Employers take note:  the EEOC has issued an updated Strategic Enforcement Plan (“SEP”) for fiscal years 2017-2021.

What’s a Strategic Enforcement Plan?

The EEOC’s SEP describes the areas that will be a priority focus for its enforcement efforts over a particular period of time.  In some instances, it describes a particular component of the employment relationship (for example, the application process) that it will scrutinize more.  In other instances, it describes a particular basis of discrimination that it will focus on (for example, employees who are or are perceived to be Muslim, or LGBT employees).  Ultimately, the SEP is best understood as a kind of statement of intent–i.e., where the EEOC will focus resources in the coming years.

What Isn’t a Strategic Enforcement Plan?

The EEOC’s SEP is not a statement of exclusion.  That is, just because a specific workplace issue or protected characteristic is omitted (or not emphasized) within the SEP doesn’t mean the EEOC will ignore that particular issue or characteristic.  Employers should expect that the EEOC will continue to enforce all of the relevant discrimination laws on the books.  The SEP merely acts as a guide for the EEOC to focus its enforcement efforts.

What Will the EEOC’s Priorities Be under the Updated Strategic Enforcement Plan?

The EEOC’s SEP has identified six national priority areas for enforcement in FY 2017-2021:

1.  Eliminating Recruitment/Hiring Barriers.  Moving forward, the EEOC will put additional emphasis on recruitment and hiring.  This includes exclusionary policies and practices.  In addition, the EEOC has noted it will focus on job channeling/steering and job segregation; restrictive applications; pre-employment tests/screenings and background checks that affect African-American and Latino employees; date-of-birth inquiries that affect older employees, and medical questions that affect people with disabilities. On the issue of restrictive applications, the EEOC has also highlighted online application systems that are inaccessible to applicants with disabilities.

2.  Protecting Vulnerable Workers and Underserved Communities.  Evaluating local issues and concerns, the EEOC’s district offices will identify particular vulnerable workers and underserved communities for enforcement attention.  As an example, the EEOC notes that some offices may target discrimination against Native American employees for increased focus.

3.  Addressing Selected Emerging and Developing Issues.  These include: qualification or leave policies that discriminate on the basis of disability; accommodations for disabilities and pregnant workers; protecting LGBT employees from sex discrimination; addressing discrimination laws in the context of evolving job market structures/relationships (for example, temps, staffing agencies, independent contractor relationships, the on-demand or “gig” economy, etc.); and “backlash discrimination” against Muslims, Sikhs, persons of Arab, Middle Eastern, or South Asian descent (or perceived members of these groups).

4.  Equal Pay.  The EEOC will continue its efforts to address sex-based pay discrimination under Title VII and the Equal Pay Act and will also focus on pay practices that discriminate on any protected basis.  In particular, the EEOC has noted pay discrimination on the basis of race, ethnicity, age, and disability remains an issue that it intends to continue targeting.

5.  Preserving Access to the Legal System.  The focus here will be on employer policies or practices that it perceives as limiting employee rights, discouraging employees from exercising their rights, or impeding the EEOC’s efforts.  In addition to retaliation, the EEOC has indicated it will focus on overly broad waivers/releases, certain mandatory arbitration agreements, and employer failure to retain required applicant/employee data.

 6.  Preventing Systemic Harassment.  The EEOC notes that over 30% of charges allege harassment (and that “the most frequent bases alleged are sex, race disability, age, national origin and religion, in order of frequency”).  The EEOC has stated it will seek to promote “holistic prevention programs” that it believes will serve as a deterrent to violations.

Of course, this brief summary is not exhaustive; click here for the full document.  Ultimately, the updated SEP is a reminder for employers to review their policies and practices as 2016 draws to a close, in order to ensure compliance.

34383097 - veterans day

As the nation prepares to honor the service of men and women in armed forces, Massachusetts employers should be aware of some new obligations.

In July 2016, Massachusetts Governor Charlie Baker signed the HOME Act into law.  The HOME Act is an omnibus bill that, in part, amends M.G.L. 149, Section 52A1/2 . Previously, employers were required to provide any veteran with unpaid leave who desires to participate in Veterans’ Day or Memorial Day exercises, parades or services.

The HOME Act amends that law to provide that employers with 50 or more employees must provide paid leave. There are some limits to the law.  Veterans are permitted to participate in services in their community of residence.  This means employers would not have to grant multiple leave days for veterans to travel outside of their community of residence.  Employers also may deny leave where the employee’s services are essential to public health and safety and the employee is an essential employee to the employer.

