Circuit Split on Sexual Orientation Discrimination Continues With New Second Circuit Opinion

Q.  Is sexual orientation a protected category under federal discrimination laws?

A.  It depends on what Circuit you are located in.  On February 26, the U.S. Court of Appeals for the Second Circuit (which exercises federal jurisdiction in Connecticut, New York, and Vermont), joined the Seventh Circuit (with jurisdiction over Illinois, Indiana and Wisconsin) in holding that sexual orientation discrimination is prohibited by Title VII of the Civil Rights Act of 1964.  Now there are two circuit court decisions ruling that sexual orientation is protected under Title VII.  These decisions conflict with at least one decision, of the Eleventh Circuit (with jurisdiction over Alabama, Florida and Georgia).

Many states and some cities and other municipalities have enacted laws that expressly and directly prohibit sexual orientation discrimination. There is, however, no federal law that directly outlaws this type of discrimination.  While we continue to wait for  Congress to act or the Supreme Court to take up a case for review, employers should consider treating sexual orientation as a protected class when making employment decisions and drafting employment policies.

For more details on this issue, click here.

Susan K. Lessack


Job Ads Distributed to Younger Recruits May Be Discriminatory

Q.  My company wants to target on-line recruitment ads for certain jobs to specific age groups. Is that legal?

A.  In most circumstances, the answer is no. Unless an employee’s age is a bona fide occupational qualification (i.e., hiring an applicant under a certain age is reasonably related to an essential operation of the business), a policy targeting recruits under an age limit likely will be considered age discrimination.

The Age Discrimination in Employment Act (ADEA) states that, generally, it is unlawful for employment notices or advertisements to include age preferences, limitations, or specifications.  Thus, advertisements that state that the company is seeking applicants who are “age 25 to 35” or “recent college graduates,” for example, violate the ADEA. Employers also may not base hiring decisions on stereotypes about a person because of his or her age.  Likewise, an employer may not use an employment test that excludes older applicants unless the test is based on reasonable factors other than age.

But, what if, instead of soliciting a certain age group in the text of the advertisement, the company uses technology, such as micro-targeting, to limit the population receiving the job ad? In a recent class action case filed in Northern California, a group of plaintiffs claimed that such a practice also violated ADEA. The plaintiffs sued several large companies and a defendant class of “hundreds of major American employers and employment agencies,” claiming that the companies used Facebook’s ad platform to routinely exclude older workers from receiving their recruiting ads on Facebook, “thus denying older workers job opportunities.”  The lawsuit seeks to certify a class of older applicants who were excluded from receiving employment ads, and seeks injunctive and monetary relief for what it calls a pattern and practice of age discrimination.

The class action is in the early stages, and it will be interesting to see whether the court agrees with plaintiffs’ argument that using technology to limit the pool of applicants to certain age groups is discriminatory.  In the meantime, employers should take heed and avoid targeting younger recruits, both on the face of the job ads and by limiting the population receiving them, absent a bona fide occupational reason to do so.

–Tracey E. Diamond


Q.  An employee has requested that the company give her an accommodation due to a religious practice I have never heard of. Do we have to comply with this request?

A.  Title VII of the Civil Rights Act of 1964 protects employees and applicants against religious discrimination and requires that an employer accommodate an individual’s religious practices unless doing so would create an undue hardship on the employer. Typically, employers are asked to accommodate more mainstream religions by way of scheduling accommodations or dress. However, lesser known religious practices also must be accommodated if the employee can establish a sincerely-held belief in the religious practice and that the accommodation would not impose an undue hardship on the company.

Recently, the United States District Court for Western District of Pennsylvania, as well as the Court of Appeals for the Fourth Circuit, have addressed accommodating the religious practice known as the “mark of the devil” or the “mark of the beast.” In both instances, the Courts held that the employee’s allegations were sufficient to establish a sincerely- held belief in the religious practice.

In Kaite v. Altoona Student Transp., Inc., the employee worked as a school bus driver and refused to have fingerprints taken because she believed that fingerprinting was the “mark of the devil” and if she submitted to it she would not get into heaven.  The employee asked for an accommodation in the form of a different type of background check that did not include fingerprinting.  The employer refused and terminated the employee’s employment for failing to comply with the State’s background check law.

The United States District Court for the Western District of Pennsylvania rejected the employer’s attempt to dismiss the case, holding that, at least at the motion to dismiss stage, the employee had sufficiently alleged a prima facie case of religious discrimination.

To establish a prima face case, the employee must show: (1) she holds a sincere religious belief that conflicts with a job requirement; (2) she informed her employer of the conflict; and (3) she was disciplined for failing to comply with the conflicting requirement.  Once the employee establishes a prima facie case, the employer then has the burden to prove either that it reasonably accommodated the plaintiff or that it was unable to do so without “undue hardship.”  Here, the employee stated that (i) she had a sincere religious belief that being fingerprinted constituted the “mark of the devil” and would prevent her from going to heaven; (ii) this belief conflicted with her job requirement that she undergo a background check; (iii) the employer was aware of her sincerely-held religious belief; and (iv) the employee subsequently was terminated for failing to comply with the fingerprinting requirement. This was enough to overcome a motion to dismiss.

