discrimination – Page 10

October 2, 2018June 29, 2023

‘I’m Going to Need Every Saturday Off; Is That Gonna Be a Problem?’

Darrell Patterson had worked in Walgreens’ 24/7 call center for six years without incident.

He claims Walgreens fired him for skipping an emergency training session held on a Saturday.

He’s a Seventh-day Adventist, and it’s against his religion to work on the Sabbath (from sundown Friday through sundown Saturday). Until his firing, they had worked cooperatively to schedule around this religious prohibitions, without incident.

Patterson’s religion and Walgreens’ scheduling came to a head in 2011, however, when Walgreens asked Patterson to cover an emergency Saturday training session. When he missed the training class, Walgreens fired him.

In Patterson v. Walgreens, the 11th Circuit Court of Appeals upheld the dismissal of Patterson’s religious discrimination lawsuit.

Title VII requires an employer to reasonably accommodate an employee whose sincerely held religious belief, practice, or observance conflicts with a work requirement, unless doing so would pose an undue hardship. An accommodation poses an undue hardship if it causes more than de minimis cost on the operation of the employer’s business.

In Patterson, the 11th Circuit held in Walgreens’ favor because it had tried to reasonably accommodate Patterson’s religion.

Walgreens shifted the regular training schedule to Sunday through Thursday for Patterson. That minimized conflicts. For unusual training sessions that were conducted on his Sabbath, Walgreens allowed Patterson to find other employees to cover his shifts, and he did so on several occasions. Patterson conceded that his supervisor had never refused one of his requests to swap a Sabbath shift with a willing employee.

Regarding the Saturday, August 20, 2011, emergency training session that Patterson was assigned to conduct, besides his supervisor, he called only one employee, who advised him that she could not cover for him because of her childcare obligations. Although Patterson thought that several other employees could have covered the training session for him, he did not attempt to contact any of them.

Walgreens met its obligations under Title VII by allowing Patterson to arrange a schedule swap with other employees when they were willing to do so.

What is the lesson for employers? A documented history of accommodating an employee (whether it’s religion or disability) will go a long way to defeating that employee’s discrimination claim if you are compelled to deny an accommodation request.

Jon Hyman is a partner at Meyers, Roman, Friedberg & Lewis in Cleveland. Comment below or email editors@workforce.com. Follow Hyman’s blog at Workforce.com/PracticalEmployer.

September 17, 2018June 29, 2023

Sexual Harassment Allegations Unjustifiably Ruin People’s Lives Only if They Are False

On Sunday, The Washington Post published Christine Blasey Ford’s decades old allegations of sexual abuse she claims to have suffered at the hand of Judge Brett Kavanaugh, Supreme Court nominee. You can read the full letter here.

Let’s be clear. All we have right now are allegations of misconduct, buried for decades. But now, those allegations are public. They are serious. And they must be taken seriously.

And they also have the potential to ruin Judge Kavanaugh’s life.

If he did what Ms. Ford accuses him of doing, I have zero sympathy for how this impacts his Supreme Court nomination. We are not only giving someone a job for life, we are giving someone a job for life who will rule on issues that go to the core of women’s rights: abortion, equal pay, and discrimination, to name a few.

How he treats, or has treated, women is germane to this process. As is whether he sexually assaulted someone while in high school.

A week ago, I would have told you that Judge Kavanaugh deserved to be confirmed. I do not agree with many of his positions on issues, but that should not disqualify anyone from Supreme Court service. If it did, no one would ever get confirmed. Donald Trump won the White House, and to his victory goes the spoils of judicial nominations. The remedy is not the imposition of an ideological litmus test to court appointees, but to vote.

Now, however, I am not sure. If these allegations are true, he should not serve, period. If they are unfounded, then he should serve, period.

The issue of whether Kavanaugh did it, or didn’t do it, is critical. More importantly, as President Trump suggested when discussing the issue of allegations of harassment, Judge Kavanaugh deserves due process. Luckily for him, there exists a body, already convened, equipped to provide it — the Senate Judiciary Committee.

