Tag Archive for: Title VII

Tenth Circuit reinstates some claims by a worker but affirms dismissal of others

In a case involving rather significant allegations of misconduct, the Tenth Circuit parsed through the evidence to hold, on summary judgment, that some of the worker’s claims were properly dismissed but other should have been allowed to proceed.

On her claim of discrimination, her case included a claim that an officer of the company said he felt she was “building a case” against the company and was “more trouble than she’s worth,” that he called her and another African-American female employee “Black b*s from Atlanta” and “resident street walkers.” However, the Tenth Circuit rejected the claim because it found no evidence that the officer was a decisionmaker or that he had any input in the adverse employment decision affecting her.

On her claim of retaliation, though, the Court noted that the same officer had allegedly laughed and said, “Let her try,” when the possibility of her re-applying for promotion in the future was discussed.

The court analyzed a number of other claims and multiple other allegations of specific evidence, including an incident involving rather graphic allegations of sexual harassment at a party attended by plaintiff and her co-workers, which the Court held was not sufficient to support a claim because the party occurred well before the time period for filing a charge of discrimination (300 days). But, the Court noted she claimed that she’d been asked multiple questions at work about her breasts, been subjected to “sexual banter,” on a near “daily basis,” much of which was corroborated by other female workers. The Court held this was sufficient to support claims of hostile work environment and constructive discharge.

The case is Ford v. Jackson National Life Ins. Co.

Seventh Circuit Affirms Employer’s Right To Provide Workers Comp Light Duty But Refuse To Provide Light Duty To Pregnant Workers

In EEOC v. Wal-Mart Stores East, L.P., the Seventh Circuit held that an employer need not offer light duty to pregnant workers, even though it offers the same to employees who are on workers compensation, so long as the company does not also offer light duty to those who are ill or injured off-the-job. In so doing, the Seventh Circuit looked to the Supreme Court’s 2015 decision in Young v. UPS, that held, without further explanation, that pregnant workers must be offered light duty if it is offered to other employees with similar restrictions. The Seventh Circuit distinguished a 2016 Second Circuit case, Legg v. Ulster County, that had required light duty for pregnant workers even though it was otherwise reserved for workers comp cases, because, there, the Seventh Circuit held the employer had offered “confused and inconsistent rationales” for its decision to reserve light duty for workers comp cases. The Seventh Circuit didn’t explain why that employer’s rationales were “confused and inconsistent,” whereas, this employer’s were clear and persuasive, except to note that this employer explained that reserving light duty for workers compensation cases helped it to reduce “costs” and “legal exposure,” given the state of Wisconsin’s statutory schemes governing workers compensation claims and the incentives provided therein for light duty.

Tenth Circuit expands possible successor liability for a purchaser especially if their purchase agreement contains a due-diligence clause

Generally, the purchase of a business can be done in two ways: (1) a so-called “equity deal” where the stock in a corporation (or other ownership interest if the business is not a corporation) is acquired or (2) an “asset deal” in which only the assets of a business are acquired. In an equity deal, the business itself never changes, just its owners, so the business remains liable usually for whatever its liabilities were prior to the transaction; in other words, the acquisition doesn’t affect the business, or its liabilities, just its ownership. Partially for that reason, asset deals are often pursued instead. In an asset deal, the goal is to acquire only the assets of the business, so the buyer can start its own new business fresh. Recognizing that might not be fair to creditors (including victims of wrongdoing by the business) if for example the “new” business is anything but fresh and is instead a simple continuation of the old business even in name, the courts have long imposed a test for successor liability.

In a recent decision titled EEOC v. Roark-Whitten Hopitality 2, LP, the Tenth Circuit summarized that test, as follows:

The longstanding common law rule outside of the Title VII context has been that “where one corporation sells or otherwise transfers all of its assets to another corporation, the latter is not liable for the debts and liabilities of the transferor.” W. Tex. Ref. & Dev. Co. v. Comm’r of Internal Revenue, 68 F.2d 77, 81 (10th Cir. 1933) (citing federal and state cases). There are “four well recognized exceptions” to this general common law rule. Id. Those include: “(1) [w]here the purchaser expressly or impliedly agrees to assume such debts; (2) where the transaction amounts to a consolidation or merger of the corporations; (3) where the purchasing corporation is merely a continuation of the selling corporations; and (4) where the transaction is entered into fraudulently in order to escape liability for such debts.”

When considering whether to impose successor liability, the Tenth Circuit has adopted nine factors, none of which alone should generally be controlling but all of which should be weighed in context of a particular case’s circumstances:

1) whether the successor company had notice of the charge,

2) the ability of the predecessor to provide relief,

3) whether there has been a substantial continuity of business operations,

4) whether the new employer uses the same plant,

5) whether he uses the same or substantially the same work force,

6) whether he uses the same or substantially the same supervisory personnel,

7) whether the same jobs exist under substantially the same working conditions,

8) whether he uses the same machinery, equipment and methods of production and

9) whether he produces the same product.

As one sees, the first factor is whether the successor had “notice.” The Tenth Circuit has cautioned this factor is not controlling, alone, either way, and, further, that in deciding whether “notice” existed, courts should not limit the evidence to cases of actual notice.

In Roark-Whitten, according to the Court’s decision, the sales agreement at-issue contained “a due diligence provision that afforded SGI thirty days in which to investigate, in pertinent part, the liabilities of the business.” The plaintiff claimed that, if the purchaser had properly exercised due diligence, it would have learned of the employment law liability exposures at-issue.

Despite a strong dissent to the contrary, a 2-judge majority in this panel decision ruled that the plaintiff had adequately pled sufficient facts against at least one of the purchasers at-issue. The case contained allegations of especially unusual and vivid employment law violations, as well as relatively unusual allegations of fact regarding the diligence process itself, and a rather unique and complicated set of facts involving the transactions that were at-issue. Given the dissent, it is arguable that this 2-judge panel holding is likely to be viewed as limited to the constellation of alleged facts at-issue, especially since the case was decided on a motion to dismiss, meaning the issue was only whether the claims were sufficiently pled to start the lawsuit. In other words, the Tenth Circuit did not hold that as an evidentiary matter, issues of fact were raised, must less did its ruling suggest liability might exist.

EEOC issues guidance on federal anti-discrimination laws and employees who are caregivers outside work

The EEOC has issued a guidance explaining that employees who act as “caregivers” for their family and friends may be protected by existing anti-discrimination laws. The EEOC does not define the phrase “caregiver” and, therefore, presumably intends it in a general dictionary sense. In other words, readers should note the EEOC is not using that phrase in this guidance to mean medical or other professional caregivers. The EEOC notes that being a caregiver is not itself protected by federal anti-discrimination laws like Title VII, the ADA and the ADEA. Rather, the EEOC cautions, caregivers often fall into those laws’ other existing protected classes.

Caregiver discrimination violates federal employment discrimination laws when it is based on an applicant’s or employee’s sex (including pregnancy, sexual orientation, or gender identity), race, color, religion, national origin, age (40 or older), disability, or genetic information (such as family medical history).  Caregiver discrimination also is unlawful if it is based on an applicant’s or employee’s association with an individual with a disability, within the meaning of the ADA, or on the race, ethnicity, or other protected characteristic of the individual for whom care is provided.  Finally, caregiver discrimination violates these laws if it is based on intersections among these characteristics (for example, discrimination against Black female caregivers based on racial and gender stereotypes, or discrimination against Christian female caregivers based on religious and gender stereotypes).

The EEOC explains it has issued this guidance because many caregivers are facing challenges due to the COVID-19 pandemic.

The COVID-19 pandemic has significantly impacted employees’ work and personal obligations, creating concurrent and, at times, competing job and caregiving demands.  Abrupt changes in work locations, schedules, or employment status required millions of Americans with caregiving responsibilities for children, spouses, partners, older relatives, individuals with disabilities, or other individuals to quickly adjust to vastly changed circumstances.

Even as the pandemic evolves, the challenge of juggling work and caregiving obligations remains.  Some workplaces, classrooms, and care facilities may operate on hybrid schedules, request or require employees to work extra shifts, or close with short notice.  Employees may need to quarantine unexpectedly if they or household members are potentially exposed to or infected with COVID-19.  Some employees who live in households with persons who are immunocompromised, children too young to be vaccinated against COVID-19, or other vulnerable individuals may be reluctant to return to the workplace.

The EEOC discusses a number of ways it believes that an employee’s off-duty caregiver activities and obligations can implicate each of the existing protected classes under federal anti-discrimination laws.

Tenth Circuit expands ability to file retaliation claims under Title VII

Title VII is the nation’s leading anti-discrimination law. It also prohibits employers from retaliating against employees who oppose unlawful acts such as discrimination. But what if the employee is opposing an act that isn’t actually unlawful discrimination? What constitutes an unlawful discriminatory act prohibited by Title VII can be a surprisingly complicated legal issue.

In a recent case, titled Reznik v. inContact, Inc., the plaintiff sued for retaliation because, she claimed, she’d been retaliated against for opposing discrimination against foreigners who worked for the company in that other country (or as the Court said “aliens”). However, being a foreigner who works in a foreign country is not itself a protected class under Title VII. However, the Tenth Circuit held the plaintiff wasn’t required to prove she opposed an actual violation. Rather, the test is whether the employee both subjectively and objectively believed the practice was prohibited by Title VII.  To prove her subjective believe, she needed to prove she herself really had believed it was prohibited by Title VII. To prove it was the objective element, she needed to prove that a reasonable employee would have thought it was prohibited by Title VII.

We adopt an objective reasonableness inquiry that considers the law against what a reasonable employee would believe, not “what a reasonable labor and employment attorney would believe.”

Because Title VII protects both “race” and “national origin,” a reasonable employee, the Tenth Circuit held, might think those protected classes include being a foreigner who works in a foreign country.

The decision drew a sharp dissent that would have held the company was entitled to rely on the clear language of Title VII, which does not protect foreigners working in a foreign country.

The statutory text of Title VII expressly excludes aliens abroad. 42 U.S.C. § 2000e-1(a). Thus, no employer reasonably would have understood that Title VII prohibited the conduct Plaintiff opposed. Measuring one employee’s subjective good-faith belief that Title VII prohibits an employer from making offensive comments about aliens abroad against the text of Title VII, which precludes application to aliens abroad, I would hold that Plaintiff lacked an objectively reasonable belief that Defendant’s conduct constituted unlawful discrimination and affirm the district court.

Because this distinction is both significant and poses a clear question of law that has not been addressed by the Supreme Court, it is the kind of issue that may, if appealed, draw either reconsideration by the full bench of the Tenth Circuit and/or review by the Supreme Court. Unless either occurs, the majority opinion stands as law in the Tenth Circuit.

Tenth Circuit narrowly applies Joint Employer doctrine

In a narrow application of the Joint Employer doctrine, the Tenth Circuit rejected claims of sexual harassment by the plaintiff who worked for a construction and maintenance company that had contracted with another company. She claimed that three of the employees of that other company sexually harassed her. Since that other company was not her actual employer, she claimed it was nonetheless liable as a Joint Employer along with her actual employer.

