Category Archives: Discrimination

May 23, 2016

Limitations Period For Constructive-Discharge Claim Starts When Employee Gives Notice of Resignation

The Supreme Court made clear today that the filing period for a constructive-discharge claim begins to run when the employee gives notice of his or her resignation. In a 7-to-1 decision, the Court favored the five-circuit majority who recognized such timeline and rejected the Tenth Circuit’s reasoning that the clock begins to run on the date of the “last discriminatory act.” Green v. Brennan, 578 U.S. ___, (2016). Although the case involved a federal employee, the Court noted that the Equal Employment Opportunity Commission (EEOC) treats federal and private sector employee limitations periods the same so this ruling should affect constructive-discharge claims against private employers as well.

Discriminatory Act That Triggers Limitations Clock

In the case before the Court, Marvin Green, a postmaster in Colorado, claimed he was denied a promotion because of his race. A year after that matter was settled, Green filed an informal EEO charge with the Postal Service alleging that he was subjected to retaliation for his prior EEO activity due to his supervisor threatening, demeaning, and harassing him. After the Postal Service’s EEO Office completed its investigation of his allegations, he was informed he could file a formal charge, but he failed to do to.

A few months later, Green was investigated for multiple infractions, including improper handling of employee grievances, delaying the mail, and sexual harassment of a female employee. Green was placed on unpaid leave during the investigation. Federal agents quickly concluded that Green had not intentionally delayed mail, but neither Green nor his union representative was told. Instead, the Postal Service began negotiating with Green’s union representative to settle all the issues against Green, resulting in Green signing a settlement agreement in December 2009 that included giving up his postmaster position. On February 9, 2010, Green submitted his resignation which was to be effective March 31.

During that time, Green filed multiple charges with the Postal Service’s EEO Office. By regulation, federal employees must contact an equal employment opportunity officer in their agency within 45 days of “the date of the matter alleged to be discriminatory” before bringing suit under Title VII. Green’s allegations included that he had been constructively discharged by being forced to retire.

Green eventually sued the Postal Service in federal court in Denver. The district court dismissed Green’s constructive discharge claim, ruling that he had not contacted an EEO counselor about his constructive-discharge claim within 45 days of the date he signed the settlement agreement in December. On appeal to the Tenth Circuit Court of Appeals, Green argued that the 45-day limitations period did not begin to run until he announced his resignation, even though that was months after the last alleged discriminatory act against him. The Tenth Circuit disagreed with Green, ruling that the clock began to run on the date of the “last discriminatory act” giving rise to the constructive discharge, as two other circuits have held.

Limitations Period Begins When Employee Gives Notice of Resignation

On appeal to the Supreme Court, Green asserted that the statute of limitations began when he actually resigned due to constructive discharge, the act that gave rise to his cause of action, which was consistent with the rulings of numerous other Courts of Appeals. Interestingly, the Court agreed with the position taken by the Postal Service, which was different from the Tenth Circuit’s decision, ruling that the limitations period for a constructive-discharge claim begins to run when the employee gives notice of his resignation.

In an opinion written by Justice Sotomayor, the Court explained that “the ‘matter alleged to be discriminatory’ in a constructive-discharge claim necessarily includes the employee’s resignation.” The Court noted that to the “standard rule” governing statutes of limitations, the “limitations period commences when the plaintiff has a complete and present cause of action.” It means that period begins when the plaintiff “can file suit and obtain relief.” In effect, a constructive-discharge claim is like a wrongful-discharge claim which accrues only after the employee is fired. With nothing in Title VII or its regulations to the contrary, the Court therefore found that the limitations period should not begin to run until after the discharge itself.

So precisely when does an employee resign for purposes of triggering the limitations period for a constructive-discharge claim? The Court ruled that the limitations period begins on the day the employee tells his employer of his resignation, not the employee’s actual last day of work.

The Court did not decide the factual question of when Green actually gave notice of his resignation to the Postal Service, sending the matter back to the Tenth Circuit to determine that fact.

Significance of Decision for Employers

The practical effect of the Court’s ruling is to extend the period in which an employee may allege a constructive discharge beyond the limitations period for the underlying discriminatory acts that gave rise to the resignation. Hypothetically, employees who resign may be able to bootstrap any alleged discriminatory act during the course of their employment to their decision to abandon employment. In his dissent, Justice Thomas further opined that a discrimination victim may extend the limitations period indefinitely simply by waiting to resign. Yet the Court believed such concerns to be overblown, doubting that a victim of employment discrimination would continue to work under intolerable conditions only to extend the limitations period for a constructive-discharge claim. Nonetheless, even if the applicable Title VII limitation period (typically 180 or 300 days for private employers) for the underlying discrimination has passed, an employee may still have a timely claim for constructive discharge under the Court’s rule.

Time will tell if Justice Thomas’s concerns were more realistic that his colleagues believed.

