Navigating Through the Changing World of Accommodations: From the ADA, to LGBT Individuals and Beyond Presented by: Robert J. Simandl Stefanie Carton of Simandl Law Group, S.C.

Agenda  Religious Accommodations  Prayer Time  Considerations in the Applicant Process  Grooming/Look Policies  LGBT Discrimination and Emerging Accommodation Issues  The ADA and Required Accommodations  Military Leave “Accommodations” MRA Employment Law Update

Title VII and Religious Discrimination  Generally  Title VII of the Civil Rights Act of 1964 prohibits discrimination because of a person’s race, color, sex, religion or national origin  Applies to hiring, firing and terms and conditions of employment  Applies to policies, criteria and hiring practices that have a disparate impact on minorities or women  May be lawful where job-related and consistent with business necessity MRA Employment Law Update

Title VII and Religious Discrimination  Employer must refrain from discriminating on the basis of an individual’s religious beliefs  Religion Defined:  Includes traditional, organized religions  Includes religious beliefs that are new, uncommon, not part of a formal church or sect, only subscribed to by a small number of people or that seem illogical or unreasonable to others  A belief is “religious” for Title VII purposes if it is religious in the person’s “own scheme of things”  i.e., it is “a sincere and meaningful belief that occupies in the life of its possessor a place parallel to that filled by … God” MRA Employment Law Update

Religious Accommodations – Undue Hardship Analysis  An employer does not have to accommodate an employee's religious beliefs or practices if doing so would cause undue hardship to the employer  Undue Hardship = more than a de minimums burden  Note that this is a lower standard for an employer to meet than undue hardship under the ADA which is defined in that statute as “significant difficulty or expense” MRA Employment Law Update

Religious Accommodations – Undue Hardship Analysis  Unless it would be an undue hardship on the employer's operation of its business, an employer must reasonably accommodate an employee's religious beliefs or practices  schedule changes or leave for religious observances  dress or grooming practices  wearing particular head coverings or other religious dress (such as a Jewish yarmulke or a Muslim headscarf)  wearing certain hairstyles or facial hair (such as Rastafarian dreadlocks or Sikh uncut hair and beard)  an employee's observance of a religious prohibition against wearing certain garments (such as pants or miniskirts) MRA Employment Law Update

Religious Accommodations – Undue Hardship Analysis  An accommodation may cause undue hardship if:  it is costly;  compromises workplace safety;  decreases workplace efficiency;  infringes on the rights of other employees; or  requires other employees to do more than their share of potentially hazardous or burdensome work  Engage in the interactive process MRA Employment Law Update

Prayer Time Accommodation – Example  A Muslim employee requests time off from work during the day to tend to his prayer, as his scheduled break time(s) conflict with his prayer times  When an employer's workplace policies interfere with its employee's religious practices, the employee can ask for a reasonable accommodation in the form of a change in a workplace rule or policy (such as break time) to allow the employee to engage in his religious practice (praying)  The employer is required to provide the accommodation unless it would impose an undue hardship on the employer's business  This means the employer is not required to provide an accommodation that is too costly or difficult to provide  One employee’s request vs. 50 employees  There are many situations in which the accommodation of Islamic religious practices may impose a monetary or administrative burden on the employer, such as where an employee works on a production line and break times must be taken at the same time as other employees  However, each situation is different and must be analyzed on its own facts  If the accommodation would impose a burden on the employer that cannot be resolved, the employer is not required to allow the accommodation MRA Employment Law Update

Considerations for Accommodations in the Application Process - Example  EEOC v. Abercrombie & Fitch Stores, Inc. (SCOTUS, June 1, 2015)  Question presented: Whether an employer can be liable under Title VII for refusing to hire an applicant or discharging an employee based on a “religious observance and practice” only if the employer has actual knowledge that a religious accommodation was required and the employer’s actual knowledge resulted from direct, explicit notice from the applicant or employee.”  Case turned on the belief of the employer as to the employee’s need for an accommodation based on a perceived religious belief MRA Employment Law Update

Considerations for Accommodations in the Application Process – Cont.  Facts: The applicant’s head scarf would violate Abercrombie’s “Look Policy”  The Company never discussed why she wore the head scarf  Company refused to hire the applicant  Title VII’s disparate impact treatment provision required the applicant to show that Abercrombie failed to hire her because of her religion  Title VII prohibits motives, not knowledge, as the standard  SCOTUS determined that actual knowledge of a religious practice or need for an accommodation was not required if the potential need for an accommodation was a motivating factor in the employer’s hiring decision MRA Employment Law Update

Religious Accommodations in the Workplace  Grooming or “Look” Policies – Beware!  The Abercrombie case is a strong statement from SCOTUS on Title VII protections for religious discrimination  An employer cannot merely claim ignorance of actual knowledge of the applicant or employee’s religion when the employer made an employment decision based on the employer’s belief that the person may need a religious accommodation  Employers should take caution when faced with potential religious accommodation issues and evaluate potential trouble spots where otherwise neutral policies may conflict with the religious practices of applicants or employees MRA Employment Law Update

