By Minh N. Vu

Seyfarth Synopsis:  The California Court of Appeals puts an end to lawsuits against online only businesses in California and calls out DOJ and Congress for inaction.

In a precedent setting, 35-page opinion, the California Court of Appeals yesterday closed the door on California lawsuits brought against online only businesses, agreeing with the U.S. Court of Appeals for the Ninth Circuit that websites are not “public accommodations” covered by Title III of the ADA.  It also held that creating and maintaining an inaccessible website cannot constitute intentional discrimination under the Unruh Act.

The blind plaintiff in Martinez v, Cot’n Wash, Inc. alleged that the online only retailer had engaged in disability discrimination in violation of California’s Unruh Act by having a website that he could not use with his screen reader software.  There are two ways to establish a violation of the Unruh Act: prove (1) intentional discrimination; or (2) a violation of Title III of the ADA.  Martinez claimed that he had alleged sufficient facts to establish a violation under both theories.

Martinez struck out on both counts.

With regard to the intentional discrimination theory, Martinez argued that the retailer’s failure to take action in response to his demand letters complaining about the website’s accessibility barriers constituted intentional discrimination.  The Court disagreed, reiterating that “[a] claimant may not “rel[y] on the effects of a facially neutral policy on a particular group… to infer… a discriminatory intent.” The Court also said that “a failure to address known discriminatory effects of a policy” is not sufficient to establish intentional discrimination under the Unruh Act.

As for Martinez’s claim that the online-only retailer had violated Title III of the ADA, the Court opined that “even after examining the language of the statute and considering maxims of statutory interpretation and legislative history pre-dating passage of the law, we remain without a clear answer as to whether a purely digital retail website can constitute a ‘place of public accommodation’ in the context of Title III.”  The Court thus turned to what it called “the third and final step in the interpretive process.”   The Court explained:

In this phase of the process, we apply reason, practicality, and common sense to the language at hand.  Where an uncertainty exists, we must consider the consequences that will flow from a particular interpretation.  Based on such an analysis, we ultimately find dispositive that adopting Martinez’s proposed interpretation of “place of public accommodation” would mean embracing a view that Congress (through its inaction since the enactment of the ADA) and the DOJ (through its unwillingness to draft regulations) have both tacitly rejected.

The Court observed that since 2010, Congress and the DOJ recognized the need to address through legislation or regulations whether and under what circumstances a website constitutes a “place of public accommodation” but chose to do nothing, suggesting that neither the DOJ nor Congress “officially endorses” the coverage of websites by the ADA.  The Court stated that:

Congress’s failure to provide clarification in the face of known confusion—and, to a lesser extent, the DOJ’s similar failure—is not a reason for us to step in and provide that clarification.  To the contrary, it is a reason for us not to do so.  This is particularly true, given that providing clarification in the manner Martinez requests could have sweeping effects far beyond this case, none of which has been the subject of legislative fact-finding.

In short, the Court said it was not its place to “adopt an interpretation of the statute that is not dictated by its language, especially in the face of… legislative and agency inaction.”

Martinez will likely file a petition for review by the California Supreme Court, but that court’s review is entirely discretionary and less than five percent of petitions are granted.  Thus, this decision will likely stand as binding precedent on all California trial courts.

The significance of this decision for online only businesses cannot be overstated.  It means that plaintiffs cannot successfully sue them for having inaccessible websites in California state or federal courts.  As discussed, the U.S. Court of Appeals for the Ninth Circuit has long held that a website is not a place of public accommodation covered by Title III of the ADA.  This decision will certainly reduce the number of lawsuits brought in California state and federal courts by plaintiffs enticed by under the Unruh Act’s $4,000 minimum statutory damages provision.

The data underscores the importance of this decision.  Relatively few website accessibility lawsuits have been filed in California federal court – most likely because of the Ninth’s Circuit’s position on online only businesses.  California plaintiffs have favored state court where a few judges, until now, were willing to allow suits against online only businesses and even found that having an inaccessible website could constitute intentional discrimination under Unruh.

Businesses must keep in mind, however, that this decision has little impact on claims relating to websites that have a nexus to a physical facility where goods and services are offered to the public.  Such websites would likely be considered a benefit or service of a brick and mortar place of public accommodation, and be covered by Title III’s non-discrimination mandate.

Edited by Kristina M. Launey

By Adam R. Young, A. Scott Hecker, Patrick D. Joyce, Mark A. Lies, II, James L. Curtis, Brent I. Clark, Benjamin D. Briggs, and Craig B. Simonsen

Seyfarth Synopsis: The WHO and the CDC have updated statements and FAQs on the monkeypox disease, declaring the disease a “Public Health Emergency of International Concern.”

Taken from https://www.cdc.gov/poxvirus/monkeypox/response/2022/world-map.html

On August 4, 2022, the Biden Administration, through the U.S. Department of Health and Human Services, joined the WHO in declaring a public health emergency. Apart from the CDC’s guidance for congregate and healthcare settings, neither the CDC nor OSHA has released any guidance related to monkeypox in the workplace or otherwise identified monkeypox as a workplace hazard.

