act (“ADA”), employers can require that an individual shall not pose a direct threat to the health or safety of individuals in the workplace.  A conclusion that there is a direct threat would include a determination that an unvaccinated individual will expose others to the virus at the worksite.
  • However, if an employer chooses to implement a vaccine requirement which screens out or tends to screen out an individual with a disability, in order to ensure compliance with the ADA the employer must show that an unvaccinated employee would pose a direct threat due to a significant risk of substantial harm to the health or safety of the individual or others that cannot be eliminated or reduced by a reasonable accommodation.
  • If there is a direct threat that cannot be reduced to an acceptable level, the employer can exclude the employee from physically entering the workplace, but this does not mean the employer may automatically terminate the employee. For example, the employee may be able to work remotely as a reasonable accommodation, or there may be other accommodations the employer can put in place to isolate that employee from other workers that do not create an undue hardship for the employer.
  • Similarly, if an employee objects to receiving the vaccination because of a sincerely-held religious practice or belief, the employer must provide a reasonable accommodation for the religious belief, practice, or observance unless it would pose an undue hardship under Title VII of the Civil Rights Act.
  • When considering whether an exception to the vaccination requirement would cause an undue hardship, employers should consider the prevalence in the workplace of employees who already have received a COVID-19 vaccination and the amount of the objecting employee’s contact with others whose vaccination status could be unknown, along with other relevant factors.

Communicating about an employee’s vaccination status:

  • Pre-screening vaccination questions may implicate the ADA’s provision on disability-related inquires, in particular if the questions are intended to confirm that there is no medical reason that would prevent the person from receiving the vaccination.  Employers that ask these questions must show that these inquiries are “job-related and consistent with business necessity” to ensure they do not violate the ADA. To meet this standard, an employer would need to have a reasonable belief, based on objective evidence, that an employee who does not answer the questions and, therefore, does not receive a vaccination, will pose a direct threat to the health or safety of her or himself or others.
  • The EEOC guidance confirms, however, that if the employee receives the vaccination from a third-party that is not contracted with the employer, the ADA restriction on disability-related inquiries would not apply.
  • Simply requesting proof of receipt of a COVID-19 vaccination, however, is not likely to elicit information about a disability and, therefore, is not a disability-related inquiry.
  • Additionally, vaccines administered to employees are not considered actual medical examinations under the ADA.
  • Managers and supervisors are reminded that it is unlawful to disclose that an employee is receiving a reasonable accommodation and to retaliate against an employee for requesting an accommodation.

Considerations under GINA :

  • Employers are forbidden under the Genetic Information Nondiscrimination Act (“GINA”) from using genetic information to make decisions related to the terms, conditions, and privileges of employment or acquiring or disclosing such information, except in certain narrow circumstances.
  • The EEOC guidance provides that requiring employees to get a COVID-19 vaccination does not violate GINA because, according to the CDC, the COVID-19 vaccine does not interact with our DNA.
  • However, if administration of the vaccine requires pre-screening questions that ask about genetic information, such as family members’ medical histories, those questions may violate GINA.

While this guidance provides one helpful perspective on requiring COVID-19 vaccinations in the workplace, employers will still be required to carefully consider all relevant factors, including the requirements of its positions, its work environment, and the level of risk of COVID-19 spread amongst its workforce, in deciding whether to implement a mandatory COVID-19 vaccination requirement.