When an employee requests an accommodation or asserts a claim under the Americans with Disabilities Act, an employer’s second question—right after “Are we even covered by the ADA?”—will likely be:  “Did/does the employee have a disability?” (Claims from employees who are merely perceived as disabled are a topic for another day.)  The definition of a disability has two parts.  First, it must be “a physical or mental impairment” and, second, it must “substantially limit one or more major life activities.”  In a recent decision, the United States Court of Appeals for the Second Circuit held that an employee who allegedly suffered stress and incapacitating migraines from working under his supervisors did not have a disability under the ADA because there was no substantial limitation on a major life activity.

In Woolf v. Strada, plaintiff Woolf provided medical documentation from a treating neurologist indicating that the “emotional stress at work” was the “primary trigger” for Woolf’s migraines and that, absent a change in the work environment, the stress would increase his risk of heart attack and stroke.  Woolf repeatedly requested transfers within the company, including to the same position in a different location or under different supervisors.  Those requests were denied and he was instead granted intermittent medical leave with full pay as an accommodation.  Still, Woolf’s performance declined due to the migraines and he was ultimately terminated.

When Woolf subsequently sued under the ADA and state law, alleging failure to accommodate and discriminatory termination, the key issue was whether the migraines substantially limited the major life activity of working.  The appeals court answered in the negative because Woolf’s work was only limited in his specific job under his specific supervisors.  The court relied on

the well-established understanding that an employee’s inability to perform a single, particular job does not constitute a substantial limitation in the major life activity of working.  This long-standing, common-sense principle of law recognizes that employees who are precluded only from doing their specific job, or from working under a specific supervisor, do not have a “disability.”  Rather, an employee alleging a substantial limitation in the major life activity of working must show that the limitation affects the ability to “perform a class . . . or broad range of jobs.”

Employers considering accommodation requests under the ADA should thus examine how narrow an employee’s alleged limitation is before determining whether the employee indeed has a disability.  But bear in mind two points.  First, a disability need only substantially limit one major life activity.  There may be other activities—walking, breathing, learning, etc.—that are substantially limited even if the impairment falls short in limiting working.  Second, as always, state and local laws may be broader than the ADA in their definition of disability or otherwise.

 

In January, Supreme Court Chief Justice John Roberts drew considerable media attention by asking, during the oral argument of an age discrimination case, Babb v. Wilkie, a question about the relevance of the phrase “OK, Boomer.”  A Google search of “Chief Justice OK Boomer” will reveal articles from almost every serious media outlet putting their spin on the remark.  Most commentators have portrayed the conservative Chief Justice as suggesting it would be silly to take today’s trendy phrase from popular culture and conclude it could be evidence of age discrimination.

But, that’s not exactly what happened.  Instead, the question that garnered all the attention was way down in the legal weeds, far beyond our time and space and interest here.  Suffice it to say that the Chief Justice’s wondering dealt with a series of hypotheticals and “what-ifs” posed by the Court around questions of the burden of proof for federal employees under statutory language that is different than the language of the Age Discrimination in Employment Act that applies to private (or state and local governmental) employees.

The larger point was that “OK, Boomer” can be like any other ageist comment.  And Chief Justice Roberts was asking the question all HR professionals and attorneys and, sometimes juries, must answer—when a comment reveals stereotyping based on membership in a protected category, is it evidence of bias or is it merely a “stray” remark that had no impact on an employment decision and no tendency to harass?

Can enough “OK, Boomer” remarks create a hostile work environment?  What about a comment by a hiring manager in an interview—would that prove bias in denying the applicant a job?

As attorneys often say, because it is true, “it depends.”  But the greater point, and the reminder worth taking from the Supreme Court argument, is that the answer to those questions can certainly be YES, given the right accompanying facts.  Even casual statements meant to tease but not to harm can be evidence of harassment or bias.  Millennials might think they have a point about older employees being judgmental and condescending, but men used to think they had a point about women being emotional and insecure.  Wrong.  Think of the pejorative statements uttered to women and minorities over decades, based on stereotypes, intended by the speaker to be merely joking, but heard by the listener as hurtful and judgmental—those are exactly the kinds of comments that employment discrimination laws are meant to root out of the workplace.

True, HR managers sometimes need to pick their battles, and policing speech that enters the culture and exits just as quickly might not be priority one.  Surely, an older employee’s best reply to “OK, Boomer” is not to run and complain to HR.

