On the Basis of Personal Appearance

As you know, Title VII of the Civil Rights Act of 1964 (Title VII) is one of the principal federal statutes prohibiting employment discrimination.  It prohibits discrimination on the basis of race, color, national origin, religion, and sex (including gender and pregnancy).  shutterstock_Washington DCOther federal statutes that prohibit employment discrimination include Title I and Title V of the Americans with Disabilities Act (ADA), the Age Discrimination in Employment Act (ADEA), the Genetic Information Nondiscrimination Act (GINA), and the Uniformed Services Employment and Reemployment Rights Act (USERRA).  But, employers must also be aware of state and local laws that extend protection beyond these federally protected classes.  In the District of Columbia, for example, it is a violation of the law to discriminate on the basis of personal appearance, a category of protected class that has caused employers significant confusion with respect to what kinds of dress and grooming policies they may lawfully enforce.  So what does personal appearance discrimination mean?  And what should employers do to minimize their legal risk and ensure they do not run afoul of such laws?

Under the D.C. Human Rights Act (DCHRA), personal appearance is one of 20 protected traits for people that live, visit or work in D.C.  Personal appearance is defined as the outward appearance of any person, irrespective of sex, with regard to bodily condition or characteristics, manner or style of dress, and manner or style of personal grooming, including, but not limited to, hair style and beards.  To flesh this out, the D.C. Office of Human Rights, which administers Continue reading

Good Faith Goes a Long Way: The Benefits of Fully Engaging in the Interactive Process Mandated by the Americans with Disabilities Act

On Monday, March 25, 2019, I had the privilege to co-present on reasonable accommodations and the interactive process under the Americans with Disabilities Act (the “ADA”) at the HR in Hospitality Conference in Las Vegas, Nevada. One of the issues Picture1covered during our presentation involved the fact that the ADA does not require that employers provide the specific accommodation requested by an employee as long as the employer offers a reasonable accommodation to the employee who made the request.  While employers can use their business judgment when deciding how best to reasonably accommodate an employee, a settlement recently announced by the EEOC underscores that many employers would be well-advised to develop internal procedures or guidelines to help ensure that those involved in the accommodation process understand what is expected of them and the company when responding to accommodation requests.   According to a lawsuit filed by EEOC in Minnesota, a Bath and Body Works store failed to reasonably accommodation a sales associate with type-1 diabetes suffering retinopathy who asked that a larger monitor screen be placed at the cash register.  Instead, a store manager purchased what the EEOC described as “a cheap, hand-held magnifying glass” to be used by the sales associate when working the register.

Under a consent decree settling the suit (EEOC v. Bath and Body Works), Bath and Body Works agreed to pay Continue reading

N.J. Court Opens Door for Employees to File Disability Discrimination Claims for Adverse Employment Actions Related to Medical Marijuana Use

Several states have taken steps toward legalizing marijuana in some form.  However, these laws differ in many respects and raise interesting questions for employers, especially as they relate to off-duty conduct.

While some states such as Arizona, Delaware, and Minnesota provide specific statutory protections for employees that have a valid prescription for medical marijuana, there has been an increase in litigation under state disability discrimination laws for failure to accommodate an employee’s use of marijuana to treat a disability. The lingering question remains whether an employer’s decision to take an adverse action against an employee for using medical marijuana outside the workplace is protected under the Americans with Disabilities Act (“ADA”) or a state’s disability Continue reading

Court Ruling Further Clarifies ADA Website Accessibility Obligations

Over the past several years, we have written extensively about employers’ obligations to make their websites accessible for individuals with visual, hearing and physical impairments.  In the past, we have counseled employers who are considered a “place of public accommodation” (such as a hotel, restaurant, place of recreation, doctor’s office, etc.) to at the very least do some due diligence to determine whether their websites are accessible for disabled users, so that those individuals can use and navigate those websites and/or purchase goods sold onWebsite Accessibility Picture the websites.  (For more information about the developing law on this issue, check out our prior posts here and here.)  Now, for the first time, a U.S. Court of Appeals has ruled on this issue and has confirmed that so long as there is a “nexus” between a company’s website and a physical location (which is typically the case), a company must make its website accessible or risk significant legal exposure for violating the Americans with Disabilities Act (“ADA”).

