Leave policies should apply equally across genders … but must they?

The New York Times reports that CNN has settled an EEOC charge brought by a former correspondent, who claimed that the company’s paid parental leave policy discriminated against biological fathers.

At the time Mr. Levs’s daughter was born, in October 2013, CNN offered 10 weeks of paid leave to biological mothers and the same amount to parents of either gender who adopted children or relied on surrogates. By contrast, the company offered two weeks of paid leave to biological fathers.

Mr. Levs, whose daughter was born five weeks prematurely, already had two young children. He said he felt he needed to spend more time at home sharing in caregiving responsibilities with his wife. He filed his charge when the company refused to grant him more paid time off.

Optically, there is a lot of appeal in a male employee claiming discrimination when a female employee receives more paid leave after the birth of a child. On its face, it certainly looks discriminatory. But, is such a policy really sex discrimination?

There is one key difference between women and men when they welcome a new-born child. Women give birth; men don’t. A women is not medically ready to return to work the day following childbirth; a man is. Indeed, current medical guidelines suggest that women take six weeks off from work following a vaginal delivery, and eight following a C-section. Adoptions also provide different challenges to a couple, including adjusting to new family member without the buffer of a nine-month pregnancy.

While employers should offer equal leave allotments to men and women, before we jump the legal gun we need to consider that there might be an explanation other than discrimination that justifies different treatment between the sexes.

Reminder: You cannot decide when a pregnant employee can and cannot work

The EEOC recently announced that it has filed suit against a Texas home healthcare company for terminating a pregnant employee. The EEOC describes the key allegations:

EEOC charges in its suit, that Zanna Clore was told to obtain a doctor’s note after the employer learned of her pregnancy. Shortly thereafter, Clore provided Your Health Team with a release from her physician stating Clore could perform all job duties with the only limitation being that she should not lift or pull more than 25 lbs. Despite the medical release to work, the employer terminated her employment just minutes after she furnished the required note.

EEOC regional attorney Robert A. Canino sums up everything that is (allegedly) wrong with this employer’s action:

As a society, we should have already evolved well beyond the old-school thinking that a pregnant worker must be excluded from the workplace. Fortunately, the highest court in the land, in Young v. UPS, recently emphasized the employer’s responsibility to accommodate pregnant employees and thereby avoid discrimination against working women.

When an employee informs you that she is pregnant, your decision is not whether to fire her, but instead whether she can perform the essential duties of her job during her pregnancy. If she has physical limitations because of her pregnancy, you must accommodate her on the same terms and conditions as others who are similar in their ability or inability to work. In other words, if a pregnant employee cannot perform an essential function of lifting more than 25 pounds, and you have previous accommodated other non-pregnant employees in that job with similar lifting restrictions, then you must offer the same accommodation to the pregnant employee. It is not up to you to decide whether your pregnant employee can, or cannot, continue working.

Is anyone still using unpaid interns?

I’ve cautioning about the use of unpaid interns almost as long as this blog as been a blog (here, here, and here, for example). Last week, the 11th Circuit, in Schumann v. Collier Anesthesia [pdf], became the third federal appellate court to cast aside the DOL’s six-factor internship analysis for a stricter “primary beneficiary” test (joining the 6th Circuit and 2nd Circuit).

In Schumann, the court questioned the employer’s use of unpaid student registered nurse anesthetists participating in a clinic program as part of their master’s degree curriculum. The court agreed with the 2nd Circuit that the DOL’s six-factor internship analysis is antiquated, instead balancing, via the following factors, who received the primary benefit of the relationship—the employer (in which case the intern is an employee who must be paid) or the employee (in which case the internship can be unpaid):

1. The extent to which the intern and the employer clearly understand that there is no expectation of compensation. Any promise of compensation, express or implied, suggests that the intern is an employee—and vice versa.
2. The extent to which the internship provides training that would be similar to that which would be given in an educational environment, including the clinical and other hands-on training provided by educational institutions.
3. The extent to which the internship is tied to the intern’s formal education program by integrated coursework or the receipt of academic credit.
4. The extent to which the internship accommodates the intern’s academic commitments by corresponding to the academic calendar.
5. The extent to which the internship’s duration is limited to the period in which the internship provides the intern with beneficial learning.
6. The extent to which the intern’s work complements, rather than displaces, the work of paid employees while providing significant educational benefits to the intern.
7. The extent to which the intern and the employer understand that the internship is conducted without entitlement to a paid job at the conclusion of the internship.