Anything other than a full and fair hearing of these allegations will cause Judge Kavanaugh to be judged in the court of public opinion. Isn’t that what we are trying to avoid “for someone falsely accused?”

Anyone accused of harassment deserves to have the allegations vetted. As an employee, your employer should fully and fairly investigate, and, if it determines the allegations to be false, it should fire the accuser, period.

To do anything other than to pause this confirmation to determine just how much fire lurks behind Ms. Ford’s smoke, to provide Judge Kavanaugh the due process to which he is entitled, is reckless and dangerous. The American people, the rights of whom Judge Kavanaugh will vote for decades and impact for decades more, deserve this much.

Jon Hyman is a partner at Meyers, Roman, Friedberg & Lewis in Cleveland. Comment below or email editors@workforce.com. Follow Hyman’s blog at Workforce.com/PracticalEmployer.

September 4, 2018September 4, 2018

Training Won’t Fix Stupid in a Hostile Work Environment

A fast-food restaurant fired a recently hired employee after its manager learned she was pregnant.

How do we know this was the manager’s reason for the termination? Because he texted it to the employee (which she later posted on Facebook).

Hello, I’m sorry to inform you but it’s not going to workout with Jersey Mikes. It’s not a good time for us to have someone who is leaving for maternity leave in several months anyways. You also failed to tell me this during our interview. Good luck to [sic]

According to KIRO, the franchise owner offered the employee her job back (she refused), and the offending manager has since resigned.

A spokesperson a Jersey Mike’s corporate told Inc. that this termination “does not reflect our history or values,” and that “additional training is being provided.”

Excuse me, but how will training help ignorant managers avoid discrimination or mend a hostile work environment? Sex discrimination has been illegal since 1964, and pregnancy discrimination expressly since 1978. If a manager does not know that you can’t fire a woman because she’s pregnant, no amount of training in the world is going to help that manager not discriminate.

“We are going to institute more training” is the stock corporate answer to any workplace discrimination crisis. Don’t get me wrong, training is important and necessary. But training would not have resulted in this employee keeping her job. Lack of training of the manager was not the failing here. The failing was that the employee did not have a clear path to complain, other than taking her grievance pubic via Facebook.

Manager training may stop some discrimination, but it’s not a magic pill. Instead, train your employees on how to complain if they feel they are victims of discrimination, and train yourself to be open and receptive to such complaints, to fully investigate them, and to take appropriate corrective action. That’s how we root out discrimination.

Jon Hyman is a partner at Meyers, Roman, Friedberg & Lewis in Cleveland. Comment below or email editors@workforce.com. Follow Hyman’s blog at Workforce.com/PracticalEmployer.

July 9, 2018June 29, 2023

No, You Can’t Require Your Employee to Work During an FMLA Leave

Let’s examine a question I receive all too often — can an employer require an employee to work during an FMLA leave?

So as not to bury the lede, the answer is pretty strong no.

To examine this issue, let’s take a look at Lay v. Louisville-Jefferson Cnty. Metro Gov’t (W.D. Ky. 5/29/18).

Justin Lay, a packer in the Solid Waste Management Division of the Louisville-Jefferson County Metro Government, applied for, and won, a promotion to an equipment operator. The new position required Lay to hold a commercial driver’s license, which the collective bargaining agreement provided three months to obtain.

During that three-months period, however, Lay suffered a broken leg in an off-duty accident. As a result, he took an FMLA leave. During that leave, however, the employer terminated his employment because he had failed to obtain his CDL as required by the position.

Lay sued, claiming that his termination — specifically, the expectation and requirement that he obtain his CDL while out on an FMLA leave — violated his rights under the FMLA.

The court agreed that “requiring an employee to work while on leave from work is the definition of interference with an employee’s FMLA rights,” and that requiring an employee to complete the requirements for a CDL and take the driver’s test while on FMLA leave constituted this mandatory work. It concluded that a jury should determine whether the employer violated Lay’s FMLA rights and set the case for trial.

