On November 9, 2020, the U.S. Equal Employment Opportunity Commission (“EEOC”) voted 3-2 to release a proposed update to Section 12 of the EEOC Compliance Manual addressing religious discrimination. Section 12 of the Compliance Manual has not been revised since 2008. The public has until December 17, 2020 to issue comments to the proposed update, which can be done here.

EEOC is tasked with civil enforcement of federal employment laws prohibiting discrimination on the basis of religion under Title VII of the Civil Rights Act of 1964. EEOC’s proposed updated primarily addresses two prongs of religious discrimination issues: (1) protections for employees with regard to reasonable accommodations and harassment, and (2) protections and defenses available to religious employers against Title VII claims brought by employees.

Here are some highlights of the 110-page proposed update:

EEOC Expands Discussion of Exceptions to its Enforcement Powers

Although EEOC does not enforce the Religious Freedom Restoration Act (“RFRA”), a federal statute that prohibits governmental entities from substantially burdening an individual’s religious exercise, EEOC devotes a substantial portion of its guidance to addressing the interaction between Title VII and the RFRA. The proposed guidance even goes so far as to suggest ways that a private employer might be able use RFRA to defend against a Title VII claim. For example, the proposed guidance notes that “a private sector employer might argue that its rights under the First Amendment’s Free Exercise Clause, or under RFRA, would be violated if it is compelled by Title VII to grant a particular accommodation or otherwise refrain from an employment policy.” As EEOC acknowledges however, courts currently disagree as to whether such defense is allowed. Whether a private employer can successfully assert a defense against a Title VII claim of discrimination under RFRA is far from clear, even if the EEOC is indicating a willingness to undercut its own enforcement authority.

Signaled Changes Regarding Charge Investigations of Employees’ Claims that a Belief is Religious

Sections entitled “Note to EEOC Investigators” signal changes in how the EEOC may assess charges filed on the basis of religious discrimination going forward. In considering whether a belief is “religious,” the proposal makes small changes that may have significant impacts in a charge investigation. The 2008 guidance tells EEOC investigators that in “some cases” the investigator can accept the charging party’s testimony that the belief, observance, or practice at issue is religious. The proposed update changes this instruction from “some cases” to “most cases,” indicating to investigators that they can more often rely solely on the employee’s testimony. The revisions also shift to emphasize that the investigator’s general knowledge is often sufficient to make a determination that a practice, observance, or belief is religious, as compared to the 2008 guidance, which advises the EEOC investigator to seek further objective information if the investigator’s general knowledge is insufficient. These changes indicate that the EEOC may be more likely to accept the employee’s word on the religiosity of the belief, observance, or practice without as much investigation.

EEOC’s Employer Best Practices Imply Giving Greater Leeway to Religious Expression in the Workplace

Changes to “Employer Best Practices” also suggest that the EEOC may expect employers to provide more protections for employee religious expression in the workplace. For example, the current Compliance Manual advises that employers should allow religious expression among employees “to the same extent” that they allow other types of personal expression (so long as it is not harassing or disruptive). The proposed update changes this advice to “at least to the same extent” and quotes from EEOC v. Abercrombie & Fitch Stores that Title VII gives favored treatment to religious observance and practice. Together, these revisions imply that employers should give religious expression some kind of heightened protection as compared to other types of personal expression. Employer best practices are also softened with regard to what actions an employer should take to prevent a hostile work environment due to an employee’s religious expression. Where the current Compliance Manual advises an employer to take steps to end the conduct to avoid the potential of creating a hostile work environment in the face of another employee’s complaint, the revisions change this advice to “investigate and, if appropriate, take steps to ensure the expression does not become sufficiently severe or pervasive.”

The Intersection of Competing Discrimination Protections is Not Made Clear

The intersection of religious discrimination protection and sex discrimination protection—especially for the LGBTQ community—may be the topic employers are most in need of clear guidance from the EEOC. Unfortunately, employers should not expect to find a “magic bullet” in the proposed update as currently written. The proposed update includes an example in an attempt to address this conflict, but instead sets up a tight wire act for employers to perform. Whether an employee can be mandated to attend diversity training or must be excused from a training (or portions of a training) as a religious accommodation comes down to the content of the training. Employers may require attendance at trainings on equal employment opportunity laws and the company’s anti-discrimination policies and may go as far as requiring employees to affirm that they will treat each other “professionally” and with “courtesy, dignity, and respect.” However, employers may not be able to require employees to affirm support or agree with conduct that conflicts with the employee’s religious beliefs. The proposed revisions cite to a 2004 federal district court case in which an employer violated Title VII in failing to accommodate an employee’s refusal to sign a diversity policy asking him to “value the difference among all of us” as against his religious beliefs. See Buananno v. AT&T Broadband, LLC, 313 F. Supp. 2d 1069 (D. Colo. 2004).

