Both the U.S. Supreme Court and the 4th Circuit Court of Appeals (the appellate court for Maryland and Virginia) recently issued employment-related opinions which further expand a companies’ risk of running afoul of employment laws.
In EEOC v. Abercrombie & Fitch Co.,the Supreme Court ruled that an employer can violate anti-discrimination laws by failing to accommodate an employee for protected-class status (here, providing an accommodation from the company’s dress code in order to allow for an employee’s religious headwear) even if the employee (or, in this case, a job applicant) does not make a formal request for the accommodation.
In this case, Samantha Elauf, a practicing Muslim woman who wore a hijab (a headscarf) as part of her religious practice, applied for a job at an Abercrombie & Fitch store. The assistant manager who interviewed Ms. Elauf gave her a rating indicating that she should be hired. After the interview, however, the assistant manager became concerned that Ms. Elauf’s hijab would violate the store’s “Look Policy” that prohibited the staff from wearing “caps.” The assistant manager asked the store manager about the policy, and the store manager, in turn, contacted the district manager. The district manager determined that, yes, Ms. Elauf’s hijab violated the store’s prohibition against wearing caps, and instructed the assistant manager not to hire Ms. Elauf. The EEOC sued Abercrombie on behalf of Ms. Elauf, and won, only to have the verdict overturned by the 10th Circuit Court of Appeals.
The question for the Supreme Court was: can a potential employer (here, Abercrombie) violate federal anti-religious discrimination laws when it does not have actual knowledge of an employee (or applicant’s) religious practice and/or need for an accommodation to practice that religion? The Supreme Court answered with a resounding “yes,” explaining that actual knowledge was not necessary for an employer to violate anti-discrimination laws. Rather the only thing needed to violate the law was if the applicant’s or employee’s potential need for a religious accommodation was a motivating factor in the employer’s decision making. Put another way, if the intent to avoid a requested, anticipated, or perceived need for an accommodation is a motivating factor of the employer’s decision to adversely affect an employee or job applicant (e.g., refusing to hire or failure to accommodate), that action may constitute a violation of federal anti-discrimination laws.
In Boyer-Liberto v. Fontainebleau Corp., the 4th Circuit dealt with whether an employee who was not officially a supervisor could still expose a company to liability for her unlawful discriminatory acts when that employee portrayed herself as a supervisor. This case arose from an approximately 24-hour period in which the plaintiff had to endure a coworker screaming racially charged slurs at her (calling her a “damned porch monkey”), threatening to get the plaintiff fired, and being in such close physical proximity while screaming that the plaintiff could feel the coworker spit on her face as she was berated. Within days of the plaintiff complaining to upper management about what had happened, the employer “reviewed” the plaintiff’s work performance, deemed it lacking, and fired her. Different liability standards apply to discrimination cases depending on whether the alleged wrongdoer is the supervisor or just a coworker of the victim, with fault being more easily attributed to the employer if it’s a supervisor taking action. Because of that, the hotel tried to argue that the alleged harasser was just a coworker and not a supervisor. The Court strongly suggested that even if the harasser’s official title did not give her actual supervisor powers, supervisor liability could still apply because of the way the harasser acted and portrayed herself. Again, this case blurs (and expands) the current liability line, potentially creating employer exposure where none was seen before.
These two recent cases should put employers on notice – providing good examples of when the actions of managerial-level employees (or those who see themselves as managerial level) can expose your company to liability. One of the best ways to avoid or minimize these risks is to provide up-to-date training to your employees on both workplace/employment-related laws, and the best practices for managers and staff to comply with these laws and related obligations. If you are interested in compliance training, do not hesitate to reach out to us and we will be happy to speak with you more about those opportunities.
Late last month, the Department of Labor released new versions of FMLA notices and forms, which are available by clicking here. These new notices and forms are good through May 31, 2018. Employers covered by the FMLA may (but are not required to) use these standardized forms when handling employee requests for FMLA-covered leave. The only real substantive change on the forms is the updated disclaimer regarding the Genetic Information Nondiscrimination Act (“GINA”). GINA prohibits employers from discriminating against employees based on their genetic information and, by extension, prohibits employers from gathering the genetic information of employees or that of employees’ family members. Some ways that employers have unwittingly violated GINA are by collecting family medical history information or by demanding too much detail regarding ailments on FMLA applications or fitness-for-duty evaluations required prior to returning from leave.
While helpful, these forms are not always a “one-size-fits-all” fix. Now is the appropriate time to have an employment attorney review your forms, notices, and the implementation policies and procedures you use for employee FMLA requests to ensure your companies’ compliance.
The contents of this Alert are for informational purposes only, and do not constitute legal advice. If you have any questions about this Alert, please contact a member of the Shulman Rogers Employment and Labor Law Group or the Shulman Rogers attorney with whom you regularly work.
Gregory D. Grant
Meredith “Merry” Campbell
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