Tag Archives: EEOC

The Mark of the Beast and Religious Accommodation in the Workplace

This week, the United States Supreme Court refused to grant certiorari to hear a religious accommodation case from the Fourth Circuit Court of Appeal, affirming a jury award for a long-term employee that retired because he believed that his employer’s requirement that he use a hand-scanner to clock into work would brand him with the “Mark of the Beast” (as referenced in the Book of Revelation in the Bible). Read the full opinion.

This case began back in 2012 in West Virginia. Plaintiff, an evangelical Christian, requested that he be allowed to use paper timesheets instead of the hand-scanning time clock that his employer was implementing. His request was denied. His employer asserted that he could use his left hand instead of his right hand in the scanner, as the Mark of the Beast is associated with the right hand and forehead. The employee was given an ultimatum, use the hand-scanner or be terminated. He chose to retire. Subsequent to his retirement, he learned that the company accommodated two employees with hand injuries, who could not be scanned, by installing a key pad and providing codes to the employees to enter into the key pad. With this knowledge, the employee sought the assistance of the EEOC, which filed suit on his behalf.

Shortly thereafter, I co-authored an article that discussed not only the facts of the suit, but also the framework under which religious accommodation claims are allowed to proceed. The framework for evaluation of religious accommodations has not changed since the article. Read the full article from The Florida Bar Journal.

Jennifer Fowler-Hermes
jfowler-hermes@williamsparker.com
941-552-2558

What is Harassment?

In light of all of the attention that is now being focused on issues relating to harassment and the #metoo movement, employers that do not take time to review policies and train employees may be at a disadvantage if claims ever arise. It is now more important than ever for employers to develop a better understanding of what constitutes harassment in the workplace, as well as how to prevent, recognize, and respond to harassment. Sexual (and other) harassment training is not just about reviewing company policies and telling employees how to report complaints. Training should be tailored for the specific workforce, in person, and promote respect and civility. It should be geared to help employees at all levels in an organization recognize harassment and when others are uncomfortable. In addition, employees that are responsible for receiving, investigating, and responding to complaints should be trained on how to properly fulfill these duties.

Harassment can occur both inside and outside of the workplace. Certain forms of harassment, such as a woman walking down the street getting cat-called by a stranger, do not implicate the workplace at all. However, if that same woman works for a construction company and is walking past other employees of the organization when she is cat-called by them, the same conduct may be workplace harassment and actionable. For more details on what is actionable harassment, see our October 14, 2016 blog post. Not all harassment is immediately obvious, and answering the question “what is harassment?” can sometimes be a difficult task. Are you able to recognize it?

Friends star David Schwimmer and writer and director Sigal Avin released several short videos that reflect different types of harassment in society, including three that involve workplace harassment. These videos start innocent enough, but develop into awkward and uncomfortable situations. At the end of this post is a link to one of these videos. Test yourself, watch the video, and consider the following questions:

Are you able to recognize when the harassment begins?

Can you identify the non-verbal and verbal cues that the employee is giving to indicate that she is not comfortable with the interaction?

Do you think that others in your organization would be able to recognize these cues?

Jennifer Fowler-Hermes
jfowler-hermes@williamsparker.com
941-552-2558

Setting the Stage for Supreme Court Review of Whether Title VII Prohibits Sexual Orientation Discrimination

Three circuit courts of appeal have issued opinions on whether Title VII prohibits sexual orientation discrimination. The Second Circuit (New York, Connecticut, and Vermont) and Eleventh Circuit (Alabama, Georgia, and Florida), relying on past precedent, have held that Title VII does not prevent discrimination based on sexual orientation. However, on April 4, 2017, the Seventh Circuit (Indiana, Illinois, and Wisconsin) issued a conflicting opinion, becoming the first circuit to hold that sexual orientation discrimination is indeed prohibited. Now, with the circuits split on this issue, the stage is set for the U.S. Supreme Court to be asked to resolve this conflict. However, recent reports opine that the employer in the Seventh Circuit case will not appeal the decision to the Supreme Court. If the employer does not appeal, another case will have to make its way through the lower courts before the divergence of opinion can take center stage at the Supreme Court.

