Thursday, May 26, 2016

Lowe’s Settles Nationwide Disability Suit for $8.6 Million

Lowe’s was sued by the Equal Employment Opportunity Commission for disability discrimination. The country’s second largest home improvement chain was accused of engaging in a nationwide “pattern and practice of discrimination against people with disabilities by firing them and by failing to provide reasonable accommodations to them when their medical leaves of absence exceeded Lowe’s 180-day (and, subsequently, 240-day) maximum leave policy.” Lowe’s was also accused of firing individuals who were “regarded” as disabled, had a record of disability, and/or were associated with a disabled individual. This case was started when three employees were fired after Lowe’s refused to extend their medical leaves.

The settlement includes monetary compensation in the amount of $8.6 million. It also requires that: Lowe’s retain an experienced ADA consultant to review and revise the company’s policies as needed; implement better training for all employees on the ADA; develop a central tracking system on employees who request accommodation; maintain a log of accommodations; and to post documentation related to the settlement. Lowe’s must submit regular reports to the EEOC on the steps that it is taking. This agreement will last for four years. Any employee who had been terminated between January 1, 2004 and May 13, 2010 after taking maximum leave may make a claim.

The EEOC stated that, “This settlement sends a clear message to employers that policies that limit the amount of leave may violate the ADA when they call for the automatic firing of employees with a disability after they reach a rigid, inflexible leave limit.” Lowe’s has stated that it updated its policies in 2010, and has taken steps to more consistently apply its policies. Lowe’s does not admit to any wrongdoing.

Wednesday, May 25, 2016

For Your Consideration: How Bias in Social Media Could Impact The Workplace

Facebook has faced some heat in response to allegations that its “trending” topics are based on the political bias of its workers. It brings up an interesting issue for employers to evaluate: Could the use of such data create liability based on “disparate treatment “ or “disparate impact” theories of discrimination?

In January 2016, the Federal Trade Commission issued a report about big data. Big data has been defined as a collection of data from both traditional and online sources that may be used by other companies as a source of information and analysis. In the human resources context, “big data” may be used by employers to help select applicants and manage employees. For example, a study showed that “people who fill out online job applications using browsers that did not come with the computer…but had to be deliberately installed (like Firefox or Google’s Chrome” perform better and change jobs less often.” Use of a particular browser may be facially neutral in terms of its use for hiring employees, however it could turn out to have a disparate impact on a protected class. It may be that disparate impact violates Title VII or the Americans with Disabilities Act.

The FTC cautioned that hidden biases might exist in the manner in which information is collected and compiled. For example, if one company’s big data algorithm only considers candidates from “top tier” colleges then the company may be incorporating the biases included in those colleges’ admission decisions. Another interesting issue from the report referred to a study that included Facebook data based on the use of its “Likes.” That limited survey information was used by researchers to accurately predict a male user’s sexual orientation 88% of the time, a user’s ethnic origin 95% of the time, and whether a user was Christian or Muslim, 82% of the time. It is not hard to see that using such information could possibly lead to violations of federal employment laws.

Tuesday, May 24, 2016

The U.S. Supreme Court Takes A Pass; Sending Birth Control ACA Question Back

The Affordable Care Act generally demands that employers and health insurance companies provide free access to FDA-approved contraceptive options. Churches were expressly exempted from this requirement and other religiously affiliated organizations have been given an opt-out process. This opt-out process would allow employees to gain contraceptives directly through their insurer, bypassing the objecting organization by means of employer petition. However, this compromise process was still unsatisfactory to religious non-profit organizations because they viewed it as making them complicit in the handing out of contraception.

Many religious non-profit institutions sued the U.S. Government and the actions were combined for consideration by the Supreme Court. Relying on the Religious Freedom Restoration Act (RFRA), these organizations argued that the ACA’s contraceptive coverage was a substantial burden on the exercise of their religious beliefs; that the U.S. government lacked a compelling interest in requiring them to comply; and the government failed to proceed in the least restrictive manner.

It is believed that the members of the U.S. Supreme Court were evenly divided on how to rule on this question. The death of Justice Antonin Scalia has left the court with just eight members. In anticipation of this result, the U.S. Supreme Court sought additional information after oral argument reflecting whether contraceptive coverage could be provided to employees without the religious institutions participating even in the exemption process. As all parties responded that they believed such an option was possible, the U.S. Supreme Court has vacated all of the lower courts’ judgments. It has instructed the various courts to find an approach that accommodates the religious objections while still providing the women with “full and equal health coverage, including contraceptive coverage.”

Thursday, May 19, 2016

English Woman Seeks Law Outlawing High Heels At Work

A case from across the pond has been garnering quite a bit of press. Nicola Thorp, 27 years of age, was fired from her temporary job as a receptionist because she was not wearing heels. She claims that when she told her bosses that she did not want to wear the heels, they laughed at her. Her heels were expected to be between two and four inches high.

