#MeToo and Workplace Harassment: A Letter to my Daughter

Dearest Daughter,

In October 2017, more than four dozen women stood up against workplace harassment by a man of power in the entertainment industry.  Then, the #MeToo Movement was born where people of all races, ages, backgrounds, and geographic regions, working in different industries, stood up and voiced that they too have been sexually harassed and/or sexually assaulted.  Unfortunately, these are not the first national headlines related to workplace harassment in the past several months and major companies have found themselves on the front page for not taking stronger steps to prevent and address complaints of harassment.

That this behavior is still occurring in the workplace in 2017 and has not prior garnered a national outcry is astonishing.  Just last year, the EEOC received a record level of 91,503 charges of discrimination filed with the agency.  My hope for you – my three year old daughter – is that you never will be someone who needs to say #MeToo.  However, if you do, and it happens in the workplace, let me give you some advice: Continue reading

Federal Court in Florida Rules that a Grocery Store Must Make its Website Accessible

Our retail and hospitality clients often ask whether the Americans with Disabilities Act (“ADA”) requires their websites to be accessible for individuals with disabilities.  Unfortunately, as we have previously explained, there are numerous reasons why there is no clear answer to this question:  Website Accessiblity

  • While Title III of the ADA prohibits discrimination against individuals on the basis of disability with regard to their participation and equal enjoyment in places of public accommodation, the statute does not explicitly define whether a place of public accommodation must be a physical place or facility;
  • These types of issues historically have arisen in brick-and-mortar buildings such as lack of accessible parking stalls, insufficient ramps, and inaccessible bathrooms;
  • No regulations on the issue of website accessibility currently exist, and the Department of Justice (“DOJ”) has pushed back the date on which it is supposed to issue such regulations until 2018 at the earliest;
  • The DOJ has emphasized that businesses should make websites accessible to disabled individuals by relying on a set of private industry standards developed by the World Wide Web Consortium known as the Web Content Accessibility Guidelines (“WCAG”);
  • Very few cases have reached a resolution on the merits.

As a result, the state of the law regarding the applicability of the ADA to company websites has been in flux the last several years.  However, we now are starting to see some guidance from the courts, although there have been contrasting decisions that have not exactly clarified matters.

Continue reading

Kara Maciel to Speak at HR in Hospitality Conference

main_hosp.jpgThe annual HR in Hospitality Conference, which is a leading conference that has content tailored to meet HR professionals’ needs to stay up to day on the latest legal issues facing the hospitality industry, will be held in Las Vegas on March 27 – 29, 2017.

Kara Maciel, Chair of the Labor & Employment Practice, is pleased to be speaking on a panel with other industry experts to discuss the top “50 Legal Tips in 50 Minutes.”  The panel will occur on March 28, 2017 from 4-5 pm, and will discuss the new Trump Administration, and what legislative and regulatory policies will change, what policies cannot change, what policies may change, and what to expect at the state law level.

All HR professionals in the hospitality industry will benefit from this conference, and as a friend of Conn Maciel Carey, you can register with a $100.00 discount off registration by clicking here.

We hope to see you in Vegas!

Announcing our 2017 Labor & Employment Webinar Series

5b0ac5ef-4c7d-4ae7-9d4a-2a1cffe3a587During the last few years, employers have become accustomed to increased scrutiny and enforcement from various federal agencies, including the Department of Labor, Department of Justice and the Equal Employment Opportunity Commission. While it is anyone’s guess as to how proactive these agencies will be during the Trump administration, the fact remains that various complex local, state, and federal laws currently are in place designed to protect employees under a wide variety of circumstances. With employers in all industries scrambling to prepare for a changing workplace in the coming months/years, it is as important as ever to be prepared for what’s ahead from an employment law perspective.

Conn Maciel Carey’s 2017 Labor & Employment Webinar Series, hosted by the firm’s Labor & Employment Practice Group, is designed to give you the practical solutions to ensure you are running your business in a way that does not run afoul of the most important labor and employment laws facing our workforce today.

Click here for the full schedule and program descriptions. To register for individual webinars, click on the program titles below.

