Employment Discrimination

Don't Hug Me.

Don't Hug Me.

Are you a boss who hugs his or her co-workers?  If yes, STOP.  Recent caselaw out of the Ninth Circuit says this is a no-no.  Read more about why.

The OFCCP Did Something They Should Have Done a Long Time Ago

Most of you reading this article probably do not remember when the Office of Federal Contract Compliance Programs (OFCCP) previously drafted sex discrimination guidelines.  This is because the OFCCP has not revised its sex discrimination guidelines since 1970.  Yes, you read that correctly: 1970.  For those of you who are employed by a company that often works as a Federal contractor, these new guidelines will apply.  For everyone else, these guidelines will reflect a national trend regarding sex discrimination in the workplace, particularly pregnancy discrimination and transgender rights.  As the U.S. Department of Labor put it in their factsheet, we are moving from the “Mad Men” era to the Modern era.  Finally.

The key changes are focused on three issues:  (1) disparities between men and women in the workforce (e.g. pay, career development, opportunities, etc); (2) lack of accommodations offered to pregnant employees; and (3) LGBT discrimination and “sex stereotypes.” 

 Men = Women // Women = Men

Under the new OFCCP guidelines, contractors are expressly forbidden from paying workers differently based on sex.  Since part of the gender pay-gap is due to women receiving less opportunity to “rise in the ranks,” the OFCCP added language that also prohibits a contractor from denying an opportunity for more pay or career advancement based on sex (think: overtime, training, or seeking a higher position).  This would also include placing unnecessary job restrictions to limit the eligibility of a female (or male).    In other words, any height, weight, or strength requirements must be a bona fide occupational characteristic and be job-related and consistent with a business necessity. 

In addition to pay and advancement issues, the OFCCP also makes it clear that contractors cannot discriminate on the basis of sex when it comes to offering fringe benefits.  “Fringe benefits” include things like health benefits, life insurance, and retirement benefits.  There is also a clause that reiterates that sexual harassment will not be tolerated.

Pregnant Employees and Job Accommodations

While most pregnant employees are not “disabled” by the ADA definition of the word, many of them may qualify for an accommodation that permits them to continue doing their job.  Such a workplace accommodation could be as simple as extra bathroom breaks or light-duty assignments and must be evaluated based on each employee’s need.  This provision of the revised OFCCP guidelines also expands pregnancy discrimination to include “related medical conditions.”  If the same or similar accommodation would be (or legally should be) offered to a non-pregnant employee, then it must also be offered with the same consideration to a pregnant employee (or an employee suffering a medical condition related to pregnancy and/or childbirth). 

 LGBT and Transgender Employees = Employees

As we continue to witness laws like HB2, the Feds continue to counterattack by setting the example that LGBT discrimination should not be tolerated.  While the new OFCCP guidelines does not specifically address HB2, it certainly attempts to counteract the North Carolina law by requiring federal contractors to allow workers to use bathrooms, changing rooms, and showers that are consistent with the gender in which the worker identifies.   The OFCCP also goes a step further and states that excluding coverage for cases related to gender dysphoria or gender transition is facially discriminatory.  In other words, Federal contractors cannot discriminate based on gender identity or transgender status.

Since more and more LGBT employees are bringing Title VII discrimination claims through a “sex stereotype” theory, the revised OFCCP guidelines also state contractors cannot treat employees or applicants adversely because they fail to comply with social expectations of men and/or women.  Moving forward, referring to certain positions as a “man’s job” may not be the best idea. 

All that said, most of this should be a good review of Title VII, which applies to private employers, but these new OFCCP guidelines are certainly a product of trends seen in the world of employment law.  My guess is that more and more will be said about transgender employees in the next few years, as will more be said about pregnant employees and the gender wage-gap in the near future.            


It's the end of February which makes it practically Spring and therefore time to so some "Spring Cleaning."  What is one thing all companies should do annually but few actually do ever?  Answer:  Review, revise, or even just read their Employment Handbooks.  If you fall into the latter category, here are some handbook provisions you should definitely not ignore, regardless of your size.

#1:  Social Media & Data Privacy

People have a lot of devices (e.g. iPhones, iPad, Macbook, laptop, desktop, etc) which means people are super connected to the world.  A major consequence of cool technology?  We are so connected that our personal life often blends into our professional life.  Because of this intersection, handbooks should have a policy stating employees have no right to privacy while accessing social media at work or on company-owned equipment.  This policy should also address cyber security and set parameters for downloading apps and programs onto company-owned devices and state that proprietary information should not be shared online (with the exception of certain protected communications). 

