Entering a relatively new frontier in employment discrimination law, the Maryland legislature has passed legislation restricting employers’ use of facial recognition technology in the hiring process. The bill becomes effective on October 1, 2020.

Under the new law, Maryland employers may not use a “facial recognition service” for the purpose of creating a “facial template” during an applicant’s interview for employment. The law defines “facial recognition service” as any technology that “analyzes facial features and is used for recognition or persistent tracking of individuals,” whether in still images or video. “Facial templates” are defined as a “machine-interpretable pattern of facial features” that are extracted from images by a facial recognition service.

The law permits applicants to consent to the use of facial recognition technology during an interview. To do so, applicants must sign a waiver which, among other things, must be written in plain language, include the date of the interview, and provide an express consent to use of the technology.

Recent media reports have cast doubt on the effectiveness of facial recognition technology. In December 2019, the National Institute of Standards and Technology found that facial recognition efforts suffered from substantially higher error rates in attempting to identify people of color, women, and elderly persons. These inherent biases and disparities pose a significant risk of applicants and employees bringing discrimination claims against employers who use this technology to inform their employment decision-making.

In addition to potential discrimination issues, facial recognition technology may put employers at higher risk of data breaches, as storage of employee biometric information  such as facial recognition data may pose a tempting target for hacking.

In passing this law, Maryland is likely to be at the start of a trend of state legislatures taking a closer look at the use of facial recognition technologies for employment purposes. Employers deciding to use these technologies should make sure to monitor developing law in jurisdictions where they operate.

In an historic decision, the Supreme Court ruled 6-3 last week that Title VII’s prohibition on employment discrimination protects employees on the basis of sexual orientation and gender identity. In doing so, the Court held that discrimination based on sexual orientation or gender identity necessarily involves discrimination on the basis of sex, which Title VII expressly prohibits. 

As regular readers of our blog will recall, we have covered this issue for quite some time, including the cases that made their way to the Supreme Court.  We’ve written a client Alert discussing the Court’s decision and examining the practical implications for employers. The Supreme Court’s decision is available here.

The Court’s decision means that non-discrimination protections apply to LGBTQ employees of employers who are covered by Title VII (i.e., employers with fifteen or more employees) in all fifty states, bringing a level of consistency to a patchwork of state laws.

Practically speaking, employers should immediately review their policies and practices to ensure that they are promoting a work environment free from discrimination or harassment based on sexual orientation or gender identity. This step is critical for employers in states that lack state law protections for LGBTQ employees. In particular, employers should consider their policies and practices on hiring, dress codes, employee benefits, promotion, discipline, and discrimination and harassment prevention, among others, in light of the Supreme Court’s ruling.

COVID-19 has changed workplaces across the country. The virus’s status as a pandemic has given employers more tools to protect employees from the risks of infection at work. While the ADA normally restricts employers from making medical inquiries to employees or conducting medical exams at work, the COVID-19 pandemic has relaxed some of these restrictions.

For example, employers can now ask employees who call in sick if they are experiencing symptoms of the pandemic – such as fever, chills, cough, shortness of breath, and sore throat. Employers can also to require employees to stay home if they have symptoms of the COVID-19 virus.

Employers may also now take employees’ body temperatures to check for signs of a fever, which is a symptom of the virus. If an employer decides to take temperatures, though, it’s important to do so in a neutral and consistent way, as “singling out” particular employees (or particular groups of employees) may lead to discrimination claims.

Importantly, taking temperatures isn’t foolproof. Employers who decide to take employee temperatures should keep in mind that some individuals who are carrying the COVID-19 virus do not have a fever or other symptoms.

Employers should know two other important things about COVID-19-related medical inquiries and exams. First, all information about employee illnesses must be treated as a confidential medical record and kept in a separate file. Second, employers should base decisions on objective medical and scientific evidence from experts (such as the Centers for Disease Control and Prevention). Making decisions based on fears, stereotypes, or assumptions is an easy way to find yourself facing a discrimination claim. For more information, check out the EEOC’s updated guidance.

COVID-19 may also affect employers’ accommodation obligations toward employees who have underlying health conditions that make COVID-19 particularly dangerous. The CDC has identified several conditions to create high risk for serious COVID-19 infection including asthma, diabetes, lung disease, heart conditions, being immunocompromised (which may result from cancer treatment, organ transplant, HIV/AIDS infection, or other conditions), liver disease, or kidney disease.