As always, Seyfarth’s Workplace Safety and Health team will advise employers on any direct impacts as this situation develops.

On July 23, 2022, the WHO declared monkeypox a “Public Health Emergency of International Concern” and issued a set of Temporary Recommendations to address a multi-country outbreak of monkeypox. These recommendations apply differently to countries with no known transmission versus those with known human-to-human transmission. For countries with known human-to-human transmission, the WHO recommends implementing response actions with the goal of stopping human-to-human transmission, implementing strategies to protect vulnerable groups, and engaging with affected communities to raise awareness about monkeypox transmission. The WHO also recommends various public health measures such as increasing laboratory testing capacity and assisting local public health authorities with creating messaging for those who contract or are exposed to monkeypox.

No Specific Employer Action Plan Required at This Time

Unlike COVID, which is transmitted in the air, monkeypox’s primary route of transmission is through skin to skin contact with someone who has the disease. Accordingly, with the exception of the healthcare industry, monkeypox is currently viewed as a public health hazard and not a workplace health hazard. As such, there are no specific federal, state, or local rules that address monkeypox precautions in the workplace. As with COVID-19, we recommend tracking CDC guidance related to monkeypox and taking the necessary steps to abate any potential hazard in the workplace that may arise. However, as of the publication of this blog, neither the CDC nor OSHA have issued workplace guidance related to monkeypox other than in the healthcare industry. It is possible CDC or OSHA may issue workplace guidance related to monkeypox in the future, however, at this time employers do not need to restart COVID-19 protocols to address monkeypox.

It should also be noted that employees who contract or who are treated for monkeypox may have certain protections under Federal and state law against discrimination. For example, monkeypox can be considered a “serious” health condition under the Family and Medical Leave Act (FMLA) that would entitle an employee to a qualifying leave for treatment and reinstatement to their former job after they have been treated. Likewise, the employee may have some protections under the Americans with Disabilities Act (ADA) if the disease were to be considered or result in a “disability” entitling the employee to a leave for treatment or an “accommodation” upon returning to work if the disease were to result in a disability after treatment.

Signs and symptoms

The WHO indicates that the incubation period of monkeypox is usually from 6 to 13 days but can range from 5 to 21 days. This means that individuals could develop symptoms 5-21 days after exposure to the illness.

Centers for Disease Control on Monkeypox

The CDC is saying that an outbreak of monkeypox is currently spreading across several countries that are not typical sources of monkeypox infections, including the United States. “Over 99% of people who get this form of the disease are likely to survive. However, people with weakened immune systems, children under 8 years of age, people with a history of eczema, and people who are pregnant or breastfeeding may be more likely to get seriously ill or die.”

The infection can be divided into two periods:

  • The invasion period (lasts between 0–5 days) characterized by fever, intense headache, lymphadenopathy (swelling of the lymph nodes), back pain, myalgia (muscle aches) and intense asthenia (lack of energy). Lymphadenopathy is a distinctive feature of monkeypox compared to other diseases that may initially appear similar (chickenpox, measles, smallpox)
  • The skin eruption usually begins within 1–3 days of appearance of fever. The rash tends to be more concentrated on the face and extremities rather than on the trunk.

For more information on this or any related topic, please contact the authors, your Seyfarth attorney, or any member of the Workplace Safety and Health (OSHA/MSHA) Team.

By Minh N. Vu  and Kristina M. Launey

Seyfarth Synopsis: In this blog we examine data showing an unexpected drop in the number of Title III Americans with Disabilities Act suits filed so far in 2022, particularly in California.

The year 2021 was a blockbuster for ADA Title III lawsuits filed in federal court, with over 11,452 filings. At the end of June 2021, the lawsuit count was 6,304. This year, the number of lawsuits filed by the end of June 2022 has dropped to 4,914 — a stunning 22 percent reduction.

Mid-year numbers in prior years were as follows:

Mid-Year ADA Title III Federal Lawsuit Filings 2017-2022: 2017: 4,127; 2018: 4,965; 2019: 5,592; 2020: 4,751; 2021: 6,304; 2022: 4,914.

As you can see, we’re back at 2018 numbers. Yes, 2020 was lower, but that was the year of COVID-19 lockdowns. The 2022 count was so low, in fact, that we had to double-check our figures.

We couldn’t help but notice that the California numbers took a similar dive. Here’s a little history of the Golden State’s mid-year count:

California Mid-Year ADA Title III Federal Lawsuit Filings 2017-2022: 2017: 1,440; 2018: 2,155; 2019: 2,444; 2020: 2,702; 2021: 3,340; 2022: 1,587.

In 2022, there were 1,753 fewer federal filings in California compared to 2021, for a whopping 52 percent drop.

What’s behind this radical change? One law firm which calls itself the Center for Disability Access (aka Potter Handy) only filed 397 federal lawsuits in the first six months of 2022 as compared to 1,729 such suits for the same period in 2021. We have seen less activity from other California firms as well.

One reason for the decrease could be the increased scrutiny on these accessibility lawsuits by law enforcement officials.

