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 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 John P. Phillips

Seyfarth Synopsis: For several years now, employers and the EEOC have been at odds over whether employers must automatically reassign a disabled employee to an open position as a reasonable accommodation, or whether employers can maintain a policy of hiring the most-qualified individual for the position, by requiring a disabled employee to compete for open positions against other interested employees. Fortunately, in two recent decisions, the Eleventh Circuit and a Texas district court have helped clarify that an employer’s policy of hiring the most-qualified individual for a job does not violate the ADA.

Many employers post all open positions at their facilities and allow all qualified employees to bid on any job they desire. This allows the company to hire the right employee into the right position, and allows everyone to know that promotions and job opportunities are decided by merit.  These bidding policies help the employer promote open and fair policies, and they promote efficiency, performance, and trust in the workforce.

However, in recent years, the EEOC has challenged these policies, alleging that they discriminate against disabled employees. Accordingly to the EEOC, employers must automatically place even a minimally-qualified disabled employee into an open position as a reasonable accommodation, even if the employer would otherwise open the position to bidding by all employees and even if there are other better-qualified candidates who are interested in the job.

The EEOC’s position has naturally caused significant concern for many employers with open bidding policies. Fortunately, two recent decisions reinforce the right of employers to hire the best candidate for the job.

In December, the Eleventh Circuit Court of Appeals held that “the ADA only requires an employer to allow a disabled person to compete equally with the rest of the world for a vacant position” and does not require the employer to automatically reassign an employee without competition.

In that case, EEOC v. St. Joseph’s Hospital, Inc., the plaintiff was employed as a clinical nurse in the hospital’s psychiatric ward.  The plaintiff developed spinal stenosis, for which she required the use of a cane.  St. Joseph’s had significant safety concerns related to the presence of a cane in the psychiatric ward, and eventually determined that it was too dangerous to allow a cane in the ward.  The hospital gave the plaintiff 30 days to bid on another position at the hospital.  Although there were over 700 positions available, the plaintiff waited three weeks to apply for any jobs at all, and ultimately only applied for three jobs within the 30-day time period.  She was not hired for any of the positions and eventually was terminated.

Following a jury trial, the EEOC argued on appeal that the ADA requires reassignment without competing against non-disabled employees. The Eleventh Circuit ruled against the EEOC.  The Court outlined a multi-part test to determine whether the requested accommodation—automatic reassignment to an open position without competing against non-disabled employees—was reasonable:

  1. The plaintiff must show that his or her requested accommodation is reasonable on its face, i.e., “ordinarily or in the run of cases.”
  2. If the plaintiff does so, the burden shifts to the employer to show that granting the accommodation would impose an undue hardship under the facts of the particular case.
  3. If the plaintiff does not carry his or her burden at step one, the plaintiff can still prevail, provided he or she can show that there are special circumstances in that particular case making the accommodation reasonable.

The Eleventh Circuit affirmatively found that “[r]equiring reassignment in violation of an employer’s best-qualified hiring or transfer policy is not reasonable ‘in the run of cases.’” Consequently, the Court found that where the employer has a merits-based selection policy, the ADA only requires the employer to allow a disabled person to compete equally for a vacant position.  And in that case, given that the plaintiff had not attempted to show any special circumstances that warranted requiring the hospital to ignore its best-qualified hiring policy, the Court found that the hospital had not violated the ADA by requiring the plaintiff to bid for an open position.

In March, in EEOC v. Methodist Hospitals of Dallas, the Northern District of Texas was faced with an almost identical fact pattern.  There, the Court noted that the Fifth Circuit had not directly addressed the issue, but found that “the weight of Fifth Circuit authority holds that the ADA does not entitle a disabled employee to preferential treatment.”  In making its holding, the Court adopted the reasoning in the Eleventh Circuit’s St. Joseph’s Hospital decision in full, and held that Methodist’s policy of requiring disabled employees to compete with non-disabled applicants in order to hire the best candidate does not violate the ADA.

Taken together, these two recent decisions should provide comfort to employers with open bidding policies. However, employers should be aware that despite these set-backs, the EEOC is not likely to agree that open bidding policies comport with the ADA.  The federal courts have not yet agreed uniformly on this issue, and the EEOC consistently cites to cases out of the Seventh Circuit, the Tenth Circuit, and the D.C. Circuit to support its position.  Although these cases have been distinguished by the Eleventh Circuit and the Northern District of Texas, employers in those districts should be especially alert when dealing with reassignment requests from disabled employees.