#2:  Overtime & Wage Deductions

Every company should have a policy prohibiting unauthorized overtime AND a method in place for submitting and approving overtime work.  

[NOTE:  Just because you prohibit unauthorized overtime doesn't mean you don't have to pay overtime that has actually been completed. The policy, however, gives you grounds to terminate an employee for not having the overtime work approved. Get it, got it, good.]

In addition to overtime, if you make any deductions from paychecks (other than standard IRS/tax deductions), you should include details in your handbook.  For example, if you loan tools to employees and take out the amount of the loan from their paychecks, this needs to be in writing.  Also, the North Carolina Wage and Hour Act has some additional rules regarding wage withholdings that may also come into play.  

#3:   LGBT Rights

A lot of companies have already revised their anti-discrimination or EEO policies to include sexual orientation.  If you have 15 or more employees, I would strongly recommend doing the same since more and more courts are recognizing LGBT protections under Title VII.  Of particular protected status: transgender employees

If you offer group benefits to employees, you should also revise any handbook policies regarding benefit eligibility.  Recall the 2015 Supreme Court case that legalized gay marriage nationwide which in turn makes gay marriage included in a lot of group benefits offered to employee spouses and children (e.g. healthcare). 

#4:  Smoking

Many companies have anti-smoking policies in place but does your policy address e-cigs?  If not, you may want to think this one over.  If your company has banned smoking on the job, your employees may have the expectation this would include e-cigs too.  

What about (legal) marijuana use?  Marijuana is still illegal in North Carolina and most other states and even where it is legally obtained and used, courts have held that companies can still ban the use of all drugs including marijuana.  This means a failed drug test is a failed drug test and can still be grounds for termination.  Alert your employees who have taken a liking to Colorado and Washington.   

Speaking of drug testing, did you know North Carolina has a Controlled Substance Examination Regulation Act?  We do and its ignored a lot so you may want a review. 

#5:  Retaliation 

Retaliation claims are on the rise according to the EEOC which means it is worth talking about retaliation in your handbook.  Employers, particularly those with 15 or more employees, should have an anti-retaliation policy for employees who report issues.  Supervisors and managers should also be well-trained on retaliation so that they know how to deal with employees who report bad things in the workplace.  You also want to make sure there is a good reporting procedure in place for employees to use when they need to report discrimination or similar complaints.

#6:  Reasonable Accommodation

Another hot topic with the EEOC and pertinent to employers covered under the ADA and Title VII.  Employers need to know how to deal with reasonable accommodations requests in the proper/lawful way.  The best way to do this is to put it all in a written policy that is available to employees and supervisors alike.  Once again, training supervising employees on how to identify reasonable accommodation issues is key.  

Luckily for all the NC employers out there, our state did not enact any new employment laws in 2015.  However, the federal courts and certain federal agencies have been all over the place with new interpretations of federal employment laws.  Employment handbooks should be treated as living documents that are subject to annual review (at a minimum).  If you want some help on this task, you know where to find us!

Don't be dumb: Lessons learned with ADA Reasonable Accommodation & the Interactive Process

Its time for a POP QUIZ!

Pretend you are a construction company (if you are not already).  You need to hire a field engineer so you put out a job listing on Indeed.com that says, among other things, that an essential part of this job is the ability to climb a ladder.   A day goes by and suddenly you have a good candidate for this position (hooray!).  During your required medical examination for all new hires, it comes out that this candidate suffered a rotator cuff injury about a year ago and he can not drive a vehicle, lift more than 10 pounds, or work with his hands above shoulder level. What do you do?

(a)    Get rid of him! Kid can't even drive. 

(b)    Ask for additional information about the injury & his ability to do essential job functions.

(c)    Engage in an interactive conversation about reasonable accommodation since the new hire may be "disabled."

(d)    Do (b) & (c).

Answer: (d)           Yes, I know it comes as a surprise but it looks like your new hire may have a disability covered under the ADA that has been brought to your attention during the pre-employment medical exam.  This means as an employer covered under the ADA you must engage in an interactive conversation with the employee about reasonable accommodation that may allow the employee to do the essential functions of the job.  This interactive process may include that described in (b). Hence, (d) is the best answer.

Since when is a "rotator cuff injury" a disability?

Since 2009.  Back in '09, the Americans with Disabilities Act was amended and it made the definition of "disability" reallllllllly broad.  Pretty much anything that effects one or more major life activities is a disability.  Also, even if a rotator cuff injury was denied coverage as a true "disability" under the ADA, an employee who is "regarded as" disabled is still covered under the Act.  This means if you assume or treat an employee or applicant as disabled, they can still sue for discrimination under the ADA.