For example, in April 2022, the Los Angeles and San Francisco District Attorneys filed a civil lawsuit1 against the Center for Disability Access alleging fraudulent conduct in connection with its lawsuit activities. And in May 2022, the San Francisco District Attorney lodged 18 felony charges2 against attorney Kousha Berokim who allegedly filed fraudulent accessibility lawsuits against San Francisco businesses. These actions may have had a chilling effect on the plaintiffs’ bar in California and elsewhere.

A close examination of the 2022 mid-year figures also reveals that — although California’s numbers were down by more than 52 percent — the national figures only fell by 22 percent. So which state is picking up the slack? Start spreading the news, it’s New York.

New York has had a substantial number of filings ever since we first started keeping these statistics in 2013. From 2013 to 2017, New York held third place, behind California and Florida. Then, in 2018, New York surged into second place thanks to several New York attorneys who filed hundreds of lawsuits a year about allegedly inaccessible websites and the lack of Braille gift cards. Now, for the very first time, New York has taken the number one spot for federal ADA Title III federal filings — at least for the first half of 2022. Here are the mid-year numbers of the five sttes with the highest number of filings.

2022 Mid-Year Federal ADA Title III Filings for Top 5 States: PA: 152; TX: 191; FL: 659; CA: 1,587; NY: 1,819.

Will New York be the hottest jurisdiction for ADA Title III federal lawsuits at the end of the year? Or will California manage to regain its dominance? Stay tuned …

Our Methodology: Our overall ADA Title III lawsuit numbers come from the federal court’s docketing system, PACER. However, because the area of law code that covers ADA Title III cases also includes ADA Title II cases, our research department reviews the complaints to remove those cases from the count.

Notes

1 https://bit.ly/3PKcuJU 

2 https://bit.ly/3cCvDP5

By Erin Dougherty Foley and Kimberly Shen, Summer Fellow

Seyfarth Synopsis: On July 14, 2022, the U.S. Court of Appeals for the Seventh Circuit affirmed summary judgment in an Americans With Disabilities Act discrimination and retaliation case filed by an employee with multiple sclerosis. In rejecting the plaintiff’s claims, the Court’s decision points to the importance of employers having legally compliant paid-time off policies

Many employers have had that experience of trying to manage that one employee who is constantly calling in “sick” and taking what feels like excessive time off. While some employees take time off for legitimate reasons, recurring unscheduled absenteeism can pose long-term problems for a company, especially if the employee is taking excessive paid time off.

When tackling this issue, employers should be wary when “that” employee is missing work for a reason that also qualifies as a legally protected absence. A recent decision from the U.S.  Court of Appeals for the Seventh Circuit points to the importance of creating a legally compliant time-off policy regarding employee absences.

Case Background

In Parker v. Brooks Life Science, Inc., Suzanne Parker, a woman with multiple sclerosis, started working for her employer as a part-time receptionist in 2017.

Throughout her employment, Parker had multiple supervisors and received mixed feedback on her work performance. In particular, Parker needed coaching regarding her misuse use of paid time off (PTO). The company’s PTO policy stipulated that employees must receive prior approval from their supervisors for planned time off and must enter the PTO hours they used in the company’s payroll software. Employees did not have to use their accumulated PTO if they arranged to switch shifts, but employees who wanted to plan schedule changes needed to receive their supervisor’s approval in advance. Meanwhile, for unplanned absences, Parker’s supervisor required her direct reports to request and enter PTO if a change to the schedule amounted to a change of thirty minutes or more.

Parker’s supervisor learned that during her absence, Parker had taken unapproved time off and made schedule changes multiple times. Her supervisor later approved Parker’s requests for time off, but reprimanded Parker for repeatedly violating the company’s PTO policy. In response, Parker acknowledged that she needed to do a better job at following the company’s policy. Her supervisor understood Parker’s statements to be admissions and contacted HR, recommending termination. After receiving approval from HR, the supervisor informed Parker that her employment with the company was being terminated.

After her termination, Parker filed a charge with the Equal Employment Opportunity Commission (“EEOC”), claiming that she had been discriminated against on the basis of her disability. Parker then sued her employer, alleging she had experienced employment discrimination and that her termination was an act of retaliation due to her request for a reasonable accommodation, in violation of the American with Disabilities Act (“ADA”), 42 U.S. C. § 12101.  [Fun fact, the ADA was enacted into law 32 years ago this week!]

The Court’s Decision

A district court granted summary judgment in Brooks Life Science, Inc.’s favor, and Parker appealed the decision. After hearing her case, the U.S. Court of Appeals for the Seventh Circuit affirmed the lower court’s decision. The Seventh Circuit held that Parker failed to produce evidence that allowed a reasonable juror to infer a link between her request for time off for pain treatment and her termination.  Even though Parker tried to argue that the fact she was fired three days after she asked for an accommodation, the Seventh Circuit found that the timing of her termination alone was not enough to establish that she had been fired due to her disability because Parker’s supervisor only learned of Parker’s unauthorized schedule changes in the intervening period between when she granted Parker’s requested accommodation and when she ultimately terminated Parker. Moreover, the Seventh Circuit noted that Brooks Life Science, Inc. had produced extensive email documentation regarding Parker’s performance issues, including emails regarding Parker’s failure to follow company PTO policy on multiple occasions, Parker’s taking unauthorized time off, Parker’s unresponsiveness to coaching, and Parker’s substandard work quality. Most notably, in one email, Parker’s supervisor had written: “Not only have I discussed this with [Parker] multiple times, but included HR. She will not follow policy and is not meeting the expectations clearly laid out for her. . .I have tried to reinforce the expectations, and I spend more time managing [Parker] tha[n] I think is beneficial to the company.” As a result, the Seventh Circuit concluded that Parker’s refusal to adhere to Brooks Life Science, Inc.’s PTO policy and failure to follow her supervisor’s instructions and coaching led to her termination.

