Thursday, October 27, 2016

Company Practicing “Onionhead” Must Face Reverse Religious Discrimination Trial

Cost Containment Group (“CCG”) decided to use a program called “Onionhead” to improve the company’s culture. Designed by the CEO’s aunt, it was a multi-purpose conflict resolution program that included lots of materials and a “Declaration of Virtues of Empowerment.” Employees asserted that they were forced to submit to Onionhead, and they objected to its religious nature. Emails from the aunt showed references to: God, spirituality, demons, Satan, divine destinies, purity, blessings and miracles.

A key document was the “Onionhead Keys and Codes to Living Good” and it was given to employees. Within this document are references to a Divine Plan, heavenly nature, and a statement that “every sacred tribe and religion have codes hidden within their scripts books and scrolls.” Verbal statements provided by the employees reflect instructions to chant or pray in the workplace and not to use lights in order to “prevent demons from entering the workplace through the lights.”

Each employee pursuing this lawsuit was fired by CCG. The EEOC filed suit alleging religious discrimination and reverse religious discrimination claims. The federal district in New York had first to consider whether “Onionhead” was a religion. In reviewing the aunt’s comments, the frequent use of “God” as well as the use of sprits and demons, the court concluded that “Onionhead” was religious in nature. Thus, CCG could be found by a jury to have violated Title VII by trying to impose its religious beliefs on its employees.

Wednesday, October 26, 2016

Donald Trump Bringing Sexual Harassment Front and Center

The recent leaked footage of Donald Trump and Billy Bush reducing women to sexual objects and boasting about sexual assault has pushed sexual harassment once again to the forefront of a national conversation. Mr. Trump’s belief that calling the discussion “locker room talk” excused him from culpability reflects an utter denial of what qualifies as sexual harassment. In reporting about the incident, U.S. News and World Report reflected back on Anita Hill’s testimony against then-Supreme Court nominee Clarence Thomas and asked “[H]as the nation really evolved on the issue of sexual harassment and assault.” While certainly some progress has been made, the attacks on Mr. Trump’s many accusers as well as the disregard by some of the importance of the allegations suggests that there is still quite a bit of progress to be made.

The Equal Employment Opportunity Commission has defined sexual harassment to include: unwelcome sexual advances; requests for sexual favors; and other verbal or physical conduct of a sexual nature when the conduct implicitly affects an individual’s employment, unreasonably interferes with an individual’s work performance, or creates an intimidating, hostile, or offensive work environment. Conduct described by Mr. Trump (“grabbing women by their p----y”) and the conduct alleged by various women against Mr. Trump (forcibly kissing them) would all likely be found as unlawful sexual harassment. For harassment to be unlawful, it must be unwelcome and must be “sufficiently severe or pervasive.” “Locker room talk” or “boys will be boys” are not valid legal defenses.

Following the release of the tape, the New York Times reported on the costs of harassment to women in the workplace. “The burden of avoiding and enduring sexual harassment and assault results, over time, in lost opportunities and less favorable outcomes for girls and women. It is effectively a sort of gender-specific tax that many women have no choice but to pay.” Women may be reluctant to come forward; they often pause and weigh the consequences of reporting harassment. The national discussion that has ensued provides a good time for employers to make sure that all of their employees, from top to bottom, understand what conduct qualifies as sexual harassment in the workplace.

Tuesday, October 25, 2016

EEOC Targets Prescription Drug Testing Policies

Two recent cases filed by the Equal Employment Opportunity Commission (“EEOC”) reflect its current interest in employer related drug testing policies.

The first case was filed against Happy Jack’s Casino in South Dakota. An offer of employment was withdrawn after the prospective employee failed a pre-employment drug test. Her test revealed the use of hydrocodone for neck and back pain. In its lawsuit, the EEOC has challenged Happy Jack’s refusal to allow the applicant to show her underlying impairment and necessity for taking the prescription drugs. Also being challenged is Happy Jack’s policy that required all employees to disclose both prescription and non-prescription drug use regardless of their job position. The EEOC has also asserted that Happy Jack’s has engaged in unlawful disability-related questioning.

In the second case, the EEOC is pursuing claims on behalf of a Georgia physician who was fired for his use of narcotic pain medication to treat chronic pain. The doctor in question provided a note reflecting his need for narcotic pain medications to treat a medical condition. Within days, the doctor was fired. The EEOC has asserted that the doctor’s performance was not impacted by his pain medication use and has charged that the doctor was fired both based on his disability, and because he was perceived as disabled because of his use of narcotics. In its statement, the EEOC urged employers to conduct individualized assessments when there is a concern about the employee’s ability to perform his or her position.

Thursday, October 20, 2016

Title VII Protects Transgender Police Officer’s Bathroom Use

Bradley Roberts, while presenting as a female, was hired by the Clark County School District as a police officer. For 17 years, that employment was without incident. However, in 2011, Mr. Roberts began physically identifying himself as male through his dress and grooming. He began to use the men’s bathroom at work. In response to complaints about his use of the men’s bathroom, the commanding officers met with Mr. Roberts. He let them know that he was transitioning to a male. They responded by directing him to use only the gender-neutral bathroom. Not directly responding to this instruction, Mr. Roberts submitted a letter that notified his superiors that he would be changing his name, that he wanted to be referred to with male pronouns, and that he would be complying with the male grooming code.