The ADA requires employers to make reasonable accommodations to assist employees in performing essential job functions. Employees who have one or more of these conditions may raise concerns about the risks of working or returning to work. Employers should engage these employees  in an open dialogue and determine whether an accommodation (such as additional leave) can be provided.

As always, employers should consult the latest guidance and knowledgeable employment counsel in making ADA-related decisions during the pandemic.

The COVID-19 pandemic has caused the U.S. Equal Employment Opportunity Commission (EEOC) to announce that it has temporarily suspended issuing case closure documents, such as right-to-sue notices, unless requested by the claimant.

Nothing in the EEOC’s announcement precludes claimants from filing new EEOC charges.

Details in this client alert.

The New Jersey Division of Civil Rights has issued a report on sexual harassment, but what does it mean for workplaces in the state?

The report comes as a result of three public hearings held in 2019 by the Division of Civil Rights in partnership with the New Jersey Coalition Against Sexual Assault and the Rutgers Law School International Human Rights Clinic. The goal of the project was to hear from New Jerseyans about their experiences in the workplace with sexual harassment and to chart a path forward for the state on this issue.

The report itself takes a thorough look at issues of workplace harassment: defining what sexual harassment in the workplace is, examining how sexual harassment can thrive or be enabled by certain workplace practices, and discussing the effectiveness of employer practices in preventing and remedying sexual harassment in the workplace.

In addition, the report makes specific recommendations for amending the New Jersey Law Against Discrimination (LAD) in order to more effectively combat workplace sexual harassment. Among other things, these recommendations include expanding the LAD to cover domestic workers and unpaid interns; requiring employers to maintain clear, written anti-harassment policies; requiring employees to have harassment prevention training that covers specific topics; extending the statute of limitations for sexual harassment claims, and requiring larger employers to report the type, number, and resolution of internal complaints of discrimination, harassment, and retaliation. It’s unclear at this time whether the New Jersey Legislature will adopt these recommendations.

The report also includes best practices for employers, including implementing strong anti-harassment policies, promoting effective harassment prevention training, actively encouraging reporting of complaints, and conducting investigations of complaints promptly, thoroughly, and impartially.

Employers should check out the report, which is available here, and think about how to implement best practices for preventing sexual harassment in the workplace.

What happens if an employer takes adverse action against an employee based on a legitimate, nondiscriminatory reason that later turns out to be wrong? Suppose, for example, an employer fires an employee based on a genuine belief that the employee violated the employer’s policies, but it turns out that, in fact, the employee did not. Is the employer now susceptible to a Title VII discrimination claim based on its mistaken, yet honest, belief? According to a recent opinion from the Fifth Circuit, the answer is no.

In Harville v. City of Houston, Mississippi (No. 18-60117, 5th Cir., Dec. 19, 2019), Mary Paula Harville, a white female, was hired as deputy clerk for the City of Houston, Mississippi in 2005. At the time of her termination in 2015, there were four deputy clerks in the clerk’s office, each with their own primary duties. Harville’s involved processing and invoicing certain taxes. The other three deputy clerks were Kathy Smith (white), Barbara Buggs (black), and Shequala Jones (black). Buggs and Jones were related to Sheina Jones (black), a member of the City’s Board of Aldermen (the “Board”).

In the fall of 2015, the City faced a budget shortfall and began considering ways to cut costs. The City Clerk at the time, Margaret Futral, cautioned Harville that the Board might vote to reduce the number of deputy clerks from four to three. On September 15, 2015, the Board met to consider laying off four city employees, including one deputy clerk. In an effort to save Harville’s job, Futral and Mayor Stacy Parker urged the Board to consider other budget saving methods, like cuts to hours and insurance. Alderman Uhiren stated that he considered Harville’s job to be seasonal since it involved tax collection. Futral disputed this and suggested it would make more sense to cut Shequala Jones’s position, since the other deputy clerks had adequately covered Jones’s job responsibilities while she was out on maternity leave. Futral also advocated that Harville’s tax duties could not be replicated by another clerk. Alderwoman Sheina Jones responded that Buggs (her sister) had trained Harville and knew the job.

The Board ultimately rejected the proposed solutions that would have saved Harville’s job and voted unanimously to eliminate four full-time positions, including Harville’s. According to Harville, Mayor Parker told her she was terminated because the Board determined that her job was seasonal. The Board did not post or fill Harville’s position after her departure.

