U.S. Equal Employment Opportunity Commission (EEOC)

FrigidMany of us are currently buckling in for a frigid holiday weekend (except for the lucky folks down in the south and southwest).  However, recent data issued by the U.S. Equal Employment Opportunity Commission (EEOC) shows that charges of discrimination continue to remain white hot (despite the temperature).  For the 2015 fiscal year, the EEOC clocked an uptick of total charges to 89,385 (up from 88,778 in 2014).  While this aggregate number is still slightly lower than the record-breaking annual charge rates just a few years back, charge rates remain historically high from a decade ago.  State-by-state charge rates are also available here for anyone interested.  The most common discrimination claim nationally (other than retaliation) is race (34.7% of all charges) followed by disability (30.2%), sex (29.5%), and age (22.5%).  (Note that charging parties commonly assert claims under multiple protected categories.)

Notably, retaliation claims remain the largest category altogether, accounting for a whopping 44.5% of all charges asserted.  This is unsurprising since retaliation claims, as a percentage of total EEOC charges, have grown every year since 2002.  This trend is also extremely likely to continue.  As employees become more and more aware of their available claims, retaliation is the easiest allegation to assert, and even control.  As U.S. Supreme Court Justice Anthony Kennedy pointed out in his seminal retaliation opinion, Texas Southwestern Medical Ctr. v. Nassar, 133 S. Ct. 2517 (U.S. 2013), “an employee who knows that he or she is about to be fired . . . might be tempted to make an unfounded charge . . . ; then, when the unrelated employment action comes, the employee could allege that it is retaliation.”  Id. at 2532.

This gamesmanship, coupled with the difficulty for an employer to prove that a complaint of discrimination and adverse action are unrelated, makes retaliation claims incredibly easy for an employee to maintain.  Although the EEOC recognizes this trend, and that its guidance on the subject has not been updated since 1998 (despite significant intervening U.S. Supreme Court decisions), its recent proposed retaliation guidance, if implemented, will be even more employee friendly than ever and continue to encourage yet more retaliation claims.  Employers must continue to brace themselves for this trend and ensure that all company policies and training procedures adequately address the EEOC’s most active issues.

Today’s post comes to us courtesy of Martin Burns, an associate in the Roseland office:

According to a recently filed lawsuit, Hajra v Wawa, by a former employee of Wawa, Inc., his manager singled him out and enforced an English-only policy because he spoke with an accent.  The former employee claims that the manager required that he only “speak English” while on the job because no one understood what he was saying.  A native of Kosovo, he alleges that the manager repeatedly instructed that he speak English despite only speaking that language while at work.  From the claims in the lawsuit, it does not appear that Wawa has formally implemented an English-only workplace policy or that the manager gave similar instructions to other employees.

26190870_sPutting aside the allegations that the manager singled out the employee and purportedly treated him differently because of certain characteristics associated with his national origin, could Wawa, or any other employer, require that its employees only speak English in the workplace?

The answer to that question depends upon the circumstances in question.  The United States does not recognize an official language.  Many states have existing official language laws.  Although New Jersey does not have any such law, there is a bill in committee in the New Jersey State Senate that if adopted and signed into law would designate English as the state’s official language.  Despite a lack of consensus on this issue by our federal and state political bodies, English-only work rules are not unheard of and can be legal at times.

It is clear that an English-only rule adopted by an employer must be implemented for nondiscriminatory reasons.  Furthermore, prohibiting certain foreign languages and not all such languages is unlawful.  The U.S. Equal Employment Opportunity Commission (EEOC) has issued guidance indicating that any such rules should relate to specific circumstances and can be justified by business necessity, such as in case of emergencies, promoting efficiency or to monitor the performance of employees whose job duties require communication where a supervisor only speaks English.  Even if the employer does not have a discriminatory intent or motive, however, federal law has been interpreted as prohibiting both intentional and unintentional discrimination against persons in protected classes.  According to the EEOC, employers therefore need to weigh business justifications against the possible discriminatory effects of the rule and should consider alternatives to an English-only rule that would be equally effective in promoting safety or efficiency.

 

43369264_sI am pleased to be a co-presenter at this webinar on September 9, 2015.  The EEOC and NLRB have been challenging severance provisions that they feel may stop an employee or former employee from cooperating with a charge filed with the agency.  The SEC also has recently been asking companies to provide copies of their separation agreements as part of its investigation of alleged wrongdoing.

