Emotional Support Animals In The Workplace: Do Employers Really Have To Accommodate?

We’ve all read the recent news headlines about the emotional support peacock that was not allowed to board a United Airlines flight and the 300-pound emotional support pig that was rejected by US Airways.  These stories are becoming more and more common and have led a number of employers to ask what their responsibilities are when an employee asks to bring an emotional support animal to work as a reasonable accommodation under the Americans with Disabilities Act (“ADA”).

To answer this question, it is important to understand what the ADA actually says and does not say about the subject.  What is does say is this:  Title III of the ADA – the public accommodations provision – requires most public businesses and venues to modify their “no pets” policies and to accommodate “service animals.”  Title III expressly defines a “service animal” as any dog (and, in some cases, a miniature horse) that is individually trained to do work or perform tasks for the benefit of a disabled individual.  Examples of such tasks include guiding a blind person or reminding a person to take medication.  Notably, dogs whose sole function is to provide comfort or emotional support do not qualify as service animals under Title IIII.

In comparison to Title III, Title I of the ADA, which prohibits private employers from discriminating against qualified persons with a disability and requires them to make reasonable accommodations, is silent on the issue of emotional support animals (as well as service animals).  In the absence of any affirmative requirement in Title I, the initial instinct of many employers is to reject a request to bring an emotional support animal to work out of hand, citing either a “no pets” policy or a long list of concerns about having an animal in the workplace.  Often-raised issues include:  What do we do if a co-worker or customer has a fear of the animal?  How do we address health and safety concerns (e.g., co-worker allergies, unwanted pests, waste disposal, vaccinations, animal bites)?  What happens if the animal is a distraction to others?  Can I be sued if the animal bites an employee or customer?

Notwithstanding this long list of questions, which are both real and complex, it is the position of the EEOC and the one or two courts that have considered the question that a request by a disabled employee to bring an emotional support animal to work should not be rejected out of hand; rather, employers should follow the generally applicable standards regarding reasonable accommodation in the workplace and undue hardship – that is, to engage in the interactive process to determine whether allowing the emotional support animal is a reasonable accommodation that is required to assist a disabled employee or applicant in performing an essential job function and, if so, whether the accommodation will impose an undue hardship.  In fact, the EEOC recently filed suit on this very issue, suing a trucking company for refusing to hire and failing to accommodate a truck driver (also a veteran) following his request to allow his emotional support dog to accompany him on his truck route as an accommodation for the driver’s PTSD and mood disorder.  The case is EEOC v. CRST Int’l, Inc. and it remains pending.

So, the bottom line for employers is to take these requests seriously and do not prejudge the request based on preconceived ideas about its legitimacy or complexity.  Employers should follow their usual accommodation process, including requesting appropriate documentation from the necessary parties (the employee, the employee’s health care provider, and/or the animal trainer) to understand how the animal will assist the disabled person at work and what impact the animal may pose on operations as well as co-workers and customers.  Employers should also consult state law for requirements or obligations that are in addition to those under the ADA.

Posted in Blog | Tagged , , , | Comments closed

What’s Expected of You When Your Employee is Expecting

The EEOC has ramped up enforcement against pregnancy discrimination, filing four lawsuits in March 2018 alone. These types of lawsuits can result in expensive consent decrees that also obligate the employer to policy changes and EEOC monitoring.

Making sure that policies and practices mirror what the EEOC and courts expect of employers when it comes to their pregnant employees can prevent EEOC charges and lawsuits (and can help to fight charges and lawsuits that do get filed). So it makes sense to distill some lessons from the mistakes that the EEOC alleges other employers have recently made when it comes to pregnant employees:

