Indiana Primary Health Care Association
May 4, 2015
Hot Topics in Employment Law
Sara R. Blevins
Lewis & Kappes, P.C.
(317) 639-1210
sblevins@lewis-kappes.com
www.lewis-kappes.com
Nothing contained herein should be construed as legal advice. Lewis & Kappes
recommends that you seek the advice of retained legal counsel to determine how the
law applies to you.
Lewis & Kappes, P.C. * www.lewis-kappes.com
What’s Hot?
• Religious Accommodation
• Indiana Religious Freedom Restoration Act
• Title VII religious accommodation
• EEOC v. Abercrombie & Fitch (U.S.
Supreme Court)
• Pregnancy Discrimination and Accommodation
• Young v. UPS (U.S. Supreme Court)
• Criminal history (“Ban the Box”)
• Background checks
• Changes to Indiana’s law on wage assignments
and wage claims
Lewis & Kappes, P.C. * www.lewis-kappes.com
Indiana Religious Freedom Restoration Act (RFRA)
• 2015 Indiana Senate Bill 101, signed into law
by Governor Pence on March 26, 2015
• Amended by Senate Bill 50 to provide antidiscrimination safeguards (the “Fix”), signed
into law by Governor Pence on April 2, 2015
• Effective July 1, 2015
• IRFRA says that the government cannot substantially
burden a person’s exercise of religion unless it is in
furtherance of a compelling government interest and is
the least restrictive means of furthering that interest.
• The “Fix” makes it clear the IRFRA does not
“authorize a provider to refuse to offer or provide
services, facilities, use of public accommodations,
goods, employment, or housing to any member or
members of the general public on the basis of race,
color, religion, ancestry, age, national origin, disability,
sex, sexual orientation, gender identity, or United States
military service.”
Lewis & Kappes, P.C. * www.lewis-kappes.com
What Does IRFRA Say?
• “Exercise of religion” includes “any
exercise of religion, whether or not
compelled by, or central to, a system
of religious belief.”
• “Person” is defined to include not
only individuals, but also religious
groups and, companies (including
partnerships, LLCs, corporations,
etc.). In order to claim protection
under IRFRA, however, what the
company does must be compelled by
a system of religious beliefs held by
the individual(s) that control or have
substantial
ownership
of
the
company.
Lewis & Kappes, P.C. * www.lewis-kappes.com
What Does IRFRA Say?
• A person whose exercise of religion has been
substantially burdened or, is likely to be
substantially burdened, may file a lawsuit or raise
a defense in a lawsuit based on IRFRA. The
government does not have to be a party to this
lawsuit, but can join in to defend itself. It also
permits an award of reasonable attorney fees to the
prevailing party to any lawsuit that is against a
government entity.
• Finally, IRFRA states that it does not create a
claim against a private employer by any job
applicant, employee, or former employee.
Lewis & Kappes, P.C. * www.lewis-kappes.com
What Does the “Fix” Say?
• IRFRA does not “authorize a provider to refuse to
offer or provide services, facilities, use of public
accommodations, goods, employment, or housing
to any member or members of the general public
on the basis of race, color, religion, ancestry, age,
national origin, disability, sex, sexual orientation,
gender identity, or United States military service.”
• A “provider” is defined as an individual,
partnership, association, organization, LLC,
company, corporation, or “other organized groups
or persons,” but does not include churches or
religious non-profit organizations (including
affiliated schools). “Provider” also does not
include “a rabbi, priest, preacher, minister, pastor,
or designee of a church or other nonprofit religious
organization or society when . . . engaged in a
religious or affiliated educational function . . .”
Lewis & Kappes, P.C. * www.lewis-kappes.com
What Does it Mean?
• Does IRFRA prohibit all discrimination in
employment based on sexual orientation or gender
identity? No, it does not. There is no general
protection based on sexual orientation or gender
identity under Indiana law. The IRFRA “fix” only
applies to situations where the discrimination is a result
of the provider exercising his/her/its religion. This is
not a general prohibition against employment
discrimination based on sexual orientation or gender
identity
• What happens now? IRFRA will become effective July 1, 2015. Over time, the
courts will work through how IRFRA applies to particular circumstances. Also,
advocates for equality undoubtedly will continue to urge the Indiana General
Assembly to add sexual orientation and gender identity as protected classes under
Indiana’s general anti-discrimination laws.
