By: Elizabeth McKeeGabriel Mozes and Jason E. Burritt

Seyfarth Synopsis: The U.S. Department of State has recently issued a new supplemental questionnaire that will enable officers at U.S. Consulates and Embassies to carry out enhanced and burdensome screenings of certain applicants for nonimmigrant and immigrant visas to the U.S.

As part of the Trump Administration’s extreme vetting efforts, certain visa applicants will now be required to complete a rigorous supplemental questionnaire prior to visa issuance. The information requested in the new, supplemental questionnaire is extensive, and requires disclosure of the applicant’s full travel history for the past 15 years, including locations visited, dates, and source of funds for the visits; all passport numbers; names and dates of birth of all siblings, children, and spouses/partners; complete address and dates of residence for the past 15 years; employment history for the past 15 years; and all social media handles, phone numbers and email addresses for the past 5 years.

To view the full alert, please click on the link below:

http://www.seyfarth.com/publications/OMM061617-LE

 

 

By Dawn Reddy Solowey

Seyfarth Synopsis: In EEOC v. Consol Energy, Inc., the Fourth Circuit Court of Appeals upheld a judgment against an employer for failing to accommodate an employee’s religious belief that a biometric hand scanner would tag him with the “Mark of the Beast,” contrary to his evangelical Christian religious beliefs.  

On June 12, 2017, in EEOC v. Consol Energy, Inc., the Fourth Circuit Court of Appeals upheld a damages award of almost $600,000 against an employer for failing to accommodate an employee’s religious belief that a biometric hand scanner would tag him with the “Mark of the Beast,” contrary to his evangelical Christian religious beliefs.

The Facts

Beverly Butcher is a life-long evangelical Christian who worked for 37 years for Consol Energy’s mine in West Virginia. In 2012, Consol installed a biometric hand-scanner system at the mine to improve monitoring of employees’ attendance and work hours.  The system required an employee checking in or out to scan his right hand.  The shape of the employee’s hand was linked to the employee’s personnel number.

Butcher notified the employer that using the scanner would violate his religious beliefs, because he feared that when his hand was scanned, he would be “marked” with the “Mark of the Beast.” Butcher believes, based on the Book of Revelation, that the “Mark of the Beast” brands followers of the Antichrist, and that someone so marked can be manipulated by the Anti-Christ and will be condemned to everlasting punishment.  Butcher believed that use of the hand-scanning system, even if it left no physical or visible mark, would result in being so “marked.”

Consol asked Butcher to submit a letter from his pastor supporting his request for accommodation, which Butcher did, along with his own letter explaining his religious beliefs. Butcher explained that he objected to scanning either his left or right hand.  He offered to punch a time clock, as he had historically, or to check in with a supervisor in lieu of the biometric system.

In response, the company provided assurances that the scanner could neither detect or place any mark — including the Mark of the Beast — on a person’s body. The company also offered its own Biblical interpretation, explaining that the Mark of the Beast is associated with the right hand, and thus that scanning the left hand should pose no religious conflict.

At the same time, the employer granted accommodations to two employees with hand injuries, allowing them to forego the biometric system and instead enter their personnel numbers on a keypad attached to the system.  In an email authorizing this medical accommodation, a company representative wrote, “Let’s make our religious objector use his left hand.”

Faced with the choice of submitting his left hand to the scanner or being disciplined, Butcher rendered his retirement.

The Verdict

The EEOC brought suit alleging that the employer unlawfully failed to accommodate the employee’s religious belief and constructively discharged him in violation of Title VII. A jury returned a verdict in favor of the EEOC, finding that the employee had a sincere religious belief in conflict with a work requirement, that he had informed the employer of the conflict, and that the employer had constructively discharged the employee for refusal to comply with the work rule.  The jury awarded $150,000 in emotional distress damages, to which the District Court added over $426,000 in front and back pay and lost benefits.  The District Court held that punitive damages were not available as a matter of law.

The Appellate Holding

The Fourth Circuit affirmed the judgment against the company. The Court rejected the company’s central argument that there was in fact no conflict between the employee’s religious beliefs and the hand scanner requirement, because the scanner in fact would leave no physical mark.

