By Minh N. Vu and Kristina M. Launey

Seyfarth Synopsis: A Biden Administration DOJ will likely bring higher engagement and more aggressive enforcement on ADA Title III issues.

While the current administration may still be unwilling to concede the election, it appears there will indeed be a new administration in charge at the Department of Justice (DOJ) come January 20, 2021.  How will the Biden Administration approach Title III of the ADA and its enforcement?  We think there will be much higher engagement – and likely more aggressive enforcement – on multiple fronts.

Enforcement.  Under the Obama Administration, the DOJ aggressively pursued enforcement actions against businesses regarding the alleged inaccessibility to people with disabilities of technologies businesses use to provide their goods and services to the public – especially websites and mobile apps.  During the Trump Administration, we saw virtually no new investigations about websites or mobile apps that were not accessible to people with disabilities. And, investigations that were pending under the Obama Administration went dormant under the Trump Administration.  We expect the Biden Administration to resume the aggressive approach to enforcement taken by the DOJ during the Obama years on this issue.

As a result of increased enforcement, businesses should expect DOJ to demand higher monetary damages and civil penalties (presently the ADA authorizes maximum penalties of $96,384.00 for a first violation and $192,768 for a subsequent violation) and more onerous remedial terms.

Regulations.  Consistent with its anti-regulation policy, the Trump administration put the kibosh on every ADA Title III rulemaking that was pending.  Granted, many of those saw little progress under the Obama Administration (including, notably, proposed regulations adopting accessibility standards for public accommodations’ websites under Title III), but there is a real chance that some rulemakings will be revived under the Biden Administration.  At  the end of President Obama’s term, there was more rulemaking activity around issuing accessibility standards for the websites of state and local governments covered by Title II of the ADA.  Perhaps the Biden Administration would revive that rulemaking.  Rulemaking efforts that were also in progress at the end of the Obama DOJ’s tenure (and withdrawn by the Trump DOJ), such as on non-fixed equipment and furniture may likewise resurface.  The Obama DOJ squeezed in a final rule on movie captioning audio description on the way out the door in late 2016.

Technical Assistance.  The Trump DOJ put out very few technical assistance documents which historically have been a valuable source of guidance to help businesses understand and comply with the ADA and its implementing regulations.  We anticipate seeing more technical guidance from the DOJ in the coming years.

Intervention in Pending Lawsuits.  The Trump Administration rarely intervened in ADA Title III lawsuits – in contrast to the Obama DOJ (for example, see here and here).  We expect the DOJ to resume its practice of intervening on behalf of plaintiffs in important lawsuits and to push the boundaries of the law in ways that will impose greater obligations on covered entities.

Legislative Reform.  There have been some short-lived attempts at ADA reform in Congress over the past four years, including the ADA Education and Reform Act, the ADA Notification Act, and most recently, the Online Accessibility Act, and even letter writing efforts between members of Congress and the DOJ.  These efforts  have not gained much traction because they did not receive support from disability rights advocates.  We do not see that situation changing during a Biden Administration.

***

Given the forthcoming more aggressive enforcement environment, businesses should very seriously consider whether their ADA Title III compliance programs are sufficiently robust, particularly with regard to their digital assets.  How good is our crystal ball?  Pretty clear, based on our November 2016 predictions.

By Benjamin D. Briggs, Adam R. Young, and Craig B. Simonsen

Seyfarth Synopsis: A new report from the National Safety Council (NSC), State of the Response: Employer Actions to Address the Pandemic, provides an overview of how employers have been responding to the COVID-19 pandemic.

The NSC survey sought to understand which COVID-19-related safety practices were being implemented in different organizations across different industries and operations types. The NSC created a list of 23 pandemic-related safety precautions that were recommended through its SAFER effort and included many best practices recommended by the CDC and other public health organizations. The safety practices included cleaning and hygiene-related precautions, testing and tracing precautions, and human resources and communications tools to prevent the spread of the coronavirus in the workplace.  Based on the NSC survey of hundreds of employers, organizations spent $5,208 per employee on various safety practices – from making remote work possible to providing PPE and hand sanitizer. The NSC also provided an infographic for a summary of its findings.

According to the NSC survey, participants indicated whether they had finished implementing, started to implement, planned to implement or did not consider implementing each of the 23 COVID-19 related safety practices. Overall, the most commonly implemented safety practices were “making hand sanitizers available throughout facilities; requiring mandatory face masks, shields, and/or other PPE; and requiring workers to clean and sanitize workstations before and after use (see Report Figure 7 (shown here below) for list of top 10 implemented practices).”

The least implemented COVID-19-related safety practices included increasing pay for frontline workers and instilling coronavirus testing either at home or at the worksite.

For more information on this or any related topic, please contact the authors, your Seyfarth attorney, or any member of the Workplace Safety and Health (OSHA/MSHA) Team.