Best Practices for Employers

The Seventh Circuit’s decision in Parker v. Brooks Life Science, Inc. reflects the importance of employers maintaining a legally compliant PTO policy. While Brooks Life Science, Inc. had experienced a favorable legal outcome in part due to the company’s documentation regarding the plaintiff’s consistent failures to follow the company’s clearly defined PTO policy, employers everywhere should still ask themselves if their PTO policies cover all their legal bases.

Employers looking to design a legally compliant PTO policy should aim to include the following:

  • Expected business hours and number of hours worked each week
  • Requirements for the clock-in/clock-out procedure
  • Expectations for paid and unpaid leave, including when and how employees qualify for leave and how much they accrue each week
  • Processes for requesting leave, including deadlines for vacation requests and blackout periods
  • Consequences if an employee fails to adhere to the policy

Whether employers are creating their first PTO policy or revising an existing policy, employers should always ensure their PTO policy lays out clearly defined expectations. Employers should also make sure that their PTO policy is shared among all employees, supervisors, and managers. After all, taking steps to ensure that everyone understands the rules of the PTO policy could ultimately work wonders in protecting companies from discrimination or retaliation lawsuits later down the road.

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

By Adam R. Young, A. Scott Hecker, Patrick D. Joyce, Mark A. Lies, II, James L. Curtis, Brent I. Clark, and Craig B. Simonsen

Seyfarth Synopsis: The WHO and the CDC issued statements and FAQs on the monkeypox disease, declaring the disease a “Public Health Emergency of International Concern.”

On July 23, 2022, the WHO declared monkeypox a “Public Health Emergency of International Concern” and issued a set of Temporary Recommendations to address a multi-country outbreak of monkeypox. These recommendations apply differently to countries with no known transmission versus those with known human-to-human transmission. For countries with known human-to-human transmission, the WHO recommends implementing response actions with the goal of stopping human-to-human transmission, implementing strategies to protect vulnerable groups, and engaging with affected communities to raise awareness about monkeypox transmission. The WHO also recommends various public health measures such as increasing laboratory testing capacity and assisting local public health authorities with creating messaging for those who contract or are exposed to monkeypox.

No Specific Employer Action Plan Required at This Time

Unlike COVID, which is transmitted in the air, monkeypox’s primary route of transmission is through skin to skin contact with someone who has the disease. Accordingly, with the exception of the healthcare industry, monkeypox is currently viewed as a public health hazard and not a workplace health hazard. As such, there are no specific federal, state, or local rules that address monkeypox precautions in the workplace. As with COVID-19, we recommend tracking CDC guidance related to monkeypox and taking the necessary steps to abate any potential hazard in the workplace that may arise. However, as of the publication of this blog, neither the CDC nor OSHA have issued workplace guidance related to monkeypox other than in the healthcare industry. It is possible CDC or OSHA may issue workplace guidance related to monkeypox in the future, however, at this time employers do not need to restart COVID-19 protocols to address monkeypox.

It should also be noted that employees who contract or who are treated for monkeypox may have certain protections under Federal and state law against discrimination. For example, monkeypox can be considered a “serious” health condition under the Family and Medical Leave Act (FMLA) that would entitle an employee to a qualifying leave for treatment and reinstatement to their former job after they have been treated. Likewise, the employee may have some protections under the Americans with Disabilities Act (ADA) if the disease were to be considered or result in a “disability” entitling the employee to a leave for treatment or an “accommodation” upon returning to work if the disease were to result in a disability after treatment.

Signs and symptoms

The WHO indicates that the incubation period of monkeypox is usually from 6 to 13 days but can range from 5 to 21 days. This means that individuals could develop symptoms 5-21 days after exposure to the illness.

Centers for Disease Control on Monkeypox

The CDC is saying that an outbreak of monkeypox is currently spreading across several countries that are not typical sources of monkeypox infections, including the United States. “Over 99% of people who get this form of the disease are likely to survive. However, people with weakened immune systems, children under 8 years of age, people with a history of eczema, and people who are pregnant or breastfeeding may be more likely to get seriously ill or die.”

The infection can be divided into two periods:

  • The invasion period (lasts between 0–5 days) characterized by fever, intense headache, lymphadenopathy (swelling of the lymph nodes), back pain, myalgia (muscle aches) and intense asthenia (lack of energy). Lymphadenopathy is a distinctive feature of monkeypox compared to other diseases that may initially appear similar (chickenpox, measles, smallpox)
  • The skin eruption usually begins within 1–3 days of appearance of fever. The rash tends to be more concentrated on the face and extremities rather than on the trunk.

