June 15, 2015

Supreme Court Rules for EEOC in Abercrombie & Fitch Dress Code Case

Posted in Application Process, Discrimination, Dress Code, Grooming, Reasonable Accommodation, Relgious Discrimination, Religion, Title VII of the Civil Rights Act of 1964 tagged , , , , , , , , at 10:36 am by Tom Jacobson

Employers must now use more caution when their dress codes clash with their employees’ religious beliefs. That is the result of the United States Supreme Court’s June 1, 2015 ruling in EEOC v. Abercrombie & Fitch Stores, Inc.

The case arose after Samantha Elauf applied for a job with Abercrombie. Elauf is a practicing Muslim who, consistent with her understanding of her religion’s requirements, wears a headscarf known as a hijab. Abercrombie had a “look policy” that prohibited employees from wearing “caps” as being too informal for work attire. The policy did not define “caps.”

After an interview, the assistant store manager rated Elauf as qualified to be hired, but she was concerned that the headscarf would violate the company’s “look” policy. Elauf, however, never requested an exception to that policy so that she could wear the hijab. The assistant manager asked her district manager for guidance, and she told the district manager that she believed Elauf wore the headscarf because or her faith. The district manager said the headscarf would violate the look policy, and he directed the assistant store manager to not hire Elauf.

The EEOC then sued Abercrombie on behalf of Elauf on the basis that the company’s refusal to hire Elauf violated the religious discrimination prohibitions of Title VII. The trial court ruled in favor of the EEOC (See Abercrombie & Fitch Dressed Down over Hijab in Religious Discrimination Case). The Tenth Circuit Court of Appeals reversed on the basis that because Elauf never provided Abercrombie with actual notice of her need for accommodation of her religious belief, Abercrombie could not be liable under Title VII.

On further appeal, the Supreme Court agreed with the EEOC and trial court. Specifically, the high court ruled that to prove a claim of religious discrimination in the workplace, an applicant need only show only that his/her need for an accommodation was a motivating factor in the employer’s decision, not that the employer knew of the need. An employer may not make an applicant’s religious practice, confirmed or otherwise, a factor in employment decisions.

Thus, even if an employee or applicant has not requested a religious accommodation (for example, a dress code or grooming policy exception, schedule modification, etc.), an employer must not use that person’s religious faith as a factor in making decisions about the employee or applicant. In addition, employers should keep their dress and grooming codes somewhat flexible to allow for the accommodation of affected religious beliefs.

For more information, see the EEOC’s publications, Questions and Answers: Religious Discrimination in the Workplace and Fact Sheet on Religious Garb and Grooming in the Workplace: Rights and Responsibilities, or contact me at taj@alexandriamnlaw.com.

The comments posted in this blog are for general informational purposes only. They are not to be considered as legal advice, and they do not establish an attorney-client relationship. For legal advice regarding your specific situation, please consult your attorney.

Copyright 2015 Swenson Lervick Syverson Trosvig Jacobson Schultz Cass, PA

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August 1, 2014

Another day, another Executive Order impacting federal contractors

Posted in Age, Alternative Dispute Resolution, Americans with Disabilities Act, Arbitration, Arbitration, Color, Creed, Disability, Discrimination, Fair Labor Standards Act, Family and Medical Leave Act (FMLA), Gender / Sex, Harassment, LGBT, Minnesota Human Rights Act, National Labor Relations Act, National Origin, Pregnancy, Race, Religion, Sexual Harassment tagged , , , at 11:23 am by Tom Jacobson

White HouseIn another attempt to flex his regulatory muscle, President Barack Obama on July 31, 2014 issued yet another Executive Order aimed at federal contractors. This one, the Fair Pay and Safe Workplaces Executive Order, requires potential federal contractors to disclose past employment and labor law violations before they can secure federal contracts.

Earlier this month, President Obama issued an Executive Order to protect the rights of LGBT employees of federal contractors (see President Issues Order to Protect LGBT Workers).

Yesterday’s Order requires most potential federal contractors to disclose violations in the past three years of thirteen specified federal labor and employment laws. These laws include the National Labor Relations Act, the Fair Labor Standards Act, the Family and Medical Leave Act, the Americans with Disabilities Act, the Occupational Safety and Health Act, the Age Discrimination in Employment Act and Title VII of the Civil Rights Act of 1964, and any state counterparts of these statutes.

