Hot Topics - August 25, 2008

New EEOC Guidelines for Religious Bias

In response to the number of religious discrimination charges having doubled in the last 15 years, the Equal Employment Opportunity Commission (EEOC) has adopted a new compliance manual to summarize Title VII case law and the EEOC's views on religious discrimination matters. Topics discussed in the manual include the definition of religion, the employer's obligations to accommodate religious beliefs and practice, disparate treatment and harassment in the workplace.

The EEOC definition of religion is very broad. So long as a belief is religious in an individual's own personal setting and occupies in the life of its possessor a place parallel to that filled by God, it is protected. Social and political philosophies are not protected religious beliefs.

The EEOC interprets Title VII to require employers to provide a reasonable accommodation when an employee puts the employer on notice of a religious need. Such needs typically arise when an employee's religious observation or practice conflict with specific tasks or requirements of a job. The employer's duty is then to provide an exception or adjustment to the employment practice so that the employee can both observe their religion and perform his or her job. The EEOC provides some examples of "Employer Best Practices" in this area in a companion publication to the compliance manual.

The compliance manual also addresses religious harassment. Suggestions to employers to avoid religious harassment claims are also laid out in the "Employer Best Practices" publication.

Both the compliance manual and the Employer Best Practices may be accessed on the EEOC's website at http://eeoc.gov/policy/docs/religion.html. and http://eeoc.gov/policy/docs/best_practices_religion.html.

Comments about Head Scarf a Problem for Employer

In a decision from a federal court in Washington state, a restaurant owner's comments about an employee's head scarf prevented the dismissal of a race and religion claim against the restaurant. District Court Judge Edward F. Shea said the EEOC had provided direct evidence that the owner's refusal to let the employee work as a waitress potentially violated Title VII of the Civil Rights Act of 1964. Consequently, the employer's motion to dismiss the case was denied. (EEOC v. Starlight LLC, E.D. Wash., No. CV-06-3075-EFS, 8/4/08).

Employee Angela Harper was an African American Muslim who wore a head scarf as part of her religion while working in the restaurant. After working as a dishwasher, she asked if she could work as a waitress and was allowed to do so on the breakfast and lunch shifts but was not allowed to do so on the more lucrative dinner and cocktail shifts at the Starlight Restaurant. During 2004 and 2005 the restaurant hired eight employees, all of them white, to work on the dinner and cocktail shifts. When a dining room manager recommended Harper for the cocktail server position in late 2005, the owner allegedly told the manager that she wanted "hot white girls" for the position. When the owner eventually offered Harper a cocktail server position, Judge Shea said Harper considered the offer insincere and resigned.

On behalf of the employee Harper, the EEOC entered evidence that the owner made comments about Harper's dress, including on one occasion "[s]o what's the deal with the thing on your head?" On another occasion the owner allegedly asked Harper if she could "wear a fancier headdress" and said she did not understand "the whole Muslim thing." Judge Shea wrote that if a jury were to believe the descriptions of the owner's statements, the EEOC's evidence would be "more than sufficient" to show unlawful discrimination based upon Harper's religion and race.

Employers Must Accommodate Obvious Disabilities

An employee with an obvious disability must be accommodated by his or her employer, even if the employee has not come forward to request an accommodation, said the Second Circuit Court of Appeals in New York. Brady v. Wal-Mart Stores, Inc.(No. 06-5486-cv (2d Cir. July 2, 2008).

Employee Patrick Brady, who had cerebral palsy, was hired to work in a pharmacy department of a Wal-Mart store. Brady had indicated on his application that he had the ability to perform the essential functions of the job with or without accommodations. Brady's manager was dissatisfied with his performance, however, and the company reassigned him to collecting shopping carts in the store parking lot and later to the food department. Brady quit and filed suit.

Brady claimed that the employer discriminated on the basis of his disability and failed to accommodate him. The jury returned a verdict favorable to Brady on both counts.

In affirming the lower court decision, the Court of Appeals noted that the employee exhibited "noticeably slower walking, walking with a shuffle and limp, recognizably slower and quieter speech, not looking directly at people when talking to them, weaker vision, and a poor sense of direction." This and other evidence was sufficient to conclude that the employee was disabled or "perceived to be disabled." The court dismissed the employer's argument that the failure to accommodate claim should fail because the employee never requested an accommodation and in fact testified that he did not think he needed one. The court acknowledged that under the ADA the rule is that the employee has to request an accommodation, but that it is an exception to the rule when the employee's disability is obvious. So the jury was within reason to conclude that since the employee had an obvious disability, the company violated the ADA by not proactively discussing with the employee the accommodation he may have needed.

Question of the Month - September 2008

Should I Always Contest Unemployment Claims?

As a rule, employers contest unemployment claims because they want to keep their unemployment experience rating low and pay as little into the state unemployment system as possible. Sometimes, however, there are good reasons not to contest a former employee's unemployment claim, even if paying benefits would increase the employer's cost. Employers should consider several factors when determining whether to fight an unemployment claim.

First, does the employer have a winnable case? A case in winnable where the employer can show that the former employee was at fault for the separation. Unemployment cases are time-consuming to prepare and defend. Employers may choose not to devote time and resources to a weak case.

Second, is a hearing likely to encourage the former employee to pursue other claims, such as discrimination or wage hour complaints? Some former employees that would have otherwise moved on from their past employer respond to an unemployment hearing by filing complaints with other agencies. Listening to the testimony of their employer at the unemployment hearing can upset them or remind them of legal issues they want to pursue.

Third, will the unemployment hearing elicit facts that could be harmful to the employer? Testimony given at a hearing is discoverable and can be used by the former employee in other legal proceedings. If a separation is particularly complex or would invite the discussion of information the employer does not want to disclose, contesting unemployment may not be advisable.

Fourth, does the employee have a release agreement prohibiting the employer from challenging an unemployment claim? Employers sometimes agree not to challenge unemployment claims in an effort to bring closure to the employment relationship. This is especially likely where they have offered severance pay to a former employee in exchange for a release of claims. In such a situation, the employer should not challenge the former employee's claim at a hearing. Because employers are required by law to respond to Department of Labor and Employment inquiries, the employer should still respond truthfully to the initial request for information.

Employers should continue to contest unemployment claims to reduce their costs. Employers will benefit, however, from analyzing each unemployment claim on a case by case basis and determining whether the benefits outweigh the risks. Employers should also remember that it is not just their experience rating that increases unemployment costs. Factors beyond the employer's control contribute to this as well. Unemployment costs are expected to increase in the second half of 2008 due to President Bush recently extending the time period former employees may collect benefits and the expectation that employers may layoff or terminate more employees in response to high energy prices and a weak economy.