By Christine Mary Costantino and Dawn Reddy Solowey

Seyfarth Synopsis: The Tenth Circuit has recently vacated summary judgment in favor of an employer in a religious accommodation case that centers on what constitutes a “reasonable” accommodation of an employee’s observance of – and consequent inability to work on – the Sabbath. In this case, the Court found that the employer’s reliance on neutral paid time off policies and voluntary swift swaps could not be determined “reasonable” as a matter of law. While the Court’s decision remanding the case for further proceedings leaves the ultimate question of “reasonableness” open, the Court’s analysis is instructive for employers facing similar religious accommodation requests. Tabura, et al. v. Kellogg, USA, Case No. 16-4135 (10th Cir. Jan. 17, 2018).

Procedural History

Two individuals employed at Kellogg’s food production plant filed a lawsuit in the United States District Court for the District of Utah. At the trial court level, their claims included religious discrimination, failure to accommodate their religious practices and retaliation. The parties cross-filed motions for summary judgment. The District Court granted summary judgment in its entirety in favor of Kellogg. On appeal, the plaintiffs only challenged the District Court’s ruling on the failure to accommodate claim. Therefore, the issue before the Court was the propriety of the District Court’s entry of summary judgment in favor of the employer, Kellogg, on two grounds: that the employer’s accommodation was reasonable as a matter of law and that further accommodation would constitute an undue hardship for the employer.

Factual Background

The plaintiffs, both Seventh Day Adventists, refrained from working from Friday at sundown until Saturday at sundown as part of their observance of the Sabbath.

The plaintiffs were long-time employees at Kellogg’s food production plant. They both worked Monday through Thursday, ten hours per day, until March 2011. At that time, Kellogg changed its staffing model to “continuous crewing.” Under this model, the employees of the food production plant were divided between four shifts – A, B, C and D. Each shift was scheduled to work 12 hours per day for two or three days in a row, and then scheduled for two or three days off. Additionally, the shifts were paired so that, for example, Shift A would work 6:30 a.m. to 6:30 p.m., and the Shift C would work from 6:30 p.m. to 6:30 a.m. Shifts B and D were similarly paired. Both plaintiffs were assigned to Shift A.

Under the continuous crewing model, every shift was assigned to work 26 Saturdays per year, creating a scheduling conflict with plaintiffs’ Sabbath observance. Additionally, as scheduled day shifts ended at 6:30 p.m., the plaintiffs had a further conflict in the winter when the sun set, marking the beginning of the Sabbath, before their Friday shifts ended.

Kellogg’s proposed accommodation was to permit the plaintiffs to use paid time off or swap shifts with qualified co-workers in order to avoid scheduling conflicts with their observance of the Sabbath. These options were part of a neutral attendance policy that was available to any employee who wanted to take a day off for any reason and were not specially established for plaintiffs’ religious conflicts.

The plaintiffs earned between 160 and 200 hours of paid time off annually. Therefore, even if the plaintiffs used all of their earned paid time off to observe the Sabbath, they would still be left with between 9 and 13 Saturdays that they could not cover with paid time off. On those days, under Kellogg’s proposed accommodation, they would have to secure a voluntary shift swap with another employee to avoid a conflict between their work schedules and their religious observance.

Kellogg’s attendance policy assessed disciplinary points for any employee who missed part or all of a scheduled work day without taking paid time off or trading shifts with another employee. Accumulation of points triggered certain disciplinary measures, including termination for amassing sixteen disciplinary points in a twelve-month period. Consequently, under Kellogg’s proposed accommodation, if the plaintiffs could not secure coverage via a swap for these remaining Saturday shifts, they would each earn over sixteen disciplinary points in a twelve-month period, warranting termination under the attendance disciplinary policy.

The plaintiffs put forth evidence that there were very limited options to trade shifts with other employees. First, in order to swap shifts with another employee, an employee needed to be qualified to perform the other’s position. Additionally, per Kellogg’s policy, no employee could work more than 13 hours in a row, eliminating the possibility of swapping with an employee assigned to Shift C. Because Shift D was regularly scheduled to work night shifts, it was less likely that an employee on the night Shift D would voluntarily swap with an employee on the day Shift A, which would require adjustment to their regular sleep schedules. After consideration of all of these factors, the plaintiffs argued that they were essentially limited to swapping shifts with “qualified” employees on Shift B, which left them each with three or fewer qualified employees with whom they could seek shift swaps.

Both plaintiffs contended that they were unable to regularly find qualified employees who would voluntarily agree to swap shifts, causing them to miss Saturday shifts to observe the Sabbath and accumulate disciplinary points for leaving their shifts uncovered. Eventually, both plaintiffs were terminated under Kellogg’s attendance policy for accumulation of disciplinary points, at least in part due to missed Saturday shifts.