Harville subsequently filed a charge of race and age discrimination with the EEOC, obtained a right-to-sue, and filed suit in the Northern District of Mississippi alleging racial discrimination under Title VII and 42 U.S.C. § 1981 and age discrimination under the Age Discrimination in Employment Act. With respect to her race-based claim, Harville alleged, in essence, that the Board cut Harville because she was white and retained Shequala Jones because she was black.  The district court granted summary judgment in favor of the City, and Harville appealed the district court’s decision as to her race discrimination claim.

In affirming the district court’s summary judgment ruling, the Fifth Circuit noted that the Board chose to eliminate Harville’s position because it genuinely believed her primary duties (taxes) were seasonal. The Fifth Circuit also rejected Harville’s argument that the district court failed to credit her evidence from which a jury could infer that the Board’s seasonality explanation was pretext for discrimination—specifically, that Futral maintained that the job was not seasonal and that Alderwoman Jones suggested that Buggs (her sister) could adequately cover Harville’s job duties, which turned out to be untrue. The Court observed:

Futral testified that the actual decisionmakers—the members of the [B]oard—believed that the job was seasonal.[] The issue at the pretext stage is not whether the Board’s reason was actually correct or fair, but whether the decisionmakers honestly believed the reason. Harville has not provided sufficient evidence from which a jury could infer that the City’s decision here was not a simple reduction-in-force decision based on objective criteria.”

In sum, even though Harville’s job was not seasonal and Buggs could not adequately cover Harville’s tax duties, the Board honestly believed the opposite when it decided to eliminate Harville’s job. This genuine belief precluded a finding of pretext or discriminatory intent at the summary judgment stage. It didnot matter that the Board decided to fire Harville based on objective criteria that was ultimately wrong, so long as the Board’s decision was nondiscriminatory.

Thus, for employers facing a discrimination claim, being wrong can also mean being right (or, at least, being nondiscriminatory).

When an employee requests an accommodation or asserts a claim under the Americans with Disabilities Act, an employer’s second question—right after “Are we even covered by the ADA?”—will likely be:  “Did/does the employee have a disability?” (Claims from employees who are merely perceived as disabled are a topic for another day.)  The definition of a disability has two parts.  First, it must be “a physical or mental impairment” and, second, it must “substantially limit one or more major life activities.”  In a recent decision, the United States Court of Appeals for the Second Circuit held that an employee who allegedly suffered stress and incapacitating migraines from working under his supervisors did not have a disability under the ADA because there was no substantial limitation on a major life activity.

In Woolf v. Strada, plaintiff Woolf provided medical documentation from a treating neurologist indicating that the “emotional stress at work” was the “primary trigger” for Woolf’s migraines and that, absent a change in the work environment, the stress would increase his risk of heart attack and stroke.  Woolf repeatedly requested transfers within the company, including to the same position in a different location or under different supervisors.  Those requests were denied and he was instead granted intermittent medical leave with full pay as an accommodation.  Still, Woolf’s performance declined due to the migraines and he was ultimately terminated.

When Woolf subsequently sued under the ADA and state law, alleging failure to accommodate and discriminatory termination, the key issue was whether the migraines substantially limited the major life activity of working.  The appeals court answered in the negative because Woolf’s work was only limited in his specific job under his specific supervisors.  The court relied on

the well-established understanding that an employee’s inability to perform a single, particular job does not constitute a substantial limitation in the major life activity of working.  This long-standing, common-sense principle of law recognizes that employees who are precluded only from doing their specific job, or from working under a specific supervisor, do not have a “disability.”  Rather, an employee alleging a substantial limitation in the major life activity of working must show that the limitation affects the ability to “perform a class . . . or broad range of jobs.”

Employers considering accommodation requests under the ADA should thus examine how narrow an employee’s alleged limitation is before determining whether the employee indeed has a disability.  But bear in mind two points.  First, a disability need only substantially limit one major life activity.  There may be other activities—walking, breathing, learning, etc.—that are substantially limited even if the impairment falls short in limiting working.  Second, as always, state and local laws may be broader than the ADA in their definition of disability or otherwise.

 

In January, Supreme Court Chief Justice John Roberts drew considerable media attention by asking, during the oral argument of an age discrimination case, Babb v. Wilkie, a question about the relevance of the phrase “OK, Boomer.”  A Google search of “Chief Justice OK Boomer” will reveal articles from almost every serious media outlet putting their spin on the remark.  Most commentators have portrayed the conservative Chief Justice as suggesting it would be silly to take today’s trendy phrase from popular culture and conclude it could be evidence of age discrimination.

