By Rashal G. Baz, Katherine Mendez, and Chelsea D. Mesa

Seyfarth Synopsis: Employers are now being presented with more options to outsource workplace complaints through third party companies and mobile apps. This may create an ease in grievance reporting for the employee, but does not necessarily shield employer liability.

Harassment in the workplace is not a novel issue, but with the rise of national and global movements such as #MeToo and Time’s Up — it has been on the forefront of our social, political and business conversations. Hollywood has cast a spotlight on sexual harassment and the sometimes imperfect protocols in place to address concerns. These issues are appearing in the headlines, TV shows, and social media platforms with the potential impacts of destroying a company’s goodwill and bottom line.

In response to this outcry and several industries’ spotting an opportunity to get involved, the technology-driven community has responded with mobile apps, anonymous grievance non-profit websites, new third-party consulting companies, and modernized hotline services. The goals of these new technologies and strategies is to heed complaints and optimize an employer’s response.

The Current State of Things

Before touching on the reporting outlets, it is critical to understand why a demand for such services exist. Historically, there have been studies that note the resistance to workplace harassment reporting. This could be attributed to a fear of employer retaliation, unwanted peer attention, distress in confronting a perpetrator or lack of trust in workplace changes following such a complaint. Sometimes employees simply do not know or recall where to find the protocol for filing harassment incidents. These are among the reasons the Equal Employment Opportunity Commission and other organizations shine a close light on the response procedures employed by a company.

Many employers use a host of different practices designed to make reporting as simple and effective as possible. These range from traditional reporting to a supervisor or HR in writing or in person, to the use of a designated ombudsman, email submissions and hotline phone numbers. The goal is to encourage the reporting of complaints, so they can be resolved.

A New Twist on Reporting

Mobile Applications: Glued to our phones, it only follows that harassment and employment complaint apps have been created for the workforce. When reporting an issue is easy and familiar, it stands to reason that more information will be transmitted to the business. One example app uses a subscription-based service employers can purchase and integrate into internal procedures. The app allows workers to identify themselves and their location or remain anonymous and pick from different pre-set messages to indicate the nature and severity of the concern. These apps also allow an employee to include documents, images or videos that are sent to their choice of two to four default managers who will receive the correspondence. These services claim to provide a safe space for raising concerns, free from external interference.

Consulting Groups: Third-party consulting groups have also responded to the need for something new by creating company-specific online environments where employees can file complaints. In turn, the consultants will assess the complaint, write an action plan on what type of investigation is needed, and provide an external “expert” to do a workplace investigation for inappropriate behavior. These companies tout experienced personnel that investigate the issue while avoiding the purported “inherent bias” human resources personnel may hold toward the complainant or accused employee.

Hotline Services: Outsourced workplace harassment and discrimination hotline services are not new, but seemed to have stepped up their game as well. Typically, hotlines provide a company-specific phone number, voicemail box and email address where employees can voice grievances. Instead of merely transmitting the collected data to employers, the third-party services are now also offering more involvement in employee complaints. Several now offer to have “experienced” human resource professionals produce a report that allows the employer to handle the issue internally, or chose an external route to be handled by a “team of experts,” similar to the aforementioned consulting process.

Will This Help My System?

While additional reporting processes can be beneficial to obtaining data and addressing complaints, using an external service does nothing to change any of the employer’s obligations. If an employer’s practices and implementation of strategy aren’t already strong, implementing the “hot new thing” would simply serve as a rearrangement of chairs on the deck of the Titanic, and not really solve much. In considering whether to add this to its arsenal, employers would have to trust that the individuals involved with their complaints are, in fact, qualified to handle them. Failures along the way will still fall on the shoulders of an employer.

An employer’s uniform response to delicate situations can help defend against retaliation claims stemming from harassment reports; however, it is difficult to remember, and thus repeat, how you responded to a previous situation without accessible and thorough documentation. Outsourcing the complaint to a third-party technology may assist in providing a platform employers can reference when handling a new grievance. However, these services can also expose employers to cybersecurity issues. This false sense of security can end in costly litigation if you do not audit these services on an annual basis. Complaints lost in the cloud will result in claims against employers, not the app.

These external systems also do not address the alleged “bias” concern plaintiffs often argue exist. These systems would still be contracted and paid for by the employer, who will have likely partnered with the third party to set up the system. And as the third party works with the employer over time and learns its business, a relationship between the parties (and a desire to keep the employer happy so the relationship continues) will likely develop. It is unclear how a third party will avoid the same arguments of bias that an internal process will face. This further rings true because the relationship’s collaborative nature still has the employer making the ultimate decision on next steps in response to a complaint.

