EEOC Religious Discrimination Settlement – Employers, be aware!

June 18, 2017 at 7:02 pm | Posted in discrimination, EEOC, Employee, Employer, Employment Law, harassment, Legal, Religion, retaliation, Title VII | Leave a comment
Tags: , , , , , , ,

Directly from the EEOC’s website:

FOR IMMEDIATE RELEASE June 14, 2017

EMPLOYER TO PAY $30,000 TO SETTLE EEOC RELIGIOUS DISCRIMINATION LAWSUIT

Staffing Company Refused to Accommodate Rastafarian Employee’s Dreadlocks,

ORLANDO, Fla. – An Orlando staffing company dedicated to Central Florida’s massive hospitality industry will pay $30,000 and implement a company-wide accommodation policy to settle a religious dis¬crimination lawsuit brought by the U.S. Equal Employment Opportunity Commission (EEOC), the agency announced today.

The EEOC’s lawsuit charged that HospitalityStaff violated religious discrimination law by failing to provide a reasonable accommodation to Courtnay B. Joseph, a Rastafarian, when it required him to cut his dreadlocks to comply with its client’s grooming standards in order to keep his position at an Orlando-area hotel. The EEOC said that HospitalityStaff took Joseph off his assignment and never reassigned him.

Rastafarians wear dreadlocks as part of their sincerely held religious belief, and making an employment decision because of such a religious practice violates Title VII of the Civil Rights Act of 1964. The EEOC filed suit (Civil Action No. 6:16-cv-1250-CEM-DAB) in U.S. District Court for the Middle District of Florida after first attempting to reach a pre-litigation settlement through its conciliation process.

Under the decree, which was agreed to soon after EEOC filed its lawsuit, HospitalityStaff agreed to pay Joseph $30,000 in damages. The company will also amend its employee handbook and policy manual to include a clear policy providing for reasonable accommodations covering both disability and religious-based requests. Further, HospitalityStaff agreed to provide training to its managers and human resources personnel, and to voluntarily provide inform¬ation to EEOC concerning its handling of religious discrimination complaints for three years.

“HospitalityStaff’s decision to provide training and to implement policy changes relating to reasonable accommodations should be commended,” said Kimberly A. Cruz, supervisory trial attorney for the EEOC’s Miami District Office. “These policy changes demonstrate the company’s commitment to providing reasonable accommodations to its employees with sincerely held religious beliefs.”

Robert Weisberg, regional attorney for the EEOC’s Miami District Office, added, “The Supreme Court’s opinion in EEOC v. Abercrombie & Fitch reminds us that we must be vigilant in protecting sincere religious expression in the workplace. This is particularly important where the Commission has recognized ‘the in¬creasing complexity of employment relationships and structures, including temporary workers, staffing agencies, and independent contractor relationships’ in an ever more on-demand economy.”

One of the six national priorities identified by the EEOC’s Strategic Enforcement Plan (SEP) is for the Commission to address selected emerging and developing issues in equal employment law, including issues involving both the application of workplace civil rights protections in light of the increasing complexity of employment relationships and structures.

FROM ATTORNEY CHRISTINE SENSENIG:  Employers need to be aware that “a sincerely held religious belief” is very broadly interpreted by the EEOC.  Employers should engage with their employees about dreadlocks, beards, braids, tattoos and piercings as to any religious belief demonstrated through the wearing of dreadlocks, beards, braids, tattoos,and piercings before holding firm to a policy simply because “that’s our policy.”  Consider whether there is a legitimate safety concern or if the issue is an aesthetic one.

Reading the above blog posting does not create an attorney client relationship between the reader and Hultman Sensenig + Joshi.  If you have any questions or concerns, please feel free to contact attorney Christine Sensenig at 941-953-2828 or via email at csensenig@hsjlawfirm.com.

Advertisements

How to avoid spending an unnecessary $525 this year

June 2, 2016 at 3:36 pm | Posted in discrimination, EEOC, Employee, Employer, Employment Law, harassment, Legal, New employment laws/amendments, retaliation | Leave a comment
Tags: , , , , , , , ,

The U.S. Equal Employment Opportunity Commission on Wednesday June 1, 2016 increased the maximum penalty for employers that violate notice posting provisions of Title VII and other statutes from $210 to $525 per violation.  To avoid this $525 penalty, simply make sure your mandatory postings are up to date AND POSTED regarding Title VII and other anti-discrimination, anti-harassment and anti-retaliation laws.  Simple task for employers, post the laws and avoid paying $525 – think of what else you could do with $525 instead of paying a fine for simply failing to tack up a poster.

Placing such postings in an area where employees will see them is key to compliance here people!  Posting on the bathroom door, on the inside of the bathroom door, on the refrigerator, in a conspicuous spot in the break room are all good places to ensure that the postings are seen.

Reading this blog post does not create an attorney client relationship between Hultman Sensenig + Joshi and the reader, nor does this blog’s publication constitute legal advice to the reader.  If the Firm can be of assistance, please let us know.  

EEOC issues new Fact Sheet on LGBT/Transgender Bathroom Issues

May 5, 2016 at 3:22 am | Posted in discrimination, EEOC, Employee, Employer, Employment Law, harassment, Legal, LGBT, New employment laws/amendments, retaliation | Leave a comment
Tags: , , , , , , , , , , ,

Directly from the EEOC’s website:  

U.S. Equal Employment Opportunity Commission sent this bulletin at 05/02/2016 03:11 PM EDT

Fact Sheet: Bathroom Access Rights for Transgender Employees Under Title VII of the Civil Rights Act of 1964

“Transgender” refers to people whose gender identity and/or expression is different from the sex assigned to them at birth (e.g. the sex listed on an original birth certificate). The term transgender woman typically is used to refer to someone who was assigned the male sex at birth but who identifies as a female. Likewise, the term transgender man typically is used to refer to someone who was assigned the female sex at birth but who identifies as male. A person does not need to undergo any medical procedure to be considered a transgender man or a transgender woman.

In addition to other federal laws, the U.S. Equal Employment Opportunity Commission (EEOC) enforces Title VII of the Civil Rights Act of 1964, which prohibits employment discrimination based on race, color, national origin, religion, and sex (including pregnancy, gender identity, and sexual orientation). Title VII applies to all federal, state, and local government agencies in their capacity as employers, and to all private employers with 15 or more employees.

