MARCH DIVERSITY, EQUITY, AND INCLUSION UPDATE
MARCH DIVERSITY, EQUITY, AND INCLUSION UPDATE
March 1st, 2021
Matt Glowacki, Diversity & Inclusion Chair
Jefferson County HRMA
U.S. House of Representatives Passes Equality Act
On Feb. 25, the U.S. House of Representatives passed the Equality Act, a bill that proposes to amend federal civil rights law to prohibit discrimination against LGBTQ individuals in employment, housing and public schools, among other areas. The U.S. Supreme Court already has interpreted Title VII of the Civil Rights Act of 1964 to prohibit discrimination based on sexual orientation and gender identity, but the Equality Act would enshrine the prohibition in the statutory language and provide broader protections.
In a letter to Rep. David Cicilline, D-R.I., the Society for Human Resource Management (SHRM) said the organization and its "more than 300,000 HR professional and business executive members strongly support policy that bars workplace discrimination based on sexual orientation or gender identity, as envisioned in H.R. 5, the Equality Act of 2021." The letter noted that SHRM was the first employer association in 2008 to support the Employment Non-Discrimination Act (ENDA), prior legislation prohibiting discrimination based on sexual orientation or gender identity that "included important guidance for both employers and employees." SHRM said the Equality Act "should be strengthened with previous provisions of the ENDA that provide much needed clarity, especially for small and mid-sized businesses—those most negatively impacted by the pandemic."
The vote in the House was close, 224 to 206, with three Republicans joining all Democrats in favor of the legislation. The legislation would provide protections for LGBTQ individuals not only in employment, but also education, housing, credit, jury service and other areas. President Joe Biden has called the bill "a critical step toward ensuring that America lives up to our foundational values of equality and freedom for all." But some religious denominations oppose the legislation, saying that its lack of religious exemptions challenges religious liberty.
Uncertain Future in the Senate
The bill faces an uphill battle in the Senate, which is divided 50-50 among Democrats and Republicans, with Vice President Kamala Harris having the tie-breaking vote. The bill would need 60 votes to advance in the Senate, unless the Democrats take the controversial step of eliminating the filibuster. If the filibuster were eliminated, the bill could pass with a simple majority.
Biden's Support Emphasized
"We are really excited to have the incredible support of President Biden and his commitment to make the Equality Act the law of the land," said Cicilline, a co-sponsor of the Equality Act. "Every American deserves respect and dignity, and it's important that the Equality Act become law because it will once and for all ensure that LGBTQ Americans can live lives free of discrimination."
Public Accommodations Would Be Affected
The Equality Act would affect private businesses open to the public—public accommodations—like retail stores such as flower shops and bakeries that have been at the center of discrimination court cases. For example, the Supreme Court ruled that a baker did not have to provide a cake for a same-sex wedding. Supporters of the bill say it would cement protections that could otherwise be left open to interpretation.
Federal Anti-Bias Law Protects LGBTQ Workers
The Supreme Court ruled last year that Title VII shields workers from discrimination based on sexual orientation and gender identity. "An individual's homosexuality or transgender status is not relevant to employment decisions," wrote Justice Neil Gorsuch for the court. "That's because it is impossible to discriminate against a person for being homosexual or transgender without discriminating against that individual based on sex."
House passes Equality Act, aiming to codify LGBTQ workplace protections
Legislation solidifying Bostock could prevent misinterpretations of the case law and pave the way for EEOC guidance, according to one expert.
The U.S. House of Representatives voted to pass the Equality Act (H.R. 5) Feb. 25, which expands civil rights for LGBTQ individuals by prohibiting discrimination in areas including employment, education, federal funding, public accommodations and facilities, and housing. The bill will be sent to the Senate for a vote.
The bill aims to resolve one of the highest-profile debates in employment law in recent years: whether Title VII of the Civil Rights Act of 1964 prohibits discrimination against LGBTQ individuals in the workplace.
While the U.S. Supreme Court concluded last year in Bostock v. Clayton County that Title VII does confer such protections, legislation codifying that position would "ensure no future or contrary reinterpretations of Bostock's holding and pave a clear path for future U.S. Equal Employment Opportunity Commission (EEOC) guidance on questions the Court did not reach, such as the implications of its ruling on dress codes and single-sex facilities at worksites such as locker rooms and bathrooms," Nonnie L. Shivers, a shareholder at Ogletree Deakins, wrote for the firm.