The HOME Act also amends the Massachusetts Fair Employment Practices Act to provide that “veteran status” is a protected class.  As Veterans Day approaches, employers should remind supervisors and HR personnel that leave requests may need to be granted.

 

Bill Egan writes:

Under the Americans With Disabilities Act (ADA), a covered employer must provide reasonable accommodations to disabled employees, unless doing so would cause an undue hardship on the employer. Generally, an employer’s duty to reasonably accommodate is initiated by a request for an accommodation from a disabled employee or someone speaking on the employee’s behalf.

Pillars
Copyright: bbourdages / 123RF Stock Photo

Most courts have held that a request for accommodation from an employee is a “predicate requirement” to the interactive process for determining whether a reasonable accommodation can be made and what that accommodation will look like. The ADA does not require an employer to speculate about the accommodation needs of employees and applicants.

That has now changed, at least in the Eighth Circuit.  In Kowitz v.Trinity Health, a hospital respiratory therapist returned to work under a lifting restriction after undergoing spine surgery and exhausting her 12-week FMLA leave.  Although the hospital initially accommodated this restriction, it terminated the therapist’s employment after she advised that her doctor restricted her for four months from performing the physical demonstration portion of the “basic life support” recertification process, a departmental requirement.

The District Court granted summary judgment to the hospital concluding that Kowitz was not qualified to perform the essential functions of her job because she was not certified to provide basic life support.  The court further held that because Kowitz never requested a transfer to another position, the hospital was under no obligation to reassign her to a position that did not require the basic life support certification.

The Eighth Circuit reversed, over a strongly worded dissent, holding that an express request for assistance is not needed to trigger an employer’s duty to discuss the reasonable accommodation option with an employee.  The court held, “Though Kowitz did not ask for a reasonable accommodation of her condition in so many words, viewing the facts in the light most favorable to Kowitz, her notification to her supervisor that she would not be able to obtain the required certification until she had completed physical therapy implied that an accommodation would be required until then.”

The lesson from Kowitz is if the facts known to the employer about an employee’s disability are sufficient to make the employer aware of the possible need for a reasonable accommodation, the employer is legally obligated to engage in the interactive process to determine if indeed the employee needs such an accommodation and whether an accommodation can be made without posing an undue hardship on the employer.


Bill Egan is a partner in the Labor & Employment Department, resident in Fox’s Minneapolis office.

10524387_sAt a recent meeting, the New Jersey General Assembly Labor Committee advanced three bills that would expand workplace protections for employees under New Jersey’s Law Against Discrimination (“LAD”).

The first bill, A-2294, seeks to amend the LAD to add protections for breastfeeding employees.  Specifically, A-2294 adds “breastfeeding” as a protected characteristics under the LAD, further seeking to amend the LAD to state that “‘pregnancy or breastfeeding’ means pregnancy, childbirth, and breast feeding or expressing milk for breastfeeding, or medical conditions related to pregnancy, [or] childbirth, or breastfeeding, including recovery from childbirth.”  In the employment context, this means that adverse employment actions based on breastfeeding, as defined, would be prohibited.

Furthermore, A-2294 would require employers to accommodate breastfeeding employees, including a requirement that the accommodation “shall include reasonable break time each day to the employee and a suitable room or other location with privacy, other than a toilet stall, in close proximity to the work area for the employee to express breast milk for the child.”

The second bill, A-2646, would add “familial status” as a protected characteristic under the LAD.  A committee comment to the bill notes that familial status means:

[B]eing the natural parent of a child, the adoptive parent of a child, the resource family parent of a child, having a ‘parent and child relationship’ with a child as defined by State law, or having sole or joint legal or physical custody, care, guardianship, or visitation with a child, or any person who is pregnant or is in the process of securing legal custody of any individual who has not attained the age of 18 years.

The Assembly Labor Committee also advanced a third bill we have previously discussed, A-3480/A-4119, which would prohibit employers from asking employees about their wage/salary history.

Of course, normal legislative caveats apply:  these are the bills in their current form, which may or may not ultimately be enacted, and which may or may not be amended to varying degrees if ultimately enacted.  We will continue to monitor these pieces of legislation and will provide relevant updates should they move in the New Jersey Legislature.

Query: a longtime employee, who has previously identified in your workplace as female, begins dressing for work like a man, grooming according to male standards, and identifying as male.  He begins to make arrangements to have his name formally changed, and a number of other legal documents changed as well.  He also begins using the men’s room at work.  Other coworkers complain about “a woman using the men’s bathroom at work.”  What do you do?

