Domestic Violence Discrimination

A bill pending in the Delaware legislature would expand the state’s anti-discrimination statute.  House Bill 4 would prohibit discrimination on the basis of domestic violence, sexual offense, or stalking.  If passed, the bill would have important implications for Delaware employers.  Here’s what you need to know.

Which Employees Would Be Protected?

If adopted, the bill would prohibit employers from discriminating against employees because the employee was a victim of domestic violence.  There are several scenarios where the implications of the law would be significant.

For example, assume an employee’s spouse is believed to be violent. The spouse comes to the workplace every day and sits in his car in the parking lot as a way to harass the employee.  The employee refuses to report the spouse to law enforcement out of fear of the repercussions.  The employer has a legitimate reason to be concerned.  Not only is the spouse’s conduct disruptive to the workplace but it also gives rise to a potential incident of violence at the workplace.

If the employee continues to refuse to report the conduct, can the employer terminate the employee?  Under the current law, yes.  Under the proposed law, no.  the proposed law prohibits an employer from taking adverse action against an employee because of domestic violence or stalking, both of which may be triggered under these facts.

Another possible scenario could involve co-workers in a domestic relationship.  Assume the relationship goes south and both employees file for a protective order, each alleging domestic violence.  Each has a therapist prepare a statement that he or she is the victim. 

Can you terminate one of the two under the proposed law?  No.  Can you terminate both?  Also, no.  Must you permit both of them to continue to work in the same location, causing a seemingly volatile situation?  Likely so.

What Are Employers Required to Do?

In addition to not discriminating, Delaware employers also would be required to make “reasonable accommodations” to an employee who is the victim of domestic violence, sexual offense, or stalking.  Specifically, employers would be required to accommodate the employee’s “known limitations” related to the offense.

For example, an employer would be required to permit the employee to make use of any accrued leave in order to avoid the spouse in the parking lot.  Or, perhaps, an employer could be required to permit the employee to use a different entrance and exit so to avoid being seen by the spouse.  The scope of required accommodations is unclear, as the term is not defined in the statute but, as with disabilities-based accommodations, would likely be expansive.

How Should Employers Prepare?

If the law is passed, employers could be faced with challenging facts.  Until then, employers may want to consider reviewing the following policies:

Violence in the Workplace.  Be sure your policy contains safeguards to ensure preparedness and that your employees know how to respond in an emergency.

Anti-Fraternization.  Consider whether you should impose restrictions on romantic relationships among employees.

Harassment.  As with other types of harassment, employees should be informed of the appropriate channels of communication when they or their coworkers are being subject to unlawful harassment.

Advertisements

Guidance for Employers from Abercrombie

By Barry M. Willoughby

At our recent Annual Seminar, we discussed, EEOC v. Abercrombie & Fitch Stores, Inc., an action involving alleged religious discrimination in connection with a refusal to hire that was then pending before the U.S. Supreme Court.  Attendees at the seminar will recall that the case involved an applicant for employment at Abercrombie who was turned down based on the Company’s “look policy,” because she wore a head scarf.  Although the interview for this position did not involve any discussion of whether the applicant wore the scarf for religious reasons, and/or whether she would require an accommodation to allow her to wear the scarf while at work, the EEOC investigation established that the company’s representatives believed that the applicant was wearing the scarf for religious reasons and refused to hire her on that basis.

On June 1, 2015, as we predicted, the Court issued its Opinion finding that the employer had indeed violated Title VII’s prohibition against religious discrimination.  Significantly, the Court ruled that actual knowledge of the employee’s need for a religious accommodation is not required.  Instead, the Court found that the test is whether the employer’s decision was, in fact, motivated by illegal discrimination under Title VII.

Analysis and Recommendations

The Supreme Court decision correctly focuses on the question whether an employer’s adverse action was motivated by illegal discrimination rather than its knowledge of the applicants protected status.  While knowledge, unsubstantiated or otherwise, of an applicant’s protected status will continue to be an important element of proof, the ultimate question in determining whether illegal adverse action has occurred is the employer’s actual motivation for its decision.  As the Court noted, knowledge alone will not be a basis for liability, if, in fact, the employer’s actual motive was not discriminatory.  On the other hand, an employer who is in fact motivated to discriminate based on unsubstantiated facts or suspicion, is nevertheless liable under Title VII.

