What Employers Need to Know about Religious Discrimination after EEOC v. Abercrombie & Fitch

It’s rather fitting that the Supreme Court’s decision in EEOC v. Abercrombie & Fitch Stores turns on the idea of one’s belief; it is, after all, a decision about religious discrimination under Title VII of the Civil Rights Act of 1964. The belief at issue, however, is not the belief of the claimant of religious discrimination, but rather the belief of the employer.

Discrimination Underlined With Red MarkerIn Abercrombie, an applicant for a position with an Abercrombie & Fitch store wore a hijab, a headscarf worn out of devotion to the Muslim faith, throughout her interview with the store’s assistant manager. Although the assistant manager determined that she was qualified for the position, the headscarf would be a violation of the store’s “Look Policy,” which prohibits head coverings of any kind. The assistant manager then sought the advice of the district manager, telling him that she believed the applicant wore the headscarf because of her religion. The district manager then suggested that any headwear, religious or not, would be a violation of the store’s policy and then directed the assistant manager not to hire the applicant. At no time did the applicant give the store employees any actual notice of the reason she wore the hijab, nor did she request any accommodation from the store policy to wear one if she were hired.

The crucial question of the case, then, was whether the potential employer needed actual knowledge of the employee’s religious reasons for the headscarf or if the manager’s belief that the hijab may have been part of a religious practice was enough to implicate Title VII. The Supreme Court agreed with the EEOC that actual knowledge was not required if the potential need for a religious accommodation was a motivating factor in the employer’s hiring decision. Because the employer was aware that there may be a need for an accommodation, it showed disparate treatment under Title VII to the applicant due to her religion. The court focused on the language of Title VII in 42 U. S. C. §2000e–2(m), which states that, “an unlawful employment practice is established when the complaining party demonstrates that race, color, religion, sex, or national origin was a motivating factor for any employment practice.” There is no knowledge requirement in the text, merely a prohibition on discriminatory motivating factors in employment decisions. It was significant for the court that some antidiscrimination laws such as the Americans with Disabilities Act do contain knowledge requirements, while Title VII clearly does not.

The Abercrombie case may be the strongest statement yet from the court on Title VII protections for religious discrimination. The import for employers is tremendous, in that an employer cannot merely claim ignorance of actual knowledge of the applicant or employee’s religion when the employer made an employment decision based on the employer’s belief that the person may need a religious accommodation. Employers should take caution when faced with potential religious accommodation issues, and they should evaluate potential trouble spots where otherwise neutral policies such as the appearance policy at issue in this case might conflict with the religious practices of applicants or employees. Simply put, a belief about another’s belief may be enough to rise to a claim of discrimination.

For more information on employment practices and policies and ways employers can accommodate religious practices, contact the attorneys at McBrayer.

B. JohnsonBrandon K. Johnson is an Associate in the Louisville, KY office of McBrayer, McGinnis, Leslie & Kirkland, PLLC. Mr. Johnson practices primarily in the areas of insurance defense, employment law, and general litigation. He can be reached at bjohnson@mmlk.com or at (502) 327-5400.

This article is intended as a summary of state and federal law and does not constitute legal advice.

Complaining to the Boss? The Second Circuit Says That’s Protected

In 2011, the U.S. Supreme Court held in Kasten v. Saint-Gobain Performance Plastics Corporation that oral complaints are protected by anti-relation provisions of the Fair Labor Standards Act (“FLSA”), but it did not address a vital question: must those complaints be “filed” with a government agency to receive protection against retaliation, or will simple oral complaints to an employer trigger such provisions?[1] The Second Circuit recently moved to fill that gap, ruling in Greathouse v. JHS Security, Inc. that merely “filing” an oral complaint with an employer is enough to trigger anti-retaliation provisions of the FLSA[2].

The ruling in Kasten held that, for FLSA purposes, the language “filed any complaint” pertains to both written and oral complaints. The complaint must, however, be clear and detailed enough to be understood by a reasonable employer as an assertion of FLSA rights. The Supreme Court, however, omitted a key issue in that it did not mention whether an employee will be protected against retaliation if those complaints are made only to the employer, or whether the anti-retaliation provisions of the FLSA kick in only if an adverse employment action takes place after the filing of a complaint with a government agency.