Lewis & Kappes, P.C. * www.lewis-kappes.com
Do other laws prohibit employment discrimination
based on sexual orientation or gender identity?
• Yes, but not in all places and not in all circumstances. Some Indiana municipalities
and counties have ordinances that prohibit discrimination in employment based on
sexual orientation and/or gender identity. Municipalities and counties with such
ordinances include: Indianapolis/Marion County, Bloomington/Monroe County,
Lafayette/West Lafayette/ Tippecanoe County, Michigan City, South Bend, Fort
Wayne, Terre Haute, Evansville, and New Albany.
• In addition, federal non-discrimination laws have
been applied by the U.S. Equal Employment
Opportunity Commission (“EEOC”) and some
courts to prohibit discrimination against transgender
individuals. The EEOC and some courts have also
applied federal non-discrimination laws to prohibit
discrimination based on sexual orientation in very
fact-specific
circumstances
where
the
discrimination manifests as gender discrimination.
Lewis & Kappes, P.C. * www.lewis-kappes.com
Do other laws require religious accommodation?
• Title VII of the Civil Rights Act of 1964 protects workers and
applicants from employment discrimination based on race, color,
religion, sex, national origin, or protected activity.
• Solely with respect to religion, Title VII also requires reasonable
accommodation of employees’ sincerely held religious beliefs,
observances, and practices when requested UNLESS
accommodation would impose an undue hardship on business
operations.
• Religion = all aspects of religious observance and practice as well as belief.
• Includes all religion and atheism – from traditional and organized to an “odd”
belief of one. It is religious if it the person holding the belief sees it as such (what
is the motivation for the activity?) – but typically must concern “ultimate ideas”
about life, purpose, right and wrong, death, etc.. Social, political, or economic
philosophies and mere personal preference are not protected religious beliefs under
Title VII.
• Sincerely held belief = factors include consistency of behavior, accommodation
requested is particularly desirable for secular reasons, suspect timing, etc. Must have
objective basis for questioning sincerity.
Lewis & Kappes, P.C. * www.lewis-kappes.com
What is a Reasonable Accommodation?
• Employee or applicant is seeking adjustment to a neutral work rule that infringes on
the employee’s ability to practice his or her religion.
• At least for now, employee or applicant must make the employer aware both of
the need for accommodation and that it is being requested for religious reasons –
stayed tuned for more on EEOC v. Abercrombie & Fitch (SCOTUS). No magic
words.
• Do not need to engage in an as an extensive interactive process like you do with an
ADA accommodation request, but should promptly obtain whatever information you
need to determine if an accommodation is available that would eliminate the religious
conflict without posing an undue hardship. Should have some discussion with the
employee. All should cooperate.
• Accommodation is not reasonable if it merely
lessens, rather than eliminates the conflict between
religion and work. But, must not unnecessarily
disadvantage terms, conditions, or privileges of
employment.
• Not obligated to provide employee’s preferred
accommodation – but need to treat similarly
situated employees the same.
Lewis & Kappes, P.C. * www.lewis-kappes.com
Undue Hardship
• Undue Hardship – accommodation would pose more than a de minimis cost on employer
• Employer must objectively demonstrate how much cost or disruption the accommodation
would involve – factors include type of workplace, nature of employee’s duties, identifiable
cost in relation to the size and operating costs of the employer, and number of employees
needing accommodation.
• Undue hardship usually includes:
• Hiring additional employees
• Diminished efficiency of other jobs
• Infringing on other employees’ rights or benefits; significant disruption
• Impairing workplace safety or security
• Causes co-workers to take on extra share of potentially hazardous or burdensome work
• Undue hardship usually does NOT include:
• General disgruntlement of co-workers or customers
• “Image”
• Schedule changes that do not affect employee’s ability to
perform his/her duties
• Voluntary substitutes and shift swaps absent more than de
minimis cost
• Some changes in job tasks or job transfer
Lewis & Kappes, P.C. * www.lewis-kappes.com
EEOC v. Abercrombie & Fitch
• Samantha Elauf wore a headscarf during a job
interview for a position with retailer
Abercrombie & Fitch – violated their “Look
Policy” – otherwise would have been hired.
