Do you know? Discrimination against Muslims

We are now nine years post-9/11. To say that relations between Americans and Muslim-Americans are poor is an understatement. Our country has been worked into a froth over a proposed Mosque at Ground Zero. It seems that Muslims rank first in the category, “People against whom discrimination and marginalization is culturally acceptable.” Employment discrimination claims brought by Muslims have hit record numbers—higher in 2009 than even in 2002.

Discrimination against Muslims comes in two forms: national origin discrimination and religious discrimination. Both types are not that much different than a race discrimination claim. Failures to hire or promote, terminations, other unlawful employment actions, or harassment because of on one’s national origin or religion all constitute unlawful discrimination. For example, take the recent pair of cases filed by the EEOC against meatpacker JBS Swift, in which Muslim employees alleged that  blood and bones were hurled at them, bathroom walls were covered with vile graffiti and company supervisors fired many Islamic employees.

Religious discrimination, however, presents its own unique set of issues, because employers have an affirmative obligation 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. Two recent stories illustrate the problems that these claims present for employers. Muslim employees continue to sue retailer Abercrombie & Fitch, challenging its “Look Policy” that prevents those who wear hijabs (religious head scarves) from being hired. Then, there is the Disneyland case, in which a Muslim employee, working as a hostess at a restaurant, protesting the theme park’s insistence that her costume cover her hijab so that she meets the “The Disney Look”—a 17-page document [pdf] outlining dress and grooming guidelines for all Cast Members to maintain uniformity and the suspension of disbelief, which has been used since Disneyland opened in 1955.

We all know that discrimination of all kinds is wrong. But, Muslim-Americans are practicing politics of exclusion in a time that calls for the opposite so that we, as a nation, can heal. The issue isn’t one of rights. Of course, one has a right to build a Mosque where one wants (and the law cannot stop the Ground Zero Mosque from being built). One should have the right to pray at work (as long as it doesn’t interfere with job performance or otherwise disrupt the workplace). One should have the right to wear religious garments in the workplace (although Abercrombie and Disney have the right to protect and project the public image that forms the foundation of their companies). Yet, as long as people insist on building a Mosque at Ground Zero, others will feel it’s okay to hurl meat and epithets.

There are no easy answers to these ugly problems. But, it’s not enough simply to say that employers have to cease discrimination. For the healing to begin, and for the discrimination to stop, there also has to be a showing of willingness, participation, and inclusion from the other side of the argument.

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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.

ADA Amendments redefine cancer as a disability

More than two years ago, I criticized a case that dismissed an employee’s disability discrimination claim on the basis that his cancer was limiting enough to qualify as a protectable disability:

This case leaves a bad taste in my mouth. An employee, suffering from cancer, who had a piece of his jaw replaced with a prosthesis, should be protected as having a “disability.” This case would allow a termination of female employee with breast cancer post-mastectomy. That result just doesn't sit right with me.

I think the cancer-is-not-an-ADA-disability cases are a thing of the past. Effective January 1, 2009, Congress amended the ADA to reinstate “a broad scope of protection.” Specifically, Congress found that the United States Supreme Court had narrowed the protections intended by the ADA, and rejected the holdings of Sutton v. United Air Lines, Inc. and Toyota Motor Manufacturing, Kentucky, Inc. v. Williams. The ADAAA did not change the statutory definition of “disability,” but made significant changes in how it is interpreted. Importantly, the ADAAA clarified that the operation of “major bodily functions,” including “functions of the immune system,” constitute major life activities under the ADA. Moreover, the ADAAA provides that “an impairment that is episodic or in remission is a disability if it would substantially limit a major life activity when active.” The “question of whether an individual’s impairment is a disability under the ADA should not demand extensive analysis.”

Hoffman v. Carefirst of Fort Wayne (N.D. Ind. 8/31/10) is one of the first cases decided under 2008’s ADA Amendments. It provides a poignant example of these new definitions in practice.