We recommend that employers make sure that their decision makers understand that a decision motivated by illegal considerations will lead to liability regardless of their knowledge of the applicant’s protected status. We suggest that employers who are confronted with a potential religious accommodation issue directly address the issue with the applicant to determine whether an accommodation is necessary.

Following the familiar approach for addressing need for an accommodation of a disability is a good guide. If, as in Abercrombie, there is an obvious reason to believe that a religious accommodation may be necessary, the employer should affirmatively raise the issue and engage in the “interactive process” for determining whether an accommodation is required. If, on the other hand, there is no apparent reason for the employer to believe that an accommodation is necessary, the employer need not raise the issue.

Delaware, Ahead of the (Pregnancy) Curves

By Lauren E.M. Russell

In Young v. United Parcel Service, Inc., the Supreme Court interpreted the language of the federal Pregnancy Discrimination Act, which requires that employers treat pregnant employees in the same manner as other individuals who are similarly limited in their abilities. Among the Court’s conclusions is that a policy that provides job-related accommodations to those who are injured on the job and those who have disabilities governed by the Americans with Disabilities Act may also have to be extended to pregnant employees with physical restrictions. The decision opens a lot of questions, but Delaware employers may have a leg up in compliance!

The Court’s Decision

In Young, the Court addressed the case of a young woman who became pregnant after having several miscarriages. In connection with her pregnancy, her doctor placed her on a lifting restriction. UPS informed Young that it could not accommodate her lifting restriction, and she was placed on unpaid leave. Young eventually lost her employer-sponsored health coverage, and filed suit against UPS for pregnancy discrimination.

UPS readily acknowledged that it refused to provide an accommodation to Young. It also acknowledged that it routinely provides accommodations to employees: (1) with a work-related injury; (2) who have lost their Department of Transportation certification; or (3) who have a disability within the meaning of the Americans with Disabilities Act, as amended. Historically, UPS’s policy would not have been a problem. As we all know, pregnancy is not, in and of itself, a disability. In addition, EEOC regulations have long held that an employer could have a policy that provided reasonable accommodations to work-related injuries, but denied such accommodations to similarly limited pregnant employees. The purpose of this carve-out is to allow employers to avoid workers’ compensation costs by putting injured employees back to work on light duty.

So what changed? The EEOC has changed its stance on pregnancy. Under the Americans with Disabilities Act Amendment Act, many more limitations now qualify as disabilities, including fertility problems. In addition, the EEOC has made clear that it will be targeting systemic discrimination, including pregnancy discrimination, over the coming years. In connection with this change, the EEOC has just issued a Notice of Proposed Rule Making, and we can expect new regulations with respect to pregnancy within the next year or two.

Setting those developments aside, the Supreme Court did not rule that UPS’s policy was unlawful. Instead, it simply ruled that the trial court had to consider whether there was a legitimate, non-discriminatory reason for the distinctions drawn between the three classes of employees that UPS does accommodate, and UPS’s refusal to accommodate pregnant employees with lifting restrictions.

Impact on Delaware Employers

The Young decision opens up a lot of questions, including what legitimate business considerations may justify a decision to accommodate some employees, while not accommodating pregnant employees. But Delaware employers have some additional guidance, in the form of the new pregnancy provisions of the Delaware Discrimination in Employment Act (DDEA)

As we have reported previously, the Delaware General Assembly amended the DDEA in 2014, to expressly prohibit discrimination against pregnant employees and to require accommodations of pregnant employees, even when they are not disabled within the meaning of Delaware anti-discrimination law. While this statute places a heavier burden on Delaware employers, it also provides some guidance in compliance with the Young decision. In Delaware, there is no question that pregnant employees are entitled to take advantage of the same reasonable accommodation processes that are available to disabled employees-there is no need to determine whether you have a legitimate non-discriminatory reason to make a distinction.

Bottom Line

While Delaware may have raised the bar on employer treatment of pregnant employees, the amendments to the DDEA do provide guidance to Delaware employers. Unlike many other states, we do not have to wait for courts to parse what business concerns are “legitimate,” and which are insufficient to justify different treatment of pregnant employees. We must accommodate them all, under the same standards as applicable to the ADA.