The EEOC Compliance Manual is not binding and has no force of law. Nonetheless, employers should take heed of the Compliance Manual regarding employer best practices and to gain insight on how EEOC may consider filed charges on religious discrimination claims in the future. Although charges filed with the EEOC on the basis of religious discrimination allegations remain a small fraction of all EEOC charge types (3.7% of all charges in fiscal year 2019), the overall number and percentage of total charges concerning religious discrimination claims have been trending upwards over the past few decades.

Earlier this year, Colorado joined a growing list of states that have banned natural hair discrimination. Colorado’s CROWN Act (Creating a Respectful and Open World for Natural Hair Act)  went into effect on September 14, 2020 with the goal of preventing racial discrimination premised on a person’s natural hair type or race-based hairstyle.

The CROWN Act amends Colorado’s Anti-Discrimination Act by defining “race” to include “hair texture, hair type, or a protective hairstyle that is commonly or historically associated with race.” A protective hairstyle may include braids, locs, twists, tight coils or curls, cornrows, Bantu knots, Afros, and headwraps. In other words, under the new law, an employer who discriminates against an employee because of the employee’s natural hair texture, hair type, or protective hairstyle is discriminating on the basis of race.

Colorado employers should review and update handbooks, policies, and training materials to ensure compliance with the new law. In particular, employers should review policies pertaining to dress codes or grooming standards to ensure that such policies do not contain language that could be construed to prohibit workers from maintaining natural hairstyles. Additionally, employers should provide training to managers and supervisors who enforce any dress code or grooming policies to ensure that they understand that natural hair texture and protective hairstyles are now protected in the workplace.

On September 17, 2020, the U.S. House of Representatives passed a bill, called the Pregnant Workers Fairness Act (“PWFA”), which would require employers to make reasonable accommodations for pregnant workers. The bill, HR 2694, passed by a 329-73 vote with bi-partisan support. The bill still needs to be approved by the Senate and eventually signed by the President to become law.

Currently, it is illegal for employers to discriminate against women because they are pregnant under the Pregnancy Discrimination Act (“PDA”). However, the PDA does not affirmatively require employers to provide reasonable accommodations to all pregnant employees. Courts interpreting the PDA have held that a pregnant employee who can show that her employer denied her an accommodation, while accommodating others with similar limitations, could make out a claim of discrimination if the employer’s explanation for refusing to accommodate the employee was shown to be pretextual.

This case law, as well as guidance from the Equal Employment Opportunity Commission (“EEOC”), provides a framework for analyzing these types of pregnancy discrimination claims. But many questions still remain regarding the extent of pregnant workers’ rights to a reasonable accommodation in certain circumstances, including when their pregnancy-related limitation does not rise to the level of a disability under the Americans with Disabilities Act (“ADA”).

The PWFA seeks to fill in some of these gaps. If enacted, the PWFA would provide an affirmative right to an accommodation for all pregnant workers, regardless of whether their pregnancy-related limitation rises to the level of a disability, who work for employers with more than 15 employees. More specifically, employers would be required to provide accommodations related to pregnancy, childbirth, or related medical conditions unless the accommodation would impose an undue hardship.

Employers and employees would be required to engage in the “interactive process” required by the ADA to agree on a reasonable accommodation. The PWFA would further prohibit employers from taking an adverse action against employees because of their need for an accommodation or from retaliating against an employee that has engaged in protected activity.

If passed, employers may need to adjust their current employment practices and policies to ensure compliance with the PWFA. Employers should also be aware of state and local laws that may already provide for similar protections for pregnant workers.

It’s October 30th, only four days from Election Day 2020, meaning there’s still time remaining (albeit not very much) to read up on your state’s laws regarding voting leave from work.

Of course, marking Election Day this year as a singular date is somewhat of a misnomer. Due to the pandemic, many states have seen an unprecedent surge and utilization of vote by mail and early voting in various forms, with some states on pace to exceed their total 2016 voter turnout before November 3rd.

A majority of states require employers to provide employees with time off for voting.  In these states, employers are frequently prohibited from taking adverse action or retaliating against employees who exercise their right to take voting leave, with significant penalties for noncompliance.

Importantly, there is no federal law to provide uniform standards or requirements for voting leave. Instead, state law governs this issue.

Employers and employees should review these laws to see how they apply. Some of the questions to consider include:  How much time off must employees be given to vote? Do employees have to verify that they have, in fact, used the time off to vote? Are there small business exceptions? Does voting leave need to be paid ? Can employers coordinate employee voting schedules to minimize business disruption? The answers to these and other questions about voting leave vary widely by state.

With Election Day quickly approaching, employers should review the applicable laws on voting leave in their state(s) of operation, in order to facilitate proper planning and legal compliance.

