Tag Archives: Equal Employment Opportunity Commission

Favorite Firing: Do Not Terminate a Disabled Employee Without a Reasonable Accommodation Dialogue


EEOC sealBack in May 2016, Lowe’s, the home improvement store giant, agreed to pay $8.6 million to settle a lawsuit brought by the EEOC over Lowe’s firing of many individuals with disabilities when they exceeded the maximum amount of disability leave Lowe’s provided. The problem, as the EEOC saw it, was that Lowe’s failed to engage in reasonable accommodations beyond the standard disability leave policy. See U.S. Equal Employment Opportunity Commission v Lowe’s Companies, Inc., et al., C.D. Ca., Case No. 2:16-CV-03041-AB-FFM.

The Facts: This lawsuit began with three charges of disability discrimination filed by three employees of Lowe’s back in 2007 and 2009. These three plaintiffs alleged that Lowe’s violated the Americans with Disabilities Act (ADA) by terminating their employment when their medical leave of absence exceeded Lowe’s 180-day (later extended to 240-day) maximum leave policy. The plaintiffs claimed that failure to engage in any discussion about further accommodations beyond the maximum leave violated the ADA. They wanted extended leaves of absence as a reasonable accommodation.

The EEOC agreed with the plaintiffs and also claimed that thousands of other Lowe’s employees were in the same situation. The EEOC ultimately filed a lawsuit in the Central District of California, the terminated Lowe’s employees were found to be a suitable class, and the case proceeded as a class action.

It was settled in May 2016, and the Court approved the settlement on May 12, 2016. (A copy of the Consent Decree can be found here.) Lowe’s admitted no wrongdoing, and the Consent Decree is not an admission. However, the company did agree to settle the lawsuit for $8.6 million and also consented to comply with a variety of non-monetary provisions. Lowe’s agreed to contact the terminated employees in the class and pay their damages out of the $8.6 million fund, as calculated by the EEOC, and to donate the remainder (if any) to non-profit organizations benefiting the disabled.

Lowe’s also agreed to amend its policies so that it would “engage in the interactive process with any employee with a disability who requests leave as a reasonable accommodation.” And the company agreed to retain Equal Employment Opportunity consultants approved by the EEOC for four years. These consultants will advise on policies, track all requests for accommodation, and educate managers on their duties under the ADA.

The Moral: There are few bright lines when it comes to working through disability situations. If an employee requests an accommodation, the employer ignores that request at its peril. A firm policy regarding leaves of absence is no longer a firm policy—exceptions must be at least considered if the employee claims to be disabled and to need more time away from work.

When the ADA was first enacted in 1990, I worked with managers to parse through how to simultaneously comply with disability leaves, worker’s compensation laws, absence policies, and the like. The situation grew even more complex with the passage of the Family and Medical Leave Act in 1993. I used to tell managers to stack up all the applicable laws and policies like slices of Swiss cheese. Only if an employee’s situation fit in gaps in every layer could the employee be discharged with minimal risk.

What the Lowe’s case shows is that some of the legal layers have no gaps—all employees requesting a reasonable accommodation should at least be given consideration, and an employer cannot have a blanket rule prohibiting certain accommodations. The EEOC will not accept any mandatory maximum leave policy.

The Lowe’s case is also interesting because of the broad relief granted pursuant to the Consent Decree. The provisions in the Lowe’s decree are the types of relief that the EEOC is likely to seek in every disability case it decides to take to court. Employers should consider whether and when accepting these types of interference in their business are worth disposing of a lawsuit, particularly a large class action case of the type that Lowe’s faced. It doesn’t take a loss in court to cause upheaval in the business; settlement can also be onerous.

It is best, therefore, to avoid as many lawsuits as possible. Therefore, engage in an interactive reasonable accommodation dialogue, document that engagement and all options considered, and be clear on why the employee’s requested accommodation is not reasonable and would constitute an undue hardship on the business.

When have you dealt with a difficult reasonable accommodation case?

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Keeping Your Wellness Programs Well: EEOC Notice of Proposed Rulemaking


EEOC sealWellness programs are a popular component of many employee benefit plans. Employers use these programs to encourage healthy behaviors among their employees, thereby reducing long-term medical costs. In addition, these programs often provide financial incentives to employees to engage their interest and sometimes include contests and classes that promote camaraderie and improve the workplace culture.

Over the last fifteen years, I have worked with several employers in a variety of workplaces to design and implement wellness programs. The employers are usually concerned about how to balance the costs and benefits of the programs and how to measure whether the program has a positive impact on employee health. It is also important to focus on changing behaviors that employees can control, while not penalizing them for health issues they cannot control.

