Last year was a record-setting year for the Equal Employment Opportunity Commission.  It received more charges than ever, resolved more charges and obtained more monetary relief through mediation than ever, and reduced its pending charge inventory by nearly 10 percent.  The agency secured several multi-million dollar consent decrees in class actions against large employers.  To top it off, the EEOC accomplished these feats despite a hiring freeze.

The EEOC is on an upswing, so compliance is more important than ever.  Employees are filing charges in record numbers, in part due to outreach programs in which the EEOC encourages employees to go after employers who have violated the law.  In addition, the mandatory EEOC poster contains a toll-free number for employees.  For details of this program, click here .

As with many of the Obama Administration’s initiatives, the revitalized EEOC is not about changing the law but about increasing scrutiny.  This can be more significant for employers because new laws do not necessarily lead to more enforcement, but when an agency steps up enforcement of existing laws, employers need to be ready.

Take this opportunity to make sure you know whether you are in compliance.  Have you trained your supervisors?  Do your employees, and more importantly supervisors, understand the ramifications their behavior can have for the company?  Is your handbook up to date?  When did you last have an HR audit?  Make sure your company is ready if the Government focuses on you.

Brody and Associates regularly provides counsel on civil rights issues and employment litigation in general.  We also help employers with all aspects of Human Resource audit and compliance strategies.  If we can be of assistance in this area, please contact us at info@brodyandassociates.com or 203.965.0560.

Do you want to hold a company holiday party, but worry about being sued?  In the past, employers have faced worker’s compensation claims for holiday party injuries as well as lawsuits for sexual harassment, drunk driving by employees, and religious discrimination.  Some companies are asking employees to sign holiday party waivers, but they won’t be effective if a third-party is injured, not to mention that a court is unlikely to enforce a waiver of a sexual harassment claim signed before the offensive conduct occurred.  Instead, focus on prevention.  Following these tips can help you protect your business from costly litigation without putting the kibosh on holiday cheer. 

First, make it clear that participation in the party is entirely voluntary.  This simple step may protect your company from a worker’s compensation suit if an employee is injured.  Also, some employees may be uncomfortable attending a holiday party for any number of reasons, so keep it optional.

Second, many of the sexual harassment, worker’s compensation, and drunk driving matters can be prevented if alcohol consumption is reduced or eliminated.  Surveys show that alcohol-free workplace holiday parties are about as common as those with alcohol.  If you decide to provide alcohol, consider limiting consumption through drink tickets or a cash bar.  Inviting spouses and significant others is a good idea.  Their presence can temper drinking and inappropriate conduct toward coworkers.  Holding the event at a restaurant where bartenders serve the drinks can also help limit your liability in the event of injury to third-parties.  Also, encourage designated drivers or provide taxi vouchers to keep impaired drivers off the road. 

Finally, remember to respect the diversity of your workplace.  Many companies employ workers of different faiths, and a holiday party should not make some employees feel excluded.  A “winter celebration” or “New Years’ party” is likely to make everyone feel comfortable.  Neutral decorations keep the party festive but non-religious.

Office holiday parties provide a great opportunity to reward employees, build camaraderie, and celebrate the season.  Considering and addressing the risks can keep the holidays fun and joyous for you and your employees.

We wish everyone a happy holiday season.  We offer assistance to management on these and all types of employment-related issues.  If we can be of assistance in this area, please contact us at info@brodyandassociates.com or 203.965.0560.

The drivers claim Hertz, at the Seattle-Tacoma International Airport, fired them because of their religion.  However, Hertz explains they fired the drivers for failing to clock out and in for prayer breaks.  Washington State law allows for two ten minute breaks.  Hertz never denied any employee a break, and has accommodated the prayer schedules of its Muslim employees for over fifteen years.  Hertz even designated a space for prayer.  Finally, under its collective bargaining agreement with Teamsters Local 117, the employees are required to clock out and in when taking their ten minute breaks.  Despite all this, the drivers began abusing their breaks, leaving for more than ten minutes to do non-prayer related things and failing to clock in and out.  Hertz verbally warned the employees that they were violating company policy, counseled the employees, and then issued written warnings after the conduct continued.  After continuing to ignore the clocking in and out policy, the employees were discharged. 

The employees claim Hertz discriminated against them because of their religious requirement to pray at certain times.  Hertz continues to deny such a discriminatory motive.  Hertz explained it has several other Muslim employees who follow the company’s clocking in and out policies and who were not fired.  Also, eight of the discharged employees have since received their jobs back, because they agreed to clock out and in for breaks.  Hertz says it will reinstate the other discharged employees if they also agree to follow the policy.  In the meantime, the union has been protesting outside Hertz.  It will be interesting to see if they file a lawsuit against the company. 