For more information on this or any related topic, please contact the authors, your Seyfarth attorney, or any member of the Workplace Safety and Health (OSHA/MSHA) Team.

By Linda C. Schoonmaker and Tayte Doddy, Summer Fellow

Seyfarth Synopsis:  In 2013, Yvonne Cardwell, a dishwasher at a Whataburger in El Paso, Texas, was injured when a heavy object fell off of a top shelf and hit her in the head. Whataburger moved to compel the lawsuit she filed against her employer to arbitration, pursuant to its mandatory arbitration policy.

Whataburger’s mandatory arbitration policy (“Policy”) required all employees, as a form of accepting employment, to agree to submit all legally recognized claims and disputes related to their employment to arbitration. The Policy also bound Whataburger to the same terms, but included a provision stating  “any employee who continues to work for the company for more than 30 days after any amendment in the company Arbitration policy shall be deemed to have consented to the changes in the Policy.” The exception to this provision, however, was that once facts gave rise to a legally recognized claim or dispute, Whataburger had no right to unilaterally modify the Policy relating to the claim or dispute without the mutual consent of both parties. The Policy also required Whataburger to give its employees at least 30 days advanced notice of the any amendment.

The Policy was contained in the Whataburger Employee Handbook (“Handbook”). The Handbook was labeled as a “guide”, and Whataburger reserved the right to modify or delete any part of the Handbook without notice. Cardwell signed an acknowledgement form indicating that she had received the Handbook and Policy, and initialed a paragraph that expressly stated all claims or disputes will be submitted to arbitration.

In August 2013 the trial court found the Policy to be unconscionable and denied Whataburger’s motion to compel arbitration. On appeal in October 2014, the court of appeals rejected the trial court’s unconscionability analysis, reversed its order, and remanded with instructions to grant Whataburger’s motion to compel arbitration. But, the court of appeals failed to adjudicate cross points Cardwell had briefed in support of the trial court’s order. The Texas Supreme Court granted Cardwell’s petition for review, and remanded to the court of appeals to address Cardwell’s arguments.

On remand, the court of appeals rejected all of Cardwell’s remaining arguments except one: that the Policy was illusory because Whataburger could revoke it at any time. Conflating the non-binding employee Handbook and binding arbitration Policy as one entity, Cardwell argued that since the handbook could be modified at any time and the arbitration policy was included within the handbook, the entire policy was illusory because Whataburger retained the right to unilaterally modify the Policy. The court of appeals declined to resolve the issue and remanded the case back to the trial court.

Nearly five years after the initial filing, the trial court denied the motion to compel arbitration again. However, the trial court clerk failed to give Whataburger or Cardwell notice of the order denying the motion to compel arbitration. There is generally a 20-day timeline to appeal this kind of order, and if a party does not receive notice within 20 days after the order, the timeline for appeal is extended to a maximum of 90 days. Whataburger was not informed of the trial order until 153 days had passed, nearly five months after the order was issued. Whataburger immediately requested reconsideration from the trial court due to being stripped of its right to appeal. The trial court denied the motion, and Whataburger requested mandamus relief from the court of appeals. The court of appeals also denied the relief, and Whataburger then requested mandamus relief from the Supreme Court of Texas.

Nine years after the initial filing of the lawsuit, the Texas Supreme Court held that Whataburger was not given an adequate chance to appeal, that its promise to arbitrate was not illusory or unenforceable, and that the acknowledgement referring to the Policy did not condition the parties’ promises to arbitrate on an employee’s continued, at-will employment. The Court cited the trial court clerk’s failure to notify the parties of its order and the trial court’s erroneous interpretation of the Policy and Acknowledgement as reasons for its deciding the trial court abused its discretion in failing to compel arbitration.

TAKEAWAYS

Employers should be cautious about how an arbitration policy is communicated to employees, including where it is placed. When binding documents like an arbitration policy and non-binding documents like an employee handbook are combined in a single publication, there is room for employees to argue against the binding nature of the arbitration policy.

To avoid this argument it is prudent to separate all binding and non-binding documents so that there is very little potential for confusion . Employers should also include language in the arbitration agreement that expressly limits the employer’s ability to unilaterally change the policy after an event giving rise to a claim has occurred to reduce the chance of a court finding that the agreement is unconscionable or illusory. However, an employer still may have to wait a long time before the final decision regarding compelling arbitration is made-but hopefully less than 9 years.

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

By Vy’Shaey Mitchell and Erin Dougherty Foley

Seyfarth Synopsis: In a recent ruling, Brooks v. Avancez, (Decided July 6, 2022) the U.S. Court of Appeals for the Seventh Circuit affirmed a finding for summary judgment for an employer after it was found to have terminated its employee for legitimate non-discriminatory reasons. The decision makes clear that an employer may avoid “cat’s paw liability” where the decision maker is not wholly dependent upon a single source of information and conducts her own investigation into the facts relevant to the decision.

