The Legal Line


Supreme Court Punts on Deciding between Religious and Gay Rights

posted Jul 2, 2018, 3:54 PM by Allison Ayer   [ updated Jul 2, 2018, 3:55 PM ]

In Masterpiece Cakeshop, Ltd. et al., v. Colorado Civil Rights Commission, the United States Supreme Court recently ruled 7-2 in favor of a Colorado baker who refused to bake a wedding cake for a same-sex couple because he claimed it would violate his religious beliefs against gay marriage.  Importantly, the Court’s ruling did NOT decide whether the baker acted within the bounds of the law when he refused to bake the cake on the basis of his religion.  Instead, the Court made a narrow ruling in the baker’s favor because the Civil Rights Commission which originally heard the case failed to decide it with neutrality.  As a result, the specific question of whether public accommodations can refuse to provide a service to a same-sex couple on the basis of religious views remains an open one. 

The Facts

Jack Phillips is a baker who owned and operated Masterpiece Cakeshop, Ltd., a bakery located in a suburb of Denver, Colorado.  Phillips is a devout Christian who believes that God intended marriage to be only between one man and one woman. 

In 2012, two men in a same-sex relationship entered Phillips’ bakery and told Phillips that they were interested in ordering a cake for their wedding.  Phillips purportedly informed the couple that while he would make a birthday cake or sell cookies to them, he could not bake a cake for their wedding because it was against his religious beliefs.  To Phillips, baking a wedding cake for a same-sex marriage involved creating something for an event that goes directly against his reviews about the teachings of the Bible, and therefore would be equivalent to a personal endorsement of and participation in the celebration of a same-sex relationship which is contrary to his deeply held religious beliefs. 

The same-sex couple filed a discrimination claim against Phillips in the Colorado Civil Rights Commission alleging that Phillips violated the state’s law that prohibits places of public accommodation, like restaurants, hotels, and bakeries, from discriminating against an individual or group because of sexual orientation.  The complaint alleged that the couple had been denied “full and equal service” at the bakery because of their sexual orientation.  The Commission’s investigation revealed that Phillips had refused to sell custom wedding cakes to about 6 other same-sex couples.  The Commission found in the couple’s favor, rejecting Phillips argument that his refusal was not sexual orientation discrimination, but rather a constitutionally protected form of expression of his opposition to same-sex marriage on the basis of his sincerely held religious views. 

The Supreme Court Decision

               In a decision issued by Justice Kennedy, the Supreme Court ruled 7-2 to overturn the Commission’s finding. 

As a preliminary matter, the Court acknowledged the competing rights at issue in these types of cases.   The Court pointed out that gay persons and gay couples cannot be treated as social outcasts or inferior in dignity and worth, and that the Constitution clearly protects their civil rights, but the Court also stated that religious and philosophical objections to gay marriage can constitute Constitutionally protected forms of expression.  The Court also asserted that there were limits to the application of these religious beliefs in the public accommodation context.  The Court clearly stated that “while those religious and philosophical objections are protected, it is a general rule that such objections do not allow business owners and other actors in the economy and in society to deny protected persons equal access to goods and services under a neutral and generally applicable public accommodations laws.”  The Court explained that while a member of the religious clergy could not be compelled to perform a same-sex marriage, if public accommodations who provide goods and services for weddings or marriages were permitted to refuse service to a same-sex couple, it could result in “a community-wide stigma inconsistent with the history and dynamic of civil rights laws that ensure equal access to goods, services and public accommodations.” 

After laying out these general legal principles invoked in these cases of conflicting civil rights, the Court found in favor of the baker on the narrow basis that the state Commission failed to decide the case with the required neutrality towards Phillips’s religious views.  In fact, worse than simply failing to demonstrate neutrality toward Phillips’s religious views, the Supreme Court found that the Colorado Commission demonstrated actual hostility toward Phillips’s religious beliefs and ruled in favor of the baker on this basis.

For example, the Court found troubling that a Commissioner declared during a hearing that people had misused freedom of religion to justify such atrocities as the holocaust and slavery.  To the Supreme Court, this comment cast doubt on the fairness and impartiality of the Commission and evidenced a hostility against the baker’s religious views. 

The Court also found it troubling that the Commission made inconsistent rulings in other related cases.  On at least three other occasion, when the Colorado Civil Rights Commission considered cases where bakers refused to create cakes expressing disapproval of same-sex marriage on religious ground, the Commission found in favor of the bakers (i.e. it found that the bakers could refuse to bake a cake critical of same sex marriage). 

For these reasons, the Court concluded that the Commission’s consideration of Phillips’ case was not tolerant or respectful of his religious beliefs as required by the Constitution, and it therefore reversed the Commission’s decision.    

The Takeaway

               The Court’s decision leaves open how the Supreme Court would decide a similar case that was handled at the Commission level with the required neutrality toward religion.  With that said, the reasoning of the court in Masterpiece provides some insight about where the Court might draw the line on these types of cases. 