What is an interactive process and how do I get one?

The ADA requires employers to engage disabled employees in an "interactive process" to determine whether or not a reasonable accommodation exists.  This doesn't mean the employer has to volunteer a ton of ideas; it means they have to (1) listen, (2) contemplate, and (3) respond (ideally with more than a simple "yes" or "no").  As you may have guessed, the "Pop Quiz" above is based on an actual Fifth Circuit Court of Appeals case.  In this case, the employer (an actual construction company) withdrew its offer of employment once the new hire's injury surfaced during his medical exam... even though the new hire submitted supporting documents stating he could climb a ladder (the essential job function at issue in this case) and was off all the good (read: bad) medications.  In other words, the employer made zero attempt to engage in an interactive conversation about reasonable accommodation.  As a result, this company got slapped with first an EEOC charge, then a federal district court lawsuit, and now a trip to the Fifth Circuit Court of Appeals.  But I'm sure they learned their lesson. 

Side note about Reasonable Accommodation:

Employers are not obligated to provide a reasonable accommodation if the requested accommodation would create an "undue hardship."  Determining what is an "undue hardship" is determined by the courts on a case-by-case basis but it often comes down to (1) the safety of the workplace/ other employees and (2) $$$$$$$$$$.  Even if the employer in the above case can show an undue hardship exists, they can still get dinged for not engaging in the interactive process. So follow the rules, keep good records, and consult a professional if you want another set of eyes.  

GINA get a Makeover in the EEOC's latest Proposed Rule

GINA is the ugly stepchild of Employment Law that is rarely noticed.  In fact, most employment law classes barely skim the surface of GINA, assuming they even talk about her at all. However, the EEOC is pushing GINA into the limelight with a proposed rule that impacts Employer Wellness Programs.  Considering healthcare is one topic that never gets old, this proposed rule is definitely worth learning (and watching).

Who is GINA?

Not "who" but "what." GINA stands for the Genetic Information Nondiscrimination Act.  As you may have guessed from the name, GINA is a federal law that prohibits employers with 15 or more employees from discriminating against employees or applicants based on their genetic information.  GINA also makes it illegal for an employer to use genetic information in any employment decision and has very tight restrictions on when an employer (or labor group) can request, require, or purchase genetic information.  The general rule is that genetic information is NEVER relevant to an individual's current ability to work so seeking genetic information is almost always going to be forbidden.  As you may have further guessed by my general tone, "genetic information" is broadly defined and includes anything from actual genetic/DNA tests to basic family medical history.  [Enter all the problems]. 

Under the Affordable Care Act, Employers can offer "Wellness Programs" to employees and their dependents (think: spouses and kids).  The problem is how do you operate a functional "Wellness Program" when you cannot ask the employee or her dependents about their medical history?  Its like organizing a math class without knowing anyone's aptitude or experience.  In other words, it doesn't really work.  Hence the need for some EEOC guidance. 

EEOC's Proposed Rule on Wellness Programs

In late October, the EEOC decided to step up its game and issued a proposed rule that reconciles GINA with the ACA Wellness Programs. Here is a summary of the key components (keep in mind this is still a PROPOSED RULE so not yet the law):

1-   Employers can offer "inducements" to employees and their spouses to get information about current and past medical conditions relevant to participation in an Employer Wellness Program.  This essentially creates a (new) narrow exception to GINA's rule against inquiring about employee (and their dependent's) genetic information. 

2-   Only spouses who are enrolled in the employer's group health plan qualify for these inducements and any information sought from the spouse (or employee for that matter) must be part of a health risk assessment (HRA) associated with the group health plan.  

3-   A spouse's consent to provide such information is only valid if they give "prior, knowing, voluntary, written authorization.  That's crazy law language for get the spouse to sign a piece of paper before giving away their health secrets and before having multiple glasses of wine.  

4-   "Inducements" offered can be in the form of money or can be something more tangible like vacation days, gift cards, etc... HOWEVER, the total inducement an Employer can offer cannot exceed 30% of the cost of the health plan in which the employee and his/her dependents are enrolled.  ALSO, the maximum portion of an inducement offered to the employee alone cannot exceed 30% of the total cost of self-only coverage.  IN PRACTICE, this means the employee and his/her spouse have to split any inducements.  I know this makes ZERO sense so here is an example:

Mark and Robert are married and both have health insurance through Mark's Employer.  Their family health plan coverage costs about $14,000 and includes a wellness program.   Because the maximum inducement is 30% of the total health plan ($14,000) Employer can only induce Mark and Robert with something worth $4,200. 