The Court emphasized that there was ample evidence from which the jury could conclude that the employee sincerely believed that any participation in the scanner system, with or without a physical mark, was a show of allegiance to the Antichrist and therefore violated his religious convictions.  “That is all that is required to establish the requisite conflict between Butcher’s religious beliefs and Consol’s insistence that he use its scanner system,” the Court held.

In the Court’s view, the problem with the employer’s approach to the request for accommodation was its belief that the employee was mistaken in his religious beliefs.  The employer had concluded that there was no religious conflict because the Mark of the Beast would require a physical mark, and only on the right hand.  The employer also noted that the pastor, while affirming that Butcher was religiously devout, did not share the concern about the biometric scanner.  “But all of this, of course, is beside the point,” the Court held, “It is not Consol’s place as an employer, nor ours as a court, to question the correctness or even the plausibility of Butcher’s religious understandings.”

Finally, the Court noted that this was not a case where the employer could show that an accommodation was not feasible or would impose undue hardship. To the contrary, the employer had made an accommodation to two other employees for non-religious reasons, and had conceded that that accommodation posed no additional burdens or costs on the company.

The Court also upheld the constructive discharge judgment, holding that there was sufficient evidence that the employer made conditions intolerable by refusing to accommodate the religious objection, such that a reasonable person in Butcher’s position would have retired.

The Court did uphold the lower court’s ruling that this was not a punitive damages case, reasoning that the EEOC had not proven that the employer “subjectively appreciated” that its accommodation efforts were inadequate.

Takeaways for Employers

This opinion suggests several important takeaways for employers.

First, in considering an employee’s stated religious belief, the employer should generally assume the sincerity of the belief. Faced with a request based on an unfamiliar religion or religious practice, some employers may be tempted to take to Google, or to conduct its own inquiries, to try to figure out if a religion is a “real” religion, or whether a particular practice is “really” required by a given religion.  But the law protects all religious practices, not just those of mainstream religions.  Religious beliefs are protected even if they are newly practiced by the employee, or uncommon, or not part of any formal religious church or sect, or practiced by a small number of people.  The fact that an employee’s personal religious practice may differ from that of others in the same religion, or even his own clergy leader, does not mean the employee’s personal religious belief is not sincere.  Questioning the sincerity of the employee’s belief may also backfire by alienating the employee, or subjecting the employer to a claim that the employer had animus toward the employee based on religion.  In the rare case where the employer has specific evidence of insincerity, the employer should enlist assistance of counsel.

Second, while the opinion did not directly address the appropriateness of the employer’s request for a pastor letter, an employer should generally avoid asking for such documentation from a third party. As the Court explained, whether or not the pastor agreed with the employee’s religious practice or objection was not dispositive of the sincerity of the employee’s belief.  Further, the employee need not belong to a formal religion and thus may not even have a clergy member from whom to request a letter.  Absent extenuating circumstances, the fact that the employee himself states a sincere religious belief is sufficient and third-party corroboration is not required.

Third, in evaluating whether a requested accommodation is reasonable or would impose an undue hardship, the employer must be mindful of consistency. As the Fourth Circuit held, the fact that the employer was able to make a relatively simple accommodation for other employees for non-religious reasons without hardship in turn showed that allowing that same accommodation to Butcher would impose no hardship.  Thus, the employer faced with an accommodation request should carefully evaluate its exceptions to the work rule more generally.  What other exceptions are being made to the work rule for non-religious reasons?  What exceptions are being made for other employees’ religious observance?

The case demonstrates the sensitivity required in handling religious accommodation requests and the legal exposure that such requests can present.  When in doubt, employers should seek assistance of counsel with expertise in this specialized area of employment law, and knowledge of the applicable federal, state and local laws that may apply.

For more information on this topic, please contact the author, your Seyfarth Attorney, or any member of the Firm’s Absence Management and Accommodations Team.

 

 

By Wan Li

Seyfarth Synopsis: A new Work Permit Policy (Policy) is being implemented in China.  The Policy had been initially implemented, from October 2016 to March 2017, through a pilot program in a number of regions including Shanghai, Beijing, Tianjin, and Shenzhen.  Nationwide implementation of the Policy commenced on April 1, 2017.