On April 20, 2015, the EEOC released a Notice of Proposed Rulemaking addressing how Title I of the Americans with Disabilities Act (ADA) applies to employer wellness programs.

Previously, federal regulations defined acceptable wellness programs under HIPAA. After passage of the Affordable Care Act in 2010, several government agencies approved wellness programs that offered financial incentives to employees, so long as the incentives did not exceed 30% of the cost of coverage to employees. Incentives of up to 50% of coverage were permitted for programs related to preventing or reducing the use of tobacco products.

However, the EEOC was not one of the agencies involved in the earlier regulatory effort. The EEOC took the position that wellness programs designed under the earlier regulations may not comply with Title VII of the Civil Rights Act of 1964 or the ADA. The EEOC challenged several wellness programs in court, most notably in a lawsuit filed against Honeywell International, Inc. Honeywell’s program imposed a penalty on workers who refused to undergo biometric testing. Such penalties are a common component in wellness program design.

The EEOC’s enforcement efforts against Honeywell and other companies has made many employers hesitant to develop new wellness programs, despite the desire of employers to promote healthy behaviors among their employees and to manage their rising health care costs.

With its recent Notice of Proposed Regulations, the EEOC is finally providing guidance on how to design wellness programs it believes are acceptable under the ADA.

First, the EEOC says, wellness programs must be voluntary.

Wellness programs must be voluntary.

  • Employees may not be required to participate in a wellness program, may not be denied health insurance or given reduced health benefits if they do not participate, and may not be disciplined for not participating.
  • Employers also may not interfere with the ADA rights of employees who do not want to participate in wellness programs, and may not coerce, intimidate, or threaten employees to get them to participate or achieve certain health outcomes.
  • Employers must provide employees with a notice that describes what medical information will be collected as part of the wellness program, who will receive it, how the information will be used, and how it will be kept confidential.

Next, the programs can only offer limited incentives for employee participation or for achieving health outcomes.

Employers may offer limited incentives for employees to participate in wellness programs or to achieve certain health outcomes.

  • The amount of the incentive that may be offered for an employee to participate or to achieve health outcomes may not exceed 30 percent of the total cost of employee-only coverage.
  • For example, if the total cost of coverage paid by both the employer and employee for self-only coverage is $5,000, the maximum incentive for an employee under that plan is $1,500.

This 30% “incentive” basically accepts the existing HIPAA regulatory definition of “reward”, although there are some differences. Most notably, the EEOC proposed regulations cap smoking cessation rewards at 30%, instead of the HIPAA 50%, although if all the employer requires is that the employee answer a question about tobacco use, then a 50% incentive is permitted.

The Notice also limits incentives to 30% for programs that ask an employee to respond to a disability-related inquiry or undergo a medical examination. This is contrary to the HIPAA safe harbor exempting bona fide benefit plans from the ADA prohibition on medical examinations.

The Notice also specifically states that compliance with the proposed rules will not mean that an employer has complied with Title VII of the Civil Rights Act, nor with the Age Discrimination in Employment Act.  Thus, the EEOC’s proposed rules are narrowly limited to compliance with the ADA.

Moreover, the rules state that employers must provide reasonable accommodations to disabled employees who seek to participate in wellness programs, such as sign language interpreters at classes for hearing-impaired participants.

Thus, the EEOC’s proposed regulations are of limited help to employers seeking to design wellness programs. It is of some benefit to know that 30% incentives are acceptable, but the regulations do not go far enough.

For more information, see

EEOC Issues Proposed Rule on Employee Wellness Programs and ADA Compliance, by Terri Gillespie, HRLegalist.com, April 21, 2015 

Wellness Programs: Agencies Issue Helpful Guidance but Look Before You Leap, by Nancy Campbell, SWLaw.com, April 21, 2015

EEOC Publishes Proposed Rule on How the ADA Applies to Employer Wellness Programs, McGuireWoods.com, April 23, 2015

EEOC Finally Releases Notice of Proposed Rulemaking for Wellness Programs, EmployeeBenefitsUpdate.com, Monday, April 27, 2015

The EEOC’s New Wellness Program Regulations: Notable or Needless, by Michael Mishlove, GSHLLP.com, April 30, 2015

New Guidance On Wellness Programs, by Mathew Parker, LaborLawyers.com, May 2, 2105

What should employers do as a result of the new EEOC Notice of Proposed Rulemaking?

