General Employment Discrimination

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Maryland’s Disclosing Sexual Harassment in the Workplace Act of 2018, which awaits Gov. Larry Hogan’s signature, imposes stricter waiver and disclosure requirements regarding sexual harassment on Maryland employers beginning on October 1, 2018.  The bill was passed by both houses of the Maryland General Assembly and a Governor’s veto is not anticipated.

The bill impacts Maryland employers in two ways.  First, the bill prevents employers from asking employees to waive their future rights to come forward with sexual harassment complaints and provides that such waivers are void as a matter of public policy.  Second, the bill requires employers with 50 employees or more to disclose: 1) how many settlements the employer has made after a sexual harassment allegation; 2) how many times an employer has settled allegations of sexual harassment made against the same employee; and 3) the number of settlements of sexual harassment complaints that included non-disclosure provisions.  The Maryland Commission on Civil Rights will collect and compile the data and make it publicly available, including the employers’ identities (although not the identities of the alleged harassers or victims).

Maryland employers should  pay close attention to whether any of their contracts, policies, or agreements require employees to waive a future right to assert a sexual harassment claim or complaint.  Any waiver requirements should be eliminated by October 1, 2018, in accordance with the new law.  Additionally, employers subject to the reporting requirement should develop a reliable method of accurately tracking the data required to be disclosed.  This is a good opportunity for employers operating in Maryland to perform a comprehensive review of their sexual harassment policies, make any necessary revisions, and provide training to their managers in an effort to educate their employees as well as reduce the risk of sexual harassment claims being asserted in the future.

 

Monday, New York’s budget bill for FY 2019 was presented to the Governor for signature.  Buried among the usual budget line items are several provisions that will drastically affect employers.

In what seems to be a direct response to the #metoo movement, the bill sets training requirements, prohibits mandatory arbitration of discrimination claims, and outlaws confidentiality provisions in settlement agreements unless specifically requested by the complainant.

The employment related provisions are set forth in S7507-C.  Here are the highlights (or low lights depending on your point of view):

  • Mandatory Harassment Policies:  All employers must have a policy against harassment that complies with or exceeds the model harassment policy that will be developed by the Division on Human Rights.  At a minimum, the policy must:
    • prohibit sexual harassment consistent with guidance issued by the department in consultation with the division of human rights and provide examples of prohibited conduct that would constitute unlawful sexual harassment;
    • include information concerning the federal and state statutory provisions concerning sexual harassment and remedies available to victims of sexual harassment and a statement that there may be applicable local laws;
    • include a standard complaint form;
    • include a procedure for the timely and confidential investigation of complaints and ensure due process for all parties;
    • inform employees of their rights of redress and all available forums for adjudicating sexual harassment complaints administratively and judicially;
    • clearly state that sexual harassment is considered a form of employee misconduct and that sanctions will be enforced against individuals engaging in sexual harassment and against supervisory and managerial personnel who knowingly allow such behavior to continue; and
    • clearly state that retaliation against individuals who complain of sexual harassment or who testify or assist in any proceeding under the law is unlawful.
  •  Mandatory Training:  All employers must also provide “interactive” training to their employees.  The Division will also be developing a model training program that must include:
    • an explanation of sexual harassment consistent with guidance issued by the department in consultation with the division of human rights;
    • examples of conduct that would constitute unlawful sexual harassment;
    • information concerning the federal and state statutory provisions concerning sexual harassment and remedies available to victims of sexual harassment;
    • information concerning employees’ rights of redress and all available forums for adjudicating complaints; and
    • address conduct by supervisors and any additional responsibilities for such supervisors.
  • Statements by Public Contractors:  Public contractors submitting a bid for work with the State must include a statement that they have a policy against sexual harassment and that they provide training to employees on that policy.  Public Contractors must generally comply with the policy and mandatory employment training that applies to all employers under new Labor Law §201-g which sets for the policy and training requirements.
  • Prohibition on Mandatory Arbitration Agreements:  No employer may require that a claim of unlawful discrimination or sexual harassment be submitted to mandatory arbitration.  Voluntary arbitration provisions are still okay.  Collective bargaining agreements trump this provision, so if the CBA requires arbitration of discrimination or sexual harassment, then that would not run afoul of the law.  The law only bans this on a prospective basis and the law will not apply to any agreements entered into prior to the effective date of the law.
  • Bar on Most Confidentiality Agreements:  Settlement agreements may not contain confidentiality provisions requiring the complainant to keep the facts of the harassment or discrimination confidential unless the complainant voluntarily agrees to it.  Employers may still put a draft provision in agreements requiring confidentiality for the complainant to review.  The complainant must be given 21 days to review the provision. If the complainant accepts the provision, there must be a separate writing stating that.  Complainants must also have 7 days to revoke their acceptance of the agreement.
  • Provides Protection (and a Cause of Action) for Non-Employees:  the bill makes clear that an employer may be held liable if one of its employees sexually harasses a contractor, subcontractor, vendor, consultant or other non-employee providing services to the employer.