Register me for the entire
2017 Labor & Employment Webinar series

March 22nd
The DOL’s Major 2016 Regulatory Initiatives and how (and/or whether) those will be implemented in the coming year

April 19th
Key Employment Law Issues for Start-ups and other Small Business, including relevant California laws

May 24th
Recurring Marijuana Issues in the Workplace

June 8th
The Changing Landscape of Anti-Discrimination Laws and Workplace Policies in Light of the NLRB

July 11th
Multi- and Joint-Employers, Contractors and Temps

September 19th
The Impact of Workplace Violence as it relates to Employment Laws and OSHA

October 17th
Addressing Employee Complaints: Whistleblower/Retaliation Claims and OSHA Notices of Alleged Hazards

November 15th
Employment Agreements,
Restrictive Covenants and Trade Secrets

Employment and OSHA in the Workplace Bathroom: Transgender, ADA, Sanitation and Accessibility Issues

By Jordan B. Schwartz and Eric J. Conn

Gender Neutral Bathroom SignThe Department of Justice (“DOJ”) and the Occupational Safety and Health Administration (“OSHA”) have long enforced accessibility and sanitation standards for restrooms for workers and the public – an idea that generally makes sense viewed as a health and safety concern.  In the last few years, however, new policies at the state and federal levels on transgender issues mean all employers must pay particular attention to rules and enforcement regarding access to restrooms.

Indeed, OSHA has now found a way into the highly political and social issue of transgender equality by making its own policy pronouncements on access by workers to restrooms of the gender with which they identify.  In 2015, Assistant Secretary of Labor for OSHA Dr. David Michaels explained the Agency’s position on this when he unveiled a new OSHA Guide to Restroom Access for Transgender Workers, he said:

“The core principle is that all employees, including transgender employees, should have access to restrooms that correspond to their gender identity.”

The emergence of bathroom issues from a legal and regulatory standpoint is not limited to the transgender issue.  This article addresses the complexities of this subject and how it affects regulatory compliance and employment law liabilities.

Transgender Issues from an Employment Law Perspective

There are numerous employment law obligations for employers in the transgender area.  Title VII, for example, prohibits discrimination based on sex, which includes treating employees differently for failing to conform to sexual stereotypes.  The Attorney General has issued a memorandum expressing that Title VII specifically prohibits discrimination because Continue reading

EEOC Issues Guidance on Mental Health Discrimination and Reasonable Accommodations

On December 12, 2016, the EEOC issued a resource document, titled “Depression, PTSD, & Other Mental Health Conditions in the Workplace: Your Legal Rights,” reminding employers of workplace rights for employees and applicants with mental health conditions and clarifying the protections afforded by the Americans with Disabilities Act (“ADA”).

Employers should carefully review the resource document given the rise of discrimination complaints based on mental health conditions.  During fiscal year 2016 alone, the EEOC resolved almost 5,000 charges of discrimination based on mental health conditions.  The EEOC has taken a hard stance on employers’ duties to provide reasonable accommodations for employees with mental health conditions, especially in light of the number of veterans who have returned home with service-connected mental health issues, such as depression and post-traumatic stress disorder.

Mental Health Conditions and the Americans with Disabilities Act

Under the ADA, job applicants and employees with mental health conditions are protected from employment discrimination and harassment based on their mental health condition, and may have a right to a reasonable accommodation at work.  Many employers are aware of different types of accommodations for people with physical and communication disabilities, but are generally less familiar with accommodations for individuals with disabilities that are not visible, such as mental health conditions.

Over the last few years, increasing numbers of employers have expressed a desire and need for information and ideas on accommodations for individuals with psychiatric disabilities.  The resource document, although framed for employees or applicants seeking assistance, describes some types of the available accommodations, and addresses restrictions on employer access to medical information, confidentiality, and the role of the EEOC in enforcing the rights of people with disabilities.

Under the ADA and other laws, including the Family Medical Leave Act (“FMLA”), it is illegal to discriminate against an employee or applicant because he or she has a mental health condition.  This includes firing an employee, rejecting an employee for a job or promotion, and forcing an employee to take leave because of his or her mental impairment, which includes “[a]ny mental or psychological disorder, such as . . . emotional or mental illness.”  Some examples of “mental or psychological disorders” include major depression, bipolar disorder, anxiety disorders (which include panic disorder, obsessive compulsive disorder, and post-traumatic stress disorder), schizophrenia, and personality disorders.

Reasonable Accommodation

Title I of the ADA requires a private employer with 15 or more employees to provide a reasonable accommodation qualified individuals who are employees or applicants for employment, unless to do so would cause undue hardship.  Reasonable accommodations are adjustments to a work setting that make it possible for qualified employees with disabilities to perform the essential functions of their jobs.