She claimed that the other company’s workers frequently told her what to do and how to do it. She claimed that she believed that they had the authority to fire her or at least have her fired if she did not follow their direction. The Tenth Circuit rejected her claims holding that “even if (she) believed that (the other company’s employees) could fire her, her statements do not support the claim that (they) had such authority.” The Court noted that the other evidence showed that other company did not hav ethe authority to fire her, discipline her, determine her pay. It did not oversee her payroll taxes.

Her statement that Plains Defendants supervised some aspects of her work would not, under Knitter or New Mexico state law, overcome the overwhelming evidence that C3 was an independent contractor. In short, even if discovery could substantiate every assertion 41 in Ms. Adams’s affidavit, Plains Defendants would be entitled to summary judgment under Knitter and New Mexico state law.

 

 

Tenth Circuit takes expansive view of remedies available in Title VII claims

In a recent decision, the Tenth Circuit took an expansive view of the remedies available to a plaintiff in a Title VII claim, including on the following points of law:

  1. The court held that reinstatement is the strongly preferred remedy, instead of front pay. Often in cases, especially after the tribulations of a trial, courts have been prone to enter a monetary award of front pay, rather than ordering that the employee be re-hired, but the Tenth Circuit held that reinstatement should be the “preferred remedy” and should be ordered absent “extreme hostility” between the parties. Whether extreme hostility exists should be gauged by asking whether there are “objective” reasons that would make it “unworkable.” Objective reasons do not depend on the parties’ own subjective feelings, especially not the defendants’. For example, in the case before it, the court rejected as “far short” of sufficient the defendants’ argument that the litigation tactics employed by the plaintiff and their attorney in the case had been “unfair.” Likewise coworker dislike of the plaintiff is not generally enough to establish “extreme hostility,” nor is management’s “speculating in general and conclusory manner” that the plaintiff would not be welcomed back.
  2. The court clarified that an order of reinstatement does not block an award of front pay. Since back pay is awarded for the period of time from wrongful termination until judgment is entered, front pay should be awarded for the gap going forward between the period of time starting with the entry of judgment until reinstatement.
  3. The court held that, when determining the proper remedy, a plaintiff’s award should not be docked for failure to mitigate if the plaintiff turned down work that was not “substantially equivalent.” While the defendant need not prove the plaintiff turned down a job that was “virtually identical,” the defendant must at least prove the turned-down job was “substantially equivalent,” in order to terminate liability for lost pay and reinstatement.

NLRB General Counsel warns, if OSHA rule re vaccine-or-test becomes active again, unionized employers will have duty to give notice and opportunity to bargain over discretionary aspects of the rule

The NLRB issued Memorandum OM 22-03 opining that, if OSHA’s vaccine-or-test rule implementing President Biden’s mandate for employers of 100 or more is ever unfreezed by the courts, then employers with unionized workplaces will have a duty to give their unions notice and an opportunity to bargain. While companies cannot be required to negotiate over whether to comply or any nondiscretionary aspects of the rule, they will be required to give notice and an opportunity to bargain over discretionary aspects of the rule.

Although the General Counsel does not offer advisory opinions and each case stands on its own facts, the General Counsel’s position is that covered employers would have decisional bargaining obligations regarding aspects of the ETS that affect terms and conditions of employment—to the extent the ETS provides employers with choices regarding implementation.

Many aspects of OSHA’s now-frozen rule remain unclear, but this seems to include the items specifically mentioned by OSHA in its rule and its preface as being subject to potential collective bargaining:

  • Whether the employer will adopt a mandatory vaccine-or-test policy or OSHA’s permitted alternative policy that would permit employees to opt out of vaccines and instead wear masks and be tested.
  • Whether to adopt one kind of policy for unionized workers even though another was adopted for non-union workers.
  • Whether employees will bear some or all of the costs of vaccines, masks, tests, etc.
  • How much paid leave will be provided to be vaccinated.
  • How much paid leave will be provided to recover.
  • How much paid leave, if any, will be provided for time off when employees who test positive are removed from work.
  • Whether any additional safety measures will be taken related to COVID-19 in the workplace.

Employers of 100 or more with unionized workplaces will need to continue to monitor developments in the courts and be prepared to provide notice and an opportunity to bargain if the OSHA rule is ever unfreezed by the courts.

White House announces extension of deadline for government contractors to implement vaccine mandate

When it announced the release of OSHA’s ETS implementing the President’s vaccine mandate for employers of 100 or more, the White House announced the deadline for government contractors to mandate that employees would need to be vaccinated would be extended from December 8, 2021 to January 18, 2022. Note: That will the deadline for employees to be “fully vaccinated,” meaning the deadline to actually receive their full-final vaccine injection will be 14 days earlier January 4, 2022.

Because the extension of this deadline was implemented by way of an announcement from the White House, not through OSHA’s ETS itself, the Fifth Circuit’s freezing of the ETS would not seem to affect this extension.

However, it is noted that the Federal Safer Work Place Task Force has yet to update its own documentation to reflect this new extension, and it was announced only in that relatively informal announcement from the White House; therefore, it is arguably possible that the White House may, especially after the ETS was frozen, wish to pull back on this delay. Employers should stay tuned to developments at the federal level.

Fifth Circuit freezes new OSHA vaccine rule

Within 24 hours after OSHA issued its new ETS implementing President Biden’s vaccine mandate for employers of 100 or more, one federal court — the Fifth Circuit of the United States Court of Appeals — has already frozen its implementation. Without further explanation, the Fifth Circuit noted that the ETS raises “grave statutory and constitutional issues.” President Biden’s other vaccine mandates including the government-contractor mandate are not affected by this ruling.

OSHA’s vaccine mandate rules

On 11/5/2021, OSHA issued its ETS (Emergency Temporary Standard) implementing President Biden’s vaccine mandate for employers of 100 or more. (OSHA published a separate ETS for healthcare settings, not addressed in this alert.)

OSHA’s information page regarding the new ETS is here. It includes a 28-minute webinar by OSHA, a FAQ sheet by OSHA, a fact sheet by OSHA, a general summary by OSHA, as well as a summary by OSHA of the reporting requirements.

Effective Date, Compliance Dates, Litigation

The ETS was effective as a statement of federal law immediately on its publication 11/5/2021. General compliance is required by 12/5/2021, to include the policy requirements, mask mandate, recordkeeping and reporting. The sole exception is that mandating vaccines/tests in lieu of vaccination will be required no later than 1/4/2022. Someone who receives their full-final injection on or after 12/21/2021 will not have to be tested in the 2 weeks thereafter as they wait to become fully vaccinated.

OSHA expects the ETS will remain in effect for 6 months after 11/5/2021, though OSHA cautions it may shorten or extend the ETS’ duration.

Because the ETS’ effective date as law was immediate on its publication 11/5/2021, litigation over it commenced almost immediately that same day. At the time of this posting, more than half of the states have filed a variety of lawsuits seeking to invalidate the ETS. Unless a court rules otherwise, though, employers should continue to work towards compliance.

Coverage

When considering coverage, the ETS reaches only some employers, and at those employers, only some employees.

Covered Employers

Employers of 100 or more “at any time the (ETS) standard is in effect” are covered by this ETS. The 100 is counted company-wide, not by location. When counting the 100, all employees are covered, whether full-time or part-time. Employees are counted by the head not FTE; in other words, two part-time employees each working half-time (20 hours per week) do not count as 1 even though together they constitute 1 FTE, rather they count as 2. True independent contractors do not count towards the 100, unless the company is a joint employer. In its preface to the ETS, OSHA offers the following examples (quoting list by OSHA):

  • If an employer has 75 part-time employees and 25 full-time employees, the employer would be within the scope of this ETS because it has 100 employees.
  • If an employer has 150 employees, 100 of whom work from their homes full-time and 50 of whom work in the office at least part of the time, the employer would be within the scope of this ETS because it has more than 100 employees.
  • If an employer has 102 employees and only 3 ever report to an office location, that employer would be covered.
  • If an employer has 150 employees, and 100 of them perform maintenance work in customers’ homes, primarily working from their company vehicles (i.e., mobile workplaces), and rarely or never report to the main office, that employer would also fall within the scope.
  • If an employer has 200 employees, all of whom are vaccinated, that employer would be covered.
  • If an employer has 125 employees, and 115 of them work exclusively outdoors, that employer would be covered.
  • If a single corporation has 50 small locations (e.g., kiosks, concession stands) with at least 100 total employees in its combined locations, that employer would be covered even if some of the locations have no more than one or two employees assigned to work there.
  • If a host employer has 80 permanent employees and 30 temporary employees supplied by a staffing agency, the host employer would not count the staffing  agency employees for coverage purposes and therefore would not be covered. (So long as the staffing agency has at least 100 employees, however, the staffing agency would be responsible for ensuring compliance with the ETS for the jointly employed workers.)
  • If a host employer has 110 permanent employees and 10 temporary employees from a small staffing agency (with fewer than 100 employees of its own), the host employer is covered under this ETS and the staffing agency is not.
  • If a host employer has 110 permanent employees and 10 employees from a large staffing agency (with more than 100 employees of its own), both the host employer and the staffing agency are covered under this standard, and traditional joint employer principles apply.
  • Generally, in a traditional franchisor-franchisee relationship, if the franchisor has more than 100 employees but each individual franchisee has fewer than 100 employees, the franchisor would be covered by this ETS but the individual franchises would not be covered.

Covered Employees

All employees of a covered employer are covered by the ETS, except:

  • Employees working in workplaces covered by President Biden’s Government Contractor mandate. Such employees will be protected exclusively by the Government Contractor mandate.
  • Employees working in healthcare settings covered by OSHA’s Healthcare ETS.
  • Employees who do not report to a workplace where others are present.
  • Employees who work from home while they are working from home. However, if the employee “switches back and forth” working between home and in a workplace where others are present, then the employee becomes covered by the ETS while in the workplace. For example, that individual would have to comply with the following vaccination/testing/mask requirements while in the workplace.
  • Employees who work “exclusively” outdoors. However, if an individual spends more than “de minimis” time with others while not outdoors for work, then the ETS would apply. OSHA gives as examples of covered workers outdoor-workers individuals who carpool at the beginning and end of the shift, who share a vehicle while at work, who spend time in a jobsite trailer while at work. OSHA says “de minimis” time in a shared space with appropriate protects does not render the outdoor-worker covered, and gives as an example a worker who uses a properly ventillated multi-stall bathroom.