The Order also directs employers with contracts of $1 million or more to “agree that the decision to arbitrate claims arising under title VII of the Civil Rights Act of 1964 or any tort related to or arising out of sexual assault or harassment may only be made with the voluntary consent of employees or independent contractors after such disputes arise.” In other words, the Order will severely limit these federal contractors’ rights to enter into pre-dispute arbitration agreements.

The Order appears to be directed at preventing repeat offenders, but it will have a major impact on employers who will need to overcome this new regulatory hurdle before securing federal contracts.

For more information about the President’s Order, see Obama Signs Executive Order Protecting Federal Contractors’ Employees (CBS News, 7/31/14), President Issues Order Requiring Contractors to Disclose Labor Law Violations When Competing for Federal Contracts (SHRM, 7/31/14), the President’s FACT SHEET: Fair Pay and Safe Workplaces Executive Order, or contact me at taj@alexandriamnlaw.com.

The comments posted in this blog are for general informational purposes only. They are not to be considered as legal advice, and they do not establish an attorney-client relationship. For legal advice regarding your specific situation, please consult your attorney.

Copyright 2014 Swenson Lervick Syverson Trosvig Jacobson Schultz, PA

April 30, 2014

Registration Open for 11th Annual Employment Law Update

Posted in Americans with Disabilities Act, Application Process, Arrest records, Background Checking, Conviction Records, Credit Checks, Criminal History, Discrimination, Fair Credit Reporting Act, Interactive Process, Minnesota Human Rights Act, Reasonable Accommodation, Religion, Sexual Orientation, Stereotyping, Training tagged , , , , , , , at 11:38 am by Tom Jacobson

Registration is now open for the Eleventh Annual West Central Minnesota Employment Law Update to be held on Thursday, June 12, 2014 at Alexandria Technical and Community College. This year’s event will cover:

  • Hot off the Press — Employment Law News You Can Use: presented by yours truly
  • Reasonable Accommodation and Fitness for Duty: A Practical Guidance on Real Work Problems: presented by attorney Penelope J. Phillips
  • Emerging Discrimination Issues in Employment Law: presented by attorney Mike Moberg
  • Ban the Box and Criminal Background Checks: Putting it All Together So That You Get it Right: presented by attorney Penelope J. Phillips
  • Bonus HR Session: Recruit, Motivate and Retain Your Workforce: presented by humorist and corporate trainer, Ted Schick

The event has been approved for 6.0 HRCI credits. Go to 2014 Employment Law Update Agenda for complete details and to 2014 Employment Law Update Registration to register. I look forward to seeing you on June 12!

For more information about this article, please contact me at alexandriamnlaw.com or  taj@alexandriamnlaw.com.

The comments posted in this blog are for general informational purposes only. They are not to be considered as legal advice, and they do not establish an attorney-client relationship. For legal advice regarding your specific situation, please consult your attorney.

Copyright 2014 Swenson Lervick Syverson Trosvig Jacobson Schultz, PA

August 28, 2013

Civil rights in Minnesota: setting the national agenda?

Posted in Age, Color, Commission Membership, Creed, Disability, Discrimination, Gender / Sex, Marital Status, Minnesota Human Rights Act, National Origin, Public Assistance, Race, Religion, Sexual Orientation tagged , , , , at 1:24 pm by Tom Jacobson

“judged … by the content of their character.” Dr. Martin Luther King, Jr.

It’s a cornerstone of our democracy that laws must change when they do not fit the needs of the majority. Today, the 50th anniversary of the March on Washington for Jobs and Freedom and Dr. Martin Luther King, Jr.’s iconic I Have a Dream speech, is the perfect opportunity to reflect on how there may be no better example of that principle than the ongoing struggle for civil rights for all Americans.

When it comes to civil rights, Minnesotans have historically been trend setters, not followers (see 150 Years of Civil Rights in Minnesota, Minnesota Department of Human Rights). For example, Minnesotans bravely fought and died in the 1863 Battle of Gettysburg, and efforts to protect the rights of  Jews and Native Americans date back to at least the 1930’s. Twenty years before Dr. King’s speech, Minnesota Governor Edward Thye created a commission to study discrimination and economic inequality. In 1946 Minneapolis Mayor Hubert H. Humphrey created the Mayor’s Commission on Human Rights, and two years later Minneapolis enacted the country’s first municipal fair employment law. The Minnesota State Act for Fair Employment Practices (which was the predecessor to the Minnesota Human Rights Act) pre-dated the federal Civil Rights Act of 1964 by nine years. When that state law was passed, the Minnesota Legislature declared:

[T]he public policy of this state is to foster the employment of all individuals in this state in accordance with their fullest capacities, regardless of their race, color, creed, religion, or national origin, and to safeguard their rights to obtain and hold employment without discrimination. Such discrimination threatens the rights and privileges of the inhabitants of this state and menaces the institutions and foundations of democracy.

