CURRENT EMPLOYMENT LAW &PERSONNEL ISSUES

UMAA Spring Meeting 2015Presented By

Jonathan PappasiderisSenior City Attorney, Salt Lake City Corporation

jonathan.pappasideris@slcgov.com (801) 535-6487

Topic Overview

• Recent Developments in Utah Law– S.B. 296 (UADA Amendments – Sexual Orientation/Gender Identity)

• Religious Accommodation Issues– EEOC v. Abercrombie & Fitch

• The “Bermuda Triangle”– The Interplay Between the ADA, FMLA, and Workers’ Compensation

• ADA Interactive Process Practice Pointers

S.B. 296Antidiscrimination & Religious Freedom Amendments

What Does This Legislation Do?

• Defines “Sexual Orientation” and “Gender Identity”

• Prohibits Discrimination in Employment and Housing on the Basis of Sexual Orientation and Gender Identity

• Preempts ALL Local Government Remedies (i.e. Ordinances) in Favor of UADA and UFHA

• Provides that Employment and Housing Protections Do Not Extend into Other Areas (i.e. Public Accommodation)

• Addresses UADA Application to Employee Dress and Grooming Standards and Gender-Specific Facilities

• Addresses “Employee Free Speech” in the Workplace and Prohibits Employers from Taking Action in Response to Certain Employee Speech Outside the Workplace

Relevant Statutory Definitions

Sexual Orientation

“‘Sexual orientation’ means an individual’s actual or perceived orientation as heterosexual, homosexual, or bisexual.”

Gender Identity

“‘Gender identity’ has the meaning provided in the Diagnostic and Statistical Manual (DSM-5). A person’s gender identity can be shown by providing evidence, including, but not limited to, medical history, care or treatment of the gender identity, consistent and uniform assertion of the gender identity, or other evidence that the gender identity is sincerely held, part of a person’s core identity, and not being asserted for an improper purpose.”

Relevant Statutory Definitions Continued

Employer Exclusions (i.e. Entities Not Subject to the Law)

“‘Employer’ does not include:

(A) a religious organization, a religious corporation sole, a religious association, a religious society, a religious educational institution, or a religious leader, when that individual is acting in the capacity of a religious leader;

(B) any corporation or association constituting an affiliate, a wholly owned subsidiary, or an agency of any religious organization, religious corporation sole, religious association, or religious society; or

(C) the Boy Scouts of America or its councils, chapters, or subsidiaries.”

Protections Afforded -Creation of Two New Protected Classes

Existing Law

It is Unlawful To:

Refuse to Hire, Promote, Discharge, Demote, or Terminate a Person; or

Retaliate Against, Harass, or Discriminate in Matters of Compensation or in Terms, Privileges, or Conditions of Employment Against a Person Otherwise Qualified,

Because Of …….

Protections Afforded -Creation of Two New Protected Classes

• Race

• Color

• Sex

• Pregnancy, Childbirth, or Pregnancy-Related Conditions

• Age, if the Individual is 40 Years of Age or Older

• Religion

• National Origin

• Disability

• Sexual Orientation (NEW)

• Gender Identity (NEW)

Preemption andProtections NOT Afforded

• ALL County, Municipal, and Other Ordinances Related to Discrimination in Employment and Housing ARE PREEMPTED by S.B. 296

• “[T]his chapter supersedes and preempts any ordinance, regulation, standard, or other legal action by a local government entity, a state entity, or the governing body of a political subdivision that relates to the prohibition of discrimination in employment.”

• NO Protection/Application to Public Accommodation Issues

• “This chapter shall not be construed to create a special or protected class for any purpose other than employment.”

• NO Protection Under Federal Law – No EEOC Jurisdiction– No Federal Court Lawsuits

Employee Dress and Grooming Standards

Employers Can Adopt “Reasonable Dress and Grooming Standards” Provided “Reasonable Accommodations” Are Offered

• “This chapter may not be interpreted to prohibit an employer from adopting reasonable dress and grooming standards not prohibited by other provisions of federal or state law, provided that the employer’s dress and grooming standards afford reasonable accommodations based on gender identity to all employees.”