According to the U.S. District Court for the District of Nevada, what you do not do is: 1) ban him from the men’s bathroom for being biologically female, 2) ban him from the women’s bathroom for identifying as male, and 3) require him to use only gender-neutral bathrooms.  Last week, the court made headlines when it granted summary judgment against a school district, on a Title VII sex discrimination claim brought by one of the district’s police officers.  (Roberts v. Clark County School District, No 2:15-cv-00388-JAD-PAL, ECF No. 147).

While the court denied summary judgment as to the officer’s retaliation and hostile workplace claims, it noted that established case law holds that sex stereotyping is prohibited sex discrimination under Title VII.  In this case, the court noted that the district banning the officer from using the women’s bathroom “because he no longer behaved like a woman” was direct evidence of impermissible sex stereotyping.

Also of note: in granting partial summary judgment, the court held that Title VII’s prohibition against sex discrimination includes both sex and gender.  At this point, some of our readers might be somewhat confused at the difference between sex and gender. Citing language from the Ninth Circuit, the court noted the difference between these key terms, in recounting the case law history in this area:

These early cases distinguished between the term ‘sex’, which referred to an individual’s distinguishing biological or anatomical characteristics and the term ‘gender’, [which] refers to an individual’s sexual identity, or socially-constructed characteristics.

The court’s language is significant because it simultaneously rejected the school district’s argument to draw legal distinctions based on these terms:

Although [the district] contends it discriminated . . . based on his genitalia, not his status as a transgender person, this is a distinction without a difference here. [The officer] was clearly treated differently than persons of both his biological sex and the gender he identifies as–in sum, because of his transgender status.

Moreover, the court held that the bathroom action alone was a sufficiently adverse employment action — in that “access to restrooms is a significant, basic condition of employment” — to involve Title VII protections.

We have previously discussed two separate theories that the EEOC and plaintiffs have used to argue sexual orientation and/or gender identity are incorporated into Title VII’s ban on sex discrimination.  These theories have had a mixed track record of success, and there is no certainty in predicting how they will continue to play out in the coming months and years.

Still, a key takeaway from this case is that employers should retain knowledgeable counsel to advise on employee workplace transitions.  Effective transition management can not only help defuse potential workplace tension and avoid litigation, but it can also lead to a more productive workplace, happier employees, and keeping pace with the market’s movement in this direction.

Gambling at casinos and on sports events have been a part of the fabric of American life since long before employment laws existed.  Unfortunately, the thrill of the bet can give way to a compulsive addiction that, left unchecked, can destroy an individual’s life.  If you have a workplace of any size, it is likely that there is at least one employee who suffers in silence from gambling addiction.

In a large percentage of cases, this has no effect on the workplace environment.  However, often gambling addictions give way to substance abuse, depression, and theft, all of which have serious implications on the workplace.

dice

However, federal and state courts (in most states) have been very clear that gambling addictions are not disabilities under the Americans with Disabilities Act or most of the state corollaries.  Despite the fact that the definition of “disability” has broadened over time, an employee is likely not going to be able to sustain an action for discrimination based upon a gambling addiction.

What should an employer do if an employee confesses an addiction to gambling?  Well, obviously we recommend referring them to the myriad of support groups that address the underlying issue (1-800-GAMBLER being the most well-known).  If the gambling addiction is accompanied by a disability that is recognized by state and federal law, that disability should be addressed. Beyond that, if the gambling addiction has led to bona fide performance issues, any discipline should be meted out at the discretion of the employer.

Today’s post comes to us courtesy of Rachel Severance, an associate in our Washington D.C. office:

On October 1, 2016, new requirements affecting Maryland employers go into effect, expanding the scope of Maryland’s current non-discrimination statute.

The Maryland General Assembly expanded Maryland’s Equal Pay for Equal work law, which previously prohibited discrimination based on sex, to also prohibit discrimination based on gender identity.

The law’s new provisions prohibit an employer from discriminating between employees in any occupation by (1) paying a wage to employees of one gender identity at a rate less than the rate paid to other employees under specified conditions and (2) providing less favorable employment opportunities, as defined by the bill, based on sex or gender identity.