The school district responded with a “no” to all aspects of this letter, asserting that no changes would be made until he could provide documentation of a name and sex change. Thereafter, the school district allowed him to use his male name on an informal basis only. With respect to his bathroom usage, he was forbidden from using the men’s bathroom until he had documented evidence of a sex change. Until that time, Mr. Roberts was also prohibited from using the women’s bathroom and was only allowed to use the gender-neutral bathroom.

Title VII does not expressly prohibit “gender” discrimination but it does prohibit “sex” discrimination. The Ninth Circuit Court of Appeals, as well as several other circuits, have held that “sex” discrimination includes stereotypes “because of sex.” Sex stereotypes include gender identity. Clark County School District banned Mr. Roberts from the women’s bathroom because he no longer behaved like a woman. It banned him from the men’s bathroom because he was biologically female. The Nevada federal district court deciding this case found Mr. Roberts had been treated differently because of his biological sex and his gender identity, both reasons arising out of his transgender status. This differential treatment was held to be sex discrimination in violation of Title VII.

Wednesday, October 19, 2016

Retaliation Costs Chicago Hospital $1 Million Plus

Dr. Brett Ohlfs used to be an ER doctor for Oak Lawn Hospital. He claimed that he was fired in retaliation for reporting sexual harassment. Dr. Ohlfs believed that a fellow ER physician was sexually harassing the female residents (doctors in training.) This other doctor had purportedly made sexual advances towards the women, showed them naked pictures of himself, and coerced them into have sexual relationships with him. Dr. Ohlfs was particularly concerned about the authority the other doctor had over these residents.

Dr. Ohlfs reported the conduct to hospital administrators. He claimed that the hospital dismissed his report and eventually dismissed him. Dr. Ohlfs sued. It was a particularly contentious lawsuit as the hospital also sued Dr. Ohlfs for secretly recording conversations with his department head; and the hospital also asserted that it was investigating Dr. Ohlfs in connection with the care of one of his patients. The Illinois agency charged with handling discrimination claims investigated and found “substantial evidence” of wrongful termination. The jury confirmed this finding with its verdict of $1 million.

The hospital, owned by Advocate HealthCare, has not yet decided whether to appeal. However, it does assert that it investigated Dr. Ohlfs’ report of harassment at the time that it was made. The investigation revealed that no further action was warranted. The doctor accused of sexual harassment still works for the hospital. Advocate has continued to assert that it fired Dr. Ohlfs for non-discriminatory and legitimate reasons.

Tuesday, October 18, 2016

11th Circuit Greenlights Disparate Impact Age Discrimination

In an unexpected move, the Eleventh Circuit Court of Appeals has sanctioned a form of age discrimination.
Richard Villarreal applied for a position with R.J. Reynolds as a territory manager. The company sought a candidate “2-3 years out of college” who “adjusts easily to changes.” R.J. Reynolds wanted to avoid applicants “in sales for 8-10 years.” Mr. Villarreal is over 40 years of age. While these hiring guidelines do not expressly exclude older workers, the impact of the guidelines will be to exclude older workers.

The Age Discrimination in Employment Act (“ADEA”) prohibits intentional age discrimination both in hiring job applicants and in firing employees. A separate provision of the ADEA precludes employer policies that have the effect of discriminating against employees based on their age. It states that it is “unlawful for an employer…to limit, segregate, or classify his employees in any way which would deprive or tend to deprive any individual of employment opportunities or otherwise adversely affect his status as an employee, because of such individual’s age.” Because this provision does not specifically include “job applicants” in its protection, the 11th Circuit has ruled that it does not apply to job applicants. This decision contravenes earlier 11th Circuit and other Circuit court decisions. Those other decisions have held that job applicants are in fact protected from disparate impact age discrimination.

Thursday, October 13, 2016

Ohio Restaurant Agrees to $1 Million Settlement + Extensive New Requirements

Texas Roadhouse, a franchise in Ohio, has agreed to a $1.4 million dollar settlement of sexual harassment and retaliation claims brought by female servers. The restaurant owner and its management company are all part of the settlement.

The U.S. Equal Employment Opportunity Commission brought the suit on half of the women after they claimed that the restaurant manager, Eric Price, created a sexually offensive working environment and engaged in quid pro quo harassment. Mr. Price was alleged to have offered particular employment benefits to female servers and hostesses to induce them to give into his sexual demands. Those workers who did not submit were threatened with retaliation. These women, including teenagers, were subjected to unwelcome touching and humiliating remarks about their bodies and sexuality. If these women complained, Mr. Price manipulated their work schedules and promotion chances. The harassment continued over a three year time period. Mr. Price was only terminated when he was caught on video touching a 17-year-old employee in his workplace office.

In addition to the monetary settlement, Texas Roadhouse has multiple changes it must make. First, it may not re-hire Mr. Price in any capacity. Next, the twelve women must be offered their jobs back. With a five-year consent decree, the restaurant operator and the management company must track and report all gender discrimination and retaliation in all of their restaurants. Training must be provided to all employees with supervisory and HR employees to receive additional training on their duty to monitor and investigate. Texas Roadhouse settled shortly after losing its motion for summary judgment.