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May 20, 2016

Employers Who Prevail In A Title VII Case May Seek Attorneys’ Fees Even Without A Ruling On The Merits

By Dora Lane

In a unanimous decision, the U.S. Supreme Court ruled that a Title VII defendant is not required to obtain a favorable judgment on the merits of the underlying discrimination case to be eligible to recover its attorneys’ fees. The decision means that employers who are able to dispose of Title VII claims for non-merits reasons, such as a dismissal on statute-of-limitations grounds, lack of subject matter jurisdiction, failure of the EEOC to conciliate, or something similar, may ask a court to award the attorneys’ fees incurred in contesting the claims (assuming, of course, it satisfies the remaining requirements for an attorneys’ fees award). Refusing to decide whether the EEOC must pay the $4 million attorney fee award at issue, the Court sent the case back to the Eighth Circuit Court of Appeals to consider an alternative theory proposed by the EEOC. CRST Van Expedited, Inc. v. EEOC, 578 U.S. ___ (2016).

Trucking Company Gets Sexual Harassment Claims Dismissed

In the case before the Court, a new female driver at a large trucking company, CRST Van Expedited, Inc., filed a discrimination charge with the EEOC alleging that she was sexually harassed by two male trainers during her 28-day over-the-road training trip. After a lengthy investigation and unsuccessful conciliation, the EEOC filed suit alleging sexual harassment on behalf of the driver and other allegedly similarly situated female employees. During discovery, the EEOC identified over 250 other women who had supposedly been harassed.

Years of legal battles ensued, during which the district court ultimately dismissed all of the EEOC’s claims for various reasons, including expiration of the statute of limitations, lack of severity or pervasiveness of the alleged harassment, employees’ failure to complain timely, CRST’s prompt and effective response to harassment complaints, and discovery sanctions for the EEOC refusing to produce certain women for depositions. Upon dismissing the lawsuit, the court ruled that CRST was a prevailing party and invited them to apply for attorneys’ fees. CRST did, and the court awarded CRST over $4 million in fees.

The EEOC appealed (twice) and the Eighth Circuit Court of Appeals, among other things, reversed the award of attorneys’ fees. Bound by previous decisions in its circuit, the Court of Appeals held that before a defendant could be deemed to have prevailed for purposes of recovering attorneys’ fees, the defendant had to obtain a favorable judicial determination on the merits of the case. The Eighth Circuit then determined that CRST had not prevailed on the claims brought on behalf of 67 women because their claims were dismissed due to the EEOC’s failure to investigate and conciliate, which was not a ruling on the merits. As a result, the Eighth Circuit ruled that CRST was not entitled to an award of attorneys’ fees on those claims. CRST appealed to the Unites States Supreme Court.

Defendant As “Prevailing Party”

Title VII provides that a court, in its discretion, may award reasonable attorneys’ fees to the prevailing party. Accordingly, before deciding whether to award attorneys’ fees in any given case, a court must determine whether the party seeking fees has, in fact, prevailed. That determination is relatively clear when a plaintiff proves his or her discrimination case and a favorable judgment or court order is entered in the plaintiff’s favor. But there has been no clear definition on how courts should determine whether a defendant has prevailed, especially when the complaint is dismissed for procedural deficiencies or on jurisdictional grounds.

In rejecting the Eighth Circuit’s requirement that “prevailing party” status depends on a ruling on the merits, the Court stated that “[c]ommon sense undermines the notion that a defendant cannot ‘prevail’ unless the relevant disposition is on the merits.” Instead, the Court held that a defendant fulfills its primary objective whenever it can rebuff the plaintiff’s case, irrespective of the precise reason for the court’s decision. Looking to the congressional intent for Title VII’s fee-shifting provision, the Court ruled that a defendant may “prevail” even when the court’s final judgment in not on the merits.

Fees Expended in Frivolous, Unreasonable, or Groundless Litigation

The Court noted that under Title VII’s fee-shifting provision, prevailing defendants may seek attorneys’ fees whenever the plaintiff’s claim was frivolous, unreasonable, or groundless. The Court recognized that defendants spend significant attorney time and expenses contesting frivolous and unreasonable claims that result in their favor, whether on the merits or not, and that a request for an award of fees in such cases is appropriate.

Good News For Employers

The Court’s decision is good news for employers defending Title VII claims because it makes clear that a defendant may ask for attorneys’ fees when it gets a favorable judicial result for reasons not on the merits, where the defendant can show that the plaintiff’s claim was frivolous, unreasonable, or groundless. That clarification may help deter the EEOC and individual plaintiffs from filing or continuing to litigate groundless claims.

That said, we may not have seen the final word on application of the Title VII fee-shifting provision as the Court sent the CRST case back to the Eighth Circuit to consider a new argument put forth by the EEOC, namely that a defendant must obtain a preclusive judgment in order to be the “prevailing party.” We’ll keep tabs on this case and let you know of any further developments.