Since its initial passage, the MHRA has of course been amended several times to add sex, marital status, status with regard to public assistance, membership or activity in a local commission, disability, sexual orientation, and age to its list of protected classifications. Some of those characteristics are now also protected by federal law,

In June I had the privilege of leading off a morning of presentations at the tenth annual West Central Minnesota Employment Law Update. To put things into perspective, I noted how the law is always playing “catch up.” That is, laws are passed in response to societal change. I suggested that if you want a glimpse into what our laws might look like in the future, pay attention to societal trends now. Let me take that a step further; to envision our nation’s future civil rights landscape, take a look at Minnesota today. But don’t look through rose-colored glasses, for much work still needs to be done to eliminate the vestiges of discrimination that continue to threaten the rights and privileges of the inhabitants of this state and nation and menace the institutions and foundations of democracy.

For more information about this article, please contact me at alexandriamnlaw.com or  taj@alexandriamnlaw.com.

The comments posted in this blog are for general informational purposes only. They are not to be considered as legal advice, and they do not establish an attorney-client relationship. For legal advice regarding your specific situation, please consult your attorney.

Copyright 2013 Swenson Lervick Syverson Trosvig Jacobson Schultz, PA

November 9, 2012

January 16, 2013 Employment Law Update Announced

Posted in Acknowledgment, Age, Arrest records, At-will Employment, Background Checking, Color, Conviction Records, Criminal History, Disability, Disclaimers, Discrimination, Employee Handbooks, Facebook, Fair Labor Standards Act, Family and Medical Leave Act, Gender / Sex, Harassment, Hiring and Recruiting, Interactive Process, Leaves of Absence, National Labor Relations Act, National Origin, Posting Requirements, Posting Requrements, Protected Concerted Activity, Race, Reasonable Accommodation, Religion, Retaliation, Sexual Harassment, Sick Leave, Social Media, Social Media in the Workplace, Workplace Posters tagged , , , , at 10:28 am by Tom Jacobson

Need continuing education credits?  Want to keep up to date on the latest developments in employment law?  If so, here’s an opportunity for you.

I’ll be moderating Lorman’s Employment Law Update in Fargo, North Dakota on January 16, 2013. The day-long event has been approved for 6.5 hours of HRCI and CLE credit, 1.0 hour of HRPD credit, and 8.0 hours of CPE credit.

In interested, please contact me at taj@alexandriamnlaw.com, or click here for more information or to register.

I hope to see you in Fargo on January 13!

P.S. Don’t forget to ask me about a discount on the registration fee!

August 5, 2012

With Legitimate Business Reasons for Dismissal, Plaintiffs Can’t Always Get What They Want

Posted in At-will Employment, Color, Disability, Discrimination, Family and Medical Leave Act (FMLA), Gender / Sex, Legitimate business reason, Marital Status, National Origin, Pretext, Prima Facie Case, Race, Reduction in Force (RIF), Religion, Reprisal, Retaliation, Sexual Orientation, Termination for Cause, Wrongful Termination tagged , , , , , , , , , , , , , at 8:20 pm by Tom Jacobson

I’ve often advocated that regardless of whether an employment relationship is contractual (where the reasons and/or process for dismissal may be spelled out in an agreement) or at-will (where the employment can be ended with or without notice and with or without legal cause), the best practice is to have a legitimate business reason for discharging an employee. Three recent court decisions validate my point.

