A Referral Tool for Potential Clients: LegalMatch

Many people may see the LegalMatch icon on our website and wonder what is this service?

I’ve been using LegalMatch to help market my practice in the area of Employment Law since 2007. It’s never easy finding new clients, but LegalMatch removes much of the hassle I’ve encountered with other marketing strategies.

LegalMatch streamlines the process of connecting with clients. New cases appear in my account regularly. Reaching out to clients online through LegalMatch is much more efficient especially in my practice of employment law because many employees like to contact us after hours while they are not at work.

If you are considering using LegalMatch, you should understand exactly how the service works, so that you can know whether or not it’s right for you. Clients present their case by choosing a category with a specific interview process to secure all the relevant information normally acquired during an initial consultation. Member attorneys receive instant notification of the pending case. Member Attorneys respond to cases through the online system. The client is immediately notified that a response has been made. When an attorney responds, clients see a detailed Member Attorney profile that describes important information about the Member, their practice and their firm. Clients may elect, when presenting their case, to have Member Attorneys call them as soon as the Member Attorney submits a response to their case.

LegalMatch features allow us to efficiently and meticulously keep track of which potential clients have been contacted. We are able to maximize the marketing potential that LegalMatch has to offer.

http://www.legalmatch.com/

As with any rule, there are exceptions.
Please seek professional assistance with any questions or specific situations.
ADVERTISING MATERIAL ONLY: If you need legal services, please seek professional counsel.

“Good Fit” Phrasing: A Legitimate Non-Discriminatory Reason or a Pretext for Discrimination?

A recent decision from the U.S. Court of Appeals for the Second Circuit held that statements concerning whether a potential employee is a “good fit” for a particular job are not necessarily legitimate non-discriminatory statements capable of protecting an employer from a discrimination suit. Frederick Abrams, an African American law enforcement officer, brought such a claim, specifically under Title VII and the Equal Protection Clause, against the Connecticut Department of Public Safety (DPS). Abrams, a member of the force since 1986, asserted management’s continual failure to promote him to an “elite mobile investigations unit” (known as, “the Van”) was due to racial discrimination. According to court records, Abrams had shown continual improvement throughout his time on the force, yet still failed to obtain a promotion to the mobile unit, despite applying for every job opening since 1998. http://hr.blr.com/HR-news/Discrimination/Racial-Discrimination/Race-discrimination-Dreaded-fit-comments-doom-case

DPS claimed that they did not promote Abrams for legitimate and non-discriminatory reasons. Abrams v. Dep’t of Pub. Safety, 764 F.3d 244, 252. First, and most notably, Abrams did not have a college education, unlike five of the eight officers promoted to the Van since 1998. Id. Secondly, Abrams, unlike other applicants, did not possess any special skills or talents that would substantially benefit the mobile unit, such as specialized EMT training or electronic equipment skills. Id. And finally, Abrams had a history of issues with his report writing, unlike those promoted before him. Id. The Defendants did concede that seniority often played a role in promotion to the Van, but it was not the only factor in determining who would be promoted. Id.

The detective chosen to fill the vacant Van position in late 2007 was a Caucasian male. Id. at 249-50. When Abrams’ current supervisor spoke to the Van supervisor about the promotion of this male over Abrams, the Van supervisor stated the chosen detective would “fit in” better and also acknowledged his college degree. Id. Abrams’ supervisor, when deposed, stated it “crossed his mind” that the Van supervisor’s statement could have been related to race. Id. This was also not the first time management utilized “fit-in” phrasing as one reason for not promoting Abrams. Between 2000 and 2004, another discussion occurred in which a then-member of the Van consulted during the hiring process stated that Abrams “did not fit in.” Id.

Abrams initiated his court action in April of 2007 by filing a complaint with the Connecticut Commission on Human Rights and Opportunities (CHRO). Id. at 250. In his complaint, he alleged the defendants discriminated and retaliated against him after the most recent promotion of two Caucasian detectives to the Van. After Abrams filed his complaint, the defendants permitted Abrams to ride with the Van, but he was typically unavailable to do so. Id. Abrams finally rode with the Van, for the first time, in June of 2007 after which he was not called to ride again. Id. Abrams stated other members of the Van made him feel as though he “did not belong” during this singular occasion. Id.

Then, in September of 2007, Abrams filed another complaint with the CHRO alleging retaliation and a hostile work environment. Id. He mentioned how he felt after his first ride with the Van, earlier that year. It was at this time that the defendant’s legal affairs department instructed the Van’s supervisor to maintain his distance and avoid contact with Abrams. Id. This lack of communication resulted in the unit’s failure to consider Abrams for any more “fill-ins” with the Van. This ignited Abrams and motivated him to file additional complaints in November of 2007 and March of 2008, alleging discrimination and retaliation based upon the failure of the unit to incorporate Abrams into investigations and a hostile work environment, respectively. Id. Additionally, in 2010, Abrams filed complaints with Connecticut Department of Safety’s Affirmative Action Office against his new supervisor, promoted in 2008. Id. at 250-51.