By Lawrence Z. Lorber, Leon Rodriguez, Samuel P. Sroka, and Scott P. Mallery

Seyfarth Synopsis: This special post-election report is brought to you by Seyfarth’s Policy Matters Newsletter. With so much at stake, we have collected the top-of-mind issues to watch as the election results take shape. 

The Current State

While the nation hoped for a rapid resolution to this year’s election, it is, after all, 2020, and we should have known better. Indeed, as Charlie Sykes of the Bulwark put it: this election will be decided by the Big Ten, not the SEC. Millions of votes are still being counted in battleground states across the Country, but at this juncture, Joe Biden has a clearer path to the White House than the current President, but it is far from over. While it was understood relatively early Tuesday that the House of Representatives would remain in Democratic control — although apparently with a reduced majority — we learned today that in all likelihood the Senate will remain under Republican control. Thus, while final results will have to be certified and we will undoubtedly have to go through a thunderstorm of lawsuits, it appears that we face four more years of divided government, although now the administration will likely be under control of Mr. Biden and the Democrats. In light of Republican continued control of the Senate, we assume that policy changes will primarily be delivered by executive action, through regulation, or through Executive Order rather than legislation. Because of this, changes will be more nuanced and somewhat slower in occurring. Therefore, this piece will attempt to address some scenarios that may be relevant to employers in a Biden administration, with some discussion of what the Trump administration has done, or would likely do, in the somewhat unlikely case that he prevails.

What is going to happen to the Senate?

As it stands as of the publishing of this piece, the Senate is composed of 2 Independents who caucus with Democrats, 45 Democrats and 48 Republicans, with Sara Gideon’s recent concession to Susan Collins. Democrats picked up two seats with the defeats of Cory Gardner in Colorado and apparent defeat of Martha McSally in Arizona; Republicans flipped a seat with the defeat of Doug Jones. Republicans were also able to hold onto seats in Montana, Iowa, Maine, and South Carolina with Steve Daines victory over Steve Bullock, Joni Ernt, Susan Collins, and Lindsey Graham, all Republicans, able to hold on to their seats. Senator Thom Tillis (R., N.C.) has declared victory in his reelection bid against Democrat Cal Cunningham and Gary Peters is leading in his race in Michigan. That leaves the two races in Georgia, where one Senate race will advance to a January runoff between Republican Sen. Kelly Loeffler and Democrat Raphael Warnock; the other race, between incumbent Republican David Perdue and Democrat Jon Osoff remains too close to call. Under Georgia law a candidate must receive 50% of the vote or the top two finishers go into a runoff, now on January 5, 2021. As of now, Senator Perdue is slightly above 50%.

Based on the foregoing, it looks unlikely the democrats regain control of the Senate. Even if the Senate evens to a 50-50 split, and Joe Biden wins, making Kamala Harris the deciding 101st vote, the exceedingly thin margin of power makes it unlikely Joe Biden will be able to press some of his more progressive policy priorities. For example, even in the aforementioned scenario, it would be exceedingly difficult to convince moderate democrats in the mold of, say, Joe Manchin , to vote for example to support the PRO Act as currently drafted. Readers should also be aware of the ever-present filibuster and cloture rules, each of which would necessitate 60 votes and with the Senate in its apparent 2021 configuration, any attempt to abolish the filibuster as it applies to legislation appears to be shelved.

How the makeup of crucial Federal Employment Agencies may look.

While the temporal terms are set for the membership of National Labor Relations Board (“NLRB”) and the Equal Employment Opportunity Commission (“EEOC”), which Administration ultimately parks in the White House will have significant influence on the policy direction of those crucial agencies.

Currently, the makeup of the NLRB is as follows:

  • John Ring (Rep), current chair – term ends Dec 16, 2022;
  • Marvin Kaplan (Rep) – term ends Aug 27, 2025;
  • Bill Emanuel (Rep) – term ends Aug 27, 2021;
  • Laura McFerrin (Dem) – term ends Dec 16, 2024;
  • Peter Robb, General Counsel – term Ends  Nov 17, 2021;
  • one democratic seat remains open.

The EEOC is currently comprised as follows:

  • Janet Dhillon (Rep), current chair – term ends July 1, 2022
  • Keith Sonderling (Rep), current Vice Chair – term ends July 1, 2024
  • Andrea Lucas (Rep) – term ends July 1, 2025
  • Charlotte Burrows  (Dem) – term ends July 1, 2023
  • Jocelyn Samuels (Dem) – term ends July 1, 2021
  • Sharon Gustafson, General Counsel – term ends Aug 2023