On the flip side, employers who choose not to utilize such services may not be out of reach of their effects. There are organizations creating anonymous hotlines that allow employees from any company to submit a report that in turn is “instantly” sent to who they deem the appropriate individuals within the complainant’s organization. And Silicon Valley has created smartphone apps that allow employees to anonymously report an incident to the company’s chief executive and board. This places the burden on those who receive these complaints, who may not be the person within an organization able to respond quickly enough, to send them through the proper channels. Even though these systems may provide another means for employees to feel as though they have raised a concern, there is no guarantee it gets into the company and to someone who can address it.

The Takeaways

There have been many assessments on how to minimize incidents of harassment and create a zero-tolerance environment for such scenarios. Initially, these new systems may seem like the right solution, but if you are integrating protocols that are not followed by the head of the company to the grassroots, a palpable workplace change and a legally sound grievance procedure is unlikely.

The benefit of these outlets include the creation of additional accessible channels workers may feel safe utilizing, but does not guarantee the complaint gets in the hand of the person who has the power to address it. Using a third party to assess complaints may avoid alleged HR biases in theory, but the company’s relationship with the service and ultimate decision-making ability weakens the practicality of that benefit.

These resources may represent the future of reporting and thus require employers to proactively adopt policies and training to avoid being blindsided by their arrival. Ultimately, the release of numerous online lists pointing out sexual harassment perpetrators and the rise in anonymous direct-to-company complaints may create an ethical duty to prepare your staff on how to process the information. Should you chose to contract these grievance reporting services, it would be wise to conduct internal training on how to utilize it and what human resources/supervisors should do when they receive notice of a complaint. Finally, evaluate and update your workplace harassment and reporting policies.

Ensure your company has the internal knowledge it needs to react when the time comes. And always feel free to reach out to your favorite Seyfarth employment lawyer for guidance on how to implement and maintain the most effective and appropriate processes as we march toward the future of harassment reporting.

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

By Kyla J. Miller and Dawn Reddy Solowey

Seyfarth Synopsis: The Department of Justice filed a lawsuit on behalf of a nursing home employee alleging she was forced to receive a flu shot to keep her job when she could not provide a note from a clergy member in support of her request, causing emotional distress that made her fear “going to Hell.” U.S. v. Ozaukee Cty., No. 2:18-cv-00343, (E.D. Wis. March 6, 2018).

In a complaint against Ozaukee County in Wisconsin, the Department of Justice alleges the County engaged in religious-based discrimination in violation of Title VII when their nursing home required all health care workers to receive the flu vaccination unless they could provide a note from a clergy member.

The Employer’s Flu Shot Policy

Under the employer’s flu shot policy, employees could receive a religious exemption from the mandatory flu shot if they had a pastor, priest, or another member of the clergy submit a written note stating a clear reason and explanation for the exemption. If the note was accepted, the employee was required to wear a protective face mask throughout the flu season. If an employee refused the flu shot and did not provide the proper written statement, the employee would be considered to have “voluntarily resigned.”

Employee Feared “Going to Hell” if She Received the Shot But Could Not Provide A Clergy Note

The employee allegedly viewed her body as a “holy temple,” and believed the Bible forbids foreign substances including the flu shot in the body. During a meeting with her supervisor, the employee stated she was not affiliated with any church or formal religious organization at the time, and therefore could not provide a note from a pastor. Instead, she volunteered family and friends who would attest to her sincere religious belief. The supervisor told the employee it would be her last day if she could not provide a proper letter from a clergy member.

According to the complaint, the employee felt forced to receive the flu shot.  Shortly after taking the shot, the employee “cried uncontrollably,” and experienced emotional distress including “withdrawing from work and her personal life, suffering from sleep problems, anxiety, and fear of ‘going to Hell’ because she had disobeyed the Bible by receiving the shot.”

Employer Takeaway

 It is not a “best practice” for an employer to require a clergy note to support a religious accommodation request, because an employee need only have a sincerely held religious belief–it is irrelevant whether they are a part of an organized religion.  This is especially important in light of the EEOC’s aggressive approach to mandatory flu shots in recent years, targeting employers who terminate employees who refuse the shot based on a religious belief. According to Lynette A. Barnes, regional attorney for the EEOC’s Charlotte District Office, “Title VII requires employers to make a real effort to provide reasonable religious accommodations to employees who notify the company that their sincerely held religious beliefs conflict with a company’s employment policy.”