Businessman sitting at desk holding pen with files

The Second Circuit addressed that issue, at least in New York, Connecticut and Vermont, by holding in Greathouse that yes, retaliation for oral complaints made only to the employer are prohibited by the FLSA. The facts are worth mentioning briefly, if only for their bizarre nature. The plaintiff Greathouse worked for a security firm, reporting to the firm’s president. After being the victim of significant improper employment practices, such as late or withheld payments, Greathouse confronted the president to question why he hadn’t been paid in several months. The president replied, “I’ll pay you when I feel like it,” and then immediately pulled a gun on him. At that point, Greathouse took that as a sign that he was no longer employed. The Second Circuit took that action as a sign of retaliation for raising concerns over wage issues and ruled in favor of the employee.

As the court in Greathouse noted, both the EEOC and the Department of Labor have consistently advanced the position struck by the Court in this case, that employee complaints over employment practices are protected from employer retaliation, whether lodged with an employer or a governmental agency. The message this sends to employers is that this interpretation of the FLSA is not likely to go away. Indeed, other circuits have explicitly accepted this rationale as well – the Second Circuit follows the First and the Ninth in doing so.[3] Employers should treat all employee concerns about wage and hour issues and employment practices with a high degree of seriousness, and such complaints in the work place (and any adverse employment actions taken with employees who make them) should be well-documented. Even the vaguest of complaints should be considered, and employers should always take adverse actions for non-retaliatory and truly legitimate reasons. It’s also probably a good idea not to draw guns on them.

The attorneys of McBrayer can help employers navigate through the sometimes murky waters of labor and employment laws, keeping them up to date on the latest developments and always steering clear of obstacles and pitfalls, so if your business needs guidance, don’t hesitate to contact us.

Luke WingfieldLuke A. Wingfield is an associate with McBrayer, McGinnis, Leslie & Kirkland, PLLC. Mr. Wingfield concentrates his practice in employment law, insurance defense, litigation and administrative law. He is located in the firm’s Lexington office and can be reached at lwingfield@mmlk.com or at (859) 231-8780. 

This article is intended as a summary of federal and state law and does not constitute legal advice.


[1] Kasten v. Saint-Gobain Performance Plastics Corp., 131 S. Ct. 1325 (2011)

[2] Greathouse v. JHS Security Inc., No. 12-4521-cv (2nd Cir. April 20, 2015)

[3] Valerio v. Putnam Assocs. Inc., 173 F.3d 35, 41-42 (1st Cir. 1999); Lambert v. Ackerley, 180 F.3d 997, 1004 (9th Cir. 1999

A Title VII Transition?: Protections for Transgender Persons in the Workplace

Three years ago, the EEOC issued an opinion which held, for the first time, that discrimination against transgender persons based on gender identity is impermissible sex discrimination under Title VII of the Civil Rights Act of 1964. See Macy v. Holder (Apr. 20, 2012). Last month, the EEOC revisited discrimination against transgender persons and released a decision that sheds some light on how the practical applications of this finding may affect employers, holding that certain bathroom restrictions for a transgender employee constituted discrimination. See Lusardi v. McHugh (Apr. 1, 2015).

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In Lusardi v. McHugh, [1] a transgender employee of a civilian contractor at a military facility in Alabama was forced to use a single-use restroom at the facility. When that restroom was out of order or being cleaned, she used the women’s restroom, each time receiving confrontation from her supervisor, who suggested that she could not use those facilities until she had proof that she had undergone full gender reassignment surgery. Another supervisor repeatedly referred to her by her former male name and male pronouns in front of other co-workers.