Stephen Hoffman claimed that his employer, Advanced Healthcare, terminated him because of his Stage III renal cancer (in remission at the time of his termination). In its defense, Advanced Healthcare argued that because Hoffman did not have a physical impairment which substantially limited a major life activity, he was not disabled under the ADA—the cancer was in remission, Hoffman returned to work without restrictions, he carried out his regular job duties of 40 hours a week a full year, and he did not miss any significant work-time.

The court rejected Advanced Healthcare’s argument that it “highly doubts that Congress intended all cancer survivors in remission, with no medical evidence of active disease, to be considered disabled as a matter of law for the rest of their lives.” Instead, the court concluded:

Because it clearly provides that “an impairment that is episodic or in remission is a disability if it would substantially limit a major life activity when active,” and neither side disputes that Stage III Renal Cancer, when active, constitutes a disability, this Court must find that Hoffman was “disabled” under the ADAAA. In other words, under the ADAAA, because Hoffman had cancer in remission (and that cancer would have substantially limited a major life activity when it was active), Hoffman does not need to show that he was substantially limited in a major life activity at the actual time of the alleged adverse employment action.

This case not only serves as an excellent illustration of the problems addressed by the ADA Amendments, but is also shows how difficult it will be going forward for employers to prove that an employee’s medical condition does not qualify as an ADA-disability. If we assume that nearly all medical conditions are “disabilities” (and this assumption is pretty safe), then employers needs to refocus on the interactive process to reach a reasonable accommodation necessary to enable an employee to perform the essential functions of the job. Most ADA cases will now be won or lost on this issue, and it is incumbent on employers to put their best foot forward by appearing to have been as reasonable as possible with disabled employees.

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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 #143 (the “Are you ready for some football edition?”)

This weekend truly is one of the best sports weekends of the year. It’s opening Sunday for the NFL. Everyone’s 0-0 (even the Browns, who, for the record, I predict will be a very competitive 6-10 this season). For the fantasy football junkies out there, I recommend Happy New Year! Or, Happy First Day of (Fantasy) Football – from Daniel Schwartz’s Connecticut Employment Law Blog. As for my fantasy team, Adrian Peterson had a very pedestrian 19 carries for 87 yards last night. AP’s gotta pick it up if I’m going to make it back to the Superbowl this year.

Here’s the rest of what I read this week;

Discrimination

• Is “The Big One” Too Big? The Wal-Mart Class Action Size – from The Proactive Employer

• Mark Hurd, HP & Oracle: Adventures in Employment Law – from Tim Eavenson’s Current Employment

• The Clash Between the “Disney Look” and Religious Customs – from The DIS Unplugged Disney Blog

• The Interactive Process Requires Employee to Consider Alternatives – from Tom Crane’s San Antonio Employment Law Blog

• The Eleventh Circuit and the Word “Boy” – from Workplace Prof Blog

• Actionable hostile work environment can be based upon a single action – from Maria Danaher at Employment Law Matters

• Can Employers Prohibit Employees From Expressing Their Religious Views in the Workplace? – from Christopher McKinney’s HR Lawyer’s Blog

Wage & Hour

• FMLA FAQ - Can We Require an Employee to See Our Doctor Before Returning to Work? – from FMLA Insights

• Renegotiating Union Contracts: I Got 99 Problems, Pay is Just One... – from Kris Dunn, The HR Capitalist

• A Closer Look at Occupation in Explaining the Gender Wage Gap – from Stephanie Thomas at Compensation Cafe

• Is PDA Use Relevant As To Exempt Employees? – from Wage and Hour Laws Blog

• Good News! The Sex Pay Gap Is Gone! – from Michael Haberman’s HR Observations

Social Media

• Appeals Court Rules Counsel May 'Google' Potential Jurors During Jury Selection – from Bruce Carton at Law.com - Inside Opinions: Legal Blogs

• Social Media in the Jury Box – from Molly DiBianca’s Going Paperless

• Trashing ex-employers – from Jen Weigel at the Chicago Tribune

• Should Employers Be Forbidden to Facebook You? – from Megan Friedman at Time Magazine

Background Screening

• Forging Criminal Background Checks Can Be Costly – from employeescreenIQ Blog

• Are felons achieving new status? – from Julie DelCour at the Tulsa World

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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 organized labor finally making its resurgence?

