High Court Backs Religion

The U.S. Supreme Court ruled Monday that an employer may be engaging in illegal discrimination when it implements a neutral policy that fails to accommodate a job applicant’s religious practices, whether or not the applicant has requested a religious accommodation.

The ruling expands protection for religious minorities in the workplace.

Samantha Elauf, a Muslim woman, was denied a sales associate position at an Abercrombie store in Tulsa, Okla., in 2008 because she wore a black scarf or hijab during her interview. A hiring official rated Elauf as qualified but asked Abercrombie’s district manager if Elauf’s hijab violated Abercrombie’s “Look Policy,” which prohibited employees from wearing “caps.” She had not discussed the hijab with Elauf but told the manager that she thought it was being worn for religious reasons. Elauf was not hired after the manager said the policy prohibits all headwear, religious or otherwise.

The EEOC sued Abercrombie on Elauf’s behalf, arguing the store violated Title VII of the Civil Rights Act of 1964. Title VII requires employers to make exceptions to certain policies, such as dress code, where religion is concerned, provided the accommodation doesn’t incur an “undue hardship on the conduct of the employer’s business.”

The Supreme Court ruled 8 to 1 in Equal Employment Opportunity v. Abercrombie & Fitch Stores that Title VII “requires otherwise-neutral policies to give way to the need for accommodation.”

The Court said job applicants do not have to specifically ask for a religious accommodation or prove that an employer had actual knowledge of the applicant’s need for a religious accommodation. 

The Court said plaintiffs need only show that their need for an accommodation was a “motivating factor in the employer’s decision” not to hire them.

The decision represents a defeat for the U.S. Chamber of Commerce, which supported Abercrombie in the litigation, but it is not believed to be much of a departure for the Court, which has made religious freedom a priority. The Court last year ruled 5-4 that the government could not require the owners of private companies like Hobby Lobby to provide female workers with contraceptive coverage under the Affordable Care Act when it violated their religious beliefs.

[Read more…]

Shift Expected on Pregnancy Accommodation

Should employers treat pregnant employees who suffer temporary disabilities the same way they treat other employees with temporary disabilities?

Yes, says the U.S. Office of the Solicitor General.

However, Solicitor General Donald B. Verrilli Jr,  says most federal appellate courts who have addressed the issue have decided it incorrectly by holding that employers do not have to accommodate pregnant workers who suffer temporary pregnancy-related disabilities.

Verrilli nevertheless recently recommended that the U.S. Supreme Court decline to review a case in which Peggy Young, a  United Parcel Service driver, was denied “light duty” work when she was pregnant, despite a  doctor’s note stating she should not lift more than 20 pounds during the first half of her pregnancy and not more than 10 pounds for the second half.

Verrilli said two developments may prompt courts to re-assess the issue of pregnancy accommodation. He said the  U.S. Equal Employment Opportunity Commission is “currently considering the adoption of new enforcement guidance on pregnancy discrimination.”  He also said 2008 amendments to the Americans with Disabilities Act  cover a broader scope of impairments.  Pregnant workers who can’t get protection under the Pregnancy Discrimination Act of 1978 (PDA) may have better luck with the ADA, he said . [Read more…]

Appeals Ct Says OK for Supervisor to Throw Things

shoeA federal appeals court panel  has ruled that a supervisor did not violate the rights of a subordinate when he allegedly yelled at her in front of coworkers and violently threw a heavy notebook at her.

A panel of the U.S. Circuit Court of Appeals for the District of Columbia Circuit ruled the above conduct may be  “unprofessional, uncivil and somewhat boorish” but it does not rise to the level of malevolence necessary to constitute a “hostile work environment” under Title VII of the Civil Rights Act o f 1964.

Instead, the appellate panel compared the behavior to the “ordinary tribulations of the workplace,” which include petty insults, vindictive behavior and angry recriminations.

The  decision, written by Justice Janet Rogers Brown, comes in a case that is also unusual because it involves the Merit Systems Protection Board, an independent agency charged with addressing the grievances of federal workers who challenge discriminatory employment practices.

Patricia A. Brooks, who is an African-American, filed a race discrimination complaint alleging that she was a victim of a “hostile workplace environment” at the Office of Information Resources Management of the MSPB.

Brooks, who had worked at the MSPB since 1998, said her supervisor in 2005 insulted and demeaned her in front of coworkers when he yelled at her and threw a heavy notebook in her direction.  The supervisor admitted slamming the book with his hand. Brooks said she was subsequently given poor performance ratings and became subject to selective enforcement of workplace rules.