We will discuss these recent challenges, as well as identify contract provisions that have been labeled problematic and provide practical drafting tips to avoid the wrath of these agencies.

If you would like to attend this webinar, you can register by clicking this link.  You’ll want to make sure you use this link as I can offer attendees 50% off the normal registration fees.

Hopefully, you can join us!

38570848_sIn the vein of a shameless personal plug, I will be speaking as part of a panel in an upcoming Strafford live webinar, “Accommodating Pregnant Workers After Young v. UPS: Navigating New Obligations Absent Clear Court Guidance” scheduled for Wednesday, July 15, 1:00pm-2:30pm EDT.

Our panel will discuss how to reconcile the Court’s vague new standard with EEOC guidance and differing state laws regulating workplace accommodation of pregnancy and pregnancy-related conditions, and offer best practices for crafting workplace policies that avoid Pregnancy Discrimination Act violations.

We will review these and other key issues:

  • What factors might constitute legitimate, nondiscriminatory, nonpretextual reasons for denying an accommodation?
  • Under what circumstances must employers accommodate pregnant employees?
  • What steps should employers take when engaging in the “interactive process”.

I hope you’ll join us.

For more information or to register >

Or call 1-800-926-7926 ext. 10
Ask for Accommodating Pregnant Workers After Young v. UPS on 7/15/2015
Mention code: EA1DU2-4TO1AY

23337822_sToday the U.S. Supreme Court reversed a decision by the Tenth Circuit Court of Appeals that had previously held that Abercrombie could not be held liable for not accommodating an applicant who wore a head scarf to her interview but never mentioned her Muslim faith.  The Tenth Circuit had accepted Abercrombie’s argument that the mere fact that she wore the hijab to the interview did not mean it was aware that she needed an accommodation of Abercrombie’s “Look Policy.”

The Tenth Circuit had held that where an accommodation is requested for religious reasons, an employer must not only be aware of the need for an accommodation but also that it was due to a particular religious faith.

In today’s decision in EEOC v. Abercrombie & Fitch Stores, Inc., the Supreme Court noted that knowledge of the need for an accommodation is not necessary but simply must demonstrate that an applicant’s need for an accommodation was a motivating factor in the employer’s decision.  This may seem confusing without reading the opinion in full.

I mean, how can an accommodation be a motivating factor if the employer did not know of the need for an accommodation?

Once you dig into the Court’s reasoning, the decision is actually more common sense than it appears on its face.  In short, whether an employee knows of a need for accommodation or simply assumes that one might be necessary, if the desire to avoid accommodating that practice is a motivating factor in not hiring the applicant, then that is a violation of Title VII.

To understand the Court’s decision, a brief review of the facts is helpful.   Samantha Elauf applied for a position with Abercrombie.  At the interview, Ms. Elauf wore a head scarf.  There was no discussion during the interview about the head scarf or whether she wore it for religious reasons.  After the interview, the manager who interviewed her, Heather Cooke, was concerned that the head scarf violated Abercrombie’s “Look Policy” which prohibited the wearing of caps.  When Ms. Cooke consulted with the District Manager, she advised that she thought that Ms. Elauf wore the head scarf for religious reasons.  The District Manager advised that the head scarf would conflict with the Look Policy and Ms. Elauf was then rejected for the position.

In its analysis the Supreme Court noted that the disparate treatment provision of Title VII forbids employers from failing to hire an applicant because of religion. Thus, the provision prevents religion from being a motivating factor in an employer’s decision not to hire an applicant.

When viewed in this light, today’s decision is not so different from cases interpreting the disability portions of Title VII.  For example, if an applicant who came into an interview for a position involving physical labor had a limp, the employer assumed because of the limp that the employee would need accommodations, and the employer did not want to create light duty positions so it rejected the applicant, it is not hard to see how this would be disability discrimination due to the assumption alone.

In this case, Abercrombie assumed (correctly) that Ms. Elauf wore the head scarf for religious reasons and as such would need an accommodation from its Look Policy.  Since Abercrombie’s sole reason for not hiring her was that it did not want to create an exception to the Look Policy, Ms. Elauf could show that her need for an accommodation was a motivating factor in the decision not to hire her even though she had never specifically asked for an accommodation.

Today’s decision is not so broad that it means that not having knowledge of a need for an accommodation may never be a defense.  If the employer has neither knowledge of nor an assumption that a religious practice requires an accommodation, an employer may still be able to raise a defense to a failure to accommodate claim.  For example, if an employee comes to a manager and simply requests time off without giving a reason why, it may be possible to argue that the cannot show that the denial of the time off was on account of his or her religion.