Rep. David Cicilline (D-R.I.) and Sen. Jeff Merkley (D-OR) re-introduced the Equality Act Feb. 18. The bill was passed in the House in 2019 but was not given further consideration in the Senate, according to Cicilline's press release. The bill "defines and includes sex, sexual orientation, and gender identity among the prohibited categories of discrimination or segregation," according to the congressional summary. Under the Equality Act, the definition of public accommodations is expanded to include establishments that "provide (1) exhibitions, recreation, exercise, amusement, gatherings, or displays; (2) goods, services, or programs; and (3) transportation services." The bill has been controversial as some Republicans have suggested it infringes on legal protections for religious freedom.
President Joe Biden urged Congress to "swiftly pass" the Equality Act in a statement Feb. 19. The president's Jan. 20 executive order on combating gender and sexual orientation discrimination directed federal agencies to carry out the Supreme Court's Bostock decision that it's illegal to discriminate in the workplace based on sexual orientation or gender identity, and to "fully enforce Title VII."
The U.S. Chamber of Commerce sent a letter in support of the Equality Act to House members Feb. 25. A 2019 report from the U.S. Chamber of Commerce Foundation found that LGBT-inclusive companies experience increased revenue margins, lower employee turnover and attract quality talent, the letter noted.
If the Equality Act becomes law, EEOC will need to "immediately" enforce it in the workplace, Sarah Warbelow, legal director at The Human Rights Campaign (HRC) said during a press briefing Feb. 25.
"We know that there are commissioners on the EEOC who are taking this seriously," Warbelow explained, "and beginning the process of making sure that employers are informed of their obligations under the law, as well as communicating to workers what their rights are. Certainly, the Equality Act would support the EEOC and doing that work." The EEOC has held the stance for several years that Title VII prohibits discrimination based on gender identity. The agency continued to pursue claims on that basis, without the support of the Trump administration, which disagreed.
The Equality Act is supported by an "overwhelming 70% of bipartisan voters," HRC President Alphonso David said at the briefing. The legislation has also been endorsed by more than 350 major companies, including IBM, according to HRC. "The U.S. already faces a shortage of qualified and experienced talent and key technology growth areas, such as artificial intelligence and blockchain, quantum computing, cybersecurity, as well as healthcare," Carla Grant Pickens, global chief diversity and inclusion officer at IBM, said during the press briefing. "It is in the best interest of the country to ensure that all talented individuals have equal opportunity, and are able to pursue careers in these areas in these critical fields that we require talent." But strengthening inclusive work environments "goes beyond employment practices and protections," Pickens said. "It's time that civil rights protections be extended to LGBT+ individuals nationwide on a clear, consistent and comprehensive basis."
IBM is "pleased" the House passed the Equality Act, Pickens said in a later statement emailed to HR Dive. "We now urge the Senate to protect the rights of LGBT+ Americans, both in and outside the workplace," she said. "No one should have to hide who they are or fear bias, discrimination, or inequality in the workplace, or elsewhere."
Pregnancy Likely to Be Added to Short List of Required Employment Accommodation
Most federal and state employment discrimination laws prohibit any kind of adverse personnel action based upon any of the enumerated protected categories, e.g., race, sex, national origin, age, etc. Currently, only two federal discrimination laws go further and, not only prohibit discrimination, but also require covered employers to take affirmative steps to provide workers with reasonable accommodations. These two current protected categories are workers claiming a disability covered by the Amended Americans With Disabilities Act (“AADA”) and workers seeking an accommodation due to their religious beliefs.
Last week, the Pregnant Workers Fairness Act (“PWFA”) was reintroduced in Congress with bi-partisan support. Most commentators are predicting that this new employment requirement will pass with the current make-up of Congress and be signed into law by the new President.
If this occurs, then private sector employers covered by Title VII (15 or more employees) will be required to provide reasonable accommodations to pregnant workers and job applicants, unless the employer can prove that such a requested accommodation would impose “an undue hardship” on the employer’s ability to operate its business (the same standard applicable to requested disability and religious accommodations). This “undue hardship” burden of proof is often a difficult one for employers to meet.