Policy Features 

The Policy consists of two main features: (1) expats working in China will now be issued a single multipurpose “Work Permit”, and (2) expats will be categorized into three different groups that will now affect how easy it is for them to get a Work Permit.

Multipurpose Work Permit

Expat workers in China were classified previously as either (i) foreign employees eligible for an “Employment Permit,” or (ii) foreign employees eligible for an “Expert Permit.” These two permits are now combined into one “Work Permit” that will be assigned to foreign applicants through the issuance of identification (ID) cards with unique ID numbers. Each ID card will belong to one foreign individual for life. Foreign employees with existing work permits may elect to maintain their existing permits until their expiration dates or may convert them to new Work Permits.

Shanghai, assuming a leading role in the Policy, issued its first Work Permit to a faculty member of the SJTU-ParisTech Elite Institute of Technology at Shanghai Jiaotong University in November 2016.

Since the full implementation of the unified application across the country on April 1, the new multipurpose Work Permit Policy has been well received and instituted in more than ten provinces of China.

3-Tier Classification System

Under the Policy, foreign applicants will be divided into three categories based on a scoring system. Credits will be assigned to applicants for Work Permits based on their education, background, salary level, age, time spent working in China, and Chinese language fluency. Many cities now operating under the Policy have issued local standards for the scoring system.

Category A applies to foreign high-end talent, such as expats selected by China’s talent-import plan, expats with internationally recognized awards, leading figures in the science and technology industry, and successful entrepreneurs.  There is no limit to the number of expats in this category who may receive Work Permits.

Category B applies to foreign professionals. Examples include workers who hold a bachelor’s (or higher) degree and have two years of full time experience related to the work to be performed. The number of expats in this category who may receive Work Permits will vary depending on market demand.

Category C applies to the remaining types of foreign workers, who are typically non-technical or service workers hired on a temporary or seasonal basis. The number of expats in this category who may receive Work Permits is significantly restricted and subject to a quota.

Implications for Multinational Employers

The Policy aims to both streamline current administrative procedures and attract high-end foreign talent to China. Expats whose skills are urgently needed in Chinese labor markets are being encouraged to work in China through the now less restrictive permitting process and easier application protocols.

Multinational employers should note that the Policy is early in the implementation process.  Employers should pay close attention to the changing application rules and procedures, and be mindful that when hiring foreign workers in different parts of China the rules will be different.

If you would like further information, please contact Wan Li at LWan@seyfarth.com, or any member of our International Employment Law Team.

By Abigail Cahak, Sam Schwartz-Fenwick, and Mary Kay Klimesh

Seyfarth Synopsis: The Seventh Circuit affirmed that a transgender student demonstrated a likelihood of success on claims that his school district’s decision to prohibit him from using the boys’ restroom violated both Title IX and the Constitution’s Equal Protection Clause.

In Whitaker v. Kenosha Unified School District No. 1 Board of Education, a transgender male high school student alleged that his school district informed him that, because he was listed as “female” in the school’s records and had not undergone a surgical transition–a procedure prohibited for minors–he could use only the girls’ restroom or a gender neutral bathroom.  The Complaint asserted that this violated his civil rights under Title IX and the Equal Protection Clause of the Fourteenth Amendment.  One month after initiating the case, the student filed a motion for preliminary injunction.  The next day, the school district filed a motion to dismiss.  The United States District Court for the Eastern District of Wisconsin denied the motion to dismiss and granted the preliminary injunction.

On May 30, 2017, the United States Court of Appeals for the Seventh Circuit affirmed the district court’s decision. The Seventh Circuit declined to hear an appeal on the motion to dismiss, concluding it was not “inextricably intertwined” with the preliminary injunction ruling.

In affirming the lower court’s ruling, the appellate court held that the student met his burden by making a threshold showing in support of the preliminary injunction. First, because two experts opined that use of the boys’ restroom was integral to his “transition and emotional well-being,” the student was likely to suffer irreparable harm without an injunction.  Second, any harm the student would face without an injunction could not be remedied by an after-the-fact award of monetary damages because he provided evidence that he had contemplated suicide and this potential harm cannot be adequately remedied by legal relief.  Third, the student’s chances of success on his Title IX and Equal Protection Clause claims were “better than negligible.”