Notably, the Schumann court noted that the internship analysis is not necessarily all-or-nothing, and that one can be a bona fide intern for part of the engagement, but an employee for others:

That is, we can envision a scenario where a portion of the student’s efforts constitute a bona fide internship that primarily benefits the student, but the employer also takes unfair advantage of the student’s need to complete the internship by making continuation of the internship implicitly or explicitly contingent on the student’s performance of tasks or his working of hours well beyond the bounds of what could fairly be expected to be a part of the internship. For example, in the context of an internship required for an academic degree and professional licensure and certification in a medical field, consider an employer who requires an intern to paint the employer’s house in order for the student to complete an internship of which the student was otherwise the primary beneficiary. Under those circumstances, the student would not constitute an “employee” for work performed within the legitimate confines of the internship but could qualify as an “employee” for all hours expended in painting the house, a task so far beyond the pale of the contemplated internship that it clearly did not serve to further the goals of the internship.

Ultimately, the court took no position on whether these student nurses were (or were not) employees, instead sending the case back to the district court to make the necessary factual determinations under the primary beneficiary test. Assuming this case is not settled, this case will be very interesting to watch on remand, as the relationship in Schumann is much closer to the traditional unpaid internship—training in exchange for school credit as part of an educational curriculum. A judgment for the interns in this case would be pretty darn close to the final coffin nail for unpaid internships.

While we watch this case, employers should continue to assume that non-student interns are paid employees, and should consult with counsel on whether student interns should be paid.

Time off for religious holidays

Today is Rosh Hashanah, the Jewish New Year, which means that many Jewish employees are taking the day off. Is an employer obligated, however, to grant a request for time off when requested for a religious observance?

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 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 or other 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.

WIRTW #381 (the “sensational inspirational celebrational” edition)

The Muppets present, 5 People You’ll Meet At Work.

 

Which one are you?

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

Discrimination

• Judge Titus Channels Inner Kenny Rogers in $1 Million EEOC Rebuke — via Employee Screen IQ
• Firing an employee for complaining on Facebook about discrimination = retaliation — via Eric Meyer's The Employer Handbook Blog
• Workplace religious accommodation, cont’d — via Walter Olson's Overlawyered
• Yes, employers may have to accommodate even “crazy” religious beliefs. — via Robin Shea's Employment & Labor Insider
• Be careful what you ask on pre-employment tests to avoid a multimillion dollar EEOC action — via Employer Law Report

Social Media & Workplace Technology

• Employee Shows Genitals to Co-Workers: Litigation Follows — via All in a Day’s Work
• Tool or distraction? Examining pros, cons of tech at work — via Technology for HR
• 7 ways to make internal comments work for you — via Ragan.com
• Future Friday: The world of work and the Internet of Things — via Next Blog

HR & Employee Relations

• Tom Brady Fallout—When Employees Win — via Employment Discrimination Report
• The Challenges Of Identifying Potential Workplace Violence — via NPR
• Eight Years Later: Three Big Changes in Employment Law — via Dan Schwartz's Connecticut Employment Law Blog
• 5 Ways To Make Yourself a Target Via Your Hiring Decisions — via The HR Capitalist, Kris Dunn
• Handbook Apocalypse! — via HR Professionals Magazine

Wage & Hour

• Is Amazon the Scapegoat in the Debate on Employee Leave Entitlements? What's the Lesson Here for Employers? — via Jeff Nowak's FMLA Insights
• Northeast Ohio Businesses Are Adjusting to the Changing Workplace, ERC Survey Finds — via ERC Insights Blog
• Is the Nine to Five Dying? — via Workplace Insights

Labor Relations

• NLRB Provides Newly-Certified Unions with Roadmap for Bringing Unfair Labor Practice Charges — via Matt Austin Labor Law
• DOL Pimping Unions — via Labor Relations Institute 
• Why women may be the new face of labor unions — via CBS News
• Get Ready for Even Quicker ‘Quickie’ Elections—NLRB Abandons Requirement for Signed Authorization Cards — via LE Blog

BMW settles EEOC background-check lawsuit for a cool $1.6 mil

Last month, a South Carolina federal judge denied BMW’s attempt to dismiss an EEOC lawsuit which alleged that the company’s criminal background checks for job applicants had a discriminatory disparate impact on African American (opinion here).

In the wake of that decision and looming trial date at the end of this month, BWM and the EEOC have agreed to settle their differences. In exchange for the EEOC’s dismissal of its lawsuit, BMW will pay $1.6 million, and offer employment to 56 of the claimants and up to an additional 90 other African-American applicants identified by the EEOC.

Interesting, Judy Greenwald, at Business Insurance, quotes both BMW and the EEOC, each of which holds a very different opinion on what this settlement has to say about an employer’s use of criminal background checks:

“EEOC has been clear that while a company may choose to use criminal history as a screening device in employment, Title VII requires that when a criminal background screen results in the disproportionate exclusion of African-Americans from job opportunities, the employer must evaluate whether the policy is job-related and consistent with a business necessity,” said David Lopez, the EEOC’s general counsel, in the statement.