Requirements

Once a company is a covered employer with a covered employee, the requirements are manifold, including the following:

  • The company must issue a written policy(-ies) that
    • Either,
      • mandates vaccination for all current and new employees, permitting only the following exemptions:
        • Individuals for whom vaccination is medically contraindicated,
        • Individuals for whom it is medically necessary to delay vaccination,
        • Individuals who qualify for religious or disability accommodations.
        • And for each such individual, the company must require by written policy that they submit instead to weekly testing in lieu of vaccination.
        • And, mandates the wearing of masks in the workplace by unvaccinated individuals, whether or not exempted from the vaccine requirement. In other words, even when exempt from the vaccine mandate by reason of a federal required accommodation or one of the other permitted exemptions above, that exempt individual is only exempt from vaccination. They must undergo weekly testing instead. Also they must wear masks in the workplace even if unvaccinated individuals need not.
      • Or permits vaccination as above so that the worker need not wear a mask, but allows employees who choose not to be vaccinated to undergo weekly tests and wear masks instead without having to be vaccinated. Again though an individual who is permitted not to be vaccinated must not only be tested but also wear a mask even when vaccinated individuals are not required to be masked.
      • Employers may choose either approach.
    • Mandates compliance with other CDC workplace requirements, particularly regarding social distancing.
    • Mandates disclosure to the company of each individual’s vaccination status. The ETS specifies what documentation is sufficient to include the standard vaccine card that we have become familiar with, but it generally does not include, except in limited circumstances, self-attestation. Proof of so-called “natural immunity,” in other words documentation of a prior infection that produced antibodies, is not sufficient.
      • Employers who have already obtained and retained proof of vaccination status may be exempt under certain conditions specified in the ETS, from having to re-request vaccination status.
    • Provides paid time off (or sick leave) to be vaccinated then to recover.
    • Requires individuals to promptly notify the company of a positive test.
    • Informs individuals of certain facts regarding COVID-19 and vaccines.
    • Warns violations will result in discipline up to and including discharge.
  • The company must generate a roster of employees reflecting vaccination status.
  • The company must remove individuals from the workplace when they contract/test positive for COVID-19.
  • The company must meet certain recordkeeping requirements.
    • This includes keeping all vaccination and testing records as confidential medical records.
  • The company must meet certain reporting requirements arising out of workplace-related COVID-19 exposures.

As noted above, the testing mandate is delayed until 1/4/2022, companies will need to comply with the other requirements by 12/5/2021, including by adopting the required policy(-ies), requiring masks, generating the required roster, removing infected individuals for the required periods, and complying with the recordkeeping and reporting requirements.

Sample Policies

OSHA has provided a sample policy mandating vaccination and a sample policy mandating masks and testing in lieu of vaccines.

Either-Or

As noted, employers have a general requirement to implement a policy that mandates vaccination. However, employers may opt instead for a policy that mandates vaccination but permits instead testing/masks/etc. in lieu of vaccination. That decision is left to the company’s discretion, and a company can choose one approach or the other, or the company can choose one approach for one workplace, one group of workers in that workplace, one group of workers in one portion of the workplace, etc. In other words a company has the right to adopt the vaccine-mandate approach for all its workers as OSHA urges, or to mix-and-match as the company determines. Again though, in all situations where a person is not required to be vaccinated, they must be required to wear a mask, test weekly, etc.

OSHA recognizes there may be employers who develop and implement partial mandatory vaccination policies, i.e., that apply to only a portion of their workforce. An example might be a retail corporation employer who has a mixture of staff working at the corporate headquarters, performing intermittent telework from home, and working in stores serving customers. In this type of situation, the employer may choose to require vaccination of only some subset of its employees (e.g., those working in stores), and to treat vaccination as optional for others (e.g., those who work from headquarters or who perform intermittent telework). This approach would comply with the standard so long as the employer complies in full with paragraph (d)(1) and (d)(2) for the respective groups.

Testing

Employees who are allowed not to be vaccinated must undergo weekly testing. This is true whether they are allowed not to be vaccinated due to a religious accommodation, disability accommodation, or as part of the employer’s decision to permit testing in lieu of vaccination. Such individuals must provide the documentation of each negative test within 7 days. The type of testing is specified. No test will be sufficient if it is both self-administered and self-read.

Employees may be required to locate their own tests, have their own tests administered, on their own time and at their own cost. OSHA acknowledges this will be a significant burden but expressly states that it crafted the rule to incentivize workers not to elect testing in lieu of vaccination.

As mentioned above, requiring employers to pay for workplace protections makes it more likely that employees will take advantage of that protection, and in this ETS, OSHA intends to strongly encourage employees to choose vaccination, not regular COVID-19 testing. Because employees who choose to remain unvaccinated will generally be required to pay for their own COVID-19 testing, this standard creates a financial incentive for those employees to become fully vaccinated and avoid that cost.

Tests that show the person has so-called “natural immunity,” in other words, tests that for example confirm an unvaccinated person has antibodies from prior infection are not sufficient to meet the requirement for weekly testing, nor do they exempt the person from the need for vaccination.

Some exceptions exist. For example a worker who has tested positive for COVID-19 cannot be required to provide such weekly tests thereafter for 90 days.

OSHA reminds employers that other laws may apply, so that when an employer who chooses for example to permit the worker to undergo testing during work hours or in the workplace (or even to be vaccinated during work hours or in the workplace), then that employer may have subjected itself to a requirement under wage-hour laws, such as FLSA, to pay for such time.

Masks

The kind of mask, face covering, etc., that is permitted is specifically laid out by OSHA in its ETS. It does not include the more informal kinds of coverings we’ve become used to seeing such as neck buffs. It also does not include an otherwise acceptable mask when worn with the nose or mouth exposed. Employers must ensure that workers who are required to wear masks actually wear them such that they cover the person’s nose and mouth.

Employers need not provide masks to unvaccinated individuals. Employers need not pay for masks. Employers need not form-fit masks.

Unvaccinated individuals need not wear a face covering for the limited time it takes to eat or drink or while alone in a room with proper physical protections, such as closed door, ventilation, etc.

Employees may choose to wear more protective types of masks, such as respirators, if they choose; likewise, fully vaccinated individuals must be allowed to wear masks and face coverings if they would like, even though their vaccination status relieves them of the need to do so.

Paid Time-Off (PTO) or Sick Leave

A reasonable amount of paid time-off (PTO) or sick leave must be provided to be vaccinated and to recover.

To be vaccinated, the time off cannot be substituted with other paid time-off (PTO, vacation or sick leave that the employee might have. It must be fresh paid time off on top of whatever other time off the employee might have accrued. However, it can be capped at 4 hours, even if in a given location it will take the worker longer.

Paid time off to recover after the vaccine can be provided in the form of already-accrued PTO/vacation/sick leave, unless the individual has no such time available, in which case, even if the individual had such a policy available to them but has just used it all, additional fresh time must be provided for recovery. The ETS does not have a formal cap for recovery time, but in its preface, OSHA says it presumes no more than 2 days is reasonable.

Employers need not pay employees who have already been vaccinated for such times. The paid time off provisions are not retroactive.

Employers need not pay other costs related to vaccination, even travel costs for employees in remote locations.

Removal from the Workplace Following Positive Test

As noted, the company’s policy must require workers to promptly report a positive COVID-19 test. This is true whether the test was conducted as part of the weekly test-in-lieu-of-vaccine requirement or otherwise. For example, a non-symptomatic worker who experiences a positive test as part of their personal travel plans (who has to be tested for example prior to boarding a flight to a foreign country for vacation) would have to report the positive.

Any individual who has COVID-19, including as confirmed by a positive test, must be removed from the workplace. Under certain conditions they might be allowed to work not around anyone else, such as from home.

Employees may not be allowed to return to work until:

  • A negative nucleic acid amplification test (NAAT) that follows a positive antigen test.
  • The employee completes then-current CDC guidelines for isolation, which at this time are:
    • If the employee has no symptoms, 10 days following their positive test,
    • Or, if the employee has had symptoms, the later of 10 days following the onset of symptoms, 24 hours without a fever (unmedicated) and improving other symptoms (not necessarily including loss of taste or smell, which can last much longer),
    • Or, if the employee is released to return to work by a licensed healthcare provider.

Employers are not required — unless otherwise required — to pay for time away from work, though employees may of course use such time as they may have, including PTO/vacation/sick leave. OSHA notes that nothing in the ETS prohibits employees from claiming such time under workers comp laws if the employee can otherwise establish an entitlement to a work-related exposure workers comp claim.

Preemption of State and Local Laws, State OSHA Plans

This ETS is implemented as a law with what is called field preemption. Therefore, it preempts all less-strict or contrary state and local laws. It specifically preempts therefore state laws that conflict with the Biden vaccine mandates, prohibit vaccine passports in the workplace, and prohibit vaccination inquiries in the workplace. OSHA expressly notes this its ETS invalidates laws in at least Arkansa, Arizona, Florida, Montana, and Texas.

States that have their own state OSHA plans and their own state OSHA-type agencies are now required to develop and implement their own variations of the ETS, which must be no less protectful than OSHA’s. State plans must be approved by OSHA itself.

Production of Required Records

Employers must be prepared to produce its policies and roster within 4 hours of request by OSHA, and within end of next business day of a request by an employee or their representative (generally, their union). That roster should reflect employees broken down by their workplaces. Upon request by the Secretary of Labor, all other documents related to this ETS must be provided no later than end of next business day.

Cost of Compliance?

In perhaps the greatest understatement of all time, OSHA anticipates the cost of complying with its ETS, per covered employer, on average across all industries, will be $11,298, for a total nationwide cost of $2,981,347,368. In other words, even at an inconceivable unrealistic low of $11,298 per company, OSHA concedes its ETS is likely to cost $2.9-billion.

Those numbers do not include costs incurred by employees, for example, for testing in lieu of vaccination, which may cost on average $100 per test and as noted above are required weekly for such individuals. In other words, an individual who seeks an exemption from the vaccine mandate due to religious reasons may be coming out of their own pocket to pay more than $2,500 for testing over the course of the ETS’ expected 6-month lifespan, with additional expenditures to ensure they are always wearing a clean and compliant mask while at work.  As noted above, though, OSHA has explicitly said its choice was entirely to disincentivize employees from availing themselves of any option other than vaccination.

Work From Home After The Pandemic?

In an interesting aside, in its preface to the ETS, OSHA reviews recent surveys trying to predict how common work-from-home is likely to be after the pandemic. OSHA looks in particular at one report predicting that, after the pandemic, 22% of full work days post-pandemic will be worked from home, up from 5% pre-pandemic.

States start suing federal government over President Biden’s vaccine mandates

As expected, states have not only begun passing new laws as well as their own executive orders to oppose President Biden’s vaccine mandates but are now suing the federal government. The following ten states just filed one lawsuit in Missouri: Arkansas, Alaska, Missouri, Iowa, Montana, Nebraska, New Hampshire, North Dakota, South Dakota and Wyoming. Seven states filed a separate lawsuit in Georgia: Georgia, Alabama, Idaho, Kansas, South Carolina, Utah and West Virginia. And Texas filed its own lawsuit in Texas, as Florida has in Florida.

So far the lawsuits focus on the President’s mandate for government contractors, which the White House perhaps not coincidentally simultaneously has begun to potentially soften.

The OSHA rule to implement the President’s mandate for employers of 100 or more  was expected to be issued as early as this week; however, it is now being widely reported that business groups are asking the White House to consider holding off until after the holidays as implementation during the holidays is, they contend, not feasible.

Employers are reminded that President Biden’s mandates remain Executive Orders (unless frozen or otherwise impacted by one of these lawsuits).

White House walks back a few possible steps from its government-contractor mandate

In one of his recent vaccine mandates, President Biden ordered all government contractors to have their personnel vaccinated by December 8, 2021, with permission arguably given later for exemptions for religious and disability accommodations. The federal government’s Safer Federal Workforce Task Force issued guidance affirming and fleshing out the mandate for government contractors. The mandate has by now been formally implemented into many government contracts pursuant to FAR 52.223-99, DFARS 252.223-7999, etc.

