CURRENT EMPLOYMENT LAW &
PERSONNEL ISSUES
UMAA Spring Meeting 2015
Presented By
Jonathan Pappasideris
Senior 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. 296
Antidiscrimination & 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 GenderSpecific 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 and
Protections 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 nonharassing 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 Nationally
EEOC 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 Nationally
EEOC 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 Nationally
EEOC 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 Nationally
EEOC 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 Nationally
EEOC 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’ Comp
Protections
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’ Comp
Eligibility
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’ Comp
Types 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’ Comp
Leave 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’ Comp
Light 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’ Comp
Reinstatement 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 Process
Practice 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 Process
Practice 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)