The Court seemed to distinguish between a general refusal to make or serve the baked products available for sale to the public to gay or lesbian individuals or same-sex couples and a refusal to bake a wedding cake for a same-sex marriage.  The former would present a “strong case” of a denial of goods and services that goes beyond the protected rights of a baker to decline service for religious reasons, according to the Court, while the latter offered a closer question of permissible, constitutionally protected religious expression.  These statements may indicate that the Supreme Court would not uphold a public accommodation generally denying access to its goods and services to a gay or lesbian individual or same sex couple, but that it would allow a public accommodation to refuse to provide a specific service for a same-sex marriage to the extent based on sincerely held religious beliefs. 

 

Of course, with the retirement of Justice Kennedy, who often decided with the more liberal members of the court on social matters like gay rights (he wrote the decision on gay marriage), the Supreme Court is probably much more likely to allow public accommodations to deny service to members on the public if such denial is based on religious views.  With that said, in the absence of a specific ruling by the Supreme Court in that regard, restaurants and other public accommodations must be very careful in denying service to anyone based on personal characteristics like sexual orientation.     

Gorsuch-Led Court Upholds Class Action Waivers

posted May 31, 2018, 3:44 PM by Allison Ayer

After several months of deliberation, the Supreme Court ruled in a 5-4 decision authored by Justice Gorsuch that employment agreements can lawfully include provisions that require employees to arbitrate claims on an individual basis rather than through a class or collective actions.  This is a significant victory for employers who may be the targets of costly wage and hour litigation that could otherwise be expanded to include hundreds, if not thousands, of their employees.

In, Epic Systems v. Lewis, a group of employees sued their employers alleging that they had failed to pay proper wages in violation of the FLSA.  The FLSA expressly permits wage claims to be filed as collective actions, and so these employees chose to file their wage claims on behalf of large groups of employees aggrieved by the employers’ alleged wage practices, rather than individually.  The employers, on the other hand, sought to force the employees to arbitrate the FLSA claims on an individual basis pursuant to the terms of the class action waivers in the arbitration provisions of their employment contracts.  The employees challenged the employers, arguing that the class action waiver violated the Federal Arbitration Act  and/or the National Labor Relations Act.  The Supreme Court rejected the employees’ arguments and ruled that arbitration agreements that require an employee to arbitrate claims on an individual basis rather than as a collective or class are lawful and enforceable. 

Employers who already have arbitration agreements including class action waivers in place should be confident in their ability to enforce those agreements, barring any contractual defenses such as lack of consideration, fraud, or duress.  Now that the Supreme Court has definitively answered the question of whether such provisions are enforceable, employers should strongly consider putting such agreements in place if they have not already done so.

The Court’s decision may not necessarily end the debate over class action waivers.  Ruth Bader Ginsburg prepared a scathing dissent claiming that the decision hurt “vulnerable workers” requiring them to “go it alone” in seeking “redress for common experienced wage loss.”  To the extent Democrats retake Congress, there is always the possibility that they could amend the laws to include language prohibiting class action waivers.  So, keep watching!   

Massachusetts Act Protecting Pregnancy Takes Effect April 1, 2018

posted Mar 28, 2018, 2:21 PM by Adam Chandler   [ updated Mar 28, 2018, 2:27 PM ]

The Massachusetts Pregnant Workers Fairness Act (the “Act”) goes into effect on April 1, 2018.  The Act amends M.G.L. ch. 151B, §4 Massachusetts anti-discrimination statute to expressly prohibit discrimination on the basis of pregnancy or pregnancy-related conditions.    

According to the Act, employers are generally prohibited from treating employers or job applicants less favorably than others on the basis of a pregnancy or pregnancy-related condition, such as for example lactation or breastfeeding. 

With this general prohibition in mind, the Act provides more specifically as follows: 

