MTMMary Richards’ job interview with Lou Grant is, perhaps one of the most famous job interviews ever. So says Time magazine.

Before I go on, though, there are probably more than a few of you who don’t know what I’m talking about.

But with the passing of Mary Tyler Moore earlier today here in Connecticut, I was reminded of an early exchange from her television show that was included in an employee training seminar I did for employers many years ago.  It was used as an example (with humor) of what NOT to do in a job interview as a supervisor and there were many in the audience who remembered that television show.

I haven’t been able to find the actual video online – but YouTube does have a remake of the job interview featuring cartoons.  And you can get a sense of the dialogue elsewhere.

First, you have the supervisor (Lou) asking Mary what her age was. (Sigh.) To compound matters, he then asks what her religion is. (Double sigh.)

But this is where the show was groundbreaking — Mary doesn’t just respond.  She’s a “modern woman” (as The New York Times called her) and tells him: “I don’t know quite how to tell you this, but you’re not allowed to ask that question when someone is applying for a job. It’s against the law.”  He pushes back — “You gonna call the cops?” To which, Mary demurs.

And the interview continues with personal questions including whether she was married (she was not).  Then Mary stands up and calls him out for asking so many questions that have nothing to do with the job.

Lou responds in a classic line: “You’ve Got Spunk.”  Of course, he then says he hates “spunk” but this was the early 1970s and she was still hired.

It was groundbreaking television.  As NPR reported from an interview Ed Asner (who played Lou), that moment was critical: “It was the most powerful moment in theater I’ve had, because she played it so beautifully,” Asner told NPR in 2001. “The audience was going ‘oh-goo-goo’ at that moment.”

A few years ago, Time Magazine — in calling this show’s pilot one of the 10 best of all time — noted that it really formed the foundation of the workplace-as-family sitcom that so many other shows tried to copy.

As a child of the 70s and 80s, Mary Tyler Moore stood out to me because, well, she kinda seemed like my mom who was already in the workplace. Growing up, I didn’t see it as that unusual.

But now with the hindsight of history, all employment lawyers can point to Mary Tyler Moore as giving workplace issues their rightful place. And for a generation of women, Mary Tyler Moore represented more than just a television show.  She represented them.

Proper hiring procedures are still a topic we’re talking about today and I’ll be presenting on the topic next month.  Maybe it’s time I bring back the Mary Tyler Moore reference.  Watch for details soon.

Rest in Peace, Mary Tyler Moore.

(Due to an editing error (and spell check) an early version of this post referred to her character as Mary Roberts; it is obviously Mary Richards.) 

last jediYesterday, news came out that Episode 8 (I mean, VIII) of the Star Wars series would be named “The Last Jedi”.

Which reminded me about an article in The New York Times I saw a few weeks ago that I had been meaning to write about.

Turns out there are, according a BBC report cited in the Times (I swear I did not make this number up on my own), 177,000 practitioners of Jediism in Britain.

Wait, I hear you saying. Jediism? What is that? Like a religion? For real?

Well, according an application submitted to the Charity Commission for England and Wales:

Jediism draws on “the mythology of Star Wars,” and centers on a belief in the power of the Force,” according to a Temple document used by the Charity Commission to evaluate the application. It also draws on major world religions like Hinduism and Christianity, and on “the existential phenomenology of Heidegger, Kierkegaard and Buber.”

The application as it turns out, was from a group known as the Temple of the Jedi Order that sought nonprofit or charity status because, it claimed, Jediism was a religion.

The Charity Commission, however, disagreed saying it does not “promote moral or ethical improvement” and thus is not a religion.

That is not the end, however, of the Temple — as noted by a new The New York Times article yesterday as well.  Others, including, those in the United States, are still persisting.

Which led me to thinking — what would happen if an employee here in Connecticut asked for a religious accommodation on the basis of “Jediism”?

Lest you think I’m really stretching, no less than the President of the United States (Obama, that is) made remarks about this phenomenon when commending George Lucas on his Kennedy Center honors.  In that December 6, 2015 speech, he stated:  “He created a mythology so compelling that in a 2001 census, the fourth-largest religion in the United Kingdom was ‘Jedi.'”  

So, it’s out there.  But not in the courts yet. A quick search of court decisions has yet to find a case where Jediism is listed.  So, back to the question: what would the courts do if confronted about it?

