General Employment Discrimination

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.

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In the past year or so, we’ve noticed an increasing legislative trend around the country — governing bodies passing bills to prohibit employers from inquiring about their job applicants’ wage history.  The precise details of these efforts naturally vary from locale to locale.  Still, whether at the federal, state, or local level, the rationale for these legislative efforts is often the same: they are efforts to close the gender wage gap.

This past August, Massachusetts became the first state in the nation to enact a statewide ban on the practice of employers seeking wage information from their applicants — a practice that many employers currently use as a matter of course in their hiring process.  Shortly thereafter, federal legislation seeking similar goals was introduced, and other states have started to get the ball rolling on their own legislation.  Cities have also joined the fray, with Philadelphia Mayor Jim Kenney signing a city ordinance to this effect several months ago.

Effective May 23, 2017 (that’s eight weeks from today, if you’re counting along with me), Philadelphia will become the first city to ban employers from asking about the wage history of job applicants.  The provision will take effect as an amendment to the City’s Fair Practices Ordinance and will be enforced by the Philadelphia Commission on Human Relations.  Our colleague Steven Ludwig has written an excellent summary of the law’s provisions, which you can find here.  Philadelphia employers should check out this information and begin planning (to the extent they have not done so already) to ensure their hiring procedures comply by May 23rd.

Moreover, in your author’s humble opinion, it’s highly likely that similar legislative efforts will continue to spread and gain steam across the country.  While the federal government is unlikely to act in the next two years, states and cities are likely to begin the process of following suit.  Employers should be mindful of the jurisdictions in which they operate and key tabs on legislative developments in this area that may affect their hiring practices.

TSpring Cleaninghe equinox has come and went, meaning warm weather is thankfully approaching. This also means spring hiring season is here for many employers. However, caution is advised. Given the ease of un-vetted online job postings, many forget that these posts are legal minefields (and public too). Federal, state, and local agencies (as well as plaintiffs’ attorneys) can see job ads just as well as potential candidates. As you pack away the winter coats, make sure to dust off your job posts and remove any potential legal snares.

One of the most common issues we see regarding job ads is “preference” language. The Equal Employment Opportunity Commission (“EEOC”) explicitly states that it is “illegal for an employer to publish a job advertisement that shows a preference . . . because of his or her race, color, religion, sex (including gender identity, sexual orientation, and pregnancy), national origin, age (40 or older), disability or genetic information.” While this may seem obvious, inadvertent word usage that may show a preference for one protected category over another is often overlooked.

For example, the EEOC notes that the phrase “recent college graduates” may indicate a preference for younger employees, and may violate the law. In addition, historically gendered job titles are frequently used in the hospitality industry, such as “waitress,” “hostess,” or “delivery boy.” Government agencies will often argue that such terms indicate a preference for one sex, gender, or age over another, even if all sexes, genders, and ages were welcome to apply. Moreover, legitimate job requirements, such as “must be able to lift ‘x’ pounds,” must be evaluated with legal counsel to ensure that disability and accommodation laws are complied with, as well as to ensure no overtime exemption misclassification issues are created.

In addition, in some states and localities additional discrimination protections are offered above those available under federal law. The New York City Commission on Human Rights (“NYCCHR”) issued notable guidance in 2015 on the treatment of transgendered employees and applicants. The NYCCHR has since aggressively investigated offending job advertisements that indicate a proclivity toward traditional gender categories, among other problematic conduct. (More information on NYC’s transgender guidance is available here.)

However, remember that simply sanitizing one’s advertisements is not enough. Hiring practices matter too. The EEOC notes that “an employer’s reliance on word-of-mouth recruitment . . . may violate the law” where the newly hired employees mirror the current workforce.

In sum, it is critical to review all job advertisements for problematic language, and train human resources and hiring personnel to be aware of these issues. Discriminatory job language can cause unneeded headaches with federal, state, and local governmental agencies, or that job posting may be “Exhibit A” in your next lawsuit.

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A notable case caught our eye recently coming out of the United States District Court for the Middle District of Florida filed by the Equal Employment Opportunity Commission (“EEOC”). Namely, The EEOC sued CRST International, Inc. (“CRST”) claiming that it, among other things, violated the Americans with Disabilities Act (“ADA”) by failing to accommodate and retaliating against a prospective truck driver.

The new driver allegedly requested the use of a prescribed emotional support animal to mitigate post-traumatic stress and mood disorder. CRST purportedly told the new driver simply to leave his dog at home and refused to provide an accommodation, citing unbendable company policies, and effectively rescinded his employment offer. Unfortunately, usually these policies must bend, or at the very least the possibility explored.