Employers cannot discriminate or retaliate.
  • Employers cannot deny an employment opportunity or take an adverse employment action against an employee because of a pregnancy or because the employee requests or uses a reasonable accommodation for a pregnancy-related condition.
  • Employers cannot refuse to hire a person because of a pregnancy or a condition related to the person’s pregnancy, including for example lactation, if the applicant is capable of performing the essential job functions with or without a reasonable accommodation.
Employer must provide reasonable accommodations.
  • Employers must engage in a timely and good faith interactive process (i.e. they must communicate with the employee in good faith to determine an effective, reasonable accommodation to enable the employee to perform the essential job functions.
  • Employers must grant requests for reasonable accommodations for an employee’s pregnancy or pregnancy-related condition, including but not limited to lactation, morning sickness, or the need to express breast milk.
  • Reasonable accommodations may include, but are not limited to:
    • Frequent or longer paid or unpaid breaks
    • Time off to attend to pregnancy complications or recover from childbirth
    • Acquire or modifying equipment or seating
    • Temporary transfer to a less strenuous or hazardous position;
    • Job restructuring
    • Light duty
    • Private space for expressing breast milk
    • Assistance with manual labor
    • Modified work schedule
  • Employers may require documentation about the need for an accommodation from an appropriate health care provider except the employer SHALL NOT ask for documentation for accommodations for 1) more frequent restroom, food or water breaks, 2) seating, 3) limits on lifting more than 20 pounds, or 4) private non-bathroom space for expressing breast milk. 
Employers must provide on-site space to express milk.
  • Employers must provide an employee a private, non-bathroom space to express breast milk or to breastfeed.  
  • Such space may include but is not limited to a private room or office.  
  • In addition, the space must be free from instruction by other employees, visitors and the public (i.e. it must have a lock) and the space must allow employees to comfortably express breast milk or breastfeed, by for example, having sufficient electrical outlets for breast pumps, tables or other surfaces to hold breast pumps or other needed items, and provide adequate seating.  
  • The space must also be convenient enough for the employees that traveling to and from the space does not materially impact an employee’s break time.    
Employers cannot force a person to accept leave or an accommodation.
  • Under the Act, Employers cannot require an employee affected by pregnancy or a condition thereof, to accept a particular accommodation if the accommodation is not necessary to enable the employee to perform the essential job functions.
  • Employers also cannot require an employee to take leave if another reasonable accommodation may be provided for the pregnancy or relate condition.
Employers do need not grant an accommodation if it causes undue hardship.
  • Under the Act, an employer need not grant a request for accommodate only when it would impose an undue hardship on the employer.   
  • An undue hardship is defined as “an action requiring significant difficulty or expense.” The employer has the burden to prove an undue hardship prevented the accommodation based on all of the facts and circumstances including 1) the nature and cost of the accommodation, 2) the overall financial resources of the employer, 3) the overall size in terms of number of employees, and number, the and location of facilities, of the employer, 4) the effect on expenses and resources or the accommodation on the employer’s enterprise or business.
Employers must provide Notice of Employees’ Rights Under the Act.
  • The Act also requires that employers provide written notice to employees by April 1, 2018 of the right to be free from discrimination due to pregnancy or a condition related to pregnancy, including the right to reasonable accommodations associated with pregnancy or a related condition.  Such notice can be made in a handbook pamphlet, or other means.  
  • Employers must also provide written notice of employees’ rights under the Act any new employee(s) prior to or at the start of their employment.
  • Employers must provide written notice of their rights under the Act to any employee who notifies the employer of a pregnancy or pregnancy-related condition within 10 days after such notification.
Given the fast-approaching April 1 effective date of the Act, employers are well-advised to develop and provide notice under the Act as more fully discussed above, and to review their written policies, handbooks, and practices to ensure that they are complying with the Act.  For more information, employers can refer to the guidance and Q&A’s discussing the requirements of the Act issued by the Massachusetts Commission Against Discrimination, or contact legal counsel.

Another Federal Court Expands Title VII Protection to Transgender Individuals

posted Mar 28, 2018, 2:01 PM by Adam Chandler

In Equal Employment Opportunity Commission v. R.G. & G.R. Harris Funeral Homes, the Sixth Circuit recently held that a transgender individual has a cognizable claim of gender identity discrimination under Title VII, and furthermore that the employer’s religious objections to transgender individuals working at his business did not override the employee’s rights to be free from discrimination, therefore preventing the employer from terminating the transgender employee. 

The Facts

Aimee Stephens was born biologically male.  Stephens worked as a funeral director at R.G. & G.R. Harris Funeral Homes, Inc. (“the Funeral Home”) for some period of time while she was lived and presented as a man. 

The Funeral Home was a closely held for-profit corporation in Michigan.  The Funeral Home, is not affiliated with any specific church; it does not claim to have a religious purpose in its articles of incorporation; it is open every day, including Christian holidays; and it serves clients of all faiths.  However, Thomas Rost was the principal owner and operator of the Funeral Home.  Rost identifies as Christian and practiced Christianity for over sixty-five (65) years.  He testified in the case that he was called by God to serve the grieving, and the Funeral Home’s website contains a mission statement quoting scripture and stating that the Funeral Home’s “highest priority is to honor God in all that we do as a company.”  Rost hires employees belonging to any faith or no faith at all and testified that he “does not endorse or consider himself to endorse his employees’ beliefs or non-employment-related activities.”

Stephens told Rost about her plans to her plans to transition from a man to a woman and represent herself and dress as a woman while at work.  Stephens told Rost about her struggles with gender identity, and she stated her intention to sex reassignment surgery.  Stephens explained further that as a precursor for surgery, she had to live full-time as a woman for one year, including while at work at the Funeral Home.  After Rost received this letter, Rost terminated Stephens’s employment. 

Rost testified that he fired Stephens because “he was no longer going to represent himself as a man. He wanted to dress as a woman.” He claimed that he “sincerely believe[s] that the Bible teaches that a person’s sex is an immutable God-given gift,” and that he would be “violating God’s commands if [he] were to permit one of [the Funeral Home’s] funeral directors to deny their sex while acting as a representative of [the] organization” or if he were to “permit one of [the Funeral Home’s] male funeral directors to wear the uniform for female funeral directors while at work.”

The Sixth Circuit Appeals Court Rules Title VII Protects Against Gender Identity Discrimination and the Owner’s Religious Beliefs Did Not Protect him from Liability

               The Equal Employment Opportunity Commission (“EEOC”) took on the case for Stephens and sued the Funeral Home in Federal District Court in Michigan. The District Court initially found in favor of the Funeral Home, ruling that transgender status is not a protected trait under Title VII.  The Court alsoconcluded that the Religious Freedom Restoration Act precluded the EEOC from enforcing Title VII against the Funeral Home, because doing so would substantially burden Rost and the Funeral Home’s religious exercise. EEOC v. R.G. & G.R. Harris Funeral Homes, Inc., 201 F. Supp. 3d 837, 840 (E.D. Mich. 2016). 