At the same time, if unchecked, this comment is like any other that singles out an employee’s protected trait, and it carries the added layer of conveying a level of dissatisfaction with someone due to his or her association with others of the same protected group.  As with most things HR, the best advice is common sense: snarky is bad for employee relations, lumping someone into group stereotypes never helps, and jokes land wrong when they are built on making fun of people.

If you’re a regular reader of our blog, you probably know that the question of whether federal law prohibits employment discrimination against employees on the basis of their sexual orientation or gender identity remains open, which the Supreme Court may (or may not) resolve this year. While the EEOC  continues to move forward in processing charges that allege discrimination on these bases, the current limbo in federal law has opened the door for state action.

Some states, like Pennsylvania and Michigan, have taken action to interpret their state anti-discrimination laws to protect LGBTQ employees at the administrative level.  Now it appears Virginia will be the latest state to take action at the legislative level.

Earlier this month, Virginia Legislature passed legislation to prohibit discrimination in employment on the basis of sexual orientation and gender identity. The bills passed the Virginia House of Delegates by a vote of 59-35 and the state Senate by a vote of 30-9. However, the two houses of the Legislature passed different versions of the legislation, which must now be reconciled. Until that is done, it remains an open question how broadly the legislation will cover Virginia employers.

Still, Virginia Governor Ralph Northam is expected to sign the final version of the law, which would make Virginia the first state in the southern United States to legislate protections for LGBTQ employees in employment.

We will continue to monitor this legislation and provide updates. In the meantime, Virginia employers should planning to review their policies and practices now to determine compliance when a law is ultimately enacted.

In December, 2019, New Jersey enacted the Create a Respectful and Open Workspace for Natural Hair Act, or the CROWN Act. The CROWN act amends the New Jersey Law Against Discrimination (LAD) to state that “race,” as defined by the LAD, includes “traits historically associated with race, including, but not limited to, hair texture, hair type, and protective hairstyles.” The CROWN Act defines “protective hairstyles,” in turn, as including but not being limited to braids, locks, and twists.

In other words, employers who take adverse action against employees because employees wear natural hair – including certain hair textures, types, and styles – are discriminating on the basis of race.

The CROWN Act was introduced in response to a series of media reports highlighting the issue this past summer. In addition, the New Jersey Division of Civil Rights (DCR) recently issued guidance on this point, interpreting the LAD’s provision on race discrimination to cover discrimination on the basis of hairstyles that are “inextricably intertwined with or closely associated with race.”

Although the CROWN Act makes a key principle of the DCR guidance express as a matter of statutory text, it is possible that New Jersey courts will continue to look to the DCR guidance as providing persuasive or illustrative examples of how certain employment actions based on employee hairstyles can constitute race discrimination.

As a result of this law, employers should immediately review their policies, practices, and training materials regarding employee appearance, grooming, and dress code standards to ensure compliance. Employer review is particularly important given that policies that appear to be neutral on their face may, in fact or in practice, actually be discriminatory under the law, as amended.

The US Equal Employment Opportunity Commission has released its annual enforcement and litigation statistics for fiscal year 2019.  For fiscal year 2019, retaliation,  disability discrimination, race discrimination, and sex discrimination charges continue to constitute the most frequently filed types of charges.

One key takeaway:  the EEOC received 39,110 charges alleging retaliation, which represented 53.8% of all filed charges. This reality is critical for employers to note in setting workplace standards and investigating workplace complaints, as charges of discrimination or harassment frequently include retaliation allegations as well.

Notably, the EEOC received 7,514 charges of sexual harassment/hostile work environment in fiscal year 2019, which represented slightly over 10% of all filed charges. Although this was a 1.2% decrease from the prior fiscal year, sexual harassment charges still make up a significant proportion of the EEOC’s caseload.

Another continuing trend: the number of EEOC charges filed alleging LGBTQ-based sex discrimination increased again to 1,868 charges in fiscal year 2019, from 1,811 the prior year. The Supreme Court is expected to rule this year about whether these kinds of claims are viable under Title VII’s statutory framework.

On the litigation side, the EEOC’s enforcement numbers took a slight dip, with 157 lawsuits filed in fiscal year 2019, in comparison to 217 filed in fiscal year 2018.  Similarly, the EEOC’s recovery on behalf of complainants dipped from $53.6 million in fiscal year 2018 to $39.1 million in fiscal year 2019.

Despite these decreased numbers, the remaining data show that enforcement activity at the EEOC continues at a strong pace, and employers should bear that in mind when considering workplace training and management practices.