Maybe its appropriate (or entirely a coincidence) that during the week in which we celebrate Labor Day, there have been so many stories in the news and in blogs discussing organized labor. Some proof, you ask?

• Board Decision Approves Stationary Bannering as Lawful Tactic in Secondary Boycotts – from the Washington DC Employment Law Update (discussing United Brotherhood of Carpenters and Joiners of America, Local Union No. 1506, in which the NLRB, in a partisan-line 3-2 decision, concluded that pro-union bannering, when conducted peaceably and independent of other, possibly coercive, conduct, is lawful).

• Obama NLRB Prepares To Eliminate Right to Secret Ballot for Union Organizing – from Mike Eastman at the Chamber Post (discussing the NLRB’s intent to “reconsider” Dana Corp., its 2007 decision which provided a limited window for secret-ballot decertifications following a card check recognition of a union).

• Organized Labor Targets Carwashes – from The Word on Employment Law with John Philips (discussing unions’ efforts to organize carwashes in Southern California).

• Big Labor’s Power Grab – from Mark Mix at the National Review, c/o npr.org (discussing unions’ efforts to overturn pro-management Bush-era NLRB decisions).

• Nostalgia For Unions – from E. J. Dionne at The New Republic, also c/o npr.org (yearning for labor unions in these tough economic times).

What does this all mean? Maybe nothing? More likely, organized labor has decided to stop waiting for President Obama to make good on certain campaign promises (like the Employee Free Choice Act) and take matters into its own hands by taking advantage of its majority on the NLRB. Businesses should prepare themselves for an upswing in organizing efforts, in addition to the possibility of a pro-union NLRB making decisions that reach outside of unionized workplaces to regulate the employer/employee relationship in general.

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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.

EEOC settlement provides really good practice points for combating harassment

Last week, the EEOC announced the settlement of the sexual harassment claims of 21 female janitorial workers against their employer, ABM Industries. The allegations were pretty horrific:

The EEOC asserted that the 21 class members were victims of varying degrees of unwelcome touching, explicit sexual comments and requests for sex by 14 male co-workers and supervisors, one of whom was a registered sex offender. Some of the harassers allegedly often exposed themselves, groped female employees’ private parts from behind, and even raped at least one of the victims, the EEOC said.

Worse yet, the lawsuit “charged that ABM failed to respond to the employees’ repeated complaints of harassment.” According to the EEOC, “Employers must implement strict policies and procedures to safeguard against such harassment, and take employee complaints seriously so that they not rise to the level of severity we saw in this case.”

The employer agreed to pay the class $5.8M, in addition to changes in how it handles workplace harassment. The agreed-to policy changes offer all employers some good lessons in how to proactively handle harassment:

• Designate an outside equal employment opportunity monitor to ensure the effectiveness of investigations, complaint policies and procedures, and assist in anti-harassment training to employees.
• Ensure that investigators of harassment complaints are trained thoroughly to investigate internal complaints of discrimination, harassment and retaliation 
• Establish a toll-free telephone hotline to receive complaints of harassment and retaliation.
• Provide anti-harassment training to employees in both English and Spanish to include a video message from the chief executive officer emphasizing zero tolerance for harassment and retaliation. 
• Conduct internal compliance audits at worksites.

Depending on the size of your organization, these specifics may not make sense. All businesses, though, should take the general lesson to heart. An anti-harassment policy is not worth the paper it’s printed on unless the company has a culture that not only abhors harassment, but takes all complaints seriously. Taking complaints seriously includes ensuring that all employees (no matter their native language or level of education) understand the harassment policy, that employees have more than one avenue to make complaints, that investigators are properly trained, and that the company regularly reviews its policies and procedures for compliance and effectiveness. No anti-harassment program is perfect, but designing one around these guidelines will greatly help in keeping you away from multi-million dollar lawsuits.