On October 27, 2021, White House Coronavirus Response Coordinaor Jeff Zients is widely reported as having walked back the mandate at least to some extent by saying December 8 was not a strict deadline — or in his reported words, not a “cliff” — and that the Whie House would permit some “flexibility.”

The Safer Federal Workforce Task Force then issued FAQs on its webpage that bring the December 8 deadline into question. To be sure, the FAQs warn, December 8 remains the deadline set in the President’s Executive Order, and a company’s failure to ensure that its covered workers be vaccinated or exempt due to a religious or disability accommodation remains grounds for contract termination, debarment, etc. However, the FAQs — although not its prior guidance — now suggest that:

  • An employee whose request for religious accommodation or disability accommodation may be able to be kept employed by the contractor while that request is being processed,
  • And, an employee who has not requested a religious or disability accommodation or who has been denied one may also be able to be employed for at least some limited period of time while a stepped process is employed attempting to start with counseling and education for the employee about vaccination.
  • Both employees would, at all times, be have to comply with masking and social distancing requirements, even if fully vaccinated individuals are exempt from such requirements due to the protection offered by the vaccine.
  • Additionally the FAQs note particular government agencies may impose heighted requirements above and beyond those otherwise applicable in government buildings and under applicable state and local requirements.

How will that actually work? The White House and Task Force offer no specifics. Hopefully, they will provide some sort of detailed step-by-step process employers can follow to comply with this increasingly unclear mandate. Until then, government contractors are reminded that, despite these new softer words from the White House and Task Force, the President’s Executive Order remains the law. Employers who fail to meet the December 8 deadline risk severe penalties including contract termination and future debarment.

Texas joins Montana in conflict against Biden vaccine mandates

By Executive Order of its Governor, Texas has joined Montana in an on-going conflict against the recent vaccine mandates announced by President Biden. But how direct are these conflicts? While certainly direct enough to ensure significant litigation in both states, there appears to be some room for some form of compliance with the Biden mandates, especially in Texas. Hopefully litigation will strike the state bans (or clearly rule, in reverse, that they somehow supersede the Biden mandates), so that employers (and employees) have clarity as to vaccine-related rights and obligations in these states; however, until and unless that occurs, these state laws are likely to create significant confusion as each law leaves significant room for partial compliance with the federal mandates.

The Texas Governor’s Executive Order is likely to be followed by a new statute from its legislature. Indeed, the Governor has already added it to the legislature’s agenda in an upcoming special session. Until then, it provides, as follows:

No entity in Texas can compel receipt of a COVID-19 vaccine by any individual, including an employee or a consumer, who objects to such vaccination for any reason of personal conscience, based on a religious belief, or for medical reasons, including prior recovery from COVID-19.

Thus, unless modified by the legislature in its upcoming special session, it appears that while Texas’ new law does apply to private employers, it does not prohibit them from complying with the Biden mandates. Rather, it expands an employee’s ability to demand exemption from a mandate. It is anticipated that all of the Biden mandates will likely permit reasonable accommodations, including exemptions, on the basis of religion and disability. This new Texas law appears to simply add/expand exemptions in Texas on the basis of “personal conscience” or “medical reasons, including prior recovery from COVID-19.” It is not clear how these compare to religion or disability. Is “personal conscience” broader than the already broad definition of “religion”? Are “medical reasons, including prior recovery from COVID-19” broader than “disability”?

The Montana ban flows from its legislature’s new law, House Bill 702. The Montana law adds “vaccination status” and a “vaccine passport” to its state’s EEO law’s definition of protected classes (along with race, etc.). It defines the phrase “vaccine passport” to include as an example a vaccine card. How does the Montana law square up to the Biden mandates? In its FAQ dated 9/29/2021, Montana dodges the question saying that, until the new OSHA rule comes out, its law is “in effect,” without explaining what that means.

The Montana law is already subject to multiple lawsuits seeking to strike it down. The Texas bill is sure to be challenged shortly in the courts.

Hopefully employers will soon obtain clarity from courts in these states. Until then, employers in both states (and any other state that joins this pool of confusion) should realize that neither Texas nor Montana’s state law flatly prohibits compliance with the Biden mandates. They may simply limit how or to what extent compliance is possible. Still both are clearly in direct enough conflict with the Biden mandates, it is likely courts will have to clarify these issues.

Vaccine lawsuits rising

Missed my recent webinar on vaccines in the workplace? Email me or send me a message through this website if interested in the complimentary on-demand presentation. In the meantime, check out this article on Law 360 (no subscription required). Interesting topics include a look at some of these new lawsuits, the need to provide certain accommodations, the importance of considering state laws, and the confusion caused by current vaccines EUA status.

Executive Order 13950 frozen

President Trump’s Executive Order 13950, which had sought to limit diversity and inclusivity training, especially as to implicit bias topics, has been frozen by a federal court, and now, as a result, the DOD and DOL have agreed that the federal government will no longer enforce the Executive Order.

EEOC issues guidance on vaccines

The EEOC issued guidance on vaccines, as subpart K of its Technical Assistance (FAQ) regarding coronavirus. The EEOC’s FAQ is not regulatory, it does not carry the weight of law, and it did not reach any specific conclusions. Rather, it included the EEOC’s current thinking that:

  • It may become possible, as vaccines begin to be available, for an employer to mandate vaccination as a condition of entry into the workplace if the company can establish business necessity and that failure to impose the requirement would pose a direct threat of harm to others or that employee’s own health.
  • The EEOC noted it may or may not also be possible for an employer to mandate vaccination as a condition of employment. In other words, the EEOC said that, while some employers may be able to require vaccination as a condition of physically entering the workplace, to terminate an un-vaccinated employee would require a higher showing to prove business necessity and direct threat. For example, such an employer would have to prove the inability to allow the worker to take leave, to work remotely, etc.
  • In both instances, an employer would have to provide a reasonable accommodation for an employee who declines vaccination
    • Regarding a disability, under the ADA, unless the employer can prove undue hardship, i.e., that “there is no way” to allow the worker into the workplace or just to keep their job without the vaccine, to take leave, if not even to work remotely, and/or
    • Regarding a sincerely held religious belief, under Title VII, unless it would impose more than a de minimis cost or burden to the company to provide such an accommodation.

The EEOC recommends that employers consider, in all circumstances, using a third-party medical contractor that expertly advise workers, obtain informed consent, and manage any questions as well as the administration of the vaccine, and the exchange of any information regarding genetics, within medical confidentiality, such that the worker would, once vaccinate, simply provide the company with documentation of having been vaccinated, ensuring no confidential information is shared with the company.

Employers should first be aware that the EEOC does not have jurisdiction over and did not opine on other federal or state laws, which may well be thornier restrictions for employers who feel required vaccines are needed in their workplaces. Further, multiple states have already begun the process of debating whether to legislate or simply regulate in this area.

Finally, it should be noted that the EEOC was discussing vaccines that have been “approved or authorized” by the FDA. Currently no vaccines have been “approved” by the FDA, some have received an emergency use “authorization.” The EEOC did not discuss the fact that, in the fact sheet supporting the current authorizations, the FDA specifically stated: “It is your choice to receive or not receive the Pfizer-BioNTech COVID-19 Vaccine.” While that statement seems to be limited to a patient’s choice in terms of their own medical care — not their employment rights — that statement’s importance has not yet been analyzed by the EEOC (or the courts).

Will employers be able to mandate vaccines?

Wondering if employers will be able to mandate vaccines? Long story, short, we don’t yet fully know. It is likely that employers will be able to mandate vaccines — at least as a condition of entry into some workplaces if not as a condition of continued employment — so long as it is required by a business necessity and so long as appropriate opt-outs are permitted especially for religious or disability reasons. Employers with unionized workforces may need to engage in bargaining with their unions, first, unless clear and unmistakable language in the CBA already allows unilateral action. However, federal and state officials throughout the country have said they are currently analyzing the issue and hope to issue guidance soon.

In the meantime, if you’re looking for a couple good reads on the subject as an introduction to these issues, you may want to start with two thought pieces on the issues: one by Holland & Hart attorney Brad Williams available here and the other by SHRM available here. With regard to just the EEO laws, especially Title VII’s religious protections and the ADA’s disability protections, interested readers may also like to review the EEOC’s 2009 thoughts from the H1N1 pandemic, especially question 13. Again, though, hopefully the EEOC, along with the DOL and the various state and local agencies, will all be updating their guidance shortly within the context of the current coronavirus pandemic.  

Stay tuned for future updates as guidance becomes available. 

Tenth Circuit tightens up on Title VII claims

In a case titled Sanderson v. Wyoming Highway Patrol, the Tenth Circuit tightened up on a plaintiff’s ability to bring Title VII claims.

First, the Tenth Circuit affirmed summary judgment on the plaintiff’s retaliation claim because she had not alleged it in her EEOC Charge of Discrimination. In her EEOC Charge, she’d alleged retaliation after she was demoted, but when she sued, she added a claim for retaliation based on events before her demotion. Because her EEOC Charge did not allege the latter, the Tenth Circuit held she had failed to exhaust Title VII’s administrative requirements.

Second, the Tenth Circuit affirmed exclusion of her offered expert “who, based on her own experience (not experience specific to the employer), would have testified about gender stereotypes in law enforcement.” The Tenth Circuit agreed with the trial court that no expert testimony is appropriate on such a topic “because gender stereotypes are within the jur(y)’s common knowledge and experience.”

Third, the Tenth Circuit then ruled for the plaintiff, reversing summary judgment, holding a jury trial was warranted on her claim of a hostile work environment based on her sex. The Tenth Circuit held that persistent “rumors … that she engaged in sexual relationships with colleagues and supervisors,” allegations by coworkers that she’d engaged in “flirting with non-colleagues” while on duty, were sufficient to warrant trial, especially where she’d once been ordered “to answer her radio when she was ‘douching,'” which was of course a clearly derogatory (alleged) comment on the basis of her gender. In addition she’d offered circumstantial evidence suggesting her colleagues excluded her because of her gender, where for example one coworker had bought everyone a breakfast burrito but her.

The EEOC has limited its own authority to file “pattern or practice” lawsuits

The EEOC has formally acknowledged its own limitations on its authority to bring a “pattern or practice” lawsuit against an employer. When the EEOC brings such a lawsuit, it is not acting in a representative capacity on behalf of any particular employees (as it does in a so-called sec. 706 claim, citing Title VII’s relevant section), rather it is suing (under sec. 707) as the government itself asserting the employer has a pattern-or-practice of discrimination, which according to the Supreme Court requires it, in short, to prove that the employer’s “standard operating procedure” is to discriminate, quoting Int’l Bhd. of Teamsters v. U.S., 431 U.S. 324 (1977). Previously the EEOC has argued that, when it sues under sec. 707 it does not have to comply with a number of pre-lawsuit requirements. In a recent opinion letter, the EEOC reversed course on that argument and acknowledged that, no, it must comply with those pre-lawsuit requirements.

This opens a number of possible defenses by employers faced with pattern-or-practice lawsuits, including arguments that the EEOC failed to satisfy pre-lawsuit requirements such as the following:

  • The requirement for an actual charge to have been filed first.
  • The requirement for an investigation of that charge.
  • The requirement for good faith conciliation efforts by the EEOC prior to filing its lawsuit.