On appeal, the Sixth Circuit reversed and ruled in favor of the EEOC and the transgender employee.  The Sixth Circuit found that Stephens was fired because of her failure to conform to sex stereotypes, in violation of Title VII, and that she could pursue a claim under that theory.  The Court went even further, however, finding that Stephens also could pursue a sperate and distinct theory of liability against her employer that she was discriminated against on the basis of her transgender and transitioning status.  In so ruling, the Sixth Circuit concluded that discrimination on the basis of gender identity was prohibited by Title VII. 

The court stated “Discrimination on the basis of transgender and transitioning status is necessarily discrimination on the basis of sex” protected by Title VII.  The Court reasoned that “it is analytically impossible to fire an employee based on that employee’s status as a transgender person without being motivated, at least in part, by the employee’s sex” which is expressly covered and prohibited by Title VII.  Furthermore, “discrimination against transgender persons necessarily implicates Title VII’s proscriptions against sex stereotyping.”  

On appeal, the Sixth Circuit also rejected that Rost’s religious objections to employing a transgender individual who intended to present at work as a different sex than she was biologically born trumped the employee’s rights against discrimination.  The Court reasoned that the “ministerial exception” to Title VII, which “preclude[s] application of [employment discrimination laws such as Title VII] to a religious institution and its ministers” did not apply because the Funeral Home was not a religious institution and the employee was not a ministerial employee.”

The Court also rejected Rost’s argument under the Religious Freedom Restoration Act.  The Religious Freedom Restoration Act only applies to the government enforcement of a religiously neutral law against an individual if that law substantially burdens the individual’s religious exercise.  This defense was available in this particular case because the EEOC, and not Stephens individually, filed the claim against the employer. 

The Funeral Home said employing Stephens substantially burdened it in two ways: 1) a transgender funeral director could create distractions for the deceased’s loved ones and thereby hinder their healing process and the Funeral Home’s ministry, and 2) forcing Rost to violate his faith and allow Stephens to dress as a woman at work would pressure Rost to leave the funeral industry and end his ministry to grieving people.  The Sixth Circuit found that neither burden was substantial.  The alleged distraction caused to customers was premised on their presumed biases.  As for the claim that the employer would be forced to act in contradiction of his faith to employ Stephens, the Court said that the employer did have to take some action like purchase Stephens female-specific clothing; all Rost had to do was permit Stephens to wear attire that reflects a conception of gender at odds with Rost’s religious beliefs.  This is not a substantial burden, according to the Court. 

Finally, the Sixth Circuit found that even if Rost had established a substantial burden, he would have to employ Stephens nonetheless because the EEOC had a compelling interesting in enforcing elimination of workplace discrimination on the basis of sex, and there was no less restrictive means of achieving this interest other than to find liability in this employer for discrimination.   For all of these reasons, Sixth Circuit granted judgment to the EEOC.

The Lessons

This case emphasizes once again that if they wish to avoid liability for discrimination, employers should seriously consider taking steps to avoid discriminating against a person based on any personal characteristic, including sexual orientation or gender identity. 

This latest decision by the Sixth Circuit is consistent with decisions of other Federal Circuit courts, including the Second Circuit in Zarda v. Altitude Express, Inc. and the Seventh Circuit in Hively v. Ivy Tech Community College of Indiana, who each have recently ruled that Title VII’s prohibition against sex discrimination does in fact cover discrimination on the basis of sexual orientation and gender identity.  Employers operating in states within these circuits should avoid discriminating on the basis of gender identity or sexual orientation. 

Even in states outside these circuits, employers should be extremely careful about taking adverse employment actions against transgender and gay employees.  First, the clear trend of federal courts is to recognize that Title VII does in fact prohibit discrimination on the basis of gender identity and sexual orientation. 

Second, such discrimination may also be prohibited by state law in the employer’s jurisdiction.  Several states, including Massachusetts and New Hampshire, have laws expressly prohibiting discrimination on the basis of sexual orientation.   Massachusetts state law also prohibits discrimination on the basis of gender identity.  Employers in these states and any other with laws expressly prohibiting discrimination on the basis of sexual orientation or transgender status must avoid discriminating because of an employee’s sexual preference or gender identity, and should change their policies to say so.

Finally, R.G. & G.R. Harris Funeral Home also reflects that the alleged beliefs of an employer may well be insufficient to provide a basis to avoid employing a diverse workforce in terms of sexual orientation and gender identity.  Only when the employer is legitimately a religious institution will an employer’s religious views potentially override the employee’s rights to be free from discrimination.  

Even Obscure Religious Beliefs Must be Accommodated if Sincerely Held

posted Mar 1, 2018, 3:51 PM by Allison Ayer

This week, the Supreme Court of the United States (SCOTUS) declined to review several employment cases petitioned to the Court.  One of those cases, EEOC v. Consol Energy, Inc., 860 F.3d 131 (4th Cir. 2017), sought review of a religious accommodation case where the employer refused to accommodate an employee who objected to using a biometric time tracking system because he believed it marked him as a supporter of the Antichrist.  This case provides an interesting insight into the state of the law protecting religious practice in the workplace, and is worth a read. 