Regarding Title IX, the court analogized to Title VII, finding that current case law did not foreclose the student from bringing his claim on a theory of sex stereotyping, as articulated by the Supreme Court in Price Waterhouse v. Hopkins.  With regard to the Equal Protection Clause, the court found the school district’s policy was a classification based on sex and thus merited application of heightened scrutiny, noting that “[w]hen a sex-based classification is used, the burden rests with the state to demonstrate that its proffered justification is ‘exceedingly persuasive.’”

The Seventh Circuit rejected the school district’s argument that the student’s presence in the boys’ restroom infringed on the privacy of other students. In so doing, the court recognized the legitimate interest a school district has in ensuring bathroom privacy rights are protected, but noted that the “interest must be weighed against the facts of the case and not just examined in the abstract, to determine whether the justification is genuine.”  The Seventh Circuit reviewed the record and concluded that the “School District’s privacy argument is based on sheer conjecture and abstraction,” citing the fact that the student had used the restroom for months without issue and that the school district presented no evidence that his presence was any more intrusive than that of “an overly curious student of the same biological sex who decides to sneak glances at his or her classmates performing their bodily functions.”

The decision suggests that, although the present administration has backed away from interpreting Title IX to prohibit discrimination based on transgender status, private litigants may find support for this theory in court. Further, Whitaker may be indicative of a growing trend in the Seventh Circuit to take an expansive view of coverage of LGBT status under civil rights laws.  For example, just over two months ago, the court concluded in its en banc decision in Hively v. Ivy Tech Community College of Indiana–a decision cited in Whitaker–that Title VII covers sexual orientation discrimination.  Stay tuned for further developments in this rapidly evolving area of the law.

For more information on this or any related topic please contact the authors, your Seyfarth attorney, or any member of the Workplace Policies and Handbooks Team.

 

 

 

By Brian D. Potter, Gabriel Mozes, and Michelle Gergerian

Seyfarth Synopsis: On May 25, 2017, the U.S. Court of Appeals for the 4th Circuit ruled that President Trump’s travel ban should remain on hold, upholding a preliminary injunction issued in March 2017 by a lower court.

The order in question is the Trump Administration’s revised Executive Order of March 6, 2017  (“revised EO”). The revised EO would have temporarily restricted certain foreign nationals from Iran, Libya, Somalia, Sudan, Syria, and Yemen from entering the United States for a period of 90 days. The revised EO sought to resolve constitutional issues and ambiguities related to the initial Executive Order signed on January 27, 2017.

To view the full alert, please click on the link below:

http://www.seyfarth.com/publications/OMM060217-LE

By: Timothy M. Watson and John P. Phillips

Seyfarth Synopsis: Compelled self-defamation claims most commonly occur in the wrongful termination context, when plaintiffs allege they are required to defame themselves to prospective employers because they are required to tell such employers the reasons for their discharge.   However, in a win for employers, the Texas Supreme Court recently ruled that Texas does not recognize such a claim, joining the majority of states and providing certainty to Texas employers.

Recently, and as a matter of first impression, the Texas Supreme Court decided whether Texas recognizes a claim for compelled self-defamation—it does not.  A typical defamation claim requires:  (1) the publication of a false statement of fact to a third party; (2) that was defamatory concerning the plaintiff; (3) with the requisite degree of fault; and (4) damages, in some cases.  Claims for compelled self-defamation generally occur in wrongful termination lawsuits, when plaintiffs allege that their former employer terminated them for false reasons and they were subsequently required to disclose the false reason to prospective employers, thereby harming their reputations.  The majority of courts to address the issue, however, have declined to accept the theory of compelled self-defamation, and the Texas Supreme Court found it to be incompatible with the at-will employment doctrine and unwise as a matter of policy.

To view the full alert, please click on the link below:

http://www.seyfarth.com/publications/MA060117-LE3

 

By Louisa Johnson and Salomon Laguerre

Synopsis:  The Fourth Circuit Court of Appeals recently ruled that an employer had done nothing wrong when it (i) filled the plaintiff’s position during his leave, (ii) restored the plaintiff to a different, but equivalent, position upon his return, and (iii) separated the plaintiff six weeks later as part of a reduction in force.

