My colleague, Gary Starr, returns this morning with a post on a recent case that has implications for employers nationwide.

You wouldn’t think that fingerprinting would be brought into the world of religious accommodations.

After all, the importance of background checks cannot be denied, particularly when the prospective employee is going to work with children or the elderly.

Vulnerable populations need assurance that those with whom they will be dealing have their best interests at heart.

Background checks, however, can raise strange issues for employers when the person asked to authorize a background check indicates that he/she has a religious objection to fingerprinting.

In a recent federal case (download here), a bus driver, who was required to submit to a background check to retain her position, refused to undergo a fingerprint background check.

She explained that it was her sincere religious belief that fingerprinting is the “mark of the devil” and that fingerprinting would bar her entry into heaven.

She asked for an accommodation.

The employer checked with state and federal authorities responsible for doing the background checks, including the FBI, the State Department of Education, and the School District for whom she drove.

They were unable to provide guidance on what alternatives there were under the state law.  As a result, the bus company, faced with a criminal charge and fine if the driver were not tested, terminated the driver.

The fired employee then sued.

The bus company sought to have the case dismissed without having to go through discovery or a trial, but the court rejected this effort.

The court found that the bus driver sufficiently described her sincere religious belief about being barred from Heaven if she were fingerprinted and that an accommodation should have been made, as there was an insufficient basis to establish that the employer would suffer an undue hardship, at least at the initial phase of the litigation.

Further, the court said the employer’s assertion that it lacked the power to grant an exception to the fingerprinting requirements required greater exploration during discovery.

The bus company now must go through discovery before it has another opportunity to have the case thrown out short of a trial.

Connecticut employers face the same potential problem, because Connecticut law does not provide an alternative to fingerprinting.

Recognizing that potential issue, it will be important to look for ways to accommodate applicants and employees who raise religious objections.

Certainly, there are persons who cannot be fingerprinted or whose fingerprints cannot be read.  Employers should seek out accommodations and carefully document the steps they take to explore alternative testing techniques.

They must be able to show that the steps to find an accommodation were reasonable and if an accommodation were not possible, why the situation would create an undue burden.

It would be far better to take the time before firing or rejecting an applicant to explore what is possible than to defend a lawsuit.

For more on Kaite v. Altoona Student Transportation, Inc., click here.

 

There’s an old(?) Bonnie Raitt song that my parents used to listen to when I was in college called “Let’s Give Them Something to Talk About”.  It’s about a crush, but the intro could be just as applicable to a new court decision. The lyrics start: “People are talkin’, talkin’ ’bout people, I hear them whisper, you won’t believe it.”

The short lesson? Don’t give your employees something to talk about — namely when a lawsuit is filed, caution is strongly advised in distributing information about that lawsuit.  Interested in more? My colleague, Gary Starr, shares more:

A recent Connecticut district court decision (EEOC v. Day & Zimmerman NPS) is a cautionary tale for in-house lawyers and human resource managers who want to tell employees about an investigation into discrimination claim brought by a former employee, and that investigation may involve those employees.

Following a disability discrimination charge, the EEOC sought contact information about other employees as well as information about their employment.

Rather than simply advise the employees that the EEOC was being provided with their job title, dates of employment, home address, and phone number, the company also described the accommodation that was requested and information that the former employee’s doctor had indicated that without the accommodation, the employee could not perform the essential functions of the job.

The EEOC viewed this as retaliation against the former employee by disclosing the information and interference with the rights of the employees receiving the letter as the agency thought it would discourage others from making claims in the future out of concern that their personal information would be shared widely.

The Company’s efforts to justify the letter were rejected by the court, which decided that a jury will have to decide whether the letter was retaliation and/or interference.

In communicating with potential witnesses in an agency investigation or lawsuit, employers must be clear on why the notice is being sent.  And employers should exercise caution on deciding what information is being shared.  What the decision suggests is that employees do not need to know what the medical condition another employee may have, what accommodation has been requested by that employee, or what recommendation a doctor has made about the employee.

Letting employees know that their contact information has been given to the EEOC and that they may be contacted would likely have have been sufficient and not opened up the employer to criticism.  And the decision does suggest that offering them the choice of having a lawyer present should not interfere with their rights.

In this instance, less information is better than more.

In any case, in the unlikely event you do need to inform employees about a lawsuit, check with your counsel about the details you should (and should not) be sending.

The Connecticut Appellate Court today released an important disability discrimination decision that gives employers some support for employees who struggle with employees who ask for “accommodations” for an indefinite leave for a medical condition.

The case ostensibly addresses the request for “indefinite leave” which I’ve previously talked about it in prior posts.

