Category Archives: Discrimination

Employer Religious Accommodation Obligations Increase

In light of a recent United States Supreme Court opinion, your burdens as an employer to accommodate your employee’s religious beliefs and practices have increased. It is now much harder for a business with at least 15 employees to deny a religious employee whatever changes to their job duties, schedule or conditions that the employee wants.

The Groff case

In Groff v. DeJoy, decided on June 29, 2023, the Court adopted a higher bar for businesses to meet before they can deny a requested religious accommodation. Gerald Groff, a postal worker, wanted Sundays off to observe his religious beliefs. But postal workers deliver Amazon packages on Sundays on a rotating basis. He refused to ever work on Sundays, and other employees had to deliver his packages on his designated Sundays. He received progressive discipline over a long period of time for his continuing refusal to perform that job duty and eventually resigned.

Groff claimed in his lawsuit that the postal service could have accommodated his religious request to not work Sundays “without undue hardship to the business.” For 50 years, that term “without undue hardship” has meant that the employer didn’t have to change its practices to accommodate a religious request if the request required more than a de minimis or trifling inconvenience for the business.

The 2023 Supreme Court overruled 50 years of precedent and now defines “undue hardship” as a financial determination. According to the Supreme Court, you as an employer may only deny a religious accommodation request if you can show that the request would result in substantial additional costs to the company, taking into account to the size and operating costs of your business. So hardship on other employees, inconvenience, disruption to the smooth running of your business and other challenges are not important. And the Court also said that if one accommodation costs too much, the employer still has to look for other, less expensive accommodations that would satisfy the religious employee.

The Equal Employment Opportunity Commission (“EEOC”) has always made it clear that infrequent payment of overtime to employees who cover shifts not worked by the religious employee is not considered an undue hardship. It appears that now even frequent overtime payments may not be enough to rise to the level of undue hardship for certain successful businesses.

The Court also said that co-worker hostility to the requested accommodation is insufficient to deny the change that the religious employee wants. So those coworkers of Mr. Groff’s who resented him not taking his turn in the Sunday delivery rotation were not an excuse for the employer to deny Groff’s demand that he never work on a Sunday.  

If this sounds like you as an employer are required to give preferential treatment to religious employees, you have correctly interpreted the current Supreme Court, the same court that vehemently decreed that even considering race in college admissions, much less preferential admission on the basis of race, is illegal.

What Religious Claims are Protected?

And despite the Supreme Court’s favoritism towards Christianity, U.S. businesses have to accommodate all religions this way—Islam, Buddhism, Judaism, Native American tribal religions, Voodoo, Druidism, Scientology, the Jedi religion, Rastafarianism . . . . The law protects all religious beliefs, including those that are new, uncommon, not part of a formal church or sect, or only held by a small number of people. An employee’s belief or practice can be “religious” even if the employee is affiliated with a religious group that does not espouse or recognize that employee’s particular belief or practice. And it is up to you as an employer to now maneuver around all of the obstacles that this heightened religious accommodation requirement demands.

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New Laws Regarding Pregnant and Nursing Employees

Every employer with 15 or more names on the payroll needs to understand its obligations under two new federal laws relating to pregnant and nursing employees. With bipartisan support in Congress, the Pregnant Workers Fairness Act (PWFA) and the Providing Urgent Maternal Protections for Nursing Mothers Act (PUMP Act) were passed last month and take effect almost immediately.

PUMP Act

Nursing mothers received some protections under the Affordable Care Act in 2010 to take breaks at work to nurse their infants or to express milk to be refrigerated and saved for later. Those protections have been expanded and recodified with this new law.

What’s new under the PUMP Act?

  • Employees who are breastfeeding an infant can take advantage of the nursing protections at work for 2 years instead of 1 year allowed under the ACA. The wording in the PUMP Act is ambiguous as to when that two-year protection starts. It says, “for the 2-year period beginning on the date on which the circumstances related to such need arise”. What does that even mean?  My best legal guess is that if an employee nursing a child returns to work three months after the baby is born, then her two-year time period will start running on the date of her return.  But don’t let this ambiguity make you anxious. Employers should be patient and remember that only 35% of US babies are still breastfed at all after they are 12 months old. So many employees will not request this accommodation for two years. If an employee is still taking these breaks when the child is older than two years, call your employment lawyer for advice.
  • Although few employers made this distinction in the past, exempt salaried workers were not covered by the ACA nursing mothers provisions. They now have the same rights to nursing breaks under the PUMP Act as hourly workers had with the ACA. Of course, the challenging matter for employers of trying to figure out how to pay an hourly employee who takes nursing breaks is not an issue for salaried employees, because they are paid the same amount every day regardless of the number of breaks they take.
  • Before an employee complains to the EEOC or otherwise sues the employer over violating the PUMP Act, the employee has to tell the employer about its violation of the PUMP Act and give the employer 10 calendar days to start providing an adequate space and time for the employee to breastfeed or pump. In other words, there is a 10-day grace period for you to get your act together if you have somehow failed to comply with the PUMP Act with a particular employee.

