Employment Discrimination Update Laura Lawless Robertson November - - PowerPoint PPT Presentation

Equal Opportunity and Employment Discrimination Update Laura Lawless Robertson

November 12, 2014

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TOPICS TO BE COVERED

• 2014 Developments in EEO Law
• EEOC Guidance
• Predictions for 2015

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EEO Laws

• Title VII
• Race
• Color
• National Origin
• Sex/Pregnancy
• Religion
• Americans with Disabilities Act
• Age Discrimination in Employment Act

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Sex/Pregnancy Discrimination

• Title VII: Prohibits discrimination on the basis of sex
• Pregnancy Discrimination Act – 1978
• Discrimination based on pregnancy, childbirth, or related medical

conditions is prohibited by Title VII

• Pregnant women who are able to work must be permitted to work on the

same conditions as other employees

• Pregnant women unable to work for medical reasons must be accorded

the same rights, leave privileges, and other benefits as others who are disabled from working

• Pregnant employees must be treated the same as non-pregnant

employees who are similar in their ability or inability to work

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EEOC Pregnancy Discrimination Guidance

• July 14, 2014: New Enforcement Guidance released
• Update of longstanding policy:
• PDA covers current pregnancy, past pregnancy, and potential to

become pregnant;

• Lactation is a covered pregnancy-related medical condition;
• Requirement for equal leave coverage for medical conditions

related to pregnancy;

• Prohibition on requiring pregnant workers able to do their jobs to

take leave

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EEOC Pregnancy Discrimination Guidance

• Controversial requirements:
• An employer policy of providing light duty only to employees with
• n-the-job injuries (and not pregnant workers) violates the PDA;
• An employer must provide accommodations to an employee with a

normal and otherwise healthy pregnancy;

• Certain employer inquiries, comments, or discussions regarding an

employee’s pregnancy or potential pregnancy are indicative of discrimination;

• An employer health insurance plan must cover prescription

contraceptives on the same basis as prescription medications that prevent medical conditions other than pregnancy.

• Best practices

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Young v. United Parcel Service

• Issue: Does UPS have to accommodate pregnant employees who

cannot hoist heavy boxes due to pregnancy-related lifting restrictions?

• Job requirement: Lift 70 pounds
• Lifting restrictions: 20 pounds.
• Plaintiff exhausted all family/medical leave.
• Company allows employees on light duty due to on-the-job injury to

lift 20 pounds, but would not allow Plaintiff same accommodation and required an extended, unpaid leave of absence.

• Lower courts ruled UPS lawfully maintained a pregnancy-blind policy

by limiting accommodations to employees injured on the job, legally defined as “disabled,” or those stripped of their DOT certification.

• Oral argument scheduled for December 3.

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Religious Accommodations

• Title VII
• Prohibits disparate treatment based on religious belief or practice,
• r lack thereof.
• Prohibits workplace or job segregation based on religion
• Requires accommodation for sincerely held religious beliefs or

practices once on notice, such as exceptions to dress and grooming requirements or schedule accommodations, unless it would pose an undue hardship

• Prohibits retaliation and workplace harassment.

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Religious Dress and Grooming Guidance

• March 6, 2014, EEOC issued a fact sheet and Q&A on

accommodating religious dress and grooming requests.

• Religious observance: all aspects of religious observance, practice

and belief

• “Sincerely held”
• Notice: Employer knowledge of accommodation request
• Case-by case analysis of requests
• Undue hardship

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EEOC v. Abercrombie & Fitch

• Issue: Did A&F discriminate against a Muslim job applicant when the

retail clothing chain rejected her based on her head scarf (hijab)?

• Teenager applied for position as a “model” (salesperson) wearing a

hijab at her interview.

• A&F maintains a “Look Policy” which requires salespeople to wear

“classic East Coast collegiate style clothing” and forbids head coverings.

• Aside from wearing the hijab to her interview, applicant said nothing

about it or her religion, and did not request an accommodation. Evidence suggests the headscarf influenced her score and the decision not to hire her.

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Disability Accommodation

• Americans with Disabilities Act
• Prohibits disparate treatment on the basis of disability, defined as a

physical or mental impairment that substantially limits the employee

• r applicant in one or more major life activities.
• Prohibits harassment and retaliation for engaging in protected

conduct

• Requires an employer to provide reasonable accommodation for

applicants and employees’ known disabilities unless doing so poses an undue hardship

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EEOC v. Ford Motor Company

• Issue: Does an employer have an obligation to allow an employee to

telecommute full-time as a “reasonable accommodation” for a disability?

• Facts:
• Ford maintained a telecommuting policy allowing certain workers to

telecommute up to 4 days per week.

• Plaintiff was a resale steel buyer whose job primarily required

telephone and computer contact with coworkers and suppliers.

• She requested a permanent work-from-home arrangement due to a

physical disability.

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EEOC v. Ford Motor Company

• District court: Summary judgment for employer; regular attendance is

a basic requirement for most jobs and plaintiff’s excessive absenteeism rendered her not a qualified individual under the ADA.

• Sixth Circuit panel: Reversed. Because of the “advance of technology

in the employment context,” the law must “recognize that the ‘workplace’ is anywhere that an employee can perform her job duties.”

• Question isn’t whether attendance is essential, but whether physical

presence at the company facilities was truly essential.

• “Advancing technology has diminished the necessity of in-person contact

to facilitate group conversations,” noting teleconferencing technologies.

• Sixth Circuit en banc: vacated and ordered rehearing.

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Retaliation

• Retaliation claims continue to rise and accompany most

discrimination charges.

• Good news in Groeber v. Friedman & Schuman, P.C. (3rd Cir.)
• Underlying claim dismissed for lack of evidence, but plaintiff also

alleged retaliation due to termination three months after her complaint about discrimination.

• Third Circuit: The three-month period between her complaint and the

time she was fired is not “unusually suggestive of retaliatory motive.”

• Supreme Court denied petition for review.
• No mention in decision of University of Texas, SW v. Nassar
• Proceed with caution!

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Affirmative Action

• March 24, 2014: Office of Federal Contract Compliance Programs’

new regulations went into effect.

• Covered federal contractors must adopt utilization goals for

individuals with disabilities and hiring benchmarks for veterans

• 7% of workforce with disabilities
• 8% of workforce consist of veterans
• Other metrics/formulas may apply
• Not a quota, no automatic penalties
• Impose requirements regarding data collection and invitations for job

applicants to self-identify as individuals with a disability or as veterans

• Contractors with written AA plans in place as of March 24, 2014

developed under former regulations may maintain that plan through the end of the plan year and delay compliance until next plan cycle – NOW!

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Looking Ahead

• Expansion of paid sick leave at the state level
• Increasing scrutiny of reasonable accommodations for disabilities
• Newly-adopted DSM version – expanding mental disorder definitions
• Legalized marijuana
• Continued challenges in navigating leave laws as accommodations
• (Perhaps) reining in retaliation claims
• Background checks/race, national origin, and gender claims
• DOMA
• Hobby Lobby expansion to other sincere religious objections to

federal mandates

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Laura Lawless Robertson T +1 602 528 4137 laura.robertson@squirepb.com