In Macy v. Dep’t of Justice, EEOC Appeal No. 0120120821, 2012 WL 1435995 (Apr. 12, 2012), the EEOC ruled that discrimination based on transgender status is sex discrimination in violation of Title VII, and in Lusardi v. Dep’t of the Army, EEOC Appeal No. 0120133395, 2015 WL 1607756 (Mar. 27, 2015), the EEOC held that:
denying an employee equal access to a common restroom corresponding to the employee’s gender identity is sex discrimination;
an employer cannot condition this right on the employee undergoing or providing proof of surgery or any other medical procedure; and,
an employer cannot avoid the requirement to provide equal access to a common restroom by restricting a transgender employee to a single-user restroom instead (though the employer can make a single-user restroom available to all employees who might choose to use it).

Contrary state law is not a defense under Title VII. 42 U.S.C. § 2000e-7.
In G. ex rel. Grimm v. Gloucester Cty. Sch. Bd., — F.3d –, 2016 WL 1567467 (4th Cir. 2016), the United States Court of Appeals for the Fourth Circuit reached a similar conclusion by deferring to the Department of Education’s position that the prohibition against sex discrimination under Title IX requires educational institutions to give transgender students restroom and locker access consistent with their gender identity.

Gender-based stereotypes, perceptions, or comfort level must not interfere with the ability of any employee to work free from discrimination, including harassment. As the Commission observed in Lusardi: “[S]upervisory or co-worker confusion or anxiety cannot justify discriminatory terms and conditions of employment. Title VII prohibits discrimination based on sex whether motivated by hostility, by a desire to protect people of a certain gender, by gender stereotypes, or by the desire to accommodate other people’s prejudices or discomfort.”

Like all non-discrimination provisions, these protections address conduct in the workplace, not personal beliefs. Thus, these protections do not require any employee to change beliefs. Rather, they seek to ensure appropriate workplace treatment so that all employees may perform their jobs free from discrimination.

Further information from other federal government agencies includes: A Guide to Restroom Access for Transgender Workers, issued by the U.S. Department of Labor’s Occupational Safety and Health Administration (OSHA), https://www.osha.gov/Publications/OSHA3795.pdf, and Guidance Regarding the Employment of Transgender Individuals in the Federal Workplace, https://www.opm.gov/policy-data-oversight/diversity-and-inclusion/reference-materials/gender-identity-guidance/, issued by the U.S. Office of Personnel Management.

If you believe you have been discriminated against, you may take action to protect your rights under Title VII by filing a complaint:

Private sector and state/local government employees may file a charge of discrimination by contacting the EEOC at 1-800-669-4000 or go to https://www.eeoc.gov/employees/howtofile.cfm.
Federal government employees may initiate the complaint process by contacting an EEO counselor at your agency; more information is available at https://www.eeoc.gov/federal/fed_employees/complaint_overview.cfm

From Hultman Sensenig + Joshi:  The EEOC and the DOL have been very active lately with issuing new guidelines.  Employers should take note as to all of this activity and respond proactively by reviewing policies and procedures and looking at inclusivity in the workplace.  As you consider such policies, consider the costs of litigation – and the impact of being the employer that makes a splash in the local media for alleged discriminatory practices.  Reading this blog does not create an attorney client relationship nor is legal advice being provided by your reading this blog.  

 

 

 

EEOC continues to be on the forefront of LGBT issues

April 26, 2016 at 3:58 pm | Posted in discrimination, EEOC, Employee, Employer, Employment Law, harassment, Legal, LGBT, New employment laws/amendments, retaliation | Leave a comment
Tags: , , , , , , , , , ,

Directly from the EEOC and found on their website:

What You Should Know About EEOC and the Enforcement Protections for LGBT Workers

Overview

EEOC interprets and enforces Title VII’s prohibition of sex discrimination as forbidding any employment discrimination based on gender identity or sexual orientation. These protections apply regardless of any contrary state or local laws.
Through investigation, conciliation, and litigation of charges by individuals against private sector employers, as well as hearings and appeals for federal sector workers, the Commission has taken the position that existing sex discrimination provisions in Title VII protect lesbian, gay, bisexual, and transgender (LGBT) applicants and employees against employment bias. The Commission has obtained approximately $6.4 million in monetary relief for individuals, as well as numerous employer policy changes, in voluntary resolutions of LGBT discrimination charges under Title VII since data collection began in 2013. A growing number of court decisions have endorsed the Commission’s interpretation of Title VII.

The information provided below highlights what you should know about EEOC’s outreach and enforcement in this area.

Examples of LGBT-Related Sex Discrimination Claims

Some examples of LGBT-related claims that EEOC views as unlawful sex discrimination include:
Failing to hire an applicant because she is a transgender woman.
Firing an employee because he is planning or has made a gender transition.
Denying an employee equal access to a common restroom corresponding to the employee’s gender identity.
Harassing an employee because of a gender transition, such as by intentionally and persistently failing to use the name and gender pronoun that correspond to the gender identity with which the employee identifies, and which the employee has communicated to management and employees.
Denying an employee a promotion because he is gay or straight.
Discriminating in terms, conditions, or privileges of employment, such as providing a lower salary to an employee because of sexual orientation, or denying spousal health insurance benefits to a female employee because her legal spouse is a woman, while providing spousal health insurance to a male employee whose legal spouse is a woman.
Harassing an employee because of his or her sexual orientation, for example, by derogatory terms, sexually oriented comments, or disparaging remarks for associating with a person of the same or opposite sex.
Discriminating against or harassing an employee because of his or her sexual orientation or gender identity, in combination with another unlawful reason, for example, on the basis of transgender status and race, or sexual orientation and disability.

See How to File a Charge of Employment Discrimination for information about filing a Title VII charge of sex discrimination in employment related to gender identity or sexual orientation bias. There is a different complaint process for federal employees.