With a lack of legislative action in Congress on employment discrimination issues, state and local governments continue to expand employee protections.

A newly enacted (and immediately effective) law in the State of New York prohibits employers from discriminating or retaliating against an employee on the basis of an employee’s reproductive health decision making (or that of an employee’s dependent).

The new law does not comprehensively define “reproductive health decision making” but states that it includes, but is not limited to, a decision to use or access any particular drug, device, or medical service. This definition would appear to cover things like employee decisions of whether or not to use birth control (in any form), to seek fertility treatments, to get a vasectomy, or to access abortion services.

In addition, employers are prohibited from accessing an employee’s personal information about the employee’s reproductive health decisions (or those of an employee’s dependents), unless the employer has the employee’s prior, written informed consent.  Employers may not require an employee to sign a waiver or any document that appears to deny or restrict the employee’s right to make their own reproductive health care decisions.

In additions, employers who have employee handbooks are now required to include a notice of employees’ rights and remedies under this law in their handbooks.

The law includes a private right of action and stiff penalties for violations. For more information, check out our Workplace Watch Alert on this new law.

Recently, several jurisdictions have stated that discriminating against an employee on the basis of the employee’s hairstyle, where the hairstyle is closely associated with race, constitutes race discrimination. The New Jersey Division of Civil Rights has clarified its approach to this issue, recently issuing guidance on how it will apply the New Jersey Law Against Discrimination (the “LAD”) to matters of race discrimination based on hairstyle. Specifically, the Division states:

…the LAD’s prohibition on discrimination based on race encompasses discrimination that is ostensibly based on hairstyles that are inextricably intertwined with or closely associated with race. That means, for example, that the LAD generally prohibits employers, housing providers and places of public accommodation (including schools) in New Jersey from enforcing grooming or appearance policies that ban, limit, or restrict hairstyles closely associated with Black people, including, but not limited to, twists, braids, cornrows, Afros, locs, Bantu knots, and fades.

The guidance document cites the Division’s enforcement statistics to point out the particular problem of race discrimination in New Jersey.  In 2018, the Division’s data show that 54% of reported bias incidents in the state were motivated by an individual’s race, national origin, or ethnicity; of these incidents, approximately 72% were motivated by anti-blackness. The Division then traces the history of race discrimination based on an individual’s hairstyle, citing historical stereotypes that have negatively impacted African-Americans, the EEOC’s position, the decisions of several federal courts that have addressed this issue, and recent legislative actions in a number of other state and local jurisdictions.

The Division analogizes its approach to race discrimination based on hairstyle to employment discrimination on the basis of hair or clothing that is associated with an employee’s religion:

Therefore, just as it would likely violate the LAD to refuse to hire an Orthodox Jewish man because he wears payot, or to refuse to hire a Muslim woman because she wears a hijab, or to refuse to hire a Sikh person because they wear uncut hair, it is unlawful to refuse to hire or to otherwise treat a Black person differently because they wear their hair in a style that is closely associated with being Black.

That means that as a general matter, employers . . . may not enforce grooming or appearance policies that ban, limit, or restrict hair styled into twists, braids, cornrows, Afros, locs, Bantu knots, fades, or other hairstyles closely associated with Black racial, cultural, and ethnic identity. Any policy specifically singling out such a hairstyle will generally constitute direct evidence of disparate treatment under the LAD and unlawful discrimination on the basis of race.

This is a critical point – as the Division will now treat prohibitions of these hairstyles as direct proof of race discrimination under the LAD, as opposed to circumstantial evidence. However, it’s also crucial to note that the Division will also scrutinize employers’ facially neutral grooming/appearance policies for evidence of race discrimination based on hairstyle:

In addition, hair-related policies that are facially neutral—such as requirements to maintain a “professional” or “tidy” appearance—will likely violate the LAD if they are discriminatorily applied or selectively enforced against Black people, such as if Black people with shoulder-length locs or braids are told that they cannot maintain their hairstyle because it is not “tidy,” whereas white people with shoulder-length hair are not told to change their hair.

Similarly, if a retail store has a policy that only employees with a “neat and tidy appearance” may work on the sales floor, but the store uses that policy to station all employees with locs or Afros in the stockroom rather than the sales floor, the store will likely be liable for race-based discrimination under the LAD. And if a school handbook requires students to maintain “appropriate” hair and lists Black hairstyles as examples of “inappropriate” hairstyles, the school has likely violated the LAD. Such policies either explicitly or in application rest on invidious racial stereotypes that hairstyles closely associated with Black people are inherently messy, unkempt, or disorderly.

