Discrimination Archives - Page 10 of 11

EEOC Warns Employers Against Domestic Violence Discrimination

In its recent guidance titled “Questions and Answers: The Application of Title VII and the ADA to Applicants or Employees Who Experience Domestic or Dating Violence, Sexual Assault, or Stalking,” the EEOC cautions employers against unwittingly violating Title VII and the ADA in addressing employment-related issues involving victims of domestic violence.

The EEOC reminds employers that while Federal law does not expressly protect domestic violence victims from employment discrimination, such victims may still be entitled to protection under federal employment discrimination laws.

In its guidance, the EEOC provides examples of situations where employers may violate Title VII by engaging in disparate treatment, or applying sex-based stereotypes to victims of domestic violence. For example, an employer that terminates an employee victimized by domestic violence due to fear of the potential “drama battered women bring to the workplace” may engage in discrimination based on sex in violation of federal law.

The EEOC further warns employers to exercise caution before transferring or discharging domestic violence victims based on general concerns that they may pose greater workplace safety risks. Instead, employers should seek alternate resolutions before taking adverse action, such as paying for workplace security or getting a temporary restraining order. Even if such options are not effective, an employer should take adverse action against an employee only based on specific and concrete facts showing that the employee poses a threat to other employees.

Further, the EEOC guidance highlights situations in which an employer may violate the Americans with Disabilities Act (“ADA”) in treating employees and applicants adversely based on actual or perceived impairments resulting from domestic or dating violence. An example of this includes refusing to hire a domestic violence victim “based on a concern that she may require future time off for continuing symptoms or further treatment of depression.” The ADA may also require an employer to provide employees reasonable accommodations; such as where a victim of sexual assault requests unpaid leave to get treatment for depression and anxiety, but has no accrued sick leave and is not covered by the Family and Medical Leave Act. In certain situations the employer may have to modify its leave and attendance policies to accommodate the leave request, or risk violating the employee’s rights under the ADA.

Many of the scenarios discussed in the EEOC’s Q&A’s are straightforward and may surprise few employers. Yet the guidance highlights the agency’s interest in protecting victims of domestic violence, and signals to employers that the EEOC will be paying close attention to these issues. Finally, while Federal law offers limited protection to domestic violence victims, a handful of States have specific laws either directly protecting victims of domestic violence from employment discrimination, or requiring employers to give employees time off to attend court proceedings, obtain protective orders and/or seek services for the effects of domestic violence. Employers are well advised to consult the laws of their individual States and otherwise tread lightly when dealing with victims of domestic violence.

Yahoo’s Ban on Working from Home: Does it Raise Red Flags For Other Companies?

Yahoo’s widely reported decision to require its remote workforce to physically report to one of Yahoo’s office locations – or face termination of employment – has caused a social media stir. Here are some of the common questions, and our thoughts about whether Yahoo’s decision signals a trend applicable to other companies.

Q: Can Yahoo fire its remote workforce if they refuse to return to the office?

A: For the most part – yes. If employees are employed “at-will,” then they can be fired with or without cause, and without notice. In other words, Yahoo’s statement that they feel the business is best served by the regular, spontaneous interactions resulting from having employees in the office is a legitimate non-discriminatory reason to require employees to return to the offices. Therefore, any employee who refuses to physically report to a Yahoo office location can be lawfully fired for his/her refusal. Exceptions are generally limited to a circumstance where Yahoo had agreed, in writing, that the employee was guaranteed the ability to work from home. Another limited exception is if the employee is allowed to work from home for a specified period of time, as a reasonable accommodation for a verified disability.

Q: Does Yahoo’s decision signal that the other industries should re-evaluate the use of remote workers?

A: While it is always productive to re-evaluate the effectiveness of workforce models, a wholesale rejection of the remote worker model does not necessarily serve an industry’s business needs, or risk management objectives.

First, Yahoo’s action is perceived as providing an opportunity to pare down a “bloated” workforce in an effort to limit the need for extensive reductions in force. Yahoo is betting on there being less morale and legal risk associated with an employee’s resignation vs. an involuntary termination. While companies may face the business need to ramp down certain departments depending on where they are in the approval process, targeted restructurings are generally a more appropriate response.

Second, many companies, such as Life Sciences companies that are paring down costs as they await FDA approval, use remote workers as a cost-savings method, to reduce office overhead costs. In contrast, it has been reported that Yahoo has “excess” office space that presumably would not be cost-effective to offload or sublease. Also, the majority of Life Sciences companies are clustered in the areas of metro NY/NJ, Boston, the Bay Area and LA. Clearly, traffic is a significant issue in these areas and working remotely can offset the loss of productivity caused by lengthy daily commutes.

