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Archive for November, 2020

EEOC Has Proposed New Religious Accommodation Guidance And It May Just Help Employers Defeat Workplace Bias Claims

Posted on: November 25th, 2020

By: Natalie Pulley

On November 17, 2020, the EEOC released proposed guidance on religious discrimination in the workplace – the first update to its religious discrimination compliance manual since 2008. While religious discrimination cases only make up a small percentage of all charges filed with the EEOC, notable cases, such as the 2014 U.S. Supreme Court case involving Hobby Lobby,[1] have raised questions of what protections are available to religious employers.

In general, an employer is prohibited from discriminating because of religion in the terms, conditions or privileges of employment under Title VII of the Civil Rights Act of 1964 (“Title VII”). However, there are exceptions for certain employers. Certain religious employers are permitted to give preference to members of its own religion. A “ministerial exemption” also protects the right of a religious organization to select those who will personify its beliefs, shape its faith and mission, or “minister to the faithful.”[2] If an exception is found to apply, the employer has a defense against discrimination claims by employees under federal employment discrimination laws, including Title VII, the Age Discrimination in Employment Act, the Equal Pay Act, and the Americans with Disabilities Act.

So, what has changed? The guidance provides a wide berth for religious employers and embraces the Supreme Court’s expansive take on the “ministerial exemption” shielding religious employers from certain workers’ claims. The EEOC clarified the exemption is not limited to employees who perform exclusively religious functions but rather, the exemption can also apply to lay employees and even those not “practicing the faith.”

Certain for-profit corporations may also benefit from the proposed guidance. The EEOC did away with a “significant factor” analysis that previously included nonprofit status as a core tenant in claiming the exemption. “Whether a for-profit corporation can constitute a religious corporation under Title VII is an open question,” the EEOC said. The guidance provides no single variable should be dispositive in determining an organization’s status under Title VII. This change provides certain for-profit corporations the opportunity to claim an exception as a religious employer.

The proposed guidance also discusses the intersection of religious bias claims with hot button issues. The EEOC includes an example of a nurse who requested a hospital accommodate her religious beliefs by allowing her to trade assignments with other nurses in the Labor and Delivery unit as needed to avoid assisting with abortions. The hospital denied her request stating that, due to staffing cuts and risks to patients’ safety, it could not accommodate the nurse in her current position. Instead, the hospital offered to transfer the nurse to a different position without a reduction in pay or benefits. The EEOC’s guidance states such a transfer would be lawful, clarifying employers have flexibility in accommodating employees while balancing the needs of their business.

Another hot topic, currently the center of a case against The Kroger Co. initiated by the EEOC,[3] is whether employers can be liable for requiring employees to wear, for example, pins or shirts supporting LBGTQ pride despite a worker’s claim it does not fit into their religious beliefs. In the Kroger case, the EEOC claims a grocery store in Arkansas illegally fired two Christian workers who refused to wear company aprons in support of the LGBTQ community on the basis of their religious beliefs. The case is still ongoing, and the court has not ruled on the issue.  Because the EEOC’s proposed guidance does not state a clear position on an employer’s liability when religious liberty and LGBTQ issues collide, employers will have to wait and see where the courts fall on these issues before having a clear answer on what is and is not permitted.

Finally, the proposed Guidance provides that “secular” decorations in the work environment, such as wreaths, do not run afoul of Title VII even if there are some in the office who don’t celebrate the holiday associated with the decoration.  The proposed Guidance also provides that an employer does not have to decorate for every holiday that may be associated with the religion of all employees.  Rather, an employer is permitted to decorate for just one holiday.  The EEOC does note, however, that an employer’s accommodation obligations still exist and must be assessed based upon a particular employee’s specific request.

The proposed Guidance is available for public comment until December 17, 2020, during which the public can submit their thoughts on the proposed guidance.

If you have questions or would like more information, please contact Natalie Pulley at [email protected].


[1] See Burwell v. Hobby Lobby Stores, Inc., 573 U.S. 682, 719 (2014).

[2] See Hosanna-Tabor Evangelical Lutheran Church & Sch. v. EEOC, 565 U.S. 171, 188-89 (2012).

[3] Case No. 4:20-cv-01099 in the U.S. District Court for the Eastern District of Arkansas.

Getting Strict with Georgia’s Apportionment Statute: Johns v. Suzuki Motor Corp

Posted on: November 24th, 2020

By: Janeen Smith

The Supreme Court of Georgia recently held that Georgia’s apportionment statute, O.C.G.A. § 51-12-33, applies to strict products liability claims brought pursuant to Georgia’s product liability statute, O.C.G.A. § 51-1-11. Johns v. Suzuki Motor of Am., ___ Ga. ___ , 2020 Ga. LEXIS 760 (Case No. S19G1478, decided Oct. 19,2020). This means that defense attorneys can ask juries to consider whether a plaintiff in a products liability lawsuit contributed to his or her injuries apportioning fault. As such, the Johns decision is widely considered a net win for the defense. 