Understanding Gender-Identity Discrimination

This article was written by Lauren Moak Russell. I’m in California for two weeks, taking depositions, and am very thankful for the contribution in my absence.

This has been a month of major changes in the employment law landscape in Delaware. In addition to the Supreme Court’s three major decisions affecting employment law (addressing retaliation and harassment under Title VII, and the constitutionality of the federal Defense of Marriage Act) and the legalization of gay marriage, Delaware also passed a law prohibiting employment and other types of discrimination on the basis of an individual’s gender identity. Here is what Delaware employers need to know about the new statute.

What Is Gender Identity?

Gender identity is a concept that many individuals outside the transgender community struggle to understand. Gender identity is not the same as sexual orientation (being gay or straight) and it is not simply a matter of wearing clothes commonly associated with the opposite sex. Instead, an individual’s gender identity relates to his or her internal sense of self as male or female, as well as an outward presentation and behavior related to that internal sense of self. Developing from that concept, an individual may be described as transgender when his or her gender identity does not match his or her biological sex at birth. Because gender identity is based on what an individual feels inside, when addressing transgender employees, employers should be guided by the employee’s description of his or her gender, not outward appearance.

Protection Against Gender-Identity Discrimination

On June 19, 2013, the Delaware Discrimination in Employment Act (“DDEA”) was amended to prohibit employment discrimination on the basis of gender identity. The statute defines “gender identity” to mean “a gender-related identity, appearance, expression or behavior of a person, regardless of the person’s assigned sex at birth.” The statute further provides that “[g]ender identity may be demonstrated by consistent and uniform assertion of the gender identity or any other evidence that the gender identity is sincerely held as part of a person’s core identity; provided, however, that gender identity shall not be asserted for any improper purpose.”

The DDEA provides the same protection from discrimination based on gender identity as it does for all other protected classifications. In other words, it is unlawful for an employer to discriminate against an employee in any term or condition of employment on the basis of the employee’s gender identity. Only employers with four or more employees are subject to the provisions of the DDEA.

How to Prepare for the Change in Law

In light of the amendments to the DDEA, which are currently in effect, employers should begin educating employees about gender identity, and their non-discrimination obligations. While more than fifteen states currently have laws that prohibit gender-identity discrimination, it is still a concept that is frequently misunderstood. Outlining for employees and managers the differences between sex, gender, and sexual orientation will help individuals to better understand their workplace obligations with respect to the new law.

Employers should also be alert to workplace conduct that may implicate this new protected classification. Common issues implicating gender-identity include “joking” about an individual’s external appearance (e.g. dress, facial hair, or physical build; the use of proper gender pronouns to refer to a transgender individual; and the use of communal bathrooms that are designated for use by gender. While there are no hard and fast rules in addressing these issues, employers should be guided by the transgender employee’s personal preferences, whenever possible.

Bottom Line

Delaware law now protects employees from discrimination on the basis of their gender identity. When preparing for this change, employers should make sure that their employees (managers and subordinates, alike) have a basic understanding of the concept of gender identity, and that they following basic workplace standards of respect. If conflicts or misunderstandings arise, employers should take their lead from the transgender employee-wherever reasonable-in how best to treat the employee with respect.

Delaware Gov. to Sign Law Expanding Retaliation Protection for Whistleblowers

Delaware Gov. Jack Markell signed into law legislation that expands the protections provided to employee-whistleblowers.  H.B. 300 extends whistleblower protections to employees who report noncompliance with the State’s campaign-contribution laws,who participate in an investigation or hearing regarding an alleged violation of the campaign-contribution laws, or who refuses to violate the campaign-contribution laws.

The practical effect of this new protection is limited, as it applies to a fairly narrow group of employees-those whose employer has some involvement in political fundraising.  But it serves as an excellent reminder about the importance of preventing unlawful retaliation.Whistleblower_thumb

Retaliation claims continue to top the list of claims filed with the EEOC.  Not only are they popular but they are some of the most successful for plaintiffs.  The reason for its popularity and its success is the same-retaliation happens.