The Decision

The Court looked at two questions in its decision – whether Kellogg reasonably accommodated the plaintiffs’ religious practice of not working on the Sabbath, and, if not, whether Kellogg could have offered a reasonable accommodation without undue hardship to the business.

Ultimately, the Tenth Circuit vacated summary judgment in favor of Kellogg, holding that there were questions of fact on both issues presented that precluded the entry of summary judgment, and remanded the case for further proceedings. Although the decision leaves open the ultimate question of whether Kellogg’s accommodation was reasonable, the Court did provide additional guidance for employers in rejecting two theories advanced by plaintiffs and the EEOC, which submitted an amicus brief on behalf of plaintiffs.

First, the Tenth Circuit held that there is no per se requirement that a “reasonable” accommodation “completely” or “absolutely” eliminate any conflicts between an employee’s religious practices and his or her job requirements, which in this case could require, for example, that the plaintiffs never be scheduled for a Saturday shift. The Court found that such a rule would read “reasonably” out of the statute. The Tenth Circuit thus expressly declined to adopt the position that in order to be reasonable an accommodation “must eliminate, or totally eliminate, or completely eliminate, any conflict between an employee’s religious practice and his work requirements.” The Court reiterated that the statute only requires that the accommodation to be “reasonable” and the assessment of reasonableness is made on a case-by-case basis. Employers should note that the question of whether a reasonable accommodation must completely eliminate the conflict varies significantly by jurisdiction, as noted in the decision.

Second, the Tenth Circuit rejected plaintiffs’ blanket position that an employer cannot meet its accommodation obligations through use of a neutral policy, such as the accommodation provided in this case. Rather, the Court reaffirmed that a neutral employment policy “may” satisfy the need for a reasonable accommodation, and specifically stated that the combination of paid time off and voluntary shift swaps “might, under the facts of a particular case, reasonably accommodate an employee’s Sabbath observance.”

Nonetheless, the Court found that the evidence created a dispute of fact as to whether the accommodation in this case was reasonable. Specifically, in this case, the Tenth Circuit explained that “an accommodation will not be reasonable it if only provides Plaintiffs an opportunity to avoid working on some, but not all, Saturdays.” And here, there was evidence in the record that, after narrowing the pool of individuals with whom they could seek swaps based on these limitations, each plaintiff was left with less than three options from which to seek voluntary shift trades. Neither plaintiff had substantial success in consistently obtaining shift swaps for Saturdays, and upon advising their supervisor of this difficulty, plaintiffs contend that no further action was taken to assist or accommodate them. The Court noted that in consideration of the limited options for swapping shifts and the demonstrated difficulty plaintiffs had in swapping shifts, a reasonable accommodation “could” require an employer to take a more active role in the accommodation rather than merely permitting the voluntary shift swaps.

The Court emphasized, however, that this does not mean that the employer in this case was required to guarantee that the plaintiffs would never be scheduled for a Saturday shift. And there is no requirement that an accommodation be without cost to the employee.   For example, the Court noted that requiring an employee to take unpaid leave could eliminate the conflict between a religious practice and work requirements. Unpaid leave is only a loss of income for the period that the employee is not at work and has no direct effect on either employment opportunities or job status.

With disputed factual issues surrounding the reasonableness of the accommodation and the plaintiffs efforts to utilize the provided accommodation, the Tenth Circuit determined that the case must be decided by a jury.

The Tenth Circuit’s decision touched only briefly on Kellogg’s affirmative defense that any additional accommodation would be an undue hardship for the company. The Court noted that Kellogg did not move for summary judgment on that ground, but the District Court’s granted summary judgment in the alternative on that defense. Similar to the Court’s analysis of the issue of what constitutes a “reasonable” accommodation, the Court found that whether further accommodation would impose an undue hardship on the employer is a question of fact that turns on the particular circumstances in each case.

Employer Takeaways

The resounding theme in the Court’s decision is that “determining what is reasonable is a fact-specific determination that must be made on a case-by-case basis.” This is good advice for any employer in responding to a request for accommodation; the employer should make a factual inquiry into the particular circumstances of each request and whether, as a practical matter, the proposed accommodation provides a realistic opportunity for the employee to avoid conflicts between job requirements and religious practices. It is also a good example of how neutral policies are not always sufficient to constitute a reasonable accommodation. Finally, the decision serves as a reminder that religious accommodation standards may vary considerably from jurisdiction to jurisdiction. Employers are wise to consult with an attorney with expertise in this area who can help assess the specific religious conflict and accommodation possibilities, within the legal standards applicable to the jurisdiction.

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 Samantha L. Brooks

Seyfarth Synopsis: In a recent decision, the Eighth Circuit held that Title VII does not require an employer to provide an employee a reason for termination at the time of termination, and that an employer is not strictly bound in litigation to whatever reasons may have been provided at the time of termination. Rooney v. Rock Tenn Converting Company, et. al., No,. 16-3631 (8th Cir. Jan. 9, 2018).