A recurring issue for employers is whether to fill an employee’s position while that employee is absent on a leave covered by the Family and Medical Leave Act (“FMLA”) and, if so, what position can be offered to the employee upon return to work that will satisfy the “equivalent position” alternative requirement under the FMLA. In a recently published opinion, the Fourth Circuit Court of Appeals has provided some helpful guidance.

In Gary Waag v. Sotera Defense Solutions, Inc., No. 15-2521 (4th Cir. May 16, 2017),  the employer, a defense contractor, was selected by the U.S. Army as one of several non-exclusive prime contractors that could bid on task orders for a software solutions program.  When it was selected but before it won any task orders, the employer made the plaintiff the program manager.  Because there were no immediate task orders to bid on, the plaintiff’s first job was not program management but instead business development—building relationships with the government to best position the company to win work when there were tasks orders to bid on.

A few weeks after the plaintiff began his new role, he injured his hand and notified his employer that he would need to be absent from work for two to three months. The employer notified the plaintiff that it needed to make another employee the program manager in the plaintiff’s absence.  When the plaintiff asked what that would mean for his role upon return to work, the employer was careful to say that it was important to have someone in the program manager role in the interim to get the team up and running, and that it would “figure out what roles work best for all involved” once the plaintiff returned from leave.

The program never left the business development stage during the plaintiff’s leave because there were no task orders to bid upon at the time. Upon the plaintiff’s return, the employer placed the plaintiff in a new role to help grow a different government contract program where there were actually task orders to be bid upon.  Unfortunately, the employer did not win those bids.  Six weeks after the plaintiff’s return to work, the plaintiff’s was fired as part of a reduction in force caused by a federal budget sequestration that drastically decreased the employer’s government work and its revenue.  The program manager who had filled the plaintiff’s role during his leave was not part of the reduction in force not because he held the plaintiff’s former program manager role but because he was a critical member of other programs that were generating revenue.

The plaintiff sued for purported interference with his FMLA rights because he was not restored to his original position after his leave, he did not believe his post-leave job was an equivalent position, and he believed his new job had been a sham role that was pre-selected for the lay-offs. He also argued that his termination was in retaliation for taking leave.  The trial court ruled in the employer’s favor on all counts, and the plaintiff appealed.

In upholding the trial court’s ruling, the Fourth Circuit noted that, under the FMLA, the employer can restore an employee either to his original position or to an equivalent position. The FMLA does not indicate a preference for one option over the other, “and it does not require an employer to hold open an employee’s original position while that employee is on leave.”

The Fourth Circuit also agreed with the trial court that the plaintiff’s new position was “equivalent” to his pre-leave position because the plaintiff continued to receive his same salary of $189,000.00 and was still eligible for bonuses; continued to enjoy the same health benefits; had the same worksite; held the same job title (Senior Director); still reported to a Vice President; and had the same primary duty of business development in both roles.

The plaintiff pointed to differences in job duties of the two positions that would have existed had the employer won a task order. The Fourth Circuit did not find such differences to be material because no task orders were won before or after plaintiff’s leave that would have necessitated the plaintiff performing these additional, conditional duties. In addition, while the plaintiff contended that he was no longer part of the “core management group” as he had been before leave, the Court found that a “loss of prestige” was a “de minimis” difference that did not prevent the pre- and post-leave jobs from being equivalent.

Finally, the Fourth Circuit agreed that a mere six weeks between the plaintiff’s return from leave and employment termination may be sufficient temporal proximity to show causation for a retaliation claim. Nonetheless, the plaintiff had failed to present any evidence that the employer’s reason for the plaintiff’s separation—the disastrous effect of the federal budget sequestration on the programs on which the plaintiff had worked—was a pretext for retaliation.  In so ruling, the Fourth Circuit noted that the plaintiff had the burden of proving pretext, rather than the employer having the burden of proving that the plaintiff would have been fired even if he had not taken leave, because the employer did not fire the plaintiff while on leave.  Instead, the employer returned the plaintiff to an equivalent position after leave that the employer had shown was not slated for lay-offs at the time of the plaintiff’s return from leave.