This $4,200 inducement is split between Mark and Robert.  Mark's "self-only" coverage is worth about $6,000.  Any inducement offered for Mark's info can only be worth 30% of the self-only value so no more than $1,800.  Because the total inducement is split, any inducement offered to Robert as the spouse can only be $4,200 minus $1,800 so $2,400. 

5-   Because of confusion with HIPAAACA, and GINA the EEOC distinguishes "true genetic information" (think DNA/genetic tests) from basic medical history and medical exams (think cholesterol and blood pressure checks).  However, "medical history" is limited to current and past health status only. 

6-   As evidenced in my inducement example, "spouse" means "spouse" - gay or straight.  It doesn't, however, include children.  

In addition to the above, the EEOC's proposed rule reiterates the importance of confidentiality and further states that confidentiality cannot be waived as a condition for receiving an incentive or participating in a wellness program.  Employers also cannot require authorization to sell genetic information as a condition of the wellness program or its incentives.  

Who cares?

Employers should - especially their Benefits Managers.  Although the EEOC's proposed rule helps reconcile some of the conflicting requirements under GINA, the ACA, and HIPAA, some conflict still remains.  For example, inducements under HIPAA for tobacco cessation programs are capped at 50% with no allocation requirement among employee and spouse. With different inducement rules for similar programs floating around in the legal netherworld, HR Benefit Partners are bound to have some extra work heading their way.  

The official comment period for this EEOC proposed rule ends on December 29, 2015 so we'll be watching closely in 2016 for the final rule. 

Let's talk about Religious Accommodation...

Courtesy of the Church of the Flying Spaghetti Monster 

Courtesy of the Church of the Flying Spaghetti Monster 

In a recent announcement, the EEOC stated that religious accommodation is the #1 litigation trend of 2015.   This may have a lot to do with the Supreme Court's decision in EEOC v. Abercrombie & Fitch Stores, Inc. and the recent DMV smackdown given by Pastafarians, but it may also have to do with the changing religious atmosphere in the U.S.   As the U.S. learns to deal with Worldwide problems like the Syrian refugee crisis, we can only expect religious diversity to continue to grow which makes now a great time to review religious accommodation in the workplace. 

Employers with 15 or more employees, are forbidden from discriminating against employees and applicants on the basis of one's religious beliefs. This rule comes from the infamous federal statute called Title VII . Unlike the other protected classes in Title VII (race, color, national origin, & sex), religion also carries a requirement of accommodation.  (This should sound familiar because it is a similar requirement for "reasonable accommodation" under the ADA.)  In other words, employers must accommodate employee's and applicant's religious beliefs so long as the accommodation is reasonable and does not create an undue hardship.  

This all sounds great on paper until you read the various attempts by the Supreme Court (here, here, here, here, and here)  to define "religion" and quickly realize that there actually isn't a definition at all.  Instead we have some vague guidance that "religion" is virtually anything so long as the followers have a mutual "sincere and meaningful" belief that occupies their lives.  Why is the above problematic?  Because religion can literally be anything and now it doesn't even have to be known.

Flash back to 2013-2014:  Young woman applies for the highly coveted job on the Abercrombie & Fitch sales floor spraying perfume on overly-priced clothes that look like they have already been worn 10,000 times.  Young woman shows up for interview in a headscarf that is common for Muslim women.  Interview goes great and Abercrombie interviewer gives her top marks but expresses concern to supervisor that the headscarf violates Abercrombie's "Look Policy" for employees.  Supervisor thinks the headscarf will be worn by applicant due to her religion and agrees that it violates the "Look Policy" which bans "caps."  Applicant is denied employment.  Applicant files EEOC charge.  EEOC sues Abercrombie. 

Flash forward to June 2015:  The Supreme Court says in the Abercrombie decision that an employer need not be put on notice of an employee or applicant's religion in order to discriminate on the basis of religion.  In other words, if you assume an employee or applicant is of a certain religion based on arbitrary facts you've gathered with your super-employer senses, you may still be discriminating against that employee or applicant even if that person's religion is not 100% known. This is what we in the law biz call a BFD.  

Title VII has always protected employees and applicants from an employer's discriminatory motives  but now "motive" is independent of "knowledge."  This puts employers in a peculiar position because you can't ask applicants about their religion but now you can be sued based on motivating assumptions that may or may not be true.  For Abercrombie, they argued there was no discrimination because the applicant's religion was never actually known.  However, to the court merely suspecting one's religion and then basing a hiring decision on that suspicion is enough to show discrimination.   Enter a new slippery slope. 