Was not hired.
• Employer thought headscarf was for religious
reasons, but did not ask and Elauf did not
request an accommodation during the interview.
• Question before the U.S. Supreme Court:
Whose burden is it to bring up religious
accommodation? Employer or employee?
• Oral arguments held February 2015; opinion
expected this summer.
• During argument, Justices seemed to lean
towards some burden on employers to inquire
whether complying with neutral policy would be
a problem when need for religious
accommodation may be reasonably suspected.
Lewis & Kappes, P.C. * www.lewis-kappes.com
Pregnancy Discrimination and Accommodation
• In 1978, the Pregnancy Discrimination Act (“PDA”) amended Title
VII of the Civil Rights Act of 1964 (15+ employees) to include
pregnancy discrimination in the definition of sex discrimination:
• First clause: Pregnancy, childbirth, or related medical
conditions
• Second clause:
Women affected thereby “shall be treated
the same for all employment-related purposes, including
receipt of benefits under fringe benefit programs, as other
persons not so affected but similar in their ability or inability
to work”
• FMLA (50+ employees) – 12 weeks unpaid leave for prenatal care
and pregnancy related medical conditions, birth of a child, and
own serious heath condition following birth.
• ADA and ADAAA (15+ employees) – Pregnancy in and of itself is
not a qualified disability, but pregnancy related medical conditions
may be if they substantially limit a major life activity. Usually
includes things like temporary lifting restrictions.
Lewis & Kappes, P.C. * www.lewis-kappes.com
Young v. UPS
• Open question under PDA: extent of accommodation (the same or better?)
• Peggy Young was employed by UPS, whom generally required employees to be able to lift
70 lbs. Light duty was available for on-the-job injuries, ADA qualified conditions, and
those who lost DOT certification. During pregnancy, Ms. Young was restricted to lifting
20 lbs.; because her condition did not meet qualifications for light duty, she was not
accommodated (note: this happened before 2008 ADA amendments which have been
expanded in such a way that Ms. Young likely would have qualified under ADA)
• SCOTUS determined that pregnancy is not entitled to “most-favored nation” status – i.e.
do not have to treat the same as ANY other employee
• May make a disparate treatment claim through
indirect evidence – denied accommodation when
others similar in ability to work were not, with no
non-prextual, legitimate, non-discriminatory reasons
for doing so (not cost or convenience)
• Pretextual if imposes significant burden without
sufficiently strong justification
• Must grant pregnant employees accommodation if
grant the same accommodation to other employees
with similar limitations – what is the impact?
Lewis & Kappes, P.C. * www.lewis-kappes.com
Use of Criminal History in Hiring (“Ban the Box”)
• Nationwide “Ban the Box” Campaign
started in 2004 aimed at ending hiring
discrimination against people with
criminal histories. The Campaign asks
employers to remove questions regarding
conviction
histories
from
their
employment applications and to adopt
hiring practices that give applicants a fair
chance
• 100 cities and counties (including Indianapolis-Marion County) and 16 states have
adopted Ban the Box legislation in some form. Hawaii, Illinois, Massachusetts,
Minnesota, New Jersey, and Rhode Island—and twelve localities— Baltimore (MD),
Buffalo (NY), Chicago (IL), Columbia (MO), D.C., Montgomery County (MD),
Newark (NJ), Philadelphia (PA), Prince George’s County (MD), Rochester (NY),
Seattle (WA), and San Francisco (CA)—have “banned the box” for private employers
• Recent call for President Obama to issue an executive order to “ban the box” for
federal jobs and contractors.
Lewis & Kappes, P.C. * www.lewis-kappes.com
Indianapolis Ban the Box Ordinance
• February 2014 – Indianapolis City-County Council passed Ban the Box ordinance,
now Indianapolis Ordinance 671.