Probably laugh.  After all, pledging allegiance to the Flying Spaghetti Monster (FSM) was not enough to survive a motion to dismiss a religious discrimination claim.  The federal court that was confronted with the issue took swift note about the origins of the religion and ruled that it wasn’t enough to satisfy the legal requirements:

This is not a question of theology: it is a matter of basic reading comprehension. The FSM Gospel is plainly a work of satire, meant to entertain while making a pointed political statement. To read it as religious doctrine would be little different from grounding a “religious exercise” on any other work of fiction. A prisoner could just as easily read the works of Vonnegut or Heinlein and claim it as his holy book, and demand accommodation of Bokononism or the Church of All Worlds. 6 See, Kurt Vonnegut, Cat’s Cradle (Dell Publishing 1988) (1963); Robert A. Heinlein, Stranger in a Strange Land (Putnam Publ’g Grp. 1961). Of course, there are those who contend—and Cavanaugh is probably among them—that the Bible or the Koran are just as fictional as those books. It is not always an easy line to draw. But there must be a line beyond which a practice is not “religious” simply because a plaintiff labels it as such. The Court concludes that FSMism is on the far side of that line.

Case closed, right? Well, perhaps, but even the EEOC has recognized that legal protections aren’t just for well established religions like Christianity.  In one Q and A, it notes the broad language of Title VII:

For purposes of Title VII, religion includes not only traditional, organized religions such as Christianity, Judaism, Islam, Hinduism, and Buddhism, but also religious beliefs that are new, uncommon, not part of a formal church or sect, only subscribed to by a small number of people, or that seem illogical or unreasonable to others. An employee’s belief or practice can be “religious” under Title VII even if the employee is affiliated with a religious group that does not espouse or recognize that individual’s belief or practice, or if few – or no – other people adhere to it. Title VII’s protections also extend to those who are discriminated against or need accommodation because they profess no religious beliefs.

So perhaps someday we’ll see this tried in courts. But for now, please don’t tell my kids its not real.  And someone save seats for me at The Last Jedi when it opens.

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.

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.

passoverUPDATED:

Since the initial post, the CTDOL website has been updated to reflect a change in the law. The post has been updated to reflect these changes. 

With all the talk about religious “freedom” this week in the news and the holidays upon us this weekend, I wish I had something more profound to write about them.

But I look back on my prior posts — like this one from Passover and Easter in 2011 — and I sigh that we seem to be talking about the same issues over and over again.

  • What is an employer’s duty to accommodate in the workplace?
  • What are the rules for providing employees days off?
  • And can an employer set dress codes without facing a lawsuit?

But if you’re not careful, you’ll still think we have laws on the books that are outright illegal and have been ruled as much by the courts.

For example, Conn. Gen. Stat. 53-302a is a remnant from our blue laws and states with a few exceptions that: “No person, firm or corporation shall engage in work, labor or business, or employ others in work, labor or business on Sunday.”

That law was ruled unconstitutional in the Caldor’s (remember them?) v. Bedding Barn case nearly 36 years ago to the day. But still the law persists.

Until recently, look at Conn. Gen. Stat. 53-303e which until 2013 stated:

(a) No employer shall compel any employee engaged in any commercial occupation or in the work of any industrial process to work more than six days in any calendar week. An employee’s refusal to work more than six days in any calendar week shall not constitute grounds for his dismissal.

(b) No person who states that a particular day of the week is observed as his Sabbath may be required by his employer to work on such day. An employee’s refusal to work on his Sabbath shall not constitute grounds for his dismissal.

Pretty broad, right? And yet, as I pointed out back in 2007 (!), paragraph (b) of the statue was ruled unconstitutional as well in 1985 in the U.S. Supreme Court in Estate of Thornton v. Caldor’s. 

The Connecticut statute challenged here guarantees every employee, who “states that a particular day of the week is observed as his Sabbath,” the right not to work on his chosen day. Conn.Gen.Stat. § 53-303e(b) (1985). The State has thus decreed that those who observe a Sabbath any day of the week as a matter of religious conviction must be relieved of the duty to work on that day, no matter what burden or inconvenience this imposes on the employer or fellow workers. The statute arms Sabbath observers with an absolute and unqualified right not to work on whatever day they designate as their Sabbath.

In essence, the Connecticut statute imposes on employers and employees an absolute duty to conform their business practices to the particular religious practices of the employee by enforcing observance of the Sabbath the employee unilaterally designates. The State thus commands that Sabbath religious concerns automatically control over all secular interests at the workplace; the statute takes no account of the convenience or interests of the employer or those of other employees who do not observe a Sabbath. The employer and others must adjust their affairs to the command of the State whenever the statute is invoked by an employee….

This unyielding weighting in favor of Sabbath observers over all other interests contravenes a fundamental principle of the Religion Clauses, so well articulated by Judge Learned Hand: “The First Amendment . . . gives no one the right to insist that, in pursuit of their own interests, others must conform their conduct to his own religious necessities.”

Thankfully,  the Connecticut Department of Labor website has now been updated to reflect these changes.

Happy Passover and Easter to all who celebrate!