The other provisions of the PUMP Act will be administered identically to the ACA provisions that have been in effect for 12 years, so most employers will have to make few significant changes to comply:

What do you as an employer need to do right now to comply with the PUMP Act?

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Texas Employer’s New Year’s Resolutions for 2022

The time between Christmas and New Year’s Day is a good time for employers to reflect on resolutions for 2022. What can you as an employer do in the new year to make your job easier, be a better employer and avoid legal landmines peppering the workplace landscape?

After more than 30 years of advising companies on employment law issues and as a small business owner myself, I have an awareness of and empathy towards the challenges that you are facing. But sometimes we just have to bite the bullet and make some difficult changes. So here are some suggestions of changes you either have to or should consider making in 2022 because of recent changes to the law or the employment arena.

Prepare for the Vaccine Mandate or Testing Policy (for Employers of 100 or more)

Yep, its back. On Friday, December 17, the Sixth Circuit Court of Appeals lifted the injunction on OSHA’s vaccine or testing mandate. That means that employers with 100 or more employees (“large employers”) are once again required to comply with OSHA Emergency Temporary Standard (“ETS”) that puts employers in the position of either requiring employees to get vaccinated or to undergo weekly testing.

In examining the reasons that OSHA argued in favor of enforcing the ETS, the Sixth Circuit ruled, “It is difficult to imagine what more OSHA could do or rely on to justify its finding that workers face a grave danger in the workplace. It is not appropriate to second-guess that agency determination considering the substantial evidence, including many peer-reviewed scientific studies, on which it relied.” The Sixth Circuit found that the mandate was both constitutional and that OSHA was acting within its statutory authority to enforce occupational health and safety in implementing the mandate.

I’ve already provided an explanation of what the ETS requires of large employers. What has changed since November 4 when I wrote that post is that OSHA has extended the deadlines, but not by much. Here are the current deadlines with which OSHA expects large employers to comply:

  • January 10, 2022:
    • Large employers must require unvaccinated employees to wear masks when indoors in the workplace or when travelling in vehicles with coworkers.
    • Large employers must have a written policy in place notifying employees of their obligation to get vaccinated or undergo weekly supervised COVID-19 testing (not at-home testing).
    • Large employers should have documented each employee’s vaccination status and started accepting paperwork for religious and medical exemptions (which means those employees won’t have to be vaccinated but will have to be tested weekly).
  • February 9, 2022:
    • Employers must start testing unvaccinated employees weekly.
    • OSHA will start enforcing the ETS.

In addition to meeting these deadlines, as a large employer, you still have significant obligations regarding daily recordkeeping, notices to employees, onsite testing and paid time off for vaccines and vaccine side effects, all outlined in the original ETS.  And meeting those obligations by the new deadlines means you are going to be busy for the next few weeks.

The Sixth Circuit’s ruling, which is effective nationwide, has already been appealed to the U.S. Supreme Court. There is still a chance that this ETS will not take effect. However, the Supreme Court has consistently upheld every COVID vaccine mandate with which it has been presented over the last year. The most recent occurrence was on Monday, December 13, when a 6-3 court (conservatives Kavanaugh, Barrett and Roberts voted with the three liberal justices) upheld New York State’s requirement that all health care workers there have to be vaccinated, even though religious exemptions will not even be considered for employees doing direct patient care. In other words, the U.S. Supreme Court refused to overturn a much more uncompromising mandate just last week.

Get Serious About Preventing Sexual Harassment

As of September 1, 2021, Texas now has one of the strictest laws in the country prohibiting sexual harassment. Instead of only affecting employers with at least 15 employees like every other federal and state discrimination law, Texas’ new sexual harassment law not only makes employers with just one employee liable, but also for the first time allows harassed employees to sue supervisors and managers (and company owners) individually for sexual harassment along with the company.

To protect your business, at a bare minimum, you must have a written policy prohibiting sexual harassment in your employee manual. In that policy, you must name a person to whom employees should report the harassment who will take the complaint seriously and get an investigation performed.