What can employers learn from this case? If an employee is out on FMLA leave, leave the employee alone.

There is a distinction to be made between “fielding occasional calls about one’s job while on leave [as] a professional courtesy” (which a New York federal court, in Reilly v. Revlon, concluded was not an FMLA violation), and requiring one “to continue to perform work-related tasks while ostensibly on medical leave” (such as providing updates on accounts and pending sales, which the 6th Circuit, in Arban v. West Publishing, concluded was an FMLA violation).

Generally, speaking, however, anything more than routine questions that can be fielded in a quick phone call or email will likely constitute a violation of your employee’s FMLA rights.

Make sure your managers, supervisors, and the co-workers left behind know and understand that an employee out on FMLA is not to be working. Otherwise, you just might be buying yourself an FMLA lawsuit.

November 29, 2016June 29, 2023

‘Perceived’ National Origin Discrimination May not be Illegal, but …

Lost in the maelstrom of the

The guidance, which replaces the EEOC’s older 2002 guidance and covers topic such as citizenship, language issues and English-only policies, and harassment, is recommended reading for all employers, as are the EEOC’s companion Q&A and small business fact sheet.

Let me point out, however, one area of contention—the issue of “perceived” national origin discrimination.

According to the EEOC, “National origin discrimination means discrimination because an individual (or his or her ancestors) is from a certain place or has the physical, cultural, or linguistic characteristics of a particular national origin group,” and “Title VII prohibits employer actions that have the purpose or effect of discriminating against persons because of their real or perceived national origin.”

The federal courts, however, have a different view.

Consider, for example, Longoria v. Autoneum N. Am. (N.D. Ohio 9/13/16), which concerned whether one of American dissent could pursue a Title VII national origin discrimination claim based on his employer’s perception that he was Mexican. The court said no:

Longoria cites no Ohio case law that has validated, or even discussed, this theory of liability. Because Ohio courts generally took to Title VII cases when applying O.R.C. § 4112.02, I conclude that the Ohio courts would not recognize a perceived-national-origin discrimination claim, given its widespread failure in the federal district courts.

Also consider Burrage v. FedEx Freight, Inc. (N.D. Ohio 3/29/12) (about which I’ve previously blogged), which makes it clear that Title VII does not protect one from discrimination based on perceived characteristics, only actual characteristics.

Thus, if an employee sues you based on claim of perceived national origin discrimination, it is highly likely that I will be able to win that case (EEOC guidance notwithstanding).

Legal or illegal, however, the issue of perceived inclusion in a protected class raises a deeper issue. What kind of employer do you want to be? Do you really want to be the employer who condones calling a Mexican employee a wetback, yet wins in court because she’s really American? Or, the employer who win the lawsuit brought by your Indian-American employee who was repeatedly called “ISIS”?

Racism and xenophobia are still racism and xenophobia, and legal technicalities do not justify them having place in your workplace, period.

Jon Hyman is a partner at Meyers, Roman, Friedberg & Lewis in Cleveland. Comment below or email editors@workforce.com. Follow Hyman’s blog at Workforce.com/PracticalEmployer.

October 20, 2016June 29, 2023

Is Recruiting Via Social Media Discriminatory?

Yesterday, I noted that the EEOC is examining the impact of big data on how employers reach employment decisions.

Looking at an issue and doing something about it, however, are two entirely different animals. I wonder what business the EEOC has looking at this issue at all. The EEOC’s mission is to eliminate discrimination from the workplace. Certainly, there is no claim that neutral data points intentionally or invidiously discriminate based on protected classes.

In that case, the only purpose the EEOC could hope to serve by looking at the impact of big data on employment practices is to determine whether its use disparately impacts a protected group.

“What is disparate impact,” you ask? A disparate impact claim involves an employment practice that is neutral on its face, but, as applied and to a statistical significance, it falls more harshly on one group over another. It has significant implications in race and sex discriminate claims. One federal appellate court recently and notably, however, called into question its application in age claims.