Lesson 1: Give pregnant employees the same accommodations you would give similarly restricted non-pregnant employees. If you would give an accommodation to an employee who was disabled or who had an on-the-job injury to help that employee do his or her work, then you should give the same accommodation to a pregnant employee whose pregnancy creates a similar obstacle. This trips up many employers, because it can be counterintuitive: if our policy provides an accommodation but only for those who are injured on the job (not those injured at home), then why would a pregnant employee qualify for that same accommodation? But the EEOC sued a residential nursing care provider on this very basis in E.E.O.C. v. Century Care of Lauringburg, Inc., No. 1:18-cv-170 (M.D.N.C.), presumably relying on the Supreme Court’s decision in Young v. United Parcel Serv., Inc., 135 S. Ct. 1338 (2015), which held that an employee can demonstrate  prima facie case of pregnancy discrimination in part by showing that the employer accommodated non-pregnant employees who were similar to the pregnant employee in their ability or inability to work. And the EEOC recently entered into a consent decree over this same issue; the employer agreed to pay $80,000 and to obligate itself to significant policy and monitoring obligations. The consent decree is Document 18 in E.E.O.C. v. Silverado Menomonee Falls LLC, No. 17-cv-1147 (E.D. Wis.).

Lesson 2: Refrain from requiring an employee to take unpaid leave for her pregnancy when you would not require that of a non-pregnant employee with similar medical restrictions. Some employers put employees on unpaid leave out of a good-intentioned concern for the health of the pregnant woman (and the pregnancy), especially when a job has physical aspects like lifting heavy things. But the EEOC sued an employer alleging it had forced an employee to take unwanted unpaid leave in the Century Care case mentioned above and in E.E.O.C. v. Simplicity Ground Services, LLC, No. 2:18-cv-10989 (E.D. Mich.).

Lesson 3: If an employee does take leave, consider any restrictions she has when she returns (and potential accommodations for those restrictions) before terminating her employment. An employer should think carefully about how a pregnant employee could do her job after taking pregnancy-related leave. This can happen when the employee has pregnancy-related complications that require leave (and the employee returns while still pregnant) or when the employee returns after giving birth with restrictions related to the pregnancy or childbirth. The EEOC sued a restaurant for reducing an employee’s hours after she returned from medical leave for her pregnancy complications and for later terminating her employment after her pregnancy leave ended without considering potential accommodations in E.E.O.C. v. Maurizio’s Trattoria Italiana, LLC, No. 18-cv-338 (S.D. Cal.). Recently, the EEOC entered into a consent decree based on this same issue, costing the employer $24,000 and placing significant obligations on it. The consent decree is Document 32 in E.E.O.C. v. Off the Air II, Inc., 3:16-cv-3328 (N.D. Tex.).

Lesson 4: Do not tell an employee that she must choose between her job and her pregnancy—and if the employee reports that a supervisor or coworker does so, investigate and resolve that report. Employers cannot control what every supervisor or coworker says to a pregnant employee about her pregnancy. But if the employee reports what she believes to be inappropriate comments or acts, the employer should follow its policies to investigate that report and to take action to remedy and prevent any discrimination, harassment, or retaliation. The EEOC recently alleged that a supervisor told an employee that she needed to choose between her pregnancy and her job, required her to lift heavy objects after approving lifting restrictions, refused to allow her to take breaks, and scheduled work during previously approved doctor’s appointments in E.E.O.C. v. Dollar Tree Stores, Inc., No. 1:18-cv-49 (S.D. Ga.). The EEOC also alleged that the employee had reported the acts to the supervisor’s manager, but that the manager failed to investigate or resolve the report. It’s crucial to have a policy that prohibits discrimination, harassment, and retaliation based on pregnancy (and any other legally protected characteristic), but it’s equally crucial to have a process for reporting policy violations—and regular training on that policy.

Posted in Blog | Tagged , , , | Comments closed

Poorly Drafted or Outdated Job Descriptions May Make ADA Claims More Difficult to Defend

An effective written job description clearly, accurately, and completely identifies and describes an employee’s duties, functions, and responsibilities. When employers create job descriptions that are inaccurate or when they allow descriptions that were accurate at the time of drafting to become outdated, they create legal risk.

This is because an employer’s obligation to provide reasonable accommodations under the Americans with Disabilities Act (“ADA”) is tethered to the “essential functions” of the job. Courts interpreting and applying the EEOC’s ADA regulations have found that the employer’s written job description is compelling evidence of the essential functions for a given position. As a result, when written job descriptions do not reflect reality, employers may get into trouble.

Poorly drafted job descriptions can do more harm than good.