But, that’s not exactly what happened.  Instead, the question that garnered all the attention was way down in the legal weeds, far beyond our time and space and interest here.  Suffice it to say that the Chief Justice’s wondering dealt with a series of hypotheticals and “what-ifs” posed by the Court around questions of the burden of proof for federal employees under statutory language that is different than the language of the Age Discrimination in Employment Act that applies to private (or state and local governmental) employees.

The larger point was that “OK, Boomer” can be like any other ageist comment.  And Chief Justice Roberts was asking the question all HR professionals and attorneys and, sometimes juries, must answer—when a comment reveals stereotyping based on membership in a protected category, is it evidence of bias or is it merely a “stray” remark that had no impact on an employment decision and no tendency to harass?

Can enough “OK, Boomer” remarks create a hostile work environment?  What about a comment by a hiring manager in an interview—would that prove bias in denying the applicant a job?

As attorneys often say, because it is true, “it depends.”  But the greater point, and the reminder worth taking from the Supreme Court argument, is that the answer to those questions can certainly be YES, given the right accompanying facts.  Even casual statements meant to tease but not to harm can be evidence of harassment or bias.  Millennials might think they have a point about older employees being judgmental and condescending, but men used to think they had a point about women being emotional and insecure.  Wrong.  Think of the pejorative statements uttered to women and minorities over decades, based on stereotypes, intended by the speaker to be merely joking, but heard by the listener as hurtful and judgmental—those are exactly the kinds of comments that employment discrimination laws are meant to root out of the workplace.

True, HR managers sometimes need to pick their battles, and policing speech that enters the culture and exits just as quickly might not be priority one.  Surely, an older employee’s best reply to “OK, Boomer” is not to run and complain to HR.

At the same time, if unchecked, this comment is like any other that singles out an employee’s protected trait, and it carries the added layer of conveying a level of dissatisfaction with someone due to his or her association with others of the same protected group.  As with most things HR, the best advice is common sense: snarky is bad for employee relations, lumping someone into group stereotypes never helps, and jokes land wrong when they are built on making fun of people.

If you’re a regular reader of our blog, you probably know that the question of whether federal law prohibits employment discrimination against employees on the basis of their sexual orientation or gender identity remains open, which the Supreme Court may (or may not) resolve this year. While the EEOC  continues to move forward in processing charges that allege discrimination on these bases, the current limbo in federal law has opened the door for state action.

Some states, like Pennsylvania and Michigan, have taken action to interpret their state anti-discrimination laws to protect LGBTQ employees at the administrative level.  Now it appears Virginia will be the latest state to take action at the legislative level.

Earlier this month, Virginia Legislature passed legislation to prohibit discrimination in employment on the basis of sexual orientation and gender identity. The bills passed the Virginia House of Delegates by a vote of 59-35 and the state Senate by a vote of 30-9. However, the two houses of the Legislature passed different versions of the legislation, which must now be reconciled. Until that is done, it remains an open question how broadly the legislation will cover Virginia employers.

Still, Virginia Governor Ralph Northam is expected to sign the final version of the law, which would make Virginia the first state in the southern United States to legislate protections for LGBTQ employees in employment.

We will continue to monitor this legislation and provide updates. In the meantime, Virginia employers should planning to review their policies and practices now to determine compliance when a law is ultimately enacted.

In December, 2019, New Jersey enacted the Create a Respectful and Open Workspace for Natural Hair Act, or the CROWN Act. The CROWN act amends the New Jersey Law Against Discrimination (LAD) to state that “race,” as defined by the LAD, includes “traits historically associated with race, including, but not limited to, hair texture, hair type, and protective hairstyles.” The CROWN Act defines “protective hairstyles,” in turn, as including but not being limited to braids, locks, and twists.

In other words, employers who take adverse action against employees because employees wear natural hair – including certain hair textures, types, and styles – are discriminating on the basis of race.

The CROWN Act was introduced in response to a series of media reports highlighting the issue this past summer. In addition, the New Jersey Division of Civil Rights (DCR) recently issued guidance on this point, interpreting the LAD’s provision on race discrimination to cover discrimination on the basis of hairstyles that are “inextricably intertwined with or closely associated with race.”

Although the CROWN Act makes a key principle of the DCR guidance express as a matter of statutory text, it is possible that New Jersey courts will continue to look to the DCR guidance as providing persuasive or illustrative examples of how certain employment actions based on employee hairstyles can constitute race discrimination.

As a result of this law, employers should immediately review their policies, practices, and training materials regarding employee appearance, grooming, and dress code standards to ensure compliance. Employer review is particularly important given that policies that appear to be neutral on their face may, in fact or in practice, actually be discriminatory under the law, as amended.