In its July 6, 2022 Decision, the Seventh Circuit Court of Appeals affirmed that Avancez lawfully terminated the plaintiff, Ms. Brooks for making various threats of violence toward her co-workers, rather than (as she alleged) because of her age and disability – PTSD. Avancez is an auto parts manufacturer located in Roanoke, Indiana. Ms. Brooks alleged that during her employment with Avancez, she repeatedly complained of unfair treatment and derogatory comments based on her age and disability by her co-workers. The Court found that Ms. Brooks failed to provide sufficient examples of any age based comments, rather she described, generally, that two of her co-workers made statements that she was old and slow. The Court further found that there was no evidence that Ms. Brooks complained of disability discrimination, rather she only stated that certain workplace situations exacerbated her preexisting PTSD.

However, there was sufficient evidence, including Ms. Brooks’ concession, that management – on two separate occasions – believed that Ms. Brooks made threats toward her co-workers. On one occasion, Ms. Brooks, during a meeting with the human resources manager, allegedly stated “I have PTSD and anything can happen.” On another occasion, Ms. Brooks, during a disagreement with a co-worker stated, “we can take it outside.” On both occasions, management advised Ms. Brooks that they believed her comments constituted threats.

Ms. Brooks nevertheless maintained that her co-workers’ discriminatory remarks regarding her age raised an inference of discrimination. The Court disagreed. The Court found that even under Brooks’ “cat’s paw” theory of liability, there was no evidence that the non-supervisor actually harbored discriminatory animus against her and Avancez’s management, after conducting its own investigation, which included Ms. Brooks’ history of making threats to co-workers and her refusal to sign off on the discipline report,  made the decision to terminate Ms. Brooks’ employment.

The Court, therefore, disregarded Ms. Brooks’ “scattershot” attempts to provide evidence of pretext, and found that Avancez met its burden of production by providing a legitimate non-discriminatory reason for terminating her employment.

Practical Point – conduct your own investigations before termination

A manager responsible for making a decision as to whether to terminate an employee’s employment should be diligent and ensure that they are not performing the discriminatory acts of another individual. Pursuant to the Cat’s Paw theory of liability, employers may be found liable for discrimination where there is evidence that the unbiased decision maker is influenced to take an adverse action by another employee with discriminatory intent.  However, an inference of pre-text can be thwarted where the decision maker conducts his/her own investigation into the company’s basis for terminating an employee.

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

By Samantha L. Brooks, Karla Grossenbacher, and A. Scott Hecker

Seyfarth Synopsis: On July 12, 2022, the U.S. Equal Employment Opportunity Commission issued updated guidance for employers on the interplay of workplace bias laws and COVID-19 workplace testing, vaccinations, and other return-to-work issues, including reasonable accommodations and access to employees’ confidential medical information.  Employers continue to face these issues as the workplace returns to some level of pre-COVID-19 normalcy.  Employers should be diligent in reviewing the updated guidance to ensure their policies and practices are compliant.

Introduction

The EEOC has once again updated its pandemic-related Technical Assistance guide for employers — “What You Should Know About COVID-19 and the ADA, Rehabilitation Act, and Other EEO Laws” (the “Guidance”) — on the subjects of workplace testing and other return-to-work issues.  In this document, the EEOC has revised the Guidance in a manner that takes into account the current phase of the pandemic and employers’ renewed emphasis on returning to in-person or hybrid work.

Workplace Testing

In the prior version of the Guidance, the EEOC took the position that screening testing was allowed under the ADA, even though COVID-19 viral tests qualify as medical examinations under the ADA, because “an individual with the virus will pose a direct threat to the health of others.”  The EEOC also stated in the prior Guidance that “[t]esting administered by employers consistent with current guidance from the Centers for Disease Control (CDC) will meet the ADA’s ‘business necessity’ standard.”

Now, in Section A.6 of the revised Guidance, the EEOC has removed the language stating that screening testing can be justified based on a direct threat analysis and replaced it with the statement that employers who want to conduct mandatory COVID testing for screening purposes will need to show that it is “job-related and consistent with business necessity” within the meaning of the ADA.

Although the Guidance states generally that employer use of a viral test to screen employees who are or will be in the workplace will meet the “business necessity” standard when consistent with guidance from the CDC, the Food and Drug Administration, and state and local public health authorities that is current at the time of testing, it also cautions employers that this guidance changes periodically.  In addition, the EEOC goes on to identify a number of considerations for employers to take into account in determining whether a business necessity justifies mandatory screening testing, presumably in the event the need for screening testing is not addressed by CDC, FDA, or local health authority guidance.  These factors include the level of community transmission, the vaccination status of employees, and what types of contacts employees may have in the workplace or work location.  The revised Guidance does not draw a distinction between screening testing required in the normal course and screening testing required of an unvaccinated person as an accommodation to a vaccine mandate.

Although some might view this change in approach to screening testing as setting a high bar for employers, the EEOC explains in its preamble to the revised Guidance that “[t]his change is not meant to suggest that such testing is or is not warranted; rather, [it] acknowledges that evolving pandemic circumstances will require an individualized assessment by employers to determine whether such testing is warranted consistent with the requirements of the ADA.”