Applicable Federal Law

EEOC is responsible for enforcing federal laws that make it illegal to discriminate in employment against a job applicant, employee, or former employee because of the person’s race, color, religion, sex (including pregnancy), national origin, age (40 or older), disability or genetic information. These federal laws also prohibit employers from retaliating against workers who oppose discriminatory employment practices – for example, by reporting incidents of sexual harassment to their supervisor or human resources department – or against those who participate in an employment discrimination proceeding – for example by filing an EEOC charge, cooperating with an EEOC investigation, or participating in an employment discrimination lawsuit.

While Title VII of the Civil Rights Act of 1964 does not explicitly include sexual orientation or gender identity in its list of protected bases, the Commission, consistent with Supreme Court case law holding that employment actions motivated by gender stereotyping are unlawful sex discrimination and other court decisions, interprets the statute’s sex discrimination provision as prohibiting discrimination against employees on the basis of sexual orientation and gender identity.

Over the past several years the Commission has set forth its position in several published decisions involving federal employment. These decisions explain the legal basis for concluding that LGBT-related discrimination constitutes sex discrimination under Title VII, and give examples of what would be considered unlawful. In so ruling, the Commission has not recognized any new protected characteristics under Title VII. Rather, it has applied existing Title VII precedents to sex discrimination claims raised by LGBT individuals. The Commission has reiterated these positions through recent amicus curiae briefs and litigation against private companies.

Sex Discrimination – Transgender Status

In Macy v. Dep’t of Justice, EEOC Appeal No. 0120120821, 2012 WL 1435995 (April 20, 2012), the Commission held that intentional discrimination against a transgender individual because that person’s gender identity is, by definition, discrimination based on sex and therefore violates Title VII.

The Macy decision explains that allegations of gender identity/transgender discrimination necessarily involve sex discrimination. Such cases can be viewed as sex discrimination based on non-conformance with gender norms and stereotypes under the Supreme Court’s 1989 decision in Price Waterhouse v. Hopkins, and based on a plain reading of the statute’s “because of . . . sex” language.

Applying Macy, the Commission has also held that an employer’s restrictions on a transgender woman’s ability to use a common female restroom facility constitutes disparate treatment, Lusardi v. Dep’t of the Army, EEOC Appeal No. 0120133395, 2015 WL 1607756 (Mar. 27, 2015), that intentional misuse of a transgender employee’s new name and pronoun may constitute sex-based discrimination and/or harassment, Jameson v. U.S. Postal Service, EEOC Appeal No. 0120130992, 2013 WL 2368729 (May 21, 2013), and that an employer’s failure to revise its records pursuant to changes in gender identity stated a valid Title VII sex discrimination claim, Complainant v. Dep’t of Veterans Affairs, EEOC Appeal No. 0120133123, 2014 WL 1653484 (Apr. 16, 2014).

Sex Discrimination – Sexual Orientation

In Baldwin v. Dep’t of Transportation, EEOC Appeal No. 0120133080 (July 15, 2015), the Commission held that a claim of discrimination on the basis of sexual orientation necessarily states a claim of discrimination on the basis of sex under Title VII.
The Baldwin decision explains that allegations of sexual orientation discrimination necessarily involve sex-based considerations. First, discrimination on the basis of sexual orientation necessarily involves treating an employee differently because of his or her sex. For example, a lesbian employee disciplined for displaying a picture of her female spouse can allege that an employer took a different action against her based on her sex where the employer did not discipline a male employee for displaying a picture of his female spouse. Sexual orientation discrimination is also sex discrimination because it is associational discrimination on the basis of sex. That is, an employee alleging discrimination on the basis of sexual orientation is alleging that the employer took the employee’s sex into account by treating him or her differently for associating with a person of the same sex. Finally, discrimination on the basis of sexual orientation is sex discrimination because it necessarily involves discrimination based on gender stereotypes, including employer beliefs about the person to whom the employee should be attracted.

Charge Data

In FY 2015, EEOC received a total of 1,412 charges that included allegations of sex discrimination related to sexual orientation and/or gender identity/transgender status. This represents an increase of approximately 28% over the total LGBT charges filed in FY 2014 (1,100). EEOC resolved a total of 1,135 LGBT charges in FY 2015, including through voluntary agreements providing approximately $3.3 million in monetary relief for workers and achieving changes in employer policies so that discrimination would not recur. This reflects increases of 34% in the number of resolutions over FY 2014 (847) and 51% in the amount of monetary relief over FY 2014 ($2.19 million). Please refer to the chart which shows charges received or resolved during FY 2015, shown at https://www.eeoc.gov/eeoc/newsroom/wysk/enforcement_protections_lgbt_workers.cfm

Conciliation and Litigation

When the Commission finds reasonable cause to believe that discrimination has occurred, it seeks to resolve the matter voluntarily through informal means of conciliation, conference, and persuasion. If the Commission is unable to secure a voluntary resolution, it has authority to file suit in federal court. In several cases, the Commission has filed LGBT-related lawsuits under Title VII challenging alleged sex discrimination. Read about examples of pending and resolved EEOC litigation involving Title VII sex discrimination claims brought on behalf of LGBT individuals, as well as EEOC amicus briefs filed in suits brought by private individuals raising these issues.

Federal Sector Enforcement

In the federal sector, EEOC has implemented its priority for covering LGBT individuals in a variety of ways:

Tracking gender identity and sexual orientation appeals in the federal sector
Issuing 20 federal sector decisions in FY 2015, including finding that gender identity-related complaints and sexual orientation discrimination-related complaints can be brought under Title VII through the federal sector EEO complaint process. For example, in Larita G. v. U.S. Postal Service, EEOC Appeal No. 0120142154 (Nov. 18, 2015), EEOC reversed the Agency’s dismissal of a hostile work environment claim on the basis of sexual orientation because such an allegation is necessarily an allegation of sex discrimination under Title VII.
Establishing an LGBT workgroup to further EEOC’s adjudicatory and oversight responsibilities
Issuing guidance, including instructions for processing complaints of discrimination by LGBT federal employees and applicants available on EEOC’s public web site
Providing technical assistance to federal agencies in the development of gender transition policies and plans
Providing LGBT related outreach to federal agencies through briefings, presentations, and case law updates

Training and Outreach

EEOC is addressing LGBT legal developments in numerous outreach and training presentations to the public. During FY 2015, field office staff conducted more than700 events and reached over 43,000 attendees where LGBT sex-discrimination issues were among the topics discussed. In the federal sector during FY 2015, there were approximately 53 presentations delivered to over 4,400 federal sector audience members. These events reached a wide variety of audiences, including employee advocacy groups, small employer groups, students and staff at colleges and universities, staff and managers at federal agencies and human resource professionals. To assist in this outreach, EEOC is distributing a brochure, Preventing Employment Discrimination Against Lesbian, Gay, Bisexual or Transgender Employees.

