Employment Law Update: EEOC priorities, workplace romance, vegetarianism as a religion

Legislative and administrative action

EEOC announces 2013 priorities. The Equal Employment Opportunity Commission has announced its three-year Strategic Enforcement Plan (2013 to 2016). It plans to devote additional attention to the issues of identifying and eliminating discriminatory recruiting and hiring barriers; enforcing equal pay laws; protecting immigrant, migrant, and other vulnerable workers; preventing harassment; preserving access to the legal system; and addressing “emerging issues.”

Emerging issues identified in the plan include the ADA Amendments Act standards, pregnancy accommodation, and coverage of LGBT under Title VII provisions “as they may apply.” This last item recognizes the growing de facto inclusion of LGBT discrimination under Title VII, often as “gender stereotyping,” even though the law does not specifically include those as protected categories.

Wisconsin unemployment compensation rule changes proposed. The Department of Workforce Development has proposed significant changes in the standards for eligibility and awards of unemployment compensation benefits. Many of the changes will make it more difficult for claimants to receive or to continue benefits, and will ease the standards for employers in seeking to deny benefits, especially for “misconduct” discharges. The changes are far too extensive to list here, but can be found at http://dwd.wisconsin.gov/uibola/UIAC/minutes/2012/20121129.pdf.

The proposals are being considered, and comments are being taken by the Wisconsin Unemployment Compensation Advisory Council before being forwarded to the Legislature.

Litigation

This update includes new developments and matters of interest throughout the United States. Be aware that our various federal circuit courts reach somewhat differing conclusions. So a federal court decision in another part of the country, and especially a different state’s court decision, may not quite be “the law” in your jurisdiction. Some courts lead the way; others lag behind. This update lets you see the overall trends and compare them with your jurisdiction. Wisconsin is part of the federal Seventh Circuit (Wisconsin, Illinois, and Indiana).

Workplace romance

Firing him, not her, after breakup was not discriminatory. Two city employees were romantically involved. She broke off the relationship. He was upset and started a series of angry, threatening emails and texts at work. He accosted her in the workplace parking lot. He was fired. He sued, claiming sex discrimination in taking action against him but not her, though she, too, had emailed about this relationship using the city computer. The court found that his behavior in violation of the city’s harassment policy warranted the discharge, while she had not engaged in such behavior. Her emails were informing the city about his harassment and requesting a protective order to get him to stop. The nature of the emails were completely different. Bond v. City of Bethlehem (3rd Cir., 2012).

Man fired when his girlfriend made race and pay complaint. An alcohol control agent was dating another agent. She complained that the agency was discriminating against her in pay due to her race (African American). Following this, management started asking questions about the romantic relationship, installed a GPS on the male agent’s vehicle, and allegedly began an extremely close scrutiny of his travel, expenses, time, etc., and pressured him to resign. He refused to resign and was fired for “improper time and

vehicle use.” He sued for Title VII retaliation, claiming he was targeted due to his girlfriend’s protected activity discrimination claim. The court found a sufficient basis for the case. Taking adverse action, either directly against the filer of a complaint or indirectly against those closely associated with them, has a “chilling effect” on protected activity and violates the law. Lard v. Alabama Alcoholic Bev. Control Bd. (M.D. Ala., 2012).

 

Trends: Employment Status: Volunteer or Employee?

The employment laws regulate the employment relationship. They cover those in the status of “employee” (or applicant), etc., to an “employer.” They do not cover volunteers, vendors, independent contractors, or those who are “clients, students or participants in programs which may involve work training or work coaching.” An organization may be liable in other ways for the acts or misdeeds of those other sorts of people (see later case on pre-employment testing), but only “employees” can sue under the employment laws. However, the line can be thin, and individuals and agencies (EEOC, DOL, and the IRS) are now challenging whether or not those who provide service are truly volunteers (or “contractors” or “clients”) or whether they are employees who can sue for discrimination, back wages, benefits, and more.