Amidst a sea of paperwork and complaints from Abrams’ coworkers that the plaintiff was making them feel “uncomfortable” in the workplace, Abrams was reassigned to the “Casino Unit,” pending an investigation of Abrams’ complaint filed with the Affirmative Action Office. Id. at 251. Abrams’ transfer allowed him to maintain his salary and status as a member of the law enforcement team, but his work focus switched from investigating “major crimes” to conducting background checks, all while managing a commute double that of his tenured position. Id. In December of 2010, Abrams was transferred to another city’s Major Crimes unit and remains at that location. Id.

Abrams’ complaints and the theory under which the recently decided suit was brought, accused DPS of racial discrimination and retaliation under section 1983 and Title VII. In 2012, the district court granted the defendant’s motions for summary judgment in relation to both of these claims. Id. at 252. The district court also granted summary judgment in favor of DPS as to the claim Abrams filed alleging retaliation by the DPS in assigning him to the Casino Unit. Id. The only claim that survived for trial was Abrams’ Title VII claim alleging retaliation in the continued denial of assignment to the Van after filing his CHRO complaints. The jury found in favor of DPS and Abrams appealed to the Second Circuit. Id.

The Second Circuit affirmed the jury verdict, but interestingly enough, denied in part the district court’s order of summary judgment. Id. In its opinion, the Second Circuit reviewed the framework for Title VII discrimination cases, made familiar by the landmark case of McDonnell Douglas Corp v. Green. 411 U.S. 792, 802-804 (1973). Under McDonnell’s framework, the plaintiff bears the initial burden of proof and must prove by a preponderance of the evidence a prima facie discrimination case. Id. The burden then shifts to the defendant to volunteer “legitimate non-discriminatory” reasons for its actions. Id. The ultimate burden of establishing that the defendant’s reason are a pretext for discrimination then falls on the plaintiff, thus rounding out the three-part framework. Id.

As to the first leg of the framework, the Second Circuit determined that a prima facie case of discrimination is established when the plaintiff proves: (1) he belongs to a protected class; (2) he was qualified for the position he sought; (3) he suffered an adverse employment action; and (4) the adverse employment action occurred under circumstances that gave rise to an intrusion of discriminatory intent. Id. 252. Finding Abrams case undisputed as to elements (1), (2) and (4), the district court did not argue the third element. Id. They simply called it a “close case” and determined that whether Abrams could meet the third element was irrelevant, as he would not be able to demonstrate the defendant’s legitimate non-discriminatory reasons for not promoting Abrams to the Van were pretext for discrimination. Id.

The district court based their order of summary judgment on this finding. However, upon review, the Second Circuit found that the comments concerning whether Abrams would be a “good fit” for the Van were not hearsay and could, in fact, present a reasonable question of fact to be appropriately evaluated and decided by a jury. Id. The Second Circuit cited a similar Fifth Circuit case in which the court addressed the issue of “fit in” phrasing:

After all, a hiring official’s subjective belief that an individual would not “fit in” or was “not sufficiently suited” for a job is at least as consistent with discriminatory intent as it is with non discriminatory intent: the employer just might have found the candidate “not sufficiently suited” because of a protected trait such as age, race, or engaging in a protected activity. We hold as a matter of law that justifying an adverse employment decision by offering a content-less and nonspecific statement, such as that a candidate is not “sufficiently suited” for the position, is not specific enough to meet a defendant employer’s burden of production under McDonnell Douglas. It is, at bottom, a non-reason.

Patrick v. Ridge, 394 F.3d 311, 317 (5th Cir. 2004), quoted in Abrams v. Dep’t of Pub. Safety, 764 F.2d 244, 253 (2nd Cir. 2014).

The Second Circuit applied the Fifth Circuit’s analysis to the facts at hand and found that the phrasing “better fit” or “fitting in” “just might have been about race,” when appropriately construing the facts in a light most favorable to the non-moving party. Id. at 253. The Second Circuit vacated the district court’s order of summary judgment as to both the Title VII discrimination claim against DPS and the §1983 claim, as it possessed parallel analysis.

While the Second and Fifth Circuits are the only circuits to directly address “fit-in” phrasing so far, it is not inconceivable that other circuits may not soon be faced with the same issue. The recent decision of the Second Circuit serves as a reminder to all management personnel and employees with hiring responsibility that blanket statements, including “good-fit” phrasing, will not alone protect an employer from a discrimination claim. Legitimate non-discriminatory reasons for not hiring or promoting an individual are not typically subjective. Subjective statements regarding whether a potential employee would “fit in” or “belong” are often left up to the interpretation of the listener, and based on that interpretation, leave room for the questions of fact juries are designed to analyze in a trial. The Second Circuit said it best: non-specific statements, such as these are “at bottom, a non-reason.” This reminder should motivate employers and hiring staff to think carefully about the words they are using and the reasons they are providing when declining to hire an applicant.

As with any rule, there are exceptions.
Please seek professional assistance with any questions or specific situations.
ADVERTISING MATERIAL ONLY: If you need legal services, please seek professional counsel.