Interestingly, both the NLRB and the EEOC will remain under Republican control for the initial period of a Biden Administration. A Trump Administration would likely see additional membership pressing policies intended to reduce obligations on business. A Biden administration, conversely, would result in eventual Democratic control on the boards of these crucial agencies, which would likely mean attempted rescission of Trump initiatives and replacement with prior Obama era rules and other initiatives set out in the Biden campaign policy agenda. However, notwithstanding the fact that Biden will appoint one of the Democratic Commissioners as Acting Chair of the EEOC, the Republican majority will undoubtedly stop any new initiatives such as resurrecting the Component 2 compensation data collection requirement.  The NLRB primarily is a case deciding agency. However, the NLRB did issue new election regulations reversing the Obama so-called “Ambush Regulations.” If the Democrats take over the NLRB this summer, it perhaps can be expected that the reconstituted Board will quickly move to rescind or change the regulatory regime established by the Republican Board.  Especially as the Senate results makes enactment of the PRO Act doubtful, expect a Biden board to move as expeditiously as it can to reformulate NLRA processes and procedures to open up union organizing and union bargaining authority.

What About OSHA? The fate of a critical agency during a pandemic.

Throughout the entirety of the Trump Presidency, OSHA has operated with a vacancy in its top leadership post — assistant secretary of labor for occupational safety and health. Last year, the President nominated FedEx’s vice president of safety, sustainability, and vehicle maintenance, Scott Mugno, to the top post, but because there was no progress on his confirmation, he withdrew his nomination, leaving Deputy Assistant Secretary of Labor Loren Sweatt in charge of the agency through the remainder of the Trump first term. OSHA has been criticized for a lack of enforcement during the pandemic. The Democrats have long called for OSHA to issue an Emergency Temporary Standard requiring that Pandemic safety guidance be converted into mandatory safety practices. Such a requirement was included in the so-called Heroes Act  —which we wrote about here — passed by the House in May (it was never taken up in the Senate). So a Biden appointee at the Department of Labor and at OSHA can be expected to move quickly on a pandemic initiative.  Also expect reinstatement of the injury reporting regulations and a more aggressive enforcement posture. Publicity of violations would also likely increase as Dr. Michaels — assistant secretary of OSHA under Obama — has touted the importance of deterrence through publication.

Could Bernie Sanders be named Secretary of Labor?

It has been widely reported that, despite their noted policy disagreements, Bernie Sanders would happily accept a position as Secretary of Labor in a potential Biden Administration, an idea endorsed by a number of left-leaning organizations. While Bernie Sanders and Joe Biden have notable policy differences — particularly when it comes to healthcare policy — the two share a focus on workers, expanding health care, and expanding the social safety net. Since losing the primary, and despite their noted differences, Sen. Sanders has been hard at work to elect Joe Biden and influence the Democratic platform. As astute readers of this newsletter are aware, back scratching is nothing new in presidential politics — really, in politics in general — and Sen. Sanders will likely be looking for a scratch in the form of a secretarial appointment for all of his work on the campaign. Indeed, the DOL is a particularly fitting perch for Sanders to attempt to implement his ambitious labor and employment policy agenda.

The Secretary of Labor holds significant power over policies that affect employers. For example, the Secretary of Labor oversees the enforcement of key laws that require employers to pay workers a minimum hourly wage and overtime, and investigates wage theft and recovery of back wages (between 2009 to 2016 the DOL collected more than $2 Billion in back wages). The secretary can direct the agency to expand or curtail these protections. For example, the Obama Administration took action to raise the wages of low-wage workers by changing overtime rules to raise the salary threshold for workers receiving overtime from $23,660 to $47,476, affecting an estimated 4.2 million additional workers. In 2017, a federal judge in Texas struck down the administration rule, agreeing with 21 states and a coalition of business groups, including the U.S. Chamber of Commerce, that the rule was unlawful and granted their motion for a nationwide injunction. Instead of appealing the ruling, the Department of Labor under the Trump Administration released a final rule lifting the salary limit from $23,000 to about $35,000 and scrapping the cost-of-living increases. Even if it is not Sanders, a Biden administration likely would also come with an aggressive appointment to this key post; if that happens, employers should embrace for An aggressive regulatory enforcement and policy initiative regime.

Of course, if the Senate majority remains Republican, a Biden administration may forego the quixotic adventure of a Sanders DOL nomination. The Democrats may very well need his vote in the Senate.

By Eric Janson and Adam R. Young

Seyfarth Synopsis: While the votes continue to be tallied in the Presidential election, one thing is certain – it was a BIG night for cannabis in America with five new states approving ballot measures to legalize recreational or medical marijuana. 

With these new laws, nearly 110 million Americans (or over 1/3 of the country) will now live in a state where marijuana is legal for adult use.  In New Jersey, by a nearly 2-1 margin, voters passed Public Question No. 1 – a constitutional amendment to legalize the use and possession of marijuana for persons age 21 and older and legalize the cultivation, processing, and sale of retail marijuana.  Advocates believe this may now raise the stakes for neighboring states like New York, Connecticut and Pennsylvania to similarly take up legalization bills pending in their state legislatures out of concern for losing tax revenues to what is expected to now be one of the largest marijuana markets in the country.