These provisions will go into effect 180 days after the law is enacted.  We assume that the forthcoming regulations may clarify certain aspects of the law such as how frequently harassment training must occur.  We will keep you updated when the regulations are issued.

In the meantime, employers should begin assessing their harassment policies and training programs.  Employers should also review settlement agreements and employment agreements for compliance with the law.

Recently I watched a male attorney speak to opposing counsel (a female) in a condescending, chastising manner that I cannot imagine he would have used if he had been speaking to a male attorney.  Her male colleague, who was standing right next to her, said nothing.  I said nothing.  And the female opposing counsel said nothing in her own defense.

During an emergency custody hearing a female friend of mine who practices family law pushed back on the terms proposed by opposing counsel, an older male.  Opposing counsel shook his head and muttered “every time with female attorneys.”  When my friend asked “what did you say?” he responded, “nothing, just talking to myself.”

We all know that discrimination based on gender is prohibited in the workplace.  We can’t refuse to hire or promote a woman simply because she is a woman.  We can’t prefer a male over a female solely on that basis.  We can’t do that because the law won’t allow it.

But what about the much more subtle, and yet maybe more pervasive, forms of discrimination that women experience every day, such as the examples above?  What about being expected to laugh demurely when a male judge referred to me as “kiddo” in front of a jury?  What about criticizing women based on appearance instead of their qualifications or capabilities (“she’s such a fat slob” instead of “she’s incompetent”)? What about the female told to “stop overreacting” or to “calm down” when she advocates fiercely on behalf of a client (or herself)?  And what about all of us who silently tolerate these types of behavior?

In many (although certainly not all) professional environments, blatant gender discrimination is the exception, rather than the rule.  However, more subtle forms of gender discrimination are ignored, shrugged off, and even accepted or condoned every day in the workplace.  Until we stop tolerating this behavior, gender discrimination will continue to permeate and poison work environments.  Not only does this perpetuate gender imbalance in the workplace, it also hurts morale, results in decreased productivity, increases turnover, and promotes inefficient hiring and promotion practices.  Accordingly, employers should pay close attention to the day-to-day practices in the workplace and enforce anti-discrimination policies to help ensure that productivity and profitability are not being negatively affected by gender discrimination.

Volvo Group North America, LLC will pay $70,000 and institute a three-year consent decree to resolve a federal disability discrimination suit brought by the U.S. Equal Opportunity Employment Commission (EEOC).

According to the suit, Volvo made a conditional job offer to a qualified applicant for a laborer position at its Hagerstown, Maryland facility.  The applicant, a recovering drug addict enrolled in a supervised medication-assisted treatment program, disclosed during his post-offer physical that he was taking medically prescribed suboxone.  When he arrived for his first day of work, a human resources representative told the applicant that Volvo could not hire him because of his suboxone use, the EEOC said.

The EEOC filed suit (EEOC v. Volvo Group North America, LLC, Civil Action No. 1:17-cv-02889) alleging that Volvo violated Americans with Disabilities Act by failing to conduct an individualized assessment to determine what effect, if any, the suboxone had on the applicant’s ability to perform the job.

In addition to the $70,000 in monetary relief to the applicant, the consent decree prohibits Volvo from violating the ADA in the future. Additionally, Volvo will distribute to all employees at its Hagerstown facility an ADA policy explaining the right to a reasonable accommodation and will amend its policy on post-offer medical and drug evaluations to explain how it will assess whether an employee’s or applicant’s lawful use of prescription medication poses a threat under the ADA.  Volvo will also provide ADA training, report to the EEOC about its handling of future complaints of disability discrimination, and post a notice regarding the settlement.