Federal Court Requires Wal-Mart to Pay $72,500 to Settle EEOC Disability Discrimination Suit

Wal-Mart Stores East, L.P., will pay $72,500 in addition to substantial equitable relief to settle a disability discrimination lawsuit filed after Wal-Mart failed to reasonably accommodate a newly hired employee that was unable to produce urine to comply with Wal-Mart’s mandatory urinalysis test for illegal drugs. http://www.natlawreview.com/article/wal-mart-stores-east-will-pay-72500-to-settle-eeoc-disability-discrimination-lawsuit.

According to the complaint, a Maryland Assistant Store Manager gave plaintiff, Laura Jones, a job as an evening sales associate, provided she passed the mandatory urinalysis test. Jones explained, upon the extension of this offer, that she could not produce urine for the test, as she has end-stage renal disease. The Assistant Store Manager instructed Jones to inquire about alternate tests with Wal-Mart’s designated drug testing facility. Jones did so that same day and relayed to her potential employer that the designated drug testing facility offered alternative drug tests, if requested by Wal-Mart. Wal-Mart management, however, refused to request an alternative drug test and Jones’ application was closed for failing to comply with a urinalysis test within 24 hours of hiring.

Wal-Mart’s conduct violates the Americans with Disabilities Act (ADA). Specifically, Wal-Mart’s failure to authorize an alternative drug test Jones’s body was capable of enduring violates Title I of the ADA, which governs hiring and employer duties to people with disabilities. Section 12112(b)(5)(A) states,

As used in subsection (a) of this section, the term “discriminate against a qualified individual on the basis of disability” includes
(5)(A) not making reasonable accommodations to the known physical or mental limitations of an otherwise qualified individual with a disability who is an applicant or employee, unless such covered entity can demonstrate that the accommodation would impose an undue hardship on the operation of the business of such covered entity.

Effective January 1, 2009. (http://www.ada.gov/pubs/adastatute08.htm#subchapterI.)

The term “reasonable accommodation,” as defined by the ADA, includes, “appropriate adjustments or modifications of examinations.” Americans with Disabilities Act, Title I, §12111(9)(B), 2009. Jones’ complaint alleged that Wal-Mart’s request for an alternative drug test is considered a “reasonable accommodation,” as it would not impose an “undue hardship” upon Wal-Mart to request a test with which she was physically able to comply.

The case was filed in the United States District Court for the District of Maryland, Baltimore Division. Jones’ case was resolved when both parties stipulated to a consent decree awarding Jones $72,500 in monetary relief. The 30-month consent decree also provided considerable equitable relief, including enjoining Wal-Mart from discriminating against job applicants or employees with disabilities by failing to provide reasonable accommodations. Wal-Mart is also required to revise its drug screening process so that it advises applicants of alternative drug screening processes available to reasonably accommodate any disability making the standard urinalysis test difficult or impossible. Finally, Wal-Mart East, which operates Wal-Mart’s retail stores in the Eastern United States, will provide training on the ADA, including the revised drug screening process, to its market and regional human resources directors and those persons responsible for hiring.

The Equal Employment Opportunity Commission (EEOC) responsible for filing this case stated this is the fourth lawsuit they’ve filed that “alleg[es] the employer failed to provide a reasonable accommodation and refused to hire a qualified applicant when the solution to provide a blood drug test during the drug screening process-was simple.” http://www.natlawreview.com/article/wal-mart-stores-east-will-pay-72500-to-settle-eeoc-disability-discrimination-lawsuit. (See also: EEOC v. Kmart Corporation; Sears Holdings Management Corporation; Sears Holding Corporation, filed in the U.S. District Court for the District of Maryland, EEOC v. Fort Worth Center of Rehabilitation, filed in the U.S. District Court for the Northern District of Texas, which settled for $30,000 and additional equitable relief, and EEOC v. G2 Secure Staff, LLC, filed in the U.S. District Court for the Eastern District of North Carolina, also settling for $30,000 and equitable relief).

An employer or potential employer’s failure to reasonably accommodate employee or applicants engaged in the hiring process can serve as the basis of a disability discrimination suit under the ADA. To prevent these situations, it is in the best interest of the employer to consider reasonable alternative hiring processes and adjustments to the working environment to accommodate employee’s protected by the ADA. Once an employee or potential employee brings a complaint for failure to reasonably accommodate under the ADA, the burden of proof shifts to the employer to prove that any reasonable accommodation would inflict an “undue hardship” on the employer. This burden is not one easily demonstrated, in light of the fact that many reasonable accommodations are as simple as an alternative form of drug testing. Adequate training and re-fresher courses for employers, employees and those responsible for hiring is essential in ensuring that all parties know their rights and responsibilities under the American with Disabilities Act and its subsequent amendments.

As with any rule, there are exceptions.

Please seek professional assistance with any questions or specific situations.
ADVERTISING MATERIAL ONLY: If you need legal services, please seek professional counsel.

Winner…Winner…Chicken Dinner!!!