For the record, I am a supporter of Title VII.  It can be a huge thorn in the side of employers but it means well.  However, I also recognize that most people are not psychic and I question whether it is fair to assume someone discriminated without actual knowledge.  Furthermore, what concerns me way more than any of the above is the Abercrombie "Look Policy."  Had they not had some bogus policy dictating employee be "cap"-free, we would't be having this debate and the applicant in the Abercrombie case would be doing just fine in the dark, dark world of an Abercrombie store.  I'll save my blog post on dress codes for another day. 

PS:  Curious about the photo accommodating this blog?  Its a real thing...

The more you know.



Haters gonna Hate (hate, hate, hate, hate): LGBT Discrimination in the Workplace


A lot of people are talking about LGBT discrimination.  Yesterday, Texans in Houston voted to repeal a local LGBT anti-discrimination law which was considered by most to be a major blow to the LGBT community.  Interestingly enough, based on a recent EEOC List of "Top 10 Litigation Trends," LGBT discrimination ranked #4 with over 1100 EEOC charges filed in 2014 and over 600 charges in the first half of 2015.  Despite having the right to be lawfully married in all 50 states, there are still no federal anti-discrimination laws that apply to LGBT discrimination in the workplace.  In fact, LGBT is not even a federally protected class as far as employment discrimination is concerned.   So how can LGBT discrimination rank #4 with the EEOC's hot topics list? Answer: Title VII.   DUN. DUN. DUN.

Title VII & LGBT Discrimination 

Employers who fall under Title VII (meaning they have 15 or more employees), cannot discriminate based on sexual orientation.  Yes, yes, I realize Title VII only protects race, color, national origin, sex, and religion but most courts have held that discrimination based on sexual orientation is the same as discrimination based on sex.  Here are a few examples of how this has played out in the courts:

EX 1: Transgender man transfers jobs for family reasons.  Upon being transferred, he informs supervisor that he will be transitioning soon and will need to change his name and sex on all employment forms.  Suddenly a budget is cut and the job is "eliminated."  Transgender employee files EEOC complaint.  EEOC (in eventual appeal) holds that transgender employee can sue based on sex discrimination under Title VII.  Macy v. Department of Justice, EEOC Appeal No. 0120120821 (April 20, 2012).

EX 2:  Homosexual man is told his "gay stuff" is "distracting" to the workforce.  He is later denied a permanent position with the company.  EEOC (in another appeal) holds that he can sue under Title VII sex discrimination theory because being discriminated against for being gay is the same as sex discrimination for purposes of Title VII.  David Baldwin v. Dep't of Transportation, EEOC Appeal No. 0120133080 (July 15, 2015).

EX 3: Transgender employee denied job opportunity because she did not conform to social stereotypes about sex during the transitioning process.  EEOC filed suit on plaintiff's behalf (still pending but based on Title VII and sex discrimination).  EEOC v. R.G. & G.R. Harris Funeral Homes Inc. (E.D. Mich. Civ. No. 2:14-cv-13710-SFC-DRG filed Sept. 25, 2014).

I think you get the point, but more examples can be found here. 

What about North Carolina?

North Carolina has few employment laws and LGBT protections are unfortunately not one of them.  There is a public policy in NC that employers with 15 or more employees cannot discriminate based on sex so you may be able to get into court based on a Wrongful Discharge Against Public Policy theory.  

Don't want to be a Hater? This is what you should do:

Employers should protect LGBT employees from discrimination in the same way they are supposed to protect other protected classes from discrimination.  Based on recent EEOC decisions, employers with 15 or more employees should go ahead and protect LGBT employees like they would any other protected class (meaning protection is pseudo-mandatory under Title VII for covered employers).  

This protection usually starts as an anti-discrimination policy in an employment handbook and ends with the employer enforcing this policy by actively investigating any claims of LGBT discrimination.  Do yourselves a favor and make the EEOC happy and revise your anti-discrimination policies to include LGBT employees.  If you want an extra credit gold star from the EEOC, consider offering support services for LGBT employees, especially transgender employees undergoing a formal transition.

For those of you that do not have an anti-discrimination policy in your handbook or a well-written reporting procedure, I encourage you to add both of these policies to your handbook.  If you do not have an employment handbook (GASP!),  I highly, highly, HIGHLY recommend you get one no matter how small your company and no matter how cool and fair you think you are. 


Interested in developing an Employment Handbook?  We've got you covered.