Religious accommodation versus public image

According to an EEOC press release, the agency has filed suit against Ohio-based retailer Abercrombie & Fitch for alleged discrimination “against a 17-year-old Muslim by refusing to hire her because she wore a hijab, or head scarf, in observance of her sincerely held religious beliefs.” According to the lawsuit, pending in Tulsa, Okla., an Abercrombie Kids store refused to hire Samantha Elauf for a sales position because she was wearing a head covering during her interview, which violated the company’s “Look Policy.” The lawsuit also claims that the store failed to accommodate her religious beliefs by making an exception to the Look Policy

According to the EEOC Compliance Manual on Religions Discrimination, “An employer’s reliance on the broad rubric of ‘image’ to deny a requested religious accommodation may in a given case be tantamount to reliance on customer religious bias (so-called ‘customer preference’) in violation of Title VII.”

Title VII requires an employer, once on notice, to reasonably accommodate an employee whose sincerely held religious belief, practice, or observance conflicts with a work requirement, unless providing the accommodation would create an undue hardship. Undue hardship is a low standard – the proposed accommodation need only pose more than a de minimis cost or burden. At least one court, the 1st Circuit in Cloutier v. Costco Wholesale Corp. [PDF], has held that granting an exemption to a dress and grooming policy poses an undue hardship.

Anyone who has ever walked through a shopping mall knows that Abercrombie & Fitch portrays a certain image. Unless the EEOC can prove that the company promotes that image and maintains its “Look Policy” to exclude Muslim customers (or because of a preference for non-Muslim customers), it will have an uphill battle in proving that Abercrombie discriminated against this one job applicant by applying a facially neutral policy against her.

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Presented by Kohrman Jackson & Krantz, with offices in Cleveland and Columbus.

For more information, contact Jon Hyman, a partner in our Labor & Employment group, at (216) 736-7226 or jth@kjk.com.

WIRTW #96

Yesterday, I wrote about Ohio’s proposed law that would ban discrimination based on gender identity. Earlier this week, Dan Schwartz at the Connecticut Employment Law Blog weighed in on this issue in light of South African runner Caster Semenya, who competes as a woman but might genetically be a man.

In other pop culture news, Molly DiBianca at the Delaware Employment Law Blog gives her thoughts on workplace civility in light of recent outbursts by South Carolina GOP Rep. Joe Wilsonest, Serena Williams, and Kanye West.

Debra Reilly’s Workplace Investigations discusses employers’ bans on hiring employees with criminal histories. I’ve also touched on this topic before.

In other news about hiring decisions, Sindy Warren at the Warren & Hays Blog suggests that employers sparingly make word-of-mouth hiring decisions.

Both Philip Miles’s Lawffice Space and Walter Olson’s Overlawyered report on an Indiana court that has ruled that a pizza shop must pay for a 340-pound employee’s weight-loss surgery as a precursor to another operation for a workplace back injury.

LaborPains.org thinks unions efforts at a renaissance are futile. Meanwhile, the EFCA Report thinks that Senate Democrats are fractured on whether the controversial bill will pass this year.

Ann Bares at Compensation Cafe thinks that job titles can have some value to employees.

Ride the Lightning, courtesy of Eric Welter’s Laconic Law Blog, on whether employees have a right to privacy in personal emails sent via web-based email over an employer’s computer system.

Michael Maslanka’s Work Matters reminds us that often we need to start with the basics.

Melanie McClure at Arkansas Employment Law, on policies and exceptions.

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Presented by Kohrman Jackson & Krantz, with offices in Cleveland and Columbus.

For more information, contact Jon Hyman, a partner in our Labor & Employment group, at (216) 736-7226 or jth@kjk.com.

Ohio House passes bill banning sexual orientation discrimination; fight moves to Senate

In yesterday's Columbus Dispatch, Jim Siegel reports that the Ohio House passed a bill that would prohibit employment discrimination based on sexual orientation by a vote of 53-39. If enacted, Ohio would join 20 other states with similar prohibitions. 17 Ohio cities, including Cleveland, already have similar laws.

The legislation would add sexual orientation and gender identity to the list of protected classes against whom employers cannot discriminate. The bill defines sexual orientation as “actual or perceived, heterosexuality, homosexuality, or bisexuality.” It defines gender identity as “gender-related identity, appearance, or mannerisms or other gender-related characteristics of an individual, with or without regard to the individual's designated sex at birth.” Other key provisions include:

• A limitation to employers with 15 or more employees. All other forms of discrimination apply to employers with 4 or more employees.
• A carve out for religious groups.
• Permission for employers to deny access to shared shower or dressing facilities in which being seen unclothed is unavoidable, provided that the employer provides reasonable access to adequate facilities that are not inconsistent with an employee’s gender identity.
• No requirement that employers construct new or additional facilities to accommodate employees’ sexual orientation or gender identity.
• No affirmative action requirements.
• Employers can enforce otherwise legal dress codes and grooming standards, provided that the employer permits employees who have undergone or are undergoing gender transition to adhere to the same dress code or grooming standards as their new gender.

The bill now moves on to the Ohio Senate, where its Republican majority promises a fight. According to Senate President Bill Harris, “I talk to business people all the time, and they’re saying it’s not an issue.” So let me get this straight. It’s acceptable to oppose this bill because businesses are self-reporting that they are not discriminating. Isn’t that akin to asking a plantation owner in 1863 if he wants to abolish slavery?

If we want to be a state that is attractive to progressive businesses, we need to pass progressive legislation. Let’s hope the Senate gets its act together and sends this bill to Governor Strickland for his signature.

