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.

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.