WIRTW #678: the “Happy Birthday” edition

Today is Donovan's 15th birthday. So, everyone please do this dad a solid and wish a 🎂 happy birthday 🎂 to this funny, smart, caring, compassionate, empathic, goofy, loving (and video-game loving) kid. I am better person because Donovan is my life.

Here's what I read this week that you should read, too.

A disabled employee is entitled to a “reasonable” accommodation, not a “preferred” accommodation

Jay Hannah worked as a package delivery driver for UPS. He developed hip bursitis, which caused pain in his lower back, hip, and buttocks. As a result, he requested two alternative reasonable accommodations: either that UPS allow him to drive his route with a smaller truck with softer suspension or that UPS reassign him to a non-driving inside job. 

UPS denied both requests. It determined that the specific needs of Hannah's route required a larger truck, and that the smaller van had an insufficient capacity to service his route. Other possible alternatives that could have permitted Hannah to use a smaller truck — giving a part of his route to another driver or completing the route himself in multiple trips — were not feasible as each would violate the governing collective bargaining agreement. Further, there were no openings for inside work at the time. UPS advised Hannah that it would consider him for any openings as they arose.

While UPS denied Hannah the particular accommodations he requested, it did allow him to retain his job and take a leave of absence without pay until he could return to work. And after several months, Hannah did return to work and thereafter continued to drive the route to which he was assigned in a truck suited for that route.

Color me unsurprised that businesses are already using 303 Creative to discriminate

If a human identifies as anything other than a man/woman, please seek services at a local pet groomer. You are not welcome at this salon. Period.

Those are the words of Christine Geiger, the owner of Studio 8 Hair Lab, in a post on the business's now-deleted Facebook page. In a still-available comment on another Facebook page, Geiger says, "I have no issues with LGB. It’s the TQ+ that I'm not going to support. For those that don't know what the + is for, it's for MAP (Minor Attracted Person aka: pedophile)." Meanwhile, the business's private Instagram page describes itself as, "A private CONSERVATIVE business that does not cater to woke ideologies." 

We get the point. Geiger doesn't like transgender people and is using her religion and the Supreme Court's decision in 303 Creative v. Elenis to justify her discrimination.

“Geographical discrimination” is NOT a thing

"If you don’t relocate and return to in-person work, we’re going to have to let you go." Many employers are having this very conversation with their remote employees. Some employees who want to continue working remotely are starting to push back.

According to a recent report, employees are considering suing their employers for geographical discrimination. 

Workers who moved to another city, state, or even country from their employer's main office during the pandemic are claiming that they're being discriminated against geographically by being forced to return to in-person work.

If you can’t beat ’em, sue ’em.

“Competition is fine, cheating is not.” That’s what Elon Musk tweeted after Twitter’s lawyer’s cease and desist letter to Mark Zuckerberg went public.

Twitter accuses Meta of engaging “in systematic, willful, and unlawful misappropriation of Twitter’s trade secrets and other intellectual property.”

The problem, however, is that according to Meta, “No one on the Threads engineering team is a former Twitter employee — that’s just not a thing.” 

WIRTW #677: the “de minimus” edition

Employee: "I can't work Sundays. It's against my religion."

Employer (before yesterday's Supreme Court decision in Groff v. DeJoy): "I'm sorry, but it's an undue hardship for us to redo our entire schedule and require another employee to work in your place. Unless you can find a volunteer co-worker to cover your shift, we can't accommodate you. In that case, any absences are unexcused and will be treated as such under our attendance policy."

Employer (after yesterday's Supreme Court decision in Groff v. DeJoy): "Let's talk."

Groff examined the standard for an employer to assert an undue hardship defense to an employee's religious accommodation request under Title VII. Until yesterday's opinion, an employer could reject an employee's request for a religious reasonable accommodation request if it would impose "more than a de minimis cost." Groff, however, rejected the long-applied de minimus standard. The Supreme Court held:

Title VII requires an employer that denies a religious accommodation to show that the burden of granting an accommodation would result in substantial increased costs in relation to the conduct of its particular business.

This is a paradigm shift for how employers must consider reasonable accommodations for employees' sincerely held religious observance or practices. Ultimately, an employer will have to evaluate, and a court may have to make a common-sense determination, whether the impact of a potential accommodation is too great for an employer to bear — something akin to a "substantial additional cost" or a "substantial expenditure." It's still a case-by-case factual determination, but it's one that now has some teeth behind it for the employee seeking a religious accommodation.

The Court went on to add to this undue hardship is not the same undue hardship test as courts apply under the ADA ("significant difficulty or expense"). Further, because much of existing EEOC guidance on Title VII religious accommodations focus the accommodation itself, and not the undue hardship test, it's likely mostly still good guidance on which employers, employees, and courts can rely. 

Still, we shouldn't downplay the significance of this decision, especially coming off the heels of a pandemic's workplace vaccine mandates that forced many employers to confront the issue of religious accommodations for the very first time. 

Employers, your job in evaluating religious accommodation requests just became that much more rigorous. The good news, however, is that even though the hardship standard is not quite the same as under the ADA, we should all at least be used to the rigors of the interactive process from years of handling myriad disability accommodations. 

Here's what I read this week that you should read, too.

“Loud quitting”

Quiet quitting is so 2022. According to CNBC (citing Gallup’s 2023 State of the Global Workplace Report) loud quitting is all the rage.

What is loud quitting? Employees who "take actions that directly harm the organization, undercutting its goals and opposing its leaders." Such actions include, for example, bad-mouthing their boss on LinkedIn on their way out the door or riling up co-workers before they leave.

The Gallup survey blames management for this crisis. "At some point along the way, the trust between employee and employer was severely broken," Gallup wrote. "Or the employee has been woefully mismatched to a role, causing constant crises." 

I say, "Hogwash!"