Time off for religious holidays

Today is Rosh Hashanah, the Jewish New Year. As it falls during the work week, many Jews (including yours truly) are taking the day off. The question, however, is what are an employer's obligations to an employee who asks for a day off to observe a religious holiday?

Title VII requires an employer to reasonably accommodate an employee whose sincerely held religious belief, practice, or observance conflicts with a work requirement, unless doing so would pose an undue hardship. An accommodation would pose an undue hardship if it would cause more than de minimis cost on the operation of the employer's business. Factors relevant to undue hardship may include the type of workplace, the nature of the employee’s duties, the identifiable cost of the accommodation in relation to the size and operating costs of the employer, and the number of employees who will in fact need a particular accommodation.

Scheduling changes, voluntary substitutions, and shift swaps are all common accommodations for employees who need time off from work for a religious practice. It is typically considered an undue hardship to impose these changes on employees involuntarily. However, the reasonable accommodation requirement can often be satisfied without undue hardship where a volunteer with substantially similar qualifications is available to cover, either for a single absence or for an extended period of time.

In other words, permitting Jewish employees a day off for Rosh Hashanah, and next week for Yom Kippur, may impose an undue hardship, depending on the nature of the work performed, the employee's duties, and how many employees will need the time off. Employees can agree to move shifts around to cover for those who need the days off, but employers cannot force such scheduling changes.

In plain English, there might be ways around granting a day or two off for a Jewish employee to observe the High Holidays, but do you want to risk the inevitable lawsuit? For example, it will be difficult to assert that a day off creates an undue hardship if you have a history of permitting days off for medical reasons.

Legalities aside, however, this issue asks a larger question. What kind of employer do you want to be? Do you want to be a company that promotes tolerance or fosters exclusion? The former will help create the type of environment that not only mitigates against religious discrimination, but spills over into the type of behavior that helps prevent unlawful harassment and other liability issues.

D.C. Court rules in favor of transgendered job applicant

Four years ago, the 6th Circuit handed down a landmark decision in Smith v. Salem. In Smith, the Court reversed the district court's dismissal of a Title VII sex discrimination claim brought by a transgendered firefighter. It found that

Sex stereotyping based on a person’s gender non-conforming behavior is impermissible discrimination, irrespective of the cause of that behavior; a label, such as “transsexual,” is not fatal to a sex discrimination claim where the victim has suffered discrimination because of his or her gender non-conformity....

Having alleged that his failure to conform to sex stereotypes concerning how a man should look and behave was the driving force behind Defendants’ actions, Smith has sufficiently pleaded claims of sex stereotyping and gender discrimination.

The following year, in Barnes v. Cincinnati, the same court followed suit by affirming a jury verdict in favor of Phillip Barnes, a pre-operative male-to-female transsexual who was denied a job in the Cincinnati Police Department.

Last week, the D.C. District Court, following Smith and Barnes, reached a similar conclusion in Schroer v. Billington. In that case, the Library of Congress had offer a position to David Schroer, until he told his his future employer that he would be showing up at work as Diane. He sued for gender discrimination after the Library rescinded the job offer. The trial judge ruled that the employer is liable for sex discrimination:

The evidence establishes that the Library was enthusiastic about hiring David Schroer -- until she disclosed her transsexuality.... The Library revoked the offer when it learned that a man named David intended to become, legally, culturally, and physically, a woman named Diane. This was discrimination "because of ... sex."

In other words, while transsexuality and transgenderism are not protected classes in and of themselves, men who fail to conform to sexual stereotypes of how men are supposed to look and act might be protected by Title VII's prohibition against sex discrimination. My concern with this decision is that if gender identity is protected under the umbrella of sex discrimination, why do we need to amend Title VII to specifically include gender identity as a new protected class.

For companies, the lesson to be learned in a universal one - employment decisions should always be made based on legitimate criteria and not innate personal characteristics. The former can always be defended; the latter opens up an organization to liability.

WIRTW #49

It's been a fairly light week, but I still have a few gems to pass along from my fellow bloggers:

The HR Capitalist writes on the bane of every lawyer's and businessperson's spouse, Blackberry addiction.

The Connecticut Employment Law Blog dissects whether there is a right or wrong answer to using social networking sites in employment decisions. For my thoughts on this issue, see Revisiting the Facebooking of job applicants.

HR World reports on Working Mother Magazine's annual list of the 100 best companies for working moms.

Wage & Hour -- Developments & Highlights discusses a case recently filed in the Northern District of Ohio, which seeks to determine whether topless dancers are employees or independent contractors.

BLR's HR Daily Advisor tells us how companies beg to be sued.

