General Employment Discrimination

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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

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.

This past week, a news story appeared in New Jersey that caught my eye. It was the story of an eighth grade female basketball player at St. Theresa’s school in Union County. Admittedly, the story initially piqued my interest because it was set at was my childhood parish, with the accompanying warm memories of playing basketball in the parish hall gym.

But after reading the story, it was a great illustration of how to handle opportunities in the workplace that, for one reason or another, are not available to all genders. St. Theresa’s had previously made a decision to cut the girls eighth grade basketball team due to low enrollment. However, the boys’ eighth grade program was left intact. Thereafter, the girl sought to play on the boys team but was rebuffed by the archdiocese.

sttheresas

In fairness to the archdiocese, it offered her the opportunity to play on the girls basketball team at a neighboring parish. Her family declined the offer and brought suit. This week, the court dismissed the case as a matter of law, saying that there was no implicit right to play on a team of the other gender.

While your company likely does not have single-gender sports teams, there are undoubtedly company activities that intentionally or unintentionally segregate by gender or another identifier. We discourage such practices. Even if separate activities are provided to both genders, there runs the risk that one activity will be seen as more desirable than the other.

To the extent that you must segregate workplace activities by gender, make sure the terms and conditions (time, place, budget) are the same for both. Also, ensure that decision makers and senior employees attend both events, regardless of their gender.

We are just rounding out our list of new employment laws before the clock strikes midnight tomorrow.

If you missed the first two parts of our list of new laws, you can find them here and here.

It seems that we are not done with sick leave laws.  Illinois recently passed the Employee Sick Leave Act.  Before Illinois employers panic, this law does not require that employers provide paid or unpaid sick leave.  The law simply requires that employees be given greater flexibility in how they can use sick leave benefits that may be provided by employers.  Basically, employees must be permitted to use up to half of their accrued sick leave benefits for absences due to an illness, injury, or medical appointment of the employee’s child, spouse, sibling, parent, mother-in-law, father-in-law, grandchild, grandparent, or stepparent.

Switching gears from sick leave laws, the new I-9 forms have finally been issued.  Employers must use the new I-9 forms beginning on January 22, 2017.  More details can be found on our Immigration View blog here.

In perhaps the most unusual news, Portland, Oregon has made history as being the first jurisdiction to implement a CEO tax for highly compensated executives.  Starting on January 1, 2017, any company who has a CEO who makes 100 times the average employee’s income will see their corporate tax rate increased by 10%.  If the CEO makes 250 times the average employee’s income, then the increase will be 25%.

Finally, what round-up would be complete without some mention of California.  It seems that new employment laws in California are as frequent as a Kim Kardashian selfie.  Although there are several new laws for 2017, the ones going into effect in January are changes to California’s Fair Pay Act, an increase in the minimum wage, and restrictions on arbitration agreements:

  • Fair Pay Act — the protections against discriminatory pay will go beyond gender.  Under the amendments to the law, employees must be given equal pay for equal work regardless of gender, race or ethnicity.
  • Arbitration Protections — There are two new statutes that provide additional protections from employees who may be subject to arbitration agreements.  The first is to state that any party to an arbitration proceeding has a right to have the proceeding recorded by a certified shorthand reporter.  The second is more substantive and prohibits employers from requiring California employees to arbitrate or litigate their claims in any other state besides California, nor can choice of law provisions apply any other states’ laws.
  • Minimum Wage — The minimum wage will increase to $10.50 per hour for any employer with 26 or more employees.

Hopefully, our list of new employment laws did not depress you so much that you over indulge in champagne on New Year’s Eve!  Starting the New Year with a hangover is bound to get you off on the wrong foot.

 

Bloomberg BNA is out with a news story about a recent case filed in federal court in Georgia, which poses an interesting question:  does Title VII protect an employee on the basis of his or her spouse being a member of a different race from the employee?  Among the Circuit Courts of Appeals that have tackled this question, the answer is yes.  We’ll get to the reason why momentarily, but first, let’s take a look at the new case in Georgia:

Costco Wholesale Corp. permitted discrimination and harassment of a black female worker married to a white man, according to a federal lawsuit filed in Georgia . . .

Levara Speight brought associational discrimination claims under Title VII of the 1964 Civil Rights Act and the Civil Rights Act of 1866 (42 U.S.C. § 1981) against Costco, in addition to race bias, harassment and retaliation claims.

She alleged that a supervisor and a co-worker, who are both black, began to harass her after they discovered that her husband is white. She claimed that she was told, “You’re not black,” that she acted “like a 16-year-old white girl,” and that she liked “white people music,” such as Billy Joel. Speight, a pharmacy technician, said she was demoted to a cashier position after she complained about the harassment.

 

This kind of claim is known as associational race discrimination and is based on a quite simple concept.  A claim of this kind is premised on the idea that discriminating against an employee because the employee’s spouse is of a different race necessarily implicates the employee’s own race. Here, the plaintiff is arguing that she was subjected to race-based harassment because of her interracial association, in that she (an African-American woman) is married to a man of a different race (Caucasian).  Thus, the discrimination is necessarily based on her own race, in addition to that of her husband.  (If this concept sounds familiar, you may have read about it in the context of LGBT employees pursuing sex discrimination claims.)

While claims of this sort are not particularly common, they can be viable, depending on the circumstances.  Associational race discrimination cases also raise an important follow-up question:  what kind of association is required to support a claim?  While spousal relationships have been recognized as sufficient by courts that have considered the issue, the limits of an associational relationship remain an open question in many jurisdictions.

To learn more about this case and this type of claim, I encourage you to read the whole article, for which (shameless plug alert) I provided commentary.

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.

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.