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Archive for the ‘Employment Law Blog (US)’ Category

New Jersey’s Appellate Court Rules LAD Exception Applies Concerning Accommodation of Employee’s Religious Practice

Posted on: March 22nd, 2017

By: Barry S. Brownstein

In Tisby vs. Camden County Correctional Facility (CCCF), New Jersey’s Appellate Court decided in January of this year whether the trial court had properly found that the CCCF’s concerns for its safety, security and neutrality were legitimate non-discriminatory reasons why allowing plaintiff an accommodation would cause an undue hardship on defendants. New Jersey courts have not previously addressed this issue.

After reporting to work in a traditional Muslim khimar, a tight-fitting head covering, Tisby’s supervisor informed her she was not in compliance with the uniform policy and could not work unless she removed the khimar. When Tisby refused to remove her khimar, she was sent home and disciplinary charges were recommended. Even though she had not formally submitted a request, CCCF’s warden advised Tisby he considered her “position as a request for an accommodation under Title VII of the Civil Rights Act, as well as New Jersey’s Law Against Discrimination (LAD).” Following her removal, Tisby filed a complaint against the CCCF, asserting that she had been “wrongfully suspended without pay” due to her religious beliefs, in violation of N.J.S.A. 11A:2–13, and CCCF had failed to reasonably accommodate her religious beliefs pursuant to the LAD.

The core of Tisby’s complaint is a violation of her religious rights. Under the LAD, employers cannot impose any condition upon employees that “would require a person to violate … sincerely held religious practice or religious observance.” N.J.S.A. 10:5–12(q)(1). However, an exception exists if an employer cannot accommodate “the employee’s religious observance or practice without undue hardship on the conduct of the employer’s business” after putting forth a “bona fide effort” to accommodate. An “undue hardship” is defined as “an accommodation requiring unreasonable expense or difficulty, unreasonable interference with the safe or efficient operation of the workplace or a violation of a bona fide seniority system or a violation of any provision of a bona fide collective bargaining agreement.” N.J.S.A. 10:5–12(q)(3)(a).

After weighing the safety concerns, including the safety risk and the ability to hide contraband in head coverings, as well as the necessity of uniform neutrality, the trial judge determined that the CCCF had met its burden of establishing accommodation was a hardship. In addition, the CCCF’s reasons for denying an accommodation were not pretextual. Therefore, Tisby failed to overcome the finding of a hardship to the CCCF. Consequently, the Appellate Court held that summary judgment to CCCF had been properly entered.

Employers should be aware that this exception exists if they cannot accommodate an employee’s religious observance or practice.

For any questions, please contact Barry Brownstein at [email protected].

Eleventh Circuit Says No Title VII Protection For Sexual Orientation Discrimination

Posted on: March 17th, 2017

Image result for gender nonconformityBy Marty Heller and Amanda Hall

A split three judge panel from the Eleventh Circuit Court of Appeals ruled that there is no Title VII protection for sexual orientation discrimination.  In Evans v. Georgia Regional Hosp. et al., Eleventh Circuit Judges William Pryor and Robin Rosenbaum, as well as District Judge Martinez, sitting by designation from the Southern District of Florida, addressed this issue for the first time on behalf of the Eleventh Circuit.  The majority opinion relied upon binding precedent from the previous Fifth Circuit in recognizing that a plaintiff may not state a claim for sex discrimination or gender stereotyping solely by alleging that they were treated differently due to their sexual orientation.

The concurrence and the dissent in this case show the divisions over this issue.  Judge Pryor concurred specially to address the arguments made by the dissent and the EEOC. In his concurrence, Judge Pryor noted the difference between a sexual orientation discrimination claim, which he reasoned cannot be brought under Title VII, and gender stereotyping or gender non-conformity claim, which he found is actionable.  Judge Pryor noted that a gender non-conformity claim “is, and always has been, behavior based.”  On the other hand, discrimination claims based upon sexual orientation, standing alone and not based upon actions or behavior of the plaintiff, are status-based, and “[s]tatus-based protections must stem from a separate doctrine or directly from the text of Title VII.”  Because sexual orientation is not identified as a protected class within the statute, Judge Pryor opined that it is not protected by Title VII, and that any such protection must come from Congress amending the statute, as opposed to the judiciary.

Judge Rosenbaum’s dissent argued that “discrimination against an employee solely because she fails to conform to the employer’s view that a woman should be sexually attracted to men only” is necessarily a claim for gender non-conformity.

Because the panel concluded that the plaintiff’s sexual orientation discrimination claims are barred by binding precedent, and binding Eleventh Circuit precedent may only be overruled by a subsequent opinion by either the full Eleventh Circuit (referred to as an en banc decision) or a decision of the Supreme Court, it is likely that the plaintiff in this case will seek to have this case reheard en banc.  Indeed, Judge Rosenbaum expressly urged the court to rehear this case en banc in her dissent.