  1. Read the proposed regulations and evaluate your wellness programs for compliance
  2. Consult your attorney and/or benefit plan advisors about possible changes to your wellness plans.
  3. Send your comments on the proposed regulations to the EEOC by June 19, 2015, if you so choose.

What has been your experience with employee wellness programs? What has worked best at your company?

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Who Must Raise the Topic of Religious Accommodation in the Workplace?


A&F logoI wrote recently about religious accommodation, but the Supreme Court arguments in Equal Employment Opportunity Commission v. Abercrombie & Fitch Stores, Inc., last week keep this issue top of mind. The Abercrombie & Fitch case is one where I have sympathy with both the applicant and the employer.

The issue in this case is whether an employer has any duty under Title VII of the Civil Rights Act of 1964 to try to accommodate an employee’s or applicant’s religious practices if the employee or applicant doesn’t directly request an accommodation. In this case, a Muslim woman, Samantha Elauf, interviewed for employment with Abercrombie & Fitch wearing a hajib. Whether or not she was Muslim did not come up during the interview, but the employer assumed she was Muslim and decided not to hire her, because her appearance did not fit the “look” it wanted for sales employees in its stores.

hijabIt is a shame that this case has reached the Supreme Court. By all accounts, Ms. Elauf has had a successful career since Abercrombie & Fitch rejected her application. Most likely, Abercrombie & Fitch lost a good prospective employee by making a decision without discussing accommodation with this applicant. In fact, Abercrombie & Fitch later changed its policy to permit sales employees to wear hijabs, so the whole lawsuit might have been avoided had the issue been addressed before the retailer rejected Ms. Elauf’s application.

I am sympathetic to the applicant, because I believe that religious practices should be accommodated. As I stated in my February 16 post, this nation was founded to permit a diversity of religious beliefs, and we should give each other a little space to make that happen. The “look” policy, if strictly applied with no flexibility, might not have been the best practice from either a customer service or an employment perspective.

With respect to the specifics of the case, the hiring managers at Abercrombie & Fitch correctly perceived Ms. Elauf’s hijab to be an indication that she was Muslim. Therefore, the Supreme Court could easily rule that the employer should have done more before rejecting the applicant. The company should at least have raised the issue, as the EEOC argues. However, the challenge for the Court might be to do justice to Ms. Elauf without issuing broad rules of law that go beyond the intended scope of Title VII and could make managing a business more difficult.

There are many reasons why the employer’s position is also sympathetic. In my opinion, particularly for customer-facing employees—which retail sales employees are—an employer should be able to set appearance standards. Moreover, placing the burden on the employer to determine whether there might be a religious practice at stake, as the EEOC argued, goes beyond the capability of many hiring managers. How is any particular manager supposed to be aware of all religious practices—for example, whether a particular tattoo is religiously based or simply a style that an applicant likes? It is much more likely that the applicant will recognize when his or her religious practices might be an issue than that the employer representative will.

Moreover, many employers are legitimately concerned about mentioning religion at all during a hiring interview. Whether the applicant is or is not of a particular religion, the employer opens itself up to the possibility of a discrimination claim for “perceiving” the applicant to be of a protected group. Most Human Resources personnel and other management representatives have been carefully trained to avoid bringing up religion unless and until the employee does, and even then to handle the situation gingerly.

Also supporting the employer’s position in this case is that the standard for religious accommodation under Title VII has traditionally been quite low. Unlike under the Americans with Disabilities Act, where “reasonable accommodation” has placed some significant burdens on employers, under Title VII the only accommodations required have been those that do not impose more than a “de minimis” burden on the employer. So, even if Abercrombie & Fitch had raised the issue of Ms. Eleuf’s hijab, the retailer might not have had to change its “look” policy to accommodate her.

Nevertheless, it is quite possible, as the EEOC argued here, for the employer to have policies and procedures that the applicant does not know about—such as Abercrombie & Fitch’s “look” policy. It does not seem fair to make the applicant raise the issue of religion because there might possibly be a problem that the applicant knows nothing about. If employers do not need to discuss religion, why should applicants?

Thus, keeping the focus on the job—as Justices Sotomayor and Alito seemed to suggest during oral argument—might well be a workable solution. The hiring managers’ questions can ask about the job requirements and whether the applicant sees any problem performing them. Then, if religion might be an issue, the applicant can tell the employer what his or her religious beliefs require.

My advice to hiring managers was always to keep the focus on the job requirements.