Remote work is also a necessity for many Life Sciences companies. For example, clinical trials are conducted at investigator sites in the U.S. and around the world. Employees in clinical operations must not only travel on a regular basis, but the ability to work remotely for much of the time when they are not traveling is valued. Also, using a remote workforce is a common response to growth and expansion, especially when there is a need to locate your sales force in states outside of company headquarters and manufacturing facilities.

Fourth, most industry jobs do require a Bachelor’s degree, and workforce studies indicate that approximately one-fifth of Life Sciences jobs require an advanced degree. Clearly, the ability to attract and retain a highly skilled and well-trained workforce has been recognized as a necessity to remain competitive – and that applies to small start-ups and large multi-national pharmaceutical companies. The ability to work remotely, at least part of the time, can be an effective recruiting and retention tool.

Q: What are the emerging HR issues with regards to the use of remote workers?

A: While mobile technology is a tremendous asset in terms of collaboration, the law does not always keep pace with the cross-over intersection of business and personal use of mobile technology. As a result, it is a “new frontier” and employers are faced with having to anticipate the potential legal liability. For example, to the extent that your company is monitoring employees’ e-mail/text and other use of mobile technology to ensure productively, it is critical to warn employees that they are being monitored, and they should have no expectation of privacy. We are also seeing an increasing rise in litigation and employer-adverse agency decisions resulting from employers’ use of information about employees’ non-work activities gleaned from review of their personal Facebook accounts as a basis to discipline or terminate employees. Also, many states have enacted or proposed legislation that makes it unlawful for an employer to directly or indirectly obtain access to an employee’s Facebook account. As a result, we recommend that concerns about employee abuse of telecommuting are best addressed by routine and regular performance management, rather than social media spying.

We also recommend proactive management of concerns relating to data confidentiality and network security. This includes review of existing restrictive covenant agreements to insure that enforceable non-disclosure, non-solicit and, if warranted, non-compete agreements are in place, tailored to protect those assets most critical to your business. Choice of law provisions also need to be considered when the employee is in a different state or country than the HQ location. In addition, we recommend providing the equipment used by the remote employee (phone/laptop, etc.), so that equipment – and all the programs and data contained on those devices – can be legally recovered at the end of the employment relationship. Protocols should also be in place to restrict access to proprietary and other confidential information, to demonstrate that your company has a legitimate need to protect certain information.

Finally, we urge caution when allowing non-exempt employees to work remotely. Wage and hour laws require that the hours non-exempt employees work are accurately tracked, and that they receive overtime for extra hours recorded, including for hours that the Company was on notice that the employee was working, even if those extra hours were not recorded. Employers are being deemed as “on notice” when they are aware that the employee is e-mailing or texting supervisors about work during “off-hours” based on the access provided by mobile technology that might not be otherwise available to a non-exempt employee who is not working remotely.

(Editor’s note – This post was distributed as a Drinker Biddle Client Alert on February 27, 2013. To read other Drinker Biddle alerts and publications click: http://www.drinkerbiddle.com/resources)

Second Circuit Rejects Application of McDonnell Douglas to New York City Human Rights Law – But Grants Summary Judgment Under More Lenient Analysis

The U.S. Court of Appeals for the Second Circuit recently affirmed a district court’s summary judgment dismissal of a lawsuit that an attorney filed against her former employer alleging race discrimination under federal, state and New York City law. In Simmons v. Akin Gump Strauss Hauer & Feld, LLP, 2013 U.S. App. LEXIS 1571 (2d Cir. 2013), the Court explained that the trial court had erroneously applied the McDonnell Douglas analysis to a New York City Human Rights Law claim, rather than only to the federal and state claims. Nonetheless, the Second Circuit concluded that the trial court properly dismissed all of the claims.

Plaintiff Tameka Simmons worked as an associate for defendant law firm, Akin Gump Strauss Hauer & Feld, LLP (“Akin Gump”), from 2007 to late 2009. In 2009, the firm was “experiencing significant economic difficulties.” For economic reasons, Akin Gump laid off forty-seven attorneys in March 2009. In April 2009, the firm announced deferred start dates for incoming associates. In June 2009, the firm converted a full-time associate to an hourly employee. At the end of 2009, the firm discharged Simmons.

