By Jennifer L. Mora

Seyfarth Synopsis: The Equal Employment Opportunity Commission recently settled lawsuits with two employers it claims violated the Americans with Disabilities Act after rejecting a job applicant and terminating an employee based on their prescription drug use.

The opioid crisis is dominating the news. And, employers have reason to be concerned. According to the Bureau of Labor Statistics, overdoses from the non-medical use of drugs or alcohol while on the job increased from 165 in 2015 to 217 in 2016, a 32-percent increase. That same report showed that overdose fatalities have increased by at least 25 percent annually since 2012. Further, the U.S. Centers for Disease Control recently stated that use of prescription opioids can result in serious issues with addiction and that in 2014, nearly two million Americans either abused or were dependent on prescription opioid pain relievers.

However, employers should tread carefully when addressing any prescription drug use in the workplace. It has long been the case that the Americans with Disabilities Act (ADA) and state disability discrimination laws provide protections to applicants and employees taking prescription medication, including opioids, and regulate the right of an employer to inquire about such use. Two recent settlements with the Equal Employment Opportunity Commission (EEOC) highlight a few common issues facing employers.

The Settlements

In one case, the EEOC brought suit against a pre-school that allegedly terminated an afterschool teacher after he disclosed his prior opioid addiction and his participation in a supervised medication-assisted treatment program. As part of his treatment, he was legally prescribed Suboxone, which is a prescription used to treat adults who are dependent on, or addicted to, opioids. The EEOC claimed the school terminated the teacher 30 minutes into his first work day because of his use of this medication. The EEOC claimed that the failure of the school to conduct an individualized assessment to determine what, if any, impact the drug had on the teacher’s ability to perform his job violated the ADA. As part of the settlement, which required a $5,000 payment to the teacher, the EEOC required the school to, among other things:

  • Amend its written drug use policy to include a clear and specific exclusion to the policy for individuals who use legally-obtained prescription medication in a lawfully-prescribed manner.
  • Create an ADA-compliant procedure for conducting an individualized assessment of an employee who is enrolled in any form of alcohol, drug, or illegal substance rehabilitation program in order to determine whether the employee can safely perform the essential functions of his or her position with or without reasonable accommodation.

In another case, the EEOC alleged the employer withdrew an applicant’s job offer based on a positive drug test result for prescription medication. The EEOC also alleged the employer maintained an unlawful policy requiring all employees to report if they were taking any prescription and nonprescription medication. Both actions, according to the EEOC, violated the ADA. The parties settled for $45,000, with a requirement that the employer adopt company-wide policies to prevent future hiring issues under the ADA and only require employees to report prescription medications if the employer has a “reasonable suspicion” that the medication may be affecting performance.

Takeaways for Employers

These settlements serve as a reminder that employers should avoid making adverse decisions based on misperceptions or a lack of information about the effect of lawful prescription drug use on their employees’ ability to perform their job duties. In general, employees have a protected right to use prescribed controlled substances and come to work unless such use creates an undue risk of harm or presents a safety issue. Moreover, employers should take precautions before implementing blanket drug-testing policies that do not account for the need under the ADA to engage in an interactive process with individuals taking prescription medications and, if necessary, provide reasonable accommodations. Employers also should consider revising any workplace policy that requires employees to disclose their prescription medication use, unless there is reason to believe the medication may impact performance, or otherwise suggests that employees taking such medication will be treated in a certain way without regard to whether their drug use impacts their work.

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

 

By Andrew R. Cockroft

Seyfarth Synopsis: In May 2018, the Illinois General Assembly considered and also passed a series of measures aimed at changing existing employment discrimination law. On May 16, 2018, the Assembly passed House Bill 4572 which amends the Illinois Human Rights Act (IHRA) to allow employers of any size to be liable under the IHRA. On May 18, 2018, an extensive amendment was added to Senate Bill 577, seeking to expand employer liability as well as reporting and notice requirements for claims of sexual harassment. On May 30, 2018, both chambers of the Assembly unanimously passed Senate Bill 20. SB 20 amends the IHRA to provide new powers to complainants, allow complainants to wait longer to file their claims, and to make the Illinois Human Rights Commission more efficiently address the existing backlog of charges.

The month of May was a busy one for the Illinois General Assembly. Last month, the Assembly passed a series of bills that together greatly expand which employers may be held liable under the Illinois Human Rights Act, reshape the Illinois Human Rights Commission (the “Commission”) and Illinois Department of Human Rights (IDHR) in order to increase transparency and efficiency, and gives employees new powers in exercising their rights under the IHRA.

What’s more, the Illinois Senate is now considering another amendment to the IHRA which expands liability for claims of sexual harassment and further adds new employer reporting and notice requirements when incidents of sexual harassment occur.

