By David J. Rowland and Megan P. Toth

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

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

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

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

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

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

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

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

By David J. Rowland and Cheryl A. Luce

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

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

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

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

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

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

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

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

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

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

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

***

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

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

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

Case Background

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

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

The Court’s Decision

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

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

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

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

Implications For Employers

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

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

 

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

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

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

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

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

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

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

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

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

 

 

 

By Christopher M. Cascino

Synopsis: On May 25, 2017, Seyfarth attorneys Chris DeGroff, Noah Finkel, and Brad Livingston presented their insights on how the Trump administration will affect employers.  Specifically, they discussed the effect the Trump administration is having and will have on the EEOC, the DOL’s Wage and Hour Division, and the NLRB.  All presenters agreed that, while the Trump administration will have an effect on these agencies, it will take time for the changes to take place.

The Presentation

Chris began the presentation by discussing the EEOC.  He observed that the new administration has not yet replaced the high-ranking EEOC officials who set EEOC policy.  He pointed out that the majority of the EEOC still consists of Democratic appointees, though observed that this will change around July 2017.  He further pointed out that the General Counsel position remains unfilled.  When that is filled, Chris thinks we should have a better idea about the direction the EEOC will head in the Trump administration.

Chris discussed the ways in which the Trump administration might affect the EEOC’s strategic enforcement priorities.  For example, Chris pointed out that the EEOC’s strategic priority of eliminating systemic barriers to hiring will likely be a focus of a Trump administration focused on job growth, while strategic priorities like eliminating pay disparities might be less of a focus to the administration.

Chris concluded by pointing out that the EEOC has shown itself to be resilient to changes in administrations.  In the past, it has been aggressive after changes from a Democratic to a Republican administration.  That trend appears to have continued, as the EEOC’s lawsuit filings are up 75% over this time last year.  Chris observed that this may be because the EEOC may be trying to justify continued funding from what could be a less friendly administration.

Noah then spoke about how the Trump administration will affect the DOL’s Wage and Hour Division.  Like Chris, Noah pointed out that Trump has not been able to fill the key DOL positions.  While the administration has put in place a Secretary of Labor, none of the three key policymaking positions in the Wage & Hour Division – the Administrator, Deputy Administrator, and Solicitor of Labor – have been filled by Trump’s administration.  In fact, the   Administrator and Deputy Administrator positions are vacant, and the current Solicitor of Labor is temporary.  Noah observed that, when the administration fills these positions, we will have a better idea about how the Wage and Hour Division will function under the Trump administration.

Noah stated that, though the DOL’s Wage and Hour Division grew under the Obama administration, there are no proposed changes to its funding in the Trump administration’s proposed budget.  As a result, like with the EEOC, while there could be a change in the focus of wage and hour investigations, the actual number of investigations will probably remain steady.

Noah pointed out that probably the biggest outstanding question is how the Trump DOL will handle the rule promulgated under the Obama administration raising the wage needed to qualify for the white collar exemption.  Currently, the rule is not in effect because a federal judge enjoined the DOL from enforcing it.  The injunction is on appeal and, to date, the Trump administration has not filed a brief on the appeal.  Noah said we should look for the Trump administration’s position on appeal to see where the law is heading on the wage needed for the white collar exemption.  For more information about Noah’s presentation, see link.

Brad  then presented on changes to expect from the NLRB.  As with the EEOC and the DOL’s Wage & Hour Division, Brad stated that change within the NLRB will take time because the Trump administration has not yet put its appointees into place.  At this point, there are two vacancies on the five member NLRB.  Its chair is a Republican appointee whose term ends this December, and its other two current members are Democratic appointees whose terms end in late 2018 and 2019.  Although Trump can create a Republican-appointed majority by filling the two vacancies, he has not done so.

Brad stated that even after Republican appointees are a majority of the NLRB, change will take time because the NLRB tends to interpret the law in decisions rather than through rulemaking.  As a result, it will have to wait for the right case to come before it before it can change its view of the law.