At first blush, creating a job description seems like a straightforward task. But descriptions often are organized around imprecise and sometimes confusingly overlapping headings such as “Qualifications,” “Position Objectives,” “Job Duties,” “Job Requirements” and “Special Demands.” Correlating the attributes of a given job with the headings in the employer’s job description form can be a daunting task. And getting it wrong can have real, negative consequences.

For example, in a recent case, the Eleventh Circuit Court of Appeals affirmed the district court’s denial of judgment as a matter of law to an employer after a jury awarded a university police officer damages on a failure to accommodate ADA claim. When the plaintiff officer was hired, officers worked eight-hour shifts, but when a new police chief was appointed, the requirement increased to 12-hour shifts, which caused the plaintiff to experience high blood pressure. When the department refused to allow him to return to an eight-hour shift, the plaintiff retired and sued under the ADA.

Part of the appellate court’s reasoning for affirming the denial of judgment as a matter of law is that the employer’s “Position Description” contained a list of “Essential Functions,” which did not contain any shift length requirement. The only reference in the description to shift length was a separate section titled “WORKING HOURS” that did state the 12-hour shift requirement and noted that “[d]epending upon the needs of the departments, shifts may be changed.” The Eleventh Circuit found that a reasonable jury could have looked at the headings in the job description and concluded that the 12-hour shift was not an essential function of the position. See Snead v. Florida Agric. & Mech. Univ. Bd. of Trs., No. 17-10338, 2018 WL 992302 (11th Cir. Feb. 21, 2018).

Allowing job descriptions to become stale creates legal risk.

Over time, due to organizational evolution, the advancement of technology, and employee turnover, job descriptions become stale. It may seem that an outdated job description is harmless so long as the employee filling the job is meeting performance expectations. But a recent case illustrates that stale job descriptions may give rise to significant legal risk.

In this example, the Sixth Circuit affirmed the district court’s denial of an employer’s motion for judgment as a matter of law after a jury awarded an in-house attorney damages for the employer’s denial of her request to work from home as an ADA accommodation for pregnancy-related complications. The employer argued that her request was per se unreasonable because it precluded her from performing several essential functions identified in the job description, such as being physically present on the job, deposing witnesses, and appearing in court.

The Sixth Circuit held, however, that the jury had sufficient evidence to reasonably find in the plaintiff’s favor. One reason for the court’s holding was that the employer’s job description “was based on a 20-year-old questionnaire that did not reflect changes in the job that have resulted from technological advancements since that time”—a fact that was highlighted by the plaintiff’s uncontested testimony that she had never performed two of the “essential functions” in her eight years working for the employer and because she had much more recently completed a questionnaire regarding her actual job duties that the employer apparently failed to incorporate into its job descriptions. See Mosby-Meachem v. Memphis Light, Gas & Water Div., 883 F.3d 595 (6th Cir. 2018).

The Bottom Line

Job descriptions should always be accurate. Further, an employer may limit potential liability arising from job descriptions by conducting regularly scheduled audits to ensure that descriptions match the current needs and functions of each position. Particular focus should be given to those functions that are essential to the position, since those are most likely to be used by a court in evaluating an ADA claim.

Posted in Uncategorized | Tagged , , | Comments closed

EEOC Releases Strategic Plan for Fiscal Years 2018-2022

On February 12, 2018, the Equal Employment Opportunity Commission (“EEOC”) unanimously approved its Strategic Plan for fiscal years 2018 through 2022.  Congress requires federal government agencies like the EEOC to formulate strategic plans every four years and publish their plans on their website.  According to the EEOC, the Strategic Plan serves as the framework for the agency in achieving its mission to prevent and remedy unlawful employment discrimination and advance equal opportunity for all in the workplace.  The Strategic Plan differs from the Strategic Enforcement Plan, which outlines the types of discrimination the agency will more actively enforce.

To accomplish its mission, the Strategic Plan outlines the following three strategic objectives and outcome goals.

Strategic Objective 1: Combat and prevent employment discrimination through the strategic application of the EEOC’s law enforcement authorities.

The EEOC has two outcome goals for this strategic objective.  First, the EEOC seeks to stop and remedy discriminatory employment practices and ensure victims of discrimination receive meaningful relief.  The EEOC also wants to exercise its enforcement authority fairly, efficiently, and based on the circumstances of each charge or complaint.