Employers should keep this decision in the backs of their minds when evaluating such requests.  If, for example, an employee is telling you that he or she cannot work any Friday after 4 pm, then a prudent employer should at least ask why before denying the request.  It is possible that the employee, who is Jewish, is making the request so that he or she can observe the Sabbath, or that the employee has a second part-time job that is scheduled for every Friday evening.  In the first scenario, the employer will have to evaluate whether it can reasonably accommodate the employer.

8081950_sSometimes when I counsel employers they ask why they cannot just take an ostrich approach, i.e., stick their head in the sand and not go looking for issues.  The problem with that approach is that, given my example above, it is not hard to imagine that an employee would claim that the manager was aware that he or she was Jewish and thus, should have assumed that the request was related to an observance of the Sabbath.  That then becomes a factual issue that is likely not going to get resolved on summary judgment.

1991649_sGenerally, if an employee is going to complain of harassment by a supervisor, in my experience, the complaint is raised to another person, such as another manager or Human Resources.  A lot of employees simply do not feel comfortable having that conversation with their bosses.

Of course, if an employee does have that conversation with his or her boss, the boss needs to be aware that the complaint cannot simply be pushed under the rug.  As a recent 6th Circuit case makes clear, this is where it is crucial that employers provide training and other guidance to supervisors in how to handle such complaints.  In EEOC v. New Breed Logistics, the 6th Circuit recently held as a matter of first impression that an oral complaint about harassing supervisor to that harassing supervisor is “protected activity” under Title VII for which an employee cannot be retaliated against.  In so finding, the Court upheld a $1.5 million award for the EEOC where the EEOC raised claims of retaliation on behalf of two female workers and a male worker who complained of a supervisor’s harassing behavior.

Although the case is headline news in the legal community since it is the first time the 6th Circuit has confronted the issue, the decision itself is not surprising.  This is because courts have routinely applied broad definitions of “protected activity” to insure that employees are not being intimidated from filing complaints of harassment.

Managers who hide complaints of harassment may think that they are protecting themselves, but they could be exposing themselves to greater liability.  In the New Breed case, the defense was that the plaintiffs had performance issues. However, where a complaint of discrimination is not investigated and then an employee is terminated very close in time to that complaint, the failure to investigate the claims muddies the issue of whether there was a legitimate reason to terminate the employee.

It is certainly possible that, had the complaint been investigated, it would have been found to be unsubstantiated and the manager would not have been in any trouble.  On the other hand, hiding the complaint clearly did not help the manager. It’s an expensive lesson to learn and is why companies should make clear that all complaints of harassment must be reported to human resources or whoever is else responsible for investigating complaints.

For those people who may have been living under a rock or enjoying an extended Tom Hanks-like vacation on a desert island a la Cast Away, the Supreme Court is set to hear argument in four petitions that challenge state laws in the 6th Circuit banning gay marriage.  It is widely anticipated that the Justices will finally squarely confront whether banning gay marriage violates the Equal Protection Clause.

17951947_sThe road to the Supreme Court was paved largely by US v Windsor, which struck down the Defense of Marriage Act as a violation of the Fifth Amendment.  The decision opened the door for many  courts to strike down gay marriage bans. However, states promoting the bans have argued that the Windsor decision makes clear that it is up to states to decide what is a valid marriage and those states could choose to define marriage as only being between a man and a woman.  Adding to the confusion is the fact that several states, in an effort to get around the Full Faith and Credit Clause which generally requires states to recognize the legal actions of other states, passed constitutional amendments defining marriage as being only between a man and a woman.  A “my constitution trumps yours” argument.

Without a decision based on the Equal Protection Clause, it is likely that there will remain conflicts over the issue.  As of today, there are still 13 states in the U.S. where gay marriage is illegal.  One of the states where it is legal, Alabama, has become a bit of a constitutional battle ground with a federal court declaring the ban on gay marriage illegal and the state’s Supreme Court issuing an order prohibiting clerks from issuing marriage licenses to same-sex couples.

It is widely anticipated that the Supreme Court’s decision will be in favor of gay marriage.  Although the plaintiffs in the case are taking no chances and have pulled out the big legal guns.  Lawyers for gay and lesbian plaintiffs have chosen Mary Bonauto, the movement’s pioneer, to argue the case.