Unless big data has a disparate impact, the EEOC has no business examining this issue. So, what says the data? For purposes of this post, consider the use of social media as a recruiting tool. If an employer is relying primarily on LinkedIn to source and recruit candidates, does its use disparately impact one race or sex over another?

According to the most recently available data (c/o the Pew Research Center), the answer is no.

If men vs. women, or whites vs. blacks, or whites vs. Hispanics, are using LinkedIn in similar percentages, then, based on the data, it will be difficult to make a disparate impact claim on this big-data issue. Granted, the EEOC examined issues much more broadly than just social recruiting, but at least on this issue, and at least according to the available actual data, it looks like employer should be free to use LinkedIn to source candidates without fear of a discrimination claim.

Kudos to the EEOC for thinking outside of the box in trying to discover new paths of discrimination to address. I wonder, however, if when the EEOC gets around to opening that box, instead of finding Pandora’s evils, it will find a whole bunch of nothing.

Jon Hyman is a partner at Meyers, Roman, Friedberg & Lewis in Cleveland. To comment, email editors@workforce.com. Follow Hyman’s blog at Workforce.com/PracticalEmployer.

July 18, 2016June 29, 2023

Court OKs Using Employee’s Own Facebook Posts in Race-Bias Case

I read with interest a post on Eric Meyer’s Employer Handbook Blog, titled Court says employee’s Facebook page on race stereotypes is fair game at trial. The post discusses a recent federal court decision which permitted an employer to impeach at trial a race-discrimination plaintiff with her own racial Facebook posts.

No doubt that some of the comments on plaintiff’s Facebook page are prejudicial to her case. Indeed, some of plaintiff’s comments on her Facebook actually support the claims she asserts in this case and plaintiff has used these posts to substantiate her claims. … It also relates to whether plaintiff was offended by such conduct at work and whether this conduct forced her to resign since she herself participated in comments containing racial stereotypes and jokes on her Facebook page which were, in part, insensitive and demeaning. …

[T]here is evidence in this case that at times plaintiff initiated and engaged in racial jokes and comments while at work with co-workers. … [T]he comments made by plaintiff and the comments liked by her on her Facebook page can be used by the Hospital to challenge her credibility at trial. As mentioned, the credibility of the witnesses is for the jury to weigh. This evidence is also relevant to whether plaintiff truly found the comments made by co-workers as offensive and unwelcomed.

Here’s my question. How is this different than impeaching a sexual-harassment plaintiff with her provocative clothing, or personal pornography habit? Just because one finds some sexual or racist content unoffensive doesn’t mean that one welcomes all such content, especially at work.

Food for thought, and another reason why employees need to be extraordinarily careful with what they share via social media.

Jon Hyman is a partner at Meyers, Roman, Friedberg & Lewis in Cleveland. To comment, email editors@workforce.com. Follow Hyman’s blog at Workforce.com/PracticalEmployer.

April 25, 2012June 29, 2023

EEOC Pronounces Protections for Transgendered Workers

Title VII does not, on its face, protect transgendered workers from discrimination.

Increasingly, however, courts have extended its protections under the umbrella of Title VII’s protections against sex-stereotyping-as-gender-discrimination, as first explained 23 years ago by the U.S. Supreme Court in its landmark Price Waterhouse v. Hopkins decision:

“In saying that gender played a motivating part in an employment decision, we mean that, if we asked the employer at the moment of the decision what its reasons were and if we received a truthful response, one of those reasons would be that the applicant or employee was a woman. In the specific context of sex stereotyping, an employer who acts on the basis of a belief that a woman cannot be aggressive, or that she must not be, has acted on the basis of gender.”

Earlier this week, the EEOC made what might be the most significant pronouncement to date on the issue of the protection of the transgendered as gender discrimination. Macy v. Holder [pdf] involved a transgender woman, Mia Macy, who claimed that the federal Bureau of Alcohol, Tobacco, Firearms denied her a job after she announced she was transitioning from male to female.