For now, employers should note that Hertz followed all the proper procedures to protect themselves from liability, including thorough documentation.  They gave verbal and written warnings and counseled the employees on proper workplace conduct.  They also bargained over the issue with the union.   In addition, there are many other Muslim employees who were not fired because they follow company policy.  Given these facts, one would hope and expect Hertz will prevail if litigation is ever filed against the Company.

Brody and Associates regularly provides counsel on civil rights issues and employment laws in general.  If we can be of assistance in this area, please contact us at info@brodyandassociates.com or 203.965.0560.

Previously, the City’s law excused an employer from making an accommodation if it would be a de minimus burden on the employer.  Many critics of that standard felt this meant any inconvenience to the employer would excuse their inaction.  Now, the Workplace Religious Freedom Act increases the burden.  Employers will have to provide an employee or prospective employee with a religious accommodation unless it would be an “undue hardship” on the employer. 

There are many factors the Court should now consider in determining undue hardship, including the size of the company, the company’s financial situation, the resources needed to complete the accommodation, and the impact on the operation of the facility.  Violation of the law can lead to civil fines of up to $125,000 or $250,000 if the employer’s conduct is found to be willful.  These fines are in addition to the recoveries already available to employees, including back pay, reinstatement, compensatory and punitive damages, and attorney’s fees. 

The new standard provides greater protections than Title VII of the Civil Rights Act of 1964.  In fact, it closely mirrors the “undue hardship” standard under the Americans with Disabilities Act.  While the new standard’s overall impact is not clear, it is likely to have a greater impact on smaller employers, as they are usually the ones with the least flexibility and resources for granting accommodation requests.  If you believe an employee’s request for an accommodation may be a hardship on your business, we strongly advise consulting with counsel before making a decision which may lead to serious legal penalties. 

Brody and Associates regularly provides counsel on civil rights issues and employment laws in general.  If we can be of assistance in this area, please contact us at info@brodyandassociates.com or 203.965.0560.

 Discriminatory Enforcement

While there is no special protection for tattooed employees, employers may face liability if non-discriminatory employment policies are enforced in a discriminatory manner.  For example, earlier this month in Texas, a former Starbucks shift-manager filed a federal law suit alleging that although Starbucks fired him for having visible tattoos, the company retained female, tattooed employees.  If the employee proves those facts at trial, he should have a successful claim for gender discrimination in violation of Title VII.   Thus, developing non-discriminatory policies is only half the battle.  The other half is non-discriminatory enforcement.  

A common pitfall employers fall into is making an exception for a favored employee (e.g. excusing tardiness, granting special leave).  As soon as the employer fails to enforce a policy against one employee, the employer is open to attack by other employees who may claim inconsistent enforcement.  Of course, if the complaining employee is a different race, gender, or religion (for example) than the favored employee, the employer may face a discrimination claim.  Therefore, unless you have a legitimate business reason to treat an employee more favorably (e.g. he or she has more seniority), you should think twice about making exceptions if your goal is to minimize the risk of discrimination claims.

Religious Discrimination

A much less common basis for a claim by a tattooed employee is religious discrimination.  These claims are rare because the employee has the burden of proving that he or she sincerely holds a religious belief that requires the visible tattoo and prohibits its being covered (as is commonly requested by employers).  One such dispute is the 2005 case of EEOC v. Red Robin Gourmet Burgers, Inc.  In that case, a restaurant server claimed he was discharged for having a tattoo of a religious text encircling his wrist.  The inscription was in the Coptic (ancient Egyptian) language, and the tattoo was allegedly required as a right of passage into the Kemetic religion.  Moreover, the employee claimed his religion considered it a sin to intentionally cover up that tattoo.  After a federal judge denied the employers motion for summary judgment (allowing the case to go to trial), the employer paid the employee $150,000 to settle the case.  While the case demonstrates the possibility of such claims, as you can see, such claims are extremely rare.

Conclusion

In short, visible tattoos are not legally protected in the workplace.  However, to minimize the risk of claims, employers who want to keep them out of sight should have a policy in the employee handbook and uniformly apply it to everyone (except maybe Kemetics).   

Brody and Associates regularly provides counsel on civil rights issues and employment litigation in general.  If we can be of assistance in this area, please contact us at info@brodyandassociates.com or 203.965.0560.

The law prohibits employers from refusing to allow an employee to use leave for a religious observance. The former law protected employee accommodations for a Sabbath or holy day, but failed to cover other forms of religious practices or beliefs (e.g., dress, hair style, beards, prayer requirements).

In addition to greater protection, the law more clearly defines what employer accommodations represent an “undue hardship.” If an accommodation is an “undue hardship” employers are granted an exception from the law. Any accommodation that involves a “significant expense or difficulty” will be deemed an “undue hardship.”

Should you have any questions about this article, please call or e-mail Brody and Associates, LLC. We can be reached at (203) 965-0560 or info@brodyandassociates.com. ]]> http://brodyandassociates.com/new-york-statute-expands-religious-discrimination-protections-in-the-workplace/feed/ 0