Tag Archives: Title VII

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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Will Texas Fair Housing Act Case Limit Use of Disparate Impact Analysis in Employment Discrimination Cases?


fheo175I was surprised to realize I haven’t written about disparate impact analysis on this blog before. “Disparate impact” is the legal theory of discrimination that says that covered entities can be liable for statistically disproportionate results of their policies and practices that have an adverse impact on protected classes, even in the absence of any proof that these entities intended to discriminate. If there is a statistical disparity that adversely impacts some group protected by law, then the burden falls on the entity to prove that there is a legitimate business interest for the policy or practice.

1. Disparate Impact under Title VII

Disparate impact has been a valid theory under Title VII since the Supreme Court’s decision in Griggs v. Duke Power Co., 401 U.S. 424 (1971), in which the Court ruled that an employer must justify any neutral policy that disproportionately affects minorities or women adversely. The Court said that Title VII was intended to rectify the consequences of employment practices, not simply discriminatory motives.

The holding of Griggs was limited somewhat in Ward’s Cove Packing v. Antonio, 490 U.S. 642 (1989), where the Supreme Court ruled that plaintiffs must identify a specific practice or policy that adversely affects the protected group, that the employer need only produce some evidence of a business justification for the practice, and that the burden of proof always remains with the employee.

So for over forty years now, employers have dealt with disparate impact cases and have needed to justify any policies that have adverse impacts on women, minorities, older workers, or others protected under the various employment discrimination statutes.

2. Texas Dept. Of Housing v. The Inclusive Communities Project: A Case Under the Fair Housing Act

When I learned that the Supreme Court had taken a case involving the Fair Housing Act, I wondered whether it might have an impact on employment discrimination cases. Both Title VII and the Fair Housing Act permit cases to be brought under theories of either intentional discrimination and disparate impact.

More Perspectives on Health Care ReformThe new case, Texas Dept. of Housing v. The Inclusive Communities Project, is the first Fair Housing Act case to reach the Supreme Court under a disparate impact theory. The Fair Housing Act requires that discrimination be “because of” race, rather than the “adversely affect” language of Title VII, which the Supreme Court has held allows disparate impact statistical analysis. The Court heard oral arguments in the case on January 21, 2015.

The basic issue in the case is whether the 1968 Fair Housing Act only prohibit intentional housing bias, or whether it also prohibit policies that have a negative impact on people in protected classes.  Intentional discrimination is far harder to prove than disparate impact, because motives are not always clear.

In the past, the Obama Administration seems to fear the Supreme Court’s likely handling of disparate impact under the Fair Housing Act. The government has settled two other recent cases.

For a good history of the case, see Lyle Denniston, Argument preview: That housing bias issue is back, SCOTUSblog (Jan. 20, 2015).

Of course, without a decision in the case, it’s hard to know what to think yet. But the oral arguments were interesting.

The Court’s four liberal justices seemed ready to adopt “disparate impact” without any restrictions. Justice Breyer said during oral argument that disparate impact liability under the Fair Housing Act “has been the law of the United States uniformly throughout the United States for 35 years.”

Justice Scalia—typically conservative—wondered whether Congress implicitly adopted the disparate impact theory under the Fair Housing Act when the law was amended in 1988. But he also asked plaintiffs why a statistical disparity should be enough for liability under the Act, if the statutory language requires that housing must be unavailable for a reason related to race. After all, statistical disparities might not be based on race; they merely show a correlation, not causation. And in an earlier employment discrimination case, Ricci v. DeStefano, 557 U.S. 557 (2009), Justice Scalia has seemed dubious about the constitutionality of the disparate impact theory.

For more on Justice Scalia’s comments, see Amy Howe, Justice Scalia keeps both sides guessing in Fair Housing Act case: In Plain English, SCOTUSblog (Jan. 22, 2015).

And as always, Marcia Coyle’s analysis on PBS NewsHour, January 21, 2015, was succinct and clear.