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Presented by Kohrman Jackson & Krantz, with offices in Cleveland and Columbus.

For more information, contact Jon Hyman, a partner in our Labor & Employment group, at (216) 736-7226 or jth@kjk.com.

Is “fat” the new protected class?

This week, Michael Haberman, at HR Observations, continues his series on “isms” with a post on what he calls “fatism” (or discrimination against the overweight). I found this post to be timely in light of recent headlines made by the Cleveland Clinic’s CEO that he would not hire obese people if the law allowed him to do so (he has since retracted those criticized comments).

Conventional wisdom says that with the exception of the morbidly obese, obesity is not a characteristic protected by the anti-discrimination laws. Indeed, in 2006, the 6th Circuit said as much in EEOC v. Watkins Motor Lines [PDF], holding that “to constitute an ADA impairment, a person’s obesity, even morbid obesity,
must be the result of a physiological condition.” However, on Jan. 1, 2009, the ADA Amendments Act took effect. The ADAAA broadens what qualifies as a “disability” under the ADA.

It remains up in the air exactly how broadly this definition has been expanded. I do not believe it has been expanded so far as to encompass things such non-physiological obesity. We will have to wait and see, however, on the breadth of the ADAAA until courts and the EEOC start weighing in on exactly how broad the definition of “disability” has become.

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Presented by Kohrman Jackson & Krantz, with offices in Cleveland and Columbus.

For more information, contact Jon Hyman, a partner in our Labor & Employment group, at (216) 736-7226 or jth@kjk.com.

Do you know? Affirmative action and reverse discrimination

Many employers have affirmative action plans. However, just because you have a plan does not mean that the plan should be the only decision-making factor in hiring employees. In fact, sole reliance on an affirmative action plan in hiring could lead to a claim of reverse discrimination. In Humphries v. Pulaski County (8th Cir. 9/3/09) [PDF] examined the case of a white employee turned down for every promotion for which she applied in favor of African Americans. The court held:

[E]vidence that an employer followed an affirmative action plan in taking a challenged adverse employment action may constitute direct evidence of unlawful discrimination. If the employer defends by asserting that it acted pursuant to a valid affirmative action plan, the question then becomes whether the affirmative action plan is valid under Title VII….

To be valid, an affirmative action policy must be narrowly tailored to meet the goal of remedying past discrimination. It cannot, however, be used to maintain racial quotas. In the court’s words, it cannot be used to “unnecessarily trammel the rights of non-minorities.”

If your business has an affirmative action plan, use it as a factor in hiring decisions, but not the only factor.

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Presented by Kohrman Jackson & Krantz, with offices in Cleveland and Columbus.

For more information, contact Jon Hyman, a partner in our Labor & Employment group, at (216) 736-7226 or jth@kjk.com.

Muslims perceived as suffering the worst discrimination

We are a few days past the 8th anniversary of what many consider to be the worst day in the history of our country. According to a recent survey conducted by The Pew Research Center, there is still a perception that Muslims are discriminated against more than any other religious or other group.

2,010 adults were asked the following question: “Just your impression, in the United States today, is there a lot of discrimination against ____ or not?” Here are the results:

	Yes	No
	%	%
Muslims	58	29
Jews	35	54
Evang. Christians	27	56
Athiests	26	59
Mormons	24	56
Gays & Lesbians	64	30
Hispanics	52	41
Blacks	49	46
Women	37	59

This study does not reveal actual incidents of discrimination, but people’s perception of others’ discrimination. Interestingly, the only group that fairs worse than Muslims is gays and lesbians.

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Presented by Kohrman Jackson & Krantz, with offices in Cleveland and Columbus.

For more information, contact Jon Hyman, a partner in our Labor & Employment group, at (216) 736-7226 or jth@kjk.com.

WIRTW #95

Molly DiBianca at the Delaware Employment Law Blog reports on a CareerBuilder.com survey that 56% of employers either use or intend to use social media to background check applicants. Do you want to learn all about the role of social networking in your workplace? Then come to KJK’s next Breakfast Briefing: Google and Facebook and Twitter, Oh My! Emerging Workplace Technology Issues.

What About Clients? suggests that lawyers not only use litigation to cure a past problem, but also as a preventative measure to prevent future problems.

One problem that needs to be cured – wage and hour violations, at least according to Tresa Baldas at the National Law Journal. As I noted last week, I couldn’t agree more.

John Gilleland, Ph.D., guest posting at Quirky Questions, shares his poignant thoughts on the impact the recession is having on jury deliberations in employment cases.

Sindy Warren at the Warren & Hays Blog teaches employers what to do when an employee cries '”Harassment.”

Michael Haberman’s HR Observations, on age discrimination. Mike’s thoughts are a nice complement to mine from earlier this week on forced retirement.

Do you want to know what non-compete agreements have in common with Sexual Chocolate? Then check out Kris Dunn, The HR Capitalist.

Darcy Dees at Compensation Cafe, on the importance of regular performance reviews.

Michael Maslanka’s Work Matters discusses how not to handle an employee’s days off to adopt a baby.

Eric Welter’s Laconic Law Blog discusses the IRS’s decision-making process for employees versus independent contractors.

This week’s review ends with what might be the worst employee training idea ever. According to Above the Law, an employee has sued a New Jersey health center after it faked a break-in and hostage situation to teach employees how to handle a crisis.

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Presented by Kohrman Jackson & Krantz, with offices in Cleveland and Columbus.

For more information, contact Jon Hyman, a partner in our Labor & Employment group, at (216) 736-7226 or jth@kjk.com.