In addition, whenever presented with a request for accommodation, employers should not jump to any conclusions or make any rash decisions. It is always a best practice to refer all disability claims to HR, go through the interactive process, stay in communication with the disabled employee, and, above all, document, document, document.

Fortunately, these decisions strengthen employers’ ability to maintain merits-based selection policies, and will help companies continue to hire the right employee into the right position.

For more information on this or any related topic, please contact the authors, your Seyfarth attorney, or any member of the Absence Management and Accommodations Team, the ADA Title III Team, or the Workplace Counseling & Solutions Team.

 

By Christine Hendrickson, Annette Tyman, Hillary Massey, and Monica Rodriquez

50 State Pay Equity Desktop Reference: What Employers Need to KnSeyfarth Synopsis: Today, April 4th, is Equal Pay Day.  In commemoration, Seyfarth’s Pay Equity Group  is introducing a 50-State Pay Equity Desktop Reference.

Pay equity may be on the minds and lips of your employees today, as today is Equal Pay Day.

Equal Pay Day originated more than 20 years ago as a public awareness event to symbolize how far into the year women must work to earn what men earned in the previous year.  While we’ve previously examined the basis of the statistic that underlies the event, there is no doubt that pay equity has become a high priority for employers, as administrative agencies and a patchwork of states have aggressively moved to address pay equity and enforcement.  What used to be a sleepy, little-discussed event has now become major news.

At Seyfarth Shaw, we are marking Equal Pay Day with the release of the first annual 50-State Pay Equity Desktop Reference.  This Desktop Reference was aimed at answering the most common questions we are asked about regarding the patchwork of different state laws that touch on pay equity, including:

  • Who is protected?
  • What type of work must be compared?
  • May employers rely on geographic location to explain pay differences?
  • What is the statute of limitations?; and
  • May employers ask about salary history?

Seyfarth Shaw at Work (SSAW) offers a more comprehensive 50-state survey, which is updated quarterly.  For additional information about the comprehensive survey, please email payequity@seyfarth.com.  The Desktop Reference also provides more information about undertaking a proactive equity audit and the lifecycle of such an audit.

Seyfarth’s Pay Equity Group leads the legal industry in fair pay analysis, thought leadership, and client advocacy.  For more than twenty years, we have partnered with our clients to proactively address these developments and minimize risk.  Seyfarth also recently testified before the Equal Employment Opportunity Commission on behalf of the U.S. Chamber of Commerce, requesting the EEOC withdraw its proposal to require employers to report data on compensation and diversity through the EEO-1 report.  For questions, contact the authors, Christine Hendrickson, Annette Tyman, Hillary Massey, and Monica Rodriquez, or your Seyfarth attorney with whom you regularly work.

By Steve Shardonofsky and John P. Phillips

Time WarpSeyfarth Synopsis:  The U.S. Fifth Circuit Court of Appeals recently held for the first time that the continuing violation doctrine applies even when a plaintiff was subject to harassment that was severe enough to put the employee on notice of the duty to file a complaint.  The lower court will now consider conduct many years outside of the 300-day limitations period under Title VII. This decision alters prior Circuit precedent, widens the reach of the continuing violation doctrine, and serves as warning for HR professionals and litigation counsel.

Unlike discrete acts of retaliation or discrimination, conduct that may support a hostile work environment claim often occurs over a period of time and cannot be said to occur on any particular day.  Because of this difference, most courts have long recognized the “continuing violation doctrine,” which essentially says that as long as one harassing act occurs within the filing period, the entire time period of the hostile work environment may be considered by the court for the purpose of determining liability.

In Panagiota Heath v. Southern University System Fdn. et al., a university professor (Heath) alleged that she was subject to ongoing harassment because of her sex by her immediate supervisor as far back as 2003.  The alleged harassment included having her re-write exams, coercing students to make complaints against her, denying her request for a sabbatical, telling her that he did not believe she was capable of writing a book, and excluding her from meetings because she talked “too much for a woman.”  Heath initially filed a lawsuit in Louisiana state court in 2009 alleging sex discrimination, but the suit was dismissed when she stopped pursuing it. She then took a sabbatical in 2010-2011 for job-related stress, but alleged that the harassment continued after she returned to work, including being subject to belittling comments and intimidating conduct from her supervisor. More than 200 students signed a petition asking for Heath to be changed to a “non-hostile” and “non-harassing” work environment.  Heath complained about the conduct in 2009 and 2012.  But there was no indication that the University responded.  In early 2013, she filed a charge with the EEOC and eventually filed her second lawsuit.