Religious Accommodations in the Workplace  Recommendations:  Include an accommodation policy in your handbook:  [Company Name] recognizes and supports its obligation to endeavor to reasonably accommodate job applicants and employees with sincere religious beliefs or practices who are able to perform the essential functions of the position, with or without reasonable accommodation. [Company Name] will endeavor to provide reasonable accommodation to otherwise qualified job applicants and employees, unless doing so would impose an undue hardship on the Company.  An applicant or employee who believes he or she needs a reasonable accommodation of a sincere religious belief or practice should discuss the need for a possible accommodation with his or her direct supervisor or [_____________________].  Document requests  Engage in the interactive process  Do not make hiring decisions based on your belief as to an applicant’s need for an accommodation MRA Employment Law Update

Other Considerations for Grooming or “Look” Policies  In general, employers are allowed to regulate their employees' appearance, as long as they do not end up discriminating against certain employees  The rules can be different for men and women workers so long as the rules don't discriminate on the basis of gender, race, or religion, and are job related  Ex: prohibition on long hair for men, facial beards  Note: EEOC v. Greyhound Lines, Inc., 635 F.2d 188 (3 rd Cir. 1980) – prohibition on beards had a discriminatory effect on black workers who have a higher rate of “pseudo folliculitis barbae”  Third Circuit found that the EEOC could not establish that the enforcement of the policy actually resulted in discrimination in the workplace (disparate impact) MRA Employment Law Update

Title VII and LGBT Discrimination  Generally:  Title VII provides: It shall be an unlawful employment practice for an employer –  To fail or refuse to hire or to discharge any individual, or otherwise to discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual’s race, color, religion, sex or national origin; or  To limit, segregate, or classify his employees or applicants for employment in any way which would deprive or tend to deprive any individual of employment opportunities or otherwise adversely affect his status as an employee, because of such individual’s race, color, religion, sex, or national origin.” MRA Employment Law Update

Title VII and LGBT Discrimination  Transgender discrimination is unlawful  Macy v. Holder, EECX Appeal No , 2012 WL (EEOC Apr. 20, 2012)  Male-to-female transition in progress  Applied to the Bureau of Alcohol, Tobacco, Firearms & Explosives at U.S. DOJ  Phone Interview – was told she was most qualified, would get the job  During the background check Macy informed BATFE she was in transition  5 days later, BATFE rejected Macy for employment due to “funding cuts”  Another officer soon thereafter hired to fill position  Holding: “Thus, we conclude that intentional discrimination against a transgender individual because that person is transgender is, by definition, discrimination ‘based on….sex,’ and such discrimination therefore violates Title VII” MRA Employment Law Update

LGBT Accommodations and Obligations in the Workplace  Transgender accommodation – How far must an employer go?  Lusardi v. McHugh, EEOC (April 1, 2015)  Male-to-female transition in progress  Lusardi advised her boss of her transition  Single-use bathroom assigned to Ms. Lusardi for pre-SAS use  Lusardi agreed for a while  Male team leader refused to refer to Lusardi in feminine gender  Lusardi used the female restroom from time to time  Lusardi filed a complaint of sex discrimination and harassment based on her gender identity  Holding: Discrimination against a transgender individual because that person is transgender is, by definition, discrimination ‘based on…sex’ and such discrimination violates Title VII, absent a valid defense.”  Forcing the employee to use the single-use bathroom constituted discrimination  References to Lusardi as “sir” constituted a hostile work environment MRA Employment Law Update

Recommendations  Refer to the individual as they identify  Sensitivity/harassment training  Bathrooms  Showers? MRA Employment Law Update

The ADA and Disability Discrimination  Generally: Under the ADA, employers are legally obligated to accommodate qualified individuals with disabilities, unless doing so creates an undue hardship  Three categories of reasonable accommodations:  modifications to a job application process  modifications to the work environment  modifications that enable a covered entity's employee with a disability to enjoy equal benefits and privileges of employment as are enjoyed by its other similarly situated employees without disabilities  Accommodation must be reasonable and effective  Undue hardship = significant difficulty or expense  Focuses on the resources and circumstances of the particular employer in relationship to the cost or difficulty of the specific accommodation MRA Employment Law Update

Interactive Process  Interactive Process  Includes meeting with the employee, discussing restrictions, abilities and ideas for accommodation  May include meeting with employee’s supervisor to discuss accommodation  Request of medical information  Document efforts MRA Employment Law Update

Specific Accommodations  Leave  How much leave does employer have to provide?  Employer’s obligations during leave  Indefinite leave  Requests for extensions  Unreliable attendance MRA Employment Law Update

Specific Accommodations  Rescinding Employee Discipline  Employee makes request for reasonable accommodation at disciplinary meeting  Employee makes request for reasonable accommodation at termination meeting  Modified Work Schedule  Changing starting times  Break times  Part-time schedules MRA Employment Law Update

The ADA and Conduct Rules  If disability causes employee to violate conduct rule, can we terminate or discipline?  Generally, yes….  Is conduct rule job-related and consistent with business necessity? MRA Employment Law Update

The ADA and Conduct Rules  Alcohol Use  Rehabilitation  Modified work schedules  A “plea for grace?”  Workplace Violence  Will likely always be job-related and consistent with business necessity  Make sure you are consistent! MRA Employment Law Update

The ADA and Conduct Rules  Lying, Dishonesty, Theft  Unprofessional Conduct  “Abnormal” behavior  Tardiness  Modified Work Schedule  Changing starting times  Break times  Part-time schedules MRA Employment Law Update

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