Resources

The Commission has issued various technical assistance publications on LGBT issues, including:

Fact Sheet on Recent EEOC Litigation Regarding Title VII & LGBT-Related Discrimination, http://www.eeoc.gov/eeoc/litigation/selected/lgbt_facts.cfm
Examples of Court Decisions Supporting Coverage of LGBT-Related Discrimination Under Title VII, http://www.eeoc.gov/eeoc/newsroom/wysk/lgbt_examples_decisions.cfm
Federal Sector Cases Involving LGBT Individuals http://www.eeoc.gov/federal/reports/lgbt_cases.cfm
Brochure on Preventing Employment Discrimination Against Lesbian, Gay, Bisexual, or Transgender Employees, http://www.eeoc.gov/eeoc/publications/brochure-gender_stereotyping.cfm.
OPM-EEOC-OSC-MSPB Guide: Addressing Sexual Orientation and Gender Identity Discrimination in Federal Civilian Employment http://www.opm.gov/LGBTGuide

Useful resources from other agencies include:

OPM Guidance on Employment of Transgender Individuals http://www.opm.gov/policy-data-oversight/diversity-and-inclusion/reference-materials/gender-identity-guidance/
U.S. Department of Labor/OSHA Guide to Restroom Access for Transgender Workers, https://www.osha.gov/Publications/OSHA3795.pdf
U.S. Department of Justice Memorandum on Treatment of Transgender Employment Discrimination Claims Under Title VII of the Civil Rights Act of 1964, http://www.justice.gov/file/188671/download

Other Laws

Be aware of other laws that also may apply:

Federal contractors and sub-contractors are covered by a separate, explicit prohibition on transgender or sexual orientation discrimination in employment pursuant to Executive Order 13672 and implementing regulations issued and enforced by the U.S. Department of Labor’s Office of Federal Contract Compliance. For more information, see Frequently Asked Questions on E.O. 13672 Final Rule, http://www.dol.gov/ofccp/LGBT/LGBT_FAQs.html
State or local fair employment laws may explicitly prohibit discrimination based on sexual orientation or gender identity. Contact information for state and local fair employment agencies can be found on the page for EEOC’s field office covering that state or locality. On the other hand, if a state or local law permits or does not prohibit discrimination based on sexual orientation or gender identity, the EEOC will still enforce Title VII’s discrimination prohibitions against covered employers in that jurisdiction because contrary state law is not a defense under Title VII. Applicants and employees in those jurisdictions should contact the EEOC directly if they believe they have been subjected to sex discrimination based on sexual orientation or gender identity.

For more go to:  https://content.govdelivery.com/accounts/USEEOC/bulletins/1456e7e

From Hultman Sensenig + Joshi:  The EEOC continues to confirm its commitment to equality for all and will pursue this commitment through litigation.  Employers should review their policies and especially their handbooks to ensure whether recent rulings regarding marriage equality  and other rights being granted by the Court are addressed.  There is no attorney client relationship created through the reading of this blog, nor is any legal advice being rendered.  

 

 

 

 

The Broadway play Urinetown’s theme has become a hashtag #freetopee for transgendered individuals seeking to use a public restroom

April 17, 2016 at 8:05 pm | Posted in discrimination, EEOC, Employee, Employer, Employment Law, harassment, Legal, LGBT, OSHA, retaliation | Leave a comment
Tags: , , , , , , , , , , , , ,

The issue of what bathroom a transgendered individual should use has become a hot topic for debate for public schools, for politicians, for businesses and for the LGBT community.

When you have a culture of respect, treating everyone with respect and dignity is the goal.  What steps have you taken as a business owner or as manager to help achieve that goal when an employee tells you they are taking steps to become the other gender, and how can you  help them with that as related to use of the company bathroom?  Be prepared as the EEOC is making the issue of “gender” something they plan to explore through litigation – do you really want to be on the other side of that lawsuit as compared to planning in advance for the day when an employee asks, “Can we talk in private?”

Of all of the government agencies, OSHA has provided guidance on the issue of creating gender neutral bathrooms:  https://www.osha.gov/Publications/OSHA3795.pdf

The EEOC has a webpage devoted to the issue of how it believes the LGBT community should be protected from discrimination:  https://www.eeoc.gov/eeoc/newsroom/wysk/enforcement_protections_lgbt_workers.cfm.

As of last month, the EEOC issued a Fact Sheet summarizing its litigation on LGBT issues:  https://www.eeoc.gov/eeoc/litigation/selected/lgbt_facts.cfm

Actual links to the policies above are provided at the bottom of this blog.

From Hultman Sensenig + Joshi: The above and this blurb is not legal advice, nor does reading this blog create any attorney client relationship between the reader and this law firm. Employers should be very aware of the impact this issues has on job seekers looking for a place that shares their values.  Creating or reviewing current policies in place regarding discrimination and harassment for the LGBT community, and determining how inclusive such policies are, may solidify a corporate culture based upon respect and help an employer avoid bad press and EEOC litigation in the future.  Discussing this issue with your team – and your employment counsel – is a good first step.

https://www.osha.gov/Publications/OSHA3795.pdf

https://www.eeoc.gov/eeoc/newsroom/wysk/enforcement_protections_lgbt_workers.cfm

https://www.eeoc.gov/eeoc/litigation/selected/lgbt_facts.cfm

 

 

 

 

 

EEOC shows its intent to protect farmworkers in the workplace

October 24, 2014 at 3:16 pm | Posted in Uncategorized | Leave a comment
Tags: , , , , , , , , , , , , ,

Directly from the EEOC website: http://www1.eeoc.gov/eeoc/newsroom/release/10-22-14.cfm

Federal Agency Charges County Fair Farm With Subjecting Female Farmworkers to Groping, Verbal Abuse, Solicitations for Sex

BOSTON — County Fair Farm, a farm and produce wholesaler located in Jefferson, Maine, violated federal law by creating and maintaining a sexually hostile work environment for female farmworkers since 2003, the U.S. Equal Employment Opportunity Commission (EEOC) announced in a lawsuit today.