Unless and until further action is taken, an employee in the Eleventh Circuit may not pursue a claim for discrimination based solely upon his or her sexual orientation.  Employers should continue to recognize, however, that gender stereotyping — based upon an employee’s behavior in acting (or failing to act) in accordance with gender norms — constitutes an actionable form of sex discrimination.

For more information, contact Mary Heller at [email protected] or Amanda Hall at [email protected].

If The Oscars Can Fix It, So Can You

Posted on: February 27th, 2017

By: Mary Anne Ackourey

By now, you probably have learned about the big mistake at the Oscars a few weeks ago. Maybe you were watching it live, or, instead, like me, catching it the next morning on your phone or desktop. Wow, that was a big screw up, and to the outside eye, totally preventable, but we all know that it happens. Even in Hollywood. But, they fixed it, and while PricewaterhouseCoopers spent days trying to figure out how the presenter got the “wrong envelope” (as if there is a  meaningful answer other than human error), the right movie got the award, and so life goes on.

On my way to work, this got me thinking about how we, as employers, sometimes get it wrong and where that leaves us when a decision is challenged. Terminations, leave decisions, conclusions in investigations… Usually it is not as simple as  giving the wrong envelope, like at the Oscars. More likely than not, we just do not have all of the facts. We try to make decisions soundly and efficiently, but  key items sometimes get overlooked. That is business. From a risk prevention strategy, though, there are two  keys points: The first  is to prepare for that possibility. Is there anything else we as employers should consider when making the decision at hand? While this is not a one-size fits all approach, often,  it makes sense, even when lowering the boom in a termination situation,  to include ( in writing) a directive to the employee “ if you believe there is any other information we should consider, please let us know immediately.” I  find this particularly helpful in an investigation situation or in a complicated employee medical leave case.  In most situations, it shores up for us that there likely is not anything else out there that should have been considered or that we missed. If there is something more, and the employee does not mention it until litigation, even after we ask for it  in the termination letter,  then that usually becomes more his or her problem than ours. But, if there is something important, it usually is better to know now vs.  later – particularly  after spending a lot of time and money wrapped up with an EEOC Charge or lawsuit.

That brings me to my second key point which is this: Fix it. If it turns out, like the Oscars, that there was a mistake, that we missed something that would change the ultimate outcome, then simply fix it. Imagine a situation where you have terminated an employee on leave for disappearing  but it turns out the employee is actually at work unbeknownst to you? Or you uncover text messages central to an issue you have reviewed, only after you reach your conclusion? This stuff happens. Don’t be reluctant to fix it. I often hear, “how is that going to look?” to which I usually respond, “how is it going to look if we don’t fix it?” From a risk management standpoint, the key is to prepare for it and, in the event of a mistake, fix it. Sure, we can stand by  our decision and sometimes even justify  it, but from a risk prevention standpoint, in most situations, this becomes high risk business. Just like giving out the wrong envelope.

For any questions, please contact Mary Anne Ackourey at [email protected].

Trump Nominates New Labor Secretary Nominee One Day After Puzder Drops Out

Posted on: February 16th, 2017

GTY-alexander-acosta-02-as-170216_31x13_1600By: Marty Heller

Donald Trump has named Florida International University Law School Dean, R. Alexander Acosta, as his new nominee for Secretary of Labor. Acosta is a Harvard Law graduate who clerked for Supreme Court Justice Samuel Alito when he was an appeals court judge, and previously has served on the National Labor Relations Board and was an Assistant Attorney General under George W. Bush, before acting as US Attorney for the Southern District of Florida. It remains to be seen where Acosta stands on several key issues that await the new secretary of the DOL, including implementation of the currently enjoined “overtime rule” which substantially increases the minimum salary to qualify for the FLSA’s white collar exemptions. 

For any questions, please contact Marty Heller at [email protected].

Breaking News – Puzder Withdraws from Consideration to be Secretary of Labor

Posted on: February 15th, 2017

By: Paul H. Derrick

Andy Puzder, President Trump’s nominee for Secretary of Labor, has withdrawn his name from consideration after being plagued by criticism since his nomination. Union leaders and prominent Democrats have been among his staunchest critics. Puzder’s decision to step down comes a day before his Senate confirmation hearing was set to begin. Just hours before the announcement of his withdrawal, media outlets had begun reporting that Republican officials advised the White House that Puzder lacked the votes needed for confirmation because at least four GOP senators intended to break ranks and vote against him. It remains to be seen who President Trump will nominate in his place.

For any questions, please contact Paul Derrick at [email protected].