 

This case is a good reminder to employers that the ADA protects recovering addicts who are not currently using illegal drugs and prohibits discrimination on the basis of past drug addiction. Of course, employers are allowed to hold such individuals to the performance standards applicable to their jobs, may prohibit the use of illegal drugs in the workplace, and may require that employees not be under the influence of illegal drugs in the workplace.  However, recovering addicts prescribed medication as part of a treatment program are likely entitled to full ADA protection, including the right to a reasonable accommodation that does not cause undue hardship to the employer.  This means that employers cannot simply dismiss individuals in such a treatment program as unfit for employment.  Instead, employers should routinely review their policies regarding the use of prescribed medications to ensure compliance with the ADA.

 

Our office was closed last Monday in celebration of Martin Luther King, Jr. Day.  I was at the dog park talking to a woman I know who also happens to be a lawyer.  During our discussion of how nice it was to be off of work, she mentioned that not everyone at her firm felt that way.

She then told me that there is one partner in her office who every year insists on coming into work on Martin Luther King, Jr. Day.  Not only does he insist on coming in, he insists on announcing to everyone in the office that the reason he is coming in was because Martin Luther King, Jr. Day was a “made up holiday” and he did not believe in the concept of the holiday.  Notably, this partner apparently has no such qualms about taking off other holidays, such as President’s Day.

As this attorney told me the story, she was annoyed but not visibly upset.  I should mention that the attorney I was speaking to is diverse.  Although she is not African American, I can imagine how she felt that this partner was going out of his way to basically say that he does not support the concept of equality and diversity.

I then thought about the fact that this partner, who is apparently very senior at her firm, is allowed to make such statements unchecked.  Although he did not use a racial slur or directly say that he was opposed to minorities, that certainly is one interpretation of his comments.

I can also imagine how other partners who heard his comments simply shook their heads and walked away, likely thinking to themselves that it was inappropriate but not bad enough that they should say something.  However, little comments like that fester just as much as other more egregious behavior.

If employers are truly serious about reducing harassment and discrimination in the workplace and reducing possible legal exposure, they must establish an inclusive culture.  No workplace is perfect and there might always be a bad apple, but one bad apple is likely to turn into a bushel if these “little” comments are not also addressed.

The Pennsylvania Human Relations Commission (“PHRC”), which enforces Pennsylvania’s state law prohibiting discrimination, has made a bit of splash in 2017.  How, you ask?  Well – that requires a bit of explanation.

One of the hottest topics of debate in employment law in the past few years relates to legal protections for LGBTQ employees.  While some states and municipalities expressly prohibit discrimination on the basis of sexual orientation and gender identity, this isn’t the case everywhere.  Indeed, only 20 states and the District of Columbia protect these characteristics in all employment.  That leaves 30 states that lack comprehensive state law protections for sexual orientation and gender identity in employment, including 17 states who have zero express protections at all.  Similarly, Title VII of the Civil Rights Act of 1964, which establishes protected characteristics and prohibits employment discrimination based on those characteristics, does not expressly cover sexual orientation or gender identity — despite a long history of Congressional efforts to amend Title VII to do so.

Nevertheless, both state and federal law prohibit employment discrimination on the basis of an employee’s sex.  Regular readers of our humble blog will recall a growing trend from courts around the country holding that sexual orientation/gender identity discrimination constitutes sex discrimination as a matter of law.  Moreover, the EEOC has adopted this position and taken enforcement action accordingly.  The EEOC has argued that sexual orientation discrimination is sex discrimination under three separate legal theories: (1) a traditional “but-for” analysis, (2) an associational discrimination analysis, and (3) a sex stereotyping analysis.  You can read at greater length about these three theories here.

The PHRC’s proposed guidance focuses on the third of these: sex stereotyping.  This argument proceeds roughly as follows:  (1) sex discrimination in employment is prohibited;  (2) sex discrimination includes discriminating against employees because they fail to align with stereotypical male or female appearance, mannerisms, behaviors, etc.;  (3) the “default” assumption that an employee is or should be heterosexual and cisgender represents one of the preeminent kinds of sex stereotypes;  and therefore, (4) discrimination on the basis of an employee’s sexual orientation or gender identity is impermissible sex stereotyping that constitutes sex discrimination as a matter of law.  While the nuances of this argument tend to vary with the facts of each individual case, this outline provides a 30,000 foot view of the sex stereotyping theory.