There are several ways employers can minimize the risk of becoming a target for this type of litigation. Employers should narrow the applicability of their flu shot policies to those employees for whom the employer can justify the policy on health, safety or other legitimate business grounds. If an employee has a sincere religious belief that conflicts with a  job requirement, the employer must provide a reasonable accommodation if it would not cause undue hardship. Employers should engage in the interactive process and properly assess what is a “reasonable accommodation” or “undue hardship” in the context of their workplace.  It is wise for employers to consult with counsel with expertise in religious accommodation to make this case by case assessment.

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

By Scott Rabe and Marlin Duro

Seyfarth Synopsis: In its recent decision in EEOC v. R.G. & G.R. Harris Funeral Homes, Inc., No. 16-2424, 2018 U.S. App. LEXIS 5720 (6th Cir. Mar. 7, 2018), the U.S. Court of Appeal for the Sixth Circuit has sent the strong message that the Religious Freedom Restoration Act (RFRA) has minimal impact on the Equal Employment Opportunity Commission’s (EEOC) authority to enforce the anti-discrimination laws under Title VII of the Civil Rights Act of 1964 (Title VII).

The RFRA, enacted in 1993, prohibits the government from enforcing a law that is religiously neutral against an individual, if the natural law “substantially burdens” the individual’s religious exercise and is not the least restrictive way to further a compelling government interest. Importantly, the RFRA applies only in the context of government action, and therefore would not provide a defense for an employer in a civil suit brought by a private plaintiff.

In EEOC v. R.G. & G.R. Harris Funeral Homes, Inc., a Sixth Circuit panel held in a unanimous decision that: (i) Title VII’s proscription of discrimination on the basis of sex encompasses a prohibition on discrimination based on transgender status, and that (ii) in this case the RFRA would not limit the EEOC’s authority to enforce anti-discrimination laws under Title VII. With this decision, the Sixth Circuit became the first federal Court of Appeals to address the extent to which the RFRA may limit the EEOC’s power to enforce Title VII.

By way of background, the EEOC brought suit against a funeral home on behalf of a transgender employee, Aimee Stephens, who was terminated from her employment shortly after informing her employer that she intended to transition from male to female. The EEOC alleged the funeral home violated Title VII by terminating Stephens’ employment on the basis of her transgender or transitioning status and her refusal to conform to sex-based stereotypes. The funeral home argued that Title VII did not prohibit discrimination on the basis of transgender status and that the funeral home was protected from enforcement of Title VII by the RFRA as the government action would constitute an unjustified substantial burden upon the funeral home owner’s exercise of his sincerely held religious beliefs.

Both parties moved for summary judgment and the district court found in favor of the funeral home on both motions The district court found that Title VII did not protect against discrimination based on transgender status and that, while Stephens had suffered discrimination based on sex stereotyping, the RFRA prevented the EEOC from suing on her behalf.

On the EEOC’s appeal, the Sixth Circuit reversed the district court with respect to both motions and granted summary judgment in favor of the EEOC. First, the Sixth Circuit held that the funeral home’s conduct violated Title VII, reinforcing its prior holdings that discrimination against employees because of their gender identity and transgender status are illegal under Title VII’s prohibition of sex discrimination based on sex stereotyping. The Sixth Circuit explained that “discrimination on the basis of transgender and transitioning status is necessarily discrimination on the basis of sex” and found that firing a person because he or she will no longer represent him or herself as the gender that he or she was born with “falls squarely within the ambit of sex-based discrimination” forbidden under Title VII. Id. at *18.

Second, the Sixth Circuit held that the EEOC’s enforcement of Title VII against the funeral home did not violate the funeral home’s rights under the RFRA. A viable defense based on the RFRA requires a demonstration that the government action at issue would substantially burden a sincerely held religious exercise. Although the Sixth Circuit treated the running of the funeral home as a sincere religious exercise by the owner, it held that the alleged burden caused by the enforcement of Title VII was not “substantial” within the meaning of RFRA. The Sixth Circuit reasoned that tolerating an employee’s understanding of his or her sex and gender identity was not “tantamount to supporting it” and that mere compliance with Title VII, “without actually assisting or facilitating transition efforts,” did not amount to an endorsement by the employer of the employee’s views. Id. at *59, *61. Nor, the Sixth Circuit explained, could the funeral home rely on customers’ “presumed biases” against transgender individuals to meet the substantial burden test. Accordingly, the Sixth Circuit held that the funeral home had not demonstrated a substantial burden on the its religious exercise.

While the Sixth Circuit could have ended its analysis there, it went on to hold that even if tolerating Stephens’ gender identity and transitioning status were a “substantial burden” on the funeral home’s religious exercise, the EEOC did not violate the RFRA because the agency had a compelling interest in eradicating all forms of invidious employment discrimination, and enforcement of Title VII through its enforcement function was the least restrictive means for eradicating discrimination in the workforce. This analysis, if found not to apply only to the facts of this case, could ostensibly doom any defense to a Title VII action within the Sixth Circuit where an employer raises a defense based on the RFRA.