The definition of “less favorable employment opportunities” was also expanded to mean (1) assigning or directing the employee into a less favorable career track, if career tracks are offered, or position; (2) failing to provide information about promotions or advancement in the full range of career tracks offered by the employer; or (3) limiting or depriving an employee of employment opportunities that would otherwise be available to the employee but for the employee’s sex or gender identity. Specified exceptions allow for variations in wages in some situations as long as the reason for the variation is not derived from sex or gender identity.

Additionally, the law provides that an employer may not prohibit an employee from inquiring about, discussing, or disclosing the wages of the employee or another employee or requesting that the employer provide a reason for why the employee’s wages are a condition of employment.

As a result, Maryland employers need to carefully review both their policies and benefits programs to ensure compliance with these new mandates.

37744565 - legislation blank list, business conceptEarlier this month, members of the New Jersey General Assembly introduced legislation to prohibit employers from seeking wage/salary histories from prospective employees.  Assembly Bill 4119 (“A-4119”) follows on the heels of other states that are looking to take action on this issue, as well as similar efforts at the federal level.

The public policy rationale often cited by legislatures in passing these kinds of bills is that they may help close the gender wage gap.  The substantive discussion of whether these efforts are effective is beyond the scope of this blog, so for our purposes, we are focusing solely on the effect this legislation would have on employers.

Specifically, A-4119 would make it an unlawful employment practice:

For any employer to seek the wage or salary history of a prospective employee, or require, as a condition of employment, that an employee disclose information about either the employee’s own wages, including benefits or other compensation, or about any other employee’s wages; and for any employer to require that a prospective employee’s prior wage or salary history meet any minimum or maximum criteria as a condition of being interviewed, or as a condition of continuing to be considered for an offer of employment. 

As far as such things go, this is a broad prohibition — and one that would subject employers to liability under New Jersey’s Law Against Discrimination.

In addition to the text above, there are three other provisions to note.  First, the bill also notes that it would not prohibit prospective employees from volunteering wage/salary history, as long as that disclosure was not coerced by the prospective employer.  Second, employers are only permitted to confirm (or permit the would-be employee to confirm) wage/salary history after making an offer of employment.  Third, A-4119 also includes an anti-retaliation provision.

As with all proposed legislation, standard disclaimers apply:  this is the bill in its current form, which may or may not ultimately be enacted, and which may or may not be amended to varying degrees if it is ultimately enacted.  We will continue to monitor this legislation and provide any relevant updates should it move in the New Jersey Legislature.

First, a disclaimer.  Let me assure you that the contributors to the Employment Discrimination Report run the full gamut of the political spectrum.  This is not a post about politics, it just so happens that our demonstrative example comes from the presidential race.

It is not uncommon for employers and employees to execute Non-Disclosure Agreements (NDAs) to govern the employment relationship following its conclusion.  To wit, one of the major presidential candidates made all campaign employees (and volunteers but that is a whole other can of worms) sign an NDA that governs all information of a “private, proprietary or confidential nature or that (the candidate) insists remain private or confidential.”  The NDA in question further prohibits former employees from making negative comments regarding the candidate or family members…in perpetuity.  It’s worth noting that the other major candidate also has asked campaign employees to execute an NDA, though the substance of it remains undisclosed.

Compensation on the Whisper

When executing NDAs with employees, be it at the end of the employment relationship or as part of a restrictive covenant at some earlier point, it’s important to do keep the scope reasonable so as not to be judicially struck later.  Here are some simple rules that were not followed above:

  1. Identify with specificity the information that must be kept private and confidential. Simply saying “confidential information” is a recipe for failure on this front, as the ambiguity as to what information is “confidential” will be read against the employer.
  2. Put a time frame on the responsibility. While it is not per se impossible to have an agreement enforced in perpetuity, the path of least resistance is put a time frame on the responsibility that bears some relationship to legitimate business necessity.
  3. Restrict Nondisparagement to Reasonable Topics. While nondisparagement clauses, the legal cousin of NDAs, are valid, they similarly need to be narrowed in scope to include only information for which there is a legitimate business purpose.

While keeping your corporate information in-house is a compelling aim, understand that there is no fool-proof way to keep information under wraps.  But adhering to simple rules of the road will help make sure that What Happens At Work, Stays at Work.

11298754_sTime for a pop-quiz on disabilities in your workplace!  (I hope you brought your No. 2 pencils, because it’s multiple choice).

You are a supervisor at Company X. You have an employee who has worked for the company for a number of years. By all accounts, he’s a reasonably good employee — receiving raises and benefits for performance over the years. At the time he was hired, he disclosed a number of his medical conditions, including hemophilia, HIV+ status, and Hepatitis C. The employee comes to you and says he will be undergoing a six-month treatment regimen for his hepatitis, for which he will not take leave during the treatment period.