This also permits employers to assert that

  • They acted in good faith, and/or
  • They modified or rescinded the pattern-or-practice.

Arguably the latter gives employers the ability now to moot any pattern-or-practice lawsuit by the EEOC by modifying or rescinding the practice, even after the EEOC has filed its lawsuit.

In its opinion letter, the EEOC also took the position that it can no longer use the pattern-or-practice process to challenge employer actions that are not themselves discriminatory. Specifically this seems to be a concession on its part that, contrary to its litigation efforts to-date, it does not actually have the authority to challenge mandatory pre-dispute arbitration agreements, even if they ultimately had the effect of limiting a worker’s ability to participate in governmental investigations.

Because the EEOC’s opinion letter was not issued through the formal rule-making process, future EEOC Commissioners could re-reverse course. However, this opinion letters is publicly available and at least establishes a dispute over the EEOC’s jurisdiction in pattern-or-practice cases, which, if re-reversed by an EEOC under the leadership of a Democratic President, could be seen by the courts as arguably at least in part political in nature and therefore deserving of Congressional clarification.

Supreme Court reinforces anti-discrimination law’s ministerial exemption

In a 7-2 decision, the Supreme Court upheld religious elementary schools’ ability to otherwise-discriminate against teachers under the “ministerial” exemption. Title VII, the ADEA and other anti-discrimination laws recognize a ministerial exemption, consistent with the First Amendment, that permits a synagogue, for example, to require that its rabbi actually be Jewish and that she adhere faithfully to the synagogue’s interpretation of Judaism.

In this case two teachers sued for wrongful discharge. One alleged age discrimination, the other alleged disability discrimination. The schools responded that it need not prove the real reason for their discharges because neither were protected under either the age or disability discrimination laws, because both fell under the ministerial exemption. Neither teacher was a “minister” in the sense of being ordained, having the title of a minister, or having any religious education or formal training. However, both taught courses that included religion. Both had been instructed when hired and again during their employment that their individual faith and morals were essential components of their jobs performance. Both prayed with their students as part of their jobs. The majority of the Court held all of that was sufficient for both to fall within the ministerial exemption.

There is abundant record evidence that they both performed vital religious duties. Educating and forming students in the Catholic faith lay at the core of the mission of the schools where they taught, and their employment agreements and faculty handbooks specified in no uncertain terms that they were expected to help the schools carry out this mission and that their work would be evaluated to ensure that they were fulfilling that responsibility. As elementary school teachers responsible for providing instruction in all subjects, including religion, they were the members of the school staff who were entrusted most directly with the responsibility of educating their students in the faith. And not only were they obligated to provide instruction about the Catholic faith, but they were also expected to guide their students, by word and deed, toward the goal of living their lives in accordance with the faith. They prayed with their students, attended Mass with the students, and prepared the children for their participation in other religious activities. …. Their titles did not include the term “minister,” and they had less formal religious training, but their core responsibilities as teachers of religion were essentially the same. And both their schools expressly saw them as playing a vital part in carrying out the mission of the church, and the schools’ definition and explanation of their roles is important. In a country with the religious diversity of the United States, judges cannot be expected to have a complete understanding and appreciation of the role played by every person who performs a particular role in every religious tradition. A religious institution’s explanation of the role of such employees in the life of the religion in question is important.

Source: Our Lady of Guadalupe School v. Morrissey-Berru, case no. 19-267 (7/8/2020).

SCOTUS holds LGBTQ status is protected within Title VII’s meaning of “sex”

The Supreme Court held that LGBTQ status is already protected within Title VII’s meaning of the word “sex.”

Today, we must decide whether an employer can fire someone simply for being homosexual or transgender. The answer is clear. An employer who fires an individual for being homosexual or transgender fires that person for traits or actions it would not have questioned in members of a different sex. Sex plays a necessary and undisguisable role in the decision, exactly what Title VII forbids.

In authoring the majority opinion, Justice Gorsuch observed that the word “sex” would likely not have been read that way by the drafters of Title VII in 1964, but the majority held that the term is unambiguous as drafted; according to well-established precedent, resort to legislative history is not permitted when a statutory text is unambiguous.

Those who adopted the Civil Rights Act might not have anticipated their work would lead to this particular result. Likely, they weren’t thinking about many of the Act’s consequences that have become apparent over the years, including its prohibition against discrimination on the basis of motherhood or its ban on the sexual harassment of male employees. But the limits of the drafters’ imagination supply no reason to ignore the law’s demands. When the express terms of a statute give us one answer and extratextual considerations suggest another, it’s no contest. Only the written word is the law, and all persons are entitled to its benefit.

The majority confirmed that, while Title VII’s “sex” protections directly protect such traits/classes, plaintiffs may also assert sex-stereotyping claims related to such traits/classes, just as plaintiffs can assert sex-stereotyping claims based on male-female cys-gendered status.

To be sure, there may be cases in which a gay, lesbian, or transgender individual can make a claim like the one in Price Waterhouse. That is, there may be cases where traits or behaviors that some people associate with gays, lesbians, or transgender individuals are tolerated or valued in persons of one biological sex but not the other. But that is a different matter.

Considering a voluntary internal audit to prepare for Colorado’s new equal pay law?

Last year I co-authored an article for the Colorado Lawyer about Colorado’s new equal pay law (the Colorado Equal Pay for Equal Work Act, “CEPEWA”), with two of CEPEWA’s drafters, Sarah Parady and Charlotte Sweeney. CEPEWA will take effect January 1, 2021. In our article, we noted that CEPEWA “CEPEWA does not grandfather current pay disparities” and further that “proof of intent to discriminate is not an element of a CEPEWA violation.” We recommended employers consider performing a voluntary internal audit to identify and eliminate any inadvertent pay disparities. Indeed CEPEWA recognizes a possible reduction of exposure if internal audits are done.

A new article was just published in the Colorado Lawyer discussing what such an audit might look like.

Source: Mind the Gap: Practical Solutions to Minimize Pay Equity Claims, by Christine Lyman, Lonnie Giamela, and LaLonnie Gray, The Colorado Lawyer, vol. 49 no. 5 (May 2020)

EEOC Harassment Charges Reflect #MeToo’s Relevance

Interesting article from SHRM on post- #MeToo statistics at EEOC for sexual harassment charges.

On the one hand, there still has not been a flood of sexual harassment charges. In fact, their number remains lower than pre- #MeToo 2010-13 numbers but are slowly climbing back from their post- #MeToo 2014-17 dips.

The number of sexual-harassment charges filed with the EEOC dipped slightly in fiscal year 2019 from 2018 levels but remained much higher than in the immediately preceding years:

  • 2014—6,862
  • 2015—6,822
  • 2016—6,758
  • 2017—6,696
  • 2018—7,609
  • 2019 —7,514

The number of sexual harassment charges were at a high level before that, though they dropped from the beginning of the 2010s:

  • 2010—7,944
  • 2011—7,809
  • 2012—7,571
  • 2013—7,256

One has to wonder if these numbers aren’t the product of the the country becoming more educated on Title VII’s sexual harassment legal requirements; in other words, understanding what the law does and does not prohibit, fewer unsupported claims are being filed. Indeed, the EEOC’s recent statistics do suggest that the charges, which are being filed post- #MeToo, may be, by and large, the stronger claims, at least in the sense that they are producing higher dollar-amount settlements.

The monetary benefits from the agency’s sexual-harassment settlements have steadily risen over the past four years:

  • 2016—$40.7 million
  • 2017—$46.3 million
  • 2018—$56.6 million
  • 2019—$68.2 million

Source: “EEOC Harassment Charges Reflect #MeToo’s Relevance,” A. Smith, J.D. (1/24/2020), available here, www.shrm.org/ResourcesAndTools/legal-and-compliance/employment-law/Pages/EEOC-harassment-charges-MeToo.aspx

Unpaid interns may not enjoy protection under anti-discrimination laws

The Tenth Circuit held that an unpaid intern did not enjoy any protection under Title VII (the nation’s leading anti-discrimination and anti-retaliation law). Congress wrote such laws to protect “employees,” and the Court reasoned an entirely unpaid intern failed to meet a threshold test for proving he or she is an employee because such an intern receives no “remuneration” from the putative employer.

In this case, the plaintiff held an unpaid internship at a hospital as part of her school’s requirement that she complete at least 480 hours of such an internship. She was not paid. She argued that she, nonetheless, received “remuneration” because the internship helped meet her credit requirement and also because many interns found jobs later with the same companies. The Tenth Circuit rejected the idea that either constituted “remuneration.”

Ms. Sacchi has cited no cases, nor could we find any, where only a professional certification and pathway to employment satisfied the threshold-remuneration requirement.

We also decline the invitation to conclude that all interns are protected by Title VII, the ADA, and the ADEA. Aplt. Br. at 24-27. Even if a laudable goal, this is a task for Congress.

Employers are cautioned that a different law, the Fair Labor Standards Act, requires interns to be paid in many circumstances.

Source: Sacchi v. IHC Health Services, Inc., 918 F.3d 1155 (10th Cir. 2019).

Courts are limited to granting relief that will personally benefit plaintiff

The Eleventh Circuit held that courts are limited, in Title VII cases (the federal statute that governs most discrimination and retaliation cases, including related to race, color, religion and sex), to granting relief that personally benefits the plaintiff. In this case, the plaintiff a former employee proved a violation but no damages. Instead, the trial court awarded her an injunction requiring the defendant to clean her personnel file and further to implement a training program. The Eleventh Circuit held the training-program requirement went too far because training would not benefit the plaintiff, a former employee.

In a separate unpublished opinion, the Eleventh Circuit remanded the case for the trial court to determine if the plaintiff was still the “prevailing” party eligible to recover attorney fees, especially since she had apparently rejected a higher settlement offer.

Source: Furcron v. Mail Centers Plus, LLCcase no. 187-12598 (11th Cir. 6/12/19) and

Supreme Court sides with Tenth Circuit, resolving split in Circuits, holding failure-to-exhaust is a procedural affirmative defense, not a jurisdictional defect

Resolving a split among the Circuits, the Supreme Court sided with the Tenth Circuit‘s recent approach, ruling that an employee’s failure to exhaust the statutory prerequisites for filing claims of discrimination and most kinds of EEO (equal employment opportunity), i.e., Title VII claims, is a procedural affirmative defense, not a jurisdictional defect. This means the defense can be waived by employers who fail to assert it.

Employers should ensure that they review all available defenses and assert viable ones throughout their defense of such claims.

Source: Fort Bend County v. Davis, — Sup.Ct. —, case no. 18-525 (6/3/19).

Tenth Circuit holds plaintiff’s case insufficient even though supervisor kept a special file on the plaintiff in case he some day decided to “pull the race card”

The Tenth Circuit held a plaintiff failed to establish a case worthy of trial, entering summary judgment for lack of evidence of discrimination, even though the plaintiff submitted evidence his supervisor had kept a special file on him because, plaintiff contends the supervisor admitted, he feared plaintiff would some day “pull the race card.”