Meanwhile in Montana, voters narrowly passed Initiative 190 and Initiative 118 which collectively will permit the use, production and sale of marijuana to adults ages 21 or older.  In addition, persons serving marijuana-related sentences that are no longer crimes under these Initiatives may request that their convictions be expunged or may request they be resentenced if they are still incarcerated.

After a failed attempt at adult use legalization in 2016, voters in Arizona finally passed Proposition 207 — also known as the Smart and Safe Act — which permits the possession and use of marijuana for adults ages 21 years or older and permits individuals to grow up to six marijuana plants in their residences.  Importantly for Arizona employers, the new law does not restrict the rights of companies to maintain a drug-free workplace or establish workplace policies restricting the use of marijuana by employees or prospective employees.  See Section 36-2851(1).  Likewise, employers are also not required to allow or accommodate the use, consumption, or possession of marijuana on the job.  See Section 36-2851(2).

South Dakota also became the first state to legalize cannabis for medicinal and adult use purposes on the same day, overwhelming passing Constitutional Amendment A which legalizes the possession, use, transport, and distribution of marijuana and marijuana paraphernalia by people age 21 and older.  Initiated Measure 26 also establishes a medical marijuana program for individuals with a “debilitating medical condition” which includes those with “a chronic or debilitating disease or medical condition…that includes severe, debilitating pain; severe nausea; seizures; or severe and persistent muscle spasms, including those characteristic of multiple sclerosis.”

In Mississippi, voters also overwhelmingly passed Initiative 65 which allows doctors in the state to prescribe medical marijuana for patients with at least one of 22 specified qualifying conditions including cancer, epilepsy or seizures, Parkinson’s disease, post-traumatic stress disorder (PTSD), Crohn’s disease, HIV, and more.  Patients can also possess up to 2.5 ounces of medical marijuana at one time.

Finally, others states took considerable steps in relaxing other drug laws, with voters in Oregon passing ballot measures decriminalizing possession of small amounts of drugs, including cocaine, heroin, methamphetamine and another legalizing the therapeutic use of psilocybin mushrooms (aka “magic mushrooms”).  Washington, D.C., also approved measures aimed at decriminalizing psilocybin mushrooms and other psychedelic plants.

While state governments will now be tasked with establishing the various regulatory frameworks needed to implement these new adult use and medicinal marijuana programs, it is undisputed that proponents of legalized marijuana had a very big Election Day and with these new ballot measures, adult use cannabis is now legal in 15 states (and the District of Columbia) and medicinal use of cannabis is legal in 35 states (and D.C.).

We have previously blogged, according to highly-respected safety professionals, employees who are impaired by cannabis present a safety risk in the workplace, particularly if they work in positions that are “safety-sensitive,” where an impairment will put the employee, coworkers, clients, or third parties at a risk of serious physical harm or death. On account of the risks to occupational safety and health posed by workplace cannabis use, the National Safety Council advises that employers adopt a zero tolerance policy for cannabis use in safety-sensitive positions.

While 15 states will soon permit the recreational use of marijuana, employers may maintain a range of restrictions on employee possession, use, and impairment by marijuana, cannabis, and related products. Employers may also continue pursuing drug testing options, particularly for safety-sensitive employees, to address the hazard and ensure that no employees work under the influence of drugs.

For more information on this or any related topic, please contact the authors, your Seyfarth attorney, or any member of the Workplace Safety and Health (OSHA/MSHA) or Cannabis Law Practice Teams.

By Honore N. Hishamunda and Erin Dougherty Foley

Seyfarth Synopsis: Employees can sometimes sour on jobs they transfer to and, this in turn, can create practical and legal risk for employers, particularly where an employee changed jobs in connection with a disability accommodation. A recent decision from the United States Court of Appeals for the Fourth Circuit, however, makes clear that employees cannot base disability discrimination and retaliation solely on their employer’s decision to accept an accommodation they voluntarily requested – including transfers.

The Americans with Disabilities Act (ADA), among other things, requires employers to provide reasonable accommodations to employees qualified to perform the essential functions of their jobs, prohibits employers from discriminating against employees because of their disability, and prohibits employers from retaliating against employees for exercising their rights under the ADA. The ADA does not, however, require employers to provide employees with the reasonable accommodation of their choosing.

What happens, though, when an employer chooses to provide an employee with the accommodation of their choosing?  Does the employer’s choice insulate them from ADA discrimination and retaliation liability?  To the extent it does, will an employee’s subsequent dissatisfaction with the accommodation change the analysis?

The United States Court of Appeals for the Fourth Circuit in its recent decision – Laird v. Fairfax County, Virginia – joined its sister circuits in addressing these questions, and, in doing so, and as shown below, is shining a light on the interaction between employees’ requested accommodations, and the ADA’s prohibitions on discrimination and retaliation.

