1. What if your employee did this?
7/11/2018
What if your employee did this?
Association of Corporate Counsel Charlotte
July 11, 2018

2. Assumptions Employees are at-will:
7/11/2018
Assumptions
Employees are at-will:
Employee or employer can terminate employment at any time for any reason or no reason at all
Employee handbooks contain a conspicuous at-will disclaimer

3. Overview Transgender employees Theft and payroll deductions
7/11/2018
Overview
Transgender employees
Theft and payroll deductions
Blogging and other social media misadventures
Personal appearance issues

4. What if…? One of your security guards, Harry…
7/11/2018
One of your security guards, Harry…
Comes to work as Harriet…
And demands to be allowed to use the women’s restroom?

5. What does “transgender” mean?
7/11/2018
Umbrella term, not pertaining to sexual orientation.
What does it mean?
Who is included?

6. Transgender Employees - Legal Issues
7/11/2018
Title VII – Courts and EEOC interpretations
ADA
FMLA
NC state law
Bathroom guidance
Other legal issues

7. Title VII – Courts and EEOC Interpretations
7/11/2018
Prohibits discrimination/harassment based on sex
Sexual orientation or transgender?
Traditional approach by courts
Fourth Circuit’s position
EEOC’s position
DOJ’s position
What does this mean?
FY2017: 1762 LGBTQ-based charges filed with EEOC

8. ADA Implications
7/11/2018
ADA: prohibits discrimination against qualified individuals with a disability.
Expressly excludes transsexuals and gender identity disorder/gender dysphoria.
Employers are not obligated to make any “reasonable accommodations” for these employees.
Blatt v. Cabela’s Retail, Inc. (D. Penn. 2014)
Case brought under Title VII and ADA
Constitutional challenge to law raised at summary judgment
Settled in 2016

9. FMLA Implications
7/11/2018
Covered employers must provide leave for a “serious health condition”
For employee or spouse of employee
“Spouse” is determined by the law of the place in which the marriage was entered into, as opposed to the law of the state in which the employee resides
Treatment of gender dysphoria - may be serious health condition
Sex reassignment surgery and related care
Employee or spouse

10. Bathroom Guidance (and NC state law)
7/11/2018
EEOC Guidance
Violation of Title VII to deny an employee equal access to a common restroom corresponding to the employee’s gender identity.
OSHA Guidance
Access to restrooms that are safe, sanitary, convenient and dignified.
An employee should not be compelled to use the restroom of his or her designated sex at birth, especially if the employee is in the process of transitioning from one gender to another or has chosen to live his or her life presenting in the other gender.
Employees should not be required to provide any documentation of gender identity.
NC state law?

11. Other Legal Issues Dress Code Policies Name changes
7/11/2018
Dress Code Policies
Little case law; mixed results
Name changes
Personnel documentation (e.g., Forms W-2 and I-9)
Dealing with co-worker issues:
Employee inquiries
“Misgendering”
Value/belief system objections

12. What if…? …you suspect that an employee is stealing from your company?
7/11/2018
What if…?
…you suspect that an employee is stealing from your company?

13. Theft Investigation Pitfalls
7/11/2018
Theft Investigation Pitfalls
Employee Polygraph Protection Act
Broadly prohibits use of lie detectors
Fair Credit Reporting Act
Affects ability to conduct background and credit checks
Internet Sleuthing
E.g., Facebook, Myspace, “Googling”
Site terms of Service
What you discover may create more problems
Suspensions
EPPA: - Cannot directly or indirectly require, request, suggest, or cause employee (or prospective employee) to take test.
- Cannot use, accept, refer to, or inquire concerning lie detector test of any employee.
FCRA: - Must provide proper disclosure and obtain proper authorization prior to obtaining a “consumer report.”
- Includes background and credit checks.
Internet sleuthing:
- Employer could find information regarding a host of protected categories of which it was not previously aware (e.g., pregnancy status, national origin, religion, etc.)
- Once the employer is aware of this information, it could be a basis for discriminatory action. However, if the employer never knew the information, It could not be such a basis.
- Knowing the information puts the employer in a difficult situation – it must prove a negative (that it did not base a decision on information of which it was aware).
- Information gleaned from the internet will likely have nothing to do with the theft, and may