House Bill 4572

Currently, the IHRA only covers employers who employ 15 or more employees within Illinois for at least 20 weeks during the year. The now passed House Bill 4572 amends the IHRA such that any employer who employs one or more employees for at least 20 weeks during the year may be held liable under the Act.

On May 18, 2018, the measure officially passed both chambers of the Assembly, passing the House 64-37 and the Senate 33-13.

The measure has yet to go before Governor Bruce Rauner, however, and a spokesperson for the Governor declined to comment on whether he would sign it.

With this new development, employers who employ fewer than 15 employees should familiarize themselves with the IHRA as well as Commission and IDHR proceedings.

Senate Bill 20

On May 30, 2018, Senate Bill 20 was unanimously passed by both chambers of the Assembly. The bill contains numerous revisions to the IHRA which greatly expand the powers of employees in litigating their claims:

  • Previously, a complainant could not opt out of an investigation once they initiated it. Under the new bill, a complainant may now opt out of an IDHR investigation within 60 days after filing a charge with IDHR to commence an action in Circuit Court.
  • Previously a complainant had to file their claim with the Commission within 180-days of the incident giving rise to the claim. SB 20 extends the statute of limitations to 300 days to be consistent with federal law and EEOC limits.

The bill also devotes vast, new resources to reshaping the Commission itself and how it handles the existing backlog of claims:

  • The bill decreases the size of the Commission from 13, part-time members to 7, full-time members who must either be licensed to practice law in Illinois, served as a hearing officer at the Commission for at least 3 years, or has at least 4 years of experience working for or dealing with individuals or corporations affected by the IHRA or similar laws in other jurisdictions.
  • Each commissioner will be provided one staff attorney.
  • The bill also creates training requirements for Commissioners and further requires ongoing training of at least 20 hours every two years.
  • A temporary panel of 3 Commissioners will be created to specifically address the backlog of charges and requests for review. The panel also will have one staff attorney to assist them in addressing the backlog.

Finally, SB 20 provides a series of new requirements for how claims are processed, litigated, decided, and ultimately published:

  • If an employee has filed allegations of employment discrimination at the IDHR and in another forum, such as a municipal human relations agency, and if the employee makes the choice to have his or her claim of discrimination adjudicated in the other forum (such as in front of a federal judge, a hearing officer, or an administrative law judge), the IDHR will be required to dismiss the state-level charge and cease its investigation.
  • The statute will now require that Commission decisions are based on neutral interpretation of the law and the facts.
  • IDHR is permitted to allow an attorney representing the respondent or the complainant to file a response on a request for review.
  • Additionally, the bill mandates that within 120 days of the effective date of SB 20, the Commission must adopt rules for minimum standards for the contents of requests for review including, but not limited to, statements of uncontested facts, proposed statements of the legal issues, and proposed orders.
  • The Commission website must provide its decisions on requests for review or complaints within 14 days of publishing of the decision.
  • The IDHR must provide a new notice within 10 business days following the receipt of the EEOC’s findings, the EEOC’s determination, or after the expiration of the 35-day period when a decision of the EEOC has been adopted by the IDHR for a lack of substantial evidence.
  • The Commission must provide notice within 30 days if no exceptions have been filed with respect to a hearing officer’s order or when a Commission panel decides to decline review.
  • Each Commission decision must be published within 180 days of the decision.

The new provisions will hopefully create more transparency in Commission and IDHR proceedings and better allow employers to respond to claims of discrimination. Employers should keep track of any new Commission proposals in the event SB 20 is signed into law.

Senate Bill 577 – Amendment 1

A new proposed amendment to Senate Bill 577 seeks various changes to the IHRA.

First, the amendment expands what workers may bring claims of sexual harassment against an employer, what constitutes sexual harassment, and by when such a claim must be brought.

  • Independent contractors will become entitled to protections against harassment and discrimination under the IHRA.
  • The definition of sexual harassment is expanded to state that harassment on the basis of an individual’s actual or perceived sex or gender is prohibited.
  • Workers who experience harassment or discrimination will have two years to file a charge with the IDHR.

Additionally, the amendment creates new reporting and notice requirements for employers.

  • Public contractors and large employers must annually report to the IDHR on the number of settlements they enter into or adverse judgements against them related to sexual harassment or discrimination. This provision also allows the IDHR to initiate an investigation of repeat violators.
  • Employers will be required to post notice of an employee’s right to a workplace free from sexual harassment as well as the procedure for filing a charge.

The amendment also extends protections from the Victims’ Economic Security and Safety Act (VESSA) to cover claims of sexual harassment. VESSA provides an employee who is a victim of domestic or sexual violence, or an employee who has a family or household member who is a victim of domestic or sexual violence with up to 12 weeks of unpaid leave to address issues arising from domestic or sexual violence. This new amendment would, therefore, require an employer to provide 12 weeks of leave to any employee who makes a claim of sexual harassment.