In ruling for the employee in Lusardi v. McHugh, the EEOC made a forceful statement on how it viewed the circumstances at issue, stating:

“This case represents well the peril of conditioning access to facilities on any medical procedure. Nothing in Title VII makes any medical procedure a prerequisite for equal opportunity (for transgender individuals, or anyone else). An agency may not condition access to facilities — or to other terms, conditions, or privileges of employment — on the completion of certain medical steps that the agency itself has unilaterally determined will somehow prove the bona fides of the individuals’ gender identity.”[2]

While the employer in Lusardi v. McHugh was a federal agency – the Army – this case should serve as a warning to private employers as well – the EEOC will pursue cases where it finds evidence of discrimination as to transgender individuals. In fact, it already has done so in two cases, one of which settled, and the other which is currently pending and recently survived a motion to dismiss.[3]

Although transgender persons are not currently considered a protected class for Title VII purposes, Title VII does protect against sex-based discrimination, a line that both the EEOC and courts seem more willing to walk in these cases. The Justice Department has already taken a stance. Recently, the Justice Department recently brought suit against Southeastern Oklahoma State University and the Regional University System of Oklahoma for violations of Title VII of the Civil Rights Act of 1964 by discriminating against a transgender employee on the basis of her sex and retaliating against her when she complained about the discrimination. Explaining the Justice Department’s decision, Attorney General Eric Holder announced that the Department believes Title VII’s prohibition against sex discrimination encompasses and includes protection for claims based on an individual’s gender identity, including transgender status.

Employers should be cognizant of these cases and learn to effectively and compassionately coordinate with their transgender employees, avoiding discriminatory practices and providing training on employee conduct with respect to transgender employees.

For more information and understanding in how to help transgender employees, contact the attorneys at McBrayer, McGinnis, Leslie & Kirkland, PLLC.

Amanda StubblefieldAmanda B. Stubblefield joined McBrayer as an Associate in 2014 as a member of the litigation department. She received her J.D. from the University of Kentucky College of Law in May of 2014 and was elected to the Order of the Coif. Ms. Stubblefield focuses her practice on general litigation, administrative law, and employment law.

This article is intended as a summary of state and federal law and does not constitute legal advice.
[1] Lusardi v. McHugh, EEOC Appeal No. 0120133395 (April 1, 2015)

[2] Ibid. at 9

[3] EEOC v. Lakeland Eye Clinic, P.A. (M.D. Fla. Civ. No. 8:14-cv-2421-T35 AEP filed Sept. 25, 2014); EEOC v. R.G. & G.R Harris Funeral Homes, Inc., (Civ. No. E.D. Mich. 2:14-cv-13710-SFC-DRG)

ADA “Direct Threat” Defense Just Got a Little Easier

The rights and protections afforded to those with disabilities by the Americans with Disabilities Act (“ADA”) are not without limitations. Accommodations for disabled employees must be reasonable, and the employee must still be able to perform essential job functions with an accommodation. Additionally, the employee’s disability cannot pose a risk to her- or himself or others in the course of job functions if that risk cannot be eliminated or reduced by a reasonable accommodation. This is known as the “direct threat” defense – adverse employment or hiring actions taken against an employee or applicant were done so to mitigate a direct threat to the safety of the employee or others.

Direct threat analysis under the ADA begins with the language of the law itself – “The term ‘direct threat’ means a significant risk to the health or safety of others that cannot be eliminated by reasonable accommodation.”[1] This language speaks to provisions that allow employers to impose certain qualification standards as to disabled employees as a defense to a charge of discrimination. EEOC regulations broadened this classification to include risk to oneself as well, and provided guidance that included a four-factor test to employers as to how to conduct direct threat assessment in decision-making:

 “The determination that an individual poses a ‘‘direct threat’’ shall be based on an individualized assessment of the individual’s present ability to safely perform the essential functions of the job. This assessment shall be based on a reasonable medical judgment that relies on the most current medical knowledge and/or on the best available objective evidence. In determining whether an individual would pose a direct threat, the factors to be considered include: (1) The duration of the risk; (2) The nature and severity of the potential harm; (3) The likelihood that the potential harm will occur; and (4) The imminence of the potential harm.” [2]

At issue in a recent case before the Tenth Circuit Court of Appeals, EEOC v. Beverage Distributors Co[3]., is whether this “direct threat” must be proven by the defendant employer by a preponderance Dangerous Accident During Workof the evidence, or whether the employer merely had to have held a reasonable belief about the risk posed. Jury instructions in that case suggested that, to establish a direct-threat defense, the employer would have had to prove that the employee’s disability posed the risk of harm it claimed. The Tenth Circuit ruled that these instructions were reversible error, suggesting that the employer merely had to reasonably believe the disability would pose a significant risk of substantial harm.