The EEOC charged that female farmworkers were groped, repeatedly propositioned for sex and subjected to lewd comments about their bodies by their supervisors and male co-workers while working at County Fair Farm. The lawsuit alleges that female farm workers repeatedly complained to County Fair Farm about the harassment, but the employer failed to take any action to correct the hostile work environment. In one case, the EEOC said, a female farm worker was subject to increased harassment after she complained and was ultimately forced to leave her job.

Such alleged conduct violates Title VII of the Civil Rights Act of 1964, which prohibits sex discrimination and prohibits employers from retaliating against employees who oppose it. The EEOC filed the lawsuit (EEOC v. County Fair Farms, 14-cv- 00415-GZS) in U.S. District Court for the District of Maine in Portland after first attempting to reach a pre-litigation settlement through its conciliation process. The lawsuit seeks monetary and injunctive relief.

The lawsuit, one of many similar suits filed by the agency in recent years on behalf of farmworkers, underscores the EEOC’s longstanding nationwide commitment to addressing the plight of these vulnerable workers, who are often reluctant or unable to exercise their rights under the equal employment laws.

Eliminating discriminatory policies affecting vulnerable workers who may be unaware of their rights under equal employment laws or reluctant or unable to exercise them is one of six national priorities identified by the EEOC’s Strategic Enforcement Plan (SEP). These policies can include disparate pay, job segregation, harassment and human trafficking. Preventing harassment through systemic enforcement and targeted outreach is another specific SEP priority. To learn more about the EEOC’s strategic plan and enforcement priorities, visit http://www.eeoc.gov/eeoc/plan/sep.cfm.

“Farmworkers are particularly vulnerable to discrimination and harassment,” said Robert D. Rose, regional attorney for the EEOC’s New York District Office. “They are entitled to the full protection of our laws, and the EEOC will vigorously enforce those laws when farmworkers are targets of abuse.”

Sara Smolik, trial attorney in the EEOC’s Boston office, added, “County Fair Farm has a responsibility to protect its workers, not tolerate harassment of them.”

For a select list of pending and resolved EEOC cases involving national origin discrimination and/or immigrant workers from 2005 to the present, see
http://www.eeoc.gov/eeoc/litigation/selected/national_origin_immigrant_workers.cfm.
For a select list of pending and resolved cases involving farmworkers from 1999 to the present, see http://www.eeoc.gov/eeoc/litigation/selected/farmworkers_august_2014.cfm.

The EEOC is responsible for enforcing federal laws against employment discrimination. The Boston Area Office’s jurisdiction includes Maine, New Hampshire, Vermont, Massachusetts, Connecticut and Rhode Island. Further information is available at http://www.eeoc.gov.

From the Sensenig Law Firm, P.A.

Employers in agriculture need to be aware that vigilance in monitoring what is happening in the fields, in the groves, in the packing sheds, in the slaughterhouses, in the canneries, MUST occur; to claim “too much area to monitor” will not be an excuse the EEOC, or private counsel, accepts.

Having policies in place, and possibly proper insurance, will provide agricultural employers with defenses and funds to respond to litigation. First and foremost, this is a wake-up call for agricultural employers to be more proactive as to their harassment, discrimination and anti-retaliation policies.

EEOC issues informal discussion letter regarding “reasonable accommodations” under the ADA/ADAA

April 29, 2014 at 2:06 pm | Posted in Uncategorized | Leave a comment
Tags: , , , , , , , ,

Directly from the EEOC’s website: http://www.eeoc.gov/eeoc/foia/letters/2014/ada_reasonable_accommodation_02_25.html

The U.S. Equal Employment Opportunity Commission
EEEOC Office of Legal Counsel staff members wrote the following informal discussion letter in response to an inquiry from a member of the public. This letter is intended to provide an informal discussion of the noted issue and does not constitute an official opinion of the Commission.

ADA: Reasonable Accommodation

 February 25, 2014

Dear _:

This is in response to your letter to Chair Jacqueline A. Berrien, dated December 6, 2013, concerning a Sample Reasonable Accommodation Policy and accompanying sample forms. The sample policy, written by a law firm, notes that it is intended to aid employers in meeting their obligations under the Americans with Disabilities Act (ADA), as amended, and states that the accompanying sample forms are for “informational, educational, and/or training purposes only.”

You state that these documents were obtained from the website of a state agency. As your correspondence noted, a government official stated that the sample policy is no longer available on the agency’s website and was never used as official accommodation policy of any agency. Rather, it was posted only for training purposes.

We will not offer a comprehensive review of the sample policy and its forms. Instead, we address several aspects of the sample policy and accompanying forms that raise concerns, even if they are intended for “informational, educational, and/or training purposes.”1

Sample Disability Accommodation Policy

Requests for reasonable accommodations must be handled on an individualized basis. Employers generally need to engage in an interactive process to determine whether a reasonable accommodation is warranted, and this process is influenced by, among other things, the nature of an employee’s disability, the employee’s job, and the work environment. Consequently, it is difficult to develop a policy and related forms that can address all variables. In addition, the law in this area continues to develop, making it risky to conclude, as the policy does, that certain things never (or almost never) have to be provided as reasonable accommodations.

Leave

The sample policy states that an employer is not required to provide certain accommodations. The policy is correct that certain actions, such as eliminating essential functions, are not required. However, the sample policy states that an employer is not required to permit “unscheduled (or erratic, unpredictable, intermittent) or excessive absenteeism or tardiness as a reasonable accommodation.”

This formulation could lead to the inappropriate denial of a reasonable accommodation. First, the sample policy does not distinguish between unscheduled and excessive absenteeism. It is highly unlikely that an employer could deny unscheduled leave in all cases.

