The Pregnant Workers Fairness Act imposes new requirements on employers and how they treat their pregnant employees. On Tuesday, the EEOC started accepting charges for alleged violations of the PWFA. So, employers need to know what the Act requires and how to comply.
It’s important to know where the PWFA sits in relation to other employment laws. For example, the Pregnancy Discrimination Act requires employers to treat employees affected by pregnancy, childbirth, or related medical conditions the same as other similar situated employees. Additionally, the Americans with Disabilities Act requires accommodation for certain impairments that are related to pregnancy — but many pregnancy-related conditions are not considered disabilities under the ADA.
The PWFA is therefore similar to the ADA but goes a step further — requiring employers to provide reasonable accommodations for “the known limitations related to pregnancy, childbirth and related medical conditions of a qualified employee.” But, accommodation is not required if an employer can demonstrate that the accommodation would impose an undue hardship on the operation of its business. The EEOC lists the following examples of accommodations for pregnant workers:
the ability to sit or drink water;
receive closer parking;
have flexible hours;
receive appropriately sized uniforms and safety apparel;
receive additional break time to use the bathroom, eat, and rest;
take leave or time off to recover from childbirth; and,
be excused from strenuous activities and/or activities that involve exposure to compounds not safe for pregnancy.
In addition to requiring accommodations, the PWFA imposes restrictions on employers. Employers cannot:
Require an employee to accept an accommodation without a discussion about the accommodation between the worker and the employer;
Deny a job or other employment opportunities to a qualified employee or applicant based on the person’s need for a reasonable accommodation;
Require an employee to take leave if another reasonable accommodation can be provided that would let the employee keep working;
Retaliate against an individual for reporting or opposing unlawful discrimination under the PWFA or participating in a PWFA proceeding (such as an investigation); or
Interfere with any individual’s rights under the PWFA.
This is a new law with minimal guidance. So, when addressing the needs of pregnant employees, employers should proceed cautiously.
P.S.: Employers need to update their EEO posters to reflect the PWFA requirements. Here’s the latest version from the EEOC: EEOC: Know Your Rights
Today, the Supreme Court increased the burden on employers who receive a request to accommodate an employee’s religious beliefs. Before today, an employer was not required to provide a religious accommodation if it would impose “more than a de minimis burden” on the employer. After today, employers will be confronted with a case-by-case analysis of whether an accommodation will result in “substantial increased costs.”
In the last few years, I’ve provided a lot of advice to employers on accommodating employees’ religious beliefs. First, I received a lot of questions during COVID about employees’ religious objections to mask mandates or vaccine requirements. Second, I received many questions about accommodating Saturday Sabbath observers who cannot work from sundown Friday through Sundown Saturday.
An employee’s observance of the Sabbath on Saturday can sometimes conflict with an employer’s need to schedule work on a Saturday. As a result, I often walked my clients through the analysis of whether they were required to give time-off to Saturday Sabbath observers. After all, Title VII of the Civil Rights Act prohibits discriminating against employees because of their religious beliefs. In 2018, I wrote a blog on accommodations for Sabbath observers that can be found at: this link (Sabbath Accommodations).
Today, the United States Supreme Court disrupted almost every employment lawyer’s understanding of the analysis for accommodating religious beliefs. See Groff v. DeJoy, No. 22-174, 2023 WL 4239256 (Jun. 29, 2023). The Groff decision focused on Title VII’s requirement that an employer must “reasonably accommodate an employee’s or prospective employee’s religious observance or practice” unless the employer is “unable” to do so “without undue hardship on the conduct of the employer’s business.” 42 U.S.C. § 200oe(j)
In short, accommodation is required unless the accommodation would impose an undue hardship on the employer. Prior to today, most courts and lawyers interpreting Supreme Court precedent understood that that proving “undue hardship” was a fairly easy task. If an accommodation would require “more than a de minimis cost,” it was an undue burden.
In Groff, the Supreme Court jettisoned the “de minimis” standard and replaced it with a more-difficult burden for employers. “[A]n employer must show that the burden of granting an accommodation would result in substantial increased costs in relation to the conduct of its particular business.” Groff, 2023 WL 4239256 at *11 (emphasis added). Unfortunately, the Court provided very little guidance for applying its “substantial increased costs” tests. But, we know two things:
There is no one-size-fits-all test. Instead, the Supreme Court encouraged lower courts to “apply the test in a manner that takes into account all relevant factors in the case at hand, including the particular accommodations at issue and their practical impact in light of the nature, ‘size and operating cost of [an] employer.'” Groff, 2023 WL 4239256 at *11. In other words, large employers will face more onerous burdens for accommodating because they should be able to afford it.
Co-employee morale/disgruntlement is not a factor to consider in the undue burden analysis. “[A] hardship that is attributable to employee animosity to a particular religion, to religion in general, or to the very notion of accommodating religious practice cannot be considered ‘undue.'” Groff, 2023 WL 4239256 at *12
This was a unanimous opinion from the Supreme Court. Interestingly, two of the more-liberal Justices (Sotomayor and Jackson) filed a concurring opinion noting that “undue hardship on the conduct of a business may include