The Sixth Circuit’s opinion is an important one, as it addresses two of the more hot button topics in employment jurisprudence: the scope of the definition of “sex discrimination” under Title VII and the impact of laws protecting the free exercise of religion in the workplace. On the former, this opinion joins the recent trend in decisions finding that gender identity is inextricably linked with sex and therefore is protected under Title VII. And on the latter, the Sixth Circuit has laid down a gauntlet as the first federal circuit addressing the RFRA’s impact on the EEOC’s Title VII enforcement power. The decision is clearly intended to send a strong message that the RFRA has limited application, if any, in defense of a Title VII action brought by the Commission. While time will tell whether other federal circuits will adopt a similar interpretation, if the Sixth Circuit’s legal rationale is followed, employers will be hard-pressed to defend Title VII claims brought by the EEOC based on the alleged exercise of religious freedom.

In light of the current uncertainty regarding the ultimate interpretation of Title VII as it applies to gender identity, employers should regularly review their policies to ensure that adequate protections are provided to employees on the basis of their gender identity, and transgender and transitioning status. As always, we also invite employers to reach out to their Seyfarth contact for solutions and recommendations regarding anti-harassment and EEO policies and addressing compliance with LGBTQ+ issues in the law.

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

Seyfarth Synopsis: Seyfarth Shaw’s Pay Equity and International Law Groups celebrated International Women’s Day a day early with a webinar on Wednesday, March 7, 2018 entitled “Pay Equity Around the Globe”.

Tessa Cranfield, Marjorie Culver, and Christine Hendrickson had a crowd for the webinar on global pay equity but in case you missed it, here are the slides from the webinar. Some of the highlights of the webinar included:

  • A discussion of the key trends in global pay equity, which included strengthened anti-discrimination laws, pay transparency, and pay reporting requirements;
  • An overview of key pay equity laws in Europe (focusing on Iceland, Germany, France, and the United Kingdom) and APAC and LATAM (focusing on Australia, China, India, and Brazil); and
  • Practical tips on how to undertake global pay equity analyses, focusing on the “who”, “what”, and “how” to conduct these reviews.

If you are considering undertaking a global pay analysis — and is there a better way to celebrate International Women’s Day? — reach out to Seyfarth’s Pay Equity Group and they will be happy to guide you through this process.

By Marjorie Clara Soto, Kay J. Hazelwood, and Mary Kay Klimesh

Seyfarth Synopsis: The U.S. Court of Appeals for the Tenth Circuit’s recent opinion in Yeasin v. Durham, No. 16-3367, 2018 WL 300553 (10th Cir. Jan. 5, 2018), addresses the “tension between some students’ free-speech rights and other students’ Title IX rights to receive an education absent sex discrimination in the form of sexual harassment.” The Court of Appeals did not specify a test to be applied when a student’s alleged First Amendment right to free speech intersects another student’s alleged right to be free from harassment in a university community, but did affirm the district court’s decision that a KU administrator did not violate clearly established law when she expelled Yeasin for misconduct related to an off-campus incident and tweets.

The court specifically refrained from deciding “whether Yeasin had a First Amendment right to post his tweets without being disciplined by the university.” The Court’s analysis in this case is of particular interest to public colleges, universities and schools who grapple with managing and balancing student First Amendment rights and the responsibility to maintain an educational environment free from harassment.

Background and Procedural History

In November, 2013, Dr. Tammara Durham, Vice Provost for Student Affairs, made a decision to expel Navid Yeasin from the University of Kansas (“KU”) after her review of a hearing panel’s findings of fact based on a preponderance of the evidence that Yeasin had violated KU’s sexual harassment policy by engaging in conduct which included posting off-campus social media tweets making derogatory statements about his ex-girlfriend’s body, but not naming her.

Yeasin proceeded to contest the expulsion in Kansas state court which concluded that the findings, adopted by Dr. Durham, “were not supported by substantial evidence” and that “KU and [Dr.] Durham erroneously interpreted the Student Code of Conduct by applying it to off-campus conduct.” KU appealed, arguing that its interpretation of KU’s Code of Conduct was “consistent with the obligations imposed on it under Title IX” and allowed for the University to expel Yeasin since its student code allowed for students to be punished for off-campus conduct that violates federal, state, or local law. In September 2015, that court affirmed the lower state court’s findings and Yeasin subsequently re-enrolled at KU.