Viola Laird previously worked in Fairfax County’s Department of Procurement & Material Management.  Ms. Laird, who was diagnosed with multiple sclerosis, asked her supervisor for unscheduled telework as a reasonable accommodation for her disability. Fairfax County initially agreed to this arrangement but, after the County had issues supervising and keeping Ms. Laird busy while teleworking, proposed a modified – twice per week with required in person attendance for meetings – teleworking arrangement as an accommodation. After the County implemented its revised teleworking accommodation, Ms. Laird filed a charge of discrimination with the Equal Employment Opportunity Commission claiming that the County’s decision to retract its initial teleworking accommodation constituted unlawful disability discrimination.

Ms. Laird and the County began settlement discussions with the EEOC. During these discussions, Ms. Laird represented that a lateral transfer could resolve her dispute with the County. The County accepted her offer and transferred her to a different department performing in a similar position with the same pay and opportunity for promotion. Ms. Laird accepted, and began her new job.

The County, after Ms. Laird did not perform well in her new position, offered to transfer her to yet another job that would have had similar pay and opportunities for promotion as her initial position with the County. This time, however, Ms. Laird rejected the County’s offer, and filed a lawsuit against her employer in federal court.

In her suit, Ms. Laird alleged, among other things, that the County discriminated against her because of her disability and retaliated against her for filing an EEOC charge.  Both her disability and retaliation claims relied on the County’s decision to transfer her, both in response to the EEOC settlement discussions, and after her performance in her initial transfer, constituted discriminatory and retaliatory actions. The Fourth Circuit, like the District Court before it, rejected Ms. Laird’s arguments and granted summary judgment for her employer.

The Fourth Circuit held that Ms. Laird could not show that she suffered a so called “adverse action” – typically thought of as — but not limited to — termination or demotion – a key element in both her ADA disability and retaliation claims. In doing so, the Court found that:

  • An employer takes an adverse action for purposes of a discrimination claim if it takes an action that adversely affects employment or alters the conditions of the workplace;
  • An employer takes an adverse action for purposes of a retaliation claim if it takes an action that may dissuade a reasonable worker from making or supporting a charge of discrimination; and
  • An employer does not take an adverse action for purposes of a discrimination or retaliation claim if the action it took does not result in some significant detriment to the employee.

Applying these principles, the Court found that Ms. Laird’s claims “fail[ed] for a simple reason: [i]f an employee voluntarily requests a transfer, and the employer agrees to it, there is no actionable adverse action.”  Further, the Court noted that “a transfer cannot be because of [an ADA unlawful reason] if it occurred as a result of an employee’s own request.”

This decision highlights that an employee’s subsequent dissatisfaction with an accommodation they requested cannot ordinarily form the basis of an ADA disability or retaliation claim.

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

By Gerald L. Maatman, Jr., Christopher DeGroff, Matthew J. Gagnon, and Alex S. Oxyer

Seyfarth Synopsis:  On November 2, 2020, the EEOC held its first public meeting of its fiscal year, and the first meeting with its three new commissioners. The public meeting was held so that the Commission could consider a proposed memorandum of understanding (“MOU”) between the EEOC, the Department of Labor (“DOL”), and the Department of Justice (“DOJ”) aimed at recommitting to collaboration between the agencies and coordinating efforts to protect civil rights in the workplace. At the conclusion of the meeting, the EEOC voted in favor of entering into the MOU. This is an important development for all employers.

The EEOC held its November 2 meeting remotely and, per the requirements of the Sunshine Act, it was open for the public to call in and listen to the proceedings. EEOC Chair Janet Dhillon, Vice Chair Keith Sonderling, and Commissioners Charlotte Burrows, Jocelyn Samuels, and Andrea Lucas were all present to discuss the content of the draft agreement between these three agencies.  EEOC attorney Andrew Maunz outlined the mechanics of the MOU, which is an updated version of the agreement that has been in place between the EEOC and DOL since 1970.

While the full details of the MOU have not yet been released, four key provisions of the MOU were outlined during the meeting:

  • First, the latest MOU adds the DOJ as a signatory so that all three agencies responsible for enforcing the protections of Title VII are aligned. This is significant, given the disconnect between the DOJ and the EEOC on certain issues such as the application of Title VII to sexual orientation discrimination.
  • Second, the MOU seeks to promote accountability and makes high level officials at each agency responsible for any disclosures of information under the MOU.
  • Third, the MOU strengthens procedures for coordination between the three agencies at the field and headquarters levels, including discussions on enforcement priorities, finding efficiencies and eliminating duplication, and coordinating on issues like religious liberty, conscious protections, and novel or unique issues.
  • Fourth, the MOU seeks to bring greater efficiencies to the investigation process, including allowing the Office of Federal Contract Compliance Programs (“OFCCP”), the part of the DOL responsible for ensuring that employers contracting with the Federal government comply with the laws regarding nondiscrimination, to retain and investigate an individual charge of discrimination without seeking the permission of the EEOC or coordinating investigations between the EEOC and OFCCP, making it less likely that employees or employers need to deal with multiple agencies for the same claim or that multiple agencies reach different conclusions.