But the case boils down to a familiar set of facts for employers. An employee who one day says, “I need to take 30 days off for a medical condition” and leaves the employer to twist without further response. As explained by the court:

The plaintiff informed the defendant that she would be taking a leave of absence, did not provide the defendant with any time frame for her return, and did not respond to the defendant’s subsequent attempts to contact her regarding her request for leave. The plaintiff effectively asked the defendant ‘‘to hold [her] position open indefinitely while [she] attempt[ed] to recover. . . .’’

Under these circumstances, the court said that the Plaintiff cannot establish even a prima facie case of discrimination because she cannot show that she “requested a reasonable accommodation that enabled her to perform the essential functions of the job”.

In doing so, the state court reviewed federal law and noted that “[R]easonable accommodation does not require [an employer] to wait indefinitely
for [the employee’s] medical conditions to be corrected . . . .’’

In this particular case, the court said, the plaintiff, prior to her departure, informed her supervisor that she would be taking leave for ‘‘over thirty days depending on my lung condition . . . .’’  At a subsequent deposition, the court went on to say, the plaintiff was asked, with respect to her request for leave, that ‘‘you didn’t know how long you were going to be out, correct?’’ The plaintiff responded, ‘‘[c]orrect.’’

The forms submitted by the employee at the time were confusing and the Plaintiff did not respond after requests by certified and regular mail by the employer for more information.  When the employee was told to submit information by a date certain and did not do so, the employer just went ahead and fired her. The court upheld that termination.

For employers, the case offers some helpful reminders:

  • Reasonable accommodation is an interactive process. So long as the employer holds up its end, courts will be more inclined to support the employer in the end.
  • Seeking medical documentation from employees regarding their requested leaves is both necessary and essential to defending a claim where the documentation is vague.  Don’t hesitate to followup and set firm deadlines to the employee to provide the information.
  • As always, seek legal counsel to help navigate through this and work through any issues regarding termination.

Employers may feel like anti-discrimination laws are rigid, but there is built-in flexibility for employers if they know where to look.

The case, Thomson v. Department of Social Services, can be downloaded here. 

starrMy colleague Gary Starr sits next to my office and sometimes we bounce ideas off each other. One of the things we were talking about recently was a new case that discussed an employer’s obligations to enter into the interactive process.  

This often comes up in ADA cases where the employee may need a reasonable accommodation.  As we discuss in this joint post below, there are no magic words needed — and sometimes no words needed at all.  

Both federal law (ADA) and state law (CFEPA) require employees and management to meet and discuss what might be a reasonable accommodation when an employee with a disability seeks an accommodation.

This interactive process was envisioned as a way to work collaboratively to find a reasonable accommodation.  Certainly when an employee asks for an accommodation, an employer must engage in the process.

But here are a few questions to ponder:

  • What should happen when the employee does not quite use the right words to start the process?
  • Can the employer be liable for failing to engage in the interactive process after terminating an employee who has not been accommodated?
  • While there are no magic words that must be uttered to start the interactive process,  what will trigger the obligation?

A recent federal appeals court case (Kowitz v. Trinity Health) discussed this situation, where the employer apparently ignored the signs requiring it to explore possible accommodations.  As a result, the employee will get her day in court.

The basic facts:

  • A respiratory therapist was diagnosed with a degenerative disease.
  • She requested and was granted time off for surgery under the Family and Medical Leave Act (FMLA).  After she exhausted her FMLA leave, she returned to work with restrictions.
  • During her leave, management reminded the department’s employees that they needed to submit proof of their certification in CPR, an essential job function.  Employees who needed to get recertified were required to say when they were going to take the course and the written and physical tests.
  • Having discussed the matter with her doctor, the therapist left a voice mail message for her supervisor that she would take the course and the written exam, but needed to complete 4 more months of physical therapy before she could do the physical portion of the test.
  • The next day, the respiratory therapist was terminated because  she was unable to perform CPR.

She sued, claiming that her employer did not engage in the interactive process.  The court found that while the therapist did not expressly ask for an accommodation, she provided sufficient information to start discussions.

The court pointed out that the employer was aware of the disability.  It approved the FMLA leave.  It received the Return to Work form from her doctor with work restrictions.  And there was evidence that the employee had told her supervisor about her problems completing the CPR certification and she told her supervisor about her doctor appointments and her continuing pain.

What’s the Takeaway?

This decision warns employers that if you know about an employee’s medical limitations, that knowledge may be sufficient to trigger the informal interactive process.

While it is not clear whether other courts will adopt this liberal approach, which is better in the long run: Sitting down with the employee or litigating?

