By Kristin G. McGurn and Bridget M. Maricich

Seyfarth Synopsis: A recent decision by the U.S. District Court for the Eastern District of Texas, part of the Fifth Circuit Court of Appeals, reaffirmed a growing circuit split regarding whether Title VII of the Civil Rights Act of 1964 preempts concurrent claims raised under Title IX of the Education Amendments Act of 1972. In Sara Slabisak v. Univ. of Tex. Health Sci. Ctr. at Tyler & Good Shepherd Med. Ctr., No. 4:17-cv-597, 2018 U.S. Dist. LEXIS 30884 (E.D. Tex., Feb. 27, 2018), Judge Amos Mazzant dismissed a former medical resident’s Title IX claims of sexual harassment and retaliation against the University of Texas Health Science Center at Tyler on the grounds that Title VII is the exclusive remedy for claims of employment discrimination on the basis of sex in a federally funded educational institutions. While consistent with precedent in the Fifth and Seventh Circuits, the decision stands at odds with prior decisions in the First, Third and Fourth Circuits holding that employees of institutions subject to both Title VII and Title IX may raise such claims under whichever statutory scheme they choose.   

Last March, we wrote about a watershed decision in the U.S. Court of Appeals for the Third CircuitDoe v. Mercy Catholic Medical Center, No. 16-1247 (3d Cir. 2017) – that held the nondiscrimination and anti-harassment protections of Title IX of the Education Amendment Act of 1972 apply to a private medical hospital’s residency programs, even those that lack a formal affiliation to an educational institution where Title IX has historically applied. The decision was also notable for holding that the concurrent applicability of Title VII of the Civil Rights Act of 1964 to such institutions did not preclude the plaintiff in that matter, a former resident, from filing her Title IX claim.   The Third Circuit’s decision contributed to a growing split among the federal Circuits regarding whether Title VII and its extensive administrative pre-requisites preempt concurrent remedies under Title IX for those individuals employed by institutions subject to both statutes.   In Doe, the Third Circuit joined the First and Fourth Circuits in holding that in a covered individual employed by such an institution may seek remedy under whichever statutory scheme he or she chooses. These decisions contradict case law in the Fifth and Seventh Circuits, which have affirmatively held that Title VII and its carefully crafted statutory administrative pre-requisites are the exclusive remedy for sex discrimination claims brought by employees of institutions covered by both Title VII and Title IX.

A recent decision by the U.S. District Court for the Eastern District of Texas – within the Fifth Circuit – put this precedent to the test. In Sara Slabisak v. Univ. of Tex. Health Sci. Ctr. at Tyler & Good Shepherd Med. Ctr., No. 4:17-cv-597, 2018 U.S. Dist. LEXIS 30884 (E.D. Tex., Feb. 27, 2018), a former medical resident at the University of Texas Health Science Center (“UTHSC”) and Good Shepherd Medical Center (“Good Shepherd”), alleged that her supervising resident subjected her to continuous verbal, physical and sexual harassment and that, when she reported his conduct, the hospital discriminated against her by failing to address the conduct and retaliated against her by suspending her indefinitely from the program. Slabisak asserted that, among other things, UTHSC and Good Shepherd violated her rights under both Title VII and Title IX. UTHSC moved to dismiss Slabisak’s Title IX claims on the grounds that Title VII preempted any recovery under Title IX.

Judge Amos Mazzant of the Eastern District of Texas agreed. In a brief decision, Judge Mazzant re-affirmed Fifth Circuit precedent, noting “the basis for Plaintiff’s Title IX claims – deliberate indifference and retaliation – revolve around the allegations that Plaintiff was subjected to a hostile work environment, which UTHSC failed to address and correct; and moreover that UTHSC retaliated against Plaintiff when she informed them of said hostile work environment. Such claims fall within the exclusivity of Title VII – employment discrimination on the basis of sex in a federally funded educational institutions.” Id. at *7-8. Judge Mazzant accordingly dismissed Slabisak’s Title IX counts, but permitted the Title VII claims to move forward. Of note, none of the parties appeared to challenge the notion that Slabisak, as a resident, was an employee for purposes of Title VII.

What does this mean? Medical centers, hospitals, and other healthcare institutions providing accredited teaching and training programs, particularly programs formally affiliated with educational institutions, should be familiar with the precedent in the federal Circuits in which they operate. Though the substantive protections of Title VII and Title IX do not differ substantially, the process for redress, the standards of liability, and the remedies may differ. Most notably, Title VII requires exhaustion of administrative remedies. Employees seeking redress under Title VII must first file a complaint with the Equal Employment Opportunity Commission (“EEOC”) or similar state administrative agency prior to filing suit in state or federal court. Title IX includes no such prerequisite. Individuals subject to the protections of Title IX may file a complaint with the Department of Education Office for Civil Rights (the DOE version of the EEOC), but they may opt to forego this step and file suit directly in court. The statute of limitations for Title VII claims – within 180 or 300 days, depending on the state – is much shorter than the statute of limitations for Title IX claims. Title IX does not include its own statutory time limitation and typically follows state tort law limitations, which are usually two or more years. Finally, the type of individual remedies available under Title IX is subject to some murky case law, but generally Title IX plaintiffs may seek actual and compensatory damages, injunctive relief, and attorneys’ fees.