Simmons filed a lawsuit against Akin Gump in the U.S. District Court for the Southern District of New York. Her claims included race discrimination in violation of: (1) Section 1981 of the Civil Rights Act of 1866, 42 U.S.C. § 1981; (2) Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq.; (3) the New York State Human Rights Law, N.Y. Exec. Law § 296; and (4) the New York City Human Rights Law, NYC Admin. Code § 8-101 et seq. After discovery, Akin Gump filed a motion for summary judgment. The district court granted the motion, dismissing the lawsuit in its entirety. Simmons appealed.

The Second Circuit analyzed the federal and state claims under the “burden-sifting framework” of the McDonnell Douglas case. In so doing, the Court considered whether Simmons could establish a prima facie case of discrimination by showing: (1) that she was a member of a protected class; (2) that her job performance was satisfactory; (3) that she experienced an adverse employment action; and (4) “circumstances giving rise to an inference of discrimination” based on her membership in the protected class.

The Court concluded that Simmons could not establish the fourth prong of the analysis, because no evidence gave “rise to a reasonable inference of discrimination due to her race.” According to the Court, the evidence demonstrated that Akin Gump terminated her employment solely for economic reasons.

In any event, the Court explained, even if Simmons had been able to establish a prima facie case of discrimination, she could not have satisfied the next step in the McDonnell Douglas analysis, which was demonstrating that the firm’s proffered reason for her termination was pretextual. To satisfy this burden, Simmons would have had to present “sufficient evidence to support a rational finding that the legitimate, non-discriminatory reasons proffered by [the firm] were false, and that more likely than not discrimination was the real reason for the employment action.” The Court acknowledged that Simmons provided “some evidence” – such as the “low percentage of African-American associates” in her department of the firm – but it was insufficient. According to the Court, “[n]o reasonable jury could have found, on this record, that Simmons was selected for the reduction-in-force at least in part because of her race.”

The Second Circuit then turned to Simmons’ claims under the New York City Human Rights Law. The Court explained that the New York City law “was intended to provide a remedy reaching beyond those provided by the counterpart federal civil rights laws.” Accordingly, under the City law, Akin Gump could only obtain summary judgment by “showing that, based on the evidence before the court and drawing all reasonable inferences in [favor of Simmons], no jury could find that [Akin Gump] treated Simmons ‘less well’ than other employees at least in part because of her race.”

The Second Circuit observed that the district court had erred in failing to apply this more lenient analysis. Nonetheless, even under this analysis, the Second Circuit concluded that Simmons could not maintain her claim. The Court concluded that “Simmons failed to raise a triable issue as to whether she was treated less well than other employees based in whole or in part on discrimination, and not because of the non-discriminatory reasons proffered by [Akin Gump].”

As the Simmons v. Akin Gump case makes clear, the analysis that courts apply to discrimination claims under the New York City Human Rights Law is more lenient than the analysis under federal and state anti-discrimination laws. Employers with New York City employees should be aware of the more liberal analysis, but understand that – even under this analysis – courts will dismiss claims as long as employers can provide adequate support for their decisions. The keys to this effort include maintaining clear policies and documenting reasons for employment decisions.

David Raizman Quoted in Daily Journal

Los Angeles partner David Raizman was quoted in the Daily Journal in an article titled, “Increasing Disability Discrimination Claims Bring up Fraught Workplace Issues.”

The article discusses the rise of disability discrimination and failure to accommodate disability complaints in California, a state that has long had strong provisions against workplace disability discrimination.

Lawyers on both sides of the fence attribute the increased filings to a growing awareness of workplace disability rights among employees and an increased willingness among judges to put such claims before a jury.

California legislators have long employed a broad definition of disability, for example, to include conditions that merely “limit” various life activities, as opposed to “substantially limit” such activities. Then in 2008, the U.S. Congress adopted many of California’s broad interpretations into federal law.

David, a partner in the Labor & Employment Practice Group, said, “California really led the way here” and, as a result, workers in the state are more likely to see a “less traditional” disability like obesity as something to be accommodated by employers.

David said he tells his clients that if the plaintiff has a medical diagnosis of any kind, a court will most likely consider him or her disabled. He also said that plaintiffs’ lawyers have learned that the claims are likely to go before a jury because they’re “very hard to dispose of at the summary judgment stage.”

He noted that an employer’s claims of undue hardship in accommodating a disabled worker are “frankly, generally squishy concepts that are more subject to factual dispute than others.”