Finally, the amendment also addresses the issue of non-disclosure agreements in the employment context. Employers would be prohibited from including nondisclosure clauses in settlements of sexual harassment allegations unless the employee alleging harassment chose to include such a provision. Even more, the amendment also prohibits an employer from entering into a nondisclosure agreement with any employee whose earnings do not exceed the federal, State, or local minimum wage law or who do not earn more than $13.00 an hour.

SB 577 has not passed either chamber of the Assembly. However, employers should note the Assembly’s increased focus on employment discrimination law and the myriad ways they seek to change it.

For more information on this topic, please contact the author, your Seyfarth Attorney, or any member of Seyfarth Shaw’s Labor & Employment Team.

By Michael Fleischer, Jean Wilson, and Barry Miller

Synopsis: Massachusetts Attorney General investigates 70 employers (both large and small – across all industries), citing 21 of them for violating the state’s “ban the box” law, which prohibits most businesses from asking about job candidates’ criminal backgrounds on initial employment applications.

Last week, Massachusetts Attorney General Maura Healy announced that her office conducted an investigation into the employment applications of more than 70 Boston-area businesses to determine if they violated the Commonwealth’s “ban the box” law. That law prohibits most employers from asking job applicants about their criminal history on initial applications, subject to limited exceptions. The employers investigated ranged from a restaurant chain to a skin care company to a book store.

The Attorney General entered into agreements with four large employers that have multiple locations in Massachusetts. In conjunction with those agreements, three of the companies were fined $5,000 each, and all were required to alter their application process to comply with the law’s requirements. The Attorney General also sent warning letters to an additional 17 employers, noting that they must take immediate steps to comply with Massachusetts law, and remove questions on their initial job applications that ask questions about applicants’ criminal histories. The improper questions included whether applicants have been convicted of violating the law, whether they had been convicted of a crime or offense other than a minor traffic violation, and if they have ever been convicted of a felony.

The Attorney General’s announcement of this enforcement activity comes on the heels of the Commonwealth’s recent passage of a criminal justice reform bill that becomes effective on October 13, 2018, and further restricts the questions that an employer may ask about an applicant’s criminal history following an initial employment application.

The Attorney General stated that the investigation was part of a larger, ongoing effort by her office to help educate businesses about the law, and to ensure that an individual’s criminal history is not used improperly to deny access to employment. This serves as a reminder to employers to review their hiring-related documents to ensure compliance with evolving legal requirements. Even if applicants do not complain about violations or assert legal claims, the Attorney General is engaged in proactive efforts to make sure that employers in the Commonwealth comply.

If you would like further information, please contact the authors, your Seyfarth attorney, or any member of the Seyfarth Background Screening Compliance & Litigation Team.

 

By Brian A. Wadsworth

Seyfarth Synopsis: In her appeal to the Fifth Circuit, Plaintiff Bonnie O’Daniel argues that the trial court wrongly concluded that it was unreasonable for O’Daniel to believe that a complaint about discrimination based on sexual orientation constituted a protected activity. The EEOC recently joined the fray by filing an amicus curiae brief, which argues that it was reasonable for O’Daniel to believe that opposition to sexual orientation discrimination constituted protected activity.

The EEOC argues that O’Daniel need only “reasonably believe[]” the opposed conduct was unlawful and that O’Daniel’s belief was reasonable when viewed in the context of recent decisions reached by the Southern District of Texas, Second Circuit, Seventh Circuit, and the EEOC. The EEOC also cites the ongoing national debate regarding sexual orientation issues as another reason O’Daniel’s belief was reasonable.

Plaintiff Bonnie O’Daniel filed suit against her employer, Plant-N-Power, and its parent company (Defendants) in the Middle District of Louisiana alleging, amongst other things, retaliation on the basis of her sexual orientation—heterosexual. O’Daniel alleged that Defendants terminated her employment because of one of her Facebook posts. In the post, she included a photograph of a man wearing a dress at a Target store and expressed discontent with his ability to use the women’s restroom and/or dressing rooms. O’Daniel alleged that this offended the President of Plant-N-Power, a member of the LGBT community, and that the president subsequently suggested O’Daniel’s termination.

Defendants responded to the lawsuit with a motion to dismiss and argued that O’Daniel’s retaliation claim failed in part because she did not “plead any protected activity … under Title VII.” By consent of the parties, a magistrate judge heard Defendants’ motion to dismiss. The magistrate judge ultimately agreed with Defendants and dismissed O’Daniel’s retaliation claim because it was “unreasonable for [O’Daniel] to believe that discrimination based on sexual orientation constitutes protected activity” and cited the Fifth Circuit’s 1979 holding in Blum v. Gulf Oil Corp. to support its holding. The trial court noted that while Title VII may protect gender-non-conformity, O’Daniel did not allege discrimination on this basis. O’Daniel appealed the magistrate judge’s decision to the Fifth Circuit.