The new proposed federal law would be enforced by the Equal Employment Opportunity Commission (“EEOC”), as well as through private lawsuits following exhaustion of the administrative process. Like current disability and religious accommodations, PWFA accommodations will likely need to be addressed on an individual, case-by-case basis through a documented “interactive process.” The EEOC will also likely, in time, publish a list of pregnancy accommodations it deems to be “reasonable.” Violations of the PWFA will likely expose employers to the same potential damages currently available under Title VII, i.e., lost pay and benefits, compensatory damages dependent upon the employer’s number of employees ($50,000 through $300,000) and attorneys’ fees.
Most employers are already cautious regarding their handling of requested accommodations from pregnant employees. This is, no doubt, because experience has proven that pregnant employees and returning veterans are probably the two most inherently sympathetic potential plaintiffs among the many protected groups under current employment discrimination laws. The PWFA, if enacted as anticipated, will provide pregnant employees with additional, significant leverage.
Doctor's note failed to prove worker's disability, court finds
The ADA's definition of a disability is broad, McAfee & Taft Attorney Elizabeth Bowersox wrote in a blog post about Tesone. Because of that broadness, employers are often left feeling confused and frustrated. "This case is a good reminder that to succeed on an ADA claim, an employee must have some actual evidence of a disability."
The ADA defines an individual with a disability as someone who has a physical or mental impairment that substantially limits one or more major life activity. This can include someone with a record of such an impairment and those regarded as having such an impairment.
Had the worker in Tesone been able to secure an expert witness to prove she fell into one of these categories, "the case could have come out differently," Bowersox wrote. "In this case, with the benefit of hindsight, Empire might have been better off terminating [the worker] directly after the unauthorized hotel stay. Employers should continue to request documentation when an employee claims a restriction and should continue to document performance problems for all employees."
When an employer provides documentation of a legitimate and nondiscriminatory reason for an adverse employment action, the employer can prevail if matters go to court. But, as Allison West, principal at Employment Practices Specialists, told attendees at the 2019 Society for Human Resource Management's Employment Law and Legislative Conference, that documentation has to be done right. She suggested manager training on the most common employer documentation mistakes, including no documentation, vague documentation, unclear employee expectations and use of snarky or sarcastic language.
- A doctor's note about a worker's physical limitations couldn't prove the worker had a disability because the doctor had not been properly identified as an expert witness, the 10th U.S. Circuit Court of Appeals ruled (Tesone v. Empire Marketing Strategies, No. 20-1093 (10th Cir., Feb. 5, 2021)).
- Empire, a marketing company, assigned a worker to reset a retail display at an out-of-town grocery store; she extended her stay at a hotel without approval, believing the job would require additional hours, according to court documents. When the company met with the her to discuss the unapproved stay, the plaintiff stated that "a lifting limitation negatively impacted her job performance," which prompted Empire to request a doctor's note that would document the limitation. The note, written by a doctor that the worker had neither met nor consulted with before obtaining the letter, said she had limitations related to muscle weakness and chronic lower back pain and that she could not lift more than 15 pounds. Eventually, Empire fired the worker over alleged consistent violations of company policies; she sued, claiming disability discrimination, among other things.
- The Americans with Disabilities Act (ADA) does not require expert medical testimony to establish a plaintiff's disability, the court noted in its opinion. "But this does not mean a plaintiff can defeat summary judgment without coming forward with some evidence (lay or expert) that she has a physical or mental impairment that substantially limits one or more major life activities." The only evidence the worker put was the doctor's note, and the doctor was not timely disclosed as an expert witness. The doctor qualified only as a non-expert witness, who can testify only about personal knowledge and observations "not based on scientific, technical, or other specialized knowledge," the court said. But the doctor's letter was based on such knowledge, rendering the employee's argument meritless, it concluded.
Even in COVID, Health Care Providers Still Must Focus on ADA Compliance
Despite the challenges and disruptions posed by COVID-19, Americans with Disabilities Act (ADA) accessibility obligations to patients and health care employees are not suspended in the pandemic. In fact, the time may be optimal to review your accessibility policies and procedures due to COVID-19 operational changes and new accessibility issues.
