The best line I have read in a religious accommodation case in the last two years is from a decision out of the United States District Court for the Southern District of Indiana New Albany Division earlier this month: “Title VII is not a license for employees to perform only those duties that meet their private approval.” When I read this, I wanted to pump my arm in the air like Judd Nelson’s character at the end of The Breakfast Club. In all seriousness, employers are now tip-toeing around the workplace, in part, as a result of the proliferation of reasonable accommodation cases and the often absurd outcomes that result from the legal decisions. For instance, in the Supreme Court’s 2015 Abercrombie decision, the Court said that even if the employee did not request an accommodation, the employer is required to know that an accommodation is necessary. True, that in the context of the facts of Abercrombie, the decision made some sense (the plaintiff in that case wore a hijab to the interview), but its application to other factual scenarios can border on the absurd and is tantamount to a “mind reading” requirement.
I do digress. Back to the recent decision. The S.D. of Indiana’s decision rejecting a religious accommodation claim made by a former employee terminated for insubordination when she refused to perform essential functions of her job finally added some degree of common sense to the avalanche of religious accommodation cases. In its decision, the S.D. of Indiana found that in order to meet her initial burden of proof, the former employee had to prove that a sincerely held religious belief conflicted with her duties. The case before the court involved a former employee that was terminated from her position as a deputy clerk when she refused to process forms allowing same-sex couples to marry. The court found that the duties of the deputy clerk position were ministerial duties consisting of certifying that the information on the application is accurate and that, under state law, the applicants are qualified to marry. The court found that although the former employee had a sincerely held religious belief, the purely administrative duties relating to the processing of marriage licenses did not conflict with her religious beliefs, as the processing of the forms was not forcing her to make a showing of religious or moral approval of the marriage. The court pointed out that she was not being forced to attend ceremonies, say congratulations, offer a blessing, or pray with the couples. The court opined that the employee’s subjective perception of a conflict between her beliefs and her duties “is not, in and of itself, conclusive.” The court went on to opine that to allow the employee’s subjective perception to dictate whether there is a conflict would result in the requirement having no meaning at all. Let’s call this a win for the Gipper (at least for now).
If you would like to learn more about religious accommodation in the workplace, you can read about it here.
If you have not yet seen the movie Office Christmas Party, watch the trailer and you will see a perfect example of what not to do at your annual office holiday party. The Mad Men days of the secretary sitting on Santa’s lap (the boss’s lap) while both are drinking a dry martini SHOULD be a vestige of the past. Most employers and employees now recognize that in today’s world there is a different expectation as to how to behave appropriately at work then there was in say the 1950s or 1960s. However, social norms that are generally recognized in the workplace sometimes are forgotten when there is a party, especially a party with libations. A holiday office party can embolden inappropriate behavior from simple innuendos to unwelcome touching. The office holiday party can be a quagmire of potential employment issues, even beyond sexual harassment, including but not limited to, workers compensation, the Fair Labor Standards Act, and religion.
As this holiday season heads into full throttle, it is important for employers to consider the potential risks associated with any planned celebration. Consider whether alcohol should be available, as most issues arise due to someone “bending the elbow” a bit too much. If you do decide to provide spirits, make sure you have someone (a designated responsible adult) that is monitoring to ensure that your workforce does not get too “relaxed” and cross the line. Possibly limit how much alcohol is served and make sure any employee that drinks a little too much has a ride home. Evaluate in advance whether the party is going to be mandatory or not. If it’s voluntary and employees do not feel compelled to attend, then employers are not required to compensate employees for their attendance. Review the plans for the party in advance to see if there are any activities that could be considered inappropriate or offensive to members of any protected class. Finally, make sure that employees understand that the company’s policies and procedures, especially those related to conduct, are still in effect at the party. Most parties are benign and conclude with no real issues to speak of, but you don’t want to be the exception to the rule.
Just in time for the holiday season the U.S. Citizenship and Immigration Services published a revised form I-9. If you forgot, this form is used to verify the identity and employment authorization of individuals that are hired for employment. Now, in addition to the traditional “print and complete” version, an electronic version is available that will detect when a required portion has not been completed. This new form, however, does not have instructions on it. Don’t you just love when new toys do not come with instructions? Luckily the instructions have not been forgotten, merely transported into a separate document that is a whopping 15 pages long.
The new form has several differences from its predecessor. For instance, the translator certification is no longer on the form, but is now a supplement to the form. As a consequence, it is important that those in your organization responsible for any part of the I-9 process become familiar with the changes before January 22, 2017, when employers are required to use the “new and improved” I-9 form. The form can be downloaded here, and the instructions can be downloaded here.