While the CRST case is in its early stages, and no court decisions have yet been issued, this complaint serves as a great illustration of just how far reaching the disability discrimination laws are. Here many employers would scoff or summarily dismiss the seemingly unworkable request of having a service animal in a trucking business. However, the CRST complaint reminds us of the potential disability accommodations that employers must consider and make. Regardless of the nature of the requested accommodation, the employer is, at the very least, required to engage in the interactive process with the employee and determine what, if any, reasonable accommodations can be made. Otherwise, you may end up on the wrong side of an EEOC lawsuit alleging ADA retaliation and failure to accommodate.

Please remember that when an employee or prospective employee requests a workplace disability accommodation in order to perform his or her job, an employer generally must consider the accommodation and, if it can be implemented without undue hardship, it must be granted. Anytime an accommodation request is received, never dismiss the request out-of-hand. Make sure to talk to your in-house human resources department or legal department, or involve outside counsel if necessary, to determine your legal obligations. Also, note that your state or local laws may provide additional protections beyond the ADA.

Bill Egan writes:

Cancer treatment
Copyright: tashatuvango / 123RF Stock Photo

Aside from whistleblower and highly offensive sexual harassment cases, there may be no claim that elicits the protective instincts of the average jury more than disability discrimination cases, especially where the disability is cancer-related.  Employees with disabilities who are terminated without demonstrable cause often are seen as suffering the double indignity of dealing with whatever hardship their disability imposes and the termination of their employment because of it.  Adept attorneys paint a picture of the employer kicking an employee when he’s down and when you place the outcome of such a case in the hands of average Americans (i.e., a jury), and you have the makings of a big verdict.

Such was the case of Axel v. Fields Motorcars of Florida, Inc., where a Mercedes dealership terminated a 71-year-old used car and wholesale manager, Michael Axel, who had been diagnosed with kidney cancer in 2010.  Following surgery, the cancer metastasized to his lungs.  Axel elected to undergo an experimental treatment that came with very unpleasant side effects described as “tremendous” stomach pain, sores in his mouth, and sores on his feet.  Evidence was introduced that Axel’s supervisor expressed frustration with Axel because, among other reasons, he was “not getting real doctors treatment” but “other holistic or crazy things.”

The dealership terminated Axel in 2014, allegedly for making misrepresentations in 2004 on paperwork needed to obtain an auto auction access card for his son, a non-employee of the dealership who occasionally assisted Axel in transporting used cars to the local auto auction.  The son was not accused of misusing this authority other than to move vehicles.  In fact, he was employed by the dealership at the time of his father’s termination.   The misrepresentation on which the termination allegedly was based was discovered ten years after the fact, leading to the decision to terminate.  Pre-trial submissions did not reveal much in the way of other performance deficiencies by Axel.

The jury apparently rejected the dealership’s stated reason for the termination as pretext for disability discrimination.  It found that Axel was fired because of his disability in violation of the Florida Human Rights Act and awarded Axel $680,000 in lost wages and benefits, $600,000 for emotional distress, and $3.22 million dollars in punitive damages.  Notably, despite allegations of stray remarks reflective of possible age animus, the jury found that there was no age discrimination in the decision to terminate Axel’s employment.

A runaway verdict?  Perhaps, but verdicts of this nature and magnitude seem to occur more frequently in disability discrimination cases. This jury’s rejection of the age discrimination claim demonstrates a thoughtful and discerning assessment of the evidence presented.  This case serves as a reminder that disability discrimination cases stand in a class of their own and must be handled with utmost care and discretion.


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

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Yesterday, the newly confirmed Education Secretary and Attorney General issued a joint letter eliminating the Obama administration’s guidance from last year addressing the issue of bathroom use by transgendered students.  Specifically, the former guidance had said that schools must allow students to use the bathroom of the gender with which they identify, even if that gender is different from the students’ biological gender.

The Obama administration had decided that under Title IX, discrimination based on transgender was sex discrimination.  This guidance was in line with positions taken by the EEOC pushing the issue that Title VII covered sexual orientation and gender identity discrimination because of its broad ban on sex discrimination.

Yesterday’s action only impacts public schools and not private employers.  The question is whether it will have a broader impact on EEOC enforcement strategies going forward.

Of course, the Supreme Court may, sooner, rather than later, have the final say on whether Title IX prohibits discrimination based on gender identity.  The Court is scheduled to hear argument in the case of Gavin Grimm v. Gloucester County School Board next month.  The case could have an impact on the interpretation of Title VII, not just Title IX.

We’ll be keeping an eye on this one.