Plaintiff/Appellant Adrian Johns was seriously injured in a motorcycle accident in August 2013 when his Suzuki motorcycle’s front brake failed suddenly. After Johns returned home, he received a recall notice from his motorcycle’s manufacturer. The recall warned of a safety defect involving his motorcycle’s front brake master cylinder that could increase the risk of a crash. Johns filed a lawsuit against his motorcycle’s manufacturer including a strict liability claim based on a design defect. At trial, the Johns’ theory was that a defect in the front brake (the same one the recall addressed) caused his accident, and the manufacturer had prior knowledge of the defect. The manufacturer argued plaintiff’s negligent operation of the motorcycle caused the accident, or if he did experience brake failure, the condition of the brakes existed as a result of his admitted failure to change the brake fluid for eight years. In other words, the manufacturer maintained the recall was unrelated to plaintiff’s claims.

The jury found in favor of plaintiff on each claim and awarded him $10.5 million in compensatory damages and $2 million to his wife for her loss of consortium claim. The jury assessed 49% fault to plaintiff and 51% to defendants. In light of these findings, the trial court reduced plaintiff’s award to $5,355,000 and his wife’s award to $1,020,000. On appeal, plaintiff argued that the trial court erred by applying Georgia’s apportionment statute to reduce an award in products liability lawsuit. In rejecting plaintiff’s argument, The Supreme Court focused on four main points:

  1. Georgia’s apportionment statute does not create an exception for products liability claims;
  2. Plaintiff relied on case law pre-dating the apportionment statute;
  3. Strict liability and apportionment are compatible because the former involves liability and the latter involves fault; and,
  4. Holding manufacturers “absolutely liable” promotes the policy justifications for strict liability products claim, but the legislature considered this to the extent the application of apportionment effects this policy justification.

The third and fourth points are somewhat related and are perhaps the most interesting parts of the opinion. The Supreme Court pushed back on plaintiff’s argument that applying apportionment to a manufacturer defect claim undermines the strict liability framework by showing the two principles are compatible. First, a plaintiff in a products liability action is still relieved from the burden of showing the defect resulted from the manufacturer’s negligence (the key benefit to a strict liability framework).  Second, fault (the main consideration of apportionment) and liability (the main focus of strict liability) involve different considerations. Liability means “responsible or answerable in law.” Liable, BLACK’S LAW Dictionary (11th ed. 2019). Fault, in this context, focuses on the plaintiff’s “responsib[ility]” and “fault” for the injury claimed. Johns at *14.  As such, a jury can consider a plaintiff’s fault while simultaneously acknowledging a manufacturer’s liability.

This case is another example of the trend towards allowing juries to apportion fault in varying circumstances. 

If you have questions or would like more information, please contact Janeen Smith at [email protected].

Car Dealerships Settle Costly TCPA Text Marketing Class Action

Posted on: November 19th, 2020

By: Matthew Foree

The United States District Court for the Northern District of Oklahoma recently granted final approval of a Telephone Consumer Protection Act (“TCPA”) class action settlement involving several automobile dealerships.  The case is King v. Classic Chevrolet, 2020 U.S. Dist. LEXIS 189783 (N.D. Ok. Oct. 14, 2020). 

Among other things, the TCPA prohibits parties from sending telemarketing text messages using an automatic telephone dialing system (“ATDS”) without obtaining the recipient’s prior express written consent. The penalties range from $500 to $1500 per violation such that mass texts that are not compliant can be costly. 

The Complaint in King alleged violations of the TCPA based on telemarketing text messages that were sent to plaintiff and the class members without prior express written consent. Several examples of the text messages are included in the Complaint. They include solicitations about purchasing a new vehicle, extending auto warranties, and discounts on financing.     

The court certified a class of 118,373 members for the purposes of settlement. Case documents reveal that the case settled for $850,000, with just over $283,000 awarded in attorneys’ fees. Although limited information is available from the public case docket, the definition of the settlement class suggests that a third-party marketing company may have been involved in the text campaign.

The settlement serves as a reminder of the potential exposure of businesses that conduct text marketing. These businesses need to ensure strict compliance with the TCPA and its regulations or face the risk of severe penalties. Additionally, to the extent that such businesses rely on third-parties to assist in text marketing campaigns, they should properly vet such third-parties and ensure that those entities strictly comply as well.

Finally, the timing of the settlement in the King case is interesting given that the definition of ATDS is at issue in the Facebook v. Duguid case before the United States Supreme Court, with oral argument scheduled for December 8, 2020. We have previously discussed the importance of the Facebook case here.

If you have questions or would like more information, please contact Matt Foree at [email protected].

Philadelphia and Pennsylvania Announce New “Safer at Home” Restrictions

Posted on: November 18th, 2020

By: Justin Boron

The City of Philadelphia and the Commonwealth of Pennsylvania announced new measures this week aimed at curbing the spike in COVID cases in the region, but neither appear to be ready to initiate a broad-based shutdown like the one that began in March earlier this year.