During the discussion of the MOU, Commissioners Samuels and Burrows, the two Democratic commissioners in the EEOC leadership, proposed several amendments to the MOU to address operational concerns with the MOU and expressed concerns that the MOU undermines the EEOC’s autonomy in its enforcement of Title VII. However, the outcome of the proposed amendments highlights the politics currently at play at the EEOC, as all 11 of the proposed amendments were voted down by the Republican Commissioners. Ultimately, though Commissioners Samuels and Burrows voted against it, the EEOC voted to approve the interagency MOU.

Implications For Employers

Though the full details of the MOU have yet to be released, the EEOC appears to be taking strides to coordinate with its fellow federal agencies to improve the efficiency and consistency in the enforcement of workplace discrimination laws. The EEOC’s efforts to address issues caused by the investigation of charges by multiple agencies will hopefully streamline the process for employers facing such multiple charges and avoid any inconsistent determinations by separate agencies.

This MOU is the latest in a series of high priority press releases issued by EEOC over the past few months. The ongoing changes at the Commission are a must-watch for employers as the EEOC kicks off its 2021 fiscal year.

By Bailey K. Bifoss and Andrew M. McNaught

Seyfarth Synopsis: Qualified immunity did not supply a Pennsylvania judge with a get out of jail free card, the Third Circuit concluded, holding that sexual harassment and retaliation in the workplace violate clearly established constitutional rights. However, the judge’s appeal was not a total wash, as the court refused to adopt a rule that would have denied him immunity on the claim that he violated an employee’s First Amendment rights by interfering with her freedom to associate with her unmarried, romantic partner.

At a 2004 Christmas party, Crystal Starnes, a Probation Officer, met Judge Thomas Doerr, a judge in a neighboring county. They exchanged phone numbers, and Doerr suggested they stay in touch.

According to Starnes’ lawsuit, Doerr repeatedly called her after the Christmas party to ask her to meet him in his chambers. Starnes initially declined but, in early 2005, she relented. Doerr discussed hiring Starnes for a job she wanted, and the two began a sexual relationship that Doerr allegedly said would be a “business relationship.” By summer 2005, Doerr allegedly helped Starnes get the job she wanted in the county where he was President Judge.

After the sexual relationship between Doerr and Starnes ended in 2009, Doerr allegedly continued to attempt to influence Starnes by flirting with her from the bench, making sexual gestures, holding her hand, interrupting her conversations with male colleagues, and asking her to film herself performing sexual acts.

Starnes says Doerr’s behavior grew increasingly hostile after she began dating the man that she would later marry. Doerr initially refused to permit Starnes a transfer to which she was entitled. Then, when she eventually secured the transfer, she was denied her own office, overtime, training opportunities, and other benefits. Starnes told her supervisors, including Doerr, that she intended to file a claim with the Equal Employment Opportunity Commission. Days later, she was placed on a performance improvement plan to resolve supposed deficiencies that were not mentioned in her performance review only a month earlier.

Starnes sued and, after several attempts, her third amended complaint survived Doerr’s motion to dismiss. Doerr appealed. However, the Third Circuit affirmed the District Court’s decision on all but one count.

The Third Circuit concluded the District Court correctly denied Doerr qualified immunity as to Starnes’ 14th Amendment equal protection clause claim. Indeed, immunity does not attach when a constitutional right is at issue and the right was “clearly established” at the time of the violation. The Equal Protection Clause prohibits sex-based discrimination and, according to the Third Circuit, hostile work environment harassment. Thus, Doerr should have known he was violating a clearly established constitutional right by enticing Starnes into a sexual relationship in exchange for a job.

Nor did qualified immunity insulate Doerr from Starnes’ retaliation claim.. Starnes spoke as a citizen about a matter of public concern—alleged sexual harassment by a member of the bench—in filing her EEOC complaint, bringing her conduct within the ambit of the First Amendment. By allegedly retaliating against Starnes within days of her protected First Amendment conduct, Doerr, the court concluded, should have known he was violating a well-established constitutional right.

But the Third Circuit disagreed with the District Court on whether Doerr knowingly violated Starnes’ First Amendment right to associate with her then boyfriend (now husband) and her right not to associate with Doerr. The District Court understood Starnes to allege Doerr unconstitutionally interfered with her relationship with her boyfriend when Doerr said he “hoped they were off the clock” when he ran into them outside work. However, in the Third Circuit’s view, Doerr could not have known he was violating Starnes’ First Amendment rights by his alleged comment because neither “the Supreme Court nor this court has held that unmarried, romantic partners have a fundamental right to intimate association. Nor is there a robust consensus of persuasive authority recognizing such a right.”