In reinstating Macy’s Title VII claim, the EEOC concluded:

“That Title VII’s prohibition on sex discrimination proscribes gender discrimination, and not just discrimination on the basis of biological sex, is important…. Title VII prohibits discrimination based on sex whether motivated by hostility by a desire to protect people or a certain gender, by assumptions that disadvantage men, by gender stereotypes, or by the desire to accommodate other people’s prejudices or discomfort. …

Thus, we conclude that intentional discrimination against a transgender individual because that person is transgender is, by definition, discrimination “based on … sex,” and such discrimination therefore violates Title VII.”

While this opinion is not binding on courts, one cannot overstate the significance of the fact that the agency responsible for enforcing the federal EEO laws has made this broad pronouncement. Many employers operate under the belief that they are free to discriminate on the basis of sexual orientation or gender identity because Title VII lacks no facial prohibition. As this case illustrates, that belief, no matter how commonly held, might be mistaken.

The EEOC and I disagree on a lot. (See criminal background checks as hiring criteria). Yet, on this issue, we are on the same page. It strikes me as appalling that in 2012 there are still minority groups against whom it remains facially legal to discriminate.

Already, 21 states prohibit sexual orientation discrimination in employment, 16 of which also prohibit gender identity discrimination; another 140 cities and counties have similar laws. Many companies have also made the private decision to prohibit this type of discrimination in their individual workplaces.

For the uncovered, this EEOC decision signals that the time is coming when this type of discrimination will no longer be an open issue. I suggest you get on the bandwagon now, and send a signal to all of your employees that you are a business of inclusion, not one of bigotry and exclusion.

September 7, 2011June 29, 2023

Intergenerational “Humor” Has Its Risks in Age Discrimination

Issue: Following a bitter proxy battle, X Corporation is taken over by Jim Smith, a 30-year-old entrepreneur who made $500 million by developing violent video games.

On his first day as CEO, Jim calls into his office all persons over the age of 50, all of whom have been superb workers, and says: “My old dad told me I was nuts wasting my time playing with computer games. Hah! I really don’t believe people that old have any sense. You will have a tough time proving to me that you can fit in with my 21^st century philosophy. Time to get some new blood into this stodgy business!”

For the next few months, Smith constantly made disparaging remarks about the ability of older workers to do the job. At one meeting, he presented the 55-year-old supervisor of the loading dock with a cane and a walker, called another older executive “Methuselah,” and suggested an afternoon nap time for all of the “old codgers.” In addition, the younger employees and supervisors, egged on by Smith, regularly taunted the older workers with ageist remarks. At the end of four months, all the workers over the age of 50 had quit. Was the Age Discrimination in Employment Act (ADEA) violated?

Answer: Obviously. The work environment at X Corporation made it very difficult for older workers to perform their duties with skill and dignity. The constant harassment by Smith and the younger employees and supervisors resulted in the constructive discharge of every employee over the age of 50. A constructive discharge is when an employee quits in order to escape illegal and intolerable employment practices or conditions.

As an HR professional, you know that the ADEA protects individuals who are 40 years of age or older from discriminatory conduct based on their age. While courts have held that isolated remarks by supervisors might not rise to the level of discrimination, any employer who permits or encourages—even in jest—conduct similar to that related above is actively seeking a lawsuit. More importantly, however, employers who do not implement procedures to prevent harassment because of age or correct any harassment that occurs are also at risk of being found in violation of the ADEA.

Source: This egregious example is taken from “Age Discrimination,” part of the United States Equal Employment Opportunity Commission Technical Assistance Program. May 1999 (Revised).

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The information contained in this article is intended to provide useful information on the topic covered, but should not be construed as legal advice or a legal opinion.