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May 11, 2016

Colorado Pregnancy Accommodation Bill Passes

The Colorado legislature passed House Bill 16-1438 requiring Colorado employers to engage in an interactive process to assess potential reasonable accommodations for applicants and employees for conditions related to pregnancy and childbirth. The bill, expected to be signed into law by Governor Hickenlooper, will ensure that employers engage in the interactive process, provide reasonable accommodations to eligible individuals, prohibit retaliation against employees and applicants that request or use a pregnancy-related accommodation, and provide notice of employee rights under this law. Once signed by the Governor, the new law will go into effect on August 10, 2016.

Pregnancy-Related Workplace Accommodations

This law will add a new section, section 24-34-402.3, to the Colorado Anti-Discrimination Act, making it an unfair employment practice for you to fail to provide a reasonable accommodation for an applicant for employment, or an employee, for health conditions related to pregnancy or physical recovery from childbirth, absent an undue hardship on your business. You also may not deny employment opportunities based on the need to make a pregnancy-related reasonable accommodation.

Interactive Accommodation Process

You will need to engage in a “timely, good-faith, and interactive process” with the applicant or employee to determine effective reasonable accommodations.

Examples of reasonable accommodations include but are not limited to:

more frequent or longer breaks
more frequent restroom, food and water breaks
obtaining or modifying equipment or seating
temporary transfer to a less strenuous or hazardous position, if available (with return to the current position after pregnancy)
light duty, if available
job restructuring
limiting lifting
assistance with manual labor, or
modified work schedules.

In engaging in this process, you need to be sure to document your good-faith efforts to identify and make reasonable accommodations because doing so can negate punitive damages if an individual sues you for failure to make a pregnancy-related accommodation. You may require that the employee or applicant provide a note from her health care provider stating the need for a reasonable accommodation.

No Forced Accommodations or Leave

Under the new law, you may not force an applicant or employee affected by pregnancy-related conditions to accept an accommodation that she has not requested, or that is unnecessary to perform the essential function of her job. Similarly, you may not require a pregnant employee to take leave if there is another reasonable accommodation that may be provided. As stated in the legislative declaration for the bill, the intent is to keep pregnant women employed and generating income so forcing pregnant women to take time off during or after their pregnancy generally is not permitted.

Analyzing Undue Hardship Of Accommodations

Reasonable accommodations may be denied if they impose an undue hardship on your business. That requires an analysis of the following factors in order to decide whether the accommodation would require significant difficulty or expense:

the nature and cost of the accommodation
the overall financial resources of the employer
the overall size of the employer’s business with respect to the number of employees and the number, type, and location of the available facilities, and
the accommodation’s effect on expenses and resources or its impact on the operations of the employer.

Broad Definition of “Adverse Action” in Retaliation Prohibition

The new law prohibits you from taking adverse action against an employee who requests or uses a reasonable accommodation for a pregnancy-related condition. An adverse action is defined very broadly as “an action where a reasonable employee would have found the action materially adverse, such that it might have dissuaded a reasonable worker from making or supporting a charge of discrimination.” This approach harkens to the NLRB’s use of a “chilling effect” on employee rights as a basis for unfair labor charges. By not limiting an adverse action to concrete actions, such as a termination, demotion, pay reduction, or similar actions, the broad definition opens the door to a wide range of employer responses that could be deemed retaliation.

Notifying Employees of Their Rights

If signed into law, you will have until December 8, 2016 (120 days from the effective date) to provide current employees with written notice of their rights under this provision. Thereafter, you also must provide written notice of the right to be free from discriminatory or unfair employment practices under this law to every new hire at the start of their employment. You also have to post the written notice in a conspicuous place at your business in an area accessible to employees.

What To Do Now

With enactment almost certain, prepare now to comply with this new pregnancy accommodation requirement. A checklist of action items includes:

Review and update job descriptions to designate essential functions of each job.
Update your accommodation policies and handbook to include pregnancy-related accommodations and information on how employees may request such an accommodation.
Train your supervisors, managers, and human resources department on the new accommodation requirements and the anti-retaliation provision.
Prepare written notifications of employee rights to send to current employees no later than December 8, 2016.
Include the written notification of rights in your onboarding materials so that after December 8, 2016, all new hires receive the notice.
Post the written notification of rights in a conspicuous place accessible to employees, such as your lunch room bulletin boards, intranet, or wherever other required employment law posters are posted.

March 16, 2016

Muslim Teacher May Proceed With National Origin Hostile Work Environment Claim

By Emily Hobbs-Wright

A Turkish-born Muslim teacher claimed that her school had a culture of racial and ethnic hostility. The Tenth Circuit Court of Appeals (whose decisions apply to Colorado, Utah, Wyoming, Kansas, Oklahoma, and New Mexico) recently ruled that her complaints of national origin discrimination may move forward, offering lessons in how to handle cultural differences in the workplace.