Strategic Objective 2: Prevent employment discrimination and promote inclusive workplaces through education and outreach.

The two outcome goals for this objective are making sure members of the public understand the employment discrimination laws and know their rights and responsibilities under these laws, and for employers, unions, and employment agencies to prevent discrimination, effectively address EEO issues, and support more inclusive workplaces.  The EEOC’s strategies for achieving these goals include: (1) broadening the use of technology to expand the agency’s reach to diverse populations; (2) targeting outreach to vulnerable workers and underserved communities; (3) utilizing modern technology and media to expand the agency’s reach to employers and other covered entities; (4) offering recommendations that employers can adopt to prevent discrimination in the workplace; and (5) targeting outreach to small and new employers.

Strategic Objective 3: Achieve organizational excellence.

The EEOC’s management objective, achieving organizational excellence, is mostly an internal directive.  The two outcome goals for this objective include having staff that exemplify a culture of excellence, respect and accountability and allocating resources that align with the agency’s priorities to strengthen outreach, education, and service to the public.

The plan also identifies twelve “performance measures,” which are intended to track the EEOC’s progress through 2022 in implementing each of the objectives as well as identified outcome goals.  The performance measures are comprehensive, and include such targets as focusing on favorable resolutions of EEOC lawsuits, including by achieving equitable relief, meeting quality standards in investigations, conciliations, hearings, and appeals, updating guidance and training materials, prioritizing funding to meet strategic goals, and updating and using technology to allow the public better access to information available through the EEOC.

The newly released Strategic Plan can be found on the EEOC’s website at https://www.eeoc.gov/eeoc/plan/strategic_plan_18-22.cfm.  According to the EEOC, implementation of the plan began in February 2018.   Employers are encouraged to review the plan to further understand the EEOC’s objectives for the next few years in order to be better prepared in addressing any matters involving the EEOC.

Posted in Blog | Tagged | Comments closed

What Changes in Employment Laws Might We See Because of #MeToo?

The many #MeToo stories reported in the press have caused a flurry of discussion about potential changes to the legal landscape governing sexual assault and harassment.  Below is a summary of proposed legislation and other potential changes to keep an eye on:

  • Potential Legislation Barring Mandatory Arbitration of Sexual Harassment Claims. Bipartisan bills have been introduced in the U.S. House and the Senate prohibiting the forced arbitration of sexual harassment claims, and the Attorney Generals of every state have supported this legislation.  Certain defense contractors are already prohibited from requiring pre-dispute agreements to arbitrate sexual harassment and related claims; these new proposed bills would extend the prohibition to most if not all other private employers.  Depending on the scope and precision of a prohibition (and assuming it would survive court challenges), new legislation could remove a significant percentage of employment disputes from arbitration.
  • Potential Legislation Nullifying Nondisclosure Agreements. Legislation has been introduced in several states (NY, CA, PA, NJ, MA, WA, and counting) to prohibit the enforcement of agreements purporting to limit harassment victims’ abilities to publicly disclose the misconduct.  These restrictions would necessitate that employers take a close look at the confidentiality and nondisclosure provisions of their agreements, including severance agreements, and consider potential changes.
  • Evolution of the Standards on What Constitutes “Severe or Pervasive” Conduct or “Prompt Remedial Action.” Based on the extensive #MeToo stories and their notoriety, many employers are beginning to perceive a shift in public attitude about what workplace conduct should not be tolerated.  Under current case law, alleged misconduct rises to the level of actionable hostile environment harassment only if it is “sufficiently severe or pervasive to alter the conditions of employment and create an abusive working environment.”  Meritor Savings Bank v. Vinson, 477 U.S. 57, 67 (1986).  This standard, and the way in which it has been interpreted by courts, has traditionally excluded certain inappropriate or problematic conduct from Title VII’s scope.  It would not be surprising to see EEO agencies or employee-side lawyers advocate for changes that would broaden the standard to encompass a wider range of conduct.   Similarly, employee advocates may push for a more stringent definition of “prompt remedial action,” which is an element of an employer’s affirmative defense to a hostile environment harassment claim.
  • Tax Deductions for Settlements of Harassment Claims Subject to Nondisclosure Agreements Have Been Eliminated by the Recent Tax Legislation. Section 13307 of the Tax Cuts and Jobs Act does this.