Set to take effect Friday, the City of Philadelphia’s “Safer at Home” restrictions will have the most immediate effect on businesses and employers. Under them, the following business activities are prohibited:

  • High schools and colleges must move to online instruction only, with the exception of clinical instruction for students in health sciences. 
  • Indoor dining at restaurants and other food service businesses.
  • Theaters, including movie theaters, and other performance spaces. 
  • Bowling alleys, arcades and game spaces.
  • Museums.
  • Libraries.
  • Casinos.
  • Recreational activities and sports for youth, community groups, and schools. 
  • Gyms and indoor exercise classes. (Exercise groups and classes may continue outdoors.)
  • Senior day services (senior centers and adult day care centers) remain closed.

Additionally, the Philadelphia mayor’s order modifies restrictions on restaurants, retail, and office businesses:

  • Restaurants offering outdoor dining must reduce table sizes to four people and limited to members of the same household
  • Retail stores and indoor malls have a max density of 5 people per 1,000 square feet.
  • Offices are permitted to have only employees that cannot work remotely.

The Commonwealth is taking a more targeted approach, but has mandated mask-wearing both inside and outside. Additionally, travelers in and out of Pennsylvania are encouraged to obtain a negative COVID test or quarantine for 14 days. But Pennsylvania officials acknowledged that they do not plan to actively enforce the guideline.

If you have questions or would like more information, please contact Justin Boron at [email protected].

Additional Information:

FMG has formed a Coronavirus Task Force to provide up-to-the-minute information, strategic advice, and practical solutions for our clients.  Our group is an interdisciplinary team of attorneys who can address the multitude of legal issues arising out of the coronavirus pandemic, including issues related to Healthcare, Product Liability, Tort Liability, Data Privacy, and Cyber and Local Governments.  For more information about the Task Force, click here.

You can also contact your FMG relationship partner or email the team with any questions at [email protected].

**DISCLAIMER:  The attorneys at Freeman Mathis & Gary, LLP (“FMG”) have been working hard to produce educational content to address issues arising from the concern over COVID-19.  The webinars and our written material have produced many questions. Some we have been able to answer, but many we cannot without a specific legal engagement.  We can only give legal advice to clients.  Please be aware that your attendance at one of our webinars or receipt of our written material does not establish an attorney-client relationship between you and FMG.  An attorney-client relationship will not exist unless and until an FMG partner expressly and explicitly states IN WRITING that FMG will undertake an attorney-client relationship with you, after ascertaining that the firm does not have any legal conflicts of interest.  As a result, you should not transmit any personal or confidential information to FMG unless we have entered into a formal written agreement with you.  We will continue to produce education content for the public, but we must point out that none of our webinars, articles, blog posts, or other similar material constitutes legal advice, does not create an attorney client relationship and you cannot rely on it as such.  We hope you will continue to take advantage of the conferences and materials that may pertain to your work or interests.**

Uber and Lyft Drive Prop 22 Home in California

Posted on: November 17th, 2020

By: Adam Khan

On November 3, 2020, California voters resoundingly passed Proposition 22, delivering Uber and Lyft a big victory, and labor unions a setback. 

Prior to Prop 22, AB5 expanded the California Supreme Court’s decision in Dynamex Operations West, Inc. v. Superior Court. Specifically, AB5 applied Dynamex’s “ABC test” to both California Wage Orders and the California Labor Code, creating a presumption that workers in California were employees, not independent contractors, unless an employer could satisfy the three-part ABC test. Under the ABC test, workers are presumed to be employees unless the employer can show: (A) the company does not control or direct what the worker does, either by contract or in actual practice; (B) the worker performs tasks outside of the hiring entity’s usual course of business; and (C) the worker is engaged in an independently established trade, occupation, or business.

Prop 22 exempts rideshare and delivery companies from Dynamex’s ABC test. However, the new law comes with certain requirements, including:

  • Earnings Guarantee: Rideshare and delivery companies must pay 120% of the local minimum wage, plus 30 cents per mile (adjusted for inflation) for “engaged” driving time (i.e., time spent actively driving, not waiting). 
  • Healthcare Subsidies: For drivers working 15-25 hours per week, employers must pay greater than or equal to 50% of the average employer contribution toward a Covered California Plan. For drivers working over 25 hours per week, employers must pay greater than or equal to 100% of the average employer contribution toward a Covered California Plan.
  • Loss and Liability Insurance: Companies must carry, provide, or make available occupational accident insurance to cover medical expenses (up to at least $1,000,000) and lost income (equal to 66% of the driver’s average weekly earnings) resulting from injuries suffered when the driver is on the company’s platform. 
  • AntiDiscrimination and Public Safety: Prop 22 prohibits workplace discrimination, and requires companies to (1) develop sexual harassment policies; (2) conduct criminal background checks; and (3) mandate safety training for drivers.

Prop 22 can only be amended if proposed changes are consistent with the new law’s purpose, and supported by seven-eighths of lawmakers favoring the amendment.

Prop 22’s passage will likely elicit other industries to campaign for independent contractor classification. Some industries have already done so. AB 2257, which passed last September, exempted musicians, fine artists, freelance writers, photographers, and translators from being classified as employees, deeming them instead independent contractors. California can expect other industries to similarly pursue independent contractor status to avoid high costs associated with hiring employees.

If you have questions or would like more information, please contact Adam Khan at [email protected].