 

islamThe law works in mysterious ways.  (Cue the U2 song.)

Some years seem to get dominated by a particular type of issue, even though the law has been around for years.

This year, it seems as though issues of religion and the workplace are taking center stage.

Yesterday, the U.S. Supreme Court heard arguments in the EEOC v. Abercrombie & Fitch case that I talked about last month.  As usual, SCOTUSBlog has an excellent recap written “in plain English”.   The case involves the government’s suit against the retailer for failing to hire a Muslim teenager who wore a headscarf.

But notably, the issue in the case is slightly different than how it has been portrayed in the mainstream press.  The issue is “Whether an employer can be liable under Title VII of the Civil Rights Act of 1964 for refusing to hire an applicant or discharging an employee based on a “religious observance and practice” only if the employer has actual knowledge that a religious accommodation was required and the employer’s actual knowledge resulted from direct, explicit notice from the applicant or employee.”

According to SCOTUSBlog, the judges seemed to be searching for a solution.

With the Justices apparently dissatisfied with both of the options presented to them by the parties, Justice Sonia Sotomayor offered a possible solution that would allow an employer like Abercrombie to inform a job applicant about its work rules without asking probing questions about the applicant’s religion:  if an applicant had a beard, for example, the employer could tell the applicant that its “Look Policy” prohibits beards (thereby notifying him of a possible conflict) and simply ask him whether he can comply with that policy.

Not all Justices were amenable to this proposal:  Chief Justice John Roberts complained that such an approach wouldn’t “cover anything that’s not readily apparent,” and Justice Scalia asked about the scope of such a rule – what if an applicant could comply, but it would make her uncomfortable?

I anticipate this decision will be among the last ones issued in June.

In the meantime, the EEOC yesterday released a new statement about religious accommodations in the workplace.  The statement reiterates the EEOC’s interest in the area.

I talked extensively about these issues in some prior posts here and here. 

If you’re still interested in the subject, stay tuned for details about a community forum program my law firm, Shipman & Goodwin is presenting on April 8, 2015 at our Hartford Office. Among the speakers: Steven Sheinberg, General Counsel of the Anti-Defamation League; Cheryl Sharp, Deputy Director of the Commission on Human Rights and Opportunities; and, Gabe Jiran of Shipman & Goodwin as well. I will be moderating.

 

Reading the Tea Leaves

Every year, I break out a crystal ball, or a magic 8-ball, or some tea leaves, and make some pronouncement about what will happen in the upcoming year.

It’s sort of a no-lose proposition. If I’m right, well, then I pat myself on the back. If I’m wrong, well, it’s just an educated guess.

So, continuing my series of outlook posts, here are three bold predictions on what we could see in the area of employment law on a national basis. In a post next week, I’ll look at Connecticut and make three more “bold” predictions.

1. A Battle Royale Over the NLRB: A new Republican-controlled Congress + a reinvigorated NLRB spells trouble.  We’ve already seen in the closing weeks of 2014 a renewed sense of vigor at the NLRB. It has taken aggressive stances in several cases and has now finalized “quickie” election rules that will disrupt the settled way that such elections have been held for years.  The Republicans who now control Congress will no doubt attempt to push back at such actions, but with President Obama wielding a veto pen, we’re unlikely to see such actions. Instead, look for lawsuits to be the continued mechanism by business interests to try to halt what they see as NLRB overreach.

2. The Supreme Court’s Makes No One Happy: The highest court has taken some interesting employment law cases over the years.  In Young v. UPS, I predict the court will punt on the issue of the extent of the Pregnancy Discrimination Act, deferring to the United States’ brief recommending the same thing.  In EEOC v. Abercrombie & Fitch, my sense is that the Court will find that actual knowledge of an employee’s religion is needed in order to find discrimination. (Argument set for February 25, 2015.) In Mach Mining v. EEOC, the Court will agree with the lower courts that have looked at the issue and find that the EEOC’s duty to conciliate before filing a charge cannot be the subject of an affirmative defense.  (That case is set for oral argument on January 13, 2015.)

3. Lots of New Regulations: There are a number of items that the EEOC and Department of Labor have on their regulatory agenda. Among the new regulations that are likely to come down the pike in 2015 are revisions to the “white collar” exemption for overtime purposes and guidance on “wellness plans”.

Bonus prediction: If I’m going to make one crazy prediction, here it is: Perhaps we will see consideration of the Employment Nondiscrimination Act as a way for Republicans to show that they can govern with their majorities in Congress.  Yes, I recognize this is a stretch but with both President Obama and Republican leaders talking about taking bold steps over Obama’s last two years, could we see a breakthrough on a compromise for this bill? Stranger things have happened.