On May 2, 2018, the Equal Employment Opportunity Commission filed an amicus curiae brief with the court, taking issue with the trial court’s finding that it was “unreasonable” for O’Daniel to believe that opposition to discrimination based on sexual orientation was a protected activity. In arguing this, the EEOC pointed out that the employee need only “reasonably believe[] the opposed conduct was unlawful.” The EEOC maintains that, “given recent appellate decisions …, the EEOC’s view that Title VII prohibits sexual orientation discrimination, and the rapidly changing legal landscape,” O’Daniel had a reasonable belief that discrimination based on sexual orientation was impermissible.

The EEOC pointed to a number of decisions in the Southern District of Texas, the Second and Seventh Circuits, as well as holdings from the commission itself, to demonstrate that the “law on sexual orientation discrimination” had evolved and that at least some courts prohibit sexual orientation discrimination in employment. In addition, the EEOC noted the ongoing national debate regarding sexual orientation issues and the Supreme Court’s landmark decisions endorsing the right of gay and lesbian individuals to be free from discrimination in Obergefell v. Hodges and United States v. Windsor. Given this context, O’Daniel—“a layperson without legal expertise”—could “reasonably conclude that Title VII’s prohibition against sex discrimination encompasses discriminatory conduct based on sexual orientation.” This would extend, in the EEOC’s view, to discrimination on the basis that an employee is heterosexual.

The EEOC similarly noted that Fifth Circuit precedent did not preclude an individual from harboring a reasonable belief that sexual orientation is unlawful. To argue this, the EEOC distinguished Blum, in which the Court held that “[d]ischarge for homosexuality is not prohibited by Title VII.” The EEOC argued that Blum was decided on the issue of pretext and not on whether Title VII protected against discrimination on the basis of sexual orientation. Moreover, according to the EEOC, there were post-Blum decisions that recognize that Title VII prohibits discrimination based on sex stereotyping, to include Price Waterhouse v. Hopkins and EEOC v. Boh Brothers Construction, Co. Thus, O’Daniel could have relied on these post-Blum holdings to arrive at a reasonable conclusion that Title VII protected against discrimination on the basis of sexual orientation.

Defendants have not yet filed their appellate brief.

For more information on this topic, please contact the authors, your Seyfarth Attorney, or any member of Seyfarth Shaw’s Labor & Employment Team.

By Pamela Q. Devata , Robert T. Szyba, and Stacey L. Blecher

Seyfarth Synopsis: Over the past few years, restrictions regarding the use of credit checks by employers on applicants and employees have been passed at various state and municipal levels, and the federal government has indicated its own concerns of potential discriminatory impact of the use of credit checks. The nuanced differences in obligations and requirements that may govern in any particular jurisdiction have created a legal mine-field for employers who utilize credit checks.

Jurisdictions Limiting Use of Employment Credit Checks

In recent years, ten states (California, Colorado, Connecticut, Hawaii, Illinois, Maryland, Nevada, Oregon, Vermont and Washington), the District of Columbia, and the cities of Chicago, New York City and Philadelphia have passed laws restricting the use of credit reports used by employers for employment purposes, with several more jurisdictions poised to join the trend. In addition, Representative Maxine Waters (D-CA) and Senator Elizabeth Warren (D-MA) have proposed bills in both the U.S. House of Representatives and the Senate that would restrict the ways in which consumer credit information could be used for employment purposes.

The Benefit—and Risks—of Credit Checking

“Credit checks are useful to employers generally because they provide a variety of information not able to be confirmed by other sources and because they are viewed as a valid indicator of a person’s judgment and potential risk to the company . . . the vast majority of employers . . . use credit reports for a very limited number of positions such as jobs dealing with company finances, positions in accounting departments, high level executives or positions dealing with sensitive personal data of customers or employees.” Statement of Pamela Quiqley Devata, Esq., Seyfarth Shaw LLP, before the Equal Employment Opportunity Commission (“EEOC”), October 20, 2010, “Employer Use of Credit History as a Screening Tool.” The EEOC, on the other hand, has taken on greater scrutiny of background checks in employment decisions because of their potential adverse impact on classes of applicants under Title VII of the Civil Rights Act (“Title VII”).