It is important to remember that not all requests for an accommodation are reasonable.  The expense of a requested accommodation may not be reasonable; what the employer offers may be reasonable, even if rejected by the employee; and there may not be a solution to the situation.

But engaging in the process makes much more sense than trying to convince a judge or jury that you were too busy to meet for an hour or so and were unwilling to listen to possible ways to have the employee be productive and contribute to the company.

aslWhat does it really mean to provide a reasonable accommodation to an employee who has a disability?

That’s a question I talk about a bunch with clients.  The employee may request one thing but the employer may think that another accommodation can accomplish close to the same thing, perhaps at a lower cost.  Who wins?

It’s not a new question; I’ve talked about it before here on the blog too.

But a recent case by the Second Circuit adds some layering to that discussion.  The case, Noll v. IBM, isn’t one that you’ll see on the front page of The New York Times.  I found out about it from the always reliable (and underrated) Wait a Second Blog.

That blog’s recap is appropriate here:

Noll worked in Poughkeepsie, N.Y., but IBM is a huge corporation for which internal communication were broadcast over a company-wide intranet. Noll asked for captioning of certain intranet videos or transcripts of audio files. Instead, as noted above, IBM gave him transcripts and access to ASL interpreters. Noll said these alternatives were not good enough it was “confusing and tiring” to look back and forth between the video and the ASL interpreter. Also, it sometimes took five days or longer for transcripts to be made available to Noll, and links to the transcripts were sometimes broken.

The IBM Media Library stores over 46,000 video files (!), only 100 of which were captioned.  As for live meetings, IBM provided him with ASL interpreters and Noll found those to be “effective.”  But he didn’t like the interpreters for the videos because he found it “confusing and tiring.”

The Second Circuit noted that determinations of the reasonableness of accommodations are typically fact-specific, but summary judgment can be granted to an employer if the accommodations are “plainly reasonable.”  (Pro tip: If the court is setting forth this standard, you can figure out where it is headed.)

This is an important point to emphasize and the court seems to be setting forth a standard that hasn’t been utilized much before in discussions. “In other words, the plain reasonableness of the existing accommodation ends the analysis. There is no need to engage in further burden‐shifting to consider whether the employee’s requested accommodation would have been reasonable.”

Reasonable accommodation can take many forms, but must be “effective”, the court said.  And, at the same time, employers are not required to provide the “perfect” accommodation or even the “very accommodation most strongly preferred” by the employee.  “All that is required is effectiveness.” 

Here, the court found that the accommodations from IBM were indeed “effective”.  While Noll said the interpreters were not as effective as captioning and that it was “tiring” to watch it, that objection is not enough to get him to a jury trial, let alone victory.

This disadvantage does not render interpretive services ineffective. A person who is deaf necessarily receives auditory information from other senses (principally sight); so it can be expected that many accommodations of deafness — ASL interpretive services as well as captioning — will tax visual attention to some degree. An accommodation for deafness therefore cannot be rendered ineffective by the need to divide visual attention, without more.

For employers, this is an important case to consider. IBM here had access to many more resources than most employers. And even with all the services it provided, it was sued for still not doing enough. The Second Circuit put an end to that — no doubt after IBM spent significant sums to defend itself.  Smaller employers may not be so fortunate.

Still, for employers, showing that you have entered into the interactive process with employees and provided what it believes to be an “effective” reasonable accommodation can still provide a path to success if sued.

dress1
Probably not appropriate in workplace

I’m not a fan of click-bait, so if you clicked the headline just to know whether your company can still have a dress code policy after the Supreme Court’s decision in EEOC v. Abercrombie & Fitch, the answer is “yes”.

But there’s an important caveat and for that, you’ll need to read on.

The Court’s decision has caused a bit of a ruckus with some commentators portending massive changes to discrimination law. As I said last week, I just don’t see that.

The evidence in the case, according to the lower court’s decision, was that the supervisor had believed that the job applicant was “Muslim” and “figured that was the religious reason why she wore her head scarf.”

Moreover, despite being scored highly in her job interview, the area manager said that the job applicant “should not be hired because she wore a headscarf—a clothing item that was inconsistent with the [company’s] Look Policy.”

In other words, there was more than ample evidence that the applicant’s religious practices played a factor in the Company’s decision not to hire her.

How could a company get tripped up by its own dress code or “look” policy? Well, for one, the policy did not explicitly state that its policy could be tweaked in some instances to accommodate religious practices.  Even the company has now dropped that policy.

All is not lost though for the rest of us. Dress codes are still acceptable.  But companies should not treat them as hardened laws, never to be broken.