14. Can Stolen Funds Be Deducted from an Employee’s Paycheck?
7/11/2018
Voluntary vs. Involuntary Deductions
Voluntary:
Permitted if employer complies with notice and consent requirements
Beware statutory limits on deductions
Confirm in writing and consider release
Involuntary:
In certain cases
N.C.G.S. § (e)
Involuntary deductions in NC:
- NCGS sec (e)
- May be involuntary deducted if criminal process issued, or employee is indicted or arrested for theft
- BUT nonovertime hours can only be reduced to minimum wage level.
- OT wages cannot be reduced
- Employee must be reimbursed if not “found guilty”.

15. What if…?
7/11/2018
HEY, IT’S CASUAL FRIDAY.
…An employee posts pictures of himself on his blog… … semi-nude, … in his work uniform?

16. Employee Blogging Right to privacy? Right to free speech?
7/11/2018
Right to privacy?
Right to privacy in United States Constitution does not apply to private employers.
Right to free speech?
First Amendment right to free speech does not apply in private workplace.

17. A Delicate Balancing Act
7/11/2018
Discrimination
Retaliation
NLRA Protections
Whistleblower Laws
Protection of Assets
Employee Morale
NLRA protects “concerted action”:
for mutual aid or protection
engaged with other employees
Retaliation could come into play if employee is blogging about alleged discriminatory activity or conditions
Whistleblower laws include Sarbanes-Oxley, which could come into play if employee is blogging about alleged fraud of management

18. Could you? Should you? Can employer discipline? Yes.
7/11/2018
Could you? Should you?
Can employer discipline? Yes.
Unless discriminates on basis of protected category.
E.g., allow men, but not women.
Should employer discipline?
Potential discrimination claims.
Call attention to it in a sea of info.
Fallout from discipline.
Example of fallout: Case of Ellen Simonetti (“Queen of Sky” blog)
- Worked as Delta flight attendant; blogged about her work but never identified employer
- Posted some mildly suggestive photos of herself in uniform on plane (one picture is on slide)
- Delta terminated her employment.
- Simonetti sued Delta for discrimination.
- News outlets everywhere covered the story (including even the BBC)
- More targeted actions (e.g., telling Simonetti to remove the photos) may have accomplished more effective result.

19. Potential Discipline Pitfalls
7/11/2018
Beware of…
Discrimination claims (Have others been allowed to do it?)
Retaliation claims (Does the employee have an existing claim under Title VII, REDA, etc.?)
Whistleblower claims
Sarbanes-Oxley
OSHA
NLRA

20. BUT what if…?
7/11/2018
The employee blogs about dissatisfaction with wages or other working conditions?
Blog excerpt:
“What a “rip-off.” We are so disrespected here. Except for Fridays, we have to wear shirts! Plus, we only get paid $40 an hour. Who do they think they are? Semi-nude firefighters of the world, unite!

21. National Labor Relations Act
7/11/2018
Can you discipline? It depends.
Under the NLRA, employers are prohibited from interfering with, restraining, or “chilling” employees from engaging in protected concerted activity.
Is activity “concerted”?
Involve terms and conditions of employment?
How is activity carried out?

22. Best Practices for Addressing Complaints
7/11/2018
Discipline carefully
Think twice before restricting outlets for discussion
Educate supervisors about protected concerted activity (aka: license to complain)

23. A receptionist (who greets customers) shows up to work with…
What if…?
7/11/2018
A receptionist (who greets customers) shows up to work with…
A nose ring;
Ear gauges; and
Visible tattoos?

24. Background Demographics:
7/11/2018
Demographics:
In 2016, 40% of adults between ages 26–40 had a tattoo
18-25: 36%
14% reported at least one body piercing (other than ear)
NC OSHA (NCGS sec ) precludes employers subject to the act from discriminating against employees on the basis of sex, race, ethnic origin, and religious affiliation.