In Rooney v. Rock Tenn Converting Company, et. al., the Eighth Circuit affirmed judgment against a former sales executive who alleged he was terminated for not being Jewish and not being female. Rock-Tenn, which makes packaging and merchandise displays for retailers, hired Rooney in March 2010 to sell its products in the Bentonville, Arkansas market. Rooney was terminated in 2015 after Rock-Tenn received multiple internal complaints, and multiple complaints from the main client whose account he serviced. Rooney was told that the reason for his termination was “difficulties with interacting with coworkers and failure to support” the client.

Rooney filed suit under Title VII, claiming that he was really terminated for not being Jewish, and that his former supervisor was “building a Jewish empire,” that included his most recent supervisor and the employee who allegedly replaced him. He also claimed he was terminated for not being a woman, that he was replaced on other accounts by women, and that his supervisor made statements that she “couldn’t wait until there’s more ladies in the office.”

Rock-Tenn moved for summary judgment and identified a number of reasons why Rooney was terminated. The district court granted Rock-Tenn’s motion for summary judgment, and found that although Rooney had established a prima facie case of discrimination based on religion and sex, Rock-Tenn had articulated legitimate, non-discriminatory reasons for firing him, and that Rooney was unable to show that the reasons for Rooney’s termination proffered by Rock-Tenn were pretext for discrimination.

The Eighth Circuit noted that Rooney made two arguments on appeal: that the district court erred by allowing Rock-Tenn to provide new reasons for his termination in court; and that the new reasons were not credible.

Rooney argued that the district court impermissibly permitted Rock-Tenn to expand upon the reasons for his termination in the summary judgment motion. Rooney claimed that the additional legitimate, nondiscriminatory reasons proffered by Rock-Tenn increased his burden of defending against the motion for summary judgment. The Court noted, however, that Rooney’s interpretation of the familiar burden-shifting framework created by McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973) was not as narrow as Rooney argued. Rather, the Court noted that the employer’s burden under McDonnell Douglas to articulate legitimate, non-discriminatory reasons for an adverse employment action, such as termination, “does not arise when the adverse employment action is taken—rather, it is triggered during litigation, when an employee meets his burden of establishing a prima facie case of discrimination. Title VII does not impose a legal obligation to provide an employee an articulated basis for dismissal at the time of firing, and an employer is certainly not bound as a matter of law to whatever reasons might have been provided.”

Importantly, the Eighth Circuit noted that “it is well-established that [an] employer may elaborate on its explanation for an employment decision,” and that such an elaboration–without a “substantial shift” in the employer’s explanation for a termination decision–is not evidence of pretext. The key factor, according to the Court, was that there was no contradiction between the reasons provided to Rooney at the time of termination and the non-discriminatory reasons articulated by Rock-Tenn during litigation. The “additional examples of Rooney’s poor performance” were not evidence of a substantial shift in Rock-Tenn’s reasons for termination, and instead provided “additional justification . . . consistent with [Rock-Tenn’s] proffered belief” that Rooney interacted poorly with his co-workers and failed to adequately support the client’s account. This, the Eighth Circuit held, is not evidence of pretext.

Finally, the Court noted that Rooney failed to offer evidence that Rock-Tenn’s reasons for terminating him were pretext. Rock-Tenn provided multiple examples of Rooney’s mistakes and failures, and the Court held that “nothing in Rooney’s argument rebuts, or even mitigates, Rock–Tenn’s evidence of repeated errors and omissions on the [client’s] account, and there is nothing in Rooney’s argument to suggest that Rooney was not responsible for the mismanagement.”

Employer Takeaways

Employers are not required to provide employees with an articulated basis for termination at the time of their termination, nor is the employer bound by the reasons that may have been provided. Nevertheless, to prepare for possible litigation, employers should decide why the employee is being terminated, keep it short, and stick to it. Managers and Human Resources personnel must remain consistent in how they describe and document termination decisions. Although employers will be able to elaborate upon the reasons for an adverse employment action in litigation, inconsistent explanations will strengthen an employee’s claim of discrimination or retaliation.

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

Seyfarth Synopsis: The Sixth Circuit ordered a new trial in a Title VII case where plaintiff presented evidence he was entitled to back pay, the employer presented no evidence to the contrary, and the jury only awarded a small percentage of plaintiff’s ask. In ordering the new trial, the Sixth Circuit noted that the jury cannot “infer” the plaintiff was entitled to less because it is the employer’s burden to show plaintiff did not seek out new employment after termination. Pittington v Great Smoky Mountain, No. 17-5590 (6th Cir. Jan. 24, 2018).

