EEOC Files First Lawsuits Alleging Sexual Orientation Discrimination Under Title VII
March 7, 2016
New York Labor and Employment Law Report
March 7, 2016
February 22, 2016
January 22, 2016
December 23, 2015
October 29, 2015
October 14, 2015
In prior blog articles, we've sought wisdom from Sun Tzu, an audit of Santa's Workshop, a theoretical application of the faithless servant doctrine to A-Rod, and Pooh Corner for some Zen advice on day-to-day employment matters. Our next stop on the Employment Law Express is a seasonal walk through the Pumpkin Patch with the Peanuts gang. As only he could, Linus explained the criteria for a visit from the Great Pumpkin: Each year, the Great Pumpkin rises out of the pumpkin patch that he thinks is the most sincere. He's gotta pick this one. . . . You can look all around and there's not a sign of hypocrisy. Alas, like other astute philosophers of historical significance, Linus is likely keenly aware that the importance of sincerity is not limited to the pumpkin patch, but has broad application, even reaching into the black box of the jury room in an employment discrimination case. For those plaintiffs hoping for a bag of treats from the Great Pumpkin (in the form of cash), they need to be mindful for signs of hypocrisy -- a lesson painfully learned by the plaintiff in Housley v. Spirit Aerosystems, Inc., which was just recently decided by the Tenth Circuit Court of Appeals on October 9, 2015. The plaintiff was a Boeing employee who was not hired by Spirit Aerosystems when Spirit acquired the facilities where she worked. She sued for age discrimination, hoping to lure a bounty of treats from the proverbial Great Pumpkin (a federal jury, to be precise), in part by relying on secretly recorded conversations with her supervisors during which she was asked if she was old enough to retire. On the surface, the plaintiff had found a perfect patch from which to receive her treats (i.e., "He's gotta pick this one" -- just listen to the tape). But, was the patch sincere and free of hypocrisy? The jury thought not, and rendered a verdict in favor of Spirit. During the trial, Spirit exposed the plaintiff's hypocrisy by using the fact that she had secretly recorded conversations with her supervisors as after-acquired evidence of wrongdoing that negated any alleged damages. On appeal, the Tenth Circuit refused to find that the lower court committed any reversible error in allowing Spirit to use the recordings for this purpose. In sage, Linusesque prose, the Court reasoned: "The recordings in this case turned out to be a double-edged sword. Housley wanted the jury to know about them for obvious reasons and considering her active promotion of their admission she is not now in a position to complain about getting what she wanted. Spirit turned the tables on her by promoting their use for a different, albeit limited, purpose -- after-acquired evidence of wrongdoing. In the end Housley was obliged to take the bitter with the sweet." Halloween, like a suit for employment discrimination, is goal-oriented -- a pursuit in reaching for "the sweet." Sometimes this goal seems easily obtainable, as noted by the Peanuts characters: Lucy: All you have to do is walk up to a house, ring the doorbell, and say "tricks or treats." Sally: Are you sure it's legal? Yes, in many jurisdictions (including New York), secretly recording a supervisor in a conversation to which the employee is a party is just as legal as knocking on a door and asking for candy. And, on the surface, the recording (depending on its content) should result in the receipt of treats with no more effort than knocking on a door. But not everyone gets a treat. Tricksters may find themselves walking away with nothing but a bag of rocks. So, the lesson for this Halloween season is that employers defending against employment discrimination claims, like Spirit, should always be on the lookout for a smoking gun that, on closer inspection, is nothing more than a Halloween prop ready to backfire if just given enough room to do so.