School Principal Made and Allowed Insensitive Comments

Zeynep Unal worked as an elementary teacher in the school district’s gifted and talented program for about four years before the district hired Katheryn Vandenkieboom as the principal at Unal’s school. Born in Turkey, Unal spoke with a distinct Turkish accent and was the only foreign-born teacher at the school. Prior to Vandenkieboom’s arrival, Unal was considered a good teacher and received regular positive reviews.

According to Unal, Vandenkieboom made numerous hostile comments to her and allowed other school staff to do the same. When Vandenkieboom and other faculty began discussing an American movie in the faculty lounge, Vandenkieboom, in front of the staff, told Unal “You wouldn’t know about this. You are not from here.” During an after-school Christmas concert, Vandenkieboom thanked various teachers for being at the concert but then approached Unal to ask, “what are you doing here?” despite Unal’s own child participating in the concert. Vandenkieboom also would correct Unal’s pronunciation in front of staff. Another staff member once called Unal “a turkey from Turkey,” but later apologized.

Unal alleged that Vandenkieboom and her staff also made insensitive remarks about other nationalities, such as repeatedly referring to a Vietnamese family as the “little people,” and openly joking about an Asian family’s surname, Fu, by turning it into the crude insult, “F.U.” The office staff also made announcements over the school’s intercom system while faking foreign accents and then laughing about it.

Unal Alleged A Hostile Work Environment Based On National Origin

Unal sued the school district, its superintendent, and principal Vandenkieboom for, among other things, a violation of Title VII on the basis of a hostile work environment based on her national origin. The parties agreed that she was subject to some unwelcome harassment, but her employer argued that the harassment was not based on her national origin and was not sufficiently severe or pervasive to demonstrate a hostile work environment. The district court agreed with the school district, granting it summary judgment on Unal’s claims. But on appeal, the Tenth Circuit overturned that ruling, sending it back for trial.

Title VII Is Not A “General Civility Code”

The Tenth Circuit panel noted that Title VII is not a “general civility code.” In order to proceed to trial, Unal needed to show that a rational jury could find that the workplace was “permeated with discriminatory intimidation, ridicule, and insult, that is sufficiently severe or pervasive to alter the conditions of [her] employment and create an abusive working environment.”

Evidence of Harassment Supported Claim

Unal needed to show that the harassment was based on a discriminatory animus toward her national origin. Evidence of such animus directed toward Unal’s specific nationality is the strongest evidence, but the Court noted that incidents of harassment of other nationalities could also be considered in evaluating her claim.

The Court found that Unal provided evidence that some comments were directed toward her own nationality. Such comments included Vandenkieboom’s question as to why Unal would attend a school Christmas concert while thanking other teachers who attended, Vandenkieboom’s exclusion of Unal from the faculty lounge discussion of an American movie because she was “not from here,” and another staff member’s comment that Unal was a “turkey from Turkey.” Though each comment was not necessarily supportive of a hostile work environment claim, the Court found that taken together, they were intended to negatively emphasize Unal’s status as a foreigner.

The Court also determined that comments directed to other nationalities, such as the derogatory remarks made about the Vietnamese and Asian families, as well as making school announcements with feigned foreign accents, support an inference that the school’s administration permitted a culture of animus toward foreign-born individuals.

In addition, the Court gave weight to several incidents where seemingly neutral conduct resulted in Unal being treated differently than other teachers. For example, Vandenkieboom solicited negative feedback about Unal from a substitute teacher but did not do so with respect to any other teachers. Vandenkieboom also discounted Unal’s expertise in the gifted program, excused other teachers from attending Unal’s meetings while not excusing attendance at other teachers’ meetings, and letting months pass before assigning an instructional assistant to help Unal while assigning an assistant to another teacher in only a week. Even though these events were not discriminatory on their face, the Court viewed them in relation to the totality of the circumstances and determined that a reasonable jury could conclude that those events were the result of a larger environment of hostility based on national origin.

Close Case On Severity or Pervasiveness

The conduct alleged by Unal as creating a hostile work environment occurred over a three year period. While noting that there is no “mathematically precise test” to determine whether harassment is sufficiently severe or pervasive to have altered a term, condition, or privilege of employment, the Court concluded that Unal met that standard. Calling it a close case, the Court viewed the totality of the circumstances of Unal’s allegations and found that a reasonable jury could find that Unal was subjected to unwelcome harassment based on her national origin that created an abusive work environment.

Handling Diverse Employees

By allowing this case to proceed to trial, the Court sent a strong message to employers to clean up a workplace culture that excludes or segregates workers based on their national origin, or creates hostility toward employees from other countries. Jokes, name-calling, correcting pronunciations, and other conduct that treats individuals differently because of their name, accent, appearance, food or music preferences, religious observances, or traditions can lead to a hostile work environment claim.