The plaintiff, who was African-American, sued because he’d been denied a promotion. That same supervisor had evaluated the candidates for promotion and was part of the 4-person panel that decided not to promote plaintiff.

The Tenth Circuit held, first, that the supervisor’s having kept a special file on plaintiff was not an indication of discrimination. This was true even though the evidence suggested the supervisor hadn’t kept such a file on any other individual. The Tenth Circuit held further that it was non-discriminatory even if the supervisor had said he was keeping the special file because he feared plaintiff would “pull the race card.” The Tenth Circuit said that admission suggested merely that the file was
“a precautionary measure, not a symptom of invidious animus.”

Then, the court held, even if other evidence did suggest a discriminatory animus, the plaintiff had failed to prove that the supervisor’s animus had somehow infected the other three panelists.

Employers are cautioned this case illustrates a difficult tension in the current status of analyzing motions for summary judgment. It remains to be seen whether future courts will agree that keeping a special file only on a minority worker is somehow non-discriminatory simply because the supervisor fears the worker will “play the race card.” Indeed the Tenth Circuit itself did not identify the decision for official publication, saying it was “not binding precedent,” although it can nonetheless be cited “For its persuasive value.”

Source: Sasser v. Salt Lake Citycase no. 17-4198 (10th Cir. 5/20/19).

Employers should begin preparing to turn over EEO-1 pay data by September 30, 2019, details to follow from EEOC shortly

A federal trial court judge in the District of Columbia cleared the path for the EEOC controversial rule requiring employers to turn over two years of pay data by September 30, 2019. The court’s order follows a recent decision in which the judge provided further reasoning. In short the court held that, in this battle between two federal agencies (the EEOC and the OMB), the Trump administration’s OMB had failed to establish a basis for freezing the Obama-era EEOC’s pay-data collection rule. That Obama-era rule (2016) added to the longstanding workforce data requirements for an EEO-1 (which the EEOC now calls the “Component 1” data requirements), a requirement to submit pay data as well designed to demonstrate pay gaps related to gender, race, and ethnicity (now called the “Component 2” data requirements).

Which two years of data will be required and when can an employer start submitting its EEO-1? The judge gave the EEOC leeway to decide, but ordered it to post on its website an initial decision by April 29 and the final decision on May 3. The EEOC’s website states it is already “working diligently on next steps in the wake of the court’s order.” The EEOC notes its portal for submission of Component 1 data is already open.

Employers will want to visit the EEOC’s website following April 29 and again following May 3, at least, for further information on this breaking development.

Gossip, sexual harassment and hostile work environments

A recent Fourth Circuit decision reminds employers to be vigilant in preventing sexually hostile work environments in the workplace. Even gossip can lead to such claims.

In this case, the plaintiff alleged that, when she received a series of promotions, her male co-worker started a rumor that she’d had an affair with a manager. She alleged that other co-workers, including males, continued to spread the rumor. She alleged that, as a result of the rumor, she was frozen out of future promotions and meetings.

The trial court dismissed her case saying she had failed to allege this rumor was due to her being a woman and further that she’d failed to allege it was so bad as to be “severe or pervasive” as required for a hostile work environment claim. The Fourth Circuit reversed on both grounds.

First, the Fourth Circuit held that the rumor was precisely due to her gender. It was sexual in nature and, by essentially asserting that she, as a woman, would not have been promoted otherwise, it was also unlawful sex stereotyping.

Thus, the dichotomy that RCSI, as well as the district court, purports to create between harassment “based on gender” and harassment based on “conduct” is not meaningful in this case because the conduct is also alleged to be gender-based. We conclude that, in overlooking this, the district court erred.

Next, the Fourth Circuit held the impact of the rumor was indeed “sever or pervasive” as required to prove a hostile work environment claim. It was more than “a few slights.” It wasn’t mere gossip in that, at points, it allegedly included “physical threatening.” It affected her work and, she claimed, even cost her the job.

Finally, the harassment interfered with Parker’s work. She was blamed for bringing the controversy to the workplace; she was excluded from an all-staff meeting; she was humiliated in front of coworkers; she was adversely affected in her ability to carry out management responsibility over her subordinates; she was restrained in where she could work, being told to stay away from the rumormonger; and she was told she had no future at RCSI because of the rumor. In addition, she alleges that her employment was terminated because of the rumor and, as stated by management, because of the rumormonger’s complaint. In short, RCSI’s management’s entire relationship with Parker, as well as Parker’s employment status, was changed substantially for the worse.

The case is a strong reminder to employers to prevent sexual harassment, even in the form of “mere” gossip. It should be noted though that as the court emphasized the case involved substantially more than what might be called simple gossip. Whether less substantial allegations would have warranted dismissal is for a later case to determine.

Source: Parker v. Reema Consulting Services, Inc., case no. 18-1206 (4th Cir. 2/8/19).

Will other states follow California’s lead with enhanced National Origin protections?

Effective July 1, 2018, California has, by way of administrative regulations, enhanced the protections against national origin discrimination found in its mini-Title VII called the California Fair Employment and Housing Act.

These well-intentioned but poorly drafted regulations expand the definition of national origin, now, to include an individual’s or their “ancestor’s” “actual or perceived”:

  1. physical, cultural, or linguistic characteristics associated with a national origin group;
  2. marriage to or association with persons of a national origin group;
    tribal affiliation;
  3. membership in or association with an organization identified with or seeking to promote the interests of a national origin group;
  4. attendance or participation in schools, churches, temples, mosques, or other religious institutions generally used by persons of a national origin group; and
  5. name that is associated with a national origin group.

The regulations offer few helpful definitions to interpret these new rules.

  • What is a “physical, cultural or linguistic characteristic” besides an obvious accent?
  • What is a church “generally used by persons of a national origin group”? For example, one can guess that the Greek members of a Greek Orthodox church are protected, but how about the non-Roman members of a Roman Catholic church parish that includes people of every national origin?
  • What is a “name that is associated with a national origin group”? For example, is the name “Garcia” such a name, where it is generally considered the most common Hispanic last name, even though it is common in nearly every Latino country and non-Latino country, and is actually of Basque origin (with the Basque arguably not being Hispanic in the sense their traditional language is Basque not Spanish)?

One definition that is offered in these vague regulations is for the phrase, “national origin groups”:

“National origin groups” include, but are not limited to, ethnic groups, geographic places of origin, and countries that are not presently in existence.

Unfortunately that definition raises more questions than it answers. For example, what does it mean to say someone identifies with “countries that are not presently in existence”?

The regulations also take a strong position against English-only rules. Under these new California regulations, English-only rules are never permitted during employee breaks, lunch, or employer-sponsored events, and only rarely permitted during working time and in workplaces when narrowly tailored as required by a business necessity.

With regard to accents, again, those seem to be protected as a national origin “characteristic,” and as such discrimination on the basis of accents is only permitted when, again, mandated as narrowly tailored to a business necessity.

The regulations expressly state that they protect even unauthorized immigrants. The only exception is when mandated otherwise by federal law. This is true even where the individual presents, as part of the I-9 process, a California driver’s license that expressly identifies the individual as an undocumented worker. The regulations also state that even a “single unwelcome act of harassment” may be sufficient to violate these laws, without explaining how it is that an employer can ask such a worker about their work authorization without inadvertently crossing the line into having asked a question that the worker found to be a “single unwelcome act of harassment.”

It remains to be seen whether other states will follow California’s lead, or if at some point the federal government will do so under Title VII. However, employers in every state may wish to take a moment to review these new regulations. Arguably their poorly drafted language does not, at least in some instances, expand Title VII so much re-interpret its existing requirements. If other jurisdictions do decide to follow California’s lead, they will hopefully provide employers with more clear language, especially since employers generally probably agree with the basic thrust of what the California bureaucrats who drafted these regulations intended.

Source: 2 California Code of Reglations 11027, et seq.

The EEOC and a mixed fallout from #MeToo

Recent developments at the EEOC reflect a mixed fallout from the #MeToo movement.

Despite massive social change seen at many levels from #MeToo, with celebrities, politicians and business leaders all being called to answer for allegations of sexual harassment — and despite many lawyers who anecdotally report seeing increased charges in their own practices — EEOC Acting Chair Victoria Lipnic reported June 11 that the EEOC has yet to see a significant increase in sexual harassment charges.

Notwithstanding a lack of increased charges, the EEOC is determined not to be left behind by the #MeToo movement. The agency itself has formed a task force to study sexual harassment and, immediately following the task force’s meeting, the EEOC filed seven lawsuits (on and and about June 11, 2018) involving allegations of sexual harassment. Additionally, the EEOC has identified sexual harassment as one of its 2017-21 strategic enforcement priorities.

Religious accommodation need not preserve overtime opportunities

The Tenth Circuit recently decided a case where the plaintiff’s requested religious accommodation gave him the time he needed off for religious reasons but meant losing overtime. The Court held the employer did not have to allow him to work more later in the week to make up for the lost overtime.

The worker had asked for Saturdays off as a religious accommodation. The employer agreed. However, because Saturdays were the day of the week when the worker (and the other workers apparently) worked overtime, it left him with no overtime opportunity. Wanting to keep his Saturdays off, he asked to be allowed to make up the lost hours by working overtime on Sundays. The employer refused.

The Tenth Circuit recognized that granting the worker his requested accommodation of Saturdays off had cost him his overtime opportunities but held that the company was not required to allow him to work make up hours on Sundays. The Court held that an accommodation is reasonable if it allows the plaintiff “to engage in his religious practice despite the employer’s normal rules to the contrary.” Here letting him take Saturdays off allowed him to engage in his religious practices. The Court rejected the argument that Title VII required the company to then allow him to work make-up overtime on Sundays.

Though (the plaintiff) may have requested an opportunity to make up his overtime hours on Sunday, Title VII did not require (the company) to offer (his) preferred accommodation.

The case illustrates Title VII’s basic principle that a worker may be entitled to a reasonable accommodation of his religious practices, and so long as it is effective at allowing him to engage in his religious beliefs, it need not be his preferred accommodation, even where the difference means lost pay opportunities.

Source: Christmon v. B&B Airparts, Inc., case no. 17-3209 (10th Cir. 5/24/18).

SCOTUS rules for baker in Masterpiece Cakeshop

By 7-2, the Supreme Court ruled for the baker in the Masterpiece Cakeshop case. All seven of the judges that formed the majority were struck by comments from the Colorado Civil Rights Commissioners that evidenced an anti-religious bias among the Commissioners when they decided the case. The Supreme Court called those comments “inappropriate,” “dismissive,” and “disparag(ing) of religion.”

What were these unacceptable comments? Well, in short, they included what can only be described as a gratuitous rant by one Commissioner about how, in her opinion, “religion has been used to justify all kinds of discrimination throughout history, whether it be slavery, whether it be the holocaust … we can list hundreds of situations.” It really didn’t help when the Commission, faced with three different cases involving bakers who refused to sell anti-gay marriage cakes, held for each of those bakers. The Supreme Court held that, pulling that all together, it seemed the Commission had made its decision not on the evidence and law but “the government’s own assessment of offensiveness.”

Along those lines, Justice Gorsuch, in his concurrence, noted that, if the government could make decisions on the basis of what it deems offensive, freedome of speech and expression would be lost. This is the oft-recognized principle that the only speech that really needs Constitutional protection is offensive speech.