Winner…Winner…Chicken Dinner!!!
Thank you to everyone who came out this weekend for the Heart of Centerville Holiday Walk! We enjoyed seeing all of you at our spectacular face-painting tent! As most of you know, we provided a free raffle item: a Last Will and Testament, Living Will, Health Care Power of Attorney and General Power of Attorney for one individual! We do have a winner…whoever has my business card with the number: #1011 on the back…you have WON!!! Please give us a call to set up your free consultation, and remember to bring the winning business card with you. You must claim your prize by the end of business on November 30th…or we will have to pick another number. Also, you must use the gift certificate for the estate planning package within one year. Congratulations, and thanks again to everyone who participated in what was a wonderful evening in Centerville, Ohio! Happy Holidays! -Michelle Arostegui

Transgender Discrimination: The Blossoming of Title VII’s Most Recent Protected Class

In the past year, the EEOC filed two sex discrimination lawsuits of a new subset: transgender discrimination. The most recent of these cases, filed just a month ago, alleges that a Detroit-based funeral home fired a funeral director/embalmer for one or more of the following reasons: because she was transgender, because she was transitioning from male to female, and/or because her transition or identification as a female did not comply with the business’ gender based expectations, preferences or stereotypes. (Note: The pronouns in this article and in the EEOC’s allegations against the defendant funeral home identify the plaintiff as a “she,” representing the gender with which she currently identifies.) An increase in the awareness of the transgender and transsexual communities just in the past decade finally shed the light on the fact that these communities not only exist, but that their existence is riddled with social and workplace discrimination that often goes unnoticed. http://www.natlawreview.com/article/eeoc-sues-detroit-funeral-home-chain-sex-discrimination-against-transgender-employee.

In order to continue and maintain a discussion of this type, it is important to clarify what exactly the term “transgender” means. More foundationally, we must understand the terms “sex” and “gender” are also not synonymous. According to the World Health Organization, “sex” is the “biological and physiological characteristics that define men and women.” On the other hand, the term “gender” encompasses the “socially constructed roles, behaviors, activities, and attributes that a given society considers appropriate for men and women [a particular sex].” For example, consider the way that our society associates the color “blue” with a boy and the color “pink” with a girl. http://www.who.int/gender/whatisgender/en/.

The distinction between “sex” and “gender” is essential to understanding, and correctly using, the term “transgender.” The National Center for Transgender Equality defines “transgender” as, “a term for people whose gender identity, expression or behavior is different from those typically associated with their sex assigned at birth.” For example, a transgender person might have been born a biological male but identify with the gender identity, expression and/or behavior typically associated with a woman in our society. The concept of “gender identity” does not necessarily manifest in accordance with the sex we are assigned at birth. Rather, it is a more “invisible” sense of how we identify with being a male, female or something else. When an individual feels as though his or her “gender identity” is in conflict with their sex and the gender expressions our society associates with that sex, they may identify as transgender and begin making transitions to minimize the dissonance between their sex and gender identity. http://transequality.org/Resources/TransTerminology_2014.pdf.

The steps an individual may take to minimize his or her internal conflict between their sex and gender identity are known as “transitions.” The National Center for Transgender Equality broadly defines “transitions” as:

The time when a person begins living as the gender with which they identify rather than the gender they were assigned at birth, which often includes changing one’s first name and dressing and grooming differently. Transitioning may or may not also include medical and legal aspects, including taking hormones, having surgery, or changing identity documents (e.g. driver’s license, Social Security record) to reflect one’s gender identity. Medical and legal tests are often difficult for people to afford. http://transequality.org/Resources/TransTerminology_2014.pdf.

The Detroit-based funeral home is accused of discriminating against its employee while she made the transition from male to female. The plaintiff, Amiee Stephens, began her career with R.G. & G.R. Harris Funeral Homes in October 2007 and had always performed the duties of her position as funeral director/embalmer adequately. Last year, she gave her employer a letter and explained that she was beginning her gender transition from male to female and would soon begin dressing in business attire consistent with her identity as a woman. Just two weeks after the delivery of her letter, Harris Funeral Homes terminated Stephens, stating that what she was “proposing to do” was unacceptable.

This case is one of the first the EEOC has filed alleging transgender discrimination. In 2012, the EEOC held that discrimination on the basis of any “gender identity” constitutes sex discrimination under Title VII. While this is, as of now, an expansion of the EEOC’s interpretation of Title VII, the filing of this case is a step in the right direction to expand the statute to include transgender discrimination as a violation of Title VII. According to the EEOC, these suits are part of an organized operation to prioritize members of the gay and transgender communities as protected classes. http://www.lexology.com/library/detail.aspx?g=5955d8f5-db5d-4d99-bb24-9a7411b59f1d.

Employers should use caution and take steps to make themselves aware of the challenges that members of the LGBTQ (Lesbian, Gay, Bisexual, Transgender and Questioning) community are confronted with, simply by adhering to the identity they feel suits them best. Employers and employees would greatly benefit from training to spread LGBTQ awareness. Learning the socially preferred “terminology” for members of these blossoming communities will also facilitate better communication between employers and employees. As with any other category of Title VII discrimination, education, communication and awareness are the keys to an equal opportunity workplace.

As with any rule, there are exceptions.
Please seek professional assistance with any questions or specific situations.
ADVERTISING MATERIAL ONLY: If you need legal services, please seek professional counsel.

Department of Justice Settles Citizenship Discrimination Claim

Earlier this month, the Justice Department announced settlement of a claim between The Office of Special Counsel for Immigration-Related Unfair Employment Practices (OSC) and Culinaire International, a catering and restaurant management company out of Houston, Texas. Culinaire allegedly engaged in citizenship discrimination by requiring “lawful permanent resident employees” to produce a new Permanent Resident Card upon expiration of their prior card. http://www.justice.gov/opa/pr/2014/September/14-crt-923.html.