After filing several equal employment opportunity complaints, Brooks filed a lawsuit alleging  race discrimination and retaliation in violation of Title VII.  A federal judge dismissed Brooks’ complaint on a pre-trial motion for summary judgment, which means the judge ruled that no reasonable jury could find that the supervisor’s “conduct was so severe and pervasive as to alter the conditions of Brooks employment.”  The three-judge panel for the D.C. Circuit court upheld the dismissal of  Brooks’ complaint.

Justice Brown writes in an April 15 decision that Brooks failed to show that she was subjected to “discriminatory intimidation, ridicule and insult” that was “sufficiently severe or pervasive to alter the conditions of [her] employment.”  Justice Brown said the panel evaluated the “totality of the circumstances, including the frequently of the discriminatory conduct, its severity, its offensiveness and whether it interferes with an employee’s work performance.”

Even if the supervisor did violently throw a book at Brooks, the appellate panel said, the incident involved “unprofessional conduct” but was isolated and not sufficiently malevolent to constitute actionable abuse.

A retaliation complaint and other other claims were rejected on technical grounds.

See Patricia Brooks v. Susan Tsui Grundmann, chairman, Merit Systems Protection Board, No. 12-5171.

 

EEOC to Examine National Origin Discrimination

EEOCAn aspect of discrimination law that is gaining increasing attention is, not surprisingly, national origin discrimination.

The U.S. Equal Employment Opportunity Commission (EEOC)will meet on Nov. 13 in Washington, DC, to examine issues and hear testimony related to the problem of national origin discrimination.

The backdrop of the EEOC’s meeting is impending immigration reform and the rise in the percentage of foreign-born workers in the U.S. workforce.

The Bureau of Labor Statistics (BLS) reported in May that there are 25 million foreign-born persons in the U.S. labor force, making up 16.1 percent of the total workforce. Hispanics accounted for 48.3 percent of the foreign-born labor force in 2012 and Asians accounted for 23.7 percent. The BLS reports that  the proportion of the foreign-born labor force made up of 25 – 54 year olds (75.6 percent) is now higher than for the native-born labor force (63.4 percent).

Under Title VII of the Civil Rights Act of 1964  and EEOC rules “national origin” discrimination includes the denial of equal employment opportunity because of an individual’s place of origin, their ancestor’s place of origin,  or because of the physical, cultural or linguistic characteristics of a national origin group.

Counsel for employers, in written testimony submitted to the EEOC, describe the enormous challenges faced by employers in tackling discrimination issues involving foreign-born workers.

Douglas J. Farmer, of Ogletree, Deakins, Nash, Smoak & Stewart, writes that  many foreign-born workers have little or no understanding of basic legal prohibitions on discrimination or harassment, have never seen an anti-harassment policy, and have never participated in anti-harassment training.  In one workplace, he states, an employer was confronted with a workforce in which workers spoke 60 different languages and dialects.

“Several of our employer clients have expressed concern that employer cost and lack of technical expertise present significant obstacles to the translation and effective implementation of policies and training programs,” Farmer writes.

He urged the EEOC to make anti-discrimination and harassment policies and educational programs available in multiple languages  to help employers convey these concepts to foreign-born employees in a cost-effective manner.

Rebecca  Smith, Deputy Director of the National Employment Law Project (NELP), urges the EEOC to address  “second-generation discrimination” practices that involve cultural attributes (language, accent) as well as stereotypes associated with a particular national origin or ethnic group. She said this form of discrimination can be seen in discriminatory recruitment practices and occupational segregation by ethnicity or national origin   For example, a restaurant may employ an Hispanic worker as a dishwasher but not as a server because of his or her accent.

Smith also said some unscrupulous American employers are using labor recruiters from the source country that are notorious for discrimination to handle the hiring of foreign-born workers, while arguing that they are not responsible for labor violations committed by their recruiters. In this way, Smith writes, the employer can shift labor costs and liabilities to the smaller entity, which is often an undercapitalized firm that cannot satisfy potential judgments against it

Smith also writes that harassment and threats of deportation are “almost standard operating procedure” in some guestworker-dominated work sites

NELP estimates that eight million undocumented workers form 5.2 percent of the U.S. labor force.

Perhaps it is a sign of the times but no union representative is slated to testify before the EEOC at the hearing.