The important takeaway in this case is that the key inquiry in direct threat analysis is whether the employer’s belief about the direct threat imposed by an employee’s disability is reasonable, not whether the threat actually exists and can be proven. This should provide a sigh of relief for employers, as it keeps the bar for a direct threat defense to ADA claims low, provided an employer conducted a reasonable assessment of the employee/applicant’s disability before making the decision.

For help with policies conducting assessments of disabilities or review of workplace policies for compliance with federal, state and local antidiscrimination laws, contact the attorneys at McBrayer, McGinnis, Leslie & Kirkland, PLLC.

B. KochBrittany Blackburn Koch is an associate attorney practicing in the Lexington office of McBrayer, McGinnis, Leslie & Kirkland, PLLC. She is a native of Pikeville, Kentucky, and a graduate of Centre College and the University of Kentucky College of Law. Ms. Koch’s practice focuses primarily on family law, employment law, criminal law and civil litigation. She may be reached at bkoch@mmlk.com or at (859) 231-8780, ext. 300.

This article is intended as a summary of  federal and state law and does not constitute legal advice.

[1] 42 U.S.C. §12111 (3)

[2] 29 C.F.R. § 1630.2(r)

[3] EEOC v. Beverage Distributors Co., LLC, No. 14-1012 (10th Cir. 2015)

Vetting Employees via Social Media – Walking the Digital Tightrope

As Comedy Central is discovering with the new host of The Daily Show, Trevor Noah, failure to fully vet an employee’s social media activity can have unexpected consequences. At the same time, an employee’s social media profiles can yield information that may be harmful to employers in the hiring process. There are potential pitfalls to examining an applicant’s social media profiles both too closely and not closely enough, and the lines are difficult to discern.

From the outset, employers should be wary of discovering information about candidates through their social media profiles that might form the basis for employment discrimination in the hiring process. This information can ultimately have legal repercussions with regard to antidiscrimination laws at the local, state and federal levels. For instance, an applicant in Neiman v. Grange Mutual Casualty Co.[1] overcame a potential employer’s motion to dismiss in an age discrimination suit by noting that his college graduation year was visible on his LinkedIn profile. The court in that case agreed that the knowledge of the applicant’s date of college graduation was enough to put the employer on notice of the applicant’s age. The potential for such liability should prompt employers to review just how they use social media in the hiring process.

Even with the potential for liabilitVector Concept Of Human Resources Management.y, however, social media still has benefits for employers in the hiring and vetting process. As noted at the outset, Comedy Central could have vetted the public comments of Trevor Noah via social media such as Twitter to determine how his public demeanor might affect his tenure as the host of The Daily Show. Public social media contributions by applicants can give employers a sense of an applicant’s maturity, demeanor and overall personality to determine whether that candidate is a good fit with company culture. This information can also help a company determine whether a candidate will serve as a competent public representative in the digital realm.

With such significant risks and equally significant rewards, how can an employer vet an applicant through social media in a safe and effective manner?

First, an employer should create a formal policy concerning social media vetting and abide by it. The policy should cover what sites will be investigated in the hiring process, as well as the types of information that will be viewed and documented. Not all social media sites are equal, and employers should determine what types of social media best provide the targeted look at the applicant the employer needs, eschewing others. The policy should also require that all applicants are informed that their social media accounts will be vetted and to what extent.

Second, an employer should impose a firewall between the person conducting the social media search and the hiring decision-maker so that only non-discriminatory vetting information enters the hiring decision process. If this is not practical, an employer could hire a third party to conduct a search (this, however, triggers provisions of the Fair Credit Reporting Act and certain obligations of disclosure on the part of the employer).