The district court granted summary judgment to Southern University on Heath’s hostile work environment claim, holding that she could not rely on any conduct that occurred outside of the limitations period (300 days before filing her EEOC charge) and that the conduct inside the limitations period was not sufficiently severe or pervasive to establish a claim. The district court relied on the Fifth Circuit’s Celestine v. Petroleos de Venezuella (Celestine I) decision from 2001, which addressed the continuing violation doctrine and required courts to consider numerous related factors, including whether “the act has the degree of permanence which should trigger an employee’s awareness of and duty to assert his or her rights.” Under Celestine I, if the harassing conduct was sufficiently severe to put the employee on notice of the need to file a complaint, the employee typically could not rely on the continuing violation doctrine.  Rather than wait until 2013, the district court found that Heath should have filed a claim in 2011 when the harassment continued after her sabbatical.

The Fifth Circuit reversed and remanded, acknowledging for the first time that the Supreme Court’s 2002 National R.R. Passenger Corp. v. Morgan decision overruled Celestine I to the extent that the Fifth Circuit and other Circuits held that “the plaintiff may not base a suit on individual acts that occurred outside the statute of limitations unless it would have been unreasonable to expect the plaintiff to sue before the statute ran on such conduct.”  Thus, at least in the Fifth Circuit, the date on which a plaintiff becomes aware that he or she has an actionable Title VII claim is no longer relevant.  Nevertheless, courts are left with other factors to consider in deciding whether apply the continuing violation doctrine, including (1) whether the separate acts are related, (2) whether any intervening acts by the employer “severed” the acts that preceded it from later conduct, and (3) whether there are any equitable factors that should prevent the court from considering the full scope of the continuing conduct.  Based on these other factors, the Fifth Circuit found that Heath had properly alleged a continuing violation and remanded for a determination about whether the claim relating to conduct since 2011 could survive summary judgment.

The case is a cautionary tale for HR professionals and litigation counsel, and a reminder that over-reliance on the statute of limitations in hostile work environment claims is not an ideal tactic.  Because stale internal complaints and allegations going back many years can be revived in subsequent litigation, HR professionals and employment counsel should take care to always accurately and thoroughly document employee complaints and related investigations, take prompt and effective remedial action when appropriate, follow-up with the complainant, and consider what other actions to take in order to “sever” or “break” a possible continuing violation.

For more information on this or any related topic, please contact the authors, your Seyfarth attorney, or any member of the  Labor & Employment Team.

By Sam Schwartz-Fenwick and Lucas Deloach

Seyfarth Synopsis: To the surprise of many, the EEOC is not retreating from the argument first made by the Obama administration that Title VII forbids employment discrimination based on gender identity.

In EEOC v. R.G. & G.R. Harris Funeral Homes, Inc., Aimee Stephens, a transgender woman, informed her employer, a funeral home, of her gender identity and intention to transition.  Although she intended to abide by the funeral home’s gender-specific dress code and wear clothing approved for female employees, she was terminated.  She filed a charge of sex discrimination with the EEOC, and ultimately, the EEOC during the Obama administration brought suit against the funeral home in federal district court alleging that the funeral home terminated Ms. Stephens “because [she] is transgender, because of [her] transition from male to female, and/or because [she] did not conform to [the funeral home’s] sex- or gender-based preferences, expectations, or stereotypes.”

The district court rejected the funeral home’s motion to dismiss, holding the complaint stated a claim for relief based upon unlawful sex-stereotyping but not gender identity discrimination. The district court subsequently granted the funeral home’s motion for summary judgment, in which the funeral home relied in part upon the Religious Freedom Restoration Act (“RFRA”) as a defense.  In its order, the district court found that the RFRA did, in fact, operate as a defense to Ms. Stephens’ wrongful termination claim.

In its opening brief to the Sixth Circuit, the EEOC continues to advance arguments originally made during the Obama administration.  The EEOC argues that, “[c]ontrary to the court’s ruling below, Title VII’s prohibition on discrimination ‘because of … sex’ encompasses discrimination based on transgender status and/or transitioning.”  The EEOC also maintains that the “RFRA does not provide what Title VII omits: a defense in this case that exempts the Funeral Home from complying with Title VII’s prohibition on sex discrimination based on the sincere religious beliefs of its owner.”