Brad argued that the Obama administration’s NLRB was the most aggressive in limiting the rights of employers and expanding the rights of individual employees and unions in history.  He emphasized that, while a Trump NLRB will likely take a different course and even overturn many of the recent decisions of the NLRB, it will take time before these changes are made.  For more information about Brad’s presentation, see link.

Implications For Employers

While the Trump administration will result in changes to the way government agencies interact with employers, these changes will occur gradually.  Further, employers should not expect a decrease in enforcement actions brought by government agencies against employers.  The latest budget proposal out of the Trump administration keeps funding for these agencies steady, which will allow them to continue to operate at the level they operated at in the prior administration.

 

By Dawn Reddy Solowey

Seyfarth Synopsis: Anti-Muslim rhetoric dominates many media headlines.  A May 9, 2017 decision by the U.S. Court of Appeals for the Second Circuit highlights the risks to an employer when anti-Muslim rhetoric enters the workplace.

The Facts

In Ahmed v. Astoria Bank et al., the Second Circuit considered a claim brought by a plaintiff employee who had been terminated from her employment at Astoria Bank, at the end of her probationary period, for tardiness and carelessness in checking important documents.  The employee’s claims included that she had been subjected to a hostile work environment because she is Egyptian and Muslim.

The History

The District Court had granted summary judgment to the employer. As to the hostile-environment claim, the Court had reasoned that the alleged stray comments did not rise to the required “severe and pervasive” level.  The employee appealed only the ruling on the hostile environment claim.

The Second Circuit’s Holding

The Second Circuit reversed, holding that a reasonable jury could find that the employee was subject to severe and pervasive discriminatory harassment. The Court relied principally on the employee’s evidence that the supervisor “constantly” told her to remove her hijab head-covering, which he referred to as a “rag”; demeaned her race, ethnicity and religion “on several occasions”; and made a comment during her September 11, 2013 interview that she and two other Muslim employees were “suspicious” and that he was thankful he was “in the other side of the building in case you guys do anything.”

Considering this evidence, together with allegations such as that another manager used hand gestures and spoke slowly to the plaintiff in everyday conversation as if to suggest she did not know English, the Second Circuit held that a jury could conclude that the plaintiff was subject to a “steady barrage of opprobrious” racial and anti-Muslim comments.

On that basis, while acknowledging the evidence was “on the knife’s edge” between summary judgment and trial, the Court reversed the District Court’s grant of summary judgment and remanded for a jury trial.

The Broader Context

Concerns about anti-Muslim sentiment affecting the workplace are hardly new. We’ve blogged before about the EEOC’s 2016 Questions and Answers for employers concerning workers who are, or are perceived to be, Muslim or Middle Eastern.

In that publication, issued in the wake of the Paris and San Bernandino attacks, the EEOC posited that, “Reactions in the workplace to world events demand increased efforts by employers to prevent discrimination.” Since then, the need has arguably only increased.

So What Can Employers Do?

Employers can take preventative steps to mitigate the risks.

  • The current climate is an opportunity for employers to take a fresh look at anti-discrimination and harassment policies, complaint mechanisms, and accommodation practices, to ensure compliance with federal, state and local laws.
  • Effective training not only helps prevent litigation, but can assist a defense. All employees should be trained that harassment and discrimination – including comments such as those alleged in the Ahmed case – will not be tolerated.  Training that is specific and interactive is most effective.
  • Companies should further train managers on nondiscriminatory hiring practices, and how to manage employee complaints.
  • Managers should also be aware of the need to consider accommodations for certain religious practices, such as the wearing of a hijab, and how to process such requests. Managers should be trained that an employee who receives a religious accommodation should never be subject to negative comments as a result.
  • When an employee complains of alleged discrimination or harassment, the employer should investigate promptly, and if a violation is found, take prompt remedial action.