Let me set the stage by noting that in discrimination cases, the employee wants to prove that the employer’s actions were based on some unlawful discriminatory reason, such as age, race or gender.  The employer, of course, wants to prove that its decisions were based on entirely legitimate reasons. To balance these competing interests, the courts recognize a process that begins with the employee being required to present a legally-specified bare minimum of evidence suggesting that discrimination occurred. This is called the employee’s prima facie case. If the employee can do that, the burden shifts to the employer to present evidence that its actions were based on legitimate (non-discriminatory) business reasons. Once that’s done, the burden shifts back to the employee to present evidence that the employer’s stated reason is a pretext, which is basically a cover up for the true discriminatory motive. In legalese, this is referred to as the McDonnell-Douglas burden-shifting framework (named after the  United States Supreme Court’s 1973 decision in the case of McDonnell-Douglas v. Green).

The effectiveness of being able to establish a legitimate business reason played out recently in three separate cases. First, in Prody v. City of Anoka a former employee established a prima facie case of age discrimination under the federal Age Discrimination in Employment Act (ADEA) and the Minnesota Human Rights Act (MHRA). The employer then presented evidence that he was dismissed as a part of a reduction in force (RIF). Because the plaintiff could not establish pretext, the case was dismissed.

Next, in Bone v. G4 Youth Services, LLC the employee alleged age, race and Family and Medical Leave Act (FMLA) discrimination. As in the Prody case, the plaintiff was unable to show that the employer’s stated reasons for the discharge (failing to follow a directive, poor communication, losing the trust of employees, and refusing in general to accommodate employees’ requests) were a pretext for discrimination.

Finally, in Hilt v. St. Jude Medical S.C., Inc. the plaintiff claimed the employer fired her in violation of Minnesota’s Whistleblower Act. The employer presented evidence that the termination resulted from a RIF, and because the plaintiff could not establish that the RIF was a pretext, the court dismissed the case.

So, as these three cases illustrate, if you are an employee who feels you’ve been discriminated against, but your employer can demonstrate a legitimate business reason for its actions, You Can’t Always Get What You Want (thank you, Rolling Stones!).

What you need to know:  Regardless of the type of employment relationship, it is always an employer’s best practice to be able to rely on evidence to show that employment decisions are based on legitimate non-discriminatory reasons.

For more information about this article, please contact me at taj@alexandriamnlaw.com.

The comments posted in this blog are for general informational purposes only. They are not to be considered as legal advice, and they do not establish an attorney-client relationship. For legal advice regarding your specific situation, please consult your attorney.

Copyright 2012 Swenson Lervick Syverson Trosvig Jacobson Schultz, PA

January 12, 2012

Federal court reaffirms importance of harassment policies

Posted in Color, Disability, Discrimination, Employee Handbooks, Gender / Sex, Genetic Information, Harassment, Harassment, Marital Status, National Origin, Race, Religion, Sexual Harassment, Sexual Harassment, Sexual Orientation tagged , , , , , , , , , at 11:07 am by Tom Jacobson

I am often asked if employers must have a written policy prohibiting sexual and other forms of unlawful harassment. The short answer is no, for there is no statute, regulation or court decision mandating such policies. However, and it is a big however, implementing such policies is clearly the best practice. And, as reaffirmed by the United States Eighth Circuit Court of Appeals on January 11, 2012, having a written policy can be the key to successfully defending harassment charges.

The case is Crawford v. BNSF Railway Co. In this case, BNSF had a “zero tolerance” policy on workplace harassment. Among other things, the policy defined the prohibited conduct, instructed employees to report complaints through one of five channels (one of which was an anonymous employee hotline), explained that  allegations would be investigated “promptly, impartially, and confidentially,” included guidelines explaining the ranges of discipline BNSF might apply to offenders, and contained a provision prohibiting retaliation for reporting discrimination. BNSF also trained employees on how to report harassment.

In this case, five employees alleged that they were victims of unlawful harassment by their supervisor. Specifically, they claimed that their supervisor engaged in a long litany of inappropriate behaviors ranging from fondling and sexual comments to requests for sexual favors, mimicked sex acts, and racial slurs.

Eight months after the alleged harassment began, the employees filed discrimination charges with the Nebraska Equal Opportunity Commission (NEOC) and the Equal Employment Opportunity Commission (EEOC).  One of the employees then reported the harassment directly to BNSF. BNSF conducted an investigation, which included interviewing four of the plaintiffs. Within two days, BNSF placed the supervisor on administrative leave. After completing its investigation less than two weeks later, BNSF informed the supervisor that he was being terminated, and the supervisor then chose to resign.