The Bottom Line

There are several potentially significant changes on the horizon that could impact the viability of harassment claims and potentially alter the steps employers are permitted to take with respect to such claims.  Employers should stay up to date on these developments and, to the extent they become law, factor them into their practices and the manner in which they investigate and respond to complaints.

Posted in Blog | Tagged , | Comments closed

Getting S.M.A.R.T. About PIPs

As a quick Google search makes clear, performance improvement plans have a bad rap. Much (virtual) ink has been spilled on tactics for “surviving” a PIP, and consensus is that an employee who is put on a PIP should consider her days to be numbered. But it shouldn’t be this way. Employers that misuse PIPs needlessly squander time and resources and create unnecessary legal risk.

A PIP is written plan for improving an employee’s job performance. It should be used to counsel an employee back into her job, that is, to determine whether it is possible to retain talent, rather than as a perfunctory stepping stone on the path to employment separation. As a result, PIPs should be used thoughtfully, when there is reason to believe that highly structured performance management and goal-setting may rehabilitate persistently substandard performance.

When PIPs are misused, they create legal risk.

  • If the performance deficiencies in issue cannot be improved through S.M.A.R.T. goals, a PIP should not be implemented. For a PIP to serve its purpose, it must be S.M.A.R.T.: (1) specific, (2) measurable, (3) achievable, (4) relevant, and (5) time-limited. This makes certain performance problems, particularly those that are highly subjective and personality-related, difficult to address through a PIP. How is an employee to know (or her employer to determine) whether she has successfully improved her “bad attitude?” And how long should she be given to make such improvement? A good PIP identifies specifically past performance deficiencies, explains in terms that are objectively measureable the actions that must be taken to cure the deficiencies in issue, and provides the employee a reasonable amount of time to demonstrate improvement. PIPs that don’t meet these requirements may create problems for employers. See, e.g., Stringer v. Lyondell Chemical Co., 2007 WL 2592647 (S.D. Tex. 2007) (denying employer’s motion for summary judgment on discrimination claim in part because the performance deficiencies identified by the employer as the basis for the plaintiff’s termination, including “failure to communicate effectively” and “failure to demonstrate high personal standards,” were “subjective and far from precise”).
  • A PIP should not be implemented when a decision to terminate has already been made. PIPs often come up during discussions about potential legal risks associated with an impending termination. The termination decision has been made, but someone suggests that a PIP may improve the optics of the situation, particularly when there exists little documentation to support the termination decision. A failed PIP, the thinking goes, is unassailable. If only this were true. In fact, employees (and judges and juries) are suspicious of PIPs and believe that they are frequently misused. It is not unusual for an employee placed on a PIP to retain counsel. Even more concerning is the fact that courts have found PIPs to be evidence of pretext when they are designed to set an employee up for failure. See, e.g., Phillips v. StellarOne Bank, 2012 WL 3762448 (W.D. Va. 2012) (denying employer’s motion for summary judgment on discrimination claim were documentary evidence suggested that performance goals were intended to create room for the plaintiff to “trip up”).
  • If a PIP is implemented, the employer should see it through to its end. In many cases, by the time a PIP is implemented, the situation is broken. The manager has lost confidence in the employee’s ability to perform, and no period of improvement, whether 30, 60, or 90 days, can restore it. It’s not uncommon for the manager to ask, only a week or two into the PIP, if the plan may be terminated early because it is inconceivable that performance will improve to acceptable levels by the plan’s end date. But failing to see a PIP through to its end can make a bad situation worse. The employee may feel that she has been treated unfairly (and may, therefore, be more likely to seek legal counsel), and early termination muddies the waters with respect to the employer’s intent in implementing the PIP.

The Bottom Line

When used appropriately, PIPs can be effective performance-improvement and talent-retention tools. But misuse creates risks, particularly in situations where a PIP is implemented for no reason other than to “paper up” a difficult termination. In such situation, the employer may achieve a better outcome by skipping the PIP and offering meaningful severance pay in exchange for a general release.

Posted in Blog | Tagged , | Comments closed

Is Your Parental Leave Policy Discriminating Against New Dads?