This decision further highlights the importance, particularly in the current climate, of responding effectively and expeditiously to all complaints of discrimination, harassment, and retaliation. Healthcare institutions can mitigate risks associated with such complaints – whether Title VII or Title IX applies – by:

  • Maintaining wide-open, easily accessible and well-communicated procedures, using multiple avenues, for reporting, investigating, and resolving complaints of discrimination, harassment, and retaliation.
  • Ensuring those physicians, administrators, managers, and faculty who are most likely to witness or hear of reports of risky behavior are well trained in not only what and how to report, but also how to empower bystanders and effectively and sensitively manage those situations and any reports they receive.
  • Documenting the institutions actions with respect to all reports of discrimination, harassment, and retaliation – from report through investigation and resolution – so that the institution’s good actions and consistent approach can be proven in the event of an administrative charge or lawsuit.

If you have any questions regarding these issues, please contact the authors, your Seyfarth attorney or a member of the firm’s Health Law Group.

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.

By Scott Rabe and Sam Schwartz-Fenwick

Seyfarth Synopsis: In landmark decision, the Second Circuit joins the Seventh Circuit in holding that Title VII prohibits discrimination on the basis of sexual orientation as a subset of sex discrimination.

In a landmark decision today in Zarda v. Altitude Express, Inc., No. 15-3775, the Second Circuit ruled en banc that Title VII prohibits discrimination on the basis of sexual orientation as a subset of discrimination on the basis of sex. The Second Circuit now joins the Seventh Circuit, the EEOC, and a number of district and administrative courts across the country that have interpreted Title VII to extend its prohibition of sex discrimination to sexual orientation.  Chief Judge Katzmann authored the decision for the plurality, in which four judges joined in full, five judges joined in part, and to which three judges dissented.  In total, eight of the thirteen judges issued an opinion.

The Appellant in Zarda, a former skydiving instructor, sued his employer, alleging that he was terminated from his job after he revealed to a customer that he was gay.  Specifically, he alleged sex discrimination under Title VII asserting that his employment was terminated because he failed to conform to male sex stereotypes because he was gay.  The district court dismissed Zarda’s Title VII claim at summary judgment, holding that, although there was sufficient evidence to permit his claim for sexual orientation discrimination to proceed under New York law, which explicitly prohibits discrimination on the basis of sexual orientation, plaintiff had failed to establish a prima facie case of gender stereotyping under Title VII based on his sexual orientation.  The district court explained that in reaching this decision it was constrained by Second Circuit precedent in Simonton v. Runyon and Dawson v. Bumble & Bumble, which held that Title VII did not prohibit discrimination on the basis of sexual orientation. Today the Second Circuit reversed, and in doing so, explicitly stated that it was overturning its prior opinions in Simonton and Dawson.

In the plurality opinion, Judge Katzmann explained that sexual orientation discrimination should be treated as a subset of sex discrimination for several reasons.  He observed that “sexual orientation is defined by one’s sex in relation to the sex of those to whom one is attracted,” that “sexual orientation discrimination is . . . based on assumptions or stereotypes about how members of a particular gender should be, including to whom they should be attracted,” and that “sexual orientation discrimination is associational discrimination because an adverse employment action that is motivated by the employer’s opposition to association between members of particular sexes discriminates against an employee on the basis of sex.”   The plurality also found compelling that, while the consensus among Circuits and the EEOC in 2000 at the time of Simonton was that Title VII did not protect against discrimination on the basis of sexual orientation, the EEOC and the Seventh Circuit both changed their stance on this issue and courts across the country continue to explore this issue.

The main dissent, written by Judge Lynch and joined in part by two justices, argued primarily that under a strict textual interpretation of Title VII, the statute did not protect against discrimination on the basis of sexual orientation, as it is clear Congress could have but did not include sexual orientation as a protected class.  This is the same rationale employed in 2017 by the Eleventh Circuit in Evans v. Georgia Regional Hospital, which recently held in a divided opinion that Title VII’s prohibition on sex discrimination does not encompass discrimination on the basis of sexual orientation.

Today’s decision widens the Circuit split on this issue.  Further, the diverse array of opinions among the judges on the Second Circuit mirrors the nationwide divergence in views regarding the protections that Title VII affords employees based on their sexual orientation.  While the EEOC has now taken the clear position that discrimination against workers because they are lesbian, gay or bisexual is sex discrimination under Title VII, the Department of Justice has issued guidance and sought to enforce an interpretation of Title VII that discrimination on the basis of sexual orientation is not prohibited under Title VII as sex discrimination.  Circuit, district, and administrative courts are also split.  With the Circuit divide, complicated by vastly divergent interpretations of Title VII by the very agencies entrusted to enforce Title VII, the issue is poised for a Supreme Court ruling.

In light of the current uncertainty regarding the ultimate interpretation of Title VII as it applies to sexual orientation, as well as gender identity, see our prior post, and because numerous state and local laws already explicitly prohibit discrimination on the basis of sexual orientation, employers should regularly review their policies to ensure that adequate protections are provided to employees on the basis of their sexual orientation or gender identity.

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 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.