New Rules on Sex Bias for Federal Contractors

Q.  As a federal contractor, do I need to worry about complying with any special rules with respect to sex discrimination?

A.  The Office of Federal Contract Compliance Programs (OFCCP) recently revised rules on sex discrimination, which took effect on August 15.  The revised rules require covered employers to take certain steps to make sure that sex discrimination does not occur in the workplace.  Given these revisions, we expect that the OFCCP will focus on sex discrimination issues in future compliance audits.

For details on the revisions to the OFCCP rules and what your company should do to maintain compliance, please check out this Pepper@Work Alert from my colleague, Lee Tankle.

Is Obesity an ADA Disability?

Q: We have an employee who is unable to perform some of his essential job requirements because of physical limitations due to his weight.  Do we need to provide him with an accommodation?

 A: Given that almost one-third of the U.S. population is considered obese, many employers are struggling with whether to provide accommodations for employees whose weight prohibits them from performing all of their job functions. Whether obesity falls under the Americans with Disabilities Act is a hotly debated issue. Employers must juggle the cost and resources of providing accommodations with the desire to create a comfortable environment for all employees and avoid discrimination claims.

Generally, non-morbid obesity is not considered a disability under the ADA because it does not substantially limit an employee’s major life activity.  Although the Equal Employment Opportunity Commission views morbid obesity as protected under the ADA, some courts have held that morbid obesity alone, in the absence of an underlying physiological condition, is not protected under the ADA.

Nevertheless, the EEOC has brought several lawsuits in recent years on behalf morbidly obese individuals,. In Louisiana, for example, an employer paid $125,000 to settle a discrimination suit brought by the EEOC on behalf of an employee who was terminated due to her severe obesity.  In another case, a forklift operator in Texas requested a seat belt extender in order to perform his job safely.  After refusing the accommodation, and later firing the employee, the EEOC brought a discrimination suit on the employee’s behalf. The employer later settled for $55,000.

In addition to ADA considerations, companies must also consider individual state laws, which may prohibit discrimination based on obesity or require employers to make accommodations for obese employees to enable them to perform the essential functions of their job. For example, clinically-diagnosed obesity is considered to be a disability under the New York State Human Rights Law.  Likewise, New Jersey courts have found that actual or perceived morbid obesity is a protected disability under the New Jersey Law Against Discrimination.

Employers also need to be mindful of protecting employees from harassment based on their weight. According to a recent study, obese employees are 100 times more likely to experience workplace discrimination. Approximately 43% of overweight employees reported weight-related bias from co-workers and supervisors.  Derogatory comments or “jokes” about an employee’s weight may form the basis for an obesity-related harassment or hostile work environment claim.

The safest path to avoid liability is to treat requests for accommodations from employees whose morbid obesity prohibits them from performing their essential job functions the same as a request for an accommodation from an employee with another form of disability. The EEOC’s position that morbid obesity is a disability, and state laws that draw the same conclusion, mean that employers who wish to challenge morbid obesity as a covered disability face a difficult and expensive battle.

Where the accommodation is relatively easy to grant – such as a seatbelt extender – employers are well advised to provide the accommodation without engaging in an analysis of whether the employee’s weight rises to the level of a disability. If the requested accommodation would impose a more serious hardship on the employer, however, and the employer wishes to challenge whether the obese employee is disabled, the employer should assess the whether the specific employee is rendered disabled by his or her morbid obesity, i.e., whether he or she is impaired in a major life activity (such as sleeping, walking, etc.).  The employer may request a health care certification from the employee’s physician to evaluate whether the employee is disabled and to obtain specific information about the employee’s limitations.

Keep in mind that morbidly obese employees often suffer from other medical conditions. The employer therefore needs to assess the effect of the totality of the employee’s medical condition to determine whether that employee is disabled and precisely what restrictions the disability places on the employee’s ability to perform his or her job duties.  If this analysis leads to the conclusion that the employee is disabled, then the employer is required to engage in the interactive process with the employee to determine whether there is a reasonable accommodation that would enable the employee to perform the essential functions of his or her job without causing an undue hardship to the employer.

Regardless of whether obesity is considered to be a disability, employers should train employees not to make derogatory comments or jokes about a coworker’s weight. Employers would be wise to take precautions to ensure that the workplace is free from harassment based on all disabilities, including morbid obesity.


– Matthew V. DelDuca, Tracey E. Diamond and Kavida Gobalasingham

Equal Bathroom Access for All

Q.  One of our employees complained that she is uncomfortable sharing the bathroom with an employee who is in transition. What are we required to do to provide a comfortable work environment for everyone?