Employers should be aware that if the decision is in favor of gay marriage, it may have an immediate impact on policies and benefits.  For example, under the FMLA, a spouse would be defined as including same-sex spouses.  The Supreme Court’s decision is not expected until June.  We will let you know as soon as it is decided.

36714348_sAlthough the facts alleged in a recent lawsuit entitled EEOC v. D&S Shipley Donuts are not quite as patronizing as the title of this post suggests; they are close.  The EEOC brought suit against a franchisee of Shipley’s Do-Nuts claiming that the franchisee violated Title VII of the Civil Rights Act of 1964 and the Pregnancy Discrimination Act.

The Complaint alleges that Brooke Foley was employed by D&S Shipley Donuts until she became pregnant.  However, this is not a simple case of an employee being terminated because she was pregnant.  The complaint alleges that employees who were pregnant were required to provide a written medical release assuring the company that they did not have a “high-risk” pregnancy and that it was safe for the employee to perform the normal job duties.  The EEOC also alleges that this medical release was required even in situations where employees did not request any type of accommodations or disclose that there were any medical issues related to the pregnancy.

When rumors spread that Ms. Foley was pregnant, the owner of the Company confronted her and allegedly demanded to know if she was pregnant.  She refused to confirm that she was in fact pregnant.  Nevertheless, during this confrontation, the owner told her that she was required to provide medical clearance.  Ms. Foley was also allegedly immediately removed from the work schedule until she could provide the note.  Ms. Foley objected to the requirement that she obtain medical clearance and was then terminated the following day.

This case has a rather simple lesson that is one of the basic premises behind the Pregnancy Discrimination Act  — that employers cannot assume that pregnant employees will be unable to work or will not be dedicated to their jobs once they become pregnant or have children.  Even in an environment where the physical demands are much greater than being a cashier in a doughnut shop, employers cannot simply assume that pregnant employees cannot perform the job functions.

A related lesson for employers is that the general rule under the Americans with Disabilities Act regulations is that an employer cannot require an employee to provide medical information unless the request for information is job-related and consistent with business necessity.  In the absence of a request for accommodation or some indication that the employee is actually unable to perform job duties on account of a medical condition, employers may violate the ADA by requiring medical information.

This week the United States Supreme Court heard arguments in a case that we have previously reported on that was filed against Abercrombie & Fitch.  In that case, a Muslim teenager applied for a job and was denied the job because she wore a head scarf which the hiring manager believed did not coincide with the company’s “look” policy.  It is always dangerous to try to predict how the Supremes are going to rule simply based on the argument.  News outlets have varied in how they believe the Justices’ comments may foreshadow the outcome.  If you want a simple factual retelling of the argument the Christian Science Monitor‘s article is one of your better bets.

The fact that the Supreme Court may rule in the teen’s favor does not necessarily mean that employers cannot have dress codes.  It will likely mean that employers need to follow existing guidance that accommodations may need to be made for religious beliefs.

Indeed, there are lots of things that employees may wear at work that would make an employer cringe and justify the imposition of a dress code.  If you don’t believe me, check out today’s 5 minute laugh video:

 

 

 

We previously reported that the EEOC had filed suit against United Health Programs of America Inc. after workers alleged that they were forced to say “I love you” to co-workers on account of their employers’ beliefs in “Onionhead.”  The suit also alleges that employees were forced to engage in prayer, wear Onionhead-related pins, and burn candles in the workplace.  (Just in case any of you were confused, we really meant Onionhead; this is not a fake news post from the Onion.)

35103496_sUnited Health Programs of America Inc. asked for permission to file a motion in federal court to bar the EEOC from contacting its employees.  The motion alleges that employees were sent a letter that laid out “skewed facts” and seemed to imply that a response to the letter was mandatory.  According to the motion, if employees did not respond to the letter, they were called by the EEOC and sent a follow-up letter.

It will be interesting to see how the Court rules on the motion.  If the allegations in the motion are true, then employers should be aware that the EEOC may employ aggressive solicitation methods.  Of perhaps bigger concern for employers is how to respond to employees who complain about being contacted by the EEOC.

Employers cannot tell employees that they must not cooperate with the EEOC lest they face claims that they interfered with the employees’ rights to report discrimination.  Employers can, however, tell employees that they do not have to cooperate with the EEOC if they do not wish to do so.  It is also fine to tell employees that if they do speak with the EEOC, that they should tell the truth.  Employers should be careful to also let employees know that no action will be taken against the employee if the employee chooses to speak with the EEOC.