A Black employee complains to Human Resources that her supervisor has directed racial slurs at her. The supervisor is Black too. Is this a defense to liability for the employer under Title VII? Hardly.

The Eighth Circuit considered this issue in Ross v. Douglas County, Nebraska. Odis Ross, a Black male, worked at the Douglas County Correctional Facility. His supervisor, Larry Johnson, was also Black. Johnson began using racial epithets, including the n-word and “black boy,” when addressing Ross. Ross resigned and sued his former employer, Douglas County, for race discrimination and harassment under Title VII. The jury awarded Ross $100,000 for emotional distress and mental anguish. Douglas County appealed. After noting that “same race” claims—where a member of a race accuses another member of the same race of race-based mistreatment—are actionable under Title VII, the Eighth Circuit found that a reasonable jury could have concluded that Johnson’s harassment was because of Ross’ race. The racial slurs used would not have been directed at a white person; the only reason Johnson used those slurs was because Ross is Black; and that Johnson was also Black did not alter this.

Ross is not an anomaly. In Johnson v. Strike East Harlem Employment Group, et al., for example, the allegations were similar—a Black employee accused her Black supervisor of calling her the n-word and making other racially charged statements. The supervisor’s defense was that his use of the n-word was not derogatory, but rather a form of culturally acceptable tough love between Black persons. The New York jury rejected this explanation and awarded the employee $250,000 in compensatory damages (an amount later reduced by the court) and $30,000 in punitive damages.

The lesson: slurs based on race, sex, age, national origin, or any other protected trait are never appropriate in the workplace, even between members of the same class, and can expose employers to significant liability under Title VII. While the shared class between the victim and the alleged perpetrator is worth emphasizing in the defense of the case, it is far from dispositive, as Ross and Johnson illustrate. Under Title VII, the key questions are whether the plaintiff perceived the conduct to be based on a protected trait, and whether a reasonable person would agree. Employers should not bet the farm based on the intent of the perpetrator alone.

 

The EEOC has issued new guidance about the rights of employees under the Americans with Disabilities Act as it relates to an employee’s opioid use, addiction, or past addiction. The guidance applies to use of a variety of opioids, whether they are prescription drugs, illegal drugs, or substances that can be prescribed to help treat opioid addiction, such as those used in connection medication-assisted treatment programs.

The EEOC emphasizes that the ADA does not prohibit employers from terminating employees based on illegal use of opioids or if federal law requires disqualification on this basis.

However, the EEOC states that employees who aren’t disqualified by federal law and whose opioid use is legal can’t be automatically terminated because of opioid use alone. Instead, the employer must consider whether the employee can perform the job safely and effectively and must consider the availability of potential accommodations. The EEOC also cautions that opioid addiction (sometimes called “opioid use disorder” or “OUD”) can itself qualify as a disability under the ADA.

The EEOC is clear that employers do not need to lower production standards or performance standards, reduce safety standards, or eliminate essential job functions in providing reasonable accommodations. However, if reasonable accommodations would permit an employee to perform the job’s essential functions, the employer must provide one in most circumstances.

Specific to opioid use, the EEOC notes that appropriate accommodations could include things like modified schedules (to schedule around treatment, group meetings, or therapy sessions), changes in shift assignments, temporary transfers to other positions, and more. In addition to these options, the EEOC also notes that leaves to seek substance abuse treatment may be a reasonable accommodation, depending on the circumstances.

Of course, standard caveats apply here. This EEOC guidance is not binding and could be rejected in court. In addition, this guidance doesn’t account for federal medical leave laws or other state and local laws governing disabilities and employee accommodations, which may provide for different standards. But the document itself is worth a read, as it discusses an issue that is at the forefront of the mind for many communities across the country.

July has brought the announcement of two six-month pilot programs touted by the EEOC for, it believes, expanding opportunities for parties to resolve Charges of Discrimination voluntarily through mediation and conciliation.

While they sound like the same thing, mediation and conciliation actually carry two different meanings in EEOC-world. Here is what the Commission has rolled out.

First, mediation is the now-familiar process of using a neutral third party to bring the complaining party and the employer together in person to try to find agreement, typically through a managed back and forth of demands and offers. The neutral mediator remains outside the Commission’s investigation and evaluation of the underlying Charge, and the EEOC’s investigators wait to hear from the mediator whether the case has settled or reached impasse before the employer must submit a formal position statement on the Charge. While there usually are not strict deadlines for the negotiation, the mediator rarely stays involved over more than the one-day mediation.

The July announcement from the EEOC states that the Commission will now order more Charges, and more types of Charges, to mediation and will encourage the mediator to continue his or her role even after the investigation process begins. The expansion of the types of cases and of the length of time the mediator will remain involved is what the EEOC is “piloting”—even though mediation itself has been around for years at the Commission.