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Small Texas Employers Newly Liable for Sexual Harassment

Texas employers who have less than 15 employees are no longer protected from sexual harassment claims under the small employer exception. Senate Bill 45, signed by Governor Abbott on May 30, 2021, changes the standard definition of employer in the Labor Code for sexual harassment complaints from “employs fifteen or more employees” to “employs one or more employees”.

This is a major change for small businesses in Texas. It overturns a long-time affirmative defense that many small businesses have relied on to avoid litigation without really worrying about improving their behavior.

New Texas Sexual Harassment Law

Both the federal discrimination law, Title VII, and the Texas discrimination law, Labor Code chapter 21, have excepted small business from any liability for employment actions taken in whole or in part on the basis of sex, religion, age, disability, etc. While the 15-employees or more exception still applies to all of those other categories for the time being, preventing sexual harassment has received a new treatment by the Texas Legislature and, as of September 1, applies to every Texas employer, regardless of employee headcount.

In addition, Governor Abbott signed a companion bill, House Bill 21, on June 7, 2021, that extends the time for filing a sexual harassment claim under §21.141 from 180 days to 300 days after the last harassing act occurred. So now, any Texas employee claiming that they have been sexually harassed in any workplace will have ten months instead of six months to complain to the Texas Workforce Commission’s Civil Rights Division.

“Sex” includes Sexual Orientation and Gender Identity

Here is an interesting twist to this legislation. Last year, the U.S. Supreme Court ruled that the word “sex” in Title VII’s discrimination prohibitions includes sexual orientation and gender identity. Bostock v. Clayton County, 590 U.S. __ (2020). Recently, a Texas Court of Appeals addressed the issue of whether Bostock applies to Texas Labor Code Chapter 21, which bans discrimination in Texas “because of sex.” Tarrant Cnty Coll. Dist. v. Sims, No. 05-20-00351-CV (Tex. App—Dallas, Mar. 10, 2021).

The state appeals court in Dallas held that, in light of the U.S. Supreme Court’s decision in Bostock, they were compelled to read Chapter 21’s ban on sex discrimination “as prohibiting discrimination based on an individual’s status as a homosexual or transgender person.” It is no stretch to apply the Dallas court’s reasoning to sexual harassment, which is just a type of sex discrimination.

Small Businesses Need New Policies

With that background, even the smallest Texas businesses need to make sure they are not allowing any employee or customer to harass another coworker based on that coworker’s sex, sexual orientation or gender identity. While some courts may rule down the road that is not what the Texas Legislature meant to do in its ultra-conservative 2021 legislative session, you do not want your small business to be the test case on Texas’ new sexual harassment law.

Most small employers do not even have Equal Employment Opportunity language or Sexual Harassment policies in their employee policy manuals. That will have to change before September 1, 2021, when SB 45 goes into effect as Tex. Labor Code §21.141.

The new law only applies to harassment in a small business that occurs after September 1, 2021, so if you are a small business owner, now is the time to clean up your employees’ language and offensive behavior (and your own, if any). 

There are other preventative steps every Texas employer needs to take besides just adding a written policy.

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How Employers Can Do Everything Right

University Medical Center in Lubbock won a big victory in an age discrimination case by doing everything right (suggesting to me that they followed the advice of their employment lawyers). Employers can learn eight important lessons from the Fifth Circuit Court of Appeals decision issued in the case of Salazar v. Lubbock County Hospital District d/b/a University Medical Center (opinion issued December 7, 2020).

Age discrimination cases are difficult for employers to win because the elderly make very sympathetic plaintiffs and the judges and jurors themselves are often older. But this case gives a blueprint to managers of how to dispassionately and carefully handle the termination of a poor-performing employee.

The allegations that plaintiff Rosemary Salazar asserted in this case sound really bad for the employer in an age-discrimination claim. Salazar had worked at the hospital for 27 years before she was fired in 2017 for poor performance and failure to change her behavior. She was 57 years old at the time of her termination and alleged not only was her firing discriminatory, but also that the same supervisor in her department fired three other long-time employees who were over the age of 60.

Salazar also claimed that she had been given good performance evaluations and that she had “received numerous raises for her job performance.” Finally she said that the employer did not follow its own progressive disciplinary policy in terminating her.

How did UMC manage to get a win the summary judgment motion and the appeal in this case? In a word: documentation.

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Can an Employer Require COVID-19 Vaccinations of Employees?

Vaccinations for the COVID-19 virus began to be administered here in Amarillo for the first time on Tuesday, December 16, to hospital workers, and now employers are asking if they can require their employees to get vaccinated when vaccines become available to more of the public.

