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An employer may bar all religious affinity groups from the workplace.
Title VII prohibits employment discrimination on the basis of religion and defines religion to include all aspects of religious observance, practice and belief. Pursuant to Title VII, employers may not treat employees more or less favorably because of their religion and may not force employees to participate in religious activities or refrain from doing so as a condition of employment. Although an employer generally may not bar nonharassing religious speech in the workplace, there are limits employers may place on religious activity there, as demonstrated by a recent case involving General Motors.
The company, as part of a diversity initiative, allowed its employees to form so-called "affinity groups," which were company-sponsored meetings of GM employees with common interests, such as ethnic background and sexual orientation. The program specifically excluded all religious affinity groups, and several employees who wanted to start a Christian Employee Network filed suit. The court held that it was legal for the company to exclude all religious groups, and the fact that GM did "recognize affinity groups based on race, color, sex and national origin" did not matter.
To protect against religious bias in the workplace, an employer should ensure that it has an antidiscrimination policy that covers religion. Furthermore, whenever an employee complains of a coworker's religious expression, the employer should take immediate action. If it is clear that the religious expression is objectively abusive, then the employer should intervene; otherwise, the employer should inquire as to whether the complaining employee feels harassed by the coworker's expression. It is imperative that managers and supervisors be warned not to proselytize, as such behavior by a manager or supervisor directed toward a subordinate might be deemed coercive.
-- Marty Marta, Labor and Employment attorney, Seyfarth Shaw LLP, with assistance from Melanie H. Berkowitz, Esq., Seyfarth Shaw LLP.
[For more information, see Moranski vs. General Motors Corp., 433 F.3d 357 (7th Cir. 2005)].
The ADA's reasonable-accommodation provision may override an employer's ‘best qualified' policy when a worker with a disability is qualified for the open job.
Wal-Mart violated the reasonable-accommodation provision of the Americans with Disabilities Act (ADA) by refusing to grant a request from a worker with a disability for a transfer to an open, equivalent position for which she was qualified, because she was not the "best-qualified applicant."
The employee worked as a dry goods order filler at a Wal-Mart distribution center until she permanently injured her right arm and hand, which prevented her from doing the job. Thereafter, seeking a reasonable accommodation for her injury, she requested a transfer to an open router position in the warehouse, a job for which she was qualified and that was comparable in pay to her previous job. Rather than transferring the employee to the open router position, Wal-Mart required her to compete with other qualified applicants for the job. When an applicant who was not disabled obtained the position, Wal-Mart offered the employee a different position with a substantial pay cut.
The employee sued Wal-Mart for violating the ADA by not transferring her to the router job as a reasonable accommodation. In upholding the employee's ADA claim, the court rejected Wal-Mart's argument that its policy of placing the best-qualified person in a job was a legitimate, nondiscriminatory rule that did not violate the ADA. Rather, the district court held that the ADA's reasonable-accommodation provision overrides a best-qualified policy when the worker with a disability is qualified for the open job. The court concluded that "forcing a disabled worker to compete with other applicants to satisfy the employer's ‘best qualified' policy clearly violates the ADA," and that to rule otherwise would "eviscerate the ADA's reasonable-accommodation obligation."
Because there is a disagreement in the courts about whether the ADA's reasonable-accommodation provision overrides an employer's best-qualified policy, employers should not apply a best-qualified policy to deny a worker with a disability a job transfer without consulting an employment attorney first.
-- Marty Marta, Labor and Employment attorney, Seyfarth Shaw LLP, with assistance from Melanie H. Berkowitz, Esq., Seyfarth Shaw LLP.
[For More Information, see Huber vs. Wal-Mart Stores Inc., No. 04-2145 (W.D. Ark., Dec. 7, 2005)].
An employer's failure to post fair employment practices notices may extend an employee's filing deadline.
A sales representative could bring a Title VII and an Age Discrimination in Employment (ADEA) claim against her employer, even though she failed to file her charge with the Equal Employment Opportunity Commission (EEOC) within the 300-day limit, because her employer failed to post any information regarding her statutory rights under Title VII or the ADEA.
The plaintiff was terminated on March 22, 1999. On October 24, 2000, she filed a charge of age and sex discrimination against her former employer with the EEOC. Thereafter, the EEOC issued the plaintiff a Dismissal and Notice of Rights, notifying her that her charge was not filed by the deadline. In response, the plaintiff filed a complaint against her former employer pursuant to Title VII and the ADEA. The district court dismissed this complaint because of the plaintiff's failure to exhaust her administrative remedies. On appeal, the plaintiff claimed that she was entitled to an extension of the filing deadline, because four of her loved ones passed away during the 300-day filing period and because her employer failed to post any information regarding her statutory rights under Title VII and the ADEA.