 

By Christine Hendrickson, Annette Tyman, Hillary Massey, and Monica Rodriquez

50 State Pay Equity Desktop Reference: What Employers Need to KnSeyfarth Synopsis: Today, April 4th, is Equal Pay Day.  In commemoration, Seyfarth’s Pay Equity Group  is introducing a 50-State Pay Equity Desktop Reference.

Pay equity may be on the minds and lips of your employees today, as today is Equal Pay Day.

Equal Pay Day originated more than 20 years ago as a public awareness event to symbolize how far into the year women must work to earn what men earned in the previous year.  While we’ve previously examined the basis of the statistic that underlies the event, there is no doubt that pay equity has become a high priority for employers, as administrative agencies and a patchwork of states have aggressively moved to address pay equity and enforcement.  What used to be a sleepy, little-discussed event has now become major news.

At Seyfarth Shaw, we are marking Equal Pay Day with the release of the first annual 50-State Pay Equity Desktop Reference.  This Desktop Reference was aimed at answering the most common questions we are asked about regarding the patchwork of different state laws that touch on pay equity, including:

  • Who is protected?
  • What type of work must be compared?
  • May employers rely on geographic location to explain pay differences?
  • What is the statute of limitations?; and
  • May employers ask about salary history?

Seyfarth Shaw at Work (SSAW) offers a more comprehensive 50-state survey, which is updated quarterly.  For additional information about the comprehensive survey, please email payequity@seyfarth.com.  The Desktop Reference also provides more information about undertaking a proactive equity audit and the lifecycle of such an audit.

Seyfarth’s Pay Equity Group leads the legal industry in fair pay analysis, thought leadership, and client advocacy.  For more than twenty years, we have partnered with our clients to proactively address these developments and minimize risk.  Seyfarth also recently testified before the Equal Employment Opportunity Commission on behalf of the U.S. Chamber of Commerce, requesting the EEOC withdraw its proposal to require employers to report data on compensation and diversity through the EEO-1 report.  For questions, contact the authors, Christine Hendrickson, Annette Tyman, Hillary Massey, and Monica Rodriquez, or your Seyfarth attorney with whom you regularly work.

By Dawn Reddy Solowey

Seyfarth Synopsis: In a recent federal case the employer has challenged the EEOC Enforcement Guidance on Retaliation taking the position that a religious accommodation request does not meet the test for protected activity under Title VII. In defending retaliation litigation, employers should consider whether there is a viable argument that a request for religious accommodation is not sufficient to establish protected activity as a matter of law –and, in any event — to proceed carefully when considering the request.

The Equal Employment Opportunity Commission (EEOC) has maintained in its Enforcement Guidance on Retaliation that “persons requesting religious accommodation under Title VII are protected against retaliation for making such requests.” In its Questions and Answers: Religious Discrimination in the Workplace, the EEOC “has taken the position that requesting religious accommodation is protected activity.”

In a federal case pending in Minnesota, one employer has challenged this guidance by the EEOC, and taken the position that a religious accommodation request does not meet the test for protected activity under Title VII.

Case Background

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

The Employer’s Argument

The employer argued that the EEOC’s informal guidance is inconsistent with Title VII’s plain language, and therefore was not entitled to any deference.

Title VII provides for two categories of protected activity: (1) opposing any practice that violates Title VII; and (2) making a charge, testifying, assisting, or participating in any manner in an investigation, proceeding, or hearing under Title VII.  In its motion for summary judgment, the employer argued that a religious accommodation request falls in neither category.

The employer argued that requesting a religious accommodation is not opposing an unlawful practice, and neither is it making a charge or otherwise assisting in a Title VII investigation. The employer maintained that the EEOC has conceded as much in its retaliation guidance, by stating that a person requesting accommodation “might not literally ‘oppose’ discrimination or ‘participate’ in a complaint process.”

The employer’s motion cited two Circuit Court of Appeals opinions that have assumed, without deciding, that a religious accommodation request can amount to protected activity. However, the employer maintained that no federal appellate authority has directly and specifically analyzed the issue.  The employer cited two federal district courts, the District of Maryland and District of Columbia, that have held that a request for religious accommodation, without more, does not amount to protected activity.