Employee Return to Work After COVID-19

In Section A.5., the EEOC clarified that when an employee returns to the workplace after being out with COVID-19, the ADA allows employers to require a note from a medical professional explaining that the individual is able to safely return to work.  The revised Guidance explains that this is permitted under the ADA because, even if requesting such a note is a disability-related inquiry, it is justified under the business necessity standard because it is “related to the possibility of transmission and/or related to an employer’s objective concern about the employee’s ability to resume working.”  Alternatively, the Guidance provides that, instead of requiring such a note, employers may follow CDC guidance to determine whether it is safe for an employee to return to the workplace without a note from a medical professional.

Screening Applicants for COVID-19/Withdrawals of Offers

According to Section C.1. of the Guidance, if an employer screens everyone for COVID-19 before entry to the workplace (including employees, contractors, visitors, etc.), the employer can  screen an applicant who enters the workplace for an interview in the pre-offer stage in the same manner.  Otherwise, employers may screen job applicants for COVID-19 symptoms after making a conditional job offer, as long as they apply such policies consistently to all employees in the same type of job.

Under the EEOC’s previous Guidance, if an applicant to whom the employer had extended an offer and who needed to start work immediately tested positive for or had symptoms of COVID-19, an employer was permitted to withdraw the job offer.  Now, revised Section C.4 of the Guidance provides that, if an applicant who needs to start work immediately and has been extended an offer tests positive for COVID-19, has symptoms of COVID-19, or has been exposed recently to someone with COVID-19, the employer may withdraw the offer only if (1) the job requires an immediate start date; (2) CDC guidance recommends the person not be in proximity to others; and (3) the job requires such proximity to others, whether at the workplace or elsewhere.  The EEOC advises in the revised Guidance that employers should also look to see if a start date can be adjusted before withdrawing an offer.

Reasonable Accommodations

Delays.  In the prior version of the Guidance, the EEOC essentially acknowledged that pandemic-related delays in responding to accommodation requests were an inevitable reality given the large-scale shutdowns in early pandemic days.  In Section D.17 of the revised Guidance, the EEOC now states, in yet another acknowledgement that the circumstances surrounding the pandemic are no longer as dire as they once were, that an employer will be required to show specific pandemic-related circumstances that justify a delay in providing a reasonable accommodation to which an employee was entitled.  Thus, although the EEOC acknowledges that ongoing developments in the pandemic may present additional delays in promptly responding to employee requests for accommodation and that reopening the workplace may result in a large number of such requests, it will not be sufficient for an employer to argue that any such delays were caused by general “pandemic-related delays” or “pandemic-related staffing issues.”

Accommodations and PPE Policies.  The revised Guidance clarifies that, although an employer is generally permitted by federal EEO laws to require employees to wear personal protective equipment (PPE) and/or engage in other infection control practices, such as hand washing,  employers must provide accommodations under the ADA and Title VII, absent undue hardship, if employees cannot comply with these requirements.  In addition, in Section G.2 of the revised Guidance, the EEOC addresses the interplay between regulations issued by the Occupational Safety and Health Administration (OSHA) and the federal EEO laws.  The EEOC acknowledges that some employers may be required to comply with regulations issued by OSHA that require the use of PPE and that such OSHA regulations do not prohibit reasonable accommodations under ADA or Title VII — as long as those accommodations do not violate OSHA requirements.

COVID-19 Vaccinations

In the revised Guidance, while confirming an employer’s right to mandate the COVID-19 vaccine (subject to the reasonable accommodation provisions of the ADA and Title VII) and require proof of vaccination, the EEOC expands the scope of current confidentiality regulations related to the confidentiality of documentation or other confirmation of vaccination.

In Section K.4, the EEOC reiterates its prior guidance that an employee’s COVID-19 vaccination status (or COVID-19 test results), like all employee medical information, must be kept confidential and separated from the employee’s personnel file under the ADA.  However, the revised Guidance states, for the first time, that an employer may share such confidential information with employees “who need it to perform their job duties.”  The revised Guidance provides examples of employees who need to access confirmation of vaccination of other employees:

(a) an administrative employee assigned to perform recordkeeping of employees’ documentation of vaccination;

(b) an employee assigned to permit building entry only to those employees who are in compliance with a work restriction, such as COVID-19 vaccinations, testing, and/or masking). Such an employee may receive a list of employees who may or may not enter the workplace, but may not receive confidential medical information about why they are (or are not) on the list; and

(c) an employee tasked to ensure compliance with a testing requirement for employees who needs to review testing documentation submitted by those employees.

Employees who are given access to confidential medical information in order to perform their job duties must keep it confidential, and presumably it is the employer’s responsibility to see that they do.

Implications For Employers

The updated Guidance reflects that employers and employees alike will feel the impacts of the COVID-19 pandemic for the foreseeable future.  Employers need to review their current practices and policies regarding mandatory testing, screening, and/or vaccinations programs; collection of proof of vaccination and/or testing records; and their accommodation processes to ensure compliance with the updated Guidance. Indeed, it is best practice for employers to regularly check for updates from the EEOC and CDC, and to regularly review their practices and policies to ensure compliance.

Please contact your Seyfarth relationship attorney or the authors of this blog for assistance.