BMW said in its statement that the settlement “affirms BMW’s right to use criminal background checks in hiring the workforce at the BMW plant in South Carolina. The use of criminal background checks is to ensure the safety and well-being of all who work at the BMW plant site.

“BMW has maintained throughout the proceedings that it did not violate the Civil Rights Act of 1964 and does not discriminate by race in its hiring as evidenced by its large and highly diverse workforce.”

At the end of the day, the resolution of this case has very little to do with the legality of criminal background checks (and whether they are discriminatory) and everything about two litigants buying off off the risk of a trial on the issue. For now, the safest course of action for employers is to follow the EEOC’s Enforcement Guidance on the Consideration of Arrest and Conviction Records in Employment Decisions under Title VII (at least until the federal courts tells us otherwise).

When religious liberty clashes with job requirements

By now, you’ve likely heard about the Muslim flight attendant who filed a charge of discrimination with the EEOC, claiming that her employer refused to accommodate her religion by requiring her serve alcohol on flights. There is much to say about this issue, but I do not think I can say it any better than Eugene Volokh did in the Washington Post. I highly recommend his thorough and thoughtful essay.

The practical question, however, is what to do when an employee requests such an accommodation. Consider:

• A Catholic pharmacist who refuses to sell birth control.
• A Muslim truck driver who refuses to deliver any pork.
• A Christian Scientist nurse who refuses a flu vaccine.
• An Orthodox Jew who refuses to sell any non-Kosher items.
• An IRS employee with religious objections to working on certain tax-exemption applications.

How you feel about each of these particular cases will depend, in large part, on your view of Religion, or certain religions. Yet, Title VII does not make any such distinctions. Instead, Title VII requires employers to exempt religious employees from generally applicable work rules as a reasonable accommodation, so long as the accommodation won’t impose on the employer an “undue hardship” (something more than a modest cost or burden). If the job can get done without much of a burden, then Title VII requires the employer to provide the accommodation.

Volokh makes six observation about this reasonable-accommodation rule, which are worth repeating:

1. The rule requires judgments of degree. Some accommodations are relatively cheap (again, always realizing that any accommodation involves some burden on employers), while other are more expensive. The courts have to end up drawing some fuzzy line between them. Maybe that’s a bad idea, but that’s what Congress set up with the “reasonable accommodation” requirement. So if you want to argue that one religious objector shouldn’t get the relatively easy accommodation she wants, you can’t do that by analogy to another claim where the accommodation would be very expensive.

2. The rule turns on the specific facts present in a particular workplace. An accommodation can be very expensive when the objecting employee is the only one at the job site who can do a task, but relatively cheap when there are lots of other employees. It can be very expensive when all the other employees also raise the same objection, but relatively cheap when the other employees are just fine with doing the task. Again, maybe that’s a bad rule, but it’s the rule Congress created. And if you want to argue that one religious objector shouldn’t get an accommodation that’s easy at the objector’s job site, you can’t do that by pointing out that the accommodation would be expensive at other job sites.

3. The rule accepts the risk of insincere objections. Of course, when sincere religious objectors can get an exemption, others can ask for the same exemption even just for convenience rather than from religious belief. That’s not much of a problem for many exemption requests, since most people have no personal, self-interested reasons not to transport alcohol on their trucks, or raising an American flag on a flagpole. But for some accommodations, there is a risk of insincere claims, for instance when someone just wants Saturdays off so he can do fun weekend things. The law assumes that employers will be able to judge employees’ sincerity relatively accurately, and to the extent some insincere objections are granted, this won’t be too much of a problem. Again, the law might be wrong on this, but it’s the law.

4. The rule accepts the risk of slippery slopes, and counts on courts to stop the slippage. Once some people get a religious exemption, others are likely to claim other religious exemptions; indeed, some people who before managed to find a way to live with their religious objections without raising an accommodation request might now conclude that they need to be more militant about their beliefs. Here too, the law accepts this risk, and counts on courts to cut off the more expensive accommodations.

5. The rule rejects the “you don’t like the job requirements, so quit the job” argument. Again, that argument is a perfectly sensible policy argument against having a Title VII duty of religious accommodation. It’s just an argument that religious accommodation law has, rightly or wrongly, rejected.

6. The rule focused on what specific accommodations are practical. If someone demands as an accommodation that a company completely stop shipping alcohol, that would be an undue hardship for an employer. But if it’s possible to accommodate the person by just not giving him the relatively rare alcohol-shipping orders, then that might well not be an undue hardship.

In other words, Title VII’s religious accommodation provision is the law of the land, and it does not permit value judgments based on the religion of the person making the request, no matter how different a religion may seem from ours. If the request is based on a sincerely held religious belief, is reasonable, and does not impose an undue hardship, an employer must provide it. Value judgments will result in litigation, in which the employer will likely be on the wrong side of the law. Treat each religion equally, consider each accommodation request on its merits, and err on the side of inclusion.