Many employers are having discussions about equal employment opportunities for transgender employees and what steps are necessary to make the work environment comfortable for everyone.

Approximately 80% of transgender employees have reported experiencing some form of discrimination in the workplace. While there is no federal law that prohibits discrimination based on sexual orientation or gender identity, numerous courts have provided such protections based on Title VII’s prohibition against discrimination “because of sex.”  In addition, 18 states and the District of Columbia, as well as multiple cities and counties across the country, have instituted laws expressly prohibiting transgender discrimination. The Department of Labor (DOL) also has jumped on this issue, updating its regulations to prohibit certain federal contractors from discriminating against employees on the basis of, among other things, gender identity and transgender status.

The issue of use of bathrooms in public schools also is in the forefront, as more than a dozen states have sued the federal government over its requirement that public schools allow transgender students to use restrooms conforming to their gender identity. One such case is now pending before the United States Supreme Court.

Given the state of the law, what kind of bathroom accommodations are employers required to provide for transgender employees?

The EEOC has brought several lawsuits on behalf of transgender employees, claiming that the denial of access to a restroom used by other employees of the same gender is sex discrimination under Title VII. The Occupational Safety and Health Administration published a guide that stated all employees, including transgender employees, should have access to restrooms that match their gender identity.  For example, an employee who was born a male but is transitioning to a female and identifies as a female, should have access to a female restroom.

So, what to do if a non-transgender employee complains? At least one state appeals court has ruled that it is not the job of the transgender person to do the accommodating.  Rather than requiring the transgender employee to use a bathroom for the gender that the individual does not identify with, employers need to offer an alternative to the complaining employee.

Employers have resolved this issue in a multitude of ways. Some employers have  designated a unisex restroom with a single stall for use by all employees.  Other employers with a limited workspace layout have installed flaps to cover the gap between bathroom stall doors and doorframes, and extended the stall doors from the ceiling to the floor in multiple-occupant restrooms. Also, some employers have installed locks on single-occupant stalls to create multiple-occupant, gender-neutral restrooms.

Whatever plan your company decides to put in place to provide comfortable restroom accommodations for all employees, keep this short list of “don’ts” in mind:

1.  Employers are not allowed to ask employees to provide any medical or legal documentation of their gender identity for the purpose of providing access to restrooms.

2.  No employee should be required to use a segregated restroom because of their transgender status.

3.  Employers must make reasonable accommodations to provide a sanitary restroom that is a reasonable distance or travel time from the employee’s worksite, regardless of the employee’s transgender status.

– Tracey E. Diamond & LaVelle King   

Pokémon Play or Get Back to Work?

Q.  I have been told that Pokémon Go is a lot of fun, but it seems like my employees are spending more time trying to catch fictional monsters than getting their work done. How do I keep this craze in check?

Yours is not the only workplace to succumb to the Pokémon Go craze! In a recent poll by Forbes and Apester, 69 percent of the employees surveyed admitted to playing Pokémon Go at work. Even more disturbing, more than one-third of the employees confessed to spending more than an hour of the workday playing the game.

It is one thing to use the lunch break for Pokémon Go play, but when workers are spending more time wandering the office floors catching Pikachus than getting their work done, what can you do?

Whether you decide to limit gaming to breaks and other non-work times, or ban it from the workplace altogether, make sure that you apply these rules to all employees, regardless of protected class. If there are legitimate business reasons for restricting Pokémon Go and other distractions more broadly in certain areas of the workplace – such as on factory floors – be sure to explain the reason for treating certain categories of workers differently (i.e., health and safety).

Once you have a decided on the appropriate policy, consider how to communicate it to employees in a positive manner, so that they understand the importance of minimizing distractions and increasing productivity. Train your managers so that the message is conveyed clearly throughout the company, and to ensure that discipline for wandering the building searching for Charmanders is applied consistently.

If your company provides employees with company-owned smartphones, consider installing firewalls to ban the application. Allowing employees to play Pokemon Go and other games on company-issued mobile devices could open up the company’s systems to data security and virus issues.

If your business is open to the public, consider whether you need to ward off players who are loitering rather than visiting for business reasons.

While Pokémon Go is the latest distraction, the key to keeping your workers from engaging in play at work starts with motivation. Looks for ways to keep your employees engaged in the project at hand by making sure they understand the endgame and buy into their role in the process.  And consider the fact that this newest game app has its upsides.  It gets employees out of their seats and encourages them to interact in a positive way towards a common goal.  Hmm, that sounds a lot like work!

-Tracey E. Diamond