$27,000 buys a lot of chalupas: Taco Bell settles religious discrimination lawsuit with EEOC

Last year, I discussed lawsuit filed by the EEOC agains a North Carolina Taco Bell franchise, claiming that it had failed to accommodate an employee's religion by requiring him to cut his hair.

Last week, the EEOC announced that it had settled the charge on behalf of the employee:

According to the lawsuit, Christopher Abbey is a practicing Nazirite who, in accordance with his religious beliefs, has not cut his hair since he was 15 years old.... When Abbey explained that he could not cut his hair because of his religion, the company told Abbey that unless he cut his hair, he could no longer continue to work at its Taco Bell restaurant....

In addition to monetary damages ($27,000), the two-year consent decree resolving the suit requires Family Foods, Inc. to adopt a formal religious accommodation policy and conduct annual training on Title VII and its prohibition against religious discrimination and retaliation in the workplace....

Does your workplace have a religious accommodation policy? Do your managers and supervisors know how to accommodate an employee's sincerely held religious beliefs (as long as it does not impose an undue hardship)? Do your managers and supervisors even understand that they have a legal obligation to accommodation employees' religious beliefs?

If you answer "no" to any of these questions, you should consider this case a reminder of your religious accommodation obligations under Title VII (and similar state laws). Implement a religious accommodation policy. Train your managers and supervisors on what that policy means and how they need to implement it. The EEOC is watching. Taking these two simple steps will help keep you off the agency's bothersome radar.


 

Honestly, we didn’t discriminate

The “honest belief rule” is one of most effective shields available to employers in discrimination cases:

As long as an employer has an honest belief in its proffered nondiscriminatory reason for discharging an employee, the employee cannot establish that the reason was pretextual simply because it is ultimately shown to be incorrect. An employer has an honest belief in its reason for discharging an employee where the employer reasonably relied on the particularized facts that were before it at the time the decision was made.

To be effective, however, an employer must harness its “honest belief” properly. Consider Brooks v. Davey Tree Expert Co. (4/17/12), in which the 6th Circuit determined that an employer was not entitled to argue its honest belief in defense of an age discrimination claim.

According to the 6th Circuit in Brooks, the honest belief rule has limits:

[W]e do not require that the decisional process used by the employer be optimal or that it left no stone unturned. Rather, the key inquiry is whether the employer made a reasonably informed and considered decision before taking an adverse employment action.” Although we will not “micro-manage the process used by employers in making their employment decisions,” we also will not “blindly assume that an employer’s description of its reasons is honest.”

In Brooks, the 6th Circuit concluded that the employer was not entitled to the benefit of the honest belief rule, because it could not “point to specific facts that it had at the time the decision was made which would justify its belief in the proffered reason.”

What’s the lesson for employers? If you want to be able to argue that your honest belief justifies your decision, you better be able to support your claim. Contemporaneously-made documentation, coupled with corroborating evidence, is best. As if you need another reason document, document, and document some more?

Woman fired for IVF will test bounds of Title VII’s ministerial exception

It’s no secret that I approach employment law from a pro-employer viewpoint. It’s right in the blog’s title: The Ohio Employer’s Law Blog. Yet, despite my management-side tendencies, I call ‘em as I see ‘em, and every now and again a story about an employer’s treatment of an employee outrages me. This is one of those stories.

According to ABC News, an Indiana Catholic church has fired one of its school teachers, Emily Herx, after it learned she was undergoing fertility treatments to become pregnant. In her Title VII lawsuit [pdf], she claims a senior church official told that her attempt to become pregnant through in-vitro fertilization made her a “grave, immoral sinner.” According to the lawsuit, when Herx appealed her termination to the Bishop, he called IVF “an intrinsic evil, which means that no circumstances can justify it.”

If those two statements are true, there should be little doubt that the church fired Herx because of her IVF treatments. For that reason, the outcome of this case will likely hinge on two legal issues:

1. Does Title VII’s prohibition against sex and pregnancy discrimination cover IVF treatments?
2. Does Herx’s employment falls outside Title VII’s ministerial exception that protects a religious institution’s constitutional right in the selection of ministerial employees, as recognized by the Supreme Court in Hosanna-Tabor Evangelical Lutheran Church & School v. EEOC?

If the court answers both questions with a “yes,” then Herx wins.

On the first issue, I defer (as will the court) to the 7th Circuit’s 2008 decision in Hall v. Nalco Co., which concluded that Title VII’s pregnancy discrimination amendments cover IVF as a medical conditions related to pregnancy or childbirth. Pregnancy and pregnancy-related medical procedures (such as IVF) differentiate female employees from their male counterparts. As long as an employer is going to permit any employee to take time off for a non-pregnancy related short-term debilitating condition, it must make the same allowance for a female worker’s pregnancy-related medical procedures, such as IVF treatments.