The Immigration and Nationality Act (INA) strictly prohibits this procedure, as “lawful permanent residents” are entitled to permanent work authorization, even after their resident cards expire. Specifically, Section 247(B) of the act prohibits employers from discriminating against employees based on their nationality or citizenship status. http://www.uscis.gov/iframe/ilink/docView/SLB/HTML/SLB/act.html.

The United States Department of Justice reported that Culinaire was cooperative and eager to change its practices to avoid any future citizenship-based discrimination claims. The settlement agreement required Culinaire to pay $20,460 in civil penalties to the United States, establish a $40,000 “back-pay” fund for potential victims of the company’s discrimination, as well as submit to INA anti-discrimination training. Culinaire is additionally required to alter its employment reverification process, the implementation of which will be monitored by the Department of Justice.

It is important to note that discrimination based on citizenship status and discrimination based on nationality are not one in the same. Title VII of the Civil Rights Act of 1964 governs discrimination based on nationality and prohibits unfavorable treatment of those employees from or associated with (by marriage, ancestry, etc.) a particular country or part of the world. Examples of nationality-based discrimination include unfavorable employment policies towards employees or potential employees with an “accent” or even an “English only” employment policy, in which a business only hires applicants fluent in the English language. http://www.eeoc.gov/laws/types/nationalorigin.cfm.
Citizenship-based discrimination, on the other hand, is governed by the Immigration Reform and Control Act of 1986 (IRCA), as well as the aforementioned Immigration and Nationality Act (INA). These statutes prohibit unfavorable employment practices with respect to the citizenship status of a person, including general protection against the citizenship-based discrimination that Title VII does not cover. Interestingly enough, per the EEOC, common examples of discrimination based on citizenship status include a “citizens only” or “green card only” hiring rule.

The Supreme Court upheld the distinction between nationality-based discrimination and citizenship-based discrimination nearly forty years ago in the Espinoza v. Farah Mfg. Co. Inc.. In Espinoza, the defendant company denied the non-citizen plaintiff’s employment application on “the basis of a longstanding company policy against the employment of aliens.” (@87). At that time, the Equal Employment Opportunity Commision (EEOC) issued an interpretative guideline which served as the premise for the plaintiff’s complaint, as it stated: “Because discrimination on the basis of citizenship has the effect of discriminating on the basis of national origin, a lawfully immigrated alien who is domiciled or residing in this country may not be discriminated against on the basis of his citizenship…” (@92).

In Espinoza, the Supreme Court did not find that discrimination on the basis of citizenship had the effect of discrimination on the basis of national origin and upheld the business’ right to hire only those who had obtain citizenship status. (@93). The Court acknowledged a potential connection between citizenship-based and nationality-based discrimination, in certain instances, such as an employer’s use of a citizenship test as a pretext to cloak actual national origin discrimination. (@93). The majority opinion therefore concluded that nothing in Title VII makes citizenship-based discrimination illegal (@95).

Though it is not binding law, Justice Douglas’ dissenting opinion in Espinoza brings to light some great questions about this distinction and its potential effect on employment law in this day and age. Justice Douglas asserts, almost scathingly, that discrimination based on national origin and discrimination based on citizenship are closely related. Highlighting the fact that aliens are only considered such due to their birth outside of the United States and therefore have a different nationality, Justice Douglas expressed serious concern that the construction of the term ‘national origin’ was not the same as the construction given to the terms ‘race’ or ‘sex’ when analyzing a discrimination claim. Accusing the majority of this misconstruction, he states: “Discrimination on the basis of alienage always has the effect of discrimination on the basis of national origin…any other construction flies in the face of the underlying congressional policy of removing ‘artificial, arbitrary, and unnecessary barrier(s) to employment.” (@97-98).
Of course, the Supreme Court’s holding is binding and still stands to this day. Yet Justice Douglas’ dissent pinpoints an area of concern in bringing a national origin or citizenship based discrimination claim: Does the Court’s failure to include citizenship-based discrimination as a subset of discrimination based on nationality create a loophole for employers in Title VII proceedings? A potential client could allege citizenship-based discrimination under IRAC or INA, but do these additional and subsequent acts provide sufficient protection for clients enduring citizenship-based discrimination? And finally, why is the distinction between national origin discrimination and citizenship-based discrimination in Title VII still so important if statutes exist condemning both forms of discrimination?

In this increasingly globalized economy, it is essential that employers maintain equal opportunity employment practices and pay close attention to the statutes, and nuances within those statutes, that govern acceptable employment practices. Discrimination based on nationality or citizenship status may not be the first type of employment discrimination that comes to mind, but it is most certainly a present-day concern for employers and potential employees, alike.

As with any rule, there are exceptions.
Please seek professional assistance with any questions or specific situations.
ADVERTISING MATERIAL ONLY: If you need legal services, please seek professional counsel.