The key takeaways from this case are as follows: (1) while employers should, when possible, keep an employee’s position open during his or her leave, employers do not have an obligation to do so under the FMLA, although the analysis may be different when the Americans with Disabilities Act (“ADA”) applies as well; (2) if an employer reinstates an employee to an equivalent position, the FMLA requires the post-leave position to be “virtually identical” to the prior position in terms of pay, benefits, status, privileges, and working conditions and substantially equivalent in terms of skill, effort, responsibility, and authority; (3) even if communications with an employee during leave do not have the intended effect of managing the employee’s expectations about post-leave employment, such communications can help in the defense of litigation; and (4) restoring an employee post-leave to an equivalent position when his or her job has been filled in the interim will usually be a more defensible approach than firing the employee while on leave.

By Christopher M. Cascino

Synopsis: On May 25, 2017, Seyfarth attorneys Chris DeGroff, Noah Finkel, and Brad Livingston presented their insights on how the Trump administration will affect employers.  Specifically, they discussed the effect the Trump administration is having and will have on the EEOC, the DOL’s Wage and Hour Division, and the NLRB.  All presenters agreed that, while the Trump administration will have an effect on these agencies, it will take time for the changes to take place.

The Presentation

Chris began the presentation by discussing the EEOC.  He observed that the new administration has not yet replaced the high-ranking EEOC officials who set EEOC policy.  He pointed out that the majority of the EEOC still consists of Democratic appointees, though observed that this will change around July 2017.  He further pointed out that the General Counsel position remains unfilled.  When that is filled, Chris thinks we should have a better idea about the direction the EEOC will head in the Trump administration.

Chris discussed the ways in which the Trump administration might affect the EEOC’s strategic enforcement priorities.  For example, Chris pointed out that the EEOC’s strategic priority of eliminating systemic barriers to hiring will likely be a focus of a Trump administration focused on job growth, while strategic priorities like eliminating pay disparities might be less of a focus to the administration.

Chris concluded by pointing out that the EEOC has shown itself to be resilient to changes in administrations.  In the past, it has been aggressive after changes from a Democratic to a Republican administration.  That trend appears to have continued, as the EEOC’s lawsuit filings are up 75% over this time last year.  Chris observed that this may be because the EEOC may be trying to justify continued funding from what could be a less friendly administration.

Noah then spoke about how the Trump administration will affect the DOL’s Wage and Hour Division.  Like Chris, Noah pointed out that Trump has not been able to fill the key DOL positions.  While the administration has put in place a Secretary of Labor, none of the three key policymaking positions in the Wage & Hour Division – the Administrator, Deputy Administrator, and Solicitor of Labor – have been filled by Trump’s administration.  In fact, the   Administrator and Deputy Administrator positions are vacant, and the current Solicitor of Labor is temporary.  Noah observed that, when the administration fills these positions, we will have a better idea about how the Wage and Hour Division will function under the Trump administration.

Noah stated that, though the DOL’s Wage and Hour Division grew under the Obama administration, there are no proposed changes to its funding in the Trump administration’s proposed budget.  As a result, like with the EEOC, while there could be a change in the focus of wage and hour investigations, the actual number of investigations will probably remain steady.

Noah pointed out that probably the biggest outstanding question is how the Trump DOL will handle the rule promulgated under the Obama administration raising the wage needed to qualify for the white collar exemption.  Currently, the rule is not in effect because a federal judge enjoined the DOL from enforcing it.  The injunction is on appeal and, to date, the Trump administration has not filed a brief on the appeal.  Noah said we should look for the Trump administration’s position on appeal to see where the law is heading on the wage needed for the white collar exemption.  For more information about Noah’s presentation, see link.

Brad  then presented on changes to expect from the NLRB.  As with the EEOC and the DOL’s Wage & Hour Division, Brad stated that change within the NLRB will take time because the Trump administration has not yet put its appointees into place.  At this point, there are two vacancies on the five member NLRB.  Its chair is a Republican appointee whose term ends this December, and its other two current members are Democratic appointees whose terms end in late 2018 and 2019.  Although Trump can create a Republican-appointed majority by filling the two vacancies, he has not done so.