This case, however, is complicated by the fact that Herx’s IVF is contrary to the doctrine of her religious employer. According to Herx’s lawsuit, she worked as a secular literature and language arts teacher. She is not Catholic, never taught any religion classes, and was not required to complete any training or education in the Catholic faith as a condition of her employment. If there is nothing religious about Herx’s employment or responsibilities, it would seem that her job falls outside the ministerial exception as laid out by the Supreme Court in Hosanna-Tabor. Indeed, this is exactly what the Southern District of Ohio held in a strikingly similar case just last month.

To prevail under the ministerial exception, the Diocese will have to convince the court that all of its teachers, even those of a different faith like Herx, serve as “moral exemplars” for its students. Rick Garnett, associate dean and professor of law at Notre Dame Law School, articulates this argument:

A lot of Catholic schools … every teacher brings the kids to Mass, is involved in sacramental activities…. It’s not just one teacher who teaches religion, religion is pervasively involved. The key question is whether it would interfere with the religious institution’s religious mission, its religious message, for the government to interfere in the hiring decision. [Huffington Post]

This case will be fascinating to follow, much more so for the religious implications than for the pregnancy discrimination implications. Whether Title VII protects a woman’s right to undergo fertility treatments is a fairly well-settled issue. Whether a Catholic Church has to provide that right to its secular employees, however, is open to vigorous debate. As someone who thinks that people should not have to choose between having a family and holding a job, I am rooting for Emily Herx.

WIRTW #223 (the “or are you just happy to see me” edition)

This has been a busy week in employment law land, with the EEOC protecting transgendered employees and announcing its long-awaited guidance on the use of arrest and conviction records in employment decisions. Yet, the most tantalizing story of the week comes from Murfreesboro, Tennessee, where an unfortunately-named county employee, Bill Boner, was accused of sexual harassment. The Murfreesboro Post settled on the headline, Boner rejects sexual harassment allegations. Thankfully, jimromenesko.com is all over this story to bring you the unprintable headlines the The Murfreesboro Post rejected (really):

• Boner Says Women Faking It
• Female Workers Say Boner Intimidated Them
• Boner Taking It Hard
• Sticky Situation for Boner
• Boner: “It’s Hard … on My Wife”
• EEOC to Probe Boner

There’s nothing funny about sexual harassment. But, if you can’t giggle about this story, you’re in the wrong line of work.

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

Discrimination

• Connecticut Supreme Court Stakes Out “Similarly Situated” and Statistical Standards — from Dan Schwartz’s Connecticut Employment Law Blog
• Breakdown of EEOC Guidance on Criminal Background Checks — from Nick Fishman at employeescreenIQ Blog
• The Broad Boundaries of Discrimination in the Workplace — from Dawn Lomer at i-Sight Investigation Software Blog
• Lawsuit Filing: Woman fired after donating kidney to her boss — from Chris McKinney’s Texas Employment Law Blog
• Failure to provide timely COBRA notice, retaliation? No, Sensei!!! — from Eric Meyer’s The Employer Handbook Blog
• Pregnant Employees Make Very Sympathetic Plaintiffs — from Labor & Employment Law Perspectives
• Attendance May be an Essential Function of the Job — from Employment Matters Blog
• EEOC charge against you? It need not turn into a long, costly war — from HR Cafe

Social Media & Workplace Technology

• Facebook Message Leads to Disability Claim — from Molly DiBianca’s Delaware Employment Law Blog
• U.K. Judge Allows Suit to be Served via Facebook — from Ethan Wall’s Social Media Law & Order
• Socializing Over State Lines: Social Media as a Basis for Personal Jurisdiction — from Augmented Legality
• California Provides Social Media Guidance for Financial Institutions — from Socially Aware Blog
• Employer’s Duty to Report Crimes: Employee Using a Personally-Owned iPad for Work Purposes — from From the Sidebar
• 1 In 3 Employers Reject Applicants Based On Facebook Posts — from AOL jobs

HR & Employee Relations

• Is that a whistle in your pocket? — from Walter Olson’s Overlawyered
• An Employer’s Response Guide to Whistleblower Claims — from Jason Shinn’s Michigan Employment Law Advisor
• Your BMI is 35: Should You Pay More For Healthcare? — from The HR Capitalist, Kris Dunn
• Does Smoking Affect Your Employability? — from The Proactive Employer Blog
• Worker’s Suit Claims His Boss Took over His Computer and Placed the F-Word on It — from ABA Journal Daily News
• Valve’s “Handbook for New Employees” leaked, hilarious illustrations included — from The Verge
• Dear Evil Skippy: Is It Illegal To Go Through My Employee’s Desk — from Evil Skippy at Work
• Oops!! Sorry – We Just Laid Off the Entire Staff via Email — from TLNT
• Just Because You Can, Does Not Mean You Should: What Non-Compete Lawyers and Their Clients Can Learn From Bo Ryan and “Transfergate” — from Trade Secret Litigator Blog