In general, the answer is, yes, an employer can require employees to get vaccinated in order to provide employees and customers a safe environment. Medical and dental offices, schools, food production facilities, nursing homes and other high-risk workplaces will likely mandate vaccinations for their employees. But should other employers require COVID-19 vaccinations?

Duty to Provide a Safe Workplace

A Texas employer currently can legally require vaccinations to provide a safe workplace for their workers. No Texas law prohibits this. As for the relevant federal agencies, the Occupational Safety and Health Administration requires employers to provide safe workplaces. And the Equal Employment Opportunity Commission has just indicated in new guidance that it will not object to employers mandating vaccinations.

OSHA’s general duty clause requires that each employer furnish to its employees a workplace that is free from recognized hazards that could cause death or serious physical harm. A fully vaccinated workplace could provide that safety to your employees. And that mandate could protect you as an employer from federal intervention with the new administration in Washington, D.C. Employers can expect increased enforcement by OSHA under the Biden administration, so mandatory vaccinations will give your company a defense to any allegation that you did not make your employees safe from the recognized dangers of COVID-19.

The EEOC has recently issued guidance supporting mandatory vaccination. In new Equal Employment Opportunity Commission guidance on vaccinations released December 16 (question K5), the EEOC says that an employer can impose on its employees “a requirement that an individual shall not pose a direct threat to the health or safety of individuals in the workplace”.

Disability and Religious Objections

Texas employment is generally “at will”, meaning among other things, that an employer can set its own policies and an employee who does not like those policies can quit. Under current Texas law, that holds true with mandatory vaccinations, as long as Texas employers carefully handle two types of legal objections—disability and religious accommodation.

On Wednesday, the EEOC issued specific guidance about vaccinations at work (section K). As expected, the EEOC says that employers will be allowed to mandate COVID vaccines, with those two exceptions: (1) religious objections (Christian Scientists and some branches of Islam come to mind) under Title VII based on a sincere religious belief; and (2) disability (such as Guillain-Barré Syndrome) under the Americans with Disabilities Act.

Being an anti-vaxxer is not a religion, so that belief will not be enough to claim an exemption. Courts have confirmed in the past that social, political or economic philosophies are not protected under Title VII protection of religion, so unless an employee has a sincere religious objection or a legitimate disability, you don’t have to accommodate an employee’s failure to cooperate by allowing him/her to opt out of the vaccinations.

You do have to be careful as you address religious or disability objections to vaccination. The EEOC wisely points out in its new guidance (question K5):

Managers and supervisors responsible for communicating with employees about compliance with the employer’s vaccination requirement should know how to recognize an accommodation request from an employee with a disability [or religious objection] and know to whom the request should be referred for consideration.  Employers and employees should engage in a flexible, interactive process to identify workplace accommodation options that do not constitute an undue hardship (significant difficulty or expense). 

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Employees and Covid-19

Ten Ways to Get Sued by Employees During a Pandemic

Even though the idea has been in the news recently, at the current time there is no absolute liability immunity for Texas employers from COVID-19-related claims made by employees who are exposed to the virus in your workplace or otherwise harmed during the pandemic. You can be sued for many different legal failures as an employer during this crisis, so you should know what the law expects of you right now.

The law firm of Fisher Phillips is maintaining a fascinating database of COVID-19-related cases filed so far in 2020. Their database shows that 38 COVID lawsuits have been filed in Texas for claims such as unsafe workplaces, discrimination, paid leave violations, retaliation and even wrongful death. I have no doubt those claims will continue to increase as employers struggle with all of the safety guidance and other rules burying them during this crisis.

I’ve narrowed the possibilities of a Texas employer getting sued during this global pandemic down to these ten mistakes:

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Supreme Court Outlaws Discrimination Against LGBT Employees

The United State Supreme Court ruled today in Bostock v. Clayton County that employers may be sued for sex discrimination by LGBT employees under Title VII of the Civil Rights Act of 1964. This opinion resolves a long-time disagreement between the various federal circuit courts and unwieldy patchwork of laws that had protected LGBT employees in some states but not others, and Texas cities like Austin, Dallas and Houston, but not Amarillo.

The Court combined three cases, one in which a male county employee was fired for conduct “unbecoming” a public employee when he joined a gay softball league, one in which a private employer fired an employee just days after he mentioned he was gay, and one where a funeral home fired an employee who presented as male when hired, but later stated that she was going to live, dress and work as a female going forward.