One simple fix is to add a clause regarding reasonable accommodations such as this:

Employees who believe a reasonable accommodation to this policy should be granted based on religion, disability or other grounds protected by applicable law should feel free to discuss the matter with their supervisor. Reasonable accommodation will be granted unless it would cause an undue hardship on the employer or other business circumstances warrant.

Obviously, each policy should be tailored to your business and to your state, so — as with your employee handbook — you should have this language reviewed by your employment law counsel.

Now, whether dress codes are a good thing? That’s an entirely separate question for another day…..

 

The long-awaited EEOC v. Abercrombie & Fitch case was released by the U.S. Supreme Court this morning, reversing the Tenth Circuit’s decision. You can download it here.

For anyone following the case, the decision shouldn’t come as a big surprise.  I’ve talked about the case before here and here.

The main holding of the case is this:

To prevail in a disparate-treatment claim, an applicant need show only that his need for an accommodation was a motivating factor in the employer’s decision, not that the employer had knowledge of his need.
The court is quick to note that some anti-discrimination statutes DO require knowledge, such as the ADA.  But Title VII does not. And in that silence, the court said that it could not interpret the statute to include one.
The opinion, written by Scalia, explains the difference between knowledge and motive:
Instead, the intentional discrimination provision prohibits certain motives, regardless of the state of the actor’s knowledge. Motive and knowledge are separate concepts. An employer who has actual knowledge of the need for an accommodation does not violate Title VII by refusing to hire an applicant if avoiding that accommodation is not his motive. Conversely, an employer who acts with the motive of avoiding accommodation may violate Title VII even if he has no more than an unsubstantiated suspicion that accommodation would be needed.
Thus, the rule for disparate-treatment claims based on a failure to accommodate a religious practice is straightforward: An employer may not make an applicant’s religious practice, confirmed or otherwise, a factor in employment decisions. For example, suppose that an employer thinks (though he does not know for certain) that a job applicant may be an orthodox Jew who will observe the Sabbath, and thus be unable to work on Saturdays. If the applicant actually requires an accommodation of that religious practice, and the employer’s desire to avoid the prospective accommodation is a motivating factor in his decision, the employer violates Title VII.
The decision is unusually brief — just seven pages, perhaps reflecting the clear-cut nature of the case.
Take note of footnote three too. The case is decided on narrower grounds than is typically laid out in the press:
While a knowledge requirement cannot be added to the motive requirement, it is arguable that the motive requirement itself is not met unless the employer at least suspects that the practice in question is a religious practice—i.e., that he cannot discriminate “because of” a “religious practice” unless he knows or suspects it to be a religious practice. That issue is not presented in this case, since Abercrombie knew—or at least suspected—that the scarf was worn for religious reasons. The question has therefore not been discussed by either side, in brief or oral argument . It seems to us inappropriate to resolve this unargued point by way of dictum, as the concurrence would do.
For employers, this decision should not come as much of a surprise.  And for employers, it means remaining aware that accommodating a person’s religious belief doesn’t necessarily require your actual knowledge.  Be understanding in your approach to these issues.
The EEOC’s statement earlier this year on accommodating religious beliefs still holds some sway too.
Some will argue (as they already have this morning) that the decision puts employers in a no-win situation.  I think that overstates it.  Employers should use common sense and discuss the topic if there appears to be an issue with an employer’s existing policy.

UPSairBack in September 2013, I reported on a seemingly never-ending case of Tomick v. UPS and mentioned that it was headed to its second appeal at the Connecticut Appellate Court. (I talked about the history of the case and the first appeal back in 2012 too.  Amazingly, it dates to a termination decision way back in 2004!)

Well, it’s back. Today, the Appellate Court officially released its newest decision looking at a particular issue: Namely, is an employee required to show that he was qualified to perform the essential duties of his position at the time of an adverse employment decision?

To establish the basic elements (or a “prima facie case”) of a disability discrimination, an individual must typically show that he was “qualified for the position”.  UPS argued on appeal that it “is fundamental, under both state and federal law, that a plaintiff bringing a claim of disability [discrimination] must be capable of performing his/her essential job functions as of the date of the adverse employment action being challenged”.

The Appellate Court disagreed.  In doing so, it indicated that the requirement of “qualification” is necessary only when it is “germane” to the issues involved.  It cited Curry v. Allan S. Goodman, Inc. where the “plaintiff’s qualifications were essential in determining whether the employer could in fact employ the plaintiff with or without a reasonable accommodation.”

But the court went on. If the “question of qualification is not relevant to the main question of whether there was discrimination, our Supreme Court holds that no such showing is necessary….”.