The Constitution protects not just popular religious exercises from the condemnation of civil authorities. It protects them all.

In reversing based on the Commission’s own bias, the Supreme Court never reached the underlying question whether/when does a baker/florist/other expressive craftsman have a First Amendment right to refuse to sell their good/service to a consumer for religious reasons. Instead, the Supreme Court held that the baker had at least been entitled to a fair hearing of that issue, and that the Commission’s own bias had stripped him of that right.

(T)he delicate question of when the free exercise of his religion must yield to an otherwise valid exercise of state power needed to be determined in an adjudication in which religious hostility on the part of the State itself would not be a factor in the balance the State sought to reach. That requirement, however, was not met here. When the Colorado Civil Rights Commission considered this case, it did not do so with the religious neutrality that the Constitution requires.

Justice Kennedy — who has been the Court’s champion of both gay rights and speech rights, as well as religious liberty rights — wrote the majority opinion. He acknowledged that the Court was dodging the real question of how to balance those rights.

The outcome of cases like this in other circumstances must await further elaboration in the courts….

Still, his opinion suggested how he thought the Court should rule in future cases.

Some examples of cases where he suggested future bakers/florists/etc. might lose on the merits included the following:

  • A baker who “refused to sell any goods or any cakes for gay weddings”

Some examples of future cases where bakers/etc. might win included the following:

  • A “refusal to put certain religious words or decorations on the cake”
  • A “refusal to attend the wedding to ensure that the cake is cut the right way”
  • A “refusal to sell a cake that has been baked for the public generally but includes certain religious words or symbols on it”

We may not have to wait long to find out how the Supreme Court will rule on the underlying issues. A similar case — involving a florist from Washington — is already pending a decision by the Supreme Court whether to hear the appeal in the fall.

Separate opinions in Masterpiece Cakeshop seemed to preview how the Justices might vote:

  • Justice Gorsuch wrote suggesting that he is likely to rule broadly for future bakers/florists/etc.
  • Justice Thomas wrote along such lines as well, though his opinion suggested concern over the concept of even trying to protect the rights of a gay couple in this type of circumstance.
  • Justices Kagan and Breyer, who joined the majority in this case, suggested they would lean split on future cases, ruling against bakers/etc., where there is no evidence of anti-religiouis bias among the state agencies.
  • Justice Ginsburg joined by Justice Sotomayor wrote to express their concerns that the anti-religious comments by the Commission, while unacceptable, were simply not so substantial as to warrant reversal; they would have ruled on the merits, and in doing so, for the gay couple who wished to buy the cake.

That means future cases are likely to have 4 Justices inclined to rule for and 4 Justices inclined to rule against the bakers/florists/etc., and as was expected here, Justice Kennedy is likely to be the swing vote. Expect to see him flesh out his balancing test based on those examples.

As for future cases, Justice Kennedy gave one word of warning — frankly simply restating the concern most of America seemingly has had and had hoped the Supreme Court would wrestle with in this decision — that these rights must be balanced such that religious liberty is not so broadly defined that it becomes an easy excuse for discrimination:

And any decision in favor of (a future) baker would have to be sufficiently constrained, lest all purveyors of goods and services who object to gay marriages for moral and religious reasons in effect be allowed to put up signs saying “no goods or services will be sold if they will be used for gay marriages,” something that would impose a serious stigma on gay persons.

Readers of course will note that this concern exists not only as to LGBTQ individuals (which is all that quote discusses) but also individuals on the basis of race, gender, age, etc., and, yes, even religion. It simply cannot be the law that a business may refuse to do business on the grounds that a consumer is of a different race, color, gender or even religion.

Readers should also note that this line of cases isn’t just about consumers, and it certainly isn’t about just cakes. This line of cases has potential to touch all aspects of American life. It cannot be, for example, that a business has a right to refuse to hire someone simply because they assert a religious belief against that person’s sexual orientation, gender preference, race, gender, religion, etc.

Source: Masterpiece Cakeshop, Ltd. v. C.C.R.C., case no. 16-11 (Sup.Ct. 6/4/18).

Sixth Circuit holds transgendered workers are already protected by Title VII

Following a recent Second Circuit decision holding that sexual preference (LGB) is already protected by Title VII within the meaning of “sex,” the Sixth Circuit has held that being transgendered is also so protected.

While both cases may be heading for Supreme Court review, they suggest that LGBT may well be determined by other federal Circuit Courts to have been protected by Title VII since its inception in 1964. Employers are reminded that many states and local governments already have express protections for LGBT workers.

Source: EEOC v. R.G. & G.R. Harris Funeral Homes, Inc., case no. 16-2424 (6th Cir. 3/7/18).

Pay history bans coming, at a federal level, by way of the Circuit Courts?

A growing number of state and local governments prohibit asking applicants about their pay history or using prior employer pay histories as a basis for setting employee pay. Two Circuit Court cases suggest that such a ban may be coming, not by way of state and local legislation, but at a federal level under currently existing federal laws known as Title VII and the Equal Pay Act.

The Circuit Courts are the nation’s federal appellate courts. They are divided (and numbered) by region. They are for practical purposes generally the highest courts in the land, just beneath the Supreme Court of the United States. Very few cases result in Supreme Court review; the Circuit Courts resolve the vast bulk of federal appellate litigation without cases ever rising to the Supreme Court.

Pay history bans are growing across the country because advocates for equal pay, particularly between men and women, contend that one reason women earn less than men in many positions, is simply that women tend to have previously earned less than men in prior positions. In other words, they contend it is a self-perpetuating cycle.

In one case, the Ninth Circuit held last year, in 2017, that, consistent with its precedent, an employer may set pay levels purely on the basis of pay histories. However last summer the Ninth Circuit withdrew that decision and ordered the matter reheard en banc (by the entire bench of its judges). The case is pending reconsideration.

In the other case, the Eleventh Circuit just ruled in a Georgia case that an employer was not entitled to summary judgment, in other words, it would have to explain itself to a jury, where the female plaintiff argued she was underpaid compared to her male predecessor. The Eleventh Circuit case did not go so far as to hold that pay histories cannot be considered. It simply held, on the basis of the record before it, that pay histories were not themselves enough to warrant ruling for that employer. The Eleventh Circuit’s decision may be limited to its facts in that, there, the company’s HR manager had testified to general female-male pay disparities at the company and further that the company’s general manager had made an anti-female remark.

Employers should consider monitoring pay history bans.

Source: Rizo v. Yovino, case no. 15-372 (9th Circuit) (case pending reconsideration en banc); Bowen v. Manheim Remarketing, Inc., case no. 16-17237 (11th Cir. 2/21/18).

Second Circuit holds Title VII has always protected sexual orientation within its protection of “sex”

Following a recent series of cases discussed earlier on this blog, the Second Circuit has held that sexual orientation is, and has always been, included within the meaning of Title VII’s protection of “sex.”

Title VII prohibits discrimination on the basis of sexual orientation as discrimination “because of . . . sex.” To the extent that our prior precedents held otherwise, they are overruled.

Source: Zarda v. Altitude Express, Inc., case no. 15-3775 (2nd Cir. 2/26/18).

NLRB clears Google, signals more employer-respectful approach to discipline of workplace misconduct

In a shift from recent NLRB decisions holding employers liable under the National Labor Relations Act’s Section 7 for disciplining employee misconduct that is offensive, disrespectful and harassing, the NLRB General Counsel recently cleared Google of charges that, by disciplining an employee for having written an offensive memo, it had somehow violated the Act.

Section 7 is a part of the National Labor Relations Act that applies to both unionized and non-unionized workforces, so this decision is of equal interest to companies without unions as to companies with unions representing their workforces.

In this case, Google’s employee famously wrote a memo that sought to explain why men received more favorable treatment than women in Google’s high tech workplace. The memo was considered by many to be highly offensive and received substantial national press. Included in his memo were stereotyping comments about women, such that women are more prone to “neuroticism” and therefore less able to work in a stressful environment and that more men score in the “top of the curve” than women.

Although the employee “cloaked” his memo in “science,” especially biology, quoting the NLRB, the Board’s General Counsel refused to engage on the so-called science, instead finding that the stereotyping comments were offensive and specifically offensive in a gender-specific manner, implicating the nation’s laws against sex discrimination. The Board’s General Counsel noted that the memo triggered internal complaints of sexual harassment and multiple female engineering candidates withdrew their applications.

The Board’s General Counsel also refused to condone the parts of the memo that may have been protected under Section 7, which protects an employee’s efforts to further his workplace’s wages, hours and working conditions.

(W)hile much of the Charging Party’s memorandum was likely protected, the statements regarding biological differences between the sexes were so harmful, discriminatory, and disruptive as to be unprotected.

In reaching that conclusion, the Board’s General Counsel noted that Google had drafted the employee’s termination notice to expressly say he was not being let go for any lawful aspects of his memo, but rather specifically and only for “(a)dvancing gender stereotypes.”

Finally the Board rejected the argument that the memo was merely speech and that, as such, it alone may not have been a violation of the anti-discrimination laws.

(E)mployers must be able to “nip in the bud” the kinds of employee conduct that could lead to a “hostile workplace,” rather than waiting until an actionable hostile workplace has been created before taking action.

It is this “nip in the bud” comment that is mostly likely to be cited by future employers. Recognizing that an employer has the right to “nip in the bud” misconduct seems to be a reversal of recent Obama- era Board decisions.

Source: NLRB Advice Memorandum, case no. 32-CA-205351 (1/16/18).

NLRB General Counsel issues memo outlining likely reversals to Obama-era precedents

As previously reported here in this blog, the Trump Board (NLRB Boards are often colloquially but not pejoratively referred to by the President during their term) has begun overruling Obama-era precedents. Further reversals are anticipated. Curious which Obama-era NLRB precedents are likely to be reversed?

NLRB General Counsel Robb issued a controversial memo, shortlisting the cases he thinks most warrant attention. Indeed to call it a shortlist is a stretch. The General Counsel lists 26 categories, that range from employee access to email, to protections for section 7 rights, obscene and harassing behavior, off-duty access to property, the Weingarten right to have a representative present, rights of employees during contract negotiations, successorship and of course the joint employer doctrine, unilateral changes consistent with past practice, information requests during the processing of a grievance, dues check-offs, remedies, deferral, and, well, the list goes on, as will employers’ need to stay tuned to forthcoming developments at the Board.

Source: NLRB General Counsel Memorandum GC 18-02.

Employers in New York City face potential for greater punitive damages

The New York Court of Appeals ruled in Chauca v. Abraham that employers face greater exposure for punitive damages under New York City’s anti-discrimination laws than under the federal anti-discrimination law known as Title VII.

The Court observed that existing law mandates that New York City’s law be “as a floor below which the City’s Human Rights Law cannot fall, rather than a ceiling above which the local law cannot rise.”

The Court then noted that New York City’s law is worded differently and, as such, it “requires neither a showing of malice or awareness of the violation of a protected right.” This means a lower standard than Title VII. However, the Court cautioned the standard should not be so low that punitive damages are available whenever a violation is proven warranting compensatory damages.

