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? While 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
By: Aaron Gelb
Hiring practices, by their nature, have the potential to impact large groups of individuals. Employers using certain screening tools such as pre-employment tests and medical questionnaires may thus find themselves having to defend their policies and procedures in litigation brought by the US Equal Employment Opportunity Commission (“EEOC”). Last year, the EEOC announced in its Strategic Enforcement Plan (“SEP”) for Fiscal Years 2017 – 2021 that it will continue to focus on “class-based recruitment and hiring practices that discriminate against racial, ethnic, and religious groups, older workers, women, and people with disabilities.” Since issuing the SEP, the agency has filed a number of lawsuits across the country against employers accused of creating barriers to employment for individuals with disabilities. These cases serve as important reminders that even the most well-intentioned employers should take a close look at the tools they are using to screen applicants for the various positions they are attempting to fill or run the risk of squaring off against the EEOC.
Two recently filed lawsuits highlight the perils associated with pre-employment drug testing and/or asking applicants about their prescription drug usage.
In EEOC v. M.G. Oil Co. d/b/a Happy Jack’s Casino, 4:16-cv-04131-KES (D. S.D.), the agency accused the defendant of discriminating against an applicant for a cashier position by revoking her conditional employment offer after learning she received a non-negative drug screen result. M.G. Oil promptly filed a third-party complaint seeking indemnity and contribution from TestPoint Paramedical, LLC, the company which administered the drug test. M.G. Oil accused TestPoint of failing to send the test results to a medical review officer to determine if there was a valid reason for the non-negative result. M.G. Oil’s gamble failed as the court dismissed the claims against TestPoint, leaving M.G. Oil to explain why it refused to reconsider its decision to revoke the applicant’s offer after she explained the non-negative drug test result was due to her lawful use of a prescription pain killer she took for back pain. The EEOC also accused M.G. Oil of violating the ADA by requiring all employees to report both prescription and non-prescription medications they are taking. Eventually, the Company entered a consent decree settling the lawsuit, agreeing to pay $45,000 and adopt company-wide policies to prevent future hiring issues under the ADA. The company also agreed to only require employees to report prescription and non-prescription medications that may affect their performance. Continue reading