For example, an employee with epilepsy may have one or two seizures a year requiring unscheduled leave of one day each time. The fact that the leave is unscheduled, or could be characterized as erratic, unpredictable and intermittent, does not mean that an employer can deny this type of leave. An employer would have to grant leave under these circumstances as a reasonable accommodation unless it could show undue hardship.2

Second, the sample policy does not explain when leave needed as a reasonable accommodation will be considered “excessive,” thus increasing the possibility that requests will be handled inconsistently and leave will be denied inappropriately. Whether leave granted as a reasonable accommodation is “excessive” must be determined by considering whether it imposes an undue hardship.3

Working from Home

The sample policy states that working from home is “generally” not a reasonable accommodation “except in extraordinary circumstances.” While we are aware that some courts have found a legal obligation to provide telework as a reasonable accommodation to be limited,4 the law is far from settled. The EEOC recognizes telework as a form of reasonable accommodation and has provided guidance for employers and employees in determining if it may be an effective form of reasonable accommodation.5 Thus, the suggestion that working from home is not required except in extraordinary circumstances may lead an employer to violate the ADA. Of course, telework is not appropriate for all jobs. Working together, the employer and employee should determine whether it would enable performance of the job’s essential functions. Additionally, an employer need not provide telework as a reasonable accommodation if it is not necessitated by the disability or if another reasonable accommodation can be provided that will effectively meet an employee’s limitations.

Use of Mitigating Measures

The sample policy states, “if an employee can control an impairment with medication or assistive devices and thereby perform essential job duties, no reasonable accommodation would normally be needed or reasonable.” However, people with many types of disabilities and who use many different kinds of mitigating measures still may require reasonable accommodation because the mitigating measure either does not eliminate all disability-related limitations or because it imposes limitations. For example, someone with a prosthetic arm may require a device to assist with lifting, and someone with diabetes may need more frequent breaks to monitor blood glucose and insulin levels.

Our second concern is that this sentence can be read to mean that if an employee currently does not use medication or another mitigating measure, but an employer believes the employee could benefit from one, the employer may not have to provide a reasonable accommodation. The Sample Request for Accommodation Form, which asks the requestor to “list the medication and/or devices that you use or that have been recommended for you to use” (emphasis added), reinforces our reading of the language in the policy. A similar set of questions in the Health Care Provider Form asks a doctor if there are medications or assistive devices that could mitigate the effects of the impairment. If there are and the doctor has not prescribed them, the doctor is asked to explain why.

The effectiveness of medications and other mitigating measures can vary widely. The use of a particular medication or other mitigating measure may eliminate one employee’s need for a reasonable accommodation, but not another’s. Moreover, the choice of whether to use a mitigating measure is the individual’s, and an employer cannot base a denial of a reasonable accommodation on its belief that the individual ought to be using a particular mitigating measure instead.6

Request for Accommodation Questionnaire

Requirement that Employee Requesting Accommodation Be Substantially Limited in Performing Essential Functions

This form begins by stating that the employer is committed to accommodating the needs of any qualified individual who has a physical or mental impairment “which substantially limits his or her ability to perform the essential duties of the job.” However, an individual does not have to be substantially limited in the major life activity of working (there is no major life activity of performing essential functions) to have a disability under the ADA, and an employee who is substantially limited in a major life activity other than working (which will usually be the case) need not demonstrate that any work-related limitation necessitating a reasonable accommodation is “substantial.”7

Questions that Ask for More Information than Permitted by the ADA

The form asks questions that, in many situations, will violate the ADA if asked routinely of all employees requesting reasonable accommodation. Although, as the EEOC has noted, employers are permitted as part of the interactive process to ask disability-related questions if they are necessary to establish that the person has a disability and/or needs a reasonable accommodation, this does not entitle the employer to obtain any medical information it wants.8

First, if a disability is obvious (e.g., blindness, deafness, missing limb), an employer may not ask questions to establish if the person’s impairment is a disability.9 Even when the disability or need for accommodation is not obvious, the ADA prohibits employers from asking disability-related questions of employees unless they are job-related and consistent with business necessity.10 Employers may seek disability-related information as part of the interactive process as long as such information is necessary to establish that the person has a disability and/or needs a reasonable accommodation.11 The appropriate questions will differ in each situation depending on a number of considerations, including the individual’s impairment, the employer’s previous knowledge about the employee’s disability, and the type of reasonable accommodation requested. Therefore, requiring everyone who requests an accommodation to answer all of the questions on this form will violate the ADA in most, if not all, instances.

For example, we strongly disagree with the practice of routinely asking a person requesting reasonable accommodation to describe “your treatment plan in detail.” There may be situations in which an employer might be entitled to certain information about an employee’s treatment to determine whether a medical condition is a disability (such as information about use of a mitigating measure), or whether a person’s treatment is connected to the type of reasonable accommodation requested (most notably, where the employee has requested leave to obtain treatment). However, an employer cannot justify routinely asking individuals requesting a reasonable accommodation to divulge in detail their treatment plans. Similarly, although an employer may ask about the use of mitigating measures to determine an employee’s need for a reasonable accommodation, we disagree that employers may routinely ask individuals requesting reasonable accommodation what medication and/or devices “have been recommended for you to use.” Indeed, such a question will rarely, if ever, be permissible.

Questions that Require Employees to Address the Need for Accommodations They Have Not Requested

In addition to asking for medical information that may not be needed to evaluate a request for reasonable accommodation, the form focuses on certain types of reasonable accommodations, apparently requiring an individual to address the need for them, even if they are not the ones being requested. For example, there are questions asking whether (1) the requestor’s impairment requires leave or the need for adjustments to work schedules or (2) the impairment affects the ability to work a normal work schedule. There is no reason to ask these questions of someone who, for example, requests a modification of equipment or a sign language interpreter.