“Volunteers” can be employees for Title VII discrimination purposes. A federal court has allowed volunteer ambulance rescue squad members to sue for employment discrimination, sexual harassment, and retaliation under Title VII even though they received no pay and signed a “volunteer acknowledgment.” The court found that pay is just one factor and “employer status should be analyzed under a multifactor common law agency test.” In this case, the volunteers were subject to rigid scheduling requirements and disciplinary action for infractions, were supervised the same as paid employees, and had to obey the employment policies. They were doing the same work and treated the same as employees except for pay. Thus, they can sue for damages under the employment discrimination laws. Volling v. Antioch Rescue Squad (N.D. Ill., 2012).

The “volunteer” or “employee” issue is also raised under the FLSA. Can a volunteer suddenly demand pay of minimum wages and overtime for all hours they put in? Some employers have been made to pay, a lot, for these volunteer services. Tommy and Susan Alano Foundation v. Secretary of Labor (U.S. S.Ct., 1985). The Department of Labor and courts use the “economic realities” test and can closely scrutinize “volunteer” activities. However, in the recently decided Freeman v. Key Largo Volunteer Fire and Rescue Dept., Inc. (11th Cir., 2012), the court found true volunteerism even though the volunteers were actually paid $5 per hour. The pay was seen as “nominal” compared to the $20 per hour for employee firefighters. Volunteers scheduled themselves and were not required to put themselves on a schedule, volunteers were not subject to discipline, and volunteers were subject to only a limited set of operational procedures but not the department’s employment rules. Thus, Freeman could not sue over “termination of employment” when he was told his services were no longer wanted.

Disability

Unfit “in the near term” does not justify forced retirement. A school security officer with PTSD was found still to be “psychologically unfit for duty in the near term” after exhaustion of FMLA. The department, which wanted a specific date for return to work, involuntarily retired him for being unable to provide that. In the ensuing ADA and California discrimination law case, the court found a failure to engage in the required “interactive process.” Though an employer is not required to hold a job for an “indefinite period” and may terminate the employment, this envisions a long indefinite term. The evaluation of a “near term” would indicate a reasonably quick return to work and no undue hardship in holding open the employment. The department’s failure to explore what “near term” meant and to consider that before acting was not in accord with the ADA. Kesecker v. Marin Community College Dist. (N.D. Cal, 2012).

Educating women to tolerate harassment was not a reasonable request for accommodation. An employer received numerous complaints about a male employee’s sexual comments, staring, and following of female workers. He produced certification of a pervasive developmental disorder (PDD) that caused low control of these behaviors. He requested the reasonable accommodation of having his treating therapist educate the female staff so they would understand his disability and be more tolerant of the behaviors. The employer denied that accommodation, and he was terminated for continued harassment. He sued under the ADA and Rehabilitation Act for failure to accommodate. The court dismissed. It found the requested accommodation to be “unreasonable on its face, as a matter of law.” No one should have to accommodate by tolerating ongoing and overt sexual harassment. It also found the plaintiff to not be a “qualified person with a disability.” His disability rendered him unable to follow valid rules of workplace conduct, therefore he could not meet essential functions of the job. McElwee v. County of Orange (2nd Cir., 2012).

 

Religion

Is vegetarianism a religion? A hospital required all employees to have a flu shot. It did exempt those whose religion prohibited them from vaccination, under Title VII’s reasonable accommodation requirements. One employee refused to get the shot, claiming that she was vegan and the flu vaccine was made using an egg-based medium. Thus, the shot would put an animal product in her system. The hospital fired her for not following its policy. She sued for religious discrimination, claiming a sincere religious belief in her vegan practice. The hospital claimed her social beliefs and lifestyle did not equate to a religion under Title VII. However, the court found sufficient foundation for the case to proceed. Title VII covers “moral or ethical beliefs … held with the strength of religious views.” The plaintiff’s strongest point is that she quoted biblical scripture about dietary restrictions and purity while refusing the flu shot. Chenzira v. Cincinnati Children’s Hospital (S.D. Ohio, 2012).

Bob Gregg is a partner with Boardman & Clark Law Firm. 

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