July 29, 2015
June 1, 2015
On June 1, the Supreme Court issued an 8-1 decision in EEOC v. Abercrombie & Fitch Stores, Inc., holding that Title VII of the Civil Rights Act prohibits a prospective employer from refusing to hire an applicant in order to avoid accommodating a religious practice that it could accommodate without undue hardship, even if the applicant has not actually informed the prospective employer of the need for a religious accommodation. The Supreme Court reversed the decision of the Tenth Circuit Court of Appeals granting summary judgment in favor of Abercrombie, and remanded the case back to the Tenth Circuit for further consideration. The Facts In reviewing the Tenth Circuit's decision granting summary judgment to Abercrombie, the Supreme Court considered the facts in the light most favorable to the EEOC. The Supreme Court summarized those facts as follows. At the time this case arose in 2008, Abercrombie had a Look Policy that governed its employees' clothing and appearance while at work. The Look Policy prohibited employees from wearing "caps," but did not define the term "caps." An applicant named Samantha Elauf applied for a position in an Abercrombie store, and wore a headscarf to her interview with the store's assistant manager. During the interview, Elauf did not comment on (and the assistant manager did not ask any questions about) the headscarf or the reasons why she wore the headscarf. The assistant manager gave Elauf a rating after the interview that qualified her to be hired, but the assistant manager was concerned that Elauf's headscarf would conflict with the store's Look Policy. The assistant manager sought clarification from the district manager regarding whether the headscarf would be considered a "cap" that was prohibited by the Look Policy. In making the inquiry to the district manager, the assistant manager stated that she believed Elauf wore the headscarf for religious reasons. The district manager told the assistant manager that the headscarf would violate the Look Policy and directed the assistant manager not to hire Elauf. Although Abercrombie did not know this for sure at the time it made the decision, Elauf was a practicing Muslim who wore the headscarf for religious reasons. Elauf filed a discrimination charge with the EEOC, and the EEOC filed a lawsuit against Abercrombie on Elauf's behalf, alleging that Abercrombie's decision not to hire Elauf violated Title VII. The Lower Court Decisions The District Court granted summary judgment to the EEOC on the issue of liability, and awarded $20,000 to Elauf after a trial on damages. On appeal, the Tenth Circuit reversed the District Court and granted summary judgment to Abercrombie. The Tenth Circuit reasoned that Abercrombie could not be liable under Title VII for failing to accommodate Elauf's religious practice unless Elauf provided Abercrombie with actual knowledge of her need for a religious accommodation. Because it was undisputed that Elauf did not make any request for a religious accommodation, the Tenth Circuit found that Abercrombie did not violate Title VII. The Supreme Court's Decision The Supreme Court disagreed with the Tenth Circuit's holding that an employer must have actual knowledge of an applicant's need for a religious accommodation in order to establish that the employer violated Title VII by refusing to hire an applicant in order to avoid making a religious accommodation. The Supreme Court held that an applicant need only demonstrate that his or her need for a religious accommodation was a motivating factor in the employer's decision. The Supreme Court explained the difference between motive and knowledge as follows: "An employer who has actual knowledge of the need for an accommodation does not violate Title VII by refusing to hire an applicant if avoiding that accommodation is not his motive. Conversely, an employer who acts with the motive of avoiding accommodation may violate Title VII even if he has no more than an unsubstantiated suspicion that accommodation would be needed." Considering the facts in the light most favorable to the EEOC and Elauf, the Supreme Court concluded that the Tenth Circuit's decision should be reversed because Abercrombie's assistant manager at least suspected that Elauf wore the headscarf for religious reasons, and Abercrombie's district manager directed that Elauf not be hired because the headscarf violated the Look Policy. On remand, the lower courts will need to determine whether there are genuine disputes regarding these material facts and whether a trial will be necessary on these issues. What Can Employers Do to Minimize the Risk of Religious Discrimination Claims in the Hiring Process? Many employers delegate responsibility for hiring new employees to managers without providing adequate guidance or training regarding how to carry out that important responsibility. All personnel who have responsibility for interviewing and making hiring decisions should be trained regularly regarding compliance with anti-discrimination laws and employer policies. The training should include, at a minimum, a review of lawful vs. unlawful pre-employment inquiries, a review of what information may and may not be considered as part of the hiring process, and the employer's obligations to make accommodations for religious observances or practices if the accommodations can be provided without undue hardship. If the hiring manager believes that an applicant's clothing or appearance during the interview might conflict with the employer's dress code, the hiring manager should still refrain from making any inquiries about whether the applicant's clothing or appearance is for religious reasons. If the hiring manager feels that the applicant is a good candidate for the position in all other respects and is seriously considering extending an offer to the applicant, one way to address the potential dress code concern would be to show the applicant a copy of the employer's dress code and ask the applicant whether he or she can comply with the dress code, either with or without an accommodation. If the applicant states that an accommodation would be needed, the employer can begin the process of determining whether the requested accommodation can be provided without undue hardship. However, if the hiring manager has other legitimate, non-discriminatory reasons for rejecting an applicant that have nothing to do with concerns about the applicant's ability to comply with the employer's dress code or potential religious accommodations, the hiring manager should not make any inquiries during the interview regarding the applicant's ability to comply with the dress code. Finally, as in all other aspects of employment law, documentation is critical. All hiring managers should be directed to take and maintain detailed notes of their interviews with job applicants and to document the legitimate, non-discriminatory reasons for hiring one candidate over another. If a religious accommodation is requested by an applicant, the employer should keep documentation of the request, any information provided by the applicant regarding the religious practice for which an accommodation is requested, and the decision regarding whether or not the requested accommodation can be provided without undue hardship.