Thereafter, Yeasin brought suit in federal court against Dr. Durham under 42 U.S.C. Section 1983 alleging her action to expel him from KU for the content of his on-line, off campus speech violated his First Amendment right to free speech and his Fourteenth Amendment right to substantive due process. He sought monetary damages claiming that KU’s wrongful expulsion delayed completion of his education, cost him lost employment and wages, and caused him emotional distress and mental anguish. Dr. Durham moved to dismiss both of Yeasin’s claims on qualified-immunity grounds. The federal district court granted Dr. Durham’s motion to dismiss, concluding that she did not violate Yeasin’s clearly established rights under the First and Fourteenth Amendments. On January 5, 2018, the Tenth Circuit Court of Appeals affirmed.

The Tenth Circuit Court of Appeals Analysis and Findings

Qualified immunity protects government officials from liability for civil damages if their conduct “does not violate clearly established statutory or constitutional rights of which a reasonable person would have known.” In order to overcome this defense, a plaintiff must show (1) that the official violated a statutory or constitutional right, and (2) that the right was clearly established. The Court of Appeals here found that Yeasin’s claim failed the second prong of this analysis.

In reaching its conclusion, the Court analyzed free speech cases in secondary school and college/university settings including consideration of Tinker v. Des Moines Indep. Community Sch. Dist., 393 U.S. 503 (1969) (finding that, while secondary-school students retained free-speech rights, schools can still prohibit actions that “would materially and substantially disrupt the work and discipline of the school…”); Morse v. Frederick, 551 U.S. 393 (2007) (allowing a K-12 school to discipline a student for flying a banner reading “BONG HiTs 4 JESUS” at an off-campus, school-approved activity because the banner could reasonably be viewed as promoting drug use); Bethel Sch. Dist. No. 403 v. Fraser, 478 U.S. 675 (1986) (K-12 schools can restrict lewd, vulgar, or indecent speech even without a forecast of disruption); and Hazelwood Sch. Dist. v. Kuhlmeier, 484 U.S. 260, 273 (1988) (allowing public officials to restrict K-12 school-sponsored speech).

Yeasin argued that First Amendment cases which allow for the restriction of student speech in the secondary school context cannot be applied in the university context in the same way. Rather, Yeasin argued that cases including Papish v. Bd. of Curators of the Univ. of Missouri, 410 U.S. 667 (1973) (addressing distribution of newspaper in the university setting “containing forms of indecent speech”); Widmar v. Vincent, 454 U.S. 263 (1981) (addressing a university’s refusal to allow a registered religious student group to meet in university buildings); and Healy v. James, 408 U.S. 169 (1972) (addressing a state college’s refusal to officially recognize a student group known because of its potential affiliation with a national organization known for campus disruption) should be applied. The Tenth Circuit Court of Appeals distinguished the cases advanced by Yeasin noting that the cases didn’t concern “university-student conduct that interferes with the rights of other students or risks disrupting campus order.” The Court also countered with language from Widmar, quoting Healy, which “suggests that the Supreme Court believes that the material-and-substantial-disruption test applies in the university setting.” Ultimately, the Tenth Circuit Court of Appeals concluded that Yeasin could not establish that Dr. Durham had violated clearly established law when she took action to expel him, in part, for his off-campus social media tweets.

The Court considered Yeasin’s substantive due process argument, and found that it was flawed. The Court reasoned that Yeasin needed to show that the school’s decision to expel him was arbitrary, lacked a rational basis, or shocked the conscience. Butler v. Rio Rancho Pub. Sch. Bd. of Educ., 341 F.3d 1197, 1200 (10th Cir. 2003). The court declined to resolve the question of whether Dr. Durham’s decision to expel Yeasin violated his right to substantive due process, and limited its opinion to a finding that she violated no clearly established law in doing so.

The need for college and university administrators and school officials to navigate their legal obligations when addressing decisions to discipline a student for off-campus speech on social media will no doubt remain a prevailing issue, especially when such conduct implicates the rights of another student to be educated in a harassment-free learning environment. Not surprisingly, KU modified its student code of conduct after this incident to explicitly extend its disciplinary jurisdiction to off-campus incidents.

Seyfarth Shaw continues to monitor the developments in the battle between the First Amendment right to freedom of speech and rights under Title IX to an educational environment free of sexual harassment. We will keep our readers apprised.

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

Seyfarth Synopsis: Last week, members of the Chicago L&E Team hosted the Fourth Quarter Breakfast Briefing to a packed room.  This Briefing looked at four key governmental agencies/trends (OSHA, OFCCP and equal pay, EEOC, and NLRB) to review key highlights from 2017 and how 2018 was shaping up.

In case you missed it, here are the slides from the presentation.