Thankfully, most of us are not targets of workplace discrimination based on our race, gender, or disability.  But I’d challenge anyone to say that they’ve really never been the target of retaliation.  If you made a critical comment about a co-worker in front of your boss, you were probably subject to retaliation by that co-worker.  The retaliation could have been mild-maybe you don’t get invited to lunch that day.  It could be more overt-maybe a flat-out refusal to help the next time you request assistance from the co-worker.  Or it could be more covert-the coworker quietly (but intentionally) sows the seeds of poor performance with your boss, telling your boss every time you don’t make a meeting on time or leave early on a Friday.

All of these things constitute retaliation.  But they’re not unlawful retaliation because they are not in response to you having engaged in a protected activity, such as reporting workplace discrimination or, now, refusing to violate the campaign-contribution law.

So, how can employers prevent unlawful retaliation?  The key, in my opinion, is taking a step back.  We’ve all had our feelings hurt when a co-worker points out an error in our work while the boss is standing there.  But, the key is to take a step back, realize that you’re a rational, logical, thinking adult.  And move on.  No grudge holding.  It makes life far more difficult than necessary.

See also

U.S.S.C. Clarifies the Applicable Standard for Retaliation Claims

Manager’s Drunk Facebook Post Leads to Retaliation Claim

3d Cir. Issues a Bitchin’ Constructive Discharge Decision

Business Is Booming . . . for the EEOC, Anyway

People First Language: Delaware Legislation Gets It Right

Delaware’s General Assembly has passed a law “relating to the removal of insensitive and offensive language.”  When I first saw the title of this Act, I admit, I was alarmed that our State’s legislature was banning profanity in some context.  I was relieved to read the text of the law, though, and learn exactly what it actually does provide. logo_from_dev

According to the synopsis, the bill is part of a national movement, known as People First Language (“PFL”) legislation, intended to “promote dignity and inclusion for people with disabilities.”  PFL requires that, when describing an individual, the person come first, and the description of the person come second.

For example, when using PFL, terms such as “the disabled” would be phrased, “persons with disabilities.”  This language emphasizes that individuals are people first and that their disabilities are secondary.  I think this is an outstanding initiative.

First, it is far easier to do (or say) the right thing when we know what the right thing is.  So legislation like this, which makes clear what is (and is not) the right thing to say, is always helpful.  Second, I think the approach is spot on.  Individuals are people first. The same concept applies to all protected characteristics.

I have received countless calls from clients seeking advice with regard to a potential termination of an employee.  The call often starts out like this: “We have an employee who is in a protected class and who is always late to work and who constantly undermines her coworkers.”

If the PFL concept were applied, the call would start out, instead, like this: “We have an employee who is always late to work and who constantly undermines her coworkers.”

What matters is what the employee is doing (or failing to do) with respect to her job-not that she is “in a protected class.”  Start off by addressing what actually matters.  Everything else, including a discussion about potential accommodations, etc., will follow if and when it’s appropriate.

See also, previous posts regarding Disabilities in the Workplace.

Yes, Employers, Words Really Do Matter

It’s easy to underestimate the power of words. Many supervisors fail to appreciate the importance of the words used in a performance review or evaluation, corrective action, termination letter, or other employment-related document. But it can go beyond the obvious instances.

In an age-discrimination case, a supervisor had attended a presentation by a contractor who was trying to bid work with the employer. The supervisor wrote in his notes that the type of work would be perfect for “young engineers.” What the supervisor meant was that the work being bid was well suited for entry-level engineers, who could gain valuable experience that, often, was quite difficult to find.

You may imagine that the plaintiff’s lawyer jumped on the word “young” from the supervisor’s notes, using it as an opportunity to make it look like the supervisor preferred young engineers over older ones. An age-based preference such as this would, of course, be unlawful if used in decisions to hire, fire, or assign work. As you also may imagine, it made for an unpleasant deposition of the supervisor–an experience he surely did not forget any time soon.

On the other hand, it also is possible to get far too caught up in the definition or meaning of a particular word. Lawyers are great at this, as this very funny video from the N.Y. Times makes clear.

The lesson to be learned? Words really do matter in every context. Be aware of what you put into writing–generally, less is more and the more specific, the better. But don’t play word games when the basics can get the job done.

Documentation in the workplace can be absolutely critical in preventing and defending against claims by employees. It may be time to consider a refresher course about best practices in HR documentation. If so, let us know–we have an excellent training program on this subject.