The EEOC has taken issue with employers who utilize criminal history screening in their hiring decisions, and also has broadened their scrutiny to include credit checks for the same reason: the belief that credit checks create a disparate impact on certain minority groups. See for instance EEOC Enforcement Guidance, Number 915.002, issued April 25, 2012, entitled, “Consideration of Arrest and Conviction Records in Employment Decision under Title VII. See also EEOC v. BMW Manufacturing Co., 2015 WL 5719928 (Verdict and Settlement Summary) (Sept. 8, 2015) (EEOC claimed that automobile manufacturer excluded black logistic workers from employment at a disproportionate rate after BMW implemented a criminal background check policy, which had statistically disparate impact on black employees; the case settled for $1,600,000). EEOC v. Kaplan Higher Learning Educ. Corp., 2014 WL 1378197 (N.D. Ohio 2014) (EEOC failed to demonstrate that Kaplan’s use of credit reports had an adverse impact on African American applicants where “race rating” methodology was discredited).

Federal and State Laws Also Govern the Use of Credit Reports

The Fair Credit Reporting Act (“FCRA”) does not expressly preclude employers from using credit reports when making employment decisions, but other applicable laws may impact an employer’s use of credit reports of its applicants or employees. The FCRA disclosure form must expressly state that a credit check will be procured, however, it is illegal in certain jurisdictions to refer to credit at all if there is no lawful reason for the credit check. See Stop Credit Discrimination in Employment Act, N.Y.C. §§ 8-102(29), 8-107(9)(d), (24) (2015); D.C. “Fair Credit in Employment Amendment Act of 2016,” Act 21-673 (2016).

The jurisdictions that have enacted laws prohibiting the use of credit history for employment decisions have largely based the legislation on the premise that credit generally is not a relevant factor in employment decision-making. Thus, these prohibitions typically prevent use of a credit report in the context of employment when the report is not sufficiently related to the nature of the position.

These prohibitions, however, are only subject to certain narrow exceptions. For example:

  • Banks and financial institutions (Chicago, Colorado, Connecticut, DC, Hawaii, Maryland, Oregon, Philadelphia, and Vermont);
  • Managerial positions (as defined by the particular state/city legislation) (California, Colorado, Hawaii, Illinois, and Philadelphia)
  • Positions with access to specified personal information (other than routine transactions and as defined by the particular state legislation) (California and Maryland)
  • Positions with access to confidential/proprietary information, security data, or trade secrets (California, Connecticut, Illinois, Maryland, New York City, Philadelphia, and Vermont)
  • Positions in law enforcement (California, DC, New York City, Oregon, Philadelphia, and Vermont)
  • Positions involving access to assets of above a certain amount or with signatory authority to enter transactions on behalf of the employer (California, Connecticut, Illinois, Maryland, New York City, Philadelphia, and Vermont)
  • Positions with regular access to more than a certain amount in cash (California – $10,000 and Illinois – $2,500)
  • Positions with access to expense accounts or corporate cards (Connecticut and Maryland)

Importantly, no state or city prohibits use of credit report information when such use is specifically permissible under federal or state law.

Penalties range from $100 per day to $250,000, depending upon the jurisdiction.

Overall Trends

Given the increase in state and local laws passing credit check laws, as well as the EEOC’s stance on the use of credit checks (namely, that credit checks create a disparate impact on certain minority groups), there appears to be a trend of all employers decreasing the number of credit checks that they conduct. Given the potential exposure, even financial organizations are no longer running credit checks on all of their workforce unless they are either specifically required to do so by law or those employees are in positions of trust—specifically, those positions with signatory authority over third party assets of $10,000 or more, and positions that have a fiduciary responsibility to enter financial agreements on the employer’s behalf.

Employer Outlook

Given the incredible breadth, and potential damages of the numerous (and growing) credit report laws and the recent upsurge of private litigation on this issue, employers should not directly or indirectly request credit information and/or conduct credit checks unless required to do so under state or federal law or unless an exemption is met. Employers who seek credit information for positions that fall into jurisdictional exemptions also should review the requirements for compliance and additional process guidance. Most significantly, employers should review their applications, FCRA forms, and other employment-related documents to ensure that there are no references to the procurement and/or use of credit information. Employers in multi-state jurisdictions should also ensure compliance with the laws of all other applicable jurisdictions that regulate employers’ use of credit information.

Pamela Q. Devata is a partner in Seyfarth Shaw’s Chicago office. Robert T. Szyba is an associate and Stacey L. Blecher is counsel in the firm’s New York office. If you would like further information, please contact your Seyfarth Shaw LLP attorney, Pamela Q. Devata at pdevata@seyfarth.com, Robert T. Szyba at rszyba@seyfarth.com or Stacey L. Blecher at sblecher@seyfarth.com.

By: Scott Rabe, Sam Schwartz-Fenwick, Marlin Duro

Seyfarth Synopsis:  In a largely symbolic ruling, in Masterpiece Cakeshop, Ltd. v. Colorado Civil Rights Commission, the Supreme Court ruled 7-2 in favor of a cake shop owner who refused to make a wedding cake for a gay couple based on his religious beliefs.  By limiting its holding to the facts of the case, however, the Court sidestepped an opportunity to delineate the intersection between free expression of religion and LGBT rights.  As a result, the decision provides little in the way of guidance to employers regarding the role of free expression of religion in the workplace.