3. What Impact Will the Texas Case Have on Disparate Impact in Employment Cases?

Upon reflection, I think the odds are long that the Texas case will make much difference in employment discrimination cases. First of all, the statutory language is sufficiently different that the Court could well stick with the Griggs v. Duke Power ruling in employment cases. Griggs is a direct precedent in support of disparate impact analysis in employment cases, albeit narrowed by Ward’s Cove Packing.

The second reason for a limited impact is that the Court tends to issues narrow rulings rather than broad, particularly when it is likely to be split philosophically. Even if the Court decides against the appropriateness of disparate impact analysis under the Fair Housing Act, the decision is likely to be a 5-4 ruling (based on the comments of the liberal justices) and is likely to be limited to the Fair Housing Act on its terms.

Third, any employment discrimination cases will have to wend their way through circuit court splits and could take years to reach the Supreme Court. Still, Justice Scalia’s prior invitation is likely to encourage defense counsel in employment cases to start down that path.

What do you think the role of disparate impact analysis should be in employment discrimination cases?

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Workplace Investigations by Outside Counsel – Make Sure They’re Done Right


MP900302920In a June 18, 2013, post on Win-Win HR, entitled Workplace Investigations: $300,000 in Sanctions Highlights Risks of Using Employer’s Regular Counsel, Lorene Schaefer highlighted a case in which an outside law firm’s investigation into a claim of discrimination led to an award of $300,000 in sanctions, plus other penalties against the employer and its law firm. See EEOC et al. v. Spitzer et al

After the Supreme Court’s recent decision in Vance v. Ball State (see the Vance opinion here and my earlier post here), workplace investigations into discrimination, harassment, and other employee claims, will be even more important. After Vance, courts will analyze fewer cases under a strict liability theory. More cases will depend on prompt and complete investigations to avoid findings that the employer was negligent and therefore liable for the bad conduct of the plaintiff’s managers and co-workers.

In the Spitzer case, the outside attorney failed to produce his notes of the investigation during discovery. When the judge learned of this omission, he came down hard on both the defendant employer and on its outside law firm.

I have hired outside counsel to conduct investigations, both when I was in-house counsel and when I was an HR executive. In my consulting life, I have also been the investigator in workplace complaints acting under the auspices of another attorney.

When I hired an outside attorney to investigate, we always discussed whether the case was likely to result in litigation, and whether our usual outside law firm should do the investigation or whether we should hire another attorney for the sole purpose of investigating and potentially testifying at a later trial. If litigation was likely, or if we wanted to reserve our usual firm for trial, we found another attorney to use as the investigator. Only when litigation was less likely, or when we thought prior knowledge of the company was critical to the investigation, did we use our regular trial counsel, knowing that if the case did go to litigation, we would have to bring another firm up to speed to represent us in court.

MP900302921The Win-Win HR article contains an excellent analysis of the Spitzer case and of the legal and tactical issues in workplace investigations. Here is my brief advice for employers:

1.   Make sure your attorney investigator is well qualified to conduct the investigation.

a.   The investigator needs to know the law and get up to speed on your business (to the extent relevant)

b.   The investigator needs to be comfortable interviewing employees at all levels of the organization – complaining party, alleged harassers or discriminators, witnesses, and possibly upper management.

2.   Remember that one primary reason for conducting these investigations is to prepare for later litigation. Keep your litigation strategy in mind from the beginning.

a.   Make sure that any documents created during the investigation are accurate and unlikely to harm your case. (In Spitzer, the attorney notes that were not produced included a note next to one witness’ remarks saying “BAD for US”.)

b.   Also, the investigator should have the personality to make a good witness.

3.   Discuss with your attorney whether he or she should be an investigator or trial counsel in the case. Don’t believe the attorney if he or she wants to be both.

What issues have you seen in using attorneys to investigate workplace wrongdoing?

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Supreme Court’s Upcoming Opinion in Fisher v. University of Texas Could Impact Employers


June is traditionally the month when the Supreme Court issues its blockbuster opinions. Last year, the case with the biggest impact on employers was the Affordable Care Act opinion, in National Federation of Independent Business v. Sebelius, which upheld the health care reform law, albeit by calling the individual mandate a tax, which Congress had refused to do.

