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

Eleventh Circuit Announces New “Similarly Situated” Standard for Workplace Discrimination Claims

In employment discrimination cases, employees often seek to prove their claims by presenting indirect evidence of discrimination.  Employees will seek to present evidence that they were treated differently than similarly situated employees outside of their protected class.  On March 21, 2019, the Eleventh Circuit adopted a new test for analyzing these “comparators” by issuing its decision in Lewis v. City of Union City, Ga..  In doing so, the Court rejected its previous standards for analyzing comparators.  shutterstock_judge rulingBefore Lewis, courts in the Eleventh Circuit evaluated “similarly situated” comparators under either the “nearly identical” or “same or similar” standard, and sometimes even used both standards simultaneously.  The fact that two standards had emerged, and at times, were even used together, without any clear guidance on their proper use, caused the Court to call the entire situation “a mess.”  Accordingly, in an effort to clean up and clarify the proper standard for comparator evidence, a full panel of the Court took on Lewis so that it could address whether “similarly situated” should be interpreted as “same or similar,” “nearly identical,” or something else.  Ultimately, the Court decided to depart from its previous standards, and went with something else.  Now, in order to prove intentional discrimination by indirect evidence, a plaintiff must show that employees “similarly situated in all material aspects” received preferential treatment.  The Court also reiterated that this burden remains with the plaintiff as part of plaintiff’s prima facie case.  So, what was the case about, and what does it mean for employers?

After the announcement of a new policy requiring all police officers to carry Tasers and receive a five-second shock, Jacqueline Lewis, an African-American detective with the Union City Police Department in Union City, Georgia, was scheduled to receive such training.  She had also been scheduled to receive pepper spray training.  But, before receiving either of these, Ms. Lewis submitted a doctor’s note 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

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] A Business Primer on Disability Access Laws: Preventive Tools and Defense Strategies

On Thursday, October 25, 2018, at 1 pm EDT, join Kara M. Maciel and Andrew J. Sommer of Conn Maciel Carey’s national Labor & Employment Practice Group for a complimentary webinar:  “A Business Primer on Disability Access Laws:  Preventive Tools and Defense Strategies

Businesses continue to be plagued by litigation under the Americans with Disabilities, Title III (ADA) over alleged access barriers.  Lawsuits against hotels and retailers, among other public accommodations, appear to be on the rise with a disproportionate share in California.

Disability Webinar

This webinar will provide an overview of ADA, Title III standards as they apply to construction existing before the enactment of the ADA in 1992 as well as to subsequent new construction and alterations.  The webinar will also address Continue reading

EEOC Attacks “No Fault” Attendance Policies as ADA Violations

As you know,shutterstock_policies and procedures the Americans with Disabilities Act (ADA) prohibits discrimination against disabled employees and job applicants in all aspects of employment, including hiring, firing, and promotion.  It also provides rules for employers regarding the extent to which they may inquire about an employee’s physical or mental health, and requires employers to provide reasonable accommodations to covered employees, unless such accommodations would cause undue hardship.  Whether an accommodation is reasonable or would cause undue hardship on the employer is very fact-specific and is usually determined on a case-by-case basis, but the Equal Employment Opportunity Commission (EEOC) seems to have taken a hardline approach on employer policies related to certain types of accommodations.

One type of accommodation often requested is leave (which also tends to implicate the Family and Medical Leave Act).  Employers frequently receive such a request where an employee suffers a disabling injury, such as a broken bone, that requires him to miss work for an extended period of time to recover.  In this context, the employee will normally request leave for an extensive, but certain amount of time with at least a tentative end date, usually in accordance with his doctor’s recommendation.  Although most circuit courts agree that employers need not provide employees with indefinite leave, enforcement guidance provided by the EEOC states that company policies setting a finite limit on the length of leave violates the ADA’s requirement for employers to engage in the interactive process to discuss reasonable accommodations.

So, what happens if an employer implements a blanket “no fault” attendance policy, whereby employees are assigned points for absences, regardless of reason, and are terminated for not being able to return to work after 180 days of leave?  Employers might think this is an effective way to maintain neutrality and avoid asking employees about their reasons for taking leave – it gives employees the power to manage their leave as they see fit and takes management out of the picture.  But, the EEOC disagrees.  In fact, the EEOC would call this a form of “systemic discrimination against employees with disabilities” in violation of federal law, as demonstrated by a recent July 2018 consent decree entered into by the EEOC and Mueller Industries, Inc.

In EEOC v. Mueller Industries, Inc., the EEOC filed suit in the U.S. District Court for the Southern District of California against Mueller Industries, Inc., a global metal goods manufacturer, claiming disability discrimination.  It charged the company with terminating employees and/or failing to provide reasonable accommodations for those exceeding its maximum 180-day leave policy.  The EEOC also stated that the company violated federal law by implementing its attendance policy in a way that assigned points for absences, regardless of reason.  Essentially, the EEOC took issue with the fact that the “no fault” policy did not allow for the type of individualized assessment that the ADA requires.  Through the interactive process, employers and covered employees are meant to discuss the types of accommodations needed to allow the employee to perform his essential job functions, and to permit employers to determine whether the accommodations discussed are reasonable.  Although the burden of raising the need for an accommodation rests on the employee, once an accommodation has been requested, or the need for an accommodation has been identified, it is the responsibility of the employer to initiate the interactive process and determine a reasonable accommodation for that individual employee.  The EEOC’s enforcement guidance and July 2018 consent decree seem to direct that a “one-size-fits-all” leave policy simply does not work.

The case concluded when the parties entered into a consent decree, which will remain in effect for two-and-a-half years and applies to all Mueller facilities nationwide.  It provides for $1 million in monetary relief, as well as broad injunctive relief.  Namely, the consent decree requires that Mueller reinstate any affected individuals, revise its written policies and procedures regarding its complaint system, appoint an ADA coordinator, create and maintain an accommodation log, post a notice for its employees about the case, provide training to all employees on the ADA, develop a centralized tracking system for accommodation requests, and submit annual reports to the EEOC verifying compliance with the decree.  This can be a pretty hefty price for employers to pay, all over one policy.

In light of the EEOC’s guidance and apparent enforcement posture, employers should review their attendance procedures and make sure they are not implementing such blanket “no fault” leave policies that do not make room for employers and disabled employees to engage in the interactive process.  Leave policies should always be developed and written with the ADA in mind.  This is especially true in today’s enforcement climate where the EEOC has announced that addressing emerging and developing issues in equal employment law, including issues involving the ADA, is one of its six national priorities identified in its Strategic Enforcement Plan.