Until the battle is fought before the Supreme Court, Florida employers should keep in mind that while Florida falls under the jurisdiction of the Eleventh Circuit Court of Appeals, and thus, arguably sexual orientation discrimination is not currently prohibited by Title VII, many municipalities, including the City of Sarasota and City of Miami, have local ordinances that prohibit such discrimination. Further, the Equal Employment Opportunity Commission, the agency charged with enforcing Title VII, takes the position that discrimination on the basis of sexual orientation constitutes sex discrimination and is therefore prohibited.

Jennifer Fowler-Hermes
jfowler-hermes@williamsparker.com
(941) 552-2558

A Flurry of EEOC Activity Just Before and Up to Inauguration Day, and the Appointment of an Acting Chair

In the month leading up to Donald Trump’s Inauguration, the EEOC issued several notices that may be of interest to employers.

National Origin Discrimination.  In late November the EEOC issued a new enforcement guidance on national origin discrimination. The guidance provides insight into how EEOC investigators are going to analyze claims of national origin discrimination. In addition to the guidance, the EEOC issued a fact sheet that specifically reminds employers that Title VII protects job applicants and employees regardless of immigration status and customer preferences. This protection is established law and not part of an executive order.

Mental Disabilities. On December 13, 2016, the EEOC provided notice of a new resource document directed at employees and applicants explaining that those with mental disabilities are protected from discrimination and harassment based on their conditions. In this resource document, the EEOC notes that its data shows that charges of discrimination based on mental health conditions are on the rise. Handling issues relating to mental disabilities is often difficult (and sometimes scary) for employers. An understanding of the EEOC’s position on employers’ obligations is important to avoiding legal liability.  A helpful resource for employers dealing with disability accommodation issues is the Job Accommodation Network, a service of the Office of Disability Employment Policy, U.S. Department of Labor. This website provides suggested accommodations for employees with disabilities, including those with mental disabilities.

Highlighting Accomplishments. On December 21, 2016, the EEOC issued a notice discussing its 2016 highlights. This document details the number of charges resolved by the EEOC and points out that the EEOC secured more than $482 million dollars for victims of discrimination.

Affirmative Action. On the first business day of January 2017, the EEOC provided notice that it issued final rules requiring federal agencies to engage in affirmative action for individuals with disabilities. These new rules are set to go into effect on March 6, 2017. The EEOC followed up with a question and answer document providing general information about the rules. These rules are not applicable to private sector employers.

Harassment. On January 10, 2017, the EEOC issued a proposed Enforcement Guidance on Unlawful Harassment, and is inviting comment on the guidance. The deadline to provide feedback on the draft guidance is February 9, 2017.  If you are interested in providing feedback, it can be posted (publically) here.

Case Law Digest. On January 12, 2017, the EEOC issued its quarterly publication that reviews federal court cases of interest, as well as recent Commission decisions. Although interesting and informative, unless you are a L & E attorney looking for something specific, preparing a presentation on the EEOC’s legal activity, or want to pretend that you are in law school, reading this document should not be a high priority.

Litigation Statistics. The day before the inauguration, the EEOC issued its enforcement and litigation statistics for 2016. The information provided shows that in Florida the number of charges filed in 2016 was greater than those filed in 2015. The statistics also give information on the breakdown by state of charges filed, as well as the type of charges filed (age, race, sex, retaliation, etc.).

Progress Report. On Inauguration Day, the EEOC sent out a notice highlighting the January 19, 2017 release of its Progress Report. This document is the EEOC’s review of its own work, detailing how the EEOC has been complying with its legislative mandate to enforce Title VII (and other laws). It will be interesting to see what the next Progress Report looks like, as it is likely that the agency may adjust its focus over the next year or so.

Appointment of an Acting Chair. On January 25, 2017, President Trump appointed Victoria Lipnic to serve as the EEOC’s acting chair. Lipnic joined the Commission in 2010 and was confirmed for a second term in late 2015. Before joining the Commission, she served as Assistant Secretary of Labor for Employment Standards.

Jennifer Fowler-Hermes
jfowler-hermes@williamsparker.com
941-552-2558

Predicting the Unpredictable: Labor and Employment Law in 2017 (Part Two)

This post is part two of a two-part series. Catch up on part one here.