This year, the Court’s opinion in Fisher v. University of Texas, is one that could make a difference for employers and their current and future employees. The Court could issue this opinion as early as June 3, but it will come by the end of the month for certain.

The issue in Fisher is whether the Court’s earlier decisions interpreting the Equal Protection Clause in an educational context permit the University of Texas to use race in undergraduate admissions decisions they way they did. Plaintiff Abigail Fisher, a white applicant who was rejected by the University of Texas, says she was the victim of “reverse discrimination,” while the University says that its desires to increase diversity in the student body and to remedy prior discrimination permit the University to use race as a factor in its undergraduate admissions criteria.

Justice Kagan has been recused, so only eight justices will vote in the case.

Middle Managers Squeezed by Change: How to CopeAlthough college admissions and employment actions such as hiring and promotions are different, there could be a spillover effect from the Fisher  opinion into the workplace.  In the past, many employers have looked at the Court’s affirmative action requirements in educational cases to develop their diversity initiatives. To the extent that employers want to increase diversity in their workforce for business reasons, rather than merely to remedy the effects of past discrimination in their hiring practices, the Court’s opinion in Fisher may limit  or, less likely, expand – what employers can do.

Moreover, many employers that are government contractors are required to develop affirmative action plans, and sometimes diversity initiatives, to satisfy Executive Order 11246 and other discrimination regulations.  These affirmative action programs are enforced by the U.S. Department of Labor Office of Federal Contract Compliance Programs (OFCCP). The OFCCP will certainly be bound by the Supreme Court’s constitutional interpretation in Fisher. Employers subject to OFCCP regulations may need to change their affirmative action plans and diversity initiatives to comply with new OFCCP requirements.

Other voluntary diversity programs that employers maintain may also become subject to more scrutiny and litigation by disgruntled employees. There has always been a tension between Title VII of the Civil Rights Act of 1964 and other non-discrimination statutes, which tell employers not to discriminate and which permit claims for reverse discrimination by white and male employees, and the affirmative action requirements of Executive Order 11246, which say that race and gender must sometimes be considered in workplace decisions.

Private employers seeking to promote diversity may be given more leeway than public institutions that are subject to the Equal Protection Clause, but it will be interesting to see how broad the Court’s decision in Fisher will be. Some commentators believe that the Supreme Court will differentiate between affirmative action requirements in the educational context and in the employment context. Those commentators believe the Fisher case “ought to have no impact on Title VII.”

It is true that employment law is largely statutory and is based on Title VII of the Civil Rights Act and similar anti-discrimination laws. Therefore, employers will have to closely analyze the Fisher decision to determine whether it has a spillover effect on employment. However, in my opinion, employers can anticipate that employees and applicants will pursue attacks on diversity initiatives they think have disadvantaged them, until the post-Fisher rules become clear.

For more on this topic, see Affirmative action in employment, by John P. Furfaro, Risa M. Salins & Madeline Stavis, Skadden, Arps, Slate, Meagher & Flom LLP, April 11, 2013, and Race Case Outcome Could Affect Applicant Pool Diversity, by Allen Smith, October 12, 2012.

How do you think the Supreme Court’s opinion in Fisher will impact the future diversity of our workforce?

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Favorite Firing: Can an Employee Be Fired for Calling Someone “a Little B!+$#” ?


MP900444810A new case in Kentucky raises interesting questions about the differences between public and private employers. The Kentucky case involves a bus driver who worked for a school district. The bus driver claims she was fired in violation of the First and Fourteenth Amendments of the U.S. Constitution because of something she said on Facebook. As a public employer, the school district is subject to constitutional limits on how it deals with its employees.

Employees of private employees cannot claim the protection of the First and Fourteenth Amendments. But the myriad of federal and state laws might still permit an employee to sue if a private employer fired the employee in similar circumstances.

All employers should re-assess their social media policies, given recent developments in state legislatures and in the National Labor Relations Board (NLRB).