Will these come true? Stay tuned.

A confession first: I’m in a fantasy football league. Actually two of them.  It’s fun and makes weekend football watching a heck of a lot more interesting.

But did you know that fantasy football has led to all sorts of real issues in the workplace?

Well, longtime readers may remember an incident from five years ago when Fidelity Investments fired a number of employees for participating in and running a fantasy football league claiming it was part of a “gambling” operation.

The tips I gave at the time still hold true today:

  • Set up clear rules for your employees; if participation in fantasy leagues or office pools is prohibited, say so. And then enforce that rule evenly.
  • If those types of activities aren’t prohibited, make it clear that participation in those activities during work time is not allowed. Restricting off duty conduct is — for the most part — well outside the bounds for an employer to consider.
  • Consider “blessing” such activities in a non-monetary fashion. Some employers have small office gatherings around some sports event to build morale and teamwork.

But I was curious: Has fantasy football been the subject of actual allegations in other employment cases? In other words, is fantasy football something other than a fantasy in the workplace?

A quick Google Scholar search turned up more cases than I would have thought.

  • There was the 2004 New Jersey case where two employees alleged religious harassment.  For example, “One of the ‘Jewish’  comments ascribed to [the alleged harasser] related to the office fantasy football league when [that employee] allegedly said, ‘This is the gentiles against the Jews and the plaque should never hang in anybody’s office that doesn’t celebrate Christmas.'”  Despite this allegation, the court upheld summary judgment in favor of the employer.
  • In a 2013 case, an employee claimed that his termination was racially motivated.  The employer, as part of its defense, pointed to an earlier performance review where the employee’s usage of worktime was criticized. The review indicated that the employee “showed up late for meetings, worked on fantasy football during a “boot camp” training session in August 2004, and failed to contribute in staff meetings.”  The employee’s discriminatino claim was allowed to proceed to trial by the Sixth Circuit after further consideration (and more facts.)
  • Lest you think that fantasy football is merely virtual, there was constructive discharge case filed against a fantasy football statistics company and a claim for unpaid stock worth in the millions of dollars.
  • A more common claim is the type found in some sexual harassment claims — that the employee was ostracized.  In a Minnesota case from a few years ago, a female employee alleged that “she was excluded from Fantasy Football leagues and other social events, like campfires, and her co-workers would talk about these activities around her, even though she wasn’t invited to participate. ” (Campfires? Do companies still do that?) The employer’s motion for summary judgment was denied in this case as well.

So to answer my own question in the title: No, fantasy football is not a critical threat to your business. But sometimes, fantasy football can be used support a claim of harassment or discrimination.

Fantasy football, despite its name, is a real industry and those companies that treat it as mere child’s play, do so at their own risk.

Here’s a hypothetical: A observant Jewish worker who is a recent leg amputee comes to you seeking an “accommodation”.  She works on the candy wrapping line that requires constant supervision and is staffed by only one or two people typically.  She seeks to leave her shift 4 hours early on Fridays to observe the Jewish sabbath.  She also seeks to take frequent breaks to rest for her disability. 

Let’s call this employee, “Lucy” and use this video as an “example” of the candy-wrapping line.  

In other words, suppose “Lucy” wants an “accommodation” for both her religion and her disability.  What do you do as an employer?

As an employer, the obligations to provide an accommodation for a disability are not the same as for a religion because, while each may use the language of “accommodation”, the standards are quite different.

For a disability under the ADA, generally, employers must provide a “reasonable accommodation” so long as it doesn’t cause an “undue hardship”.  Frequent rest period may be reasonable under the circumstances, because the other person on the candy wrapping line can easily cover for the disabled employee.  (Ignore the “video” above, which still shows some difficulty even with two people.)  The cost of doing so may be something more than minimal, but it is not so difficult that the employer can’t do it.  The employer doesn’t need to hire anyone for the breaks.

For a religious belief accommodation under Title VII, the standard is slightly different. The law requires an employer or other covered entity to reasonably accommodate an employee’s religious beliefs or practices, unless doing so would cause more than a minimal burden on the operations of the employer’s business.

In the hypothetical above, the employer may say that they can’t leave a candy wrapping line shift unstaffed for four hours and would need to hire someone for that shift. In that instance, the employer may argue that providing the accommodation could cause more than a minimal burden.

Two types of accommodations; two different results.

Of course, the usual warnings apply to this: Each case has different facts and what may work for one employer may not be workable for another.  Also, there may be state laws that apply different standards as well. Thus, the hypothetical above is for illustration purposes only.

But for employers who are dealing with “accommodations”, this example should suffice. Understand that there are different standards for religious belief and disability accommodations and apply them appropriately.

Otherwise, “you got some ‘splainin’ to do!”