Several of the biggest employment law matters in 2016 were the Department of Labor’s overtime regulations, Florida’s medical marijuana law, LGBT rights, and changes to the joint employer relationship. It is expected that each of these issues will continue to hold the limelight in 2017.

DOL’s Overtime Regulations – Since March 2014, when President Obama issued a Memorandum to the Secretary of Labor directing the Secretary to “modernize and streamline existing overtime regulations,” this has been a hot topic. The discussion has moved from what the regulations will be, to what will happen with the Department of Labor’s appeal of the temporary injunction prohibiting the implementation of the rule.  Oral argument has not yet been set. Thus, the new administration could withdraw its appeal of the temporary injunction, leaving the lower court’s decision intact. If Puzder does take the reins of the DOL, it is likely that this will occur, as he is on record stating that the 2016 overtime regulations diminish opportunities for workers.

Florida’s Medical Marijuana Law – This past election Florida’s voters approved medical marijuana for treatment of certain health conditions.  Although the state has already issued seven licenses for growing marijuana and some of the businesses with licenses are already starting to plant crops, it will not be until summer 2017 that regulations implementing the voters’ directive will be released. Many counties and cities in the state, including Sarasota County, Manatee County, Hillsborough County, Pasco County, and the City of Bradenton, have or are considering instituting temporary bans of the drug until the state’s regulations are issued and/or local zoning and building regulations are implemented.

Even though it is clear from the text of the constitutional amendment that employers will not be required to allow employees to use marijuana at the workplace, there will still be questions regarding zero tolerance policies, Florida specific drug testing, and reasonable accommodation under the Florida Civil Rights Act (arguably the ADA, a federal law, would not require an accommodation that involves a federally prohibited substance). Further, although marijuana (and CBD/hemp oil) may be approved for limited use in Florida, what the voters approved this past election is in direct conflict with the federal Controlled Substances Act. In addition, on January 13, 2017, the Florida’s legislature’s 2014 approval of limited use of CBD will be in direct conflict with the Drug Enforcement Administration’s new rule making CBD a schedule one controlled substance.

State laws will not protect businesses, including those licensed by the state to grow marijuana, from federal prosecution. If Sessions takes over the DOJ, he could overrule the 2009 directive to U.S. Attorneys not to prosecute violations of the federal drug laws when the acts being prosecuted are legal under state law. If this occurs, the federal government could thwart business opportunities in the marijuana industry and put many people in jail.

LGBT Rights in the Workplace and in Places of Public Accommodation – In the last few years, both the Equal Employment Opportunity Commission and the DOJ have taken serious efforts to expand protections afforded to members of the LGBT community. The EEOC’s 2017 Strategic Enforcement Plan indicates that providing this group protections under Title VII will remain a priority. However, depending on who is chosen to lead the EEOC, this focus could change and this aspect of the strategic plan could be ignored. Similarly, with Sessions in charge of the DOJ, a roll back in efforts to use public accommodation laws to provide greater protections to transgender persons is likely to occur.

Joint Employer Status – Recently both the EEOC and the National Labor Relations Board have broken with their own long-standing standards of what constitutes a joint employer, with both agencies expanding their standards to cover a greater number of relationships. The NLRB went as far as to redefine the joint employment test in place for over 30 years. In the past, a joint employer relationship existed when two entities shared or codetermined the essential terms and conditions of the workforce. Thus, for two entities to be considered joint employers, both had to exercise some control over employees’ terms and conditions of employment. However, with the 2015 Browning-Ferris decision, the NLRB removed the actual exercise of control as a requirement and instead focused on whether each entity has a “right to control” regardless of whether that right is ever used. Because of the five-year staggered terms of board members and the fact that a change at the Board level is made through interpretations of the NLRA, the impact of the new administration on this standard will most likely not be immediate. Instead, the NLRB’s new joint employer standard is already being challenged by Congress, and if a bill is passed overriding the NLRB’s new standard, it is likely that the new President will sign the bill.