January 31, 2001June 29, 2023

Religious Accommodation for Muslim Employees

Most HR management would agree that a happy workforce environment is a productive environment. And though many companies have gone to some lengths to ensure that their employees are happy, one area often missed in dealing with multiculturalism and diversity is religious accommodation in the workplace. Title VII of the Civil Rights Act of 1964 entitles all employees to reasonable religious accommodation by their employers.

In 1998, the Equal Employment Opportunity Commission (EEOC) received 440 complaints from Muslim employees, an increase of 42 percent since 1994. Most of the cases of discrimination have been against female employees who wear the religious head scarf or males who wear beards for religious reasons.

The majority of these cases have been resolved upon explanation of religious beliefs or through threatened lawsuits. Legal action was taken in the case of seven women employed by Argenbright Security Inc. as security personnel at Dulles International Airport, who were sent home after refusing to remove their head scarves.

Each worker received a letter of apology, back pay for time missed, an additional payment, and payment of legal fees. Argenbright also provided sensitivity training on religious accommodation and sent out a notice to all employees about the significance of Islamic dress.

In October 1999, the Supreme Court ruled in favor of allowing Muslim police officers to wear beards for religious or medical reasons. The case involved the suspension of two New Jersey Muslim police officers for failing to shave their beards. A Muslim employee of Sprint Corporation (NYSE: FON) in Kansas City, Missouri, received a monetary settlement after he was denied the right to attend mandatory Friday Islamic prayers.

The employee was allegedly fired for going over his supervisor to make a request for religious accommodation. Upon hearing of the supervisor’s actions, Sprint corporate officials contacted the Muslim employee and offered a settlement.

Several companies have already taken steps to accommodate their Muslim employees. Watermark Donut Co., a franchisee for Dunkin’ Donuts, has provided religious accommodation for its Muslim employees, who make up 40 percent of its workforce. Employees are allowed flexible schedules for Ramadan (month of fasting), religious holidays, the opportunity to perform their five daily prayers, and time to attend Friday prayers. Many other companies have followed suit and altered their policies to accommodate their Muslim employees, starting with sensitivity training.

The Council on American-Islamic Relations (CAIR), a Washington-based Islamic advocacy group, published a booklet called “An Employer’s Guide to Islamic Religious Practices,” to help employers devise and implement policies that can create a culturally sensitive working environment. It provides information on U.S. legal protections of religious rights, common Islamic religious practices, and ways in which employers can accommodate their Muslim employees.

Employers should become familiar with Islamic practices and the Islamic dress code to ensure religious accommodation in the workplace. Islam prescribes that women and men dress modestly. Muslim men are to be covered from the navel to the knee. Some men might also wear a beard and/or a small skullcap. Muslim women wear loose, non-revealing clothing, which includes covering of the hair and neck with a head scarf. Styles vary, but women wear clothing that covers the entire body except for the face and hands. Company dress code policies may have to be modified so that religiously mandated attire is addressed as a diversity issue.

Some tips from the CAIR guide for accommodating Muslim employees:

- Provide time for employees to perform five daily prayers and washing before prayer. It takes about 15 minutes to perform the washing and prayer. Muslim employees can pray in their offices and worksite or any other space that is quiet, clean, and dry. Other workers should not walk in front of or interrupt worshippers during prayer.

- Allot time to attend Friday congregational prayers at the local mosque during a slightly extended lunch break. The prayer takes place at noontime, lasts a total of 45 to 90 minutes, and includes a sermon at the end. Work missed can be made up later in the day or in the early morning.

- During the month of Ramadan, Muslims fast (refraining from eating, drinking, and smoking) from sunup to sundown. Work shifts can be shortened if the lunch break is not taken. Muslims break fast after sundown.

Muslims take off one day twice a year to celebrate the Eid (festival), which follows the lunar calendar. The first Eid is celebrated at the end of Ramadan, and the second is celebrated beginning on the 10th day of the 12th Islamic month. No undue penalty should be given since this is a religious obligation.

Comment below or email editors@workforce.com. For information or to obtain a copy of “An Employer’s Guide to Islamic Religious Practices,” call 202-659-CAIR.