Focusing on Certain Accommodations to the Exclusion of Others

The form implies that the listed questions are the only ones that should be asked in response to a request for reasonable accommodation. However, the form does not ask questions that would be helpful in assessing requests for accommodations such as modification or purchase of equipment, a change in a workplace policy (other than leave and attendance policies), the ability to bring a service animal to work, or removal or substitution of a marginal function. Additionally, the form does not account for situations in which employees require accommodations for reasons other than to perform essential functions. The obligation to provide reasonable accommodation extends to employees seeking equal access to a benefit or privilege of employment, such as employer-provided training, as well as to applicants who require accommodation for some aspect of the hiring process.12 We are not suggesting that this form be lengthened to add more questions (we think it is already too long as an initial means of obtaining information related to a request for reasonable accommodation); rather we want to point out that the wide-ranging nature of reasonable accommodations undermines any attempt to draft a comprehensive form that asks all the right questions.

Questions that Are Confusing or Irrelevant

One question asks whether the impairment limits the person’s “ability to perform or engage in any activities outside of work[.]” If the question is an attempt to determine the major life activity that is substantially limited as a result of an impairment, it is poorly worded to elicit such information. If the question has nothing to do with determining whether the requestor has a disability, then the question would appear to be irrelevant.

A follow-up question implies that an inconsistency exists if a requester states that an impairment affects work-related activities but not non-work activities: “Explain why your non-work activities are not affected when the impairment will affect your work activities.” (emphasis in the original). However, it is quite possible that a disability will present work-related difficulties that do not affect an individual off the job.

Failure to Explain the Reason for Asking the Questions on the Form

Finally, we note that the sample form does not explain the need for asking any of these questions. Once an employer has carefully considered the necessity of asking certain questions as part of an interactive process, it should explain to the individual, either on the form or in person, the reason for asking each question, i.e., an employer should explain how a particular question provides information to establish the existence of a disability and/or a need for reasonable accommodation. Though not specifically required by the ADA, this can encourage the individual’s cooperation in providing information.

Health Care Provider Questionnaire

This sample questionnaire is 7 pages long and asks many of the same questions asked in the sample Request for Accommodation Form. The ADA prohibition on asking disability-related questions of an employee, except if they meet the “business necessity” test, extends to questions asked of an employee’s doctor.13 Consequently, we believe that a number of the questions on this form that also appear on the sample Request for Accommodation form discussed above would violate the ADA for reasons discussed in the previous section.

Also of concern is the wording of certain questions. They give a doctor limited choices in answering, apparently because the form seems to focus on a limited number of reasonable accommodations. For example, one question asks the doctor whether the employee is able to perform his job, including meeting normal attendance and overtime requirements. If the doctor answers no, then the doctor is instructed to check only one of the following three answers:

The Patient is not able to perform any job duties and needs a continuous leave of absence
The Patient is able to perform all job duties but needs a special work schedule
The Patient is able to perform some, but not all, job duties.
The questions do not take into account the possibility that the employee can perform all work functions but needs a reasonable accommodation other than a modified work schedule. Perhaps this sample form is intended to be used only for employees requesting leave or changes to their work schedules, but that is by no means clear.

The ambiguity of other questions raises concerns that a doctor’s answers could, incorrectly, lead an employer to fail to provide a reasonable accommodation or exclude a qualified individual with a disability from working. For example, one question asks the doctor to answer “yes” or “no” to the following: Will the Patient fully recover from the Health Condition at some date in the future so that the Patient can perform all job duties without restrictions?” It is not clear how the doctor should respond if, for example, the employee will never fully recover but may still be able to perform all job duties without restrictions.

More troubling is the fact that the sample form suggests to an employer that an employee who has been on leave because of a disability or who sustained an injury must ultimately be able to work without any restrictions. Employers cannot require that employees be fully recovered or able to work without restrictions if an employee could return to work with a reasonable accommodation (absent undue hardship).14

Conclusion

The wide range of disabilities, employers, jobs, workplaces, and reasonable accommodations makes it exceedingly difficult to develop a form with questions that almost everyone requesting accommodation would need to answer. Additionally, the longer the form, the higher the likelihood that many requestors (or their health care professionals) will be asked questions that violate the ADA and do not serve the employer’s interest in obtaining relevant information to make an informed decision about the request for reasonable accommodation.

If an employer uses forms to gather information about the need for a requested reasonable accommodation, it should ask, in plain English, the few questions that will help to determine whether the requestor has a disability and needs a reasonable accommodation. (If the disability is obvious, then an individual should be asked to answer only those questions on the form that address why a reasonable accommodation is needed.) Regarding the existence of a disability, for example, a form could ask information about the nature of the requestor’s impairment and its expected duration; the kind of activities, including major bodily functions, that the impairment affects; and the way in which the activities are affected.15 A form could also ask about the use of mitigating measures and the extent to which they eliminate or control the impact of the medical condition. It is helpful to give examples to explain terms that many people may not recognize as having specific legal meanings. So, a form that asks about an impairment’s effect on “major bodily functions” or other “major life activities,” could offer examples such as normal cell growth; endocrine, neurological, or brain function; standing; lifting; and concentrating. Similarly, a form could provide examples of mitigating measures such as medication, physical therapy, assistive devices, and behavioral modifications. Regarding the need for reasonable accommodation, a form could ask how an accommodation would assist the individual to apply for a job, perform the job’s essential functions, or enjoy equal access to the benefits and privileges of employment.

Employers should consider the purpose behind each question on a form, i.e., whether the answer will provide information concerning the existence of a disability, the need for a reasonable accommodation, or both. Any question that does not address at least one of these issues should be carefully reviewed to determine whether the information requested is necessary to enable the employer to determine the need for a reasonable accommodation, especially if it is a disability-related question. Employers also may wish to have an appropriate management official handling the request (e.g., an HR director) review the form before giving it to a particular applicant or employee to determine if certain questions should be eliminated as irrelevant to the particular request and/or whether other questions should be asked.

I hope this information is helpful. This letter does not represent an official opinion of the EEOC.

Sincerely,

/s/

Peggy R. Mastroianni
Legal Counsel

Footnote

1 We note that the introduction to the sample forms does encourage an employer to seek legal advice from its counsel when faced with “particular fact situations.”

2 Example 34 in EEOC’s Q&A on “The Americans with Disabilities Act: Applying Performance and Conduct Standards to Employees with Disabilities, http://www.eeoc.gov/facts/performance-conduct.html, addresses a similar situation. This section also provides examples where an individualized assessment of the facts supports an undue hardship determination. The discussion also notes the impact of the Family and Medical Leave Act when an employee requests intermittent leave, something the sample policy does not acknowledge in suggesting that intermittent leave may generally be denied.