Wage & Hour

• Anatomy of a Wage and Hour Complaint — from Casey Sipe’s The Employer’s Lawyer
• Huffington Post Wins Victory In Bloggers’ Compensation Suit — from Wage and Hour Law Update
• Wage and Hour Cases ─ Not Going Away Anytime Soon — from The Wage and Hour Litigation Blog
• A Start-Up Nightmare: the Department of Labor Audit and How to Avoid It — from Social Media Today
• Nail Salon Must Pay Almost $236K After Court Rejects Immigration Defense Under FLSA — from Smart HR Manager
• What Does It Mean to Sell? Ask the U.S. Supreme Court — from Harvard Business Review Blog

Labor Relations

• NLRB issues guidance on new election rules, take effect April 30 — from Mike VanDervort’s The Human Race Horses
• Do You Know Your Rights? – NYT Editorial on NLRB Notice Posting Rule (Guess Whose Side They’re On?) — from Labor Relations Institute
• Senate Rejects Resolution That Would Have Nullified the NLRB’s Revised Election Rules — from Wyatt Employment Law Report
• Labor Board Meets Rising Resistance — from The Wall Street Journal
• Obama’s Renegade NLRB Is Disrupting the Recovery — from U.S. News & World Report
• Micro Union Case Hits Federal Court Of Appeals — from Labor Relations Update

EEOC announces new guidance on the use of criminal background checks under Title VII that focuses on individualized assessments of past crimes

Yesterday afternoon, the EEOC announced its long awaited, and, by employers, long dreaded, Enforcement Guidance on the Consideration of Arrest and Conviction Records in Employment Decisions under Title VII (along with a short and sweet Q&A).

The Guidance is not nearly as bad for employers as it could have been. Anyone who feared that the agency would over-reach and proclaim that pre-employment criminal background checks per se violate Title VII will be greatly relieved. As SHRM points out:

SHRM is pleased that the guidance does not appear to impose a one-size-fits-all set of rules on employers and seems to take into consideration that every employer will have different needs and concerns in the use of criminal background checks in hiring.

Nevertheless, the Guidance is not perfect. For example, “as a best practice, and consistent with applicable laws,” the EEOC “recommends that employers not ask about convictions on job applications.” While I certainly appreciate the EEOC’s recommendation, I’m not sure what “applicable laws” it references. This attempt to codify “ban the box” is one clear example where the EEOC is over-reaching.

Perhaps the most controversial piece of the new Guidance is the EEOC’s belief that to survive a potential disparate impact claim, employers must develop a targeted screen that considers at least the nature of the crime, the time elapsed, and the nature of the job, and then must provide an opportunity for an individualized assessment to determine if the policy as applied is job related and consistent with business necessity.

In engaging in this individualized assessment, the EEOC directs employers to consider the following factors:

Individualized assessment generally means that an employer informs the individual that he may be excluded because of past criminal conduct; provides an opportunity to the individual to demonstrate that the exclusion does not properly apply to him; and considers whether the individual’s additional information shows that the policy as applied is not job related and consistent with business necessity.

The individual’s showing may include information that he was not correctly identified in the criminal record, or that the record is otherwise inaccurate.

Other relevant individualized evidence for employers to consider includes:

• The facts or circumstances surrounding the offense or conduct;
• The number of offenses for which the individual was convicted;
• Older age at the time of conviction, or release from prison;
• Evidence that the individual performed the same type of work, post conviction, with the same or a different employer, with no known incidents of criminal conduct;
• The length and consistency of employment history before and after the offense or conduct;
• Rehabilitation efforts (e.g., education/training);
• Employment or character references and any other information regarding fitness for the particular position; and
• Whether the individual is bonded under a federal, state, or local bonding program.

I’m not aware of any requirement under Title VII that requires an individualized assessment in all circumstances. In the EEOC’s opinion, however, forgoing a screen that includes the individualized assessment will make it difficult, if not impossible, for an employer to justify a criminal background check as job related and consistent with business necessity. Yet, applying this individualized assessment for all applicants will impose a heavy burden on employers. And, the greater an employer’s attrition and hiring needs, the heavier that burden will become.

The EEOC concludes by suggesting some best practices for employers who consider criminal record information when making employment decisions:

• Develop a narrowly tailored written policy and procedure for screening applicants and employees for criminal conduct.
• The policy should Identify essential job requirements and the actual circumstances under which the jobs are performed.
• The policy should also determine the specific offenses that may demonstrate unfitness for performing such jobs, and the duration of exclusions for criminal conduct.
• Record the justification for the policy, procedures, and exclusions, including a record of consultations and research considered in crafting the policy and procedures.
• Train managers, hiring officials, and decisionmakers on how to implement the policy and procedures consistent with Title VII.