The Facts: Debora Robinson had been a school bus driver for the Grayson County Board of Education in Kentucky for many years. Robinson sent a private Facebook message to a female student in the Grayson County school district. In this message, Robinson told the student not to bully Robinson’s son.

Further Facebook messages were exchanged between Robinson and the girl, in which both used profanity. In one of the later messages, Robinson referred to the student as “you little bitch.” When the school district learned that Robinson had called the student a “little bitch,” she was fired.

Robinson then sued in the U.S. District Court for the District of Kentucky, claiming that her message had nothing to do with her employment, because she was “off the clock” when she sent it, she used her own computer, and the student had never been a rider on her bus. She alleged that her termination violated her freedom of speech rights under the First Amendment of the U.S. Constitution, her equal protection and due process rights under the Fourteenth Amendment, and also violated similar provisions in the Kentucky Constitution.

The school district told Robinson she was fired for violating school board policy. Robinson’s lawsuit claims there was no written social media policy, nor any guidelines telling employees what they could and could not say in social media communications with students.

This lawsuit was just filed on January 8, 2013, so we don’t know yet how it will turn out. (Quite possibly, the case will settle, and we won’t ever know the outcome.)

But the case raises cautions for all employers – public and private.

The Moral: Employers might be damned if they do and damned if they don’t in these situations.

If Robinson hadn’t been fired, might the student have sued the school district for permitting its employee to harass her? As far as  I know, the student didn’t sue, but such a lawsuit is quite plausible. After all, an employer might well be found to be liable if one employee sends sexually suggestive messages to another employee, and the employer does nothing to stop the harassment. Why wouldn’t a school district be found liable for the conduct of its employee toward a student?

But there are many pitfalls for employers to watch for as they seek to contain employees’ conduct toward others.

Constitution: The Constitutional theories Robinson raises in her complaint apply to all federal government employees, as well as to state and local government employees through the Fourteenth Amendment.

These government employees have protected property rights in their jobs, which governments cannot take away without due process. Due process requires notice and a hearing. If an employee does not have notice of what might be grounds for dismissal, the employee can attack his or her dismissal or other disciplinary actions as unconstitutional.

Even though employees of private companies have no constitutional protections at work, there are many other grounds for private employees to sue in situations similar to Ms. Robinson’s.

Federal Law. First, there are federal nondiscrimination statutes such as Title VII of the Civil Rights Act, the Age Discrimination in Employment Act, and the Americans with Disabilities Act. Private employers can have policies that say an employee may not use profanity on or off the job, so long as that policy is enforced in a non-discriminatory fashion. However, if only minorities or women or foreign nationals are fired for violating the policy, then the terminated employees have good claims for employment discrimination.

State Law. Many state laws also protect employees from dismissal unless their conduct is job-related.  For example, in California, Labor Code Section 96(k) provides that employees may not be disciplined for lawful conduct during non-work time away from the workplace. Some other states have similar laws. Laws in this area vary widely state by state, and each state has different nuances and interpretations in its statutes.

NLRB.  Recent developments at the National Labor Relations Board attempt to limit how even non-union employers can discipline employees for off-work behavior, including their use of social media.

For all these reasons, both public and private employers should have clear policies on employees’ conduct away from the workplace, including use of social media and other communications tools.

Most employees today have access to email and social media tools, which they may well use to communicate with other employees and with customers and members of the public they encounter during their work days.

Employers are only one text message or Twitter or Facebook post away from potential liability for what their employees do; they should be clear on their expectations for how employees communicate in ways that might impact the workplace.

Employers should involve experienced Human Resources staff and employment attorneys in the drafting and review of these policies. It is important to be sure the employer is not overreaching under the state and local laws where the employer is located.

Meanwhile, we will watch to see whether the Robinson case determines whether employees in Kentucky can call someone a “little bitch” with impunity.

How far do you think employers should be able to control their employees’ conduct? Does it make a difference whether the person complaining is a customer or user of the employer’s services (as the student was in the Robinson case?)