Aside from the foregoing issues, there are also several other matters that will probably be of interest in 2017: Will Obama’s executive orders for federal contractors regarding minimum wage and paid sick leave stand? Will the new administration continue to push for fair pay? Will we see an increase in INS investigations of undocumented workers? Will the new administration attempt to undo the NLRB’s quickie election rules?

If only we had Dr. Who’s Tardis so we could travel to the future and see for ourselves. Whether the changes will ultimately be positive or negative for employers in 2017 is yet to be seen. Regardless, we are guaranteed a year full of activity in the employment law arena.

Jennifer Fowler-Hermes
jfowler-hermes@williamsparker.com
941-552-2558

The Customer is Not Always Right…

Most employers understand Title VII’s requirement to provide a workplace free of unlawful harassment and discrimination. Some employers may not be aware that this obligation extends beyond co-workers’ harassment to include customers’ mistreatment of employees. Recently a situation arose on an Alaska Airlines flight that demonstrated how this obligation to provide a workplace free of unlawful harassment and discrimination extends to customers.  During a female flight attendant’s life-vest demonstration, a male passenger yelled, “ooh, sexy.” When asked by the flight attendant to be respectful, the passenger responded “C’mon, I’m just playing with you.” Shortly thereafter, Alaska Airlines required the passenger to leave the plane.

When an employer becomes aware of harassment on the basis of a legally protected characteristic (sex, disability, religion, race, color, etc.), the employer is required to take prompt remedial action to protect its employees – even if the harasser is a customer.

It should be noted that despite the offensive nature of the passenger’s conduct, that conduct alone would not constitute sexual harassment creating liability for the employer. However, when combined with other conduct the flight attendant might face (from anyone, that day or over time), failure to act in the employee’s defense could certainly give rise to a harassment claim and employer liability. The EEOC advises, “Although the law doesn’t prohibit simple teasing, offhand comments, or isolated incidents that are not very serious, harassment is illegal when it is so frequent or severe that it creates a hostile or offensive work environment or when it results in an adverse employment decision (such as the victim being fired or demoted). The harasser can be the victim’s supervisor, a supervisor in another area, a co-worker, or someone who is not an employee of the employer, such as a client or customer.”

For harassing and offensive conduct to rise to the level of unlawful harassment (sexual harassment, racial harassment, etc.), the conduct must relate to a protected characteristic or conduct, and enduring the conduct must become, expressly or impliedly, a condition of employment or be so severe or pervasive that a reasonable person would consider the work environment to be intimidating, hostile, or abusive. The law also protects employees from retaliation relating to complaints and investigations.

Defending these claims is expensive. More and more employers are stepping in earlier to prevent them altogether. In this case, Alaska Airlines made a strong statement in favor of protecting employees, dissuading future conduct of this type, and prevented future claims. When the situation is not as time-sensitive, a quick call to an employment lawyer may help employers frame a diplomatic approach that fully protects the employee and prevents harassment.

Kimberly Page Walker
kwalker@williamsparker.com
(941) 329-6628

Is “Locker Room Talk” in the Workplace Sexual Harassment?

The discourse that has followed a political candidate’s recently released 2005 statements regarding women has brought renewed interest in the impact of “locker room talk” in the workplace, as well as when such talk violates the law. Sexual harassment occurs when a work-related benefit is conditioned on the granting of a sexual favor, when an employee or co-worker is subjected to unwanted sexual advances, where hostile conduct is based on the victim’s gender, and when there is offensive, sexually charged workplace behavior. Although sexual banter and ribbing of co-workers can be a basis for a sexual harassment claim, there is only a viable claim of harassment if the conduct at issue is sufficiently severe or pervasive to alter the terms and conditions of employment. Thus, one offensive comment, alone, will generally not support a claim for harassment.  Regardless, one comment can result in a claim being made against the employer. Further, when one off color comment is made in the workplace and it is not dealt with swiftly and appropriately, the employer is often viewed as being complacent. It is best for employers to create a work environment that maintains respect and prohibits conduct that may one day be used as evidence of harassment.

One of the best ways to maintain a respectful workplace is to educate managers and employees about what constitutes harassment, how to report conduct believed to be harassment, and to provide training on promoting respect and civility in the workplace. The September 1, 2016, blog post discussed the EEOC’s Report on its Special Task Force Study of Harassment in the Workplace and what types of training are most effective.