The general rule in such cases is that an employer is liable for the unlawful harassment committed by its supervisors unless it can show that: (a) it exercised reasonable care to prevent and correct promptly any sexually harassing behavior; and (b) the employee unreasonably failed to take advantage of any preventive or corrective opportunities provided by the employer or to avoid harm.

Noting the existence of BNSF’s zero tolerance policy and its swift action after receiving the employees’ complaint, the court concluded that BNSF had exercised reasonable care to prevent and correct promptly any sexually harassing behavior. Then, noting that the employees had not availed themselves of BNSF’s complaint procedure, the court also ruled that they had  unreasonably failed to take advantage of any preventive or corrective opportunities provided by the employer. Accordingly, the court held that it was appropriate to dismiss the employees’ claims. Importantly, the court stressed that “‘distribution of a valid antiharassment policy provides compelling proof’ that an employer exercised reasonable care to prevent and correct promptly harassing behavior.

Thus, the Crawford v BNSF case clearly illustrates that the best practice for employers is to implement and distribute harassment policies, for without them, employers will find it extremely difficult, if not impossible, to defend claims on the basis that they exercised reasonable care to prevent and correct promptly harassment.

For more information about this article, please contact me at taj@alexandriamnlaw.com.

The comments posted in this blog are for general informational purposes only. They are not to be considered as legal advice, and they do not establish an attorney-client relationship. For legal advice regarding your specific situation, please consult your attorney.

Copyright 2011 Swenson Lervick Syverson Trosvig Jacobson Schultz, PA

August 8, 2011

Abercrombie & Fitch dressed down over hijab in religious discrimination case

Posted in Discrimination, Religion tagged , , , , , at 10:27 am by Tom Jacobson

Inflexible dress codes can lead to religious discrimination.  That’s the hard lesson recently learned by clothing giant Abercrombie & Fitch.

The lesson was taught by U.S. District Court Judge Gregory Frizzell, the federal judge presiding over a lawsuit brought by the Equal Employment Opportunity Commission after Abercrombie & Fitch refused to hire a teenage girl who is Muslim and who wore a hijab (the traditional religious head scarf).

The company argued that accommodating the girl’s beliefs by making an exception to its “Look Policy” would have imposed an undue hardship.  Judge Frizzell disagreed.  He concluded that the company had not demonstrated that it would sustain anything more than a minimal undue hardship.  As a result of Judge Frizzell’s ruling, the case will now proceed to a jury trial for a determination of any damages that Abercrombie & Fitch may have to pay.

The case is a reminder that is sometimes dress codes and religion intersect. Therefore, to avoid claims of religious discrimination, dress codes must be carefully drafted and flexibly applied.

For more information on this lawsuit, see Tulsa federal judge rules against Abercrombie & Fitch in lawsuit over hijab, or contact me at taj@alexandriamnlaw.com.

The comments posted in this blog are for general informational purposes only. They are not to be considered as legal advice, and they do not establish an attorney-client relationship. For legal advice regarding your specific situation, please consult your attorney.

Copyright 2011 Swenson Lervick Syverson Trosvig Jacobson, PA

May 25, 2010

The Ghost Whisperer Goes to Work

Posted in Discrimination, Religion tagged , , , , , at 12:48 pm by Tom Jacobson

I’m not making this stuff up.

Zachary Winspear worked for Community Development, Inc.  After his brother died, a co-worker, Sierra (who happened to be one of the owner’s wives), told him that she could communicate with the dead.  She also told him that his brother was in hell and that if he did not “find God,” he, too, would go to hell.  Similar comments continued for three weeks.  After Winspear complained twice to the owner, the owner told him that Sierra really could talk to the dead and that he should follow her instructions. Winspear eventually quit “to escape the religious and other harassment by Sierra.”

Winspear later sued CDI in the United States District Court for the District of Minnesota.  That court threw out Winspear’s claims, so Winspear appealed to the Eighth Circuit Court of Appeals.  The Eighth Circuit reversed the District Court’s decision and ordered the District Court to reconsider whether there was enough evidence of a religiously-hostile work envrionment for the case to go to trial.

Despite its bizarre facts, the case highlights the challenge an employer can face when it must balance the sometimes competing religious beliefs (and non-beliefs) that may surface in the workplace.

The comments posted in this blog are for general informational purposes only.  They are not to be considered as legal advice, and they do not establish an attorney-client relationship.  For legal advice regarding your specific situation, please consult your attorney.

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