To avoid hostile work environment claims based on national origin, take these steps to make sure your managers and staff understand what is, and is not, acceptable behavior at work:

Make sure your harassment policy prohibits unlawful conduct based on all protected characteristics, not just sexual harassment.
Provide examples of unacceptable conduct in your harassment policy, including conduct that targets workers on the basis of their national origin, religion, or ethnicity.
Require all employees to review and acknowledge your harassment policy at least annually.
Train management to recognize and stop such conduct before it becomes severe or pervasive.
Promptly investigate any complaint of workplace harassment and take steps to correct improper conduct so that it doesn’t happen again.

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February 23, 2016

EEOC Providing Employer Position Statements To Charging Parties

By Mark Wiletsky

No reciprocity exists in the new nationwide procedure announced by the U.S. Equal Employment Opportunity Commission (EEOC) late last week. The EEOC now will provide employer position statements and any non-confidential attachments to a charging party during an investigation upon request. It then will permit the charging party to submit a response within 20 days. However, the EEOC will not afford employers the right to receive a copy of the charging party’s response.

As you may know, after an employee or other aggrieved individual files a charge with the EEOC, the agency begins an investigation of the allegations. As part of the investigation, the EEOC will request that the employer (the respondent) submit a position statement, responding to the allegations and providing supporting documentation of its employment decisions that allegedly affected the charging party.

Some EEOC regional offices already release employer position statements to the charging party and allow the charging party to file a response. For employers in those EEOC districts, there is little change in procedure. According to the EEOC, however, this new nationwide procedure is intended to provide a consistent approach in all of its offices.

Take note – these procedures apply to position statements you already may be drafting, or have recently submitted, as they apply to all EEOC requests for position statements made to respondents on or after January 1, 2016.

EEOC Providing Only The First Formal Document From Each Side

In justifying its policy to provide the employer’s position statement to the charging party, but not providing the charging party’s response to the employer, the EEOC states that it is releasing the first formal document received from each party. The respondent receives the Charge and the charging party may receive the respondent’s position statement. The EEOC does not intend to release other documents during the investigation process.

Does this amount to a one-sided discovery request? In other words, by requesting copies of what the respondent submitted to the EEOC, does the charging party get the unreciprocated right to learn the identification of witnesses, decision-makers, applicable company policies, internal documentation of the employment decision, and other important information? The EEOC states this new process is intended to help accelerate the investigation and allow it to better tailor its requests for additional information. But, employer respondents will likely see the procedure as requiring it to lay its cards on the table while permitting the charging party to keep its cards largely hidden.

Use Care With Confidential Information

Respondents who rely on confidential information in their position statements should use care in segregating that information in separate attachments that are labeled “Confidential” or some similar designation. Examples of “confidential” information include birth dates, confidential commercial or financial information, trade secrets, non-relevant personally identifiable information of witnesses, comparators or third parties, references to charges filed against the respondent by other charging parties, and sensitive medical information of others (not the charging party). The EEOC states, however, that it will not accept blanket or unsupported assertions of confidentiality, so be prepared to justify why particular information must be protected.

Be careful, too, when submitting position statements and attachments through the EEOC’s online portal. Once you click “Save Upload” to submit your position statement and any attachments, you will not be able to retract them.

Will The New Procedure Change Outcomes?

It’s important to ask whether the early release of the respondent’s position statement (with supporting documents) to the charging party during the EEOC’s investigation will change the outcome of charges. As with any case, it largely depends on the facts. If you have bad facts or poor documentation on your side, the charge may result in a probable cause finding. Or, the charging party may hold out for more during settlement talks or mediation. However, if you have good policies in place, enforce them uniformly, and document your decisions properly, the release of your defense may help resolve the matter earlier in the process, short of litigation.

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February 11, 2016

Medical Marijuana Need Not Be Accommodated by New Mexico Employers

By Little V. West

New Mexico employers are not required to accommodate an employee’s use of medical marijuana, according to the federal district court in New Mexico. In dismissing an employee’s discrimination lawsuit, the Court recently ruled that an employee terminated for testing positive for marijuana did not have a cause of action against his employer for failure to accommodate his use of medical marijuana to treat his HIV/AIDS. Garcia v. Tractor Supply Co., No. 15-735, (D.N.M. Jan. 7, 2016).

New Employee Terminated For Positive Drug Test

When Rojerio Garcia interviewed for a management position at a New Mexico Tractor Supply store, he was up front about having HIV/AIDS. He also explained that he used medical marijuana under the state’s Medical Cannabis Program as a treatment for his condition upon recommendation of his doctor.

Tractor Supply hired Garcia and sent him for a drug test; Garcia tested positive for cannabis metabolites. He was terminated from employment. Garcia filed a complaint with the New Mexico Human Rights Division alleging unlawful discrimination based on Tractor Supply’s failure to accommodate his legal use of marijuana to treat his serious medical condition under New Mexico law.