The Case:        

The facts of the case make for good reading.  The employee was a devout evangelical Christian who had worked for the employer for nearly forty years.  He had no record whatsoever of poor performance or any other workplace incident.  But that changed when he refused to use the employer’s required tracking system. 

Relying on specific excerpts of scripture and a letter from his pastor, the employee told his employer that he could not use the company’s time tracking system because he believed that if he placed his hand on the biometric scanner to punch in and out, he might receive the “Mark of the Beast”, branding him a follower of the Antichrist and condemning him to everlasting punishment.  As an alternative, the employee offered to check in with his supervisor upon arrival or departure, or punch in and out on a time clock as he had done in the past.  The employer refused to allow this, instead insisting that the employee use the biometric scanner.  The employee decided to retire given what he believed was a risk of eternal damnation.  The EEOC sued on the employee’s behalf, and prevailed at trial.  The employee was awarded over $500,000 in back pay, front pay, lost benefits and compensatory damages.   

The Appeal: 

On appeal to the Fourth Circuit, the employer argued that the employee could show no conflict between his religious belief and the use of the hand scanner in essence because the employee was wrong about the religious teaching.  According to the employer, scripture provides that the “Mark of the Beast” can be made only on the right hand and involves an actual physical mark, and the scanner did not make any physical mark and could be used with the left or right hand, according to the manufacturer.  The employer therefore reasoned that the employee could use the biometric system without being at risk of branding himself a follower of the Antichrist.  The employer also noted that the employee’s own pastor did not share the employee’s religious beliefs objecting to use of the scanner.  

Employers Must Accommodate Sincerely Held Religious Beliefs, not “Correct” religious beliefs, unless such might pose an undue burden:

The Fourth Circuit rejected this argument, reasoning that it reflected only the employer’s view that its employee’s religious beliefs were mistaken, which view is completely irrelevant in deciding whether to make a religious accommodation.  The Court said it is not for the employer or the court to question the correctness or even the plausibility of the employee’s beliefs.  “[The employee’s] religious beliefs are protected . . . whether or not [the employee’s] pastor – or [the employer], or the manufacturer of [employer’s] scanning system – thinks that [the employee], in seeking to protect his religious conscience, has drawn the line in the right place.”  So long as there is sufficient evidence that the employee’s beliefs are sincerely held (which there was in this case), and that those beliefs conflict with an employment requirement, the employer must try to accommodate the employee unless it can demonstrate an undue hardship.

Constructive Discharge Does Not Require Evil Intent:

The Fourth Circuit Court also rejected the employer’s argument that the employee failed to make the required showing that the employer purposely refused the religious accommodation with the premediated goal of forcing his retirement.  The Court noted that in a 2016 decision, Green v. Brennan, 136 S. Ct. 1769 (2016), SCOTUS decided that there is no such “deliberateness” element to a constructive discharge claim.  SCOTUS stated:  

The whole point of allowing an employee to claim ‘constructive’ discharge is that in circumstances of discrimination so intolerable that a reasonable person would resign, we treat the employee’s resignation as though the employer actually fired him. We do not also require an employee to come forward with proof—proof that would often be difficult to allege plausibly—that not only was the discrimination so bad that he had to quit, but also that his quitting was his employer’s plan all along.

Applying this standard, the Court also found that the employer’s refusal to offer a religious accommodation rendered the working environment so intolerable as to force the employee to retire.  The Court stated:

[An employer] refus[ing] to accommodate [a] religious objection, requiring him to use a scanner system that [employee] sincerely believed would render him a follower of the Antichrist, “tormented with fire and brimstone”…. goes well beyond the kind of run-of-the-mill “dissatisfaction with work assignments, [] feeling of being unfairly criticized, or difficult or unpleasant working conditions” that we have viewed as falling short of objective intolerability.    

Inconsistent Accommodation for Others Was Key:

Importantly, there also was evidence presented at trial that the employer was willing to accommodate other employees for non-religious reasons.  The employer allowed employees with hand injuries to punch in and out using a key pad alternative to the scanner, but it did not offer this option for the employee who objected on religious grounds.  The employer also sent an email internally simultaneously authorizing the keypad accommodation for the employees with physical injuries and denying that accommodation to employee.  The email stated “[L]et’s make our religious objector use his left hand.” There was also evidence that this alternative system provided no additional cost or burden to the employer.  While the appeals court did not delve into these facts in any detail, it is difficult to imagine that they did not affect its decision to uphold the trial.  These facts reflect a difference in treatment that can be explained most clearly on religion.   

The Take Aways: 

SCOTUS’s refusal to review this case indicates that the law concerning religious accommodations is well-settled in certain areas, and the case should guide an employer’s conduct in the workplace when faced with these requests in the following respects:

Be Receptive!  Do NOT substitute your judgment for the judgment of the employee when it comes to religious accommodations.  If the employee expresses a sincerely held belief that religion prevents him/her from following a policy or practice, the employer must respect that view, whether or not it holds the same beliefs or finds that the employee misunderstands religious doctrine.

Be Proactive! Engage in an interactive process with your employee to try to find a way to accommodate an employee’s sincerely held religious belief, even if you think they are unreasonable, mistaken, or unfounded.  Given the intensity with which religious beliefs are held, if the employer quits because you refused a religious accommodation, it will likely be enough for the employee to establish that the workplace was so intolerable that he/she was forced to quit.  You will not be required to provide accommodations that would impose an undue burden upon you, but you typically will not know whether such a burden exists until you have fully engaged in a genuine interactive process.  