(As a reminder, although not the subject of this blog post, we have also written about a second consideration here regarding website accessibility that applies only to hotels and other places of lodging and currently is the subject of a tremendous amount of litigation.  Specifically, the implementing regulations of Title III of the ADA require a hotel’s website to provide information regarding various accessibility features at its property, so that a mobility impaired individual can determine whether he or she can navigate the public areas and guestrooms at the property.).

Continue reading

Have Faith: 4.9 Million Dollar Settlement Underscores Importance of Accommodating Religious Beliefs During Hiring Process

What happens when the religious beliefs of an applicant conflict with your grooming and appearance policy?  What if the applicant is seeking a public-facing position in which they will be the first (and only) representative of your organization with whom most members of the public interact?  shutterstock_EEOCWhile some employers may believe that “image is everything” when it comes to the appearance of their public-facing employees, a 4.9 million-dollar settlement of a religious discrimination lawsuit announced recently by the U.S. Equal Employment Opportunity Commission (“EEOC”) serves as a stark reminder to employers that even your most straightforward policies may need to be modified in certain situations.  As detailed in our June 7, 2018 blog post, the EEOC has been aggressively making good on the promise made in the agency’s Strategic Enforcement Plan for Fiscal Years 2017 – 2021 to focus on “class-based recruitment and hiring practices” that discriminate against people with disabilities by filing a series of lawsuits accusing employers of violating the Americans with Disabilities Act by inquiring about prior medical histories, subjecting applicants to physical capacity tests and refusing to hire individuals who disclosed certain conditions.  The agency’s Strategic Enforcement Plan similarly committed to rooting out religious barriers to employment.  This is important because while many employers readily understand the need to reasonably accommodate disabled applicants and employees, it seems that some employers fail to grasp that they may also have to accommodate religious beliefs and practices of applicants and employees.

What the Law Requires

Title VII requires that employers, once informed that a religious accommodation is needed, accommodate an employee whose sincerely held religious belief, practice, or observance conflicts with a work requirement, unless doing so would pose an undue hardship.  If an employer’s dress and grooming policy conflicts with an employee’s known religious beliefs or practices, the EEOC expects Continue reading

[Webinar] OSHA & the ADA: How two Labor Laws Can Align & Diverge

On Tuesday, December 4, 2018, at 1 pm EDT, join Jordan B. Schwartz and Lindsay A. Disalvo of Conn Maciel Carey’s national Labor & Employment Practice Group for a complimentary webinar:  “OSHA & the ADA: How two Labor Laws can Align & Diverge.”Cover slide

OSHA guidance states that “if an employee can perform their job functions in a manner which does not pose a safety hazard to themselves or others, the fact they have a disability is irrelevant.”  Although OSHA portrays this policy as straightforward, in practice, it can be difficult to determine when and how to accommodate a disability under the Americans with Disabilities Act (“ADA”), while also protecting the safety of the disabled employee and his or her co-workers.  This assessment can be further complicated when the employer is unaware a disability may cause or contribute to a workplace safety issue.  The importance of understanding the laws at play in this context has increased, and will continue to increase significantly, due to the aging workforce, and the unique challenges these types of workers may face.

The ADA also requires that medical information related to a disability be kept confidential, yet OSHA mandates certain information be provided when recording injuries and illnesses for OSHA Recordkeeping.  A disability may also impact whether and how an injury is recorded.  Therefore, it is critical for employers to understand the intersection between the ADA and OSHA.

During this webinar, participants will learn:

  • Requirements related to ADA disability accommodation, and how to evaluate an accommodation in the context of legitimate safety concerns
  • How to address unsafe conditions or performance related to an employee disability
  • Best practices to foster safety in the context of an aging workforce
  • Injury and illness recordkeeping practices related to employee disabilities

Click here to register for this webinar.