Finally, Jottings by an Employer's Lawyer discusses Walmart's ongoing wage and hour problems.

BREAKING NEWS: President Bush signs the ADA Amendments Act

While the Wall Street bailout/rescue plan has the White House preoccupied, President Bush did find time today to sign the ADA Amendments Act. The new provisions go into effect January 1, 2009. For more on what this new law means, see House overwhelmingly votes in favor of ADA Amendments Act of 2008.

Discrimination verdicts rise 70% in one year

Earlier this week I reported that fewer plaintiffs are winning their federal employment cases. Another study, however, suggests that those those are winning are winning bigger verdicts. Mark Toth at the Manpower Employment Blawg reports on a study released by Jury Verdict Research, which concludes that the median discrimination verdicts rose from $147,500 in 2006 to $252,000 in 2007, an astounding 70% increase.

The good news, however, is that employers really are better off in federal court, where they won 43% of the time, compared to only 34% in state court. And, in the cases won by plaintiffs, the median jury award in federal court was 22% lower than the median state jury award.

Is this increase a trend or an anomaly? It's hard to say. 2008 already saw the largest employment law jury verdict in the history of Ohio, $46.6 million. In a today's difficult economy, it is certain that more employment cases will be filed. It will remain to be seen if jurors who are facing their own tough economic times will continue to be generous.

A prediction on how Ohio state courts handle the ADA Amendments Act

It's been fairly well reported, here and elsewhere, that Congress has passed the ADA Amendments Act, and once President Bush signs it, as he is expected to do, the ADA's changes will go into effect on January 1. Beginning on January 1, the definition of what qualifies as a "disability" under the ADA will be much broader statutorily. One of the key changes is that the Sutton v. United Airlines U.S. Supreme Court case, which held that whether an impairment substantially limits a major life activity is to be determined with reference to the effects of mitigating measures on the impairment, will be expressly overturned.

The open question, however, is what will happen to the definition of "disability" under Ohio law. R.C. 4112.01(A)(13) defines "disability" as:

a physical or mental impairment that substantially limits one or more major life activities, including the functions of caring for one’s self, performing manual tasks, walking, seeing, hearing, speaking, breathing, learning, and working; a record of a physical or mental impairment; or being regarded as having a physical or mental impairment.

This definition mirrors the old definition of "disability" in the ADA, and, in fact, Ohio courts often look to the old federal definition and the cases interpreting it (such as Sutton) to give some meat to the rather bare-bones statutory definition.

The question, then, is what will Ohio courts do with Ohio disability discrimination law after the ADAAA becomes federal law. Will Ohio courts follow Sutton and its progeny, or judicially adopt the new federal statutory definition? To the extent that the Ohio legislature has not changed the statutory definition of a "disability" under R.C. 4112, Ohio courts would be overstepping their bounds by doing so. The Congress made a decision to change the federal definition of disability. If Ohio wants to follow suit, it should do so through its legislature, and not via the courts' ad hoc adoption of the new definition.

If I am correct, and Ohio state law continues to mirror the old federal definition, it will be curious to see if plaintiffs in disability discrimination cases continue to favor state courts (with their better jury pools) and state law (with its more expansive damages), or will move towards federal claims in federal forums to take advantage of the broader coverage afforded by the ADAAA.

A rant about forms

Employment forms are not difficult to find. They are all over the internet. There are form handbooks, form employment applications, form harassment policies, form severance agreements, and myriad other employment and personnel related documents. Many companies even have old forms that an attorney prepared years ago, and dust them off when a situation warrants. Companies rely on these forms to save a few dollars in legal costs. After all, why pay a lawyer several hundred dollars to draft a form for a business when they are available for free? A lawyer must have reviewed it at some point, right? Not necessarily.

Even if a lawyer did review a form at some point, it may not be up to date, it may not have been reviewed for a specific state's particular employment laws, and it certainly was not reviewed for a specific legal situation. Forms are just that, a clean slate that can be adapted to a situation, but not perfect for any or every situation. Each state has specific laws that impact a form's language. Moreover, the law itself is always in flux. New cases come out that give new spins to old laws. New laws are passed that create new legal obligations. How many "form" EEO policies on the internet do you think take into account the Genetic Information Non-Discrimination Act that was passed in May, or account for Ohio's recent ban on military status discrimination? Do you think a generic employee handbook will take Ohio's smoking ban into consideration?

The point is, it may save a few dollars to use a form without consulting an attorney, but it will cost many dollars more to hire a lawyer to fix a mistake after the fact, especially if the mistake does not come up until a disgruntled employee files a lawsuit.