Be Consistent! Always treat employees the same, regardless of religion.  If an employer can accommodate an employee for a non-religious reason, this is strong evidence that it can provide the same accommodation when an employee objects on religious grounds.   

Be Careful! Watch what you state in an email, especially with regards to sensitive matters like requests for religious accommodations.  It can and will be used as evidence in any future discrimination case.  


               

NLRB Returns to the Obama-Era Test of Joint Employment

posted Feb 28, 2018, 3:34 PM by Allison Ayer   [ updated Feb 28, 2018, 3:46 PM ]

At the end of 2017, as part of its effort to end certain Obama-era rules, the new Republican majority National Labor Relations Board overturned the joint employer standard established under Obama.  According to the NLRB’s decision in Hy-Brand Indus. Contractors, Ltd. and Brandt Construction Co., in order to find a “joint employer relationship,” two entities must share actual control (verses a mere reservation of a right to control) the essential terms and conditions of employment (e.g. hiring, firing, supervision, compensation, etc). and that control must be “direct and immediate” verses merely indirect. 

 

This week, the NLRB vacated its decision in Hy-Brand, after the inspector general issued a report condemning a member of the NLRB for improperly participating in the case.  This means that the 2015 test established in the Browning-Ferris Industries of California, Inc. d/b/a BFINewby Island Recyclery decision, once again governs whether two entities constitute joint employers.   

 

Under the Browning-Ferris test, two or more entities are joint employers of a single workforce if (1) they are both employers within the meaning of the common law;  and (2) they share or codetermine those matters governing the essential terms and conditions of employment. In evaluating whether an employer possesses sufficient control over employees to qualify as a joint employer, the considers, among other factors, whether an employer has exercised control over terms and conditions of employment indirectly through an intermediary, or whether it has reserved the authority to do so. 

 

The reversion back to this more relaxed standard means that employers who employ workers through temporary agencies, or who utilize franchises or subcontractors to conduct business, are more likely to be viewed by the NLRB as a joint employer – that is until it changes its mind again!

Federal Court Says Sexual Orientation Protected by Title VII

posted Feb 28, 2018, 8:16 AM by Allison Ayer   [ updated Mar 5, 2018, 6:46 AM by Adam Chandler ]

This week, in a case called Zarda v. Altitude Express, the Second Circuit held 10-3 that discrimination on the basis of sexual orientation is prohibited under Title VII. 

The Case

In this case, the plaintiff, a gay man who worked as a sky driving instructor at Altitude Express, was fired by his employer after he told a female client about his sexual orientation.  He, like other sky diving instructors, often performed tandem sky dive jumps, which involved being strapped hip‐to‐hip and/or shoulder‐to‐shoulder with clients.  During the incident that formed the basis for his termination, Zarda said that the he disclosed his sexual orientation to a female client to dissuade any discomfort the woman might have about having to be strapped to him during the tandem jump.  The client, on the other hand, alleged that Zarda inappropriately touched her and disclosed his sexual orientation to excuse his behavior.  When her boyfriend complained to Altitude Express about Zarda’s alleged behavior and his reference to his sexual orientation, Zarda’s boss fired him.  Notably, there was evidence that Zarda’s co‐ workers routinely referenced sexual orientation or made sexual jokes around clients. 

Zarda filed suit against Altitude Express, under New York state law and Title VII.  Zarda lost his state claim at trial.  The lower court dismissed the sexual orientation claim at summary judgment, reasoning that a sexual orientation claim was not “legally invalid” under Title VII.  On appeal, the Second Circuit reversed. 

According to the Second Circuit Zarda’s sexual orientation claim is valid under Title VII for three critical reasons:

1. It is covered by the Title VII’s statutory language prohibiting discrimination “because of sex.” The Court stated:

Because one cannot fully define a person’s sexual orientation without identifying his or her sex, sexual orientation is a function of sex. Indeed sexual orientation is doubly delineated by sex because it is a function of both a person’s sex and the sex of those to whom he or she is attracted. Logically, because sexual orientation is a function of sex and sex is a protected characteristic under Title VII, it follows that sexual orientation is also protected.

2. Title VII’s prohibition against sex discrimination bars employers from taking adverse action against employers who fail to conform to gender stereotypes, which discrimination on the basis of which sexual orientation is the “ultimate case”; and

3. Title VII prohibits “associational discrimination.” An employer commits race discrimination in violation of Title VII if it takes adverse action against an employee in an interracial marriage. Similarly, “[i]f a male employee married to a man is terminated because his employer disapproves of same-sex marriage…the employee has suffered associational discrimination based on his own sex.”

The Consensus

This decision makes the Second Circuit among the several federal courts, along with the Equal Employment Opportunity Commission, who have opined that sexual orientation is prohibited by Title VII notwithstanding that the statute does not specifically include sexual orientation among the list of protected classes.  But this position is not unanimous.  The Eleventh Circuit, for example, ruled just last year that sexual orientation discrimination is not prohibited by Title VII.  

The Take Away

Importantly, the Zarda case underscores that employers should seriously consider taking steps to avoid discriminating against a person based on any personal characteristic, including sexual orientation or even gender identity, if it wishes to avoid liability. 

