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

[Webinar] Summer Loving – Managing Relationships in the Workplace, Nepotism and Other Interpersonal Issues

On Wednesday, June 12, 2019, at 1 pm EST, join Andrew J. Sommer and Megan S. Shaked of Conn Maciel Carey’s national Labor & Employment Practice Group for a complimentary webinar: Summer Loving – Managing Relationships in the Workplace, Nepotism and Other Interpersonal Issues.

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Is love in the air?  Even in the age of dating apps, romantic relationships still often blossom at work.  How does an employer navigate these waters while protecting company productivity and morale and managing potential risk associated with such relationships?

Participants will learn about the following:​ Continue reading

Practice Pointer: Cross-Check EEOC Charges and Complaints Filed in Court

shutterstock_judge rulingOn June 3, 2019, the U.S. Supreme Court issued a unanimous decision in Fort Bend County, Texas v. Davis, No. 18-525 (2019) – holding that the filing of an EEOC Charge is a non-jurisdictional claim-processing rule.  What this means is Title VII’s charge-filing precondition – i.e. requiring employees to go through the EEOC’s administrative complaint process before filing a discrimination lawsuit – does not necessarily affect the adjudicatory authority of the courts to hear Title VII claims that were not properly raised before the EEOC.  Ultimately, the onus is on employers to identify and raise potential issues regarding improper claims.

In 2010, the plaintiff – an employee of Fort Bend County, Texas – claimed that she was the victim of sexual harassment Continue reading

Memorial Day Reminder: Remember Your Obligations to Employees Currently Serving and Those Returning From Service

As we pashutterstock_1371695303used on Memorial Day to remember those who gave their lives in active military service, employers should not forget that employees who are currently serving in the Army, Navy, Air Force, Marines and Coast Guard (collectively, the “uniformed services”) are afforded a broad range of rights and protections by the Uniformed Services Employment and Reemployment Rights Act of 1994 (“USERRA”).  USERRA is a federal law that protects civilian job rights and benefits for veterans and members of the Guard and Reserves.  USERRA, like the Family and Medical Leave Act, includes both substantive job restoration rights—at the conclusion of one’s service—as well as non-discrimination and non-retaliation provisions.  The job restoration rights provided by USERRA, however, impose heightened obligations on employers in an effort to ensure the returning service member is not disadvantaged when reentering the workforce because of his or her service.  Many employers also do not realize that returning service members—those that return to the same employer from which they took leave to serve—may only be terminated for just cause for certain periods of time depending on the length of their service.

No discrimination or retaliation.  Let’s start with the easy part.  As you might expect, employers must not deny initial employment, reemployment, retention in employment, promotion or any benefit of employment to an individual on the basis of his or her military service.  Additionally, an employer cannot retaliate against an individual by taking any adverse employment action against him or her because the individual has acted to enforce protections under USERRA, testified or otherwise 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

Grab Your Wallet Before the PBGC Does – Their Proposed Regulation Could Cost Employers Greatly

shutterstock_pensionIn December 2014, Congress passed and President Obama signed the Multiemployer Pension Reform Act of 2014 (“MPRA”). The objective of the MPRA was to shore up struggling multiemployer pension plans, many of which are severely underfunded and getting worse. Among other things, the MPRA provided employers an incentive to continue participation in “endangered” or “critical” status plans by mandating that any increases to the employer’s contribution rate after 2014 will not count against the employer for purposes of determining withdrawal liability.

Because the funded status of many of these plans is so low, this provision can mean significant savings for employers who withdraw from plans in critical or endangered status. The rehabilitation plans of typical critical status multiemployer plans have called for contribution rate increases anywhere from 4-8% or more annually so, in the five years since 2014, many employers have seen cumulative rate increases of from 20-25%, or more. But because Continue reading

5 Conn Maciel Carey Attorneys in Washington, DC Recognized as Super Lawyers

Conn Maciel Carey LLP is excited to share that five of its attorneys based in Washington, DC have been recognized by Super Lawyers in 2019 in the fields of Labor & Employment and Workplace Safety Law.  sl-badge-l-w-2019Super Lawyers is a research-driven and peer-influenced rating service featuring exceptional attorneys out of select legal practice areas.  The attorneys selected are acknowledged for acquiring extraordinary professional achievement and peer recognition in their discrete areas of practice.

Eric J. Conn (Super Lawyer) is a founding partner of Conn Maciel Carey and Chair of the firm’s national OSHA • Workplace Safety Practice Group. His practice focuses exclusively on issues involving occupational safety and health law.  Before launching his own OSHA Practice, Mr. Conn practiced for more than a decade alongside the former first General Counsel of the OSH Review Commission.  Mr. Conn and his OSHA Team at Conn Maciel Carey develop safety and health regulatory strategies for employers across all industries.

Prior to founding Conn Maciel Carey, Mr. Conn was Head of an OSHA practice group that was honored as the “Occupational Health & Safety Law Firm of the Year” by Corporate INTL Magazine in its 2014 Global Awards. In 2013 and 2014, he was named a “Rising Star” by Washington, DC Super Lawyers, and as a Super Lawyer every year since.  He has also been selected for inclusion in the Washington Post’s Top-Rated Lawyers list in Washington, DC.

Kara M. Maciel (Super Lawyer) is a founding partner of Conn Maciel Carey and Chair of the firm’s national Labor • Employment Practice Group. She focuses her practice on representing employers in all aspects of the employment relationship. Continue reading