After reviewing each of these job terminations, the Court decided 6-3 in an opinion written by Trump-appointee Justice Neil Gorsuch that an employer who fires an individual based in part on being gay or transgender (and by natural extension, bisexual or lesbian) violates Title VII’s prohibition on discrimination on the basis of sex. “An employer who fires an individual merely for being gay or transgender defies the law”, Gorsuch wrote.

The Court pointed out several important rules for employers to know (these apply to any discriminatory job decision, whether it is based on race, age, national origin, disability, religion, etc.):

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Texas Employer’s Legal Guide to COVID-19 Issues

Note: Some of these laws are changing rapidly as the federal government responds to the crisis. For example, paid sick leave and paid family leave are required of small employers beginning April 1, 2020. That’s why some of the information below has been deleted. Be sure to call an employment lawyer for the latest information and advice.

As COVID-19 dominates the headlines, Texas employers still have businesses to run and employees to supervise. The novel coronavirus, which causes the disease “COVID-19”, is creating all kinds of questions for these businesses, and most of those are best answered by medical and governmental resources.

But there are also employment law issues arising that a Texas employer may wrestle with. I wouldn’t even think about giving medical advice, but 32 years of practicing law has given me some insight that you may find helpful about the legal issues you are facing with your employees.

While there are some companies that can and should practice social isolation and allow employees to work from home, many businesses require employees to show up to perform work—think grocery stores, pharmacies, restaurants, retail, medical offices, hospitals, construction, feedlots, landscapers, agriculture, trucking companies, banks, childcare facilities, etc.

In those businesses, employers must walk the tightrope between compassion for those who are sick and the reality of needing your employees to be present in the workplace. There may also be tension between wanting to pay your employees even while they are absent and a possible huge decrease in your revenue during this time.

So there are no easy answers, but here are the laws you need to consider and discuss with your human resources professionals and your employment attorney BEFORE you take any action involving your employees:

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Hiring Focused on Character

I often hear the general perception by business owners and managers that employees under the age of 30 have a lousy work ethic or other character deficiencies. They complain about entry-level employees who aren’t interested in paying their dues and are convinced they are entitled to move into the corner office on the day they are hired. I also hear about inappropriate dress, lack of loyalty and attendance woes among young people. But I know many “kids” under 30 (my 26-year-old son among them) who are incredibly motivated, hard-working, smart and willing to pay their dues.

Throughout my 32 years of practicing employment law full-time, I’ve also heard lots of similar stereotypical complaints about women in the workplace (“they can’t get along with other women—it’s always a cat fight” or “they just quit when they have children”). And sometimes, I have unfortunately been privy to pure misogyny, racism, ageism, and other bigotry when discussing problem employees.

I have a radical observation from more than 30 years of practicing employment law: Character is not generational, racial or gender-specific. I’ve worked with some terrific young employees and some terrible older ones, some unbelievably hard-working women and some slacker men, some brilliant minorities and some completely ignorant WASPs. The real debate is not about an employee’s age, race, gender or any other data point over which the employee has no control, but the employee’s individual character. So I encourage employers to focus on character more and stereotypes less (actually, not at all).

As an employer, I know you want to fill any open position with an employee who will exhibit responsibility, honesty, loyalty, enthusiasm, flexibility, initiative, dependability, civility, judgment and a distinct sense of right and wrong, regardless of their gender, ethnicity, age, or other protected characteristic.

You won’t find nearly as many business books that focus on character instead of generational conflict or the “downfalls” of diversity. The subject of character often sounds old-fashioned and faintly religious.

But all of us have reluctantly dealt with people with poorly-developed values: gossips, drama queens, whiners, liars, cheats, etc. There is no reason to have those kinds of people working for you and it is not illegal to refuse to hire them. But you have to be able to spot poor character in your hiring process to avoid bringing this poison into your workplace.

To hire better employees, first identify the character traits that are most important to you. Think back about what really disappointed or angered you about the personalities of unsuccessful employees in the past. Were they always tardy? Then dependability is very important to you. Did they steal company time by shopping on the internet on the company computer for hours a day? Then honesty and productivity are probably high on your list. Did your former employee pot-stir, pitting employees against one another? Then you are looking for someone who treats everyone with respect and doesn’t enjoy gossip.

Design an employment process that doesn’t just focus on job skills, but also zeroes in on the character traits that matter most to you. Ask open-ended questions about values in the interview, but don’t rely solely on your ability to judge character. No hour-long interview is going to tell you everything about an applicant’s character.

But you can find out some aspects of an applicant’s character if you ask about:

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