Brad stated that even after Republican appointees are a majority of the NLRB, change will take time because the NLRB tends to interpret the law in decisions rather than through rulemaking.  As a result, it will have to wait for the right case to come before it before it can change its view of the law.

Brad argued that the Obama administration’s NLRB was the most aggressive in limiting the rights of employers and expanding the rights of individual employees and unions in history.  He emphasized that, while a Trump NLRB will likely take a different course and even overturn many of the recent decisions of the NLRB, it will take time before these changes are made.  For more information about Brad’s presentation, see link.

Implications For Employers

While the Trump administration will result in changes to the way government agencies interact with employers, these changes will occur gradually.  Further, employers should not expect a decrease in enforcement actions brought by government agencies against employers.  The latest budget proposal out of the Trump administration keeps funding for these agencies steady, which will allow them to continue to operate at the level they operated at in the prior administration.

 

By Dawn Reddy Solowey

Seyfarth Synopsis: Anti-Muslim rhetoric dominates many media headlines.  A May 9, 2017 decision by the U.S. Court of Appeals for the Second Circuit highlights the risks to an employer when anti-Muslim rhetoric enters the workplace.

The Facts

In Ahmed v. Astoria Bank et al., the Second Circuit considered a claim brought by a plaintiff employee who had been terminated from her employment at Astoria Bank, at the end of her probationary period, for tardiness and carelessness in checking important documents.  The employee’s claims included that she had been subjected to a hostile work environment because she is Egyptian and Muslim.

The History

The District Court had granted summary judgment to the employer. As to the hostile-environment claim, the Court had reasoned that the alleged stray comments did not rise to the required “severe and pervasive” level.  The employee appealed only the ruling on the hostile environment claim.

The Second Circuit’s Holding

The Second Circuit reversed, holding that a reasonable jury could find that the employee was subject to severe and pervasive discriminatory harassment. The Court relied principally on the employee’s evidence that the supervisor “constantly” told her to remove her hijab head-covering, which he referred to as a “rag”; demeaned her race, ethnicity and religion “on several occasions”; and made a comment during her September 11, 2013 interview that she and two other Muslim employees were “suspicious” and that he was thankful he was “in the other side of the building in case you guys do anything.”

Considering this evidence, together with allegations such as that another manager used hand gestures and spoke slowly to the plaintiff in everyday conversation as if to suggest she did not know English, the Second Circuit held that a jury could conclude that the plaintiff was subject to a “steady barrage of opprobrious” racial and anti-Muslim comments.

On that basis, while acknowledging the evidence was “on the knife’s edge” between summary judgment and trial, the Court reversed the District Court’s grant of summary judgment and remanded for a jury trial.

The Broader Context

Concerns about anti-Muslim sentiment affecting the workplace are hardly new. We’ve blogged before about the EEOC’s 2016 Questions and Answers for employers concerning workers who are, or are perceived to be, Muslim or Middle Eastern.

In that publication, issued in the wake of the Paris and San Bernandino attacks, the EEOC posited that, “Reactions in the workplace to world events demand increased efforts by employers to prevent discrimination.” Since then, the need has arguably only increased.

So What Can Employers Do?

Employers can take preventative steps to mitigate the risks.

  • The current climate is an opportunity for employers to take a fresh look at anti-discrimination and harassment policies, complaint mechanisms, and accommodation practices, to ensure compliance with federal, state and local laws.
  • Effective training not only helps prevent litigation, but can assist a defense. All employees should be trained that harassment and discrimination – including comments such as those alleged in the Ahmed case – will not be tolerated.  Training that is specific and interactive is most effective.
  • Companies should further train managers on nondiscriminatory hiring practices, and how to manage employee complaints.
  • Managers should also be aware of the need to consider accommodations for certain religious practices, such as the wearing of a hijab, and how to process such requests. Managers should be trained that an employee who receives a religious accommodation should never be subject to negative comments as a result.
  • When an employee complains of alleged discrimination or harassment, the employer should investigate promptly, and if a violation is found, take prompt remedial action.