Her response to the termination has been a petition to the British Parliament. The petition reads:
“It’s still legal in the UK for a company to require female members of staff to wear high heels at work against their will. Dress code laws should be changed so that women have the option to wear flat formal shoes at work, if they wish. Current formal work dress codes are out-dated and sexist.”
The petition has so far gathered more than 100,000 signatures in support. According to the BBC, UK employers are currently permitted to dismiss staff members who fail to live up to “reasonable” dress codes. Employers are permitted to have different codes for men and women provided there is the “equivalent level of smartness.”

Meanwhile, the temporary firm that hired Ms. Thorp has already backed down, stating: “with immediate effect all our female colleagues can wear plain flat shoes.”

Wednesday, May 18, 2016

EEOC Issued A New Document On Leave as Reasonable Accommodation

The Equal Employment Opportunity Commission (“EEOC”) has issued a resource document entitled “Employer-Provided Leave and the Americans with Disabilities Act.” Its stated purpose was to address “the prevalence of employer policies that deny or unlawfully restrict the use of leave as a reasonable accommodation.”

It was the EEOC’s intent that employers have a guideline on how to approach employees seeking leave as an accommodation under the Americans with Disabilities Act (“ADA”). Although it may be helpful in illuminating the EEOC’s position, employers should be aware that this “resource” does not rise to the level of the official guidance often issued by the agency.

There are some key provisions that may be helpful for employers to know. Disabled individuals should have the same access to leave as do non-disabled individuals. Thus, if non-disabled individuals may take leave without condition then a disabled person must have that same lack of restriction. Unpaid leave must be considered as a reasonable accommodation if the employee needs it and it does not impose an undue hardship for the employer. All requests for leave due to medical condition should be treated as a request for reasonable accommodation using the interactive process. These leaves must be viewed through the prism of the ADA and Family and Medical Leave Act. The EEOC warned against automatically firing persons who exceed the set amount of leave time. For more information, please visit the EEOC’s website.

Tuesday, May 17, 2016

Let the Battle Begin: U.S. v. North Carolina

North Carolina and the U.S. Justice Department have filed lawsuits against each other; the first legal round after North Carolina passed what has been coined as the “bathroom bill.” As a reminder, North Carolina’s law required all persons using bathrooms in public schools and agencies to use the one associated with their gender at birth. Thus, transgender individuals may not use the bathrooms consistent with their gender identity.

North Carolina has argued that its law is legal because transgender individuals are not expressly included as a protected class under Title VII or Title IX. It is accurate that transgender is not explicitly included in the classes listed in Title VII. The Tenth Circuit Court of Appeals has agreed with this position. However, other recent cases moving through the federal courts and an older U.S. Supreme Court case seem to support the notion that transgender discrimination falls within the parameters of sex discrimination.

In Price Waterhouse v. Hopkins, a female accountant claimed that she was not promoted because the male partners perceived her as too masculine. The Court broadened the application of Title VII to encompass the “entire spectrum of disparate treatment of men and women resulting from sex stereotypes.” Since that case from 1989, some federal circuit courts of appeals have continued with that idea. The Sixth Circuit Court of Appeals found that Title VII protected a transsexual firefighter diagnosed with gender identity disorder and the Eleventh Circuit Court of Appeals has also upheld protection for transgender individuals. The Fourth Circuit’s recent ruling in favor of a transgender high school student under Title IX reflected which way that circuit would go under Title VII. The EEOC has made it clear that it considers Title VII to include the protection of transgender individuals. The law in this area is clearly developing and the U.S. Supreme Court has yet to directly rule on it.

Thursday, May 12, 2016

Light Duty Without End Is Not Reasonable Accommodation

Determining a reasonable accommodation for disability must be determined on an individual basis. The Eleventh Circuit Court of Appeals has ruled that indefinite light duty was not a reasonable accommodation.

Delores Frazier-White was injured while working for the Hillsborough County Sheriff’s Office. After taking leave for the injury, she returned and was placed temporarily on light-duty status. Per the Sheriff’s Office policy, she was allotted 270 days for that light-duty and remained in her temporary position for ten months. Ms. Frazier-White asked for an indefinite extension of light-duty, either in her current position or reassignment to another one. She was fired because she had a physical impairment that precluded her from performing the essential functions of her position, with or without accommodation.

The Eleventh Circuit held that the Sheriff’s Office had not discriminated against Ms. Frazier-White. As the proposed accommodation of permanent light-duty was not reasonable, the employer did not discriminate against her. The already in place policy limit of 270 days for light duty was relied upon in helping the court reach its conclusion. No permanent light-duty jobs existed in the Sheriff’s department thus bolstering its argument that the accommodation was not reasonable.