Plaintiff was employed as a theater clerk at Lumberjack, a company that put on Lumberjack dinner shows, for five months before he was terminated for supporting his wife’s sexual harassment lawsuit against the same company. Before he was terminated, plaintiff alleged he was demoted, received reduced hours, and was forced to work in a shack with no heat and no chair, which he required for his medical condition. Plaintiff sued, alleging Lumberjack’s actions were a result of his disability and in retaliation for his support of his wife’s lawsuit against them.

At trial, plaintiff showed evidence of his earnings and subsequent employment history, and requested $40,632.50 in back pay. Generally, back pay in Title VII is determined by subtracting the amount the plaintiff actually earned while being discriminated against from the amount the plaintiff would have earned had no discrimination occurred. The jury found Lumberjack violated Title VII and the Tennessee Human Rights Act, but dismissed the plaintiff’s ADA claim on a directed a verdict for Lumberjack.

The jury only awarded back pay, to the tune of $10,000. The court refused plaintiff’s request for front pay, an increased back pay award, or a new trial on damages, finding that the jury award was reasonable because plaintiff failed to adequately explain periods of his unemployment. Plaintiff appealed. A divided Sixth Circuit panel reversed, finding that plaintiffs who prove they were fired in violation of Title VII are presumptively entitled to back pay for the total they would have received if they had not been terminated. In other words, it’s on the employer, not the employee to show a worker did not mitigate his losses once he was terminated. The court awarded a new trial on damages.

The Sixth Circuit noted that Lumberjack offered no evidence to show that substantially equivalent positions were available and that plaintiff failed to use reasonable care and diligence in seeking out such positions. The plaintiff was not legally obligated to convince the jury that he sought out and secured comparable employment after termination–instead, it was Lumberjack’s job to show that he didn’t. The court denied Lumberjack’s argument that the jury could “infer” that plaintiff did not mitigate his damages. The court found that where, as here, plaintiff offered evidence of his post-termination and pre-termination wages, the jury can take that information into account, but that no reasonable jury could have taken plaintiff’s evidenced of $40,000 back pay and slash it to $10,000.

This is a good reminder for all employers in litigation (and their counsel) that, although plaintiffs must mitigate their losses after they’re terminated, it’s ultimately on the employer disprove any evidence a plaintiff does present and establish that the plaintiff was not diligent in looking for new employment. If employers are not prepared to present evidence that a plaintiff failed to mitigate his damages, they risk the court finding any jury award less than plaintiff’s requested back pay to be unreasonable (and unsupported by evidence!).

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

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

Seyfarth Synopsis: In the first case following the Department of Justice’s pronouncement that Title VII does not prohibit discrimination against transgender persons on the basis of gender identity, a court in the Western District of Oklahoma held that Title VII protects transgender individuals from discrimination. Tudor v. Se. Okla. State Univ., No. civ-15-324-C. (W.D. Okla. Oct. 26, 2017).

With the recent October 5, 2017 memorandum from the Department of Justice stating that Title VII does not prohibit discrimination against transgender persons, the legal landscape regarding Title VII’s protection of transgender individuals is very much in flux. The DOJ’s interpretation is a reversal of the DOJ’s interpretation under the Obama administration and also conflicts with the current interpretation of the EEOC, both of which interpret Title VII to prohibit discrimination on the basis of gender identity. U.S. Circuit courts are also split on the issue, meaning this issue is likely primed for resolution by the Supreme Court in the not too distant future.

The latest decision addressing this issue comes from Tudor v. Southeastern Oklahoma State University, a case from the Western District of Oklahoma in which Tudor, a transgender former professor at Southeastern Oklahoma State University, alleged among other things that she was harassed and discriminated against on the basis of her gender identity after she was denied tenure following her transition from male to female. The court in Tudor denied the university’s motion for summary judgment, finding that there were triable issues of fact with respect to each of Tudor’s claims. This decision is important because it shows that, despite the DOJ’s memorandum, courts are still willing to extend Title VII protections to transgender persons. It also provides helpful guidance to employers as they ponder how their own internal policies and procedures affect transgender employees.

Importantly, the court in Tudor rejected the University’s argument that Tudor was not entitled to protection under Title VII because “transgender” is not a protected class. The court, relying on its prior ruling on the issue, reiterated that Title VII’s prohibition of gender discrimination extended to transgender individuals to the extent they were discriminated against based on “gender non-conformity.” Specifically, Tudor had alleged that Defendant’s actions towards her occurred because she was female, yet Defendants regarded her as male.

The Court also denied the University’s motion for summary judgment on Tudor’s hostile work environment claim, finding that there was a triable issue of fact. In particular, the court highlighted Tudor’s evidence that for four years the University placed restrictions on what restroom she could use, how she could dress, what makeup she could wear, and that it used the wrong pronouns when referencing her. The Court found that these facts, if true, could be sufficient to establish a hostile work environment claim.