Religious Discrimination in the Workplace

Recently, the EEOC has filed a lawsuit for religious discrimination against Food Lion, LLC (“Food Lion).  While there are multiple types of religious discrimination, the lawsuit against Food Lion focuses on the failure of Food Lion to provide a “reasonable accommodation” based upon a sincerely held religious belief.  This is often the form that religious discrimination takes in the workplace.  In the recent lawsuit, the sincerely held religious belief was that of a Jehovah’s Witness.  Victaurius Bailey (“Mr. Bailey”) was hired as a meat cutter at Food Lion on June 6, 2011.  Mr. Bailey was also a Jehovah’s Witness minister and elder.  According to Mr. Bailey, as a component of his faith, he was required to attend church services every Sunday and Thursday evening.  Apparently, this fact was known when Mr. Bailey was hired as he disclosed the situation and requested an accommodation.  Mr. Bailey’s store manager, at hire, agreed to accommodate his request.  However, very shortly after his hire, Mr. Bailey was transferred to another Food Lion location.  The store manager at the second location told Mr. Bailey that if he could not work on Sundays then he could not work for Food Lion.  Mr. Bailey was terminated on June 27, 2011 because he was unavailable to work on Sundays.  http://www.eeoc.gov/eeoc/newsroom/release/8-20-14a.cfm

While this matter is far from being resolved and must, first, work its way through the court system, it has piqued my curiosity regarding religious discrimination in the workplace.  As an employment attorney, I can assert that very few cases that I see involve religious discrimination in the workplace.  In fact, for many years religious discrimination seemed to be an afterthought to the anti-discrimination statutes and did not garner as much attention as some of the more typical protected classes.  Why is this?  My guess is that religious discrimination has been viewed as unchartered and unknown territory.   While state and federal law makes clear that you cannot discriminate against a person based on their religious belief, the U.S. Constitution also has something to say about religion.  Both the “anti-establishment” and “free expression” clauses of the First Amendment complicate the issue.  When does one person’s free expression/exercise of their religion constitute discrimination against another?

However, the U.S. Equal Employment Opportunity Commission (“EEOC”) is beginning to give more attention to religious discrimination in the workplace.  Statistics show that in EEOC filings, religious discrimination charges have more than doubled since 1997.  Accordingly, employers must be aware of what they are permitted to do and not permitted to do, as it pertains to religion in the workplace.  Otherwise, employers will find themselves at odds with the EEOC, which is not a comfortable place to be.

What is religious discrimination?  Religious discrimination involves treating an applicant or employee unfavorably because of his or her religious beliefs or those of a person that the applicant or employee is associated with.  Essentially, a person’s religion cannot be the basis of any employment decision, i.e., hiring, termination, compensation, promotions, job assignment, etc.  Further, the prohibition against religious discrimination applies to both commonly understood and recognized religions as well as those that people are much less familiar with.  The only qualification is that the religious belief be sincerely held.  It is, also, not relevant if a belief or practice is newly adopted by an employee.  The rules apply to the sincerely unreligious as well, as long as these views relate to “what is right or wrong that are sincerely held with the strength of traditional views.”  http://www.washingtonpost.com/national/religion/eeoc-details-employer-rules-as-religious-worker-complaints-rise/2014/03/06/11c0e2c2-a58a-11e3-b865-38b254d92063_story.html

Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e, et seq. prohibits the following actions, among other things:

  • Disparate treatment based on religious affiliation
  • Denial of reasonable accommodation
  • Workplace job segregation
  • Workplace harassment based on religion
  • Retaliation for requesting an accommodation

http://www.eeoc.gov/eeoc/publications/qa_religious_garb_grooming.cfm

While some of the prohibitions seem self-explanatory, a little more detail is required to fully understand others.  Probably one of the most common areas of religious discrimination, in the workplace, is the denial of a reasonable request for religious accommodation.  Food Lion is finding themselves in a lawsuit because of its refusal to accommodate Mr. Bailey’s request for accommodation.  Common among these types of cases is an employer’s refusal to allow an employee’s particular dress and/or grooming practices that are a part of that employee’s religious beliefs.  The EEOC has recently filed suit against an Alabama nursing home for refusing to allow a Muslim employee to wear a hijab.  The employer, in that situation, refused the employee’s request for a reasonable accommodation, leading the employee to file a charge with the EEOC.  http://www1.eeoc.gov/eeoc/newsroom/release/7-7-14.cfm.  Assuming that the reasonable accommodation does not place an undue hardship on the employer, a person’s religious beliefs and customs must been respected.

As is evident in the case involving the Muslim employee’s request to wear the hijab, some religious customs and/or traditions make it clear that a person is a member of a particular religion.  However, employers cannot engage in workplace job segregation on the basis of religion.  Sometimes employers think that they can place an employee “in the back” and away from customers because to do otherwise would make the customers uncomfortable.  However, if an employer takes an action based on the discriminatory religious practices of others, including, customers, clients, or co-workers, the employer is unlawfully discriminating in employment based on religion. http://www.eeoc.gov/eeoc/publications/qa_religious_garb_grooming.cfm.