Employees may be eligible for different types of leave following the birth of a child or placement of a child for adoption or foster care.  There is leave under the Family and Medical Leave Act (FMLA) which provides eligible mothers and fathers with 12 weeks of unpaid leave.  Many employers also offer short term disability leave to new biological mothers to recover from childbirth.  In addition to FMLA and short-term disability, many employers also provide some form of paid parental leave to new mothers and fathers although such leave is not required by federal or most state law.  Employers who offer paid parental leave are required by law to make such leave available equally to new mothers and fathers.  In keeping with this principle, many employers have adopted parental leave policies that provide benefits based on an employee’s status as a primary or secondary caregiver.  While these policies are not discriminatory on their face (so long as they provide new mothers and new fathers the same benefits on the same terms), there is growing concern that some of these policies are discriminatory in practice and both the EEOC and the courts are taking a second look.

Recent Scrutiny

On August 30, 2017, the EEOC filed a lawsuit against cosmetics company, Estée Lauder, alleging that, as applied, the company’s paid parental leave policy unlawfully favors new moms and discriminates against new fathers in violation of Title VII of the Civil Rights Act of 1964 (“Title VII”).  EEOC v. Estée Lauder Companies, Inc., No. 2:17-cv-03897 (E.D. PA).  The policy in question provides paid parental leave benefits based on “primary” versus “secondary” caregiver status, without regard to gender.  Specifically, the policy gives primary caregivers 6 weeks of paid leave (and other flexible leave benefits) while secondary caregivers are given only 2 weeks of paid leave.  According to the lawsuit, when a male employee tried to apply for “primary caregiver” status under the policy after the birth of a child, he was told that new mothers are automatically deemed the “primary caregiver” and that the “primary caregiver” designation only applied to new fathers in “surrogacy situations.”  The EEOC alleges in the lawsuit that Estée Lauder’s policy, as applied, allows a new mother to obtain greater paid leave benefits than new fathers because it prohibits new fathers from applying for primary caregiver status outside of limited exceptions.

J.P. Morgan Chase has a similar paid parental leave policy based on caregiver status and it too is currently subject to challenge.  The American Civil Liberties Union (ACLU) recently filed a class action charge of discrimination with the EEOC claiming that male employees have been discriminated against on the basis of sex by the parental leave policy.  Under the policy, J.P. Morgan Chase provides 16 weeks of paid leave to a “primary caregiver” and 2 weeks of paid leave to a “non-primary caregiver.” The charge alleges that the policy designates female parents as default primary caregivers, making them eligible for a longer amount of paid parental leave than non-primary caregivers.  Specifically, the charging party alleges that when he asked J.P. Morgan Chase to classify him as the primary caregiver, he was told that the bank considers the birth mother the primary caregiver, and the father can only get the extended leave if his spouse returns to work early or is medically incapable of caring for the child.  The ACLU claims the policy is therefore discriminatory on the basis of gender.

While the two cases are still in the early stages, their outcome will provide an important litmus test for other employers.

The Bottom Line

If your company currently provides parental leave benefits based on a primary versus secondary caregiver distinction, now is the time to review your company’s rationale for these distinctions and to ensure mothers and fathers are being treated equally under the policy.  In particular, employers should make sure that there are no assumptions or stereotypes inadvertently “built in” to their policies that assume the mother is always the primary caregiver, while requiring new fathers to take additional steps to prove primary caregiver status. Employers should also be prepared to address how such designations apply if both parents (whether male/female or same sex) claim to be co-primary caregivers.  As discussed above, while these designations appear gender-neutral on their face, there is the potential for them to be applied in a discriminatory manner and so careful review of these policies is important to ensure that they are drafted and implemented on a gender-neutral basis.

Posted in Blog | Tagged | Comments closed

Ten Easily Overlooked Harassment Issues from the EEOC’s Proposed Guidance

With harassment increasingly in the news, employers need accurate, current advice on where the courts and the EEOC stand. The EEOC’s proposed enforcement guidance on unlawful harassment gives employers a comprehensive overview of the EEOC’s position. The final version of the guidance is expected to be released soon.  (The proposed guidance is available at https://www.regulations.gov/contentStreamer?documentId=EEOC-2016-0009-0001&contentType=pdf.)