Bottom line: your case will more likely be referred to mediation, and your mediator will likely stay involved longer and push harder to find a settlement.

Conciliation, as the term is used by the EEOC, describes the effort that investigators (not mediators) undertake to secure (extract?) an agreed-upon remedy from the employer, after conducting the investigation and concluding that there is cause to find discrimination. Conciliation proceeds from the assumption by the EEOC that the employer has acted unlawfully and should settle because, otherwise, the EEOC will sue the employer or will encourage the Charging Party to do so by issuing a “for cause” determination.

The EEOC’s announcement about conciliation is, frankly, a bit obscure: “The pilot builds on a renewed commitment for full communication between the EEOC and the parties, which has been the agency’s expectation for many years, and adds a requirement that conciliation offers be approved by the appropriate level of management before they are shared with respondents. In short, the pilot seeks to drive greater internal accountability and improve the EEOC’s implementation of existing practices.”

Reading between the lines, managers more attuned to the policy directive of settlement will be involved in the process, because internal rules will require it more plainly than ever before.  It sounds like unreasonable EEOC staff members who might demand extreme remedies are less likely to do so going forward.

Sometimes tweaks like these have meaningful impact, sometimes not. As it seems to feel with everything these days, we shall see.

As many employers begin returning people to work, Philadelphia has passed an ordinance protecting employees who share safety concerns related to COVID-19.

The ordinance requires employers to comply with all orders and regulations issued by the Pennsylvania Department of Health or the Philadelphia Department of Health related to COVID-19, specifically the safe workplace and workplace risk mitigation directives.

Employers may not take adverse employment action against employees who make a “protected disclosure,” defined as a good-faith communication (or intent to communicate) that may show a violation of the Commonwealth’s or City’s COVID-19 public health orders, if the violation significantly threatens the health or safety of employees or the public. Employee disclosures are protected when they are made for the purpose of remedying the violation at issue.

Similarly, employers may not take adverse employment actions against employees who refuse to work if they reasonably believe the employer is violating the Commonwealth’s or City’s COVID-19 public health orders and have notified the employer of that belief.

However, employees may not refuse to work if the employer provides a reasonable alternative work assignment that does not expose the employee to the suspected unsafe condition. In addition, employees may not refuse to work if an inspection by the Commonwealth’s or City’s Department of Health finds that the employer is complying with the applicable public health rules.

Employees who believe their employers have violated the ordinance may file an administrative complaint with the City’s Department of Labor. If the Labor Department finds reasonable cause, the employees may sue in court for reinstatement, back pay, attorney’s fees and costs, among other remedies. The City can also impose penalties. The ordinance provides that corporate officers and executives of an employer may be individually liable in the event of a violation.

Philadelphia employers who bring employees back to work should plan to incorporate the new ordinance into their compliance programs.

Can an employer fire an employee for bringing a gun to work?  The answer may depend on state law.

Many states have “guns-at-work” laws that require employers to allow employees to leave guns in their locked vehicles parked in the employer’s parking lot.  In these states, employers cannot fire employees for exercising their lawful right to bring a gun to work, provided that the employee’s actions comply with the applicable state law.  Whereas, in states without “guns-at-work” laws, employees may generally ban guns at work—even if stored in the employee’s vehicle parked in the employer’s lot—and may fire employees for violating such a ban.

In McIntyre v. Nissan North America, Incorporated, for example, the United States Court of Appeal for the Fifth Circuit recently considered the plaintiff’s argument that he was wrongfully discharged for having a firearm in his vehicle parked in the employee lot.  The plaintiff relied on a Mississippi statute giving employees the right in some circumstances to store a firearm in a locked vehicle parked in the employer’s parking lot.  The statute, however, contains an exception allowing employers to prohibit employees from storing guns in areas “to which access is restricted or limited through the use of a gate, security station or other means of restricting or limiting general public access onto the property.”

To prove up this exception, the employer pointed to a chain-link fence around the entire perimeter of the plant that was topped with barbed wire.  Further, to access the parking lot, employees had to pass through two entrances.  The first had a “no trespassing” sign precluding public access to the plant.  The second was secured with retractable drop down arms and security cameras.  Security guards also continuously patrolled the plant, including the parking lot, and the employer had policies prohibiting firearms on company property.  In siding with the employer, a three-judge panel for the Fifth Circuit deemed these measures more than sufficient to satisfy the statutory exception to the right of an employee to have a firearm in his vehicle at work.

Takeaway for employers: Employers should maintain a written “guns-at-work” policy that explains whether, and in what specific scenarios (if any), firearms are permitted on company property. This policy should be prepared in consultation with counsel and should take into account any “guns-at-work” laws in states where the employer operates.

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.