Many observers had expected the EEOC to reverse its stance, and the agency may still do so. After all, the full impact of President Trump’s administration on the makeup and enforcement agenda of the EEOC remains to be seen.  Additionally, the administration’s position on a range of LGBT issues is not clear.  The EEOC’s actions here are aligned with President Trump’s statements on preserving President Obama’s Executive Order prohibiting discrimination against LGBT individuals employed by the federal government and by federal contractors.  However, that position is at odds with the DOJ’s and Education Department’s withdrawal of Obama-era guidance advising federally-funded educational institutions that Title IX prohibits discrimination based on gender identity.  (The EEOC’s current position is further complicated by the fact that the stated protections for transgender individuals, found in Section 1557 of the Affordable Care Act, derive in part from Title IX.)

Currently, it appears the EEOC is poised to maintain its position, in the context of Title VII. But it is unclear whether the EEOC will continue to prioritize sex discrimination claims on behalf of transgender employees.  Additionally, although unsettled, a growing number of courts have held that discrimination on the basis of gender identity violates Title VII.  For these reasons, employers are wise to consider how their policies, practices, and procedures impact transgender employees and whether they are sufficiently inclusive.

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 Team.

By Erin Dougherty Foley and Craig B. Simonsen

Seyfarth Synopsis: These new regulations require federal agencies to be “model employers” of individuals with disabilities. As such, they now must take specific steps that are “reasonably designed” to gradually increase the number of employees who have a disability.

We had blogged previously about the Equal Employment Opportunity Commission’s Advance Notice of Proposed Rulemaking (ANPR), inviting the public to comment on how it should amend its regulations implementing Section 501 of the Rehabilitation Act of 1973, and to clarify the federal government’s obligation to be a model employer of individuals with disabilities. 79 Fed. Reg. 27824 (May 15, 2014).

The regulations — which apply only to federal agencies — that previously implemented the Section 501 affirmative action requirement simply stated that the federal government shall be a “model employer of individuals with disabilities,” and that federal agencies shall “give full consideration to the hiring, placement, and advancement of qualified individuals with disabilities.”

While the “model employer” of individuals with disabilities provisions of Section 501 require affirmative action and non-discrimination in employment only by federal agencies, what the EEOC determines to be best practices for federal agencies may be a preview of how it will handle private sector disability claims and charges. The regulations imposed an obligation on federal agencies to be “model employers” of individuals with disabilities, but did not explain what federal agencies needed to do to comply with the obligation.

Now the Final Rule, 82 Reg. Reg. 654 (January 3, 2017), requires those federal agencies to take specific steps that are “reasonably designed to gradually increase the number of employees who have a disability as defined under Section 501, and the number of employees who have a ‘targeted disability,’ which is defined for purposes of this Rule to mean a disability that is either designated as ‘targeted disability or health condition’ on the Office of Personnel Management’s (OPM’s) Standard Form 256, or that falls under one of the first 12 categories of disability listed in Part A of Question 5 of the EEOC’s Demographic Information on Applicants form (Applicant Flow Form), until they meet specific goals set by the EEOC.”

Targeted disabilities are defined as “disabilities that the government has, for several decades, emphasized in hiring because they pose the greatest barriers to employment, such as blindness, deafness, paralysis, convulsive disorders, and mental illnesses, among others.”

The EEOC indicates that the New Final Rule is similar to the approach taken by the DOL’s Office of Federal Contract Compliance Programs in regulations issued to implement the obligation of federal contractors to engage in affirmative action for individuals with disabilities pursuant to Section 503 of the Rehabilitation Act of 1973, 29 U.S.C. 793 (Section 503). See for instance, 41 CFR pt. 60-741.45(a), establishing a 7% utilization goal for employment of qualified individuals with disabilities in each job group in the contractor’s workforce.  According to the EEOC news release, the regulations “set goals for federal agency workforces of 12% representation for individuals with disabilities, and 2% for individuals with ‘targeted’ disabilities.”

In addition, this New Rule requires agencies to provide personal assistance services (PAS) to employees who, because of targeted disabilities, require assistance in order to be at work or participate in work-related travel. PAS are services that help individuals with disabilities are to perform activities of daily living, including assistance with removing and putting on clothing, eating, and using the restroom.

The EEOC has also published a question-and-answer document for the new regulations.

The Rule provides federal agencies one year to make any necessary changes in policy, staff, or other aspects of their operations. The Rule is effective on March 6, 2017, and applicable on January 3, 2018.