First, while discrimination on the basis of sexual orientation might not be protected by federal law in an employer’s protected jurisdiction, it might nonetheless be prohibited by state law.  Several states, including Massachusetts and New Hampshire, have laws expressly prohibiting discrimination on the basis of sexual orientation.  Massachusetts state law also prohibits discrimination on the basis of gender identity. 

Second, employment discrimination in the context of sexual identity issues is an evolving area of the law.  As mentioned above, there is disagreement within the Federal Government whether homosexual and/or transgender individuals are protected against employment discrimination under existing federal statutes.  This lack of certainty could well lead to liability if an employer relies on one particular legal decision in this changing area of the law.  
 
Third,
the Zarda case makes clear that it is the Federal Courts and not the Department of Justice, who will be the final arbiter of the meaning of federal law, including Title VII.  In reaching its decision, the Second Circuit rejected the view of Trump administration, whose DOJ filed an unsolicited amicus brief arguing that homosexuals are not protected against employment discrimination under federal law.  In this same way, a federal court may well reject the DOJ’s earlier opinion letter that Title VII does not prohibit transgender discrimination, and an employer who relied on the DOJ’s view therefore may not be protected from liability if it gets sued under Title VII on such basis.   

Trump's NLRB Reverses Course on Obama-Era Rules

posted Feb 22, 2018, 10:05 AM by Adam Chandler

In the final weeks of 2017, the National Labor Board Relations Board, packed with Trump appointees, put an end to two important Obama-era labor rules.   

Joint Employer Test Clarified for Businesses

In Hy-Brand Indus. Contractors, Ltd. and Brandt Construction Co., the now Republican-majority NLRB overturned the joint employer standard established under Obama, and returned to the prior standard that governed for decades before.  The current standard requires that two entities must share actual control over (verses a mere reservation of the right to control) the essential terms and conditions of employment (e.g. hiring, firing, supervision, pay, etc.) in order for the NLRB to find a “joint employer” relationship.  The NLRB also noted that the control must be “direct and immediate” verses indirect.  Finally, the NLRB will analyze joint employment both in form, i.e. the contract between the entities, as well as in substance, i.e. the actual practice of the employers. 

Most experts believe that this standard for determining joint employment is more objective and provides greater clarity than the Obama-era standard.  Most believe the new rule benefits employers by allowing them to more accurately assess whether they may be responsible for the conduct of a separate entity with whom they contract and whose employees have overlapping responsibilities to both entities.  This is especially true for employers whose business model involves the use of franchises, subcontractors, or even temp agencies.    
 
Employer Policies Legitimately Restricting Employee Speech More Likely Enforceable

In Boeing Co. and Society of Professional Engineering Employees in Aerospace IFPTE Local 2001, the NLRB ordered that it would give greater consideration and deference to employers’ explanations of facially-neutral employment policies in determining whether such policies interfere with, restrain, or coerce employees in the exercise of their right to engage in union organizing or other concerted activity protected by the NLRA.  This decision ends the Lutheran Heritage Village-Livonia standard where facially-neutral employment policies could be found to violate the NLRA if employees would reasonably construe the policy's language to prohibit concerted activity.  

Under this Obama-era rule, even well-intentioned and important employment policies like those prohibiting harassing or defamatory statements on social media sites, abusive or profane language in the workplace, disparaging the employer online, or establishing standards of confidentiality in sexual harassment investigations could be viewed as violating the NLRA.  Under the current rule, such policies presumably would not be found to violate employee rights to engage in concerted activities to the extent the NLRB will give greater weight to the employer’s stated reason for having the policy.  Employers should feel much more comfortable establishing facially-neutral employment policies that are legitimately intended to protect important employer interests while also balancing the rights of employees to collectively bargain or join together as a group to advance their interests as employees as is their right under the NLRA.

Addressing Sexual Harassment in the Workplace

posted Dec 21, 2017, 11:23 AM by Adam Chandler

Guess what?  Just when you think you know somebody at work, you might learn something monstrous about them.  Denial is not the answer.  O’Reilly, Weinstein, Spacey, Rose, Lauer – over the past couple of months the news has been filled with stories of sexual harassment and assault in the workplace.  While these cases have arisen out of the realms of politics, journalism, and entertainment, sexual harassment can and does happen in every industry.  These and other very public examples serve to shine a light on a widespread problem.  Now, more than ever, employers need to be vigilant against such conduct in the workplace.

Combating sexual harassment in the workplace begins with a culture of respect and responsibility.  How do  you build that kind of culture?  You get what you incentivize, and it starts with strong anti-harassment policy and training.  But it does not end there.  Such policies can provide employers with good coverage against harassment claims, so long as the harassment was not committed by or known by someone with supervisory authority.  You can be sure, however, that Fox, CBS, and NBC had such policies in place, and the alleged perpetrators likely attended multiple harassment training sessions over their long careers.  In the end, policies and training alone cannot set the tone in the workplace.  Rather, it is the employer’s reaction to allegations of sexual harassment that sets the tone and determines the workplace’s culture.  Will your company be permissive of sexual transgressions, particularly where the accused is a valued employee?  Or will your company take every complaint seriously, investigate it thoroughly, take appropriate actions in response, and protect the alleged victim from retaliation?

