Download presentation
Presentation is loading. Please wait.
1
Battle of Reasonable Accommodations
Webinar Wednesdays Battle of Reasonable Accommodations Trisha Gibo, Esq. March 2, 2016
2
Please consult an attorney if you have specific legal issues.
Disclaimer This presentation is provided for informational purposes only and is not intended and should not be construed to constitute legal advice. Please consult an attorney if you have specific legal issues. Copyright 2016 ES&A, Inc. All Rights Reserved Confidential and Proprietary April 22, 2019
3
Changes in the Workforce
Push for diversity in the workplace Initiatives and committees nationwide Hawaii is historically diverse state Race, National Origin, Ancestry Clashing beliefs Increase in LGBT employees in the workplace Approx. 9 million LGBT individuals in U.S.* High percentage of LGBT individuals in Hawaii.** Increase in religious diversity in the workplace * Williams Institute, UCLA ** Gallup Poll – LGBT by State (2012) Copyright 2016 ES&A, Inc. All Rights Reserved Confidential and Proprietary April 22, 2019
4
Definitions Gender Identity
One’s innermost concept of self as male, female, a blend of both or neither* How individuals perceive themselves and how individuals refer to themselves Gender identity can be the same or different from sex assigned at birth** * Human Rights Campaign ** American Psychological Association Copyright 2016 ES&A, Inc. All Rights Reserved Confidential and Proprietary April 22, 2019
5
Definitions Gender Expression
External appearance of one’s gender identity* Includes dress, grooming, speech patterns, social interactions and interests* Equal Employment Opportunity Commission Copyright 2016 ES&A, Inc. All Rights Reserved Confidential and Proprietary April 22, 2019
6
Definitions Transgender
An umbrella term for people whose gender identity and/or expression is different from cultural expectations based on the sex assigned at birth* This is different from sexual orientation Examples: Biological male that perceives oneself as female Biological female that perceives oneself as male * Office of Personnel Management Copyright 2016 ES&A, Inc. All Rights Reserved Confidential and Proprietary April 22, 2019
7
Bona fide religious belief
Definitions Bona fide religious belief Not limited to traditional, organized religions E.g. Buddhism, Christianity, Hinduism, Islam, Judaism Includes “sincerely held” religious, ethical or moral beliefs Does not need to be directly communicated to employer Employer may inquire about whether the belief is sincerely held, but tread lightly EEOC v. Abercrombie Fitch Copyright 2016 ES&A, Inc. All Rights Reserved Confidential and Proprietary April 22, 2019
8
Applicable Federal & State Laws
Title VII of the Civil Rights Act Prohibits discrimination because of sex (including sexual orientation, gender identity, and gender expression) and religion Hawaii Employer Practices Law, Hawaii Revised Statutes Chapter 378 Prohibits discrimination because of sex, sexual orientation, gender identity, gender expression and religion Occupational Safety and Health Act Requires employers to provide safe working conditions for employees Copyright 2016 ES&A, Inc. All Rights Reserved Confidential and Proprietary April 22, 2019
9
Equal Employment Opportunity Commission
Enforces Title VII of the Civil Rights Act Top enforcement priorities are LGBT and religious discrimination cases EEOC pushing gender bias cases in employment Discrimination on the basis of gender includes sexual orientation or gender identity EEOC files religious discrimination cases EEOC v. Abercrombie & Fitch Strategic Enforcement Plan (Dec. 2012): listed EEOC v. Abercrombie & Fitch Refusal to hire employee that wore headscarf as part of her religious practice b/c violated dress code policy Court held that they must accommodate religious practice Should know of need for accommodation Copyright 2016 ES&A, Inc. All Rights Reserved Confidential and Proprietary April 22, 2019
10
Hawaii Civil Rights Commission
Enforces HRS Chapter 378 Hawaii law ahead of federal law regarding discrimination in employment Hawaii Civil Rights Commission generally follows enforcement priorities of EEOC Priority enforcement for LGBT and religious discrimination cases Strategic Enforcement Plan (Dec. 2012): listed Increased efforts to file lawsuits under Title VII on behalf of LGBT employees and employees that are discriminated on the basis of religion Copyright 2016 ES&A, Inc. All Rights Reserved Confidential and Proprietary April 22, 2019
11
Disparate treatment discrimination Examples:
Adverse employment action based on protected status Examples: Unequal discipline for same violations of policy Unequal access to benefits, items that affect terms and conditions of employment Rescinding job offers or terminating employees Segregating employees Forcing employee to participate (not participate) in activity as term or condition of employment Copyright 2016 ES&A, Inc. All Rights Reserved Confidential and Proprietary April 22, 2019
12
Hostile Work Environment
Harassment Hostile Work Environment Employee is subjected to verbal or physical conduct that is severe or pervasive with the effect of interfering with work performance Examples: Epithets, inappropriate posters, gestures Inappropriate physical contact Intentional use of wrong pronouns Employer failure to intervene in harassing behavior Transfer of harassment victims instead of alleged harassers Copyright 2016 ES&A, Inc. All Rights Reserved Confidential and Proprietary April 22, 2019
13
Reasonable Accommodations