Among disability laws prohibiting discriminatory conduct, the ADA and other similar anti-disability discrimination laws are unique because they require organizations to take affirmative actions – by providing reasonable accommodations - to help those with disabilities overcome barriers. This may mean changing policies, providing auxiliary aids or services, and even removing physical barriers. In a workplace such as a hospital, clinic, or care facility, health care providers have ADA obligations to patients, employees and visitors or companions.
Understandably, COVID-19 has compelled providers to change everything from the physical flow of patient intake, staffing resources and visitor policies to the increased role of telemedicine appointments, perhaps on websites not optimized for those with disabilities. All of these can heighten the risk of ADA liability – potentially triggering damages, attorney’s fees, government scrutiny and unfavorable publicity.
With COVID-19 now a likely addition to the list of disabilities, providers cannot withhold service because of a patient’s COVID-19 positive status; and they must also comply with certain requirements for employee health assessments, testing, contact tracing and PPE. In this challenging and unprecedented time, your attorney on the Health Care Industry Team can be a valuable resource.
ANALYSIS: ‘Got Vax?’ How Queries to Workers Raise ADA Bias Risks
Covid-19 vaccinations are ramping up, but so far only 5.9% of the U.S. population is fully vaccinated. The slow rollout is leaving many frustrated and wondering how—and why—those who received a vaccine were able to get it so quickly.
For those who have received the vaccine, such questions can feel like intrusive inquiries into their private health conditions. And if those questions happen at work, they are more than just uncomfortable: They can lead to illegal harassment and expensive lawsuits.
Here’s a quick reminder about who can ask what at work.
Can an employer ask if a worker has been vaccinated?
Yes. The Equal Employment Opportunity Commission has released guidance clarifying that employers are free to ask if workers have been vaccinated, and can even ask for proof of vaccination.
Can an employer ask how an employee qualified to receive a vaccine?
No. The Americans with Disabilities Act prohibits employers from asking most disability-related questions. And, because the vaccine distribution plan in every state prioritizes people who have certain health conditions, asking a worker how or why they got the vaccine can be considered a disability-related question.
What about when co-workers ask questions?
For co-workers, the answer is a little more complicated. While the ADA doesn’t prohibit nonmanagerial employees from asking disability-related questions, it does prohibit harassment based on disability. Repeated questions, gossip, and accusations can all constitute forms of harassment.
Disability-related questions that come from a manager—whether to a direct report or to any other employee—are considered employer inquiries and are prohibited under the ADA.
How can employers prevent disability harassment during the vaccine rollout?
Clear policies, communication, and training can help organizations prevent harassment. As the vaccine rollout continues, employers should review and update policies, remind workers that many people don’t want to discuss their health issues at work, and train managers to avoid asking disability-related questions.
Employer mandated COVID-19 vaccination of employees generally permitted by EEOC
The Equal Employment Opportunity Commission (EEOC) recently confirmed that employers (including health care employers) can require employees to receive the COVID-19 vaccination as a condition of employment. Employers may also require proof of vaccination, subject to certain limitations, as the vaccine becomes widely available.
Such limitations include providing reasonable accommodations (including telework and leaves of absence) to employees with disabilities that prevent them from getting the vaccine under the Americans with Disabilities Act (ADA). Employers must also provide reasonable accommodations to employees who are unable to receive the vaccine because of a sincerely held religious belief, practice or observance, unless the accommodation poses undue hardship on the employer under Title VII. Similar to the ADA, if the employer cannot provide a reasonable accommodation, the employer may exclude the employee from the workplace by again considering alternative accommodations.
While the employer is allowed to request proof of receipt of the vaccine, subsequent questions, such as asking an employee why they did not receive the vaccine, may elicit information about a disability and should generally be avoided. Such an inquiry would only be allowed if it is considered job-related and consistent with business necessity.
According to the EEOC guidance, administering a COVID-19 vaccine to employees or requiring proof of having received a vaccine does not, by itself, implicate the Genetic Information Nondiscrimination Act (GINA). However, employers should limit such questions posed by a human resource professional that elicit genetic information or disabilities, including such information which is kept in human resource medical files, as those could violate GINA and the ADA.