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Please send me ideas for stories on workplace terminations for this series. If you have an interesting situation, please email me or leave a comment below. But please disguise the facts to protect the innocent (and not-so-innocent) unless the situation is well-publicized, and then include a link to support your story.  I will only publish verified stories.

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Employer Liability for Supervisors’ Actions


OOn November 26, 2012, the U.S. Supreme Court heard arguments in a case that raises the issue of who is a supervisor under Title VII of the Civil Rights Act of 1964. The answer will determine the extent to which an employer is vicariously liable for harassment in the workplace. This might seem like a simple question, but there are many definitions of “supervisor” under various employment laws and the common law.

The case in question, Vance v. Ball State University, involves an African American employee, Maetta Vance, who alleges another employee, Saundra Davis, subjected her to a racially hostile work environment.  The employer, Ball State University, investigated, but could not reconcile the two employees’ competing version of events, and therefore did not discipline Davis. Ball State clearly took prompt action to investigate, even though its response was not what Vance wanted.

Vance sued. The lower courts dismissed the case, finding that Davis was not Vance’s supervisor.  According to these lower courts, Davis did not fit the definition of a “supervisor,” because she did not have the power to hire, fire, demote, or discipline Vance. Therefore, the university was not automatically liable for Davis’s actions, and its prompt investigation absolved it of any negligence.

Vance appealed to the Supreme Court, claiming that Davis was in fact a supervisor and therefore an agent of Ball State, that the university was strictly liable for any actions by Davis, and that Vance should be permitted to pursue her lawsuit.

The Equal Employment Opportunity Commission (EEOC) says a supervisor is anyone who has authority to direct daily work activities — like making working assignments and schedules — or to recommend employment actions. It doesn’t matter whether the person can hire or fire or discipline. Many Circuit Courts of Appeals have accepted this broad definition of “supervisor.”

The last time the Supreme Court addressed employer responsibility for harassment by its employees was in Faragher v. City of Boca Raton, 524 U.S. 775 (1998), and Burlington Industries Inc. v. Ellerth, 524 U.S. 742 (1998). In those decisions, the Supreme Court held that in cases of harassment under Title VII, employers are vicariously liable for acts of supervisors, who are deemed to be agents of the employer and to therefore act in the employer’s stead.

By contrast, the Court said that employers are not automatically liable for the actions of non-supervisory employers. For the employer to be liable for harassment by non-supervisors, the employer must be found to have known about the harassment and not taken appropriate action to correct it and to prevent future harassment.  The employer must have appropriate and well-communicated channels for reporting harassment, investigate promptly, and take appropriate corrective action when harassment is found.

Unfortunately, employment law today is a cobble of statutory and common law concepts. Statutes such as Title VII, the Americans with Disabilities Act, the Age Discrimination in Employment Act, the Fair Labor Standards Act, and a myriad of other federal, state and local laws, contain some definitions. But behind these statutes stand common law cases on “master and servant” and “agency.” The master and servant of common law England each owed duties to the other. Agents owed duties to their principals. Those concepts often still apply in employment law today, as the Supreme Court held in Farragher and Burlington Industries. Thus, under the common law, it made sense to differentiate between the acts of managers (who could be “agents”) and other employees.

In the modern corporate workplace, however, almost no individual employee can act alone, particularly not in hiring, disciplining, and firing other employees. Even high-level managers with the title of Vice-President must involve Human Resources managers in making employment decisions under most corporate employment policies. These policies are typically well-documented and communicated. Employees are well-aware that if they have complaints about their managers, they should talk to HR.  Why, then, should a rogue VP make a company automatically liable for harassment, even when the employee has not filed a complaint with HR?

If an employer has good policies and follows those policies to investigate and respond to claims of discrimination and harassment (including making the employee whole for costs and losses arising from the discrimination or harassment), the company is doing all it can. There will be bad actors in any organization, and firing them should suffice.

Let’s hope the Supreme Court looks at the realities of the modern workplace – which has been developed in response to the many statutes and court decisions protecting employees – in deciding when a corporation should be automatically responsible when managers violate policy.

What do you think? Please leave a comment below.

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