The Court also rejected the University’s Faragher/Ellerth defense, which can provide a complete defense to an employer that has non-discrimination and non-harassment policies in place but where an employee fails to take advantage of those procedures. Here, the court explained that the defense would not apply because the University’s sexual harassment and sex discrimination policies did not contain specific language regarding protections for transgender employees.

Even though the law in this area remains uncertain, there is much for employers to glean from the Tudor case. First, it is clear that the DOJ’s recent memorandum has not resolved the question of whether Title VII protects transgender employers on the basis of gender identity. Therefore, employers should be vigilant in establishing and maintaining non-discrimination and anti-harassment policies that extend protections to individuals on the basis of gender identity. This will help ensure that employers stay compliant with federal (and applicable state and local) laws, and it also preserves a potential Faragher/Ellerth defense to a hostile work environment claim. Employers should also be mindful of the unique conduct that may be considered harassing in nature to transgender employees. For example, Tudor demonstrates that denying employees access to their bathroom of choice, enacting strict gender normative dress codes, and refusing to use preferred pronouns may all contribute to a hostile work environment. Thus, employers should update their anti-harassment policies and trainings to include examples that address some of the unique scenarios affecting transgender employees.

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

By Sam Schwartz-FenwickMichael W. Stevens, and Kylie Byron

Seyfarth Synopsis: The Department of Justice has reversed the previous Administration’s position on employment protections for transgender individuals, and issued a memorandum that will likely be relied on by private employers seeking to use their religious faith to engage in otherwise prohibited discriminatory conduct.

In a bombshell week, with significant implications for employers, the Department of Justice issued two memos setting forth its views on transgender discrimination claims and an employer’s ability to make decisions based on its religious beliefs.

On October 5th, 2017, the Department of Justice released a memorandum stating that the new position of the DOJ would be that Title VII does not protect transgender persons from discrimination in the workplace. However, somewhat confusingly, the memo specified that transgender people were still protected under Title VII’s existing formulation. This presumably means that a transgender person may sue under Title VII if their employer discriminates against them on the basis of their race or country of origin, but not on the basis of sex or gender identity. The DOJ had previously argued in Court that Title VII does not extend to claims of sexual orientation discrimination.

On October 6th, 2017, the Department issued new guidance providing that “[e]xcept in the narrowest of circumstances, no one should be forced to choose between living out his or her faith and complying with the law.” The directive explicitly states that private companies must be given the same leeway regarding religious beliefs that churches receive. This guidance may impact hiring, and could possibly give any private organization the ability to hire, fire, and discipline employees based upon the faith of the owner or supervisor. It may also lead to changes in benefit plans that expressly exclude on religious grounds transgender coverage and/or same-sex spousal benefit.

These directives were not unexpected. Nonetheless, they mark a sharp reversal of DOJ policy. Under the Obama Administration, the DOJ had held the position that transgender employees were protected from discrimination under Title VII, congruent with the EEOC’s position. Specifically, the Department’s position was that gender identity discrimination was a form of sex stereotyping and thus covered by under Title VII. The DOJ intervened in litigation throughout the country advocating this view of the statute. Likewise, the prior administration argued in Hobby Lobby v Burwell, that private companies cannot claim exemption on religious grounds from generally applicable statutes.

In addition, the DOJ’s new course puts it at odds with the EEOC. The EEOC continues to advocate for a broad interpretation of Title VII that extends to claims of sexual orientation and gender identity discrimination.   Further it remains the EEOC’s position that a business cannot defend otherwise discriminatory conduct by arguing such conduct was consistent with its religious beliefs.

The memos underscore that this is an area of law filled with uncertainty. The law on the scope of Title VII’s coverage, and the ability of religion to act as an affirmative defense to otherwise discriminatory conduct, remain unsettled. The memos do not resolve the issue. The Department of Justice has stated its viewpoint and direction, but these directives do not supersede state or federal law already in place. Further, these memos do not control the position of the EEOC.

It is anticipated that these memos will lead to an increase in targeted employment lawsuits from impact groups. How such cases will turn out is unknown.

What is known is that these issues will remain in flux until either the Supreme Court hears the issue or Congress passes clarifying legislation. This term, the Supreme Court in Masterpiece Cakeshop will be given the opportunity to provide some insight into how it views the tension between religious rights and principles of non-discrimination. The case involves whether or not a business (here a bakery) is permitted to refuse service to same-sex couples on the basis of the business-owner’s faith. The baker asserts a First Amendment rights to religious liberty and freedom of speech. A ruling in favor of the baker would be consistent with the DOJ’s October 6 memo, and could dramatically change the employment law landscape. As with the DOJ memo, such a ruling could be relied on by employers and plan sponsors to justify otherwise discriminatory actions in hiring, promotion, firing and plan design.