In the highly anticipated decision in Masterpiece Cakeshop, Ltd. v. Colorado Civil Rights Commission, a case closely followed by the media, religious rights advocates, and gay rights advocates alike, the Supreme Court delicately avoided making a decision that could be declared a victory by either side.  Instead, the majority emphasized that the holding in Masterpiece Cakeshop was limited to the facts of the case and that further clarification as to the boundaries between religious rights and LGBT rights would have to play out in the courts.

The Case

Charlie Craig and David Mullins were looking to celebrate their marriage by purchasing a custom wedding cake at Masterpiece Cakeshop, a bakery in Colorado.  Jack Phillips, the owner of the bakery refused to make the wedding cake for the couple because of his religious opposition to same-sex marriage.

The couple filed a Charge with the Colorado Civil Rights Commission (the “Commission”), claiming that the baker’s refusal was in violation of the Colorado Anti-Discrimination Act, which makes it “a discriminatory practice and unlawful for a person, directly or indirectly, to refuse, withhold from, or deny to an individual or group because of  . . . sexual orientation, . . . the full and equal enjoyment of the goods [and] services” of “any place of business engaged in any sales to the public and any place offering services . . . to the public.”  The owner of the bakery, however, maintained that the First Amendment rights to freedom of speech and free exercise of religion protected his refusal to make custom wedding cakes for same-sex couples.

The Commission found in favor of the couple and determined that the actions of the bakery violated Colorado law.  Phillips appealed the Commission’s decision to the Colorado Court of Appeals, which affirmed the Commission’s ruling.

After the Colorado Supreme Court refused to hear his appeal, Phillips appealed to the United States Supreme Court.

The Supreme Court’s Decision

In a 7-2 decision, the Supreme Court reversed the judgment of the Colorado Court of Appeals and found the Commission had violated Phillips’ First Amendment rights of free speech and free exercise of religion.

In its decision, the Supreme Court acknowledged that the case presented “difficult questions as to the proper reconciliation of at least two principles,” one, the authority of the State “to protect the rights and dignity of gay persons who are, or wish to be married but who face discrimination when they seek goods or services” and two, the “right of all persons to exercise fundamental freedoms under the First Amendment.”  While acknowledging the tension between these two principles, the Court did not seek to reconcile them.

Instead, the Court first found the creation of wedding cakes was a “creative” endeavor implicating freedom of expression under the First Amendment, not merely selling a good which might not implicate the First Amendment.

The Court then explained that as Phillips’ refusal to bake  of a wedding cake implicated the First Amendment’s freedom of expression and free exercise of religion clauses, the Commission was obligated to weigh the cake shop owner’s First Amendment rights against the rights of the gay couple. Instead of performing this balancing with “the neutrality that the Constitution requires”, the Court found the Commission exhibited hostility toward Phillips’ beliefs throughout the hearing, making disparaging comments about his religious beliefs and treating the cake shop owner’s case differently than other cases addressed by the Commission involving cake shop owners with different beliefs.  The Court found that this treatment of Phillips’ case violated the First Amendment as it indicated a hostility to a religion or religious viewpoints.

The Court took great care to underscore that the holding in Masterpiece Cakeshop was limited to the facts of that case, stating that “[t]he outcome of cases like this in other circumstances must await further elaboration in the courts, all in the context that this disputes must be resolved with tolerance, without undue disrespect to sincere religious beliefs, and without subjecting gay persons to indignities when they seek goods and services in an open market.”

The Takeaway for Employers

Many anticipated that the decision in Masterpiece Cakeshop would provide employers and small-business owners with guidance on how to lawfully traverse the landmines that arise when religious beliefs conflict with civil rights statutes. By restricting the decision to the facts, the Court did not provide this guidance.

As such, employers, need not and should not change their EEO or other employment practices, policies, and trainings in light of the Masterpiece Cakeshop decision. Masterpiece Cakeshop does not place rights to the free exercise of religion over LGBT rights or other civil rights, and therefore employers should not take action that elevates the right to free exercise of religion within the workplace.

As always, we invite employers to reach out to their Seyfarth contact for solutions and recommendations regarding anti-harassment and EEO policies, addressing compliance with LGBT issues in the law, and tackling questions regarding the free exercise of religion in the workplace.

The 2018 edition of The Legal 500 United States recommends Seyfarth Shaw’s Workplace Counseling & Solutions group as one of the best in the country. Nationally, for the tenth consecutive year, our Counseling practice earned Top Tier.

Based on feedback from corporate counsel, Seyfarth partners Dave Baffa, Bill Perkinsand Larry Lorber were ranked in the editorial’s “Leading Lawyers” list, and 20 other Seyfarth Workplace Counseling attorneys were also recommended in the editorial.