No Affirmative Accommodation Requirements in New Mexico’s Medical Marijuana Law

Garcia argued that New Mexico’s Compassionate Use Act (CUA), which permits the use of marijuana for medical purposes with a state-issued Patient Identification Card, should be considered in combination with the state Human Rights Act, which, among other things, prohibits employers from discriminating on the basis of a serious medical condition. He argued that the CUA makes medical marijuana an accommodation promoted by the public policy of New Mexico. Accordingly, Garcia asserted that employers must accommodate an employee’s use of medical marijuana under the New Mexico Human Rights Act.

The Court disagreed. It stated that, unlike a few other states whose medical marijuana laws impose an affirmative obligation on employers to accommodate medical marijuana use, New Mexico’s law did not. Consequently, Garcia did not have a claim under the CUA.

The Court then rejected Garcia’s arguments that his termination violated the Human Rights Act. The Court found that Garcia was not terminated because of, or on the basis of, his serious medical condition. He was terminated for failing a drug test. The Court stated that his use of marijuana was “not a manifestation” of his HIV/AIDS, so Tractor Supply did not unlawfully discriminate against Garcia when it terminated him for his positive drug test.

Court Rejected Public Policy Arguments

Garcia argued that the public policy behind the state’s legalization of medical marijuana meant that employers should be required to accommodate an employee’s legal use of marijuana. The Court rejected the argument, noting that marijuana use remains illegal for any purpose under federal law. It stated that if it accepted Garcia’s public policy position, Tractor Supply, which has stores in 49 states, would have to tailor its drug-free workplace policy for each state that permits marijuana use in some form.

The Court also relied on the fact that the CUA only provides limited state-law immunity from prosecution for individuals who comply with state medical marijuana law. However, Garcia was not seeking state-law immunity for his marijuana use. Instead, he sought to affirmatively require Tractor Supply to accommodate his marijuana use. The Court stated that to affirmatively require Tractor Supply to accommodate Garcia’s drug use would require the company to permit conduct prohibited under federal law. Therefore, the Court ruled that New Mexico employers are not required to accommodate an employee’s use of medical marijuana.

What This Means For Employers

The Tractor Supply decision is consistent with rulings from courts in other states that have similarly ruled that an employer may lawfully terminate an employee who tests positive for marijuana. Although Garcia may appeal this decision, it is difficult to imagine that an appellate court will overturn it as long as marijuana use remains illegal under federal law, and state law does not require a workplace accommodation.

In light of this decision, take time now to review your drug-free workplace and drug testing policies. Make certain that your policies apply to all controlled substances, whether illegal under state or federal law. Clearly state that a positive drug test may result in termination of employment, regardless of whether the employee uses medical marijuana during working hours or appears to be “under the influence” at work. Communicate your drug-free workplace and testing policies to employees and train your supervisors and managers on enforcing the policies in a consistent and uniform manner.

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January 29, 2016

EEOC Proposes To Collect Pay Data From Employers

By Mark Wiletsky

The U.S. Equal Employment Opportunity Commission (EEOC) plans to collect pay data from employers with more than 100 employees in order to reveal potentially discriminatory pay practices. Through a proposed revision to the Employer Information Report (EEO-1), large employers will report the number of employees by race, gender, and ethnicity that are paid within each of 12 pay bands. The revision is expected to apply to the September 30, 2017 EEO-1 reports.

By gathering this new pay data by race, gender, and ethnicity, the EEOC and the Office of Federal Contract Compliance Programs (OFCCP) intends to identify pay disparities across industries and occupational categories. These federal agencies plan to use the pay data “to assess complaints of discrimination, focus agency investigations, and identify existing pay disparities that may warrant further examination.” The agencies also believe the data will assist employers in promoting equal pay in their workplaces.

Employers To Be Covered By Revised EEO-1

Employers with 100 or more employees, including federal contractors, would be required to submit pay data on the revised EEO-1. Federal contractors with 50-99 employees would not be required to report pay data, but still would be required to report sex, race, and ethnicity, as is currently required.

Pay Bands For Proposed EEO-1 Reporting

Under the EEOC’s proposal, employers would use employees' total W-2 earnings for a 12-month period looking back from a pay period between July 1st and September 30th. For each of the EEO-1 job categories, the proposed EEO-1 would have 12 pay bands. Employers would tabulate and report the number of employees whose W-2 earnings for the prior 12 months fell within each pay band.

The proposed pay bands mirror the 12 pay bands used by the Bureau of Labor Statistics in the Occupation Employment Statistics survey:

(1) $19,239 and under;

(2) $19,240 – $24,439;

(3) $24,440 – $30,679;

(4) $30,680 – $38,999;

(5) $39,000 – $49,919;

(6) $49,920 – $62,919;

(7) $62,920 – $80,079;

(8) $80,080 – $101,919;

(9) $101,920 – $128,959;

(10) $128,960 – $163,799;

(11) $163,800 – $207,999; and

(12) $208,000 and over.

The EEOC published a Question & Answer page on its website to help explain how the pay data would be reported.