Thus, qualified immunity remains a powerful defense for government employers.. However, it is no get out of jail free card. The Third Circuit’s decision reinforces the degree to which it is constrained by rights that are clearly established at the time of the alleged conduct.

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

By Brent I. Clark, Benjamin D. Briggs, Adam R. Young, Patrick D. Joyce, and Craig B. Simonsen

Seyfarth Synopsis: The CDC continues to expand its guidance on the potential routes of COVID-19 transmission, changing its definition of “close contact” of 15 minutes or more within 6 feet, to now mean 15 minutes aggregated across an entire day, and not just a single continuous 15 minute period.

For the last several months, the CDC has advised that COVID-19 can be transmitted via multiple routes.  Of those routes, household members, intimate partners, and “close contacts” are at highest risk of transmission. Formerly, the CDC defined “close contact” to be a contact within six feet, for 15 consecutive minutes or more.  These 15 consecutive minutes were based on an understanding of sufficient viral load to transmit the disease.  The former guidance was released before CDC’s mask guidance and made no mention of facemasks. As a result, employers and contact tracers could infer that “close contact” meant unmasked contact.

However, on October 21, 2020, the CDC updated its definition of “close contact” to mean “someone who was within 6 feet of an infected person for a cumulative total of 15 minutes or more over a 24-hour period* starting from 2 days before illness onset (or, for asymptomatic patients, 2 days prior to test specimen collection) until the time the patient is isolated.”  Now, “cumulative minutes of exposure at a distance of 6 feet or less can be used as an operational definition for contact investigation.”

This is a large shift for employers and contact tracers, and will require increased resources to help identify contacts over 15 minutes cumulatively in a 24-hour period and will significantly reduce the workforce available to employers. For example, CDC’s new definition could mean that a person who had thirty separate 30-second interactions with a COVID-19 positive contact through a day would be considered a “close contact,” requiring them to quarantine.

The CDC has also removed the contacts’ use of facemasks as a consideration in the analysis, explaining that “because the general public has not received training on proper selection and use of respiratory PPE, such as an N95, the determination of close contact should generally be made irrespective of whether the contact was wearing respiratory PPE.  At this time, differential determination of close contact for those using fabric face coverings is not recommended.”  Accordingly, close contacts come from 15 or more cumulative minutes of exposure, regardless of facemask use.

To support this change in definition, the CDC provided evidence from an exposure in a correctional setting, indicating that an employee “had multiple brief encounters with six incarcerated or detained persons while their SARS-CoV-2 test results were pending.”  Subsequently, all six detained persons received positive COVID-19 test results. The employer then conducted a contact tracing investigation, using video surveillance footage to determine that the employee never spent 15 consecutive minutes within 6 feet of the detained persons. Subsequently, in the next few days, the employee became ill and also tested positive for COVID-19. During all interactions, the correctional officer wore a microfiber cloth mask, gown, and eye protection. In addition, the employee reported no other known close contact exposures to persons with COVID-19 outside work and no travel outside the state during the 14 days preceding the illness onset.

As recently blogged, the CDC has also expressed concerns about airborne transmission, where transmission can occur from virus particles suspended in the air.

Employers may need to revise their policies, procedures, and record-keeping analyses to be consistent with the CDC’s new guidelines. For more information on this or any related topic, please contact the authors, your Seyfarth attorney, or any member of the Workplace Safety and Health (OSHA/MSHA) Team.

By Minh Vu and Julia Sarnoff

Seyfarth Synopsis: Congressmen Budd and Correa try to address website and mobile app accessibility in a new bill called the “Online Accessibility Act.”  

On October 2, 2020, Representatives Lou Correa (D-CA) and Ted Budd (R-NC) introduced a bill called the “Online Accessibility Act” (H.R. 8478) (the “OAA”) which would amend the ADA to add a new Title VI prohibiting discrimination by “any private owner or operator of a consumer facing website or mobile application” against individuals with disabilities. The OAA would also establish web accessibility compliance standards for consumer facing websites and mobile apps and create a mandatory administrative process that persons injured by allegedly inaccessible websites and mobile apps must use before they can file a lawsuit.

Here is a summary of the bill and our initial thoughts on the matter.

Key Provisions of the OAA

Compliance Standard. Under the bill, covered entities — defined as “any private owner or operator of a consumer facing website or mobile application” — can comply with the ADA with respect to their consumer facing websites and mobile applications by one of the two following ways:

(1) Substantial Conformance” with WCAG 2.0, Level A and AA. A website or mobile application would be considered compliant with the ADA if it is in “substantial compliance” with the Web Content Accessibility Guidelines (WCAG) 2.0, Level A and AA, or any subsequent update, revision, or replacement published by the World Wide Web Consortium (the international organization that develops the WCAG technical guidelines).