The Rule specifically applies to federal employers. However, as noted above, this may also impact the EEOC’s handling of disability claims generally. The EEOC continues to make protecting individuals with disabilities a top priority. Employers that work on or seek to contract for government projects should vigilantly review their policies, procedures and practices to ensure that they are also acting as a “model” employer as that has been defined by the agency.

If you have questions regarding this New Rule or the topic of this post, please contact the authors, a member of Seyfarth’s OFCCP & Affirmative Action Compliance Team, or your Seyfarth attorney.

By Steve Shardonofsky and Tiffany T. Tran

iStock_000072969307_MediumSeyfarth Synopsis: In a somewhat rare interlocutory appeal, the Fifth Circuit reviewed and reaffirmed a 40-year old case holding that emotional distress and punitive damages are not available under the ADEA. This decision rejected the EEOC’s own interpretation and is welcomed news for employers doing business in the Fifth Circuit because damages under the ADEA will be limited to front and back pay. This victory may be short-lived, however, as we expect many plaintiffs will file claims under the corresponding state-law statutes, which typically do allow for the recovery of emotional distress and punitive damages. 

In Vaughn v. Anderson Regional Medical Center, Susan Vaughan, a nurse supervisor, alleged that her employer fired her in retaliation for raising age-discrimination complaints.  The district court dismissed Vaughan’s claims for pain and suffering and punitive damages under the Age Discrimination in Employment Act (ADEA) based on Fifth Circuit precedent, Dean v. Am. Sec. Ins. Co., 559. F.2d 1036 (5th Cir. 1977), barring such recoveries.  Noting that the EEOC and other circuits held divergent views on this issue, however, the district court certified the question for a rare interlocutory appeal, and the Fifth Circuit granted review.

The Fifth Circuit rejected Vaughan’s effort to distinguish Dean on the basis that the case involved age discrimination claims, as opposed to retaliation claims under the ADEA. According to the Court, Dean held “in unqualified terms” that the type of damages Vaughn sought are not recoverable “in private actions posited upon the ADEA.”  Because the ADEA contained a prohibition on retaliation since its inception, Dean was controlling unless some intervening change in law “undermine[d] its continued vitality.” The Fifth Circuit rejected Vaughn’s arguments on this issue as well.

Vaughn argued there was a change in law since Dean because of the 1977 amendments to the FLSA, which the Fifth Circuit has interpreted as providing remedies “consistent” with the ADEA. According to the Fifth Circuit, those amendments added language that was identical to the provision in the ADEA allowing for “such legal or equitable relief as may be appropriate,” which Dean had already interpreted as precluding emotional distress and punitive damages. These changes, the Court explained, “brought the FLSA’s remedies for employer retaliation into line with the ADEA’s remedies for similar conduct.”  Notably, however, this explanation seems to conflict with another decision (Pineda v. JTCH Apartments, LLC) issued by a different panel of the Fifth Circuit just a few days later, which held that plaintiffs may recover emotional distress damages in FLSA retaliation claims.

The Fifth Circuit also declined to give deference to the EEOC’s interpretation on this issue, finding that the agency’s reliance on a Seventh Circuit decision was unpersuasive because it mistakenly relied on the 1977 amendments to the FLSA, which the Court had already rejected. Even if  the Fifth Circuit had found the EEOC’s view persuasive, it would not be sufficient to displace Dean because it is not binding precedent. The transfer of ADEA administrative/investigative functions from the Secretary of Labor to the EEOC also did not constitute an “intervening change” in law to override precedent.

Given the apparent conflict between this case and the recent Pineda decision, we may see these issues reviewed by the full panel of the Fifth Circuit.  Because the case also creates a split among the circuits courts, we may also see intervention by the Supreme Court in the future.  Until the full panel or the Supreme Court rules on this issue, claims for emotional distress and punitive damages under the ADEA will be subject to dismissal, at least in the Fifth Circuit.

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 Team.

By Bridget M. Maricich

Seyfarth Synopsis: Though only an informal guidance, this resource document reminds employers of the EEOC’s expansive interpretation of what constitutes a reasonable workplace accommodation. Employers should continue to meaningfully engage in the interactive process with any employees seeking workplace accommodations for a physical or mental disability and assiduously document those efforts.

Citing an increase in charges of discrimination based on mental health conditions during fiscal year 2016, the EEOC released a “resource document” on December 12, 2016, explaining “workplace rights” for individuals with mental health conditions under the Americans with Disabilities Act (ADA).  The resource document – Depression, PTSD, & Other Mental Health Conditions in the Workplace: Your Legal Rights – is presented in a question and answer format intended for applicants and employees.  The informal guidance is a useful primer for understanding the EEOC’s expanding stance on employer obligations to provide reasonable workplace accommodations.