Sex-Specific Facilities

Employers Can Adopt “Reasonable Rules and Policies” That Designate Sex-Specific Facilities Provided “Reasonable Accommodations” Are

Offered

• “This chapter may not be interpreted to prohibit an employer from adopting reasonable rules and policies that designate sex-specific facilities, including restrooms, shower facilities, and dressing facilities, provided that the employer’s rules and policies adopted under this section afford reasonable accommodations based on gender identity to all employees.”

Religious Liberty and Expression – The Next Battleground?

“An employee may express the employee’s religious or moral belief and commitments in the workplace in a reasonable, non-disruptive, and non-

harassing way on equal terms with similar types of expression of beliefs or commitments allowed by the employer in the workplace, unless the

expression is in direct conflict with the essential business-related interests of the employer.”

What Does This Mean?

UALD (Maybe) and State District Courts Will Be Tasked With Figuring This Out

Religious Liberty and Expression – The Next Battleground?

“An employer may not discharge, demote, terminate, or refuse to hire any person, or retaliate against, harass, or discriminate in matters of

compensation or in terms, privileges, and conditions of employment against any person otherwise qualified, for lawful expression or expressive activity

outside of the workplace regarding the person’s religious, political, or personal convictions, including convictions about marriage, family, or

sexuality, unless the expression or expressive activity is in direct conflict with the essential business-related interests of the employer.”

UALD (Maybe) and State District Courts Will Be Tasked With Figuring This Out

Err on the Side of Caution

Religious Accommodation Issues NationallyEEOC v. Abercrombie & Fitch

Fact Pattern

• In 2008, Samantha Elauf (a then-17-year-old girl) applied for a salesperson job at an Abercrombie & Fitch store in Oklahoma.

• Ms. Elauf has worn a headscarf (or hijab) since she was 13 years old because she believes it is a requirement of her Muslim faith. At her job interview, she wore a t-shirt, jeans, and a black headscarf.

• Abercrombie & Fitch has an employee dress code called a “Look Policy”– Policy is Intended to Promote a “Preppy Aesthetic”– Applies to Clothes, Jewelry, Facial Hair, and Shoes– Policy Prohibits Caps and Black Clothing

Religious Accommodation Issues NationallyEEOC v. Abercrombie & Fitch

Fact Pattern

• Job interview went well, but Ms. Elauf was not hired for the position.

• When a friend of Ms. Elauf’s who worked at the store inquired of store personnel, the Assistant Manager indicated that Ms. Elauf was not hired because of her headscarf.

• EEOC files suit on Ms. Elauf’s behalf.

• EEOC wins in U.S. District Court in Oklahoma.

Religious Accommodation Issues NationallyEEOC v. Abercrombie & Fitch

Legal

• Tenth Circuit Reverses.

• Tenth Circuit concludes that Abercrombie & Fitch could not be held liable because it did not know, nor did Ms. Elauf tell it, that she wore her headscarf for religious reasons.

• EEOC petitions for Writ of Certiorari to U.S. Supreme Court.

• U.S. Supreme Court heard oral argument in February 2015

Religious Accommodation Issues NationallyEEOC v. Abercrombie & Fitch

EEOC’s Arguments

• A job applicant should not be solely responsible for asking a potential employer to accommodate their religious beliefs, especially if the belief is obvious.

• Although Ms. Elauf never told anyone at Abercrombie & Fitch that she wore the headscarf for religious reasons, the individuals conducting her job interview assumed that to be the case.

• EEOC claims that, if an employer’s understanding about a religious practice is correct, the employer cannot refuse to hire on that basis without considering the possibility of a reasonable accommodation.

• EEOC contends that a contrary ruling would allow employers to skirt Title VII by arguing that they were never aware of a job applicant’s religious practices, even if the practice is obvious.

Religious Accommodation Issues NationallyEEOC v. Abercrombie & Fitch

Abercrombie & Fitch’s Arguments

• Title VII protects all job applicants and employers don’t know every possible religion or religious practice. Additionally, members of the same religion often don’t agree on what constitutes a required practice.