How have you dealt with religious accommodation issues in the past? How do you feel about the issues raised in the Abercrombie & Fitch case?

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New EEOC Guidelines on Accommodation of Religious Dress and Grooming Practices: A Higher Standard?


"Celtic Cross (#0383)" by regan76

“Celtic Cross (#0383)” by regan76

On March 6, 2014, the EEOC issued new guidelines on what employers must do to accommodate their employees’ religious dress and grooming practices. See EEOC publication titled Religious Garb and Grooming in the Workplace: Rights and Responsibilities.  The agency takes the position that employers must accommodate these religious practices, even when they violate company policies, unless doing so presents an “undue hardship” on the employer’s business.

Specifically, Q&A 6 of the guidelines states:

“Title VII requires an employer, once it is aware that a religious accommodation is needed, to accommodate an employee whose sincerely held religious belief, practice, or observance conflicts with a work requirement, unless doing so would pose an undue hardship.  Therefore, when an employer’s dress and grooming policy or preference conflicts with an employee’s known religious beliefs or practices, the employer must make an exception to allow the religious practice unless that would be an undue hardship on the operation of the employer’s business.”

"Turban Day 2012-15" by Anuraj Singh

“Turban Day 2012-02” by Anuraj Singh

According to the EEOC, employers must accommodate all aspects of religious observance, including not only the well-established religious practices of traditional religions (Christianity, Judaism, Islam, etc.), but also “new, uncommon” practices “not part of a formal church or sect,” and any “sincerely held” beliefs, even where they are not part of a formal church practice and even if the belief seems “illogical or unreasonable to others.” See Q&As 2 and 4.

One tricky issue for employers is the standard of accommodation to which the EEOC will hold employers. Traditionally, the standard for religious accommodation has been that employers need not agree to any accommodation that causes more than a de minimis cost or burden to the employer’s operations. Q&A 6 of the EEOC’s new guidelines pays lip service to retaining this de minimis standard:

“For purposes of religious accommodation, undue hardship is defined by courts as a “more than de minimis” cost or burden on the operation of the employer’s business. For example, if a religious accommodation would impose more than ordinary administrative costs, it would pose an undue hardship. This is a lower standard than the Americans with Disabilities Act (ADA) undue hardship defense to disability accommodation.”

EEOC sealNevertheless, the new EEOC guidelines make it clear that the following cannot be the basis for the employer’s claim of undue hardship:

  • customer preferences (Q&As 5 and 6)
  • co-worker disgruntlement (Q&As 5 and 6)
  • an employer’s desire to use a particular image or marketing strategy (Q&A 10)

If these core business considerations cannot be rationales for objecting to a religious accommodation, then an employer’s operations can in fact be significantly altered by compliance with an employee’s request for an exemption from a dress or grooming policy, contrary to the expressed de minimis standard.

It appears that the only  acceptable “undue hardship” the EEOC will recognize is one which causes and actual impact on safely, security or health. See Q&A 12. And the only example of permissible refusal to accommodate a dress or grooming requirement in Q&A 12 is requiring an employee with a beard to wear two face masks instead of one for hygiene reasons (Example 15). Even prohibiting an employee from wearing a dull knife that is a religious symbol is an illegal denial of religious accommodation (Example 19).

In many instances an employer can acquiesce to an employee’s religiously motivated requests for different dress and grooming standards with little or no hardship, and accommodating these requests is appropriate. Nevertheless, many of the examples given in the EEOC guidelines do not feel like de minimis intrusions into employers’ businesses to me. They feel like they impose a significant risk that the agency will second-guess an employers’ decisions.

And how far should the EEOC’s higher standard of accommodation be allowed to extend? What about religiously motivated speech? The new guidelines do not (yet) speak to anything more than religious dress and grooming accommodations. But there is no rationale that I can see why customer or co-worker objections to dress and grooming accommodations should be prohibited, while objections to words should be allowed.

I was involved in a situation where an employee in a retail operation insisted in answering the phone “In the name of Jesus Christ of Nazareth, this is [XYZ Department Store].” When questioned about this practice, she said that her beliefs required her to always speak in the name of Jesus Christ and to so preface her remarks.

We had many complaints from both Christian and non-Christian customers. After much discussion with the employee and her minister, the retailer ultimately terminated her employment. A court found the termination proper and granted the store summary judgment. But I wonder whether we might have been liable for employment discrimination under these new EEOC new religious accommodation guidelines, no matter how many customers we lost as a result of her statements.

What types of religious accommodation requests have you encountered in the workplace?

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