In late April 2017, the PHRC issued proposed guidance stating it would investigate complaints of discrimination by LGBTQ individuals, including claims of employment discrimination, as prohibit sex stereotyping.  Specifically, the proposed PHRC guidance states as follows:

The gist of these claims is that LGBTQ individuals do not comply with sexual stereotypes and that adverse action(s) against an LGBTQ individual due to that person’s failure to comply with sexual stereotypes amounts to discrimination based on sex. Accordingly, it is the position of the Pennsylvania Human Relations Commission that it will take and investigate sex stereotyping claims filed by LGBTQ individuals.

The PHRC has received extensive public comment on this proposal, and it is expected that the Commissioners will review the public comments at their November commission meeting.  Pending further action by the commission, this guidance remains proposed guidance.  Nevertheless, the PHRC’s action reveals a growing enforcement trend in this area of law.  Stay tuned for the PHRC’s final decision regarding what, if any, guidance on this topic it will issue.

As of April 1, 2018, employers in Massachusetts will be required to provide accommodations to pregnant employees.

In July, the Governor signed into law the Pregnant Workers Fairness Act that amends the Massachusetts’ general discrimination law to require employers to provide a reasonable accommodation to pregnant employees and to prevent employers from discriminating against pregnant employees who request an accommodation.

Under the law, there is no set guarantee of leave, but paid or unpaid leave to recover from childbirth may be a reasonable accommodation.

Other accommodations listed in the law may include:

  • more frequent or longer paid or unpaid breaks;
  • acquisition or modification of equipment or seating;
  • temporary transfer to a less strenuous or hazardous position;
  • job restructuring;
  • light duty;
  • private non-bathroom space for expressing breast milk;
  • assistance with manual labor; or
  • modified work schedules; provided, however, that no employer shall be required to discharge any
    employee, transfer any employee with more seniority, or promote any employee who is not able
    to perform the essential functions of the job, with or without a reasonable accommodation.

Employers do not have to provide an accommodation if doing so would create an undue hardship.

The law also poses some limits on the documentation that can be required from employees.  Generally, employers may require documentation to support a request for an accommodation, except when the employee is requesting one of the following accommodations:

  1. more frequent restroom, food and water breaks;
  2. seating; and
  3. limits on lifting over 20 pounds.

Employers will be required to give a written notice to employees of their rights beginning on January 1, 2018.  Employers will have to give such notice to any new hires after that date and to any employee who requests an accommodation.

In a portentous opinion, Massachusetts’ highest court held that a medical marijuana patient terminated for failing a drug screening could state a claim for disability discrimination against her employer.  Because many states’ medical marijuana laws contain the similar language to that which the court relied on, employers outside of Massachusetts should take note.

The facts are relatively unremarkable.  The plaintiff had told her prospective employer that she had been prescribed medical marijuana to treat her affliction with Crohn’s disease, but that she did not use it daily and would not use it before or during work.  On the evening of her first day of work, the company’s HR representative notified the plaintiff she was terminated for failing the pre-employment drug screening because the company “follow[ed] federal law, not state law.”  The plaintiff sued for, among other things, disability discrimination under state law.

In reversing the trial court’s dismissal of the discrimination claims, the Massachusetts Supreme Judicial Court premised its decision on a provision of the state’s medical marijuana law stating that a qualified person “shall not be . . . denied any right or privilege,” for use of medical marijuana.  Essentially, the Court held that because a waiver of the employer’s policy excluding persons who test positive for marijuana could have been a reasonable accommodation, the employer’s refusal to engage in the interactive process constituted a denial of the plaintiff’s rights not to be fired because of a disability and to require a reasonable accommodation under the state’s anti-discrimination law.

The Massachusetts court was not persuaded by the employer’s argument that its drug testing policy, not her disability, was the basis for the termination.  The Court analogized an employer policy prohibiting marijuana to one prohibiting insulin and explained that reliance on a company policy prohibiting any use of marijuana to terminate an employee whose disability is being treated with marijuana effectively denies such employee the opportunity of a reasonable accommodation.