• How are employers supposed to know if a job applicant wants or needs an accommodation without the applicant making it clear? To force employers to make assumptions promotes stereotyping and runs the risk of wading into impermissible waters.

The “Bermuda Triangle”ADA, FMLA, and Workers’ Compensation

• ADA (Americans with Disabilities Act)

• FMLA (Family & Medical Leave Act) • Utah Workers’ Compensation Act

ADA vs. FMLA vs. Workers’ CompProtections

ADA• Prohibits discrimination against

employees and job applicants on the basis of disability

WORKERS’ COMP• Provides for payment of indemnity and

medical benefits to employees injured in the course and scope of their employment

• Unlike ADA and FMLA, purely a creature of state law

FMLA• Provides job-protected leave under certain

circumstances – An individual’s own “serious health

condition”– To care for an immediate family

member with a “serious health condition”

– Birth, adoption, or placement of a child

– To care for a family member injured in military service

– Exigency leave

ADA vs. FMLA vs. Workers’ CompEligibility

ADA• An employee or applicant who:

– Qualifies as “disabled” as defined by the ADA

– Is qualified for the position held or desired

– Can perform the essential functions of the position with or without reasonable accommodation

WORKERS’ COMP• An employee who sustains an injury or

occupational disease arising out of the course and scope of employment

FMLA• An employee who has:

– Worked for at least one year– Worked 1, 250 hours in the past 12

months

– FMLA applies to married individuals, but not domestic partners.

ADA vs. FMLA vs. Workers’ CompTypes of Conditions Covered

ADA• Cancer• Diabetes• Epilepsy• Major Depression

WORKERS’ COMP• Wrist sprain due to a fall at work• Carpal tunnel• Back injury due to heavy lifting at work

• Note: Many Conditions that Qualify as Work-Related Injuries Could Also be Disabilities Under the ADA

FMLA• Migraines• Surgery to Repair Torn ACL• Broken Bones• Pregnancy or Caring for a Baby/Child

ADA vs. FMLA vs. Workers’ CompLeave Length

ADA• NO specific limit for the amount of leave

that can be provided as a reasonable accommodation, PROVIDED that the leave does not create an undue hardship

WORKERS’ COMP• No specific limit for the amount of leave

that an injured worker may have.

• NOTE: MMI may impact this

FMLA• 12 weeks per year. Leave can be taken as

Continuous or Intermittent

• Military Caregiver Leave is 26 weeks per year

ADA vs. FMLA vs. Workers’ CompLight Duty?

ADA• Must be offered if it does not create an

undue hardship

WORKERS’ COMP• Should consider offering if employer has it

available, as light duty may eliminate or decrease the Temporary Total Disability (TTD) obligation

FMLA• Not required

ADA vs. FMLA vs. Workers’ CompReinstatement or Transfer?ADA

• Must reinstate to previous job unless doing so would create an undue hardship

• Must consider job transfer under certain circumstances

WORKERS’ COMP• No right to reinstatement or transfer

• Beware: Retaliatory Discharge claims

FMLA• Must reinstate to same or equivalent job

ADA Interactive ProcessPractice Pointers

• Respond Promptly to Request for Accommodation or Other Information

• Communicate with the Employee– Document all Verbal Communication– Start Communicating as Soon As Accommodation

Request is Made or Information Received– Continue After Accommodation is Implemented

ADA Interactive ProcessPractice Pointers

• Assess the Employee’s Particular Circumstances and Job Functions– Good Job Descriptions are Key– Get Additional Information if Needed

• Assess Each Suggested Accommodation– As to how it will impact business needs and

concerns– With the employee

UMAA Employment Law Compliance Tool

• Section 10-3-1105 and 10-3-1106 Primer– Tricia Lake (Park City)

• FMLA Primer– Martha Stonebrook (West Valley City)

• Basic ADA Primer– Jonathan Pappasideris (Salt Lake City)