By Michael L. DeMarino and Dawn R. Solowey

Seyfarth SynopsisTitle VII requires employers to make “reasonable accommodations” for an employee’s religious practices. But what is “reasonable” has been the subject of much debate and litigation.  The Tenth Circuit’s decision in Christmon v. B&B Airparts, Inc., No. 17-3209, 2018 WL 2344628, at *1 (10th Cir. May 24, 2018) is a good reminder that an accommodation may be reasonable — even if it is not the employee’s preference. What matters is that the employee is allowed to engage in his or her religious practice.

In Christmon v. B&B Airparts, Inc., an employee sued his former employer under Title VII, claiming that his employer failed to accommodate his religious practices by not allowing him to change his overtime shifts from Saturday to Sunday so that he could observe the Saturday Sabbath. On appeal, the Tenth Circuit held that allowing the employee to skip Saturday shifts was a reasonable accommodation and that the employer was not obligated to provide an opportunity for overtime on Sunday.

The Decision

B&B Airparts requires its employees to occasionally work overtime shifts on Saturdays. Id. Jerome Christmon, a Hebrew Israelite, regards Saturday as the Sabbath and consequently requested to work his overtime hours on Sunday. But rather than allow Christmon to work  his overtime hours on Sunday, B&B simply allowed him to skip mandatory Saturday overtime shifts without any disciplinary action.

Christmon sued B&B Airparts in the U.S. District Court for the District Court of Kansas, under Title VII of the Civil Rights Act of 1964, claiming discrimination for failure to accommodate religious practices. Specifically, Christmon claimed that B&B Airparts was required to provide him with overtime hours on Sunday.

The District Court disagreed and granted summary judgment in favor of B&B Airparts, holding that B&B Airparts provided a reasonable accommodation by allowing him to miss his Saturday shifts. On appeal, the Tenth Circuit affirmed.

According to the Tenth Circuit, the undisputed evidence showed that B&B Airparts allowed Christmon to skip mandatory Saturday shifts after he had explained his religious concern. “This relief,” the Tenth Circuit concluded, “constituted a reasonable accommodation . . . .” Id. at *2.

Rejecting Christmon’s arguments, the Tenth Circuit explained that a “reasonable accommodation does not necessarily spare an employee from any resulting cost” and “may be reasonable even though it is not the one that the employee prefers.” Id. Rather, “‘[a]ccomodate . . . means allowing the plaintiff to engage in [his] religious practice despite the employer’s normal rules to the contrary.’” Id. Hence, although Christmon requested an opportunity to make up his overtime hours on Sunday, the Tenth Circuit determined that “Title VII did not require B&B Airparts to offer Mr. Christmon’s preferred accommodation.” Id. at *3.

Important to this conclusion was the Supreme Court’s decision in Ansonia Bd. of Educ. v. Philbrook, 479 U.S. 60, 70 (1986). There, the Supreme Court held that an unpaid leave that allows an individual to observe religious holy days is a reasonable accommodation because it avoids the “conflict between employment requirements and religious practices.” Id.

At the end of the day, B&B ‘s accommodation was reasonable because it “allowed Mr. Christmon to avoid the conflict with his religious beliefs even if he lost the opportunity for overtime.” Id.

Implication For Employers

The Tenth Circuit’s decision is a good reminder for employers of the parameters of their obligation under Title VII to provide a reasonable accommodation for religious practices. A reasonable accommodation does not necessarily have to be the employee’s first choice. Nor does it have to be free from any resulting cost to the employee.  A reasonable accommodation, however, should effectively avoid the conflict between the employee’s religious practice and the employer’s requirements.

Of course, the first step in providing an accommodation is recognizing when there is a conflict between an employer’s requirements and an employee’s religious practice. Employers should therefore be sure to provide a mechanism for their employees to express concerns over perceived conflicts or otherwise request a religious accommodation.

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 Brian A. Wadsworth

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

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

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

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

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

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

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

Defendants have not yet filed their appellate brief.

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

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

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

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

The Case

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

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

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

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

The Supreme Court’s Decision

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

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

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

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

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

The Takeaway for Employers

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

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

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

By John P. Phillips and Linda Schoonmaker

Seyfarth Synopsis: In recent months, sexual harassment has seized national headlines and raised significant questions about company policies, procedures, and culture. In response, many companies and HR personnel have questioned how to appropriately respond to complaints of sexual harassment. A recent decision out of the Western District of Wisconsin provides a helpful summary of the state of Title VII, the federal anti-discrimination and harassment law, and the appropriate company response to harassment. Given the national debate and this recent decision, now is a good time for employers to implement some best practices to (1) prevent harassment before it occurs and (2) take appropriate remedial action if it does.