Please consider joining us for Firm Breakfast Briefings (which also offer CLE credit if that’s on your yearly “to do” list).  Upcoming topics likely include the ongoing issues impacting ADA/FMLA and other leave laws; paid sick leave; and other emerging topics in HR and employment law. We will be announcing dates for 2018 Chicago briefings in the next several weeks; so be on the (Employment Law) “Lookout” for those emails.

 

By David J. Rowland and Megan P. Toth

Seyfarth SynopsisThe Eleventh Circuit is the next to find a long-term leave of absence is not a reasonable accommodation under the ADA.

Just a few months after a recent and definitive decision by the Seventh Circuit that multi-month leaves of absence, even those that are definite in term and sought in advance, are not required by the Americans with Disabilities Act (ADA), the Eleventh Circuit has issued a similar opinion. This decision may signal a growing trend that courts are attempting to curb the abuse of long-term leaves of absence under the ADA that has been rampant and debilitating to employers for many years.

In the recent Eleventh Circuit case, Billups v. Emerald Coast Utilities Authority, the plaintiff injured his shoulder at work and took Family and Medical Leave Act (FMLA) leave.  He was not able to have corrective surgery during this time, so under the employers medical leave policy, he was granted another three-month medical leave.  However, at the end of this period — a total of six months of leave — the employee was still not medically able to return to work. He told the employer that he had a doctors appoint in a month and would likely be released to work in six weeks, but it was unclear whether he would have any restrictions at that time. Thus, the employer terminated the plaintiff’s employment and he sued, alleging failure by the employer to provide additional leave as an ADA reasonable accommodation.

The Eleventh Circuit affirmed dismissal of the plaintiff’s claim on summary judgment. The plaintiff acknowledged that case precedent says that employers are not required to provide indefinite leaves. However, he argued that these prior decisions involved situations where employees suffered from chronic medical conditions that could continue indefinitely. In this case, the plaintiff contended that an unspecified leave was reasonable because there was a projected end date and once concluded, his medical condition would be resolved without the potential need for additional leave.

The Eleventh Circuit rejected this argument finding that even though the plaintiff would eventually recover, his request was essentially an “open-ended request” for leave of a sufficient time to recover, which is not reasonable under the ADA.  The Court also noted that the employer did not violate the ADA because it already provided six months of leave and the plaintiff inarguably could not perform the essential functions of his job at the time of his termination, with or without a reasonable accommodation and therefore he was not a qualified individual.  Thus, the court found that regardless of the nature of his underlying medical condition and his projected but uncertain recovery, the employer was not required to provide continued long-term leave.

It appears that the Seventh Circuit is not the lone-ranger in its attempt to invalidate the EEOC’s historic and strongly advocated position that long-term leaves are required “reasonable accommodations” under the ADA.  If other circuits continue to follow suit, employers may no longer have a legal obligation to provide lengthy post-FMLA leaves of absence, without the need to justify the denial based on specific business needs.  This case also demonstrates the importance of requesting updated medical information from employees nearing the end of FMLA or other medical leave periods.

If an employee cannot medically substantiate that they can return to work close to the expiration of their FMLA leave, employers may have greater legal flexibility in determining whether or not to accommodate the request. While employers should be aware of this apparently growing trend and may choose to adjust their leave and accommodation approaches accordingly, they still must approach long-term and indefinite leave requests very carefully as there are conflicting decisions from other circuits and the EEOC’s position will remain unchanged unless the U.S. Supreme Court ultimately sides with the Seventh and Eleventh Circuits.

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 authors, your Seyfarth Attorney or a member of the Firm’s Absence Management and Accommodations Team.

By David J. Rowland and Cheryl A. Luce

Seyfarth Synopsis: The Seventh Circuit sent shockwaves through the EEOC and through the employer community by concluding that multi-month leaves of absence, even those that are definite in term and sought in advance, are not required by the ADA.

To the surprise of many observers, and undoubtedly the EEOC, the Seventh Circuit held last week in Severson v. Heartland Woodcraft, Inc., — F. 3d — Case No. 14-cv-1141 (7th Cir. Sept. 20, 2017) that “a long-term leave of absence cannot be a reasonable accommodation” under the ADA. Id. at 7. Judge Sykes, on behalf of a power panel that included Chief Judge Wood and Judge Easterbrook, analyzed the language of the ADA and concluded that it “is an antidiscrimination statute, not a medical-leave entitlement.” Id. at 2.

The facts of the case are straightforward. Severson had a chronic back condition that pre-dated his employment at Heartland that would occasionally flare up and affect his ability to walk, bend, lift, sit stand, move and work.  In June 2013, Severson experienced such a flare-up and took a leave from work.  Over the summer months, he submitted periodic notes from his doctor informing Heartland that he was receiving treatment and could not work.