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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? FMLA medical certifications: if you don't ask, then you can't deny

In Branham v. Gannett Satellite Information (9/2/10) [pdf], the Sixth Circuit faced the issue of whether a negative medical certification (that is, one that says an employee is not limited in performing the essential functions of the job) bars FMLA leave if the employee presents an opposite certification during the same certification period. Under the FMLA's regulations, an employer must give an employee 15 days to prevent a medical certification for an unforeseeable leave. During that 15 day period, Deborah Branham presented Gannett an initial form from her doctor which stated that she could perform the essential functions of her job, and a second form which stated that she could not. While the latter would have qualified her for FMLA leave, Gannett took the position that the initial negative certification disposed of the issue for the entire leave, and it could ignore the second certification. The Sixth Circuit skirted this interesting issue, but in the process made an important point about employers' obligations in following the rules and asking for medical certifications.

The rules on medical certifications under the FMLA are fairly straight-forward. After an employee asks for FMLA leave, an employer may require that the employee support the request with a certification issued by the employee's health care provider. This request by the employer must be in writing and must detail the employee’s specific obligation to provide the certification and the consequences of failing to do so (such as the denial of leave). The request may be oral only if (1) the employee handbook or other written FMLA policy clearly provided that medical certification would be required, and (2) the employee sought FMLA leave some time in the previous six months and received written notice of the medical-certification requirement at that time. If an employer uses the FMLA forms drafted by the DOL, the written notice will take care of itself in most instances. Based on these rules, the court denied concluded that Gannett's denial of Branham's leave request violated the FMLA.

Branham satisfied her notification requirement on November 13, 2006, when she asked Buhler “about taking leave, because [she] still wasn’t feeling well and had numerous doctors’ appointments scheduled for November and December.” But Gannett never properly triggered the additional duty to provide a medical certification supporting her claim. The district court found that Gannett requested certification on November 13, the day on which Buhler told Branham over the phone to come to the office and sign a short-term-disability form to “see if she qualified for anything.” In her deposition, however, Buhler testified that “Michele and I never at any time discussed FMLA leave.” It is true that Gannett’s short-term-disability form doubled as its FMLA leave form, but it is clear that Buhler communicated to Branham no information about the FMLA certification requirement, the fact that such certification was due within fifteen days, or the consequences of failing to return an adequate certification.... We therefore must conclude that Gannett was not entitled to delay or deny leave to Branham on the basis of the certification requirement. 

In this case, Gannett's biggest mistake was using its own form (the short term disability form) for FMLA purposes. It should have used the DOL's suggested forms. Part B of form WH-381, entitled "Notice of Eligibility and Rights & Responsibilities" [pdf], states:

As explained in Part A, you meet the eligibility requirements for taking FMLA leave and still have FMLA leave available in the applicable 12-month period. However, in order for us to determine whether your absence qualifies as FMLA leave, you must return the following information to us by _________________. (If a certification is requested, employers must allow at least 15 calendar days from receipt of this notice; additional time may be required in some circumstances.) If sufficient information is not provided in a timely manner, your leave may be denied.

The form then has this check-box: "Sufficient certification to support your request for FMLA leave. A certification form that sets forth the information necessary to support your request ____is/____ is not enclosed." All an employer needs to do to satisfy its requirement to ask for the certification in writing is use this form, fill in the date by which certification must be returned, check the box asking for the certification, and provide a copy of form WH-380-E, Certification of Health Care Provider for Employee’s Serious Health Condition [pdf]. The rules are not complicated, but, as Branham v. Gannett Satellite Information illustrates, the penalties for not following them are punitive.

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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.

Happy Labor Day

http://www.gocomics.com/reallifeadventures/2010/09/06/

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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.