In this case, because the plaintiff was already an employee of the defendant and his qualifications for the position held were not being challenged, the court said that the question of whether the plaintiff was qualified to perform the essential functions of his position at the time of termination was not relevant.

Interestingly, the court did suggest a different result in a different case.  If the defendant, for example, asserted that it could no longer continue to employ the plaintiff, with or without reasonable accommodations, on the basis of his unsatisfactory performance or lack of qualifications as a result of his disability, then the qualification element might come back into play.

For employers, the case is a notable play on legal theories.  But from a practical perspective, it’s hard to see how this will change the advice typically given to employers.

The Appellate Court went on to address another interesting aspect: Punitive damages. I’ll tackle that in an upcoming post.

templeAs I hinted at the beginning of the year, I expected topics relating to religion to take front and center this year. And certainly, the events of the first few months have supported that.

Today, I’ll be moderating a community forum at my firm, Shipman & Goodwin LLP, entitled “Gotta Have Faith? Religion in the Workplace”.  In this presentation, which is free and open to the public, we’ll talk about the latest legal developments, define what an employer’s obligations to provide accommodations are, address best practices for employers to follow, and share insights into what issues are likely to develop over the next few years.  There will be a Q&A following this panel discussion.

We have a terrific panel lined up of:

  • Steven Sheinberg, General Counsel, Anti-Defamation League
  • Cheryl Sharp, Deputy Director, Connecticut Commission on Human Rights and Opportunities
  • Gabe Jiran, Partner, Shipman & Goodwin LLP

It starts at 4 p.m. at our Hartford office. For full details, you can view them on Shipman & Goodwin’s website here.

The discussion is part of a our continuing “In Community” forum series, which has produced presentations focusing on a variety of issues facing our workforce and community. Other titles have included:

  • Working With the Deaf and Hard of Hearing Population: A Case Study Under the ADA
  • Race and Cultural Identity in the Working Environment
  • Understanding Gender Identity and Expression and Its Impact in the Workplace
  • Understanding Islam
  • “Not for Sale” – Combating Child Trafficking and Exploitation

We look forward to seeing you there this afternoon.

U.S. Supreme Court
U.S. Supreme Court

Last week, the U.S. Supreme Court decided one of the most anticipated cases in the court’s docket this year — at least for employment lawyers — in Young v. UPS.  There’s been lots of bytes uploaded talking about the case from a federal level.  Much of it is straightforward — in the sense that everyone is trying to figure out how the court’s decision will work in practice.

The crux of the Court’s decision is that pregnancy discrimination cases will now be analyzed using a familiar three-part test that the court uses in other discrimination cases. (It’s called the McDonnell-Douglas test and I’ve talked about it on the blog before.)  From an employer perspective, that’s kind of boring.

As Walter Olsen commented at Cato:

Few non-lawyers are likely to stick around for its dry details, in which Justice Stephen Breyer laid out a balancing test mushy enough in its liberalism to win over Chief Justice Roberts and even Justice Alito. (Readers interested in such matters as McDonnell-Douglas burden-shifting and the selection of similarly situated co-worker “comparators” should follow up at the specialty employment-law blogs.) The practical impact of the case is also somewhat limited by Congress’s having further liberalized pregnancy accommodation law in plaintiffs’ favor after the events being sued over.

In coming to its conclusion, the majority in Young rejected each of the arguments raised by the employee, the employer and the EEOC.  You don’t see that happen all that much in discrimination cases.

And as Jeff Nowak pointed out on the FMLA Insights blog, all the court really did was create the “potential for pregnant employees to secure workplace accommodations by endorsing a balancing test to determine under what circumstances a pregnant employee can prevail on a failure to provide workplace accommodations.”

What’s the problem with this approach? Jon Hyman at Ohio Employer’s Law Blog says Justice Scalia pinpoints it. “By permitting a pregnant worker to establish pretext by demonstrating a disadvantage presented by the application of a facially neutral work rule, the majority’s opinion allows one to establish intentional disparate treatment by demonstrating a disparate impact.”

Of course, most employers will probably never get there because employers will end up accommodating pregnant employees in many instances.

What does this mean for Connecticut employers? Well, as I’ve talked about earlier this month, Connecticut employers have to worry first about the state anti-discrimination laws which are broader than the federal ones.

Connecticut law for example may require an employer to transfer a pregnant employee to a temporary position if she reasonably believes her current position may cause harm to her or her fetus.

So, for employers, the notion that you may have to provide some type of accommodation to your pregnant employees should not be a new concept. What exactly that accommodation may (or may not) be will depend on several factors including how you treat other employees.  Consistency in your approach remains key.  Being considerate and mindful of your obligations will go a long way to reducing your legal risks.