At first blush, the resource document is nothing new. In question 1, the EEOC reiterates that employers are prohibited from discriminating against applicants and employees because of a mental health condition.  The document also notes that employers do not have to hire or retain individuals who are unable to perform the essential functions of a job or who pose a direct threat. However, the Agency strongly caveats that employers must “rely on objective evidence,” “not myths or stereotypes,” that would indicate that an individual is unable to perform a job or poses a significant safety risk, even with a reasonable accommodation, before taking an adverse action against the individual.

Question 2 addresses the right of an applicant or employee to keep a mental health condition private. The EEOC notes that under the ADA, employers are only permitted to ask questions about the medical or health information of an applicant or employee when (1) an individual requests a hiring process or workplace accommodation; (2) when the employer requests medical information or testing post-offer, but pre-employment, provided everyone entering the same job category is subject to the same requirement; (3) when the employer is engaging in affirmative action for persons with disabilities; and (4) when there is “objective evidence” that the employee may not be able to do his or her job or poses a safety risk in the workplace because of his or her condition.

Questions 3 through 6 respond to hypothetical questions about when a reasonable accommodation may be required, how to request one, and the employer’s obligation to respond, even when no accommodation exists that permits an employee to fulfill the essential functions of a position. The EEOC’s responses here reveal the breadth of the Agency’s interpretation of the ever-vexing question of what constitutes a reasonable accommodation.  In the first instance, in response to Question 3, the EEOC, without using the word “disability,” states that an individual is entitled to a reasonable accommodation for “any mental health condition that would, if left untreated, ‘substantially limit’ your ability to concentrate, interact with others, communicate, eat, sleep, care for yourself, regulate your thoughts or emotions, or do any other ‘major life activity.’”   The EEOC notes that the mental health condition need not be either permanent or severe to constitute “substantially limiting” and that conditions like major depression, post-traumatic stress disorder (PTSD), bipolar disorder, schizophrenia, and obsessive compulsive disorder (OCD) should “easily qualify.”

The answer to Question 3 also provides broad, if imprecise, definition of reasonable accommodation, defining it as simply “some type of change in way things are normally done at work” and providing standard examples such as altered break and work schedules, quiet office space, changes in supervisory methods, along with some more controversial recommendations, such as choice of specific shift assignments and permission to work from home. And in Question 6, the Agency re-states the EEOC’s vague standard that an employee who is unable to perform the essential functions of his or her position, even with an accommodation, may be entitled to an indeterminate amount leave – independent of FMLA leave – that “will help you get to a point whether you can perform those functions.” The document also notes that failing leave, if an employee is “permanently” unable to perform his or her job, he or she may be entitled to job reassignment.  Importantly, the Agency does not caveat here that any request for reasonable accommodation must be fundamentally intended to facilitate the employee’s performance the essential functions of the job. Rather, the document implies that by virtue of having a mental health condition an individual or employee may be entitled to ask for some “change in the way things are normally done at work.”

Questions 4 and 5 fortunately return to well-worn ADA principles. The EEOC directs employees who need a reasonable accommodation to ask for one and encourages employees to do so before workplace difficulties arise because “an employer does not have to excuse poor job performance, even if it was caused by a medical condition or the side effects of medication.” The EEOC also notes that  employers are entitled to ask for health care provider documentation verifying the employee has a mental health condition and requires a workplace accommodation because of it.  The document provides the link to what it terms the “companion document” –The Mental Health Provider’s Role in a Client’s Request for a Reasonable Accommodation at Work .  The EEOC suggests that individuals provide the document to their health care providers when seeking medical documentation in relation to a request for a reasonable accommodation.  The document also reminds that if a reasonable accommodation, justified by relevant medical provider documentation, would help an employee do his or her job, the employer must implement it barring “significant difficulty or expense.”

Though only informal guidance, this resource document reminds employers of the EEOC’s expansive interpretation of what constitutes a reasonable workplace accommodation.   What does that mean for employers? Employers should continue to meaningfully engage in the interactive process with any employees seeking workplace accommodations for a physical or mental disability and assiduously document those efforts.  In light of this guidance, however, employers should strongly consider seeking trusted legal counsel before denying a requested accommodation or taking adverse action against an employee who has or is seeking an accommodation.

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