 

By Paul Galligan and Samuel Sverdlov

Synopsis:  The Seventh Circuit affirmed a summary judgment decision in favor of the employer on the plaintiff’s race discrimination and civil conspiracy claims where the employer did not hire the plaintiff after the plaintiff tested positive for marijuana at orientation.

Last month, in Turner v. Hirschbach Motor Lines, the Seventh Circuit affirmed the district court’s granting of summary judgment in favor of Hirschbach Motor Lines (Hirschbach) on plaintiff, Robin Turner’s claims of race discrimination under Title VII of the Civil Rights Act of 1964 (Title VII) and civil conspiracy under state law.

Background

Mr. Turner, an African American, was initially offered a job at Hirschbach as a commercial truck driver on the condition that he complete both the company orientation and a drug test. During orientation, Turner tested positive for marijuana.  Pursuant to Department of Transportation (DOT) regulations, Turner’s drug test was carried out at an independent medical facility, the urine sample was split into two, and the results of the first half of the sample were given to Turner through Hirschbach’s independent medical review officer.

Once Turner was given his results, Hirschbach’s safety officer explained to Turner that he had the right to request that the second half of his urine sample be tested at different laboratory. Turner told the safety officer that he wanted the second split test, but for disputed reasons, the second split test never happened.  Turner alleged at deposition that the safety officer cancelled the second split test.

Hirschbach ended up not hiring Turner. Pursuant to DOT regulations, Hirschbach reported Turner’s positive drug test “to an industry consortium from which future employers could, with Turner’s permission, seek his previous test results.” In turn, Turner filed race discrimination and conspiracy claims against Hirschbach.  Specifically, Turner alleged that: (1) Hirschbach did not hire him because of his race; (2) Hirschbach reported his drug tests to the industry consortium because of his race; and (3) Hirschbach conspired with the independent medical review officer to cancel the second split test.

Decision

Hirschbach moved for summary judgment on all of Turner’s claims. Turner argued that he could withstand Hirschbach’s summary judgment motion on a “cat’s paw theory.” Said otherwise, Turner argued that Hirschbach’s safety officer, who was not a decision-maker in Turner’s hiring, had racial animus towards Turner, which was a proximate cause of the decision to not hire Turner.  The district court was unpersuaded.  The court held that Turner did not put forth any evidence that: (1) the initial drug test was unreliable; (2) the second test would have been negative; or (3) the decision-maker based her decision on race rather than the positive drug test.  Further, the court held that reporting Turner’s negative drug test to the consortium was non-discriminatory because it was required by federal regulations.  Finally, the district court held that Turner’s conspiracy claim failed because there was no evidence on the record that Hirschbach and the independent medical review officer had an agreement to cancel the split test.

On appeal, Turner challenged the district court’s decision, and argued that he should have defeated summary judgment based on the simple assertion that the cancellation of the second split test violated DOT regulations. However, the Seventh Circuit held that Turner’s burden is greater than demonstrating a mere violation of a federal regulation.  Rather, given that the employer had put forth evidence that Hirschbach would not have hired someone who failed a drug test, Turner had “to support his cat’s paw theory with evidence casting doubt on the reliability of the initial drug test.”  Turner’s lack of evidence that the first test was a “false positive,” or that a second test would have come back negative, is fatal to Turner’s discrimination claim.  Regardless, the court held that Turner has not put forth evidence that Hirschbach actually violated any federal regulations.

Outlook

The Seventh Circuit’s decision in Hirschbach is a big win for employers, especially those employers who are subject to DOT or other onerous regulations.  Employers should rejoice in the Seventh Circuit’s willingness to hold Turner accountable for his burden of establishing a connection between the alleged racial animus and the adverse action.  However, employers should remain cautious and vigilant when taking adverse action against employees for hot-button issues such as failed drug tests.  Although the employer prevailed in Hirschbach, the court reminded employers that employees could prevail on a race discrimination claims where there is evidence of similarly situated employees of other races being treated differently.

For more information on this or any related topic please contact the authors, your Seyfarth attorney, or any member of the Labor & Employment or Workplace Policies and Handbooks Teams.