Finally, counsel should review social media vetting policies in a regular fashion for compliance with EEOC regulations and evolving legal precedent. Social media is still expanding boundaries and blurring lines between work and life, and such rapid technological and regulatory evolution demands continuous and sophisticated monitoring.

The attorneys of McBrayer, McGinnis, Leslie & Kirkland, PLLC, can help you craft well-drafted polices for social media investigations in applicant vetting, providing you with both a powerful decision-making tool as well as peace of mind in using it.

Brittany Blackburn KochB. Koch is an associate attorney practicing in the Lexington office of McBrayer, McGinnis, Leslie & Kirkland, PLLC. She is a native of Pikeville, Kentucky, and a graduate of Centre College and the University of Kentucky College of Law. Ms. Koch’s practice focuses primarily on family law, employment law, criminal law and civil litigation. She may be reached at bkoch@mmlk.com or at (859) 231-8780, ext. 300.

This article is intended as a summary of  federal and state law and does not constitute legal advice.

[1] Neiman v. Grange Mutual Casualty Co., No. 11-3404 (C.D. Ill. April 26, 2012)

EEOC Consent Decrees are its Most Powerful Enforcement Mechanisms

The vast majority of settlements between an employer and the Equal Employment Opportunity Commission (“EEOC”) take the form of a court-approved consent decree. This document is a public record designed to highlight and account for certain wrongs in a way that sidesteps an admission of guilt in favor of the implementation of remedial measures to prevent further unlawful practices. A consent decree includes certain action and reporting mandates that employers must follow, providing the EEOC with the most powerful enforcement tool in its arsenal.

Consent decrees function as a heightened form of scrutiny of an employer’s actions fSerious judge about to bang gavel on sounding block in the courtor a set duration of time. The value of the consent decree to the EEOC is that, rather than re-litigate a claim against an employer, the EEOC may simply move for contempt of court for failure to comply with an injunctive provision of a decree, as the decree is both a contract and a court order. This effectively keeps the company on the road to compliance with a minimum of effort from the EEOC. The consent decree may contain provisions for dispute resolution or mediation in the event of noncompliance.

Where employers are concerned, however, a consent decree is the bad bet when compared with a standard settlement. A consent decree gives the EEOC far more control in enforcement as against a company than other settlement agreements, and district courts have broad powers to enforce these decrees due to the “continuing jurisdiction” language present. Continuing jurisdiction provisions allow for continuous supervision of the settlement by the district court for the duration of the decree. Courts have generally upheld this expansive power, giving significant deference to the agency in question to define the terms of the agreement. As the Second Circuit Court of Appeals held in SEC v. Citigroup, the role of court in reviewing a consent decree is to “assess (1) the basic legality of the decree; (2) whether the terms of the decree, including its enforcement mechanism, are clear; (3) whether the consent decree reflects a resolution of the actual claims in the complaint; and (4) whether the consent decree is tainted by improper collusion or corruption of some kind.”[1] This deference gives the EEOC significant leeway in setting the terms of the consent decree, with the continuing jurisdiction of the court providing the muscle in strictly enforcing it.

Employers should seek to mitigate the effects of this particularly strong enforcement mechanism at the negotiation stage, opting for a standard settlement without injunctive relief or continuing jurisdiction whenever possible. Once continuing jurisdiction of the decree is locked in, the EEOC has gained a powerful tool, with a far stronger, more efficient and vastly quicker means for enforcing compliance. An employer must then jump through EEOC hoops on command for the duration of the consent decree, a position no employer wants to find itself in.

If you are negotiating an agreement with the EEOC or would like more information about consent decrees and their effect on your business, contact the attorneys at McBrayer.

B. JohnsonBrandon K. Johnson is an Associate in the Louisville, KY office of McBrayer, McGinnis, Leslie & Kirkland, PLLC. Mr. Johnson practices primarily in the areas of insurance defense, employment law, and general litigation. He can be reached at bjohnson@mmlk.com or at (502) 327-5400.

This article is intended as a summary of state and federal law and does not constitute legal advice.