Human resource departments should only require documentation that a vaccination had been administered to the employee, or documentation that the employee’s provider had advised the employee against receiving the vaccine but without providing details as to the basis for the advice. Of course, any disclosure of GINA or disability related information sought by or shared with the employer’s provider during the course of treatment before or during the vaccine administration, or securely maintained in the employee’s medical records, would not violate GINA or the ADA.
In summary, COVID-19 vaccines are beginning to be available to many employers and employees. While the EEOC provides that employers can require vaccination as a condition of employment, employers still need to be aware of limitations posed by the ADA, Title VII and GINA. Employers should begin developing and finalizing plans for whether or not they want to mandate the vaccine, and if so, how they will administer such a program to ensure compliance with all applicable laws.
Companies Consider Transparent Face Masks as an ADA Accommodation During Pandemic
Lawsuits from the deaf and hard-of-hearing community may require companies to consider new reasonable accommodations during the COVID-19 pandemic, such as transparent face masks for employees and clean writing tools for customers, in order to comply with state and federal disability discrimination laws.
On September 22, 2020, the shoe company, Nike, Inc., was sued by a San Diego customer who is deaf after the customer was unable to communicate with an employee in a Nike retail store who was wearing an opaque face mask in compliance with Nike’s face mask requirements. According to court filings, the customer alleged that Nike violated state and federal law, including 42 U.S.C. section 12182(1)(A)(1), by denying “goods, services, facilities, privileges, advantages, or accommodations” to a person with a disability. The customer also alleged that Nike failed to provide auxiliary aids and services to ensure effective communication for customers, as required by 28 C.F.R. section 36.303(a).
Nike reached a settlement in the action, pending court approval, in which Nike has agreed to (1) pay $85,000 in attorneys’ fees and costs; (2) provide guidance to California store employees on how to accommodate customers who have difficulty communicating due to employees’ opaque face covering; (3) post notices in all California store entrances noting that accommodations are available for customers with hearing loss; (4) ensure that transparent face masks and clean writing tools are available upon request; and (5) pay the class plaintiff up to $5,000. Nike may still face additional monetary claims from class members as the proposed settlement will only resolve claims for injunctive relief, not compensatory or other damages.
Retail companies can proactively ensure that their employees are trained on how to respond to requests for accommodations from deaf and hard-of-hearing customers during the COVID-19 pandemic. If transparent face masks are not immediately available, employees can provide clean pens and paper to communicate with customers in order to minimize any liability under the Americans with Disabilities Act (ADA).
In addition, employers can also take steps to avoid employment-related disability claims by ensuring that transparent face masks and/or other auxiliary aids are available for employees who are deaf or hard-of-hearing.
Finally, companies should consider other areas in which new pandemic-related policies may adversely affect employees or customers with disabilities, such as specific social distancing requirements, virtual communications, and remote working policies.
Seventh Circuit Affirms that Multi-Month Leave of Absence Is Not Reasonable Accommodation Under ADA
In a recent opinion, the United States Court of Appeals for the Seventh Circuit affirmed that a multi-month leave of absence is not a reasonable accommodation under the Americans with Disabilities Act (ADA).
Paula McAllister was a machine operator for Innovation Ventures, LLC (Innovation). On June 10, 2016, McAllister suffered serious head and neck injuries in an unfortunate automobile accident, which required her to undergo surgery. Shortly after her surgery, McAllister sought medical leave under the Family and Medical Leave Act of 1993 (FMLA). In McAllister’s doctor’s FMLA certification, the doctor indicated that McAllister could not perform “any & all” functions and that she could not return to work until September 8, 2016.
“Thereafter, McAllister fell into a frustrating cycle wherein her doctors would examine her, predict she could return to work in some number of weeks, then later elongate their prediction at a follow-up visit.” During this time, Innovations’ Human Resources department contacted McAllister and notified her that, per its policies, an employee who could not return to work after six months of leave would be terminated.
After several additional rounds of doctor’s appointments and predictions about when McAllister might be able to return to work, on November 14, 2016, McAllister’s doctor sent a work status report to Innovation estimating that McAllister could not return to work until February 2017. Innovation declined to extend McAllister’s leave beyond six months and instead terminated her employment on December 14, 2016.
