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.

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.