Heartland approved his request for 12 weeks of FMLA leave. Two weeks before his leave expired, he informed Heartland that his condition had not improved and that he would need surgery the date that his leave expired, and that the typical recovery time for this surgery was at least two months.  Heartland notified Severson the day before his surgery that his employment with Heartland would end when his FMLA leave expired the following day and invited him to reapply with the company when he recovered from surgery and was medically cleared to work. He recovered several months later and, instead of reapplying, filed a lawsuit.  The district court awarded summary judgment in favor of Heartland on Severson’s ADA claims and the Seventh Circuit affirmed.

The EEOC filed an amicus brief and participated in oral argument.  In its opinion, the court took special care to explicitly reject the EEOC’s argument that a long-term medical leave of absence should qualify as a reasonable accommodation when the leave is of a definite, time-limited duration, requested in advance, and likely to enable to perform the essential functions of his job when he returns.  The court found the EEOC’s reading of the statute to equate “reasonable accommodation” with “effective accommodation,” a concept rejected by the Supreme Court in U.S. Airways, Inc. v. Barnett, 535 U.S. 391 (2002). Severson at 9.  More importantly, the court found that by the EEOC’s logic, the length of the leave did not matter and therefore transformed the ADA into a medical leave statute—“in effect, an open-ended extension of the FMLA”—which the court found “untenable.” Id.

The court left open the possibility that “intermittent time off or a short leave—say, a couple of days, or even a couple of weeks—may, in appropriate circumstances, be analogous to a part-time or modified work schedule.” Id. at 8.  But, relying upon prior precedent from Byrne v. Avon Prods., Inc., 328 F.3d 379, 381 (7th Cir. 2003), the court found that the “[i]nability to work for a multi-month period removes a person from the class protected by the ADA.” Id.

This decision is the firmest and most comprehensive rebuke of the EEOC’s long-held and vigorously pursued position that long-term leaves are a required form of reasonable accommodation. The Chicago office of the EEOC, in particular, has leveraged multi-million dollar settlements in the past after suing employers that actually had long term, “multi-month” extended leave policies in place, but were unwilling to extend leaves beyond six months or even a year.  This avenue of ADA attack now appears blocked in the Seventh Circuit.

Employers must proceed with great caution in this area for several reasons. First, the Seventh Circuit’s decision arguably conflicts with decisions in the First, Sixth, Ninth and Tenth Circuits (at least according to the EEOC’s amicus brief at pp. 15-16 ).  As a result, employers with a national footprint cannot assume this same rule will apply outside of the Seventh Circuit.  Second, Severson could seek rehearing en banc, likely with the EEOC’s support.  Given the panel in Severson, though, a rehearing bid may be an uphill battle.

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

By Gerald L. Maatman, Jr. and Alex W. Karasik

Seyfarth Synopsis: In an EEOC lawsuit alleging that an employer failed to reasonably accommodate its Muslim employees’ requests for prayer breaks, a federal court in Colorado granted the EEOC’s motion for sanctions — as a result of the employer’s failure to preserve and produce various records — and barred the employer from presenting evidence, testimony, or arguments that unscheduled prayer breaks led to production line slowdowns or stoppages.  This ruling provides an important lesson for businesses regarding the preservation of documents in ongoing EEOC litigation.

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In EEOC v. JBS USA, LLC, Case No. 10-CV-02103, 2017 U.S. Dist. LEXIS 122908 (D. Colo. Aug. 4, 2017), the EEOC alleged that JBS USA, LLC (“JBS”), a meat packing company, discriminated against its Muslim employees on the basis of religion by engaging in a pattern or practice of retaliation, discriminatory discipline and discharge, harassment, and denying its Muslim employees reasonable religious accommodations.  After the EEOC moved for sanctions regarding JBS’s failure to produce two types of records relating to delays on JBS’s production line, Judge Phillip A. Brimmer of the U.S. District Court for the District of Colorado granted in part the EEOC’s motion and barred JBS from presenting evidence, testimony, or argument in its motions, at hearings, or at trial that unscheduled prayer breaks led to production line slowdowns or stoppages.

For employers involved in government enforcement litigation, this ruling serves as a cautionary tale regarding the importance of preserving and producing relevant records, and that the failure to do so might cost employers the ability to later use such records in their defense.

For more information on this lawsuit (and a similar Nebraska case where JBS successfully obtained summary judgment), see our blog posts here, here, here, here, here, here, and here.