25. Employer concerns if:
7/11/2018
Employer has legitimate interest in presenting workforce that is “reasonably professional in appearance.”
Grooming / dress code standards are permitted
BUT must be nondiscriminatory (e.g., sex, race, religion)
Potential exception: Some gender-based differences (e.g., hair and earrings)
Example of potential race-based discrimination in appearance policy: no facial hair allowed, but black employee suffers from pseudofolliculitis and not an undue hardship for employer to allow.
Courts have held that grooming and appearance policies that apply different standards based on sex (e.g., hair length, jewelry, makeup, fingernails) are permissible and do not constitute sex-based discrimination.
Courts may examine the relative burdens placed on each sex (e.g., men must have shorter hair, but women must wear makeup).

26. Navigating the Appearance Minefield
7/11/2018
Develop an appearance policy, and apply in a nondiscriminatory manner
No bright line
Tattoos on wrists?
Eyebrow piercing?
Case-by-case determination
Tattoos on wrists: EEOC v. Red Robin Gourmet Burgers.
- Employee told to cover tattoos on wrists. Employee said covering them was against his religion (Kemetic).
- Red Robin refused accommodation, and terminated employee.
- Court said accommodation should not have been undue hardship, because employee had been allowed to wear them for past six months, no customers had complained, and the tattoos were small.
Eyebrow Piercing: Cloutier v. Costco
- Employee wanted to wear eyebrow piercing as part of religion (Church of Body Modification)
- Costco offered accommodation (cover with bandage or wear clear plastic retainer)
- Employee refused (but had previously suggested such an accommodation) and was terminated
- Court ruled in favor of Costco

27. BUT what if…?
7/11/2018
The tattooed employee is a member of the Church of Body Modification, and her piercings are a part of her “religion”?

28. What is a religion? EEOC “hands-off” approach:
7/11/2018
EEOC “hands-off” approach:
Sincere?
Occupy place in life parallel to place filled by God in traditional religions?
EEOC’s default: Assume request is based on sincerely held religious beliefs
Note: Not required to identify specific religion to prove religious discrimination
Xodus v. Wackenhut Case: Security guard refused to cut his dreadlocks because of his “beliefs.” He was a Rastafarian/Hebrew Israelite, but did not identify a specific religion in his interview. The court said this was not required.

29. Really, though, what is a religion?
7/11/2018
Do not question the validity or legitimacy of the religion unless objective basis exists.
Courts dislike evaluating
May inquire as to whether belief is sincerely held.
Personal preference or “religious” belief?
Courts dislike evaluating whether something is a religion or not. Example: Church of Body Modification. Court resolved case involving a professed member of the “church” and avoided resolving the issue of whether it was an actual “religion.”
The top symbol is from the Church of Body Modification.
The bottom ones are from the Church of the Flying Spaghetti Monster and Church of the SubGenius (both are parody religions – but where do you draw the line if sincerely held belief?).
Example of personal preference: eyebrow piercing that does not relate to any religion, or any moral or ethical belief system that the EEOC might try to accept as a religion.

30. Reasonable accommodation?
7/11/2018
Employers may be required to make reasonable accommodations
Unless creates undue hardship
Includes religious practices
Undue Hardship?
More than de minimis expense?
Safety issue?
Interfere with work?
Wearing a shirt is against my religion!
Note: Employer is not always required to accept the employee’s preferred method of accommodation.
Example: Rather than allowing employee to wear a facial piercing, the employer may be permitted to accommodate by allowing the employee to cover with a flesh-colored bandage or wear a clear plastic spacer.
Example of undue hardship: policy requiring employees to wear pants in manufacturing facility for safety reasons. Employer not required to allow employee to wear a skirt as a reasonable accommodation to employee who says wearing pants is against her religion. (EEOC v. Oak-Rite Manufacturing Corp.)

31. QUESTIONS? Grainger Pierce gpierce@nexsenpruet.com (704) 338-5321
7/11/2018
QUESTIONS?
Grainger Pierce
(704)
Katie Burchette
(704)