Employers need to be very careful when it comes to the sincerely held religious beliefs of their employees.  Because of the diversity among religions, more and more people are beginning to affiliate themselves with various religions.  Likewise, when discussing religion, people, understandably, become very passionate.  If they believe that their sincerely held religious belief is being belittled or ignored, they will become vocal regarding the violation of their rights.  Vocal employees visit the EEOC.  EMPLOYERS BEWARE!

As with any rule, there are exceptions.

Please seek professional assistance with any questions or specific situations.

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Social Media in Jury Selection

If you have ever served as a jury member you probably remember completing a jury questionnaire prior to your service.  This jury questionnaire requires that you answer some fairly basic questions about yourself and submit it to the court.  The questionnaire assists in making the determination as to your suitability to act as a juror on specific cases.  What you may not know is that prior to the start of a trial, counsel receives copies of the questionnaires for all members of the jury pool.  While the questionnaire is fairly basic, it definitely contains information that allows attorneys to identify you and, if they desire, the information that would allow the attorney to find out a whole lot more about you.  Also, remember that we live in the “age of Social Media” and it is not difficult to foresee the problem.  I mean, really, you can find more out about a person by perusing their Facebook Page or Twitter feed than pretty much any other source.  People, quite surprisingly, are prone to broadcast their deepest, darkest, most private thoughts on social media.  Rest assured, that if you put the information out there, it will be discovered by those you wish did not have access to it, such as employers and now also attorneys.

You cannot really fault the litigation attorneys that are making social media review of jurors a part of their preparation for trial.  It is their job to discover as much about the prospective juror as they possibly can to ensure that they are suitable to be chosen as a juror and do not have any undisclosed bias against their client.  After all, attorneys are charged with the responsibility of zealously representing their clients and their clients’ interests.

Courts have, increasingly had to deal with jurors’ desire to discuss ongoing trials on social media.  While problematic, judges can normally curtail such activity by instructing the jurors that commenting about the trial on social media is a big no-no and that failure to heed the judge’s admonition could have undesired consequences, such as being held in contempt of court.

However, it is becoming so common for attorneys to view the social media pages of prospective jurors that the American Bar Association (“ABA”) has offered its advice in the form of Formal Opinion 466.  You may ask why it is such a big deal because like stated earlier, you should not have an expectation of privacy on anything you post on social media.  The crux of the problem is found in the Rules of Professional Conduct, specifically Model Rule 3.5(b), which prohibits ex parte communication with jurors.  In Formal Opinion 466, the ABA has determined what constitutes ex parte communications in the realm of social media.

The formal opinion divides social media review into three categories, two of which are permitted and one which is not.  Passive review of a juror’s social media profile that is set to “public” is permitted.  Essentially, passive review is that which is available without the attorney making an access request and review that occurs without the juror’s knowledge.  However, if the juror’s social media settings are “private”, thereby requiring an access request, then that request would be considered an ex parte communication because it would be a specific request from the attorney to the prospective juror.  Finally, the formal opinion states that if there is an automatic notification feature that notifies the person of a passive review, think LinkedIn, that it is permissible because the communication is from the social media entity and not the attorney.  However, the New York State Bar Association has reached a different conclusion regarding the automatic notification, classifying it as an improper communication.

The ABA ethics committee added a suggestion that judges may want to advise the jury pool that the attorneys have a legitimate interest in learning more about their backgrounds which may include searching for information on the internet.  While I definitely can see the benefit of such a statement, I am sure that most prospective jurors will not appreciate an attorney digging into their background.  Times, though, are definitely changing and people’s expectation of privacy is dwindling with each new technological invention.

For more information, review http://www.abajournal.com/magazine/article/lawyers_may_look_at_what_jurors_post_online_but_only_if_its_available_to_th/

As with any rule, there are exceptions.

Please seek professional assistance with any questions or specific situations.

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Original Wills and Safe Deposit Boxes

Whenever someone puts together their “important documents,” the question comes up, “Should I put this in my safe deposit box?”  Usually the answer to that is a resounding “Yes!”  When it comes to a Last Will and Testament though, my advice would be to put it someplace safe, but not in a safe.

Many times, at the decedent’s death, safe deposit boxes are sealed by the bank until someone has been appointed the executor or personal representative of the estate.  And herein lies the paradox…if you don’t know who the executor was intended to be without looking at the Last Will and Testament, then how can you get access to the safe deposit box, which will give you the executor’s name on the Last Will and Testament?

Well, you might say, my wife/my husband also has access to my safe deposit box…so they could just open it for me.  That assumes that they like the terms of your Last Will and Testament, and would gladly offer it up to the Court.  They may prefer to have the Laws of Intestacy rule instead of what you had written in a Will.

There is a proceeding that can be brought in the Probate Court to allow a friend or relative to access your safe deposit box in order to obtain the original document that is contained within.  This can be an extra expense that you hadn’t counted on.

Many estate planning attorneys will offer to keep the original in their files and give you a photocopy for your records.  But a good, sturdy fire-safe box from Home Depot or Lowes may really be all you need for your Last Will and Testament to remain safe…and accessible.

 

Is Telecommuting a Reasonable Accomodation Under the ADA?