Sexual harassment has been around for a long time, but recently it has garnered national headlines. Movements such as #MeToo and Time’s Up have appropriately focused the spotlight on company policies and procedures. It is important for companies to continue to improve workplace culture and their responses to harassment when it does occur. At the same time, it is important for companies to understand the legal framework for a harassment claim, and their legal responsibilities.

A recent decision out of the Western District of Wisconsin provides an important reminder on the state of the federal law prohibiting sexual harassment in the workplace, and an employer’s responsibility to prevent and correct any harassing behavior.

Background on the Case

In Lee v. Dairyland Power Cooperative, the plaintiff alleged that several of her co-workers sexually harassed her, and that the company failed to take adequate steps to prevent the harassment. After an analysis of the applicable framework for sexual harassment under Title VII, the Court dismissed the plaintiff’s case, finding that she could not prevail on her harassment claim as a matter of law.

The facts of the case were largely undisputed and simple: on one occasion, the plaintiff overheard her immediate supervisor, a co-worker, and a security contractor—all male—discussing their desire for her to wear her “spring outfits.” They also compared her physically to another employee, who they described in a sexually suggestive manner; and they discussed the sex life of yet another employee. These facts were undisputed, and the plaintiff complained to Human Resources the same day. HR immediately investigated the incident and concluded that the sexually demeaning conversation had occurred.

The plaintiff’s supervisor personally apologized to the plaintiff and promised that the action would never happen again; that he would not engage in any further sexual harassment; and that he would protect the plaintiff from retaliation. The company asked the plaintiff to return to work, but she refused, believing the company’s response was inadequate. The company followed-up, explaining that there were no positions to which she could be transferred to be away from the supervisor. Feeling that the company had not fixed the situation, the plaintiff quit her employment. That same day, the company suspended the supervisor for two weeks without pay, and ordered him to attend retraining on the company’s sexual harassment policy.

Application of Title VII

The Court laid out the legal standard for maintaining a sexual harassment claim under Title VII (the federal law prohibiting harassment in the workplace): the plaintiff must prove that (1) she experienced unwelcome harassment, (2) the harassment was based on sex, (3) the harassment was so severe or pervasive that it altered the conditions of her employment and created a hostile or abusive environment, and (4) a basis exists for holding the employer liable. Here, it was undisputed that the plaintiff had experienced unwelcome harassment based on her sex. However, the Court found that she could not meet the third and fourth prongs of the test.

First, the Court found that overhearing the statements on only one occasion did not create an abusive working environment. Indeed, the Court applied Seventh Circuit precedent for the proposition that “verbal harassment limited to a one-time incident that was overheard, rather than intentionally inflicted, does not rise to the severe or pervasive standard under Title VII.”

Second, the Court found that the employer could not be held liable for the wholly inappropriate conduct of the supervisor. The company maintained an anti-harassment policy, which the supervisor violated. And as soon as the company learned that harassment had occurred, it initiated an investigation pursuant to its no harassment policy; and the company instituted discipline reasonably calculated to end the harassment. The Court found that the two-week suspension, apology, promise to protect the plaintiff from any harassment, and retraining on sexual harassment issues were sufficient for the company to meets its legal burden to resolve the problematic work environment. Accordingly, the company could not be held liable under Title VII.

Takeaways and Best Practices

When sexual harassment occurs in the workplace, nobody wins. And as the Dairyland Power case makes clear, even companies that have and enforce no harassment policies can face costly litigation. Given the current national debate over harassment, now is a good time for employers to review and reevaluate their sexual harassment policies and procedures.

Employers should consider several proactive steps—to help prevent sexual harassment on the front-end and then to appropriately handle the situation if it were to arise—including: (1) ensuring the company’s no harassment policy and reporting structure is up-to-date and clear; (2) providing harassment and employment law training to supervisors and managers; (3) taking all allegations and complaints of harassment in the workplace seriously; (4) immediately performing a thorough and complete investigation of any harassment complaints; and (5) implementing swift, appropriate, and proportional remedial action, including termination or suspension if necessary.

Above all, employers should strive to ensure that their company’s culture is one where sexual, or any other form of harassment, is simply not tolerated. Instead, each employee should enjoy a safe and respectful work environment, and feel empowered to raise any workplace harassment issue with his or her supervisor, manager, or HR. At the same time, the company should feel secure that taking proactive action on the front-end to eliminate any harassment before it occurs, and taking immediate action to stop and remedy any harassment after it occurs, is sufficient to satisfy its legal obligations under Title VII. Fortunately, the Dairyland Power decision continues to apply this legal standard.

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 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.