Although no other high court had previously reached a similar conclusion, few cases have been brought under disability discrimination laws in states whose medical marijuana laws prohibit the denial of rights and privileges to patients.  For example, New Mexico’s law contains such a prohibition, but it only applies to practitioners.  New Jersey, on the other hand, clearly extends the prohibition to patients.

It is also significant that the Court also rejected the employer’s argument that the state’s medical marijuana law did not require “any accommodation of any on-site medical use of marijuana in any place of employment.”  Instead, the Court found that this statutory language implicitly recognized the existence of an accommodation for off-site medical marijuana use.  Again, many states’ medical marijuana laws are worded in a similar manner and are susceptible to a reading that would permit an accommodation that does not require an employer to tolerate on-the-job use.

Of course, because this was a motion to dismiss, the Court recognized that the employer could ultimately prevail on summary judgment by showing that a use accommodation would be an undue hardship.  Nonetheless, given that ninety percent of states have passed some form of medical marijuana law – a fact the Court cited in rejecting arguments that the federal scheduling of the drug demonstrates no recognized medical benefit – employers can bet that this case could inspire similar suits in states with similar statutory language.  Keep an eye on this space, and Fox’s Cannabis Law blog for further developments.

Today’s post comes to us courtesy of Justin Schwam, an associate in our Labor and Employment Group in the Morristown office

Last week, we commented on the fact that Representative Nunes had recused himself from the investigation into President Trump’s Russia ties after appearing less than impartial in the investigation.  Some employers may view the actions of Nunes in briefing the White House on certain classified information was not really wrong and, it could be argued, simply part of the investigation in confronting the accused.

It is certainly true that in any investigation, care should be taken to insure that both the complaining party and the accused have an opportunity to be heard.  However, there is a time and a place for confronting the accused.  Generally speaking, when conducting an investigation, it is usually best to speak with the accused after all other facts have been gathered.  In this way, you can conduct the investigation in a much more efficient matter and will not have to repeatedly interview the accused as more evidence is gathered.

Abstract word cloud for confirmation bias with related tags and termsEven more importantly, by waiting to gather even more evidence, you may avoid implicit bias and insure a more thorough investigation.  Clients routinely ask me how investigations are going midstream and I always truthfully answer that “I’m not sure yet.”

I’m not simply avoiding having a discussion with my clients when I say this.  When I act as an investigator for clients, I know that I work to keep an open mind until all evidence is gathered.  This is not always easy as it is human nature to start forming opinions about the stories being told to you.  However, if I prejudge a witness as not being credible or that their claims are ridiculous, I will consciously or not, steer the investigation towards the conclusion that fits that prejudgment.  In such cases, investigators may short cut an investigation and miss the second or third claim that has merit.

I’ve been listening to a decent amount of criminal justice podcasts, namely “Undisclosed,” and they talk frequently of “confirmation bias.”  In short, confirmation bias in an investigation means that if an investigator assumes a certain result is likely, then the investigation will lead to that conclusion.  In order to make sure that the desired conclusion is reached, investigators may ignore information that does not fit that conclusion or exaggerate the importance of evidence that does fit the conclusion.

By waiting until an investigator has a full picture of the evidence for and against an accused, the investigator can hopefully avoid any confirmation bias.

Recently, the United States Court of Appeals for the Seventh Circuit issued an opinion with significant employment law implications.  As you might recall, a panel of the Seventh Circuit issued a split 2-1 decision a few months ago, holding that Title VII’s prohibitions against sex discrimination in employment did not extend to protect employees on the basis of their sexual orientation.  The full Seventh Circuit then heard oral argument about whether the panel decision was correctly decided in the case, Hively v. Ivy Tech Community College.

Last week, the Seventh Circuit sitting en banc reversed the panel’s decision, holding that Title VII’s provisions that prohibit discrimination in employment on the basis of sex necessarily also prohibit employment discrimination on the basis of sexual orientation.  This decision is a binding interpretation of federal law for employers with employees within the Seventh Circuit, which includes Illinois, Indiana, and Wisconsin.  This decision means that employers in those states should immediately review their policies, procedures, and training regimens to ensure compliance.  However, employers outside of those states aren’t necessarily “off the hook” and should strongly consider reviewing their own policies in light of this decision.

To learn more about what this decision could mean for your workplace, check out our recent Labor & Employment Alert on the case.