 

 

Fall 2018 Unified Agenda Forecasts Several Significant Employment-Related Regulatory & Deregulatory Actions

By: Mark M. Trapp and Aaron R. Gelb

On October 17, 2018, the Trump Administration released its Unified Agenda of Regulatory and Deregulatory Actions (“Agenda”). Reports such as these, usually issued twice a year, set forth each federal agency’s forecast of its anticipated actions and rulemaking priorities for the next six-month period. It also provides estimated timelines for completion. This regulatory to-do list provides insight into the administration’s upcoming priorities. The current Agenda emphasizes the Trump Administration’s efforts to deregulate industry, but also includes several regulatory items of importance to employers.

Here is a summary, broken down by department, of the most significant employment-related items addressed in the Agenda.

Department of LaborFall 2018 Agenda_DOL_3

Wage and Hour Division

Joint Employment. The Obama administration took a much broader view of “joint employment” – situations in which a worker may be considered an employee of two or more separate employers. Following the lead of the NLRB, which last month issued its own proposed rule re-tightening the standard for joint employment, the DOL announced its intention to “clarify the contours of the joint employment relationship to assist the regulated community in complying with the Fair Labor Standards Act.” A notice of proposed rulemaking is scheduled to issue as early as December 2018 and will hopefully modernize the method for determining joint employment in today’s workplace.

White Collar Overtime Exemption. The DOL has listed as a priority its long-awaited rule to update the salary level for the exemption of executive, administrative and professional employees under the FLSA (the so-called white-collar exemption). It is expected to raise the threshold exemption for such employees from the historical level under the FLSA ($23,660 annually), but not as high as the former rule adopted by the Obama administration, which would have more than doubled the minimum salary level but was enjoined by a court. The timeframe is somewhat unclear and has been pushed back twice already. The Agenda states it is now expected in March 2019.

Regular Rate. Under the FLSA, employers must pay covered employees time and a half their regular rate of pay for hours worked in excess of forty hours in a workweek. The DOL has stated its intent to amend its regulations “to clarify, update and define the regular rate requirements under the FLSA.” The new proposal is expected in December 2018.

Tip Regulations. In March of 2018, the omnibus budget bill amended the FLSA and addressed rules affecting tipped employees and so-called “tip pooling.” The DOL is expected to issue a proposed rule this month to clarify and address the impact of the 2018 FLSA amendments.

Occupational Safety and Health Administration

Tracking of Workplace Injuries and Illnesses. OSHA proposed to amend its recordkeeping regulation to remove the requirement to electronically submit to OSHA information from OSHA Form 300 (Log of Work-Related Injuries and Illnesses) and OSHA Form 301 (Injury and Illness Incident Report) for establishments with 250 or more employees which are required to routinely keep injury and illness records. Under the proposed rule, these establishments would be required to electronically submit only information from the OSHA Form 300A (Summary of Work-Related Injuries and Illnesses). OSHA also proposed to add the Employer Identification Number (EIN) to the data collection to increase the likelihood that the Bureau of Labor Statistics (BLS) would be able to match OSHA-collected data to BLS Survey of Occupational Injury and Illness (SOII) data and potentially reduce the burden on employers who are required to report injury and illness data both to OSHA (for the electronic recordkeeping requirement) and to BLS. OSHA is reviewing comments and is expected to publish a final rule in June 2019. Many entities submitted comments regarding the anti-retaliation provisions of the rule, but it is not known whether OSHA will make further changes to that aspect of the rule. Meanwhile, OSHA issued a memorandum on October 11, 2018 with the stated intent of clarifying that the rule does not prohibit workplace safety incentive programs or post-incident drug testing. Action taken under a safety incentive program or post-incident drug testing policy would only violate 29 C.F.R. § 1904.35(b)(1)(iv) if the employer took the action to penalize an employee for reporting a work-related injury or illness rather than for the legitimate purpose of promoting workplace safety and health. This rulemaking has been moved from the Proposed Rule Stage to the Final Rule Stage. Continue reading