Jennifer Fowler-Hermes
jfowler-hermes@williamsparker.com
941-552-2558

 

Deadline for Filing the 2016 EEO-1 Survey is September 30

The submission deadline for private employers that are required to complete the EEO-1 Survey is September 30, 2016. The EEO-1 Report, Standard Form 100, is a compliance survey that requires company employment data to be categorized by race/ethnicity. As set forth on the Equal Employment Opportunity Commission’s website, all companies that meet any of the following criteria are required to file the EEO-1 report annually:

    1. The company is subject to Title VII of the Civil Rights Act of 1964, as amended, with 100 or more employees; or
    2. The company is subject to Title VII of the Civil Rights Act of 1964, as amended, with fewer than 100 employees, if the company is owned by or corporately affiliated with another company and the entire enterprise employs a total of 100 or more employees; or
    3. The company is a Federal government prime contractor or first-tier subcontractor subject to Executive Order 11246, as amended, with 50 or more employees and a prime contract or first-tier subcontract amounting to $50,000 or more
    4. https://www.eeoc.gov/employers/eeo1survey/fact_sheet_filers.cfm
    5. https://www.eeoc.gov/employers/eeo1survey/faq.cfm
    6. If your business meets one of the three criteria set forth above and you are not familiar with the EEO-1, the following links will provide essential information:

https://www.eeoc.gov/employers/eeo1survey/faq.cfm

https://www.eeoc.gov/employers/eeo1survey/fact_sheet_filers.cfm.

Jennifer Fowler-Hermes
jfowler-hermes@williamsparker.com
941-552-2558

Conducting Appropriate Training for Employees Helps Deter Workplace Harassment

In June 2016, the EEOC issued a report by its Select Task Force on the Study of Harassment in the Workplace. The report details how one third of the 90,000 charges filed with the EEOC in fiscal year 2015 included an allegation of harassment. However, as set forth in the report, this number does not accurately reflect of the number of persons that experience harassment at work. One of the most surprising aspects of the report is that it concludes that “approximately 90 percent of individuals who say they have experienced harassment never [took] formal action against the harassment.” EEOC Commissioner, and report co-author, Victoria Lipnic states that the reason for this failure to take action is fear: “There have been a lot of resources devoted to this in the workplace for many years, but there is a very high percentage of people who still do not report harassment. Part of that is out of fear — fear they might be retaliated against, that they might lose their job, that no one is going to believe them.”

The report also reaches the conclusion that despite efforts of employers to educate workers regarding harassment through workplace training, that most of this training is too focused on avoiding legal liability. The report suggests that different approaches to training should be explored such as bystander intervention training, as well as civility training that focuses less on harassment but instead on promoting respect and civility in the workplace.

This study and the resulting report reinforce the need to provide employees not only with training, but training designed for the specific workforce and presented by a professional. As stated in the report summary, “[in]effective training can be unhelpful or even counterproductive….one size does not fit all: Training is most effective when tailored to the specific workforce and workplace.” Employers should look closely at the training they provide to employees, ensure that it is effective and beneficial for their workplace, and consult with counsel as needed.

A summary of the EEOC’s recommendations can be found at https://www.eeoc.gov/eeoc/task_force/harassment/report_summary.cfm

Jennifer Fowler-Hermes
jfowler-hermes@williamsparker.com
941-552-2558

The EEOC Issues a New Fact Sheet Explaining Religious Discrimination

The EEOC recently issued a new fact sheet designed to help younger workers understand the laws prohibiting religious discrimination. https://lnkd.in/dipfh-4.  This fact sheet provides a good summary of the basics that each employer should know and provides several examples of how to address certain situations that may arise in relation to an employee’s religious practices and beliefs and an employer’s consideration of reasonable accommodations. This fact sheet can be found on the EEOC’s youth outreach website, which is designed to provide information to younger workers about employment discrimination. https://lnkd.in/dUS2gm4.

Jennifer Fowler-Hermes
jfowler-hermes@williamsparker.com
941-552-2558