3 The sample policy states that “not all possible accommodations are reasonable” and this includes “excessive absenteeism.” The EEOC regards the length of leave as an issue of undue hardship. See Question 44 in EEOC Enforcement Guidance: Reasonable Accommodation and Undue Hardship Under the ADA, http://www.eeoc.gov/policy/docs/accommodation.html [hereinafter “EEOC Accommodation Guidance]. Therefore, we believe that it would be better to explain that denial of excessive leave will be based on the undue hardship factors, which include the impact on the employer’s operations resulting from leave already used and any additional leave requested.

4 See, e.g., Mobley v. Allstate Ins. Co., 531 F.3d 539 (7th Cir. 2008).

5 See Question 34 in EEOC Accommodation Guidance, supra note 3; see also EEOC Fact Sheet, “Work at Home/Telework as a Reasonable Accommodation,” http://www.eeoc.gov/facts/telework.html.

6 See Question 38 in EEOC Accommodation Guidance, supra note 3. As the answer to Question 38 points out, the decision to forgo use of medication, treatment, or an assistive device (or any other mitigating measure) may render an individual not qualified. See also 29 C.F.R. pt. 1630 app. § 1630.2(j)(1)(vi).

7 See 29 C.F.R. pt. 1630 app. § 1630.2(j) (discussion of “Substantially Limited in Working”).

8 See Questions 6 and 8 in EEOC Accommodation Guidance, supra note 3.

9 See Question 6 in EEOC Accommodation Guidance, supra note 3.

10 See “General Principles” section in EEOC Enforcement Guidance on Disability-Related Inquiries and Medical Examinations of Employees Under the Americans with Disabilities Act, http://www.eeoc.gov/policy/docs/guidance-inquiries.html [hereinafter EEOC Inquiries Guidance].

11 See Question 7 in EEOC Inquiries Guidance, supra note 10.

12 See Questions 12-13 and section on “Reasonable Accommodation Related to the Benefits and Privileges of Employment” in EEOC Accommodation Guidance, supra note 3.

13 See Question 1 in EEOC Inquiries Guidance, supra note 10.

14 Cf. Question 13 in the EEOC Enforcement Guidance: Workers’ Compensation and the ADA, http://www.eeoc.gov/policy/docs/workcomp.html.

15 The ADA Amendments Act of 2008 (ADAAA) made it much easier for individuals claiming rights under the ADA to show that they have covered disabilities. For example, certain impairments will easily be found to be disabilities, including diabetes, post-traumatic stress disorder, and epilepsy. See 29 C.F.R. § 1630.2(j)(3)(iii) and 29 C.F.R. pt. 1630 app. § 1630.2(j)(3). Information substantiating that an individual has one of these types of impairments should be sufficient to establish that the individual has a covered disability. As a result of the ADAAA, most of the focus of the reasonable accommodation process, and the forms used to gather information as part of that process, should be on whether an accommodation is needed, and if so, what type, rather than on whether an individual has a covered disability.

Comments from Christine Sensenig of the Sensenig Law Firm:

One size fits all does not apply to the ADA, or the ADAA.  Employers must consider each request for a reasonable accommodation on a case-by-case basis.  Employers must also consider the actual impact on the organization as a result of the employee’s request for accommodation.  While a very small employer may not be able to accommodate an employee’s request for major changes in his or her work schedule, larger employers will not have the same restrictions.  Using forms provides consistency for an employer, but that form must be tailored each and every time to apply to the unique situation at hand.  The key phrase to use is “how can we help you?” when addressing disability related issues.

The above is not legal advice and there is no attorney client relationship created between the author of this post and the reader.

 

 

EEOC to host meeting about social media on March 12, 2014 – this should be lively!

March 11, 2014 at 7:52 pm | Posted in EEOC, Employee, Employer, Employment Law, Facebook, New employment laws/amendments, Social Media/Social Networking | Leave a comment
Tags: ,

PRESS RELEASE DIRECTLY FROM THE EEOC’S WEBSITE

3-5-14

Next EEOC Commission Meeting on March 12

WASHINGTON — The U.S. Equal Employment Opportunity Commission (EEOC) will hold a meeting on Wed., March 12, at 9:30 a.m. (Eastern Time), at agency headquarters, 131 M Street, N.E., Washington, D.C. 20507. In accordance with the Sunshine Act, the open session of the meeting will be open to public observation of the Commission’s deliberations.

The Commission will hear from invited panelists on how the use of social media in the workplace is impacting the enforcement of equal employment opportunity laws. Participants will address a range of issues, including recruitment and hiring, harassment, and records retention and discovery. The Commission is scheduled to hear from the following confirmed panelists during the meeting (in order of appearance):

  • Carol Miaskoff, Acting Associate Legal Counsel, EEOC, Office of Legal Counsel
  • Rita Kittle, Senior Trial Attorney, EEOC Denver Field Office (via video teleconference)
  • Lynne Bernabei, Partner, Bernabei & Wachtel PLLC
  • Renee Jackson, Associate, Nixon Peabody LLP
  • Jonathan Segal, Partner, Duane Morris LLP; Managing Principal, Duane Morris Institute, testifying on behalf of the Society for Human Resource Management

Seating is limited, and the EEOC encourages visitors to arrive 30 minutes before the meeting in order to be processed through security and escorted to the meeting room. Visitors should bring a government-issued photo identification card to facilitate entry into the building.

The Commission meeting agenda is subject to revision. Additional information about the meeting, when available, will be posted at http://www.eeoc.gov/eeoc/meetings/index.cfm.

As part of the EEOC’s commitment to cut costs whenever possible, every effort is being made to utilize local resources and technology to facilitate testimony. The agency will continue to fulfill its mission to stop and remedy employment discrimination by balancing the need to provide service to the public with fiscal responsibility.

The EEOC enforces federal laws prohibiting employment discrimination. Further information about the EEOC is available on its web site at www.eeoc.gov.

Create a free website or blog at WordPress.com.
Entries and comments feeds.