There is a lot to digest in this comprehensive policy guidance. For example, the EEOC discusses the differences between arrest records and conviction records, and provides specific examples of exclusions that will and will not fall under the umbrella of job related and consistent with business necessity.

This Enforcement Guidance is required reading for any business that takes arrest or conviction records into consideration in any employment decision.

EEOC pronounces protections for transgender workers

Title VII does not, on its face, protect transgender workers from discrimination. Increasingly, however, courts have extended its protections under the umbrella of Title VII’s protections against sex-stereotyping-as-gender-discrimination, as first explained 23 years ago by the U.S. Supreme Court in its landmark Price Waterhouse v. Hopkins decision:

In saying that gender played a motivating part in an employment decision, we mean that, if we asked the employer at the moment of the decision what its reasons were and if we received a truthful response, one of those reasons would be that the applicant or employee was a woman. In the specific context of sex stereotyping, an employer who acts on the basis of a belief that a woman cannot be aggressive, or that she must not be, has acted on the basis of gender.

Earlier this week, the EEOC made what might be the most significant pronouncement to date on the issue of the protection of transgender as gender discrimination. Macy v. Holder [pdf] involved a transgender woman, Mia Macy, who claimed that the federal Bureau of Alcohol, Tobacco, Firearms denied her a job after she announced she was transitioning from male to female.

In reinstating Macy’s Title VII claim, the EEOC concluded:

That Title VII’s prohibition on sex discrimination proscribes gender discrimination, and not just discrimination on the basis of biological sex, is important…. Title VII prohibits discrimination based on sex whether motivated by hostility by a desire to protect people or a certain gender, by assumptions that disadvantage men, by gender stereotypes, or by the desire to accommodate other people's prejudices or discomfort….

Thus, we conclude that intentional discrimination against a transgender individual because that person is transgender is, by definition, discrimination “based on … sex,” and such discrimination therefore violates Title VII.

While this opinion is not binding on courts, one cannot overstate the significance of the fact that the agency responsible for enforcing the federal EEO laws has made this broad pronouncement. Many employers operate under the belief that they are free to discriminate on the basis of sexual orientation or gender identity because Title VII lacks no facial prohibition. As this case illustrates, that belief, no matter how commonly held, might be mistaken.

The EEOC and I disagree on a lot. (See criminal background checks as hiring criteria). Yet, on this issue, we are on the same page. It strikes me as appalling that in the year 2012 there are still minority groups against whom it remains facially legal to discriminate. Already, 21 states prohibit sexual orientation discrimination in employment, 16 of which also prohibit gender identity discrimination; another 140 cities and counties have similar laws. Many companies have also made the private decision to prohibit this type of discrimination in their individual workplaces.

For the uncovered, this EEOC decision signals that the time is coming when this type of discrimination will no longer be an open issue. I suggest you get on the bandwagon now, and send a signal to all of your employees that you are a business of inclusion, not one of bigotry and exclusion.

[Hat tip: The Proactive Employer / Stephanie Thomas]

“Eat Shop Sleep” underscores the importance of proactively addressing wage and hour issues

You might want to pay attention to the Department of Labor’s latest press release.

The U.S. Department of Labor’s Wage and Hour Division is launching an enforcement and education initiative focused on the restaurant industry in the Los Angeles area to ensure compliance with the Fair Labor Standards Act’s minimum wage, overtime, record-keeping and child labor provisions. Under this initiative, the division will be conducting unannounced investigations at [Los Angeles area] restaurants.

What jumps out the most from the press release is the following statistic:

In the past six years, … the division conducted more than 1,800 investigations of restaurants along the West Coast and found that 71 percent were violating the FLSA, resulting in more than $12 million in back wages owed to more than 9,500 employees.

What’s amazing to me is that the percentage of non-compliant employers is only 71 percent. I remain convinced, as I’ve pointed out before, that I can walk into any company and find a wage and hour violation. The FLSA and its regulations are that complex, twisted, and anachronistic.

For this reason, even if you aren’t a restaurant operator in the Los Angeles area, you need to pay attention to, and get out ahead of, these issues. You cannot predict when, why, or who the DOL will audit. What can you do? Take a detailed look at all of your wage and hour practices: employee classifications, meal and rest breaks, off-the-clock issues, and any child workers. Make sure you are 100 percent compliant with all state and federal wage and hour laws. If you are not sure, bring in an attorney who knows these issues to check for you. If you are ever investigated by the DOL or sued in a wage and hour case, it will be the best money your business has ever spent.

[Hat tip: Social Media Employment Law Blog]