Employer has duty to provide reasonable accommodations Disability Pregnancy Domestic or Sexual Violence Victims Religion Transgender Status If accommodation is requested Employer must engage in interactive process Employer must grant the request unless it creates undue hardship Copyright 2016 ES&A, Inc. All Rights Reserved Confidential and Proprietary April 22, 2019
14
Occupational Safety & Health Administration
Enforces Occupational Safety and Health Act (OSHA) Best Practices Guide on Restrooms for Transgender Workers (June 2015) Ensure safety & health of transgender employees at work Suggested Model Practices Lists inappropriate responses to transgender employees Copyright 2016 ES&A, Inc. All Rights Reserved Confidential and Proprietary April 22, 2019
15
Occupational Safety & Health Administration
Model Practices Use existing restrooms that correspond with gender identity Single-occupant, gender-neutral facilities for all employees Multiple-occupant, gender-neutral facilities for all employees Copyright 2016 ES&A, Inc. All Rights Reserved Confidential and Proprietary April 22, 2019
16
Occupational Safety & Health Administration
Prohibits Unreasonable Restrictions May not restrict employees to restrooms that are inconsistent with gender identity May not segregate transgender employees from other workers (i.e. only transgender employees use specific bathrooms) May not be limited to using facilities that are an unreasonable distance or travel time from the employee’s worksite Copyright 2016 ES&A, Inc. All Rights Reserved Confidential and Proprietary April 22, 2019
17
Reasonable Accommodation Process
Assess whether the request is related to the employee’s protected status Determine what status, practice or belief needs to be accommodated Work toward accommodating practice/belief If unable to accommodate specific request Determine whether there are alternatives Assess whether undue hardship exists Document, document, document Copyright 2016 ES&A, Inc. All Rights Reserved Confidential and Proprietary April 22, 2019
18
Reasonable Accommodations Religion
Reasonable religious accommodations must: Allow an individual to practice bona fide religious beliefs; or Allow an individual to refrain from engaging in prohibited practices due to their bona fide religious belief Copyright 2016 ES&A, Inc. All Rights Reserved Confidential and Proprietary April 22, 2019
19
Reasonable Accommodations Religion and Gender Identity
Examples of reasonable accommodations: Schedule changes Leaves of absence Job reassignments Adjusting grooming/dress code policies Gender neutral policies Head coverings, religious dress, hairstyles/facial hair, prohibition of wearing certain clothing Revising employment practices (bathrooms) * Equal Employment Opportunity Commission Copyright 2016 ES&A, Inc. All Rights Reserved Confidential and Proprietary April 22, 2019
20
Best Practices: Battle of the Accommodations
Attempt to be inclusive Try to accommodate as many beliefs as possible Engage in ongoing interactive communication Be open about conflicting points of view Show the company’s willingness to discuss options Don’t provide unreasonable accommodations Request is unreasonable if it infringes on rights of other employees Be firm when communicating your decisions Copyright 2016 ES&A, Inc. All Rights Reserved Confidential and Proprietary April 22, 2019
21
Battle of the Accommodations Undue Hardship
Accommodations should not allow for or result in discrimination against others Employers are not required to accommodate religion by allowing LGBT-based discrimination Employers are still required to accommodate employees if it does not create undue hardship Copyright 2016 ES&A, Inc. All Rights Reserved Confidential and Proprietary April 22, 2019
22
Battle of the Accommodations
Flanagan v. City of Richmond: Christian police officer claimed religious discrimination when terminated for making derogatory comments about LGBT employees Peterson v. Hewlett-Packard: Fundamental Christian employee claimed religious discrimination when terminated for insubordination after continuously posting anti-LGBT scriptures and posters in the workplace Cruzan v. Minneapolis Public School System: Female teacher claimed religious discrimination because transgender employee (male to female) was sharing restroom Flanagan v. City of Richmond, 2015 WL (N.D. Cal. October 13, 2015) “God made Adam and Eve, not Adam and Steve.” Chief was “cultivated gay environment” Peterson v. Hewlett-Packard, 358 F.3d 599, 606 (9th Cir. 2004) Company had diversity poster which included sexual orientation reference Employee posted anti-LGBT posters in response Company took down employee’s poster & employee put up again Cruzan v. Minneapolis Public School System, 165 F. Supp.2d 964 (D. Minn. 2001) Court held that allowing transgender employee access to restroom was not “hostile work environment” harassment Copyright 2016 ES&A, Inc. All Rights Reserved Confidential and Proprietary April 22, 2019
23
Best Practices: Accommodations
Train supervisors to be sensitive to requests and ask Human Resources for help Carefully craft communications before you engage in the interactive process Remember that the interactive process requires communication between employer & employee Know that employers are not required to provide the employee’s specific accommodation When in doubt, contact legal counsel Copyright 2016 ES&A, Inc. All Rights Reserved Confidential and Proprietary April 22, 2019
24
ANY QUESTIONS? ES&A Turns 1!
If you have any follow up questions, us at For access to these materials, Please visit our website for more resources Our next webinar will be on April 6, 2016 Topic TBA ES&A Turns 1! Mahalo for your continued support! Copyright 2016 ES&A, Inc. All Rights Reserved Confidential and Proprietary April 22, 2019
Similar presentations
© 2025 SlidePlayer.com. Inc.
All rights reserved.