McAllister filed a lawsuit in the United States District Court for the Northern District of Illinois alleging, among other things, that Innovation failed to accommodate her disability under the ADA. The district court granted summary judgment for Innovation on McAllister’s failure-to-accommodate claim. The district court found that McAllister was not a qualified individual with a disability as required to maintain a failure-to-accommodate claim because she could not “perform the essential functions of the employment position” either “with or without reasonable accommodation.”
On appeal, McAllister argued that (1) she could have performed her job with accommodations; (2) that she could have performed another job without accommodations during the same time period; and (3) that Innovation should have granted her additional leave, which she argues would have been reasonable.
The Seventh Circuit affirmed the district court’s decision. As to McAllister’s first two arguments, the Court determined that her alleged ability to work with or without reasonable accommodations was directly contradicted by her doctors’ orders. The Court reasoned that “absent evidence to the contrary, a doctor’s view that an employee cannot return to work . . . in any position means an employee cannot establish that she is a qualified individual with a disability under the ADA.” Because the doctors’ orders had limited McAllister from working altogether, there was no reasonable accommodation that could have mitigated her limitations.
As to McAllister’s final argument—that she should have been granted additional leave as a reasonable accommodation—the Court reiterated its position that “a multi-month leave of absence is beyond the scope of reasonable accommodation under the ADA.” The Court reasoned that, “[e]ven assuming McAllister worked in August and September 2016, Innovation would have needed to grant McAllister leave from October 2016 until February 2017 (when her doctors expected to clear her), for a total of four months,” which the Court held “is plainly not a reasonable accommodation.”
Although previously questioned by some courts within the Seventh Circuit, this “per se” rule against a multi-month leave of absence under the ADA has been affirmed as the law of the Seventh Circuit. Other federal circuit courts, however, have rejected such a per se rule.
Still, even slight changes in the fact-pattern of McAllister would raise additional questions for an employer to address. For instance, although in McAllister the employer could make no accommodation based on the doctors’ orders, in cases where a healthcare provider has ordered less than no work at all, employers may have to consider part-time or modified schedules or other vacant positions as potential reasonable accommodations.
Frito-Lay settles claim it fired Seventh-Day Adventist over scheduling issue
- Frito-Lay has agreed to pay about $50,000 to settle a lawsuit filed by the U.S. Equal Employment Opportunity Commission (EEOC) on behalf of a man who claimed his employment was terminated because of unlawful religious discrimination (U.S. Equal Employment Opportunity Commission v. Frito-Lay Inc., No. 9:20-cv-81689 (S.D. Fla., Feb. 4, 2021)).
- The agency claimed Frito-Lay violated Title VII of the Civil Rights Act of 1964 when it fired a sales representative who did not report to Saturday trainings because of his Seventh-day Adventist religious beliefs.
- As part of the consent decree resolving the allegations, the company will provide HR, managers and employees training that covers the reasonable accommodation process.
Title VII forbids religious discrimination in all aspects of employment, including hiring, pay, job assignments and more. The law forbids discrimination based on religion, race, sex and a number of other characteristics. It requires that employers provide reasonable accommodations for workers' religious beliefs and practices.
Common religious accommodations include flexible scheduling, voluntary shift substitutions and job reassignments. However, employees are not entitled to the accommodation they prefer. For example, a truck driver who asked for Sundays off was not entitled to his accommodation of choice, the 11th U.S. Circuit Court of Appeals ruled. The employer's offer of more flexible routes that paid less was a reasonable accommodation to the worker's request for Sundays off, the court said.
In a similar case, the 10th Circuit ruled that a worker was given a reasonable accommodation, although not the one he wanted, when he was allowed to skip weekend work after he asked that his mandatory overtime be switched from Saturday to Sunday to accommodate his religious beliefs. The employee sued his employer because he was unhappy about the loss of income that resulted from the lack of available overtime on Sundays.
While employers don't have to grant an employee's preferred accommodation, they are expected to engage in an interactive, good-faith process to determine worker accommodations. This makes compliance training for managers a good idea, experts say. HR also may want to make sure that managers are trained to handle requests and to listen for clues that suggest a need for accommodation even if there is no formal request.