The proposed guidance notes several issues that employers sometimes overlook because those issues deal with situations outside the typical harassment scenario. Because the EEOC has taken the time to identify these issues, it considers them priorities and employers should be especially vigilant about them.

For that reason, no matter what changes happen to the guidance between its proposed and final versions, the following ten easily overlook harassment issues are important to keep in mind:

  1. Racial harassment includes harassment based on race-linked traits, such as facial features or hair.
  2. National-origin harassment includes harassment based on attire, diet, foreign accent, and limited English proficiency.
  3. Religious harassment includes harassment based on atheism, lack of religious belief, religious attire, and requests for religious accommodation (and using those accommodations).
  4. Sexual harassment includes not only harassment based on sexual interest (“come ons”) but also harassment devoid of sexual interest, such as gender-based epithets or sexist comments (“put downs”), as well as sex stereotyping based on assumptions about how different genders work well or their family responsibilities; it also includes harassment based on pregnancy or lactation needs, as well as harassment based on sexual identity and sexual orientation.
  5. Age-based harassment includes harassment based on relative older age, but does not include harassment based on relative younger age (“people in their forties work harder than those in their fifties” is harassment, but “people in their fifties work harder than those in their forties” is not).
  6. Disability-based harassment includes harassment based on requests for reasonable accommodations (and using those accommodations).
  7. Genetics-based harassment includes harassment of an employee based on the genetics or medical history of an employee’s family member.
  8. Incorrect perceptions that an employee has a protected characteristic can still lead to unlawful harassment. Harassing a straight employee based on a misperception that he is gay, or a Latino employee based on a misperception that he is Arabic, can be unlawful harassment.
  9. That a harasser belongs to the same protected class will not insulate the employer from liability.
  10. Harassment based on the intersection of two protected characteristics is unlawful harassment. So if a harasser targets only Black females (but not Black males, and not other females), that is still unlawful harassment.
Posted in Blog | Tagged | Comments closed

Did You Keep Your New Year’s Resolution? New Regulations and Laws in 2018

With the beginning of each calendar year often comes a host of new laws and regulations.  And 2018 is no different.  Highlighted below are a couple of new laws/regulations in the areas of drug testing, paid sick and safe leave, minimum wage, and medical marijuana that may affect your workplace and require revisions to your employee handbook:

DOT Drug Testing:

The DOT Agencies & United States Coast Guard (“USCG”) recently issued guidance to DOT-regulated employers concerning the content of their DOT policies and what they need to contain about the changes to 49 CFR Part 40, which are effective January 1, 2018.  The following is from the recently published notice:

“There is no need for employers to make any changes if their current DOT policies refer to adhering to “… Part 40.”  However, there are exceptions when an employer’s DOT policy lists the following optional information:

  • If sub-categories of drugs tested under the 5-panel are listed – for example, if a policy lists “Opiates (codeine, heroin, & morphine)” and/or “Amphetamines (amphetamine, methamphetamine, MDMA, MDA, MDEA), then “Opiates“ needs to change to “Opioids (codeine, heroin, morphine, oxycodone, oxymorphone, hydrocodone, hydromorphone)” and “MDEA” will need to be removed from the list under Amphetamines.  If however, employers would like to delete the sub-categories of drugs, doing so will also be acceptable.
  • Likewise, if cut-off levels are listed in current policies, employers must update those cut-off levels. Again, employers may simply delete the cut-off levels completely and be in compliance if the DOT policy refers to adhering to “… Part 40.”
  • While these DOT Agencies and USCG suggest that employers provide written notice to employees about their updated DOT policies, doing so is an employer’s prerogative.”

Employers should review their current DOT policies for compliance with the new regulations at the earliest opportunity.

Paid Sick and Safe Leave (Private Employers):

The States of Washington and Maryland recently passed paid sick and safe leave laws applicable to private employers.  The Washington state law is effective January 1, 2018 and the Maryland law is effective February 11, 2018.  Rhode Island also recently passed a paid sick and safe leave law which will become effective July 1, 2018.  These states join Arizona, California, Connecticut, Massachusetts, Oregon, Vermont, and Washington D.C., in addition to a host of cities and counties across the country with paid sick and safe leave requirements.  Employers in these jurisdictions should carefully review their existing sick leave and paid time off policies for compliance.