The U.S Court of Appeals for the Sixth Circuit (which encompasses Tennessee, Kentucky, Ohio and Michigan) issued an important ruling on April 22, 2014, as to whether telecommuting was a reasonable accommodation under the Americans with Disabilities Act (“ADA”).  In a 2-1 decision, the court reversed the dismissal of a suit filed by the Equal Employment Opportunity Commission (“EEOC”), which was filed on behalf of Jane Harris, a former employee of the Ford Motor Co. (“Ford”).  While, procedurally, the conclusion of the story is yet to be seen, the Sixth Circuit’s reversal is being hailed by the EEOC as the proper interpretation of the ADA.  Likewise, the Court’s opinion is being criticized by those representing business interests for its potential, far-reaching and disturbing conclusions.

Jane Harris (“Ms. Harris”) was employed as a resale steel buyer for Ford, which means that she served as an intermediary between steel suppliers and the companies that use steel to produce auto parts for Ford.  Since the time that she began her employment with Ford, in 2004, Ms. Harris has had irritable bowel syndrome.  Such condition has led to her intermittent leave under the Family & Medical Leave Act “(FMLA”).  It was determined that her absences began to affect her job performance.  Her supervisors, on a trial basis, permitted Ms. Harris to work on a flex-time telecommuting schedule.  Ultimately, though, and of great significance, is the fact that Ford determined that the trial schedule was unsuccessful because Ms. Harris was “unable to establish regular and consistent working hours.

In February, 2009, Ms. Harris, formally, requested permission to telecommute on as needed basis as an accommodation of her disability under the ADA.  The ADA requires employers to reasonably accommodate employees that are otherwise qualified for their position and can perform the essential job functions of their position, with the accommodation.  Additionally, Ford does maintain a, rather liberal, telecommuting policy which allows employees to telecommute for up to four days a week.  While all salaried employees are eligible for telecommuting, the policy states that “such arrangements are not appropriate for all jobs, employees, work environments or even managers.”

Ford, subsequently, denied Ms. Harris’ request for “reasonable accommodation”, claiming that her job was not suitable for telecommuting.  Ford’s executives claimed that the job’s essence was “group problem-solving” and that Harris must be available to interact with other Ford employees, steel suppliers and others in the production chain when problems arise.”  Ford did present other accommodations to Ms. Harris.  Ford suggested moving Ms. Harris’ workspace closer to the restroom or seeking another job for Ms. Harris, within Ford, that was more suitable for telecommuting.  However, Ms. Harris rejected the alternative accommodations and began complaining that her supervisor was harassing her for leave-related absences.  In April, 2009, Ms. Harris filed a charge with the EEOC.  Subsequently, Ms. Harris was placed on a performance enhancement plan in July, 2009 and was terminated the following month for failing to achieve her performance goals.

The EEOC filed suit, on behalf of Ms. Harris, for disability discrimination and retaliation under the ADA.  In 2012, the federal district court dismissed the action on the basis that the EEOC could not establish that Ms. Harris was a “qualified individual with a disability” because the sought accommodation would not allow her to perform the essential functions of her job, including collaboration with her workplace team for which physical presence in the office was required.

In a decision that surprised many, as it was a departure from previous Sixth Circuit opinions, the Court determined that the EEOC raised a triable issue regarding whether or not Ms. Harris could perform the essential functions of her job through attendance by technological means without causing Ford undue hardship.  Likewise, the Court determined that the EEOC raised a triable issue that Ford’s termination of Ms. Harris for failure to satisfy performance goals was a pretext for unlawful retaliation under the ADA.

While the Court acknowledge that Sixth Circuit precedent establishes that regular attendance is an essential function of most jobs and telecommuting is a reasonable accommodation in only the most unusual cases, it was persuaded by the argument that technological advances may have expanded the class of job for which telecommuting is reasonable.

The dissenting opinion, which was penned by Judge David W. McKeague, envisions an unfortunate impact.  Judge McKeague claims that the decision will probably result in employers revising their telecommuting policies to avoid legal liability, thereby harming those employees that benefit therefrom.

Detractors from the Court’s decision are claiming that the Sixth Circuit has overhauled its own precedent and are reading into the ADA things that were never intended.  Typically, according to opponents, an employer, not an employee, gets to define the essential job functions, which may include the location where the work is to be performed.  Additionally, it should not be forgotten that Ms. Harris was permitted to telecommute on a trial basis which proved to be unsuccessful due to her failure/inability to establish regular and consistent working hours.  Likewise, Ford did not simply deny Ms. Harris’ request for accommodation but, instead, suggested alternative solutions.  However, the Court was not persuaded by these arguments.

While the Sixth Circuit’s decision does not mean a “victory” for the EEOC and Ms. Harris, it will stand alone for the future.  In this instant case, Ms. Harris’ claims will be tried to a jury, which did not occur, previously, because of the district court’s dismissal.  At the end of the day, Ford may be successful on the merits of the case.  However, the Sixth Circuit’s decision will be cited time and time again for the proposition that telecommuting is a “reasonable accommodation” despite what the employer says are the essential functions of the job.  With advances in technology and every-changing case law, employers are unable to determine whether or not they are exposing themselves to legal liability under the ADA.

For more information, review http://www.bna.com/court-says-telecommuting-n17179889934/.

As with any rule, there are exceptions.

Please seek professional assistance with any questions or specific situations.

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