Anticipating a likely argument by the EEOC, the employer sought to distinguish a request for religious accommodation from a request for an ADA disability accommodation, which has been held by some courts to amount to protected activity. The employer pointed to differences in the language of Title VII and the ADA.

Employment lawyers will be watching for the EEOC’s Opposition to the Motion for Summary Judgment, and ultimately the decision of the District Court to see how the employer’s theory fares.

What Does This Case Signal for Employers Defending Retaliation Litigation?

In defending retaliation litigation, an employer should consider whether, in the relevant jurisdiction, there is a viable argument that a request for religious accommodation is not sufficient to establish protected activity as a matter of law.   As always, it is important to keep in mind that the law governing retaliation claims under Title VII may differ from that under state and local laws.

What Does This Case Signal for Employers Managing Accommodation Requests?

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

Best Practices for Responding to Religious Accommodation Requests

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

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

For more information on this or any related topic please contact the authors, your Seyfarth attorney, or any member of the Absence Management and Accommodations Team.

By Sam Schwartz-Fenwick and Lucas Deloach

Seyfarth Synopsis: To the surprise of many, the EEOC is not retreating from the argument first made by the Obama administration that Title VII forbids employment discrimination based on gender identity.

In EEOC v. R.G. & G.R. Harris Funeral Homes, Inc., Aimee Stephens, a transgender woman, informed her employer, a funeral home, of her gender identity and intention to transition.  Although she intended to abide by the funeral home’s gender-specific dress code and wear clothing approved for female employees, she was terminated.  She filed a charge of sex discrimination with the EEOC, and ultimately, the EEOC during the Obama administration brought suit against the funeral home in federal district court alleging that the funeral home terminated Ms. Stephens “because [she] is transgender, because of [her] transition from male to female, and/or because [she] did not conform to [the funeral home’s] sex- or gender-based preferences, expectations, or stereotypes.”

The district court rejected the funeral home’s motion to dismiss, holding the complaint stated a claim for relief based upon unlawful sex-stereotyping but not gender identity discrimination. The district court subsequently granted the funeral home’s motion for summary judgment, in which the funeral home relied in part upon the Religious Freedom Restoration Act (“RFRA”) as a defense.  In its order, the district court found that the RFRA did, in fact, operate as a defense to Ms. Stephens’ wrongful termination claim.

In its opening brief to the Sixth Circuit, the EEOC continues to advance arguments originally made during the Obama administration.  The EEOC argues that, “[c]ontrary to the court’s ruling below, Title VII’s prohibition on discrimination ‘because of … sex’ encompasses discrimination based on transgender status and/or transitioning.”  The EEOC also maintains that the “RFRA does not provide what Title VII omits: a defense in this case that exempts the Funeral Home from complying with Title VII’s prohibition on sex discrimination based on the sincere religious beliefs of its owner.”

Many observers had expected the EEOC to reverse its stance, and the agency may still do so. After all, the full impact of President Trump’s administration on the makeup and enforcement agenda of the EEOC remains to be seen.  Additionally, the administration’s position on a range of LGBT issues is not clear.  The EEOC’s actions here are aligned with President Trump’s statements on preserving President Obama’s Executive Order prohibiting discrimination against LGBT individuals employed by the federal government and by federal contractors.  However, that position is at odds with the DOJ’s and Education Department’s withdrawal of Obama-era guidance advising federally-funded educational institutions that Title IX prohibits discrimination based on gender identity.  (The EEOC’s current position is further complicated by the fact that the stated protections for transgender individuals, found in Section 1557 of the Affordable Care Act, derive in part from Title IX.)

Currently, it appears the EEOC is poised to maintain its position, in the context of Title VII. But it is unclear whether the EEOC will continue to prioritize sex discrimination claims on behalf of transgender employees.  Additionally, although unsettled, a growing number of courts have held that discrimination on the basis of gender identity violates Title VII.  For these reasons, employers are wise to consider how their policies, practices, and procedures impact transgender employees and whether they are sufficiently inclusive.