To be eligible for a reasonable accommodation for any mental health condition, an individual must demonstrate that his or her mental health condition would, if left untreated, “substantially limit” his or her ability to concentrate, interact with others, communicate, eat, sleep, care for them self, regulate his or her thoughts or emotions, or do any other “major life activity.”  The EEOC highlighted that the fleeting nature of the presence or severity of a mental health condition symptoms is irrelevant to evaluating whether a mental health condition is substantially limiting.  What matters is how limiting the symptoms are when they are present.  Although the resource document provides a few mental health conditions that it believes should easily qualify as substantially limiting, including major depression, post-traumatic stress disorder, bipolar disorder, schizophrenia, and obsessive compulsive disorder.

If an individual eligible for a reasonable accommodation, the ADA requires employers to engage in an interactive process to determine what, if any, reasonable accommodation can be made by analyzing the purpose and essential functions of the job, and working with an individual to identify what barriers exist to that individual’s performance of a particular job.  After engaging in the interactive process, employers can evaluate the effectiveness of each accommodation and the preference of the individual to be accommodated, and then determine whether the various accommodations would pose an undue hardship upon the employer.  The resource document provides a non-exhaustive list of potential reasonable accommodations for employees or applicants with a mental health condition, including altered break and work schedules; quiet office space or devices that create a quiet work environment; changes in supervisor methods; specific shift assignments; and permission to work from home.  The Department of Labor Office of Disability Employment Policy has also issued detailed guidance with further information on reasonable accommodations that have helped employees and applicants with mental conditions.

While employers must engage in the interactive process to find a reasonable accommodation for an individual, the guidance document recognizes an employer does not have to hire or keep people in jobs that they cannot perform, or employ people who pose a “direct threat” to safety – (i.e. a significant risk of substantial harm to self or others).  However, an employer cannot rely on myths or stereotypes about a person’s mental health condition when deciding whether an individual can perform a job or poses a significant safety risk.  There must be objective evidence that an individual cannot perform the essential job duties, or that he or she would create significant safety risk, even with a reasonable accommodation.

Employee Privacy Rights

The resource document also addresses privacy rights, noting that an individual may keep his or her condition private in most situations.  However, an employer is allowed to ask certain medical questions, including questions about mental health, in four situations:

  1. When an employee asks for a reasonable accommodation;
  1. After an employer has made an applicant a job offer, but before employment begins, so long as everyone entering the same job category is asked the same question;
  1. For affirmative action for people with disabilities (such as an employer tracking the disability status of its applicant pool in order to assess its recruitment and hiring efforts, or a public sector employer considering whether special hiring rules may apply), in which case the individual may choose not to respond; and
  1. On the job, when there is objective evidence that an employee may be unable to do the job or that the individual poses a safety risk because of his or her condition.

Other laws may also require an employee to discuss his or her condition to establish eligibility for benefits under those laws, such as the FMLA.  However, an employee does not necessarily have to disclose his or her specific diagnosis.  Even if an individual is required to disclose his or her medical condition under one of the situations above, it may be enough to describe the condition generally (e.g., anxiety disorder) and, if requested, submit documentation from a medical provider to that effect.

Conclusion

Given the increasing focus on mental health conditions in the workplace, employers should be up to speed of the ADA’s requirements.  If an employer knows that an employee has a mental health condition, the employer’s knowledge and observation of an employee’s symptoms could trigger the employer’s duty to provide an accommodation or determine whether a reasonable accommodation exists.  Employers can address this issue within their employee handbooks by establishing policies that advise employees of their rights with respect to mental health conditions impacting their work performance and to have an open dialogue, specifically, and encourage employees to notify their employers if they believe they have a mental health issue.

California Takes Another Stab at Disability Access Reform But Again Falls Short

ADAOn May 10, 2016, California Governor Brown signed into law a measure aimed at encouraging small businesses to come into compliance with construction-related access requirements.  The law takes effect immediately.  The authors of Senate Bill 269 recognized that lawsuits are regularly brought by plaintiffs for personal financial gain, not out a desire to improve access for disabled individuals.  This certainly is not news to the state’s hospitality and retail businesses that have been routinely targeted by serial plaintiffs, with financial incentives to pursue multiple suits based on the availability of minimum statutory damages and attorney’s fees.  Yet, SB 269 does not go far enough in addressing the business community’s concerns and taming the surge in litigation in recent years. Continue reading