The Legal 500 United States is an independent guide providing comprehensive coverage on legal services and is widely referenced for its definitive judgment of law firm capabilities. The Legal 500 United States recognizes and rewards the best in-house and private practice teams and individuals over the past 12 months. The awards are given to the elite legal practitioners, based on comprehensive research into the U.S. legal market.

By Honore Hishamunda and Alex S. Drummond

Seyfarth Synopsis: Plaintiffs in disability discrimination cases often have sympathetic facts on their side. A recent decision out of the United States Court of Appeals for the First Circuit, however, highlighted that courts are tasked with applying the law in such cases even if doing so leads to a loss for a sympathetic plaintiff.

The Americans with Disabilities Act (ADA), among other things, requires employers to provide reasonable accommodations to employees qualified to perform the essential functions of their jobs and prohibits employers from retaliating against employees for exercising their rights under the ADA. Additionally, ADA cases often involve sympathetic plaintiffs. However, a recent First Circuit Court of Appeals decision – Sepulveda-Vargas v. Caribbean Restaurants, LLC – highlighted the importance of applying the law in such cases even where doing so results in a loss for a sympathetic plaintiff.

The plaintiff in the case was an assistant manager for a fast food franchise. One evening while depositing money on behalf of his employer, plaintiff was “attacked at gunpoint, hit over the head, and had his car stolen.” In the aftermath, plaintiff began to suffer from PTSD and depression. He then requested, as a reasonable accommodation, that he be excused from the company’s rotating shift policy (which rotated managers across the franchise’s district map and placed them on two different day shifts, and an evening shift). After initially agreeing to do so, the employer denied the request.

Plaintiff sued claiming a failure to accommodate. Further, the plaintiff alleged that after making his request, he was retaliated against as he was treated poorly by his co-workers. The First Circuit, affirming the District Court, granted employer’s motion for summary judgment on both of plaintiff’s claims. In doing so, the court noted that its decision was “a lesson straight out of the school of hard knocks” and that “[n]o matter how sympathetic the plaintiff or harrowing his plights, the law is the law and sometimes it’s just not on his side.”

The First Circuit held that the employer did not have to provide any accommodation to plaintiff as he was not qualified to perform the essential functions of his job. Specifically, the court found that the ability to work on a rotating shift was one of the essential functions of his job. In doing so, the court noted that (i) both the employer and plaintiff admitted that rotating shifts was an essential function; (ii) the employer’s job applications for assistant managers and advertising for the same highlighted the need to work rotating shifts; and (iii) permitting plaintiff to bypass the requirement would hamper the employer’s ability to flexibly schedule the remaining assistant managers.

The First Circuit also held that the employer did not retaliate against plaintiff for asserting his ADA rights. Specifically, the court found that plaintiff’s allegations – which focused on being scolded by supervisors for bypassing the chain of command, feeling embarrassed by supervisors treatment, and being made to feel as if he was lying about his health conditions – individually and collectively fell short of statutorily prohibited retaliation. In doing so, the court noted that only treatment that could “dissuade[] a reasonable worker form making or supporting a charge of discrimination” or that produces “a significant, not trivial harm” is actionable. Further, the court found that plaintiff’s allegations fell short of this level and instead characterized his allegations as “nothing more than the petty insults and minor annoyances” which are not actionable under the ADA.

This decision highlights that, even in the ADA context, courts must and will apply the law even if doing so results in a loss for otherwise sympathetic plaintiffs.

If you have any questions regarding this area or need assistance evaluating whether to grant or deny long-term or indefinite leave requests, please contact the author, your Seyfarth Attorney, or a member of the Firm’s Absence Management and Accommodations or Workplace Policies and Handbooks Teams.

By Jennifer L. Mora and Frederick T. Smith

Synopsis: Effective July 1, 2018, Iowa employers may lower their standard for alcohol tests and consider taking action against an employee with a blood alcohol concentration as low as .02. Prior to this time, state law prohibited an employer from taking any action against an employee with an alcohol test result below .04.

Iowa’s drug and alcohol testing statute is considered one of the more onerous and difficult to navigate in the nation (along with Maine and Minnesota). It includes numerous requirements that employers must follow to lawfully conduct pre-employment and employment drug and alcohol tests, including (but not limited to):

  • A requirement that employers implement a written policy that is distributed to employees (including the parents of any employees who are minors) and made available to job applicants and employees for review.
  • A requirement that employers establish an awareness program to inform employees of the dangers of drugs and alcohol in the workplace.
  • If the employer has at least 50 employees in Iowa, and if an employee with a confirmed positive alcohol test (1) has been working for at least 12 of the preceding 18 months, (2) agrees to rehabilitation and (3) has not previously violated the employer’s substance abuse policy, the employee must be given an opportunity to participate in rehabilitation in lieu of termination or other disciplinary action.
  • A requirement that supervisory personnel involved with drug or alcohol testing submit to two hours of initial training and, on an annual basis thereafter, a minimum of one hour of additional training. The training must address a number of topics, including information on how to recognize employee alcohol and drug abuse, documentation of such abuse, and referral of employees who abuse drugs or alcohol to the employer’s employee assistance program or the provision of other resources available to assist employees with substance abuse.