Minimum Wage:

Eighteen states raised their minimum wage in 2018:  Alaska, Washington, Montana, Minnesota, South Dakota, Colorado, California, Arizona, Hawaii, Ohio, Florida, New Jersey, New York, Vermont, Maine, and Rhode Island.

Marijuana (Medical and Recreational Usage):

Thirty states and the District of Columbia currently have laws legalizing some variation of recreational or medical marijuana use.  This tally includes Texas which recently passed the Texas Compassionate Use Act, effective September 1, 2017, and authorizes medical marijuana in very limited medical situations.  Eight states (Washington, Oregon, Nevada, California, Colorado, Alaska, Maine and Massachusetts) and the District of Columbia have legalized marijuana for recreational use.  Employers should become familiar with the marijuana usage laws in the states in which they operate and keep up with ongoing developments as these laws make their way through the court systems.  In particular, employers should pay careful attention to whether they are required to reasonably accommodate an employee’s marijuana usage under the Americans with Disabilities Act or similar state laws. At least one state Supreme Court – Massachusetts – has addressed the issue and found that Massachusetts employers may have a duty to reasonably accommodate under state law.

Posted in Blog | Tagged , , , , | Comments closed

Take Care When Using Employee Fingerprint or Other Biometric Data – If Done Wrong, It Could Get You Sued

Employers are increasingly tracking employee work and movements using biometric data such as fingerprints, voiceprints, retinal scans, and facial images.  As revealed by the media attention to lawsuits against Facebook, Shutterfly, and other companies regarding their use of facial recognition technology, the public—and lawmakers—are becoming ever-more aware of the risks involved, including the possibility of identity theft.

Many employers are unaware of the laws regulating their collection and use of such data.  Those laws are increasingly being used as the basis for class-action lawsuits filed against companies that do not comply with the laws’ strict requirements regarding employee notice, employee consent, and data destruction.  In one recent example, United Airlines was sued in a class-action suit alleging that it violated Illinois’ recent biometric data law by maintaining a fingerprint timekeeping system for employees without properly giving notice and obtaining consent.

Texas and Illinois are currently leading the way in regulating employers’ use of biometric data.  (It is no coincidence that these are reported to be the two states in which Google has blocked use of its “Arts & Culture” app, which uses facial recognition software to compare users’ images to historical artwork.)  Texas’ biometric data law governs the collection, use, and retention of biometric information obtained for a “commercial purpose,” Tex. Bus. & Comm. Code § 503.001 et seq., and some commenters have interpreted this term as applying to biometric data collected by employers.  The Texas law does not have a private right of action, but the Attorney General may investigate and impose a penalty of $25,000 for each violation.

Illinois’ biometric data law, called the Illinois Biometric Privacy Act, has already resulted in dozens of lawsuits against companies with workers in Illinois, including large employers such as United Airlines and Hyatt.  Its penalty of up to $5,000 per “willful” violation of the statute, plus plaintiffs’ attorneys’ fees, can quickly add up when the practice extends to many employees.  Of particular concern to employers is that it is currently unclear whether a complaining Illinois employee has to show that her data was actually misused in some way; violation of the strict statutory requirements may be enough.

In addition to running afoul of state biometric data statutes, failure to safeguard biometric data could result in claims of common-law negligence or violation of state data breach notification laws.  This possibility exists as to biometric data kept in almost every jurisdiction.

The bottom line

Biometric data systems can be valuable tools for employers.  But they also carry risks because of the potential for identity theft.  Prudent employers should review their systems to determine whether employees’ biometric data is being used or preserved.  If so, employers should understand the patchwork of potentially applicable laws, and develop procedures that provide required notice to employees, arrange for employee consent, safeguard biometric data, and provide for the destruction of biometric data in compliance with the specifics of the applicable laws.  Employers should also be prepared to carefully consider any employee requests to be exempted from the collection of biometric data, as such requests could conceivably implicate religious or disability accommodation issues.

Posted in Blog | Tagged , | Comments closed