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

By Erin Dougherty Foley and Craig B. Simonsen

Seyfarth Synopsis: These new regulations require federal agencies to be “model employers” of individuals with disabilities. As such, they now must take specific steps that are “reasonably designed” to gradually increase the number of employees who have a disability.

We had blogged previously about the Equal Employment Opportunity Commission’s Advance Notice of Proposed Rulemaking (ANPR), inviting the public to comment on how it should amend its regulations implementing Section 501 of the Rehabilitation Act of 1973, and to clarify the federal government’s obligation to be a model employer of individuals with disabilities. 79 Fed. Reg. 27824 (May 15, 2014).

The regulations — which apply only to federal agencies — that previously implemented the Section 501 affirmative action requirement simply stated that the federal government shall be a “model employer of individuals with disabilities,” and that federal agencies shall “give full consideration to the hiring, placement, and advancement of qualified individuals with disabilities.”

While the “model employer” of individuals with disabilities provisions of Section 501 require affirmative action and non-discrimination in employment only by federal agencies, what the EEOC determines to be best practices for federal agencies may be a preview of how it will handle private sector disability claims and charges. The regulations imposed an obligation on federal agencies to be “model employers” of individuals with disabilities, but did not explain what federal agencies needed to do to comply with the obligation.

Now the Final Rule, 82 Reg. Reg. 654 (January 3, 2017), requires those federal agencies to take specific steps that are “reasonably designed to gradually increase the number of employees who have a disability as defined under Section 501, and the number of employees who have a ‘targeted disability,’ which is defined for purposes of this Rule to mean a disability that is either designated as ‘targeted disability or health condition’ on the Office of Personnel Management’s (OPM’s) Standard Form 256, or that falls under one of the first 12 categories of disability listed in Part A of Question 5 of the EEOC’s Demographic Information on Applicants form (Applicant Flow Form), until they meet specific goals set by the EEOC.”

Targeted disabilities are defined as “disabilities that the government has, for several decades, emphasized in hiring because they pose the greatest barriers to employment, such as blindness, deafness, paralysis, convulsive disorders, and mental illnesses, among others.”

The EEOC indicates that the New Final Rule is similar to the approach taken by the DOL’s Office of Federal Contract Compliance Programs in regulations issued to implement the obligation of federal contractors to engage in affirmative action for individuals with disabilities pursuant to Section 503 of the Rehabilitation Act of 1973, 29 U.S.C. 793 (Section 503). See for instance, 41 CFR pt. 60-741.45(a), establishing a 7% utilization goal for employment of qualified individuals with disabilities in each job group in the contractor’s workforce.  According to the EEOC news release, the regulations “set goals for federal agency workforces of 12% representation for individuals with disabilities, and 2% for individuals with ‘targeted’ disabilities.”

In addition, this New Rule requires agencies to provide personal assistance services (PAS) to employees who, because of targeted disabilities, require assistance in order to be at work or participate in work-related travel. PAS are services that help individuals with disabilities are to perform activities of daily living, including assistance with removing and putting on clothing, eating, and using the restroom.

The EEOC has also published a question-and-answer document for the new regulations.

The Rule provides federal agencies one year to make any necessary changes in policy, staff, or other aspects of their operations. The Rule is effective on March 6, 2017, and applicable on January 3, 2018.

The Rule specifically applies to federal employers. However, as noted above, this may also impact the EEOC’s handling of disability claims generally. The EEOC continues to make protecting individuals with disabilities a top priority. Employers that work on or seek to contract for government projects should vigilantly review their policies, procedures and practices to ensure that they are also acting as a “model” employer as that has been defined by the agency.

If you have questions regarding this New Rule or the topic of this post, please contact the authors, a member of Seyfarth’s OFCCP & Affirmative Action Compliance Team, or your Seyfarth attorney.