In addition, the Division has taken a strong position on what constitutes a permissible justification for an employer’s grooming/appearance policy relating to hairstyles that are “inextricably intertwined with or closely associated with race.”

Covered entities also may not justify policies that, explicitly or in practice, ban, limit, or restrict natural hair or hairstyles associated with Black people based on a desire to project a certain “corporate image,” because of concerns about “customer preference” or customer complaints, or because of speculative health or safety concerns. And any legitimate health and safety justification would need to be rooted in objective, factual evidence—not generalized assumptions—that the hairstyle in question would actually present a materially enhanced risk of harm to the wearer or to others.

In other words, the Division will view employer restrictions of hairstyles closely associated with race with a great deal of scrutiny, and the burden will be on the employer to show real, material, and objective justifications for their policies. Accordingly, New Jersey employers should review the Division’s new guidance and consider reviewing their grooming and appearance policies, in addition to their practices, to ensure compliance.

As regular readers of our blog will already know, the issue of whether Title VII prohibits employment discrimination based on an employee’s sexual orientation or gender identity has been a hot topic in federal litigation for several years. Our blog has regularly covered these developments and often expressed that this question will likely require clarification from the Supreme Court.

Earlier this month, the Supreme Court heard oral arguments on three cases raising this question.  Two of the three cases involve employees being allegedly terminated due to their sexual orientation, and one case involves an employee being allegedly terminated due to gender identity. In the appellate courts’ decisions that the Supreme Court will now consider, the employees won on two cases (one of the sexual orientation cases and the gender identity case) and lost in the third (the second sexual orientation case).

As many excellent summaries and analyses of the arguments have already been published, we will not do so here. If you are interested in a thoughtful recap, please check out SCOTUSBlog’s Argument Analysis page for these cases. While there is no formal timetable for the Court to issue a decision, a number of prognosticators have stated a decision could come as late as June 2020. Of course, we will continue to monitor these cases and provide any updates.

In the meantime, however, please note that the Supreme Court’s decision in these cases will not affect any state laws that prohibit employment discrimination on the basis of sexual orientation or gender identity, whether the state laws do so expressly or under the umbrella of sex discrimination.

Partner Deanna Forbush of our Labor & Employment Practice Group recently secured a victory in the Nevada Supreme Court on a matter of first impression that will benefit all employers by establishing a two-year statute of limitations for wrongful termination claims.

The decision in Patush v. Las Vegas Bistro, LLC upheld the lower court’s decision to dismiss as time-barred a wrongful termination action filed by a former employee nearly four years after her termination.

In clarifying the applicable limitations period, the Nevada Supreme Court determined that wrongful termination claims – including those involving alleged violations of public policy – are analogous to personal injury claims and therefore subject to the standard two-year limitations period.

In so ruling, the justices rejected the appellant’s argument that her claims should be subject to the four-year limitations period for actions based on an unwritten contract. The court opined that wrongful termination claims “fundamentally seek redress for a violation of personal rights protected by public policy, not of a contractual dispute.”

Deanna, who rejoined Fox in July, had fully briefed the matter for client Las Vegas Bistro, LLC during her time at the Clark Hill law firm. Las Vegas Bistro is now a Fox client. She was assisted in the case by Jeremy Thompson, a Clark Hill associate.

Patti Ramseur and Alex Maultsby of Fox Rothschild’s national Labor & Employment Practice offer insights on employee classifications.


Engaging independent contractors instead of hiring employees is enticing… no overtime pay, benefits, tax withholdings, FICA obligations or legal liability for certain claims.

If you misclassify a worker, however, the penalties are great — back overtime pay, interest, liquidated damages, federal income tax liability, FICA contributions, IRS penalties, and more.

There are no clear, bright-line tests, and you cannot determine status based upon title.  It is about who has control.

If your worker does the following, the DOL may try to treat him or her as an employee:

  • Provides services that are integral to your business;
  • Has a more permanent, than short-term, arrangement;
  • Uses your tools/equipment and works in your facility;
  • Works exclusively for your company;
  • Does work largely controlled by the company;
  • Has little or no opportunity for profit and loss; and/or
  • Exercises little or no initiative, judgment, or foresight.

If you use independent contractors, take the time now to carefully analyze those positions.  If you have concerns about any classification, we are glad to help you work through those issues now, before the DOL comes knocking.