(2) “Alternative Means of Access” Acceptable. A private entity that owns or operates a consumer facing website or mobile app that is not in “substantial compliance” with WCAG 2.0 A and AA could comply with the ADA by providing “alternative means of access to individuals with disabilities that is equivalent to access the content available on such website or mobile application.”

The bill tasks the Architectural and Transportation Barriers Compliance Board (the “Access Board”) with the job of defining the terms “substantial compliance” with WCAG 2.0, Level A and AA, “alternative means of access,” and “consumer facing website or mobile application.”  The Access Board would also develop regulations for the implementation of the OAA’s compliance standard. The bill also directs the Access Board to “include flexibility for small business concerns.”

Exhaustion of Administrative Remedies Required Prior to Filing a Civil Lawsuit. As drafted, the bill would require aggrieved persons with a disability to exhaust their administrative remedies before bringing a civil action.

To do so, the individual must first provide notice to the owner or operator of the consumer facing website or mobile app of the fact that its website or mobile application does not comply with the WCAG 2.0 AA (or later version) (“accessibility standard”). The owner or operator would then have 90 days to bring its website or mobile app into compliance with the accessibility standard.

If the owner or operator fails to bring its website or mobile app into compliance with the accessibility requirements described above within the 90 day notice period, the individual may then file an administrative complaint with the Department of Justice (“DOJ”) within 90 days after the notice period expires. The DOJ would have 180 days to complete its investigation, at which point DOJ could initiate a civil enforcement action against the business in “any appropriate United States district court.”

The individual may only bring a lawsuit after the end of the 180-day period if the DOJ chooses not to do so. In a lawsuit brought by DOJ, the court may order compliance with law and, monetary damages (but not punitive damages), and assess a civil penalty not exceeding $20,000 for a first violation, or $50,000 for any subsequent violation. In considering civil penalties, the court would be required to consider “any good faith effort or attempt to comply” with the bill’s requirements.

Only if DOJ does not complete its investigation within 180 days, or if DOJ finds that there is a violation but decides not to initiate its own enforcement action, may an individual file a private civil lawsuit against the owner or operator for non-compliance with the ADA. The bill explicitly states that this civil action is “the sole and exclusive remedy for any person aggrieved by the failure of any consumer facing website or mobile application to meet the requirements” of the Act.

Our Initial Observations.

  • The definition of a “consumer facing website” as “any website that is purposefully made available to the public for commercial purposes” is rather vague. Would it apply to a website or mobile app that sells goods or services only to other businesses, for example?
  • The bill would apply to a private entity that is an “owner or operator of a consumer facing website.”   This language would seem to cover companies that host or maintain websites on their platforms for private businesses. Thus, the OAA, if enacted, could cover more entities than just public accommodations that are currently the targets of website and mobile app accessibility lawsuits.
  • Although the DOJ can obtain injunctive relief, damages, and a civil penalty in an enforcement action, the bill does not say what relief would be available to a private litigant. In addition, the maximum civil penalty that can be obtained by the DOJ under this new Title VI would be significantly less than the maximum for other types of discrimination under Title III of the ADA (e.$96,384.00 for a first violation and $192,768 for a subsequent violation).
  • The administrative process contemplated by the OAA would put a new and significant burden on the DOJ, which would have to investigate all complaints.
  • The bill’s statement that its remedies are the “sole and exclusive remedy” for aggrieved persons raises questions as to whether individuals would be prohibited from filing lawsuits to enforce state and local laws concerning the accessibility of websites and mobile applications.
  • The bill leaves open the question of how long a “grace period” covered entities will have to come into compliance with its requirements following the issuance of regulations by the Access Board.
  • The bill contains no defenses for covered entities, such as technical infeasibility, undue burden, and/or fundamental alteration.

Response to Bill by Disability Rights Advocates.

Disability rights advocates do not seem enthusiastic about the bill.

Some advocates say that the more recent WCAG 2.1 should be the standard for compliance, not WCAG 2.0. They also oppose an allowance for alternative means of access to online content. Advocates have also expressed concern that the requirement to exhaust administrative remedies would limit the right of disabled people to enforce the ADA through private lawsuits. Furthermore, the Act could prohibit individuals from enforcing state and local disability access rights laws. Additionally, advocates believe that limiting the Act to websites and mobile apps puts at risk their efforts to use the ADA to increase accessibility of other technologies such as kiosks and employee software.

What’s Ahead?  

Past attempts to amend the ADA to address the concerns of private entities faced with a deluge of lawsuits (e.g. the ADA Education and Reform Act and the ADA Notification Act) have not gained much traction because they did not receive support from disability rights advocates. However, we think both businesses and advocates would like to see clear legal requirements on this issue rather than the confusing and constantly evolving patchwork of court decisions that exists today. Thus, the bill is certainly a step in the right direction.