• Applies to three types of employers:
• (1) The City of Indianapolis;
• (2) any employer with ten or more full-time employees that holds or enters into a
contract with a City agency; and
• (3) any Marion County employer that receives an economic incentive from the
government.
• Prohibited from:
• Asking about criminal history on job application or at first interview, or
• Asking about or taking adverse action based on any criminal arrest or accusation
not resulting in conviction, unless then pending.
• Can discuss criminal history if applicant voluntarily
discloses it.
• If hiring for a position where certain convictions are a
bar to employment under state or federal law, then the
employer may ask about those certain convictions, or
take adverse action if permitted by other law.
Lewis & Kappes, P.C. * www.lewis-kappes.com
EEOC Guidelines on Criminal History
• EEOC Guidelines prohibit blanket prohibitions on hiring people with criminal histories. If
you disqualify a candidate based on criminal history must be justifiable under the
following criteria:
• (1) the nature and gravity of the offense or conduct;
• (2) the time that has passed since the offense or conduct occurred and/or the sentence
was completed; and
• (3) the nature of the job held or sought.
• Best practices:
• No blanket prohibition on hiring people with criminal or arrest histories;
• Develop a narrowly tailored policy taking into account essential job requirements,
types of offenses, the time frame for the offense, and requires and individualized
assessment of the candidate and his or her situation;
• Limit criminal history and arrest inquires to what is job related and justified by
business necessity;
• Keep confidential all records and other information obtained during any hiring
process; and
• Conduct training for hiring personnel and managers regarding the policies, practices,
standards, and legal requirements.
Lewis & Kappes, P.C. * www.lewis-kappes.com
Criminal Background Checks
• If you use a third-party vendor, you must
comply with the federal Fair Credit Reporting
Act (FCRA).
• Notify applicant or employee that you might
use information from a background check to
make decisions.
• In stand-alone, written format. Must be
clear and not confusing and describe
scope.
• Get written permission from applicant or
employee. Can be part of the notification
form.
• Certify to the vendor that you have notified the
applicant/employee and have permission,
complied with all FCRA requirements, and
won’t discriminate or violate the law.
Lewis & Kappes, P.C. * www.lewis-kappes.com
Criminal Background Checks
• BEFORE taking adverse action, give applicant or
employee notice with a copy of the report and a
copy of “A Summary of Your Rights Under the
Fair Credit Reporting Act” (vendor should give
you this)
• AFTER you take adverse action, you must:
• Tell the applicant or employee that s/he was
rejected because of information in the report,
• Give him/her the contact information for the
vendor,
• Tell him/her that the vendor did not make the
hiring decision and can’t give reasons for it,
• Tell him/her that s/he can dispute the report.
• When it is time to dispose of the reports, do so
securely.
• Your vendor likely will have forms and checklists
for you to use.
Lewis & Kappes, P.C. * www.lewis-kappes.com
Changes to Indiana Wage Assignments and Claims
• Indiana House Bill 1469
• Wage Assignments, additional categories of permissible deductions:
• Merchandize, goods, or food for the employee’s benefit, use, or consumption
• Uniforms and equipment necessary to fulfill duties of employment, not to exceed
lesser of $2500 annually or 5% of employee’s weekly disposable earnings
• Education or training unless provided through economic development incentive
• Payroll or PTO advance
• Interest rate on loans or advances may not exceed Prime + 4%
• Still must get signed, written authorization by both employer and employee,
revocable at any time!!
• Wage Payment Claims (Indiana Code § 22-2-5-2) (for employees that are still working
for employer or who voluntarily quit):
• Removes virtually automatic treble
damages
• Treble damages only apply if employer
was not acting in good faith.
Lewis & Kappes, P.C. * www.lewis-kappes.com
More Information
Some websites with a wealth of information:
U.S. Equal Employment Opportunity Commission: www.eeoc.gov
U.S. Department of Labor: www.dol.gov
Federal Trade Commission: www.ftc.gov
Indiana Civil Rights Commission: www.in.gov/icrc/
Sara R. Blevins
Lewis & Kappes, P.C.
(317) 639-1210
sblevins@lewis-kappes.com
www.lewis-kappes.com
Lewis & Kappes, P.C. * www.lewis-kappes.com