In its opinion, the Third Circuit first held that while the plaintiff's loss of her loved ones was tragic, those events did not justify tolling the 300-day limitations period. However, the court then held that because the plaintiff also argued that she did not know about her legal rights under the ADEA and Title VII until informed of them by a friend, she had to be given the opportunity to show that her employer's alleged failure to post the required notices excused her from filing on time, i.e., that she had "excusable ignorance" of her rights.
This case stresses the need for employers to post fair employment practices notices so that employees are aware of their statutory rights and filing deadlines. Notices are available at www.eeoc.gov and www.dol.gov.
-- Marty Marta, Labor and Employment attorney, Seyfarth Shaw LLP, with assistance from Melanie H. Berkowitz, Esq., Seyfarth Shaw LLP.
[For More Information, see Hammer vs. Cardio Med. Products, 131 Fed. Appx. 829 (3rd Cir. 2005)].
An employer could be liable for knowingly allowing an employee to view child pornography at work.
An employer violated its duty to report an employee to the proper authorities after it became aware that the employee was visiting pornographic Web sites at work.
After several employees reported seeing the man accessing pornographic sites, the network administrator told him to stop the behavior but did not inform any supervisors. Although the defendant had a policy stating that anyone who became aware of the misuse of the Internet was to report it to personnel, the only reprimand the employee received was an order to stop his inappropriate computer usage. Although he initially agreed to stop, he soon resumed viewing pornography at work, and again, the company was aware of it. In 2001, the employee transmitted three nude photos taken of his 10-year-old stepdaughter, "Jill," over the Internet from his workplace computer to a child porn site. The employee later acknowledged that he stored child pornography in his workplace computer and had downloaded more than 1,000 pornographic images while working for the defendant.
After the employee's arrest, the plaintiff, Jill's mother, filed a complaint against the company alleging that the defendant breached its duty to report the employee to the proper authorities. In addressing the plaintiff's claim, the court first found that the defendant had the ability to monitor the employee's Internet access on his work computer. The court further held that the employee's privacy interest did not trump the defendant's right to monitor such activity, especially in light of the defendant's Internet policy. The court concluded that because the defendant had knowledge that the employee was using his work computer to access pornography, the defendant was under a duty to both terminate the employee and to report his activities to law enforcement.
This case demonstrates that it is not enough to have a strong Internet usage policy; employees must be trained to follow it and report any suspicious behavior to their superiors.
-- Marty Marta, Labor and Employment attorney, Seyfarth Shaw LLP, with assistance from Melanie H. Berkowitz, Esq., Seyfarth Shaw LLP.
[For More Information, see Doe vs. XYZ Corp., 887 A.2d 1156 (Sup. Ct. NJ, January 3, 2006)].
An employer's English-only policy may violate federal antidiscrimination laws.
According to the 10th Circuit, Oklahoma City's requirement that its public employees speak only English while conducting city business violated the employees' rights under Title VII and other federal antidiscrimination laws.
Although the policy purportedly only applied to business communications, several employees alleged that they were told by supervisors that they must speak English anytime a non-Spanish speaker was present, even during their breaks and in private conversations. There were also allegations that the policy subjected bilingual employees to racial and ethnic taunting. After filing an internal complaint about the policy, a group of bilingual city employees brought suit. In response, the city argued that the policy was necessary to ensure that all employees understood information being relayed over city radios, to prevent non-Spanish speakers from feeling uncomfortable in the workplace and for various safety reasons.
After noting that there was no evidence of prior communication problems or safety issues linked to the use of Spanish in the workplace, the court concluded that the plaintiffs had shown that the English-only policy had a disparate impact on them, because it created a hostile work environment based on race and ethnicity. Therefore, given the lack of previous problems linked to the speaking of Spanish in the workplace, along with the fact that the policy was allegedly enforced beyond its terms, the court rejected the city's claim of a business necessity for the policy and sent the plaintiffs' claims to a jury.
This case demonstrates that an employer's policy preventing bilingual employees from using their preferred language may be deemed racial and ethnic discrimination if there is no reasonable justification for that policy.
-- Marty Marta, Labor and Employment attorney, Seyfarth Shaw LLP, with assistance from Melanie H. Berkowitz, Esq., Seyfarth Shaw LLP.
[For More Information, see Maldonado vs. City of Altus, --F.3d --, 2006 U.S. App. LEXIS 592 (10th Cir., January 11, 2006)].