David added that as California’s workers age, claims of workplace disability discrimination will only continue to increase.

“Given the broad definition of disability, the population is getting more disabled,” he said.

Discrimination Claims Based on Denial of Religious Clothing Is “Low Hanging Fruit” to EEOC

At a recent workshop for attorneys, the Equal Employment Opportunity Commission provided guidance on what employers should consider when enforcing a dress code policy on religious clothing.

A senior EEOC attorney described cases involving religious clothing and grooming policies as “low hanging fruit” for EEOC enforcement efforts. Among the cases the EEOC is investigating are claims of religious discrimination where employees have been disciplined or otherwise disadvantaged for donning Muslim head scarves, Sikh turbans and yarmulkes. The EEOC is also pursuing cases involving religious tattoos. In one case, EEOC recently sued a Burger King restaurant for religious discrimination because it fired a female cashier, who is a Christian Pentecostal, for refusing to wear uniform pants. A tenet of the Christian Pentecostal faith is that its members should not wear the clothing of the opposite sex. The woman’s offer to wear a skirt of modest length was rejected and she was discharged.

EEOC acknowledges that employers can have and enforce a dress code, but when it comes to dealing with employees who wear clothing for religious reasons or have special grooming requirements EEOC takes the position that exceptions to the policy may be required as an accommodation. Under Title VII of the Civil Rights Act of 1964, an employer is required to accommodate an employee’s religious belief unless doing so would create an “undue hardship.” According to the EEOC attorney, an undue hardship is “anything that would cause more than a de minims cost on the employer’s operation.”

Employers should be careful about arguing that absolute enforcement of a dress code policy is a business necessity. The EEOC will scrutinize an employer’s ban on religious clothing that the employer justifies based in its desire to convey a certain image to customers and the public. EEOC and the courts have recognized undue hardships where the religious clothing creates a safety hazard or where the garb may be mistaken as being the employer’s “message” to customers and clients. However, employers should tread cautiously. In one case, a court found that a county library discriminated on the basis of religion when it fired a librarian because she refused to remove a “cross necklace.” The court held that library patrons were unlikely to believe that the cross was part of the county’s message.

Employers should review their dress code policies to ensure they are not discriminatory and that they recognize the possibility of accommodating religious clothing, jewelry and tattoos. In addition, managers should be educated to understand the employer’s rights and responsibilities when faced with an employee’s request to wear a religious article that may conflict with the dress code policy.

New Jersey’s Appellate Court Denies Employer’s Attempt to Dismiss Claims on Eve of Trial Based on Employee Agreement to Arbitrate

Can an employer litigate employment claims in court and then enforce an arbitration agreement against the plaintiff-employee on the eve of trial to avoid presenting the case to a jury? The New Jersey Appellate Division just said, “No.”

Plaintiff Karen Cole was a nurse anesthetist employed by Liberty Anesthesia Associates, LLC to work at Jersey City Medical Center. When her privileges were revoked by the Hospital, Liberty terminated her employment and she filed suit against both Liberty and the Hospital for retaliatory discharge under the New Jersey Conscientious Employee Protection Act (“CEPA”), and for discriminatory discharge based on her disability under the New Jersey Law Against Discrimination (“LAD”).

Cole settled her claims against the Hospital at the hearing on the Hospital’s motion for summary judgment. Liberty did not settle with plaintiff at that time. Instead, after defending the action for almost two years in litigation, Liberty moved to dismiss the claims against it one month later in a motion in limine filed three days before trial based on the arbitration agreement Cole had entered into in her employment agreement with Liberty. The trial court enforced the arbitration agreement and dismissed the case on the eve of trial, and Cole appealed.

In a March 29, 2012 opinion, the New Jersey Appellate Division reversed and remanded the action for trial. The court found that Liberty’s counsel had pursued the litigation – instead of seeking to enforce the arbitration agreement – as a deliberate trial strategy, and determined that Liberty was equitably estopped from enforcing the arbitration provision at the last minute before trial where it had failed to mention arbitration among the thirty-five affirmative defenses asserted in its Answer; failed to identify the arbitration agreement in discovery; and failed to raise the agreement in its motion for summary judgment on the merits. The court observed that Liberty’s deliberate course of conduct was prejudicial to Cole where it had caused her not only to participate in extensive discovery, but also to prepare to try her case before a jury, which the court noted required a great deal more preparation than presenting a case in arbitration.

To read the published opinion in Cole click here. Cole is reported at 425 N.J. Super 48 (App. Div. 2012).