Do you:

(A) Share with the employee your own personally-held fears and stereotypes regarding his illness
(B) Distance yourself from the employee, speaking to him less and less during the course of his treatment
(C) Fire the employee four months after he completes the treatment
(D) None of the above

If you picked (D), congratulations — you’re correct!  One supervisor at NJ Transit, however, appears to have run afoul of a similar situation, resulting in the state transportation agency shelling out $200,000 to settle a discrimination suit:

Kenneth Hitchner, a nine-year employee at the public transit agency, disclosed when he was hired as a public information officer in 2002 that he had hemophilia, Hepatitis C and was HIV positive, according to a copy of the lawsuit obtained by The Trentonian . . .

Hitchner’s direct supervisor, Ken Miller, allegedly had an animus towards people infected with Hepatitis C.

“Miller had previously told Hitchner that Miller was afraid of Miller’s own mother because she had Hepatitis C and was afraid that she would infect his kids by going to the bathroom in the house,” the lawsuit reads . . .

“Miller began distancing himself from Hitchner and speaking to Hitchner less and less during the months that Hitchner was undergoing the Hepatitis C treatment,” the lawsuit states.

After his treatment was complete in February 2010, Hitchner was advised four months later that his job was eliminated due to “budget cuts,” court documents outline.

Hitchner then learned that other employees without disabilities whose positions were also eliminated were offered other jobs with the agency at the same rate of pay. When Hitchner protested this to the agency and requested a similar placement, he was offered a customer service representative position, which is an entry-level position with lower pay, documents show.

A few disclaimers. The news story above only cites the plaintiff’s complaint. Thus, we don’t have the benefit of knowing what legal defenses the employer would have asserted, nor the additional facts the employer might use to support those defenses. Another point to keep in mind: as the case has settled, none of its allegations or theories have been tested by rigorous cross-examination. Nor has any liability been duly adjudged by a jury. It’s fair to say that we are probably not getting the full picture by merely reading the story and that the hypothetical presented above is somewhat oversimplified.

All of that said, the story raises a few worthwhile points to remember when it comes to employee disabilities in the workplace. (Note: the suit alleges a claim under New Jersey’s Law Against Discrimination, but for the benefit of our broader readership, I will discuss these points in the context of the Americans with Disabilities Act).

First, do not rely on fear, generalizations, or stereotypes in making decisions about an employee’s disability.  The ADA does permit employers to set qualification standards that an employee will not pose a “direct threat” to health and safety in the workplace. “Direct threat” is a legal defense established by the ADA that refers to “a significant risk to the health or safety of others that cannot be eliminated by reasonable accommodation.” The ADA’s regulations require an employer to weigh a number of factors, and as such, this defense is very fact-specific. However, the determination must be established through individualized judgments of the employee’s ability to safely perform the job’s essential functions and must be based on reasonable medical judgment and objective evidence. In other words, taking adverse action against an employee that may be motivated by fear or stereotypes regarding their disability (such as, a supervisor allegedly expressing fear that people with Hepatitis C will infect others by using the bathroom) is asking for legal trouble.

Second, remember: “disability” is broadly defined. A bit of backstory may be helpful here. In 2008, Congress amended the ADA via the Americans with Disabilities Amendments Act (or, “ADAAA”). Congress did so in response to a number of court decisions, including Supreme Court decisions, that construed the definition of disability in what it regarded as too narrow or technical a fashion. In particular, the ADAAA included a directive that disability should be broadly construed in favor of coverage.

One method to establish protected disability status is when an employee has a physical or mental impairment that substantially limits one or more major life activities.  The Act itself states the determination of whether a life activity is “major” should not be interpreted strictly or create a demanding standard for disability.  Moreover, with the exception of eyeglasses or contact lenses, determining if a major life activity is substantially limited is done “without regard to the ameliorative effects of mitigating measures,” such as medication.  Thus, in the example above, an employer would not be able to successfully argue that because the employee was undergoing treatment, he was not disabled under the meaning of the law. 

Third, train, train, and train some more. Training your supervisors, managers, and HR team on the nuances of the ADA (and any state/local law equivalents in the states where your business operates) is a crucial component of ensuring compliance, promoting harmony in the workplace, and reducing potential legal exposure. You should plan for regular training — at least annually.