The Employment Law Lookout is taking a holiday break this week, but will resume delivering insightful discourse and updates on the day’s most pressing workplace issues next week.

In the meantime, we want to wish all of our readers, contributors, and editors a safe and happy Fourth of July holiday.  We hope you are able to spend time with family, friends, and loved ones and rest assured knowing that we’ll be on the lookout for more management insights to bring you soon.

Thank you and Happy Fourth.

By: Julia Keenan, Alex Drummond and Robert Nobile

On July 1, 2022, the law Florida Governor Ron DeSantis labeled the “Stop the Wrongs to Our Kids and Employees,” or Stop WOKE (“Act”), is set to go into effect, amending Florida’s employment discrimination laws state wide.  The Act is currently facing a First Amendment challenge in Florida.  However, on Monday, June 27, 2022, a federal court in Florida ruled that the Act could move forward and take effect as scheduled.

As such, Florida employers should be aware of the Act’s requirements. Under the Act, it will now be an unlawful employment practice for employers with fifteen or more employees to require any training or program that “espouses, promotes, advances, inculcates, or compels” an employee to believe any of the following notions:

  • that members of one race, color, sex, or national origin are morally superior to members of another group;
  • that an individual, due to his or her race, color, sex, or national origin, is intrinsically racist, sexist, or oppressive;
  • that an individual’s privilege or oppression is inherently determined by his or her race, color, sex, or national origin;
  • that members of one race, color, sex, or national origin cannot and should not try to treat others without respect to race, color, sex, or national origin;
  • that an individual, based on his or her race, color, sex, or national origin, bears responsibility for, or should be discriminated against or treated adversely because of, past actions of his or her ancestors;
  • that an individual, due to his or her race, color, sex, or national origin, should be discriminated against or treated adversely to achieve diversity, equity, or inclusion goals;
  • that an individual, due to his or her race, color, sex, or national origin, bears responsibility for prior actions committed by other members of the same race, color, sex, or national origin, and therefore must feel guilt, anguish, or other emotional distress because of those supposed actions; or
  • that some virtues, including merit, excellence, hard work, fairness, neutrality, objectivity, and racial colorblindness are inherently racist or sexist, or were invented by members of a certain race, color, sex, or national origin to discriminate against or oppress others of a different race, color, sex, or national origin.

In other words, Florida employers cannot require employees to attend or stream (if a webinar) diversity and inclusion programming which teaches any of the above listed ideas.

So, what does this all mean? To be honest, it is not clear. From the text of the law and public comments by elected officials, it looks like Florida is attempting to restrict employers from teaching or promoting diversity and inclusion programming that discusses the origins of systemic racism and privilege while also restricting how employers deal with these issues in the workplace. Specifically, the law seems to prohibit teachings that make employees feel personally responsible for the discrimination suffered by traditionally oppressed groups or feel ashamed of their own personal privilege or freedom from oppression.

Without a clear guidance on the specific types of programming that trigger this new law, it begs the question – how should employers approach diversity, equity, and inclusion (“DEI”) training in the workplace? Is the Act a prohibition against all DEI programming? We don’t think so.

At Seyfarth, we have been working with employers to delicately toe the line between compliance with the Act while also ensuring the employer’s DEI programming is still effectively promoting its values. Employers recognize that DEI efforts are here to stay. One way we have been working together to revise programming, as necessary, to clarify that the employer’s diversity and inclusion programming is in response to the employer’s values and are not due to external political forces.

An example of how we have counseled on this issue is by working with a client to re-tailor its already established diversity and inclusion programming to emphasize that respect and inclusion for all employees, as well as creating opportunities for all, aligns with the Company’s values, business goals and policies. We suggested to the employer that the diversity and inclusion programming should demonstrate that inclusion is a focal point of the Company’s strength. The training should focus on valuing and respecting different backgrounds/experiences and realizing that such differences will benefit the employer’s culture and outcomes, for all.

Potential programming can also explore how diversity in the workplace is about recognizing and appreciating differences and creating avenues for growth and opportunity. Being a diverse, inclusive organization means championing a culture where each person feels seen, heard, and supported. It results in attracting and retaining the best employee talent, as well as increasing productivity and efficiency. Organizations that successfully value diversity and foster sensitivity, respect and inclusion among employees have a clear competitive advantage.

Through this counseling, we are encouraging employers to abstain from blaming certain groups of people for the causes of racism and sexism and instead, focus on how the employer is working to fix these problems and why it is important for the employer to do so. The focus on the programming should be about the benefits diversity and inclusion bring the workforce, and why it is important for employees to recognize these benefits as well.

Seyfarth at Work trains extensively in Florida on Manager EEO, all employee harassment and D&I and its programs all focus on forward-looking best practices – for more information please contact: Rachel Guisinger, Managing Director, Seyfarth at Work – rguisinger@seyfarth.com

We recognize that issues of diversity and inclusion pose difficulties to employers. States around the country are constantly evolving their local laws to address these issues. As such, we are following this law closely, as well as any other similar laws that may be passed nationwide, to keep you informed on the latest news in this subject. Stay tuned for continued updates.