Comment Period to Follow

The EEOC’s announcement of the pay data collection on the revised EEO-1 coincides with a White House commemoration of the seventh anniversary of the Lilly Ledbetter Fair Pay Act. The proposed changes will be officially published in the Federal Register on February 1, 2016. Interested parties and members of the public may submit comments for the 60-day period ending April 1, 2016.

We expect that a significant number of employers, business organizations, and industry associations will submit comments, opposing this additional reporting requirement. Groups also may challenge the changes in court. We will keep you posted as this proposal goes forward.

In the meantime, if your organization has concerns about its pay practices, now is a good time to review those practices and proactively address any troubling issues.

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January 19, 2016

An Uncomfortable, But Not Hostile, Work Environment

By Brad Cave

Certain workplace behavior may be unusual, uncomfortable or downright weird, but may not be unlawful. Do you want to take the chance of knowing what crosses that line?

Imagine receiving this complaint from an employee: “My supervisor frequently compliments my appearance, clothing and cologne. He touched my back and buttocks, claiming he was showing me where he was experiencing back pain. He instructed me to participate in two body-fat contests requiring me to wear a speedo where he again complimented my appearance and tried to touch my buttocks. He repeatedly asked me to join him for drinks during a company event.”

Do these allegations suggest a hostile work environment? Would your company be liable for sex discrimination?

Real Case Offers Guidance

These facts arose in an actual lawsuit filed by Bryan McElroy, a former district sales manager for American Family Insurance (AFI). McElroy was fired by his supervisor, Tony Grilz, after failing to meet sales goals and engaging in insubordinate behavior. After his termination, McElroy filed a charge with the Equal Employment Opportunity Commission (EEOC) and later filed suit in federal court, alleging, among other things, that he was subjected to a hostile work environment based on the above-recited behavior by Grilz.

Uncomfortable Work Behavior

The federal court acknowledged that “some of Grilz’s conduct could make many people uncomfortable.” But the district judge ruled that the conduct did not rise to the level of being so objectively offensive that it created a hostile or abusive work environment. The district court rejected McElroy’s hostile work environment claim and granted summary judgment to AFI.

On appeal to the Tenth Circuit Court of Appeals (whose decisions apply to employers in Colorado, Wyoming, Utah, Kansas, and New Mexico), McElroy argued that if the conduct could make many people uncomfortable, a jury could find it sufficiently offensive to support his hostile work environment claim. The Tenth Circuit disagreed. It failed to see how behavior that was capable of causing “mere discomfort” would necessarily alter the conditions of employment so as to create a hostile work environment.

The court stated that to succeed on a hostile work environment claim, an employee must establish that the workplace is permeated with discriminatory intimidation, ridicule, and insult, that is sufficiently severe or pervasive to alter the conditions of the victim’s employment and create an abusive working environment. The court reiterated that “even incidents that would objectively give rise to bruised or wounded feelings will not on that account satisfy the severe or pervasive standard” necessary for an actionable claim under Title VII. The court affirmed the grant of summary judgment in favor of AFI and against McElroy on his hostile work environment claim. McElroy v. Am. Family Ins., No. 14-4134 (10th Cir. Oct. 30, 2015).

Handling Questionable Complaints

What would you do if you received a complaint based on conduct such as what McElroy reported? Act on it? Ignore it? Here are some tips for handling complaints that may, or may not, rise to the level of severe or pervasive conduct.

Tip #1: Treat Each Complaint Seriously

It may be tempting to dismiss complaints of workplace harassment that may seem minor or inoffensive to you. Don’t do it. You never know if the complainant is telling you the full story or if other, more serious allegations are waiting to be told. In addition, failing to look into a report of workplace harassment will negate certain defenses if the complainant decides to file a lawsuit.

Tip #2: Conduct an Investigation

All reports of workplace harassment should be investigated. Hopefully, your investigation will show that no additional inappropriate behavior is occurring and that the reported conduct was an isolated, non-severe incident. You may, however, find that the conduct is more widespread. Perhaps other employees reporting to the same supervisor have experienced similar conduct, or the conduct has been escalating to involve more physical contact. You need to dig deeper to get the full picture of what the employee and his/her co-workers may be experiencing.

Tip #3: Take Action To Stop Inappropriate Behavior

Whether the behavior rises to the level of creating a hostile work environment or not, take action to stop it. Talk to the person acting inappropriately and explain that conduct such as touching and making comments about other employees’ looks leads to an uncomfortable work environment and must cease. Follow up with the complainant to make sure that he or she is not experiencing further inappropriate behavior or retaliation. Nip such conduct in the bud so that mere uncomfortable behavior does not escalate to unlawful harassment.

Tip #4: Train Supervisors and Employees Annually

Conduct annual training on sexual harassment and other inappropriate workplace behavior in order to educate your workforce on your harassment policies and complaint-reporting mechanisms. Use training sessions to reinforce your commitment to keeping your company free of discrimination and retaliation. Make sure managers and supervisors are trained on recognizing and responding to complaints of workplace harassment.

