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.
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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)
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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
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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
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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
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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
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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
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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
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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
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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

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April 22, 2019