Similarly, in EEOC v. Consol Energy, Inc., the employer implemented a biometric hand-scanner system for the purpose of requiring employees to check in and out of work.  The employee refused to use the a scanner because of his religious belief that the use of the scanner was the “mark of the beast.”  The employer refused to accommodate the employee’s religious belief, although the employer accommodated others who could not use the hand scanner for non-religious purposes.  The EEOC brought suit on the employee’s behalf, which went to trial.  The jury returned a verdict for the employee totaling $586,860.00 ($150,000 in compensatory damages and $436,860.74 in front and back pay and lost benefits).  The Fourth Circuit Court of Appeals affirmed the District Court’s ruling denying the employer’s motion for a new trial and motion for judgment.

Both of the cases illustrate an employer’s need to be tolerant in accommodating all religious practices, not only those that are considered more mainstream. Employers should remember that demonstrating a sincerely-held belief is typically a “low bar,” and most employees likely will be able to establish this element of their claim.

Moreover, these cases serve as a reminder that, when making determinations regarding accommodating religious practices, the company should:

  • Review whether it has made exceptions for non-religious reasons; and
  • Consider the actual hardship to the employer in accommodating the employee’s request.

Kali T. Wellington-James

EEOC’s Wellness Program Rules in Doubt

Q.  Are the EEOC’s Wellness Program rules still valid?

A.  The ADA and the Genetic Information Nondiscrimination Act both permit an employer to seek medical information as part of a wellness program if the employee participates voluntarily.  However, neither statute defines the term “voluntary.”

Effective January 2017, the EEOC issued rules allowing incentives of up to 30 percent of the cost of  coverage for employees participating in a health-contingent wellness program, in which the participant receives an award for satisfying a health-related factor.  These rules aligned the EEOC’s position with the regulations under the  Health Insurance Portability and Accountability Act (HIPAA), such that employers were able to rely on the 30 percent incentive limit to comply with HIPAA, the ADA and GINA.

In October 2016, AARP filed a lawsuit against the EEOC, arguing that the EEOC’s 30 percent incentive rendered wellness programs involuntary because employees would feel coerced to participate in wellness programs and to disclose medical information to avoid losing the benefit of the incentive.  The court concluded that the EEOC did not offer a reasoned explanation for its decision to construe the term “voluntary” to permit employers to offer incentives of up to 30 percent for participation in wellness programs.

For more information about this important case, please click here.


Uber Sex Harassment Scandal Is Sobering Reminder of the Costs of Ignoring Complaints

Uber made headlines last week when Susan Fowler, a former engineer, claimed that she was harassed by her direct supervisor and her complaints were ignored by the human resources department. Uber took another hit a few days later when a recently-hired executive resigned amidst allegations that he had harassed employees at his former company.

How can you prevent your company from becoming the next media story?

There are several takeaways from the Uber incidents:

  1.  Distribute a written policy prohibiting harassment based on sex and other protected categories. The policy should clearly explain the legal definition of harassment, provide examples of conduct deemed offensive, provide alternative avenues for an employee to lodge a complaint, explain the investigation process, and promise absolute protection against retaliation for good faith complaints of harassment.
  2. Provide harassment prevention training at regular intervals.  Not only is such     training crucial to ensuring that employees understand their rights and obligations, but it also may provide an affirmative defense if an employee sues after failing to make an internal complaint.
  3. Train supervisors on their responsibilities to lead by example.  Supervisors need to be taught how to recognize harassment and what to do if they witness or receive a complaint about inappropriate conduct in the workplace.
  4. Take all complaints of harassment seriously and perform a prompt and thorough investigation.  Analyze emails and text messages as part of your investigation.  Ms. Fowler said that the multiple emails that she forwarded to HR were ignored.  Electronic communications can assist HR departments in determining what really happened in what sometimes can be a “he said/she said” situation.
  5. Take corrective action if appropriate, even if it is the first offense. According to Ms. Fowler, Uber didn’t take her complaint seriously because her supervisor was a “high performer.” Ensure that your evaluation metrics take into account professional behavior in addition to job performance.
  6. Never forget that diversity matters.  Ms. Fowler emphasized the low number of women on her team and in the company in general.  Promoting diversity based on gender, race, ethnicity and other categories helps to ensure that all voices are heard.
  7. Take a hard look at your hiring practices.  When performing background and reference checks, dig into information about previous claims against the prospective employee for workplace misconduct.  Keep in mind, however, that certain federal and state laws may govern your company’s ability to gather this type of information.
  8. Finally, never forget the power of the Internet.  Ms. Fowler’s story gained immediate national attention after she published a detailed essay on her personal blog.  While the Internet is a powerful place to promote your brand, this is not the sort of publicity most companies would like to see.

– Tracey E. Diamond