As the policy change by the DOJ is not binding, it is not advisable to shift employment policies based upon the Attorney General’s statements. Treating transgender employees with equality in the workplace is a best practice standard that increases employee safety and productivity and helps with recruitment, retention and morale. Further, inclusive policies mitigate against the risk of potential litigation. In addition, several states and cities have protective statutes that prohibit discrimination against transgender people in employment, and federal courts in multiple jurisdictions have found transgender claims covered by Title VII.

For more information on this topic, or for advice or assistance in helping your workplace comply with best practices for transgender employees, please contact the authors, your Seyfarth Attorney, or any member of Seyfarth Shaw’s Workplace Policies and Handbooks Team.

By Sam Schwartz-Fenwick, Michael W. Stevens, and Kylie Byron

Seyfarth Synopsis: The first eight months of the new administration signals a retrenchment on the executive branch’s view of legal protections due LGBT individuals, including in employment.

Recently, in a dramatic shift, the Department of Justice broke ranks with the Equal Employment Opportunity Commission, and filed an amicus brief in the Second Circuit in Zarda v. Altitude Express, Inc., No 15-3775, Dkt. #417 (S.D.N.Y. July 26, 2017).  In that brief, the Department argued that, contrary to its prior position (and that of the E.E.O.C.), discrimination on the basis of sexual orientation was not prohibited under Title VII as harassment on the basis of gender. The E.E.O.C.’s longstanding position is that such discrimination is prohibited, a position that recently found support in the Seventh Circuit in Hively v. Ivy Tech, No. 15-720 (7th Cir. Apr. 4, 2017) (en banc).

There is currently a circuit split on this issue, with the Seventh Circuit finding that sexual orientation discrimination is prohibited by Title VII, and the Eleventh Circuit finding that it is not. The sudden reversal of the Department of Justice, injects further uncertainty in the already unsettled landscape of LGBT protections under Title VII.  Employers can expect this uncertainty to continue until the issue is addressed by either Congress or by the Supreme Court. Employers seeking to navigate this in flux legal landscape should work closely with counsel.

In another shift on LGBT issues, in March 2017, the Administration revoked Executive Order 13673, or the “Fair Pay and Safe Workplaces Order.”  Order 13673 required federal government contractors and prospective contractors to show compliance with Order 13672, an order that barred federal contractors from discriminating in employment on the bases of sexual orientation or gender identity. By revoking Order 13673, the  Administration has limited the impact of Order 13672.  While the nondiscrimination Order remains in place, the Order that would hold contractors accountable has been revoked.  Revocation of Order 13673 has created uncertainty among federal contractors as to their responsibilities, and as to appropriate best practices. To remain compliant with Order 13672, employers should work closely with counsel.

In addition, the Administration has revoked the Department of Education issued guidance regarding transgender students. The DOE under the Obama administration stated that transgender students were protected under Title IX on the basis of gender identity.  Thus, schools that did not permit transgender students to use the necessary hygienic facilities (such as bathrooms) appropriate to their gender were in violation of Title IX’s nondiscrimination provisions and risked losing federal funds.

In February 2017, the Trump Administration rescinded that guidance finding it did not “contain extensive legal analysis or explain how the position is consistent with the express language of Title IX.” Absent legal mandates to the contrary, schools can continue to offer protections to their transgender students consistent with their beliefs as to what is in the best interest of students.  Schools that seek to limit bathroom access to the sex-at-birth assigned to their students will need to grapple with how they can enact and implement such a rule while still complying with the present DOE guidance which provides that LGBT students must be assured that they “are able to learn and thrive in a safe environment” and cannot be subjected to discrimination.

The Administration’s view that Title IX does not protect transgender individuals has also led it to consider making changes to Section 1557 of the Affordable Care Act, Section, the regulations containing anti-discrimination protections in the provision of healthcare. Section 1557 bars covered entities from discriminating, including barring coverage based on a transgender exclusion in a plan. Last year, a court in the Northern District of Texas placed a nationwide preliminary injunction on enforcement of the transgender related Section 1557 regulations in a suit against HHS. The current administration chose not to appeal the decision. The Department of Justice further asked the court for a remand to HSS, so that HHS could determine whether or not the regulations comported with Title IX. The court granted this remand, and HHS is currently reportedly planning a new proposed rule for that purpose.

On August 4, 2017, the Justice Department announced that it was reviewing a draft proposed rule already prepared by HHS. It is likely that the proposed rule will unwind the transgender protections of Section 1557, in whole or provide exemptions to the regulations. Healthcare providers, employers, human resources departments and benefits administrators should work closely with counsel on this rapidly changing area of the law.