[1] U.S.S.E.C. v. Citigroup Global Markets, Inc., 752 F.3d 285, 294-95 (2d Cir. 2014)

The Law of Mandatory Flu Shot Requirements

The issue of whether United States citizens could be compelled to submit to vaccinations has been the subject of litigation since small pox was an epidemic threatening the health and well-being of the country in the early 1900s. In Jacobson v. Massachusetts, citizens challenged a Massachusetts state law requiring all persons over the age of 21 to be vaccinated against small pox. 197 U.S. 11 (1905). They argued that “a compulsory vaccination law is unreasonable, arbitrary and oppressive, and, therefore, hostile to the inherent right of every freeman to care for his own body and health in such way as to him seems best; and that the execution of such a law against one who objects to vaccination, no matter for what reason, is nothing short of an assault upon his person.” Id. at 26. The United States Supreme Court disagreed, finding “a real and substantial relation to the protection of the public health and safety” and noting that “the police power of a State must be held to embrace, at least, such reasonable regulations established directly by legislative enactment as will protect the public health and the public safety.” Id. at 31, 25. The Court did note, however, that this power should not be exercised in such a manner as to be arbitrary or beyond what is necessary for the safety of the public. Id. at 26.

Doctor Making Insulin Or Flu VaccinationSubsequently, the Supreme Court upheld similar mandatory vaccination requirements enforced as a prerequisite for school enrollment. Zucht v. King, 260 U.S. 174, 177 (1922). Pursuant to these powers, a few states have also enacted requirements for influenza vaccinations for health care workers. See CENTERS FOR DISEASE CONTROL AND PREVENTION, STATE IMMUNIZATION LAWS FOR HEALTHCARE WORKERS AND PATIENTS (current as of December 2013), http://www2a.cdc.gov/nip/StateVaccApp/ statevaccsApp/default.asp. See generally Abigale L. Ottenberg, Joel T. Wu, and Gregory A. Poland, et al., Vaccinating Health Care Workers Against Influenza: The Ethical and Legal Rationale for a Mandate, 101 Am. J. P. Health 212-216 (2011).

Mandatory flu vaccination requirements are not exclusive to state and local government directives. Two somewhat recent cases addressed whether private entities could impose upon health care workers the requirement that they receive the flu vaccine. First, in Mason Hospital v. Washington State Nurses Association, the Ninth Circuit upheld an arbitrator’s decision to strike down a hospital directive that all nurses must receive the flu vaccination. 511 F.3d 908 (9th Cir. 2007). The reason for this decision was that the requirement was not implemented in accordance with the nurses’ collective bargaining agreement. Id. Second, in Chenzira v. Cincinnati Children’s Hospital Medical Center, a receptionist objected to a hospital’s mandatory flu vaccination policy on the grounds that it violated her vegan dietary restrictions, which were as closely held to her as though they were religious. S.D. Ohio No. 1:11-CV-00917 (Dec. 27, 2012). The court denied a motion to dismiss, finding that the plaintiff had a plausible claim for religious discrimination. Id. Finally, though not a court case, the Equal Employment Opportunity Commission has stated that employees with certain disabilities or religious beliefs should be exempt from mandatory flu vaccination requirements imposed on their employees. See www.eeoc.gov/facts/pandemic_flu.html -48k-2009-10-21.

Therefore, it appears that there is no general constitutional right that would prohibit someone from being compelled to be vaccinated for influenza. However, the requirement must still be implemented and enforced in accordance with other rights of employees or vendors. For example, if the requirement ran afoul of a contract with the hospital or an individual’s disability or religious belief, courts would be unlikely to enforce it. Finally, some states do provide workers with the ability to opt out by law. However, it does not appear that Kentucky is counted among that number. CENTERS FOR DISEASE CONTROL AND PREVENTION, STATE IMMUNIZATION LAWS FOR HEALTHCARE WORKERS AND PATIENTS.

D. TrimbleAndrew H. Trimble is an associate in the Lexington, Kentucky office. Mr. Trimble focuses practice on general litigation, employment law and criminal defense. Mr. Trimble can be reached at (859) 231-8780, ext. 136 or atrimble@mmlk.com.