Conclusion

Unlawful workplace harassment is tricky to define with any certainty. Conduct that one judge or appellate court finds as causing “mere discomfort” may be deemed sufficiently severe or pervasive so as to create a hostile work environment by another judge or court. Your best practice is to keep inappropriate behavior out of your workplace, follow the tips above and stay out of court in the first place.

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January 4, 2016

Pregnancy-Related Accommodation Bill To Be Introduced in Colorado Legislature

Following the national trend, a bill to be introduced during Colorado’s next legislative session intends to expand protection for pregnancy-related leave. Specifically, the draft bill would require employers to provide reasonable accommodations to applicants and employees for conditions related to pregnancy and childbirth. If passed, the bill would mean that employers must engage in an interactive process to assess potential reasonable accommodations, provide notice of employee rights, and refrain from retaliating against employees and applicants that request or use a pregnancy-related accommodation.

With the 2016 Colorado legislative session set to convene on January 13th, here are the highlights of the draft bill.

Reasonable Accommodation Requirement

Under the draft bill, an employer would commit an unfair employment practice if it refuses to make a reasonable accommodation for a job applicant or an employee for conditions related to pregnancy or childbirth, unless doing so would impose an undue hardship on the employer’s business. Employers would need to engage in a good-faith interactive process with the employee to determine possible, effective reasonable accommodations.

Most employers should be familiar with the interactive process as it should be used when assessing accommodations for qualified individuals with a disability. Possible reasonable accommodations listed in the draft bill include more frequent or longer break periods, temporary transfer to a less strenuous or hazardous position, job restructuring, light duty, time off to recover from childbirth, acquisition or modification of equipment, seating, assistance with manual labor, modified schedules, and break-time and private non-bathroom space for expressing breast milk. Employers would not be required hire new employees, or discharge, transfer, or promote another employee in order to make a reasonable accommodation.

The bill would further prohibit employers from requiring an applicant or employee to accept a reasonable accommodation that the individual chooses not to accept. The bill also would prevent employers from requiring an employee to take leave if there are other reasonable accommodations that may be made. These provisions seem to suggest that the employee has veto power over offered accommodations. This differs significantly from disability law as under the Americans with Disabilities Act (ADA), an employer meets its reasonable accommodation duty if it provides an accommodation that allows the employee to perform the essential functions of his or her job, even if that accommodation is not the one preferred by the employee.

Undue Hardship Analysis

An “undue hardship” is defined in the bill as an action requiring significant difficulty or expense proven by the employer. Factoring into that determination would be:

the nature and cost of the accommodation
the overall financial resources of the employer
the overall size of the employer’s business with respect to the number of employees and the number, type, and location of the available facilities, and
the accommodation’s effect on expenses and resources or its impact on the operations of the employer.

If the employer provides a similar accommodation to other classes of employees, it will be presumed that the accommodation does not impose an undue hardship. Employers would have to rebut that presumption if they fail to offer the same or similar accommodation for pregnancy-related conditions.

Retaliation Prohibited

Employers would be prohibited from taking adverse action against an employee who requests or uses a reasonable accommodation for a pregnancy-related condition. An adverse action is defined in the bill as a retaliatory action, such as the failure to reinstate the employee to her original job or to an equivalent position with equivalent pay and accumulated seniority, retirement, fringe benefits and other applicable service credits.

Notice and Posting Requirement

If this bill were to become law, employers would be required to provide employees with written notice of their rights under this provision. New employees would have to be provided the written notice at the start of their employment. Additionally, employers would have ten days to provide the notice to individual employees who inform their employer of their pregnancy. There is also a provision to notify existing employees within a specified time after the effective date of the new law. Finally, employers would be required to post the written notice in a conspicuous place at their business in an area accessible to employees.

Likelihood of Bill Passage

Remember that at present, this bill is only a draft and after it is introduced in the House, it will be assigned to a committee. There are many opportunities for legislators to amend, add, or delete provisions in the bill throughout the legislative process.

That said, some form of the bill stands a reasonable chance of passage within the Democratically controlled Colorado House. It has less chance of success in the Republican-controlled Senate. We will watch to see if other legislators add their names as co-sponsors, or if an alternative (perhaps less onerous) bill is introduced in the Senate. We will track this bill and keep you informed of any important developments.

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September 23, 2015

HHS Proposes To Ban Discrimination in Health Programs

By Patricia Dean

Under a newly proposed rule from the Department of Health and Human Services (HHS), consumers cannot be discriminated against or denied health services or health coverage because of their race, color, national origin, sex, age, or disability. The proposed rule is called Nondiscrimination in Health Programs and Activities and is intended to provide equal access to health care services to individuals who historically have been vulnerable to discrimination, including discrimination based on gender identity. The new rule would also require language assistance for people with limited proficiency in the English language.

The proposed rule applies to any health program administered by HHS, that receives funding in any part from HHS, such as providers who treat Medicare patients, and to all plans offered through the Marketplaces. Read our full alert about this proposed rule here.

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