On March 28, 2018, Iowa Governor Kim Reynolds signed an amendment to the drug testing law, lowering the threshold for alcohol testing from .04 to .02. The amendment is effective July 1, 2018. It is unclear from the legislative history what prompted introduction of the bill to amend this single provision in the law. Regardless, the amendment will allow employers (as of July 1) to take action (provided all other aspects of the law are followed) against an employee with a blood alcohol concentration of, for example, .03.

Recent court filings suggest that litigation against Iowa employers for violating the statute’s technical requirements may be on the rise and, thus, Iowa employers should consider reviewing their current drug and alcohol testing policies and programs to ensure compliance.

If you would like further information, please contact the authors, your Seyfarth attorney, or any member of the Seyfarth Workplace Counseling & Solutions Team or Background Screening Compliance & Litigation Team.

By: Jennifer Mora, Jean Wilson and Barry Miller

Synopsis: Effective October 13, 2018, Massachusetts employers will no longer be permitted to inquire about certain misdemeanor convictions and sealed or expunged records for employment purposes.

Almost ten years ago, Massachusetts became the second state, following Hawaii, to enact a “ban-the-box” law, so-called because they require employers to remove from job applications any question that asks a job applicant to self-disclose their criminal history. Instead, employers must wait until later in the hiring process to do so, unless the employer is prohibited by law from employing criminal offenders in the position at issue. Since that time, the ban-the-box wave has spread across the nation, with laws most recently enacted in Washington (discussed here) and California (discussed here).

In addition to the ban-the-box law, Massachusetts’ anti-discrimination law also contained provisions that restricted “what” employers may inquire about, including:

  • Any arrest, detention or disposition that did not result in a conviction;
  • A first offense for the following misdemeanors: disturbance of the peace; drunkenness; simple assault; affray; minor traffic violations; and speeding; and
  • Any misdemeanor conviction where the date of the conviction, or the completion of any period of incarceration resulting from the conviction, occurred more than five years prior to the date of the employment application, unless the person was convicted of any crime during that same five-year period.

On April 13, 2018, Governor Charlie Baker signed a criminal justice reform bill, which changed existing law in several respects. Importantly, the amendment reduced the five-year period for inquiring about misdemeanors to three years, which means that employers now may not ask about (whether orally or in writing) any misdemeanor conviction where the date of the conviction, or the completion of any period of incarceration resulting from the conviction, occurred more than three years prior to the date of the employment application, unless the person was convicted of another crime within the three years preceding the inquiry. Moreover, in addition to being prohibited from asking about sealed records, employers may not ask about a criminal record that has been expunged.

In addition, any form used by an employer that seeks information about an applicant’s criminal history must include the following statement about expunged records, in addition to the statement already required concerning sealed records:

“An applicant for employment with a record expunged pursuant to section 100F, section 100G, section 100H or section 100K of chapter 276 of the General Laws may answer ‘no record’ with respect to an inquiry herein relative to prior arrests, criminal court appearances or convictions. An applicant for employment with a record expunged pursuant to section 100F, section 100G, section 100H or section 100K of chapter 276 of the General Laws may answer ‘no record’ to an inquiry herein relative to prior arrests, criminal court appearances, juvenile court appearances, adjudications or convictions.”

In addition, the criminal justice reform bill lowers the number of years before an individual can seek to have a criminal record sealed or expunged. Ultimately, this means that employers will have less access to criminal history information in making employment decisions. In response to employers’ concerns about being held liable for negligent hiring or retention based on criminal history to which they no longer had access, the legislature included a provision in the bill that incorporates presumptions based on employers’ more limited access to such information. Employers will be presumed not to have notice (or the ability to know) about (i) records that have been sealed or expunged, (ii) records about which employers may not inquire under the anti-discrimination law, or (iii) crimes that the Massachusetts Department of Criminal Justice Information Services cannot lawfully disclose to an employer.

Massachusetts employers, and nationwide employers that hire in the state, should immediately review their job applications to ensure they are not inquiring about criminal history information too early in the process. They also should consider reviewing and modifying any pre-hire policies and forms to ensure they are not inquiring about off-limits information and that any written question to applicants that inquires about criminal history contain the required language. Employers in all jurisdictions should stay abreast of ongoing developments in this evolving area of the law.