In further recent action, on July 26, 2017 President Trump tweeted that he would bar transgender persons from service in the military, and thus discharge all transgender service members. While a tweet does not appear to create legal policy, the tweet, and subsequent tweets on the subject, sent strong signals regarding his intention. On August 9, 2017, two lawsuits were filed alleging that although the ban has not yet been enacted, the policy announcement itself caused harm to service members. While this policy change does not directly impact private employers it underscores the need to keep abreast of change in the law that relate to gender-identity based protections, and to consult with counsel to evaluate internal policies, practices, and procedures with an eye toward gender identity claims.

Finally, in understanding the impact of the new administration on LGBT issues, it is instructive to examine the President’s judicial appointments, especially his appointment of Neil Gorsuch to the Supreme Court. While numerous publications, including ours, have been written on Justice Gorsuch’s outlook towards LGBT individuals, his dissent in Pavan v. Smith is instructive as to his leaning in future LGBT-related cases. In Pavan, the Court held that the same-sex parents of children in the state of Arkansas may not be prohibited from being listed as legal parents on their child’s birth certificate.  The Court held, per curiam, that because Arkansas already listed non-biological parents on birth certificates for non-same-sex couples, the state could not deny the same treatment to same-sex couples.

Justice Gorsuch, along with Justices Alito and Thomas, dissented in part arguing that “essentialist” biological or anatomical rationales should be the primary determining factor of parenthood, rather than adoption and other legal same-sex parenting methods. He further called into question the reach of Obergefell v. Hodges.  Judge Gorsuch’s views on LGBT issues will receive attention next year when the Court addresses whether a business can refuse to provide service to a gay couple.  This decision has wide ranging implications for employers and plan administrators, as it is expected to touch on the extent to which religious liberty can trump discrimination claims.

As the current administration continues to unwind regulations and legal arguments put forth by the Obama Administration, the legal landscape regarding LGBT employment issues will continue to remain in flux. Stay tuned to this blog for further analysis of subsequent developments.

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.

By Erin Dougherty Foley, Ashley K. Laken, and Craig B. Simonsen

Seyfarth Synopsis: According to the EEOC in this just filed lawsuit, a home care services provider in North Carolina violated federal disability rights law when it rejected telecommuting requests from an employee whose asthma and COPD “made her sensitive to workplace smells.” 

Earlier this month, the Equal Employment Opportunity Commission filed suit against a home healthcare company to “correct unlawful employment practices on the basis of disability.”  In the complaint, filed in EEOC v. Advanced Home Care, Inc., No. 1:17-cv-00646 (M.D.N.C. July 12, 2017), the EEOC alleges that Advanced Home Care, Inc. refused to provide Elizabeth Pennell, a “qualified individual with a disability,” with a reasonable accommodation, and discharged her in violation of the Americans with Disabilities Act.

According to the EEOC, Pennell was a case manager for patients requiring home services. As a case manager, Pennell was required to spend part of her day on telephone calls. In 2015, Pennell began to experience frequent asthma attacks and flare-ups of bronchitis.  After collapsing at work after a heavy bout of coughing, she was hospitalized where she was diagnosed with chronic bronchitis and COPD.

The complaint alleges that as a “consequence of asthma, bronchitis, and COPD, Pennell experiences wheezing, severe bouts of coughing, and asthma attacks,” and that Pennell’s physical impairments “substantially limit her in the major life activity of breathing. . . and constitute a disability under the ADA.” The EEOC alleges that scents and odors aggravate Pennell’s COPD and asthma, that she worked in a cubicle in close proximity to hundreds of other employees, and that she was therefore subjected to these types of irritants, including the smell of smoke on other employees’ clothes.

The EEOC claims that Pennell’s supervisor “ignored Pennell’s repeated requests to telework” and that teleworking would have allowed Pennell to be away from actual and potential respiratory irritants. The EEOC also claims that Pennell’s supervisor told her she would terminated if she could not return to work without restrictions.  The complaint alleges that Pennell could have performed the essential functions of her position with the reasonable accommodation of telework.  The EEOC also claims that as a consequence of Pennell’s disability, she had difficulty talking continuously for extended periods of time, and if she had been allowed to telework, she would not have been required to take inbound calls and therefore would have spent less time on the phone.

Employers should note that this scenario is somewhat unusual but that telecommuting has been an issue on the EEOC’s radar for the last several months (i.e., is working from home a reasonable accommodation?). Right how we only have the EEOC’s allegations and no response from the employer.  (We’ll be keeping an eye on this litigation to see how it plays out.)  However, the critical take away (regardless of how the employer responded) is the proper handling and response to employee accommodation requests.  Company policies and procedures as well as internal manager training systems for these sorts of requests and responses should be well set out and diligently followed.