Case Background

JBS operates a beef processing plant in Greeley, Colorado.  Id. at *2.  During the first week of Ramadan 2008, a dispute occurred between JBS and its Muslim employees over their opportunities to pray, resulting in hundreds of Muslim employees walking off the job.  On September 10, 2008, JBS fired 96 Muslim employees that refused to return to work.  After the mass termination, numerous former employees filed discrimination charges with the EEOC.  Id.  In response, on February 3, 2009, JBS submitted a position statement where it argued that granting prayer breaks to employees would be an undue burden, in part, due to losses resulting from “each minute of production down-time.”  Id.  JBS continued to assert its undue burden affirmative defense throughout the case, for instance, arguing in its summary judgment motion that production line slowdowns and downtime would have been caused by allowing prayer breaks to Muslim employees.

The EEOC sought discovery from JBS about its undue burden affirmative defense.  Relevant here, on November 21, 2012, the EEOC served a production request regarding the production of all reports or data showing all dates and times the fabrication lines on any and all shifts were stopped, as well as the speed of the lines.  In response, JBS produced documents that included records showing scheduled breaks, but did not provide or reference the Down Time Reports or Clipboards, which show unplanned downtime and slowdowns.  The EEOC thereafter moved for sanctions for the loss or destruction of documents directly relevant to JBS’s allegations of undue hardship.

The Court’s Decision

The Court granted the EEOC’s motion for sanctions.  While JBS had produced Clipboards from 2012-2016 and Down Time Reports from 2016, it claimed that all others had been destroyed.  JBS later testified via Rule 30(b)(6) deposition that the Down Time Reports were shipped to storage each year, but may have been destroyed.  After searching its warehouse for “a day” in 2017,  JBS later located and produced some additional records.  Id. at *6.  The Court thus found that JBS failed to supplement its production with responsive records in a timely manner.  The Court held that because JBS did not show that its failure to supplement was substantially justified or harmless, it would impose sanctions pursuant to Fed. R. Civ. P. 37(c)(1).  Id.

Next, the Court explained that spoliation occurs when a party loses or destroys evidence that it had a duty to preserve because it was relevant to proof of an issue at trial in current or anticipated litigation.  Id. at *7 (citation omitted).  JBS argued that it did not have a duty to preserve these documents because it had no way of knowing or anticipating that the EEOC would be interested in knowing the specific time of every instance of every day that the production line stopped for an unplanned or unexpected reason.  The Court rejected this argument, holding that JBS ignored the fact that it asserted an undue burden defense within a year of the September 2008 incident and after charges of discrimination had been filed against it.  As such, the Court held that JBS had a duty to preserve documents relevant to the burden posed by the proposed accommodations.  Id. at *8 (citation omitted).

Arguing that the lack of production of records did not cause a prejudice to the EEOC, JBS stated that the records did not show whether any slowdown or stoppage was related to a prayer break because the information they contained was “only as specific as the information known to the person filling out the Down Time Report.”  Id. at *10.  The Court rejected this argument, holding that “[r]ecords such as those sought, which potentially show the actual impact of unscheduled employee prayer breaks, are particularly important to understanding the impact such breaks would have on production line slowdowns or stoppages because they would provide contemporaneous records of whether unscheduled breaks led to production downtime.”  Id. at *12.  Accordingly, the Court found that the EEOC was prejudiced by JBS’s spoliation of evidence.  Id.

In fashioning a sanction that “appropriately addresses the prejudice to the EEOC resulting from JBS’s spoliation or failure to produce the records and is proportional to JBS’s culpability,” the Court held that it would bar JBS from presenting evidence, testimony, or argument in its motions, at hearings, or at trial that unscheduled prayer breaks led to production line slowdowns or stoppages.  Id. at *14.  The Court explained that this sanction was “tailored to the evidence lost, destroyed, or withheld by JBS because it alleviates the prejudice which the EEOC would otherwise suffer, namely, that JBS may present evidence of stoppages through witnesses, but the EEOC would not be able to rebut such testimony with records that would likely prove whether stoppages actually occurred and, perhaps, for what reason.”  Id.  Accordingly, the Court granted in part the EEOC’s motion for sanctions for the loss or destruction of documents.

Implications For Employers

An employer’s likelihood of defeating a workplace class action is often dependent on its ability maintain and preserve thorough employment records.  Here, the employer’s failure to preserve records that ultimately could have helped establish an affirmative defense resulted in the Court limiting the employer from using certain types of evidence in its defense of the litigation.  This sanction should serve as a cautionary tale for employers in regards to complying with the written discovery process, as employers are best-positioned to defeat workplace class actions when they have as many defenses as possible in their arsenal.

Readers can also find this post on our EEOC Countdown blog here.

 

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

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

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

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

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

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

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

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

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