What follows is a brief primer on the steps employers should take when they receive a complaint of sexual harassment, or otherwise learn of such conduct in the workplace:

Set the Tone Early by Acting Quickly.  No one wants a rush to judgment, however, immediate initiation of an investigation demonstrates the seriousness of the issue and also allows for a thorough investigation and timely resolution.  A slow response defeats each of these goals.

Select the Right People for the Investigation.  The investigation should be led by someone who will be unbiased and thorough.  You should eliminate from consideration friends of either the accuser or the accused, as well as individuals with direct authority over either.  Often, your HR professionals or outside legal counsel are the most appropriate individuals for conducting such an investigation.  To ensure that complaints of harassment actually get reported, provide multiple points of contact in your company for employees to report such complaints in the event that, for example, an employee’s supervisor is the harasser.

Conduct a Fact Specific Investigation.  Every sexual harassment investigation is different.  The particular allegations help to determine the precise scope of the investigation.  At a minimum, a harassment investigation involves interviewing the accuser and the accused.  Potentially other witnesses and people believed to have relevant knowledge may also need to be interviewed, and documents, such as emails or text messages that corroborate or contradict the allegations, should be collected and reviewed as well.  

Respect Confidentiality without Making Assurances.  Investigations into allegations of sexual harassment often involve intensely personal, sometimes demeaning scenarios.  To avoid humiliation of the victim or the alleged harasser, keep the investigation and the facts learned in the investigation as confidential as possible.  Inform interviewees not to discuss the investigation with co-workers.  Communicate information about the investigation only to those that need to know about it, but do not promise absolute witness confidentiality to the complainant, the accused, or witnesses, as such a promise could obstruct the investigation and is difficult to enforce.

Communicate the Expectation of No Retaliation. A person who complains about sexual harassment (and those who cooperate with the investigation) cannot face adverse employment action.  If they do, it could result in a separate legal claim for retaliation, which often succeeds in court even if the initial, underlying sexual harassment claim does not.  To avoid this, inform interviewees that you will not tolerate retaliation against a complainant or others who cooperate in the investigation.  Make sure that all managers understand that they cannot make any change to the terms and conditions of employment or do anything that could be perceived as punishing the accuser or any witnesses because of their involvement in the sexual harassment investigation.
   
Consider Interim Measures.  While the investigation is happening, evaluate whether it is appropriate to take some preliminary action to avoid ongoing contact between the alleged victim and harasser.  Consider separating the complainant and alleged harasser to minimize the chance of continued harassment or retaliation during the investigation, but always ensure that the measures themselves do not constitute retaliation against the accuser.  Typically this means that the accused, and not the victim, should be the party to face the adverse interim consequence.  Unless the victim asked for time off (which should be considered), the party accused of harassment, and not the accuser, should be the one who is transferred to a different department, assigned to a different shift, or suspended to avoid contact with the alleged victim.  Be sure to monitor the efficacy of interim measures taken throughout the investigation to make sure that the accuser feels safe in the workplace.

Memorialize the Conclusion.  It is good practice to prepare a written report documenting the findings of a sexual harassment investigation.  Detail the steps taken in examining the allegations, including interviews conducted and documents reviewed, and explain any conclusions.  Inform the complainant and alleged harasser of your findings and the corrective actions you will take.  If sexual harassment is found, take action to end it and prevent it in the future.  Regardless of the findings, make follow up inquiries to ensure conduct has not resumed and that retaliation against the complainant or witnesses has not occurred.

Corrective Action Should be Fair and Consistent.  Ultimately, you must make a business decision concerning corrective action based upon the outcome of your investigation.  That decision could have a major impact not only on the alleged victim and the accused, but also on your workplace morale and culture.  In  reaching this decision, you must weigh the credibility of the witnesses interviewed, the seriousness and frequency of the alleged conduct, the alleged victim and harasser’s employment record, and the company’s history of disciplining similar prior cases.  

In short, enforce a culture of respect and responsibility.  Develop anti-harassment policies and train on them.  When a complaint arises, take it seriously, be thorough in response to it, and be fair in your resolution.  Do not assume any person “could never do something like that.”  No one should be considered “untouchable” and everyone needs to know they must be accountable.  That said, do not react in a panic and respond to a complaint without an investigation.  Firing someone without a fair and thorough investigative process could subject you to claims from the accused that could involve discrimination or wrongful termination as well. Certainly, you should be sure to treat people the same based on facts and not react based on assumptions that could be founded on prejudgments rather than evidence.  So, if you take the complaint seriously, be thorough in response, be fair in your resolution based on facts, you will do the right thing.  In the end, you will have the culture that you enforce, not just the culture that you preach.  

Chris Vrountas Recognized for Service to the Hospitality Industry

posted Oct 19, 2017, 3:11 PM by Allison Ayer

On October 19, the New Hampshire Lodging & Restaurant Association named Chris Vrountas as its Business Partner of the Year.  The NHLRA is the trade association representing business interests for the hospitality, restaurant and tourism industry in New Hampshire.  Chris has been the preferred provider of legal services for the NHLRA for nearly a decade, providing legal counsel and guidance to both the Association and its constituent members.  Chris is honored to receive this recognition.

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