April 6, 2015
December 31, 2014
December 2, 2014
November 11, 2014
With that first real chill in the air, the holiday season is suddenly upon us. For parents, it is a time to relive our childhood, watching with our children all of those holiday specials ranging from It's the Great Pumpkin, Charlie Brown to Santa Claus is Comin' to Town. Unfortunately, for members of our misfit profession, “tis the season” is not so much about being jolly, but more about defending lawsuits. And speaking of lawsuits, a daily perusal of employment law blogs and periodicals reveals that there is no shortage of new and innovative ways to sue an employer. The seemingly endless tide of profligate litigation makes me shiver like Linus in the Pumpkin Patch about what would happen if the Department of Labor, the EEOC, or the plaintiff’s bar set its sights on Santa and his manufacturing plant in the North Pole. For this reason, I offer the following guidance to Mr. Kringle d/b/a Santa on how to clean up some glaring employment law violations. (Disclaimer: Our guidance to Mr. Kringle is not intended to be legal advice nor should it be a substitute for him retaining local counsel familiar with the laws in his local jurisdiction. I would also include the obligatory tax advice disclaimer, but I believe Mr. Kringle is tax-exempt.) I will discuss individual lawsuits below. However, my main concern in terms of liability is in the arena of the class action. I say this with all due love and affection, “Mr. Kringle, your workshop is a treasure-trove of wage and hour violations.” The elves work, quite obviously, more than 40 hours a week. They work through meal periods and weekends and holidays. Where is their overtime pay? While efficiently furnished, I don’t see any punch clock for your employees. Can we say liquidated damages and attorneys’ fees? Your workplace is also quite literally an accident waiting to happen. The elves have no protective equipment. There is an Abominable Snowman on the shop floor. Can we all say, “OSHA”? Mr. Kringle, despite your big heart, your workplace is rife with harassment and discrimination. For example, there is Rudolph’s red nose and the universally known harassment and bullying to which he has been subjected (“used to laugh and call him names”). The un-remedied mocking of Rudolph makes for a great holiday gift for the plaintiff’s lawyer who signs up Rudolph and his “slam dunk” suit. (We make no representations as to whether any plaintiffs-side lawyers are on the "Nice List" and worthy of such a gift). I think it is imperative that all of your reindeer immediately receive anti-harassment training. So too with poor Hermey. The Seinfeldesque “Anti-Dentite” environment that you have condoned is ripe for litigation and is otherwise an insult to dentists world-wide. That leads us to our Faragher defenses. Are your EEO policies translated into “Elfish” and properly distributed with a clear record of same? Of additional concern, have you taken care to make sure that the post-toy delivery workplace celebration does not cross the proverbial “line” of appropriateness and result in more than just hangovers at the workshop the next day? Finally, we need a word about the Island of Misfit Toys. Notwithstanding that the public may want all lawyers permanently deposited in this desolate place, it is nonetheless illegal to segregate your workforce on the basis of such protected characteristics as being a cowboy who rides an ostrich. And, who among us wouldn’t want to ride an ostrich? Of course, Mr. Kringle is not the only one staring down the barrel at punitive damages. Yes, I’m talking to you, Mr. Burgermeister Meisterburger. Making toys is plainly a recreational activity under state labor laws and interfering with concerted activity in this regard will get you an unfriendly knock on the door from the NLRB. So, to our clients and blog subscribers, I wish you all a joyous holiday season in front of a warm fire surrounded by friends and family, without any visions of EEOC complaints or Department of Labor audits dancing in your heads.