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

By Dawn Reddy Solowey

Seyfarth Synopsis: A recent decision by a federal district court in Minnesota held that a religious accommodation request is not “protected activity” under Title VII.  In defending retaliation litigation, employers should consider whether there is a viable argument that a request for religious accommodation is not sufficient to establish protected activity as a matter of law.  Employers considering requests  for religious accommodation should, despite this decision, proceed carefully when considering the request.

In a recent blog post, we wrote about a federal case pending in Minnesota, where an employer had challenged guidance from the Equal Employment Opportunity Commission (EEOC) and taken the position that a religious accommodation request does not meet the test for protected activity under Title VII as a matter of law.  On July 6, 2017, the Court ruled, and agreed with the employer.

Case Background

The case is EEOC v. North Memorial Health Care, Civ. No. 0:15-cv-3675, in the U.S. District for the District of Minnesota.  The EEOC sued the employer hospital, claiming that the employer had retaliated against an applicant by withdrawing a conditional job offer because she asked for a scheduling accommodation for her religious beliefs as a Seventh Day Adventist.  On March 15, 2017, the employer moved for summary judgment.  The employer argued that the retaliation claim failed on grounds including that a religious accommodation request did not amount to protected activity as a matter of law.

What Did the Court Rule?

The Court sided with the employer, holding that a religious accommodation request is not protected activity.

The Court noted that as far as the Court and parties were aware, no court in the 8th Circuit had decided whether requesting a religious accommodation is a protected activity under Title VII.  The Court reasoned that it must interpret Title VII according to its plain language.  Title VII provides for two categories of protected activity: (1) opposing any practice that violates Title VII; and (2) making a charge, testifying, assisting, or participating in any manner in an investigation, proceeding, or hearing under Title VII.  Applying that plain language, the Court concluded that “requesting a religious accommodation is not a protected activity.”

The Court noted that the plaintiff had not “opposed” any practice, since there was no evidence she communicated to the employer that its denial of her accommodation request was unlawful.  “In other words, merely requesting a religious accommodation is not the same as opposing the allegedly unlawful denial of a religious accommodation,” the Court stated.

Similarly, plaintiff had not made any charge, testified, or assisted in any investigation, proceeding or hearing prior to the revocation of her offer.  Thus, “the court is unable to fit [the employee’s] accommodation request within the plain language of the statute.”

The Court declined to extend to Title VII the reasoning of an 8th Circuit case that had held that requesting a disability accommodation was protected activity under the Americans with Disabilities Act (ADA).  In addition to noting that the 8th Circuit ADA case had itself been questioned, the Court noted key differences between the language of ADA and that of Title VII.

The Court also held that the EEOC’s guidelines, which advise that requesting accommodation is protected activity under Title VII, are “unpersuasive.”

What Does This Case Signal for Employers Defending Retaliation Litigation?

In defending retaliation litigation, an employer should consider whether, in the relevant jurisdiction, there is a viable argument that a request for religious accommodation is not sufficient to establish protected activity as a matter of law.  The Court’s decision in this case cites to federal cases that have held both ways around the country. As always, it is important to keep in mind that the law governing retaliation claims under Title VII may differ from that under state and local laws.

What Does This Case Signal for Employers Managing Accommodation Requests?

A more conservative approach should guide an employers’ response to religious accommodation requests.  Employers responding to a religious accommodation request would be wise to assume — until there is settled, binding law to the contrary in the relevant jurisdiction — that a request for religious accommodation may be construed as protected activity under Title VII.  As a practical matter, this means that an adverse action that an employer takes against an employee, and that post-dates a religious accommodation request from the employee, may be challenged as retaliatory by the employee and/or the EEOC.

Best Practices for Responding to Religious Accommodation Requests

Best practices for employers to respond to religious accommodation requests, and minimize the risk of retaliation liability, include:

  • Set up a policy and process for managing religious accommodation requests in a manner that is consistent and compliant with the jurisdiction’s law.  Ensure that managers and HR are trained in the policy and process, and that employees know how to request a religious accommodation.
  • Review each religious accommodation request individually on a case-by-case basis. You can read our Roadmap for Responding to a Request for Religious Accommodation here. Given the complexities of this area of the law, it is wise to enlist the help of counsel who specializes in this area.
  • Ensure that any adverse actions taken against an employee, including those subsequent to a religious accommodation request, are based on legitimate, non-discriminatory and non-retaliatory reasons, and that the business reasons for those adverse actions are well-documented.

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

By Dawn Reddy Solowey

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

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

The Facts

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

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

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

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

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

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

The Verdict

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

The Appellate Holding

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

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

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

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

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

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

Takeaways for Employers

This opinion suggests several important takeaways for employers.

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

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

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

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

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

 

 

By Paul Galligan and Samuel Sverdlov

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

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

Background

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

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

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

Decision

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

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

Outlook

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

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