Punitive damages represent punishment for wrongful conduct that goes beyond mere negligence and are warranted only where aggravating factors demonstrate an additional level of wrongful conduct (see Home Ins. Co., 75 NY2d at 203-204 ). Accordingly, there must be some heightened standard for such an award.

As a middle ground, the Court articulated a new standard for punitive damages under New York City’s law: The plaintiff must prove “the wrongdoer has engaged in discrimination with wilful or wanton negligence, or recklessness, or a ‘conscious disregard of the rights of others or conduct so reckless as to amount to such disregard.'”

A dissenter disagreed arguing the majority had set the bar too low. The dissenter would have allowed punitive damages “whenever liability is proved, unless an employer has adopted and fully implemented the antidiscrimination programs, policies, and procedures promulgated by the Commission on Human Rights, as an augmentation to compensatory damages, and would answer the certified question accordingly.”

Source: https://www.bloomberglaw.com/document/X1OFI9SU0000N?

Turn on your radios!

The Supreme Court holds oral arguments tomorrow in Masterpiece Cakeshop. I will be live in-studio on 850 KOA Colorado’s Morning News, for a series of segments starting about 8:00 AM tomorrow morning discussing the case.

Office of Management and Budgets (OMB) rejects EEOC’s revised EEO-1 Form

The OMB rejected the EEOC’s new EEO-1 form, which would have become effective March 31, 2018. The OMB reviews agency forms like this pursuant to the Paperwork Reduction Act and determined that the EEOC’s new EEO-1 had been unlawfully developed by the EEOC had underestimated the burden on employers it its published estimate. The PRA was enacted into law in 1980 and since then has required agencies to estimate the paperwork burden any new bureaucratic action would require. Here the OMB determined that the EEOC’s previously published estimate was simply, and significantly, too low. Specifically the new EEO-1 form would have required employers who are subject to EEO-1 reporting (typically employers of 100 or more) to report wage and hours worked for all employees by race, ethnicity and sex, all within 12 specified pay bands. The OMB determined that the public had not been properly apprised by the EEOC of the burdens such a requirement would entail.
The OMB’s ruling comes after much controversy over the new EEO-1 form. Commentators criticized the EEOC’s approach not only as being overly burdensome but also as overly simplistic. Commentators noted it would have created the impression that workers within the same pay bands should be paid the same amounts (irrespective of their gender, race, etc.) despite the fact that they may work in very different positions within those bands. Likewise it has been noted that the EEOC’s approach overly simplified compensation practices by not properly allowing for articulation of base wages versus bonuses, commissions, overtime and non-wage benefits that form part of a compensation package.
Although a part of the White House, the OMB is often seen as a non-partisan watch dog.
The OMB’s ruling leaves the EEOC’s proposed EEO-1 for 2018 dead in the water. The OMB has invited the EEOC to continue the OMB’s examination of the proposed EEO-1 form if it believes the form defensible. The OMB has also noted the EEOC’s prior EEO-1 would be acceptable for use. The EEOC has announced it is considering its options. Employers must wait for the EEOC’s decision to determine what form to use in the future.
Source: OMB Memoradum re EEO-1 Form, Review and Stay (8/29/17)

Second Circuit rejects EEOC’s expansive interpretation of Title VII’s “limit, segregate, or classify” clause

Title VII is the nation’s leading anti-discrimination law. Most Title VII cases involve its prohibition against discrimination on the basis of race, religion, sex, etc. Many involve its anti-retaliation provision. But, few involve a clause in Title VII that says employers may not “limit, segregate, or classify” employees based on race, color, religion, sex or national origin.

In this case the EEOC argued that the employer did just that when it alleged transferred the African-American sales manager from its retail store that served largely Hispanic customers.

The employer responded that, even if it had, the transfer did not hurt the sales manager; it did not cause an adverse employment action, like a cut in pay, demotion, termination, etc. The EEOC responded that it didn’t matter. The EEOC argued that any limitation, segregation or classification was prohibited, even if it caused no harm to the plaintiff.

The court rejected both arguments. The court agreed with the EEOC that an adverse employment action was not required, but it agreed with the employer that the EEOC had to prove the transfer in some way “deprived or even tended to deprive him of any employment opportunity or otherwise adversely affected his employment status” (emphasis in original).

Source: EEOC v. AutoZone, Inc., — F.3d —, case no. 15-3201 (6/20/17).

Tenth Circuit confirms employees may “double file” EEOC charges

An employee filed an EEOC charge in 2009 for sexual harassment, but did not sue when he received his administrative right to sue. Instead, he continued to work, then filed another charge in 2011. When he sued for sexual harassment after the second charge, the employer challenged his claim as timely. The trial court held that he could not include in his claim any events preceding 300 days (the applicable statute of limitations) prior to the 2011 charge, in other words, all of the 2009 charge’s allegations (and potentially a period thereafter into 2010). The Tenth Circuit reversed. The Tenth Circuit said that, under the Supreme Court’s 2001 decision, Nat’l R.R. Passenger Corp. v. Morgan, any events constituting the “the same actionable hostile work environment practice” are admissible in the lawsuit, irrespective of whether they occurred before the 2011 charge’s time period. In other words, a plaintiff is allowed to “double file” EEOC charges for the same conduct.

In so ruling, the court noted its 2005 precedent in Duncan v. City and County of Denver, outlining the relevant factors to determine if events do or do not constitute part of “the same actionable hostile work environment practice” under Morgan: They must be “related by type, frequency, and perpetrator” without any “intervening action by the employer” that might break the relationship.

The case is Hansen v. SkyWest Airlines, 844 F.3d 914 (10th Cir. 2016).

 

Quid Pro Quo and Hostile Work Environment, both, just sexual harassment, by a different name

Federal and state law prohibit sexual harassment. The courts have articulate two common types of sexual harassment: quid pro quo (where someone is asked to provide sex in exchange for a job benefit or punished on the job for not providing sex) and hostile work environment (where someone is subjected to “severe or pervasive” mistreatment because of their sex/gender). Whatever the kind of civil rights violation, a complaint of sexual harassment must first be lodged with the EEOC (or appropriate state agency) before a lawsuit can be filed.

In this case, the employee filed a the required administrative charge of sexual harassment but described only a hostile work environment, then when he later sued, he added quid pro quo allegations. The trial court held it was too late; he should have done so in his administrative charge. The Tenth Circuit disagreed holding that, under Title VII’s charge requirement and under federal pleadings standards, the employee’s allegations of sexual harassment were sufficient to put the employer on notice of any kind of sexual harassment, whether quid pro quo or hostile work environment. The court explained that quid pro quo and hostile work environment are just two different examples of sexual harassment.

The case was Jones v. Needham, case no. 16-6156 (10th Cir. 5/12/17).

Allegedly condescending use of “she” in reference to plaintiff held sufficient to support triable claim of gender discrimination

Discrimination and harassment claims are often supported by a constellation of evidence designed to show that the employer’s proffered legitimate business reason for discipline or discharge was in fact a pretext for discrimination. In this case, the First Circuit held a supervisor’s use of “she” in a condescending tone to refer to the plaintiff was, along with other evidence, sufficient to warrant a trial, because a “speaker’s meaning may depend on various factors including context, inflection, tone of voice.”

Here, a meeting attendee, SFAM Ouellette, stated in an affidavit that Johnson “made frequent references to the way `she’ was doing things. He emphasized the word `she.'” SFAM Ouellette opined that he “felt it was a condescending way to speak about her and picked up on [Johnson’s] disdain for her and for [Ouellette] when [he] defended her.” SFAM Ouellette’s observations about Johnson’s tone are based on his perception as a seasoned manager on what he had just observed, not mere speculation.

The case was Burns v. Johnson, 829 F.3d 1 (1st Cir. 7/11/16).

 

Seventh Circuit expands Title VII to cover sexual orientation

As predicted in earlier postings, the issue of whether sexual orientation is protected by Title VII is likely to see further examination by future courts. Now, the Seventh Circuit has split from those prior courts and held that, at least in its jurisdiction (Illinois, Indiana and Wisconsin), sexual orientation is protected by Title VII.

The split in Circuit Courts suggests a likelihood that this issue will now rise to the Supreme Court.

Colorado law already protects sexual orientation, as does the law in many states.

The case was Hively v. Ivy Tech Community College, — F.3d — (7th Cir. 4/4/17).

Eleventh Circuit splits over sexual orientation

In a split decision, following a recent decision by the Second Circuit, the Eleventh Circuit held that sexual orientation is not protected by Title VII.

Colorado law already protects sexual orientation, as does the law in many states.

The case was Evans v. Georgia Regional Hospital, — F.3d — (11th Cir. 3/10/17).

Second Circuit signals potential major expansion of Title VII’s protections for sexual orientation

Title VII prohibits discrimination “because of … sex,” and many court decisions have held that “sex” does not include sexual orientation. Thus, homosexuality is not protected by Title VII.

In this case, a panel of the Second Circuit repeated that holding; however, the panel then noted that, if it could consider the issue fresh, as could the Second Circuit en banc  (sitting as a full bench), it believed several arguments, outlined in its decision, would warrant holding that sexual orientation should be protected by Title VII.

The decision signals a potential expansion for protection of sexual orientation at the federal level. Colorado law already protects sexual orientation, as does the law in many states.

The case was Christiansen v. Omnicon Group, Inc., — F.3d — (2nd Cir. 3/27/17).

Supreme Court holds that trial court analysis of EEOC subpoena’s enforceability is entitled to discretion, not de novo review.

In a decision that probably surprised no one except the often-reversed and reversed-in-this-case Ninth Circuit, the Supreme Court held that a trial court, not an appellate court, is in the best position to review the particulars of a subpoena.

Interestingly, the decision, which can be seen as reinforcing the EEOC’s ability to issue subpoenas – or at least reducing judicial scrutiny over EEOC subpoenas – was technically a loss for the EEOC. The EEOC had issued a subpoena for contact information for employees who’d taken a certain test, nationwide. The company objected, and the trial court agreed with the company, holding the EEOC’s nationwide request was overly broad. The EEOC then appealed to the Ninth Circuit, which ruled it could review the trial court’s ruling de novo (from scratch) without having to give the trial court any deference. The Supreme Court disagreed and sent the case back to the Ninth Circuit. Now, the EEOC will decide if it still wants the information, and if so, it will have the heavy burden of proving not only that  it is entitled to the information but that the trial court was so wrong when it decided otherwise that it abused its discretion.

While the EEOC lost the Supreme Court case, companies should be mindful of the overarching lesson: The EEOC has broad subpoena power, and a trial court may now be the only judicial body with substantial authority to hear a challenge to an EEOC subpoena.

For an example of how EEOC subpoenas are analyzed for enforceability, see this posting.

The case was McLane Co., Inc. v. EEOC, — S.Ct. — (4/3/17/).

Tenth Circuit refuses to enforce EEOC subpoena

The Tenth Circuit refused to enforce an EEOC subpoena denied where the EEOC’s subpoena requested information regarding the employer’s treatment of other employees. The request exceeded the scope of the purely individual-oriented charge, no EEOC charge had been filed and the employer had not put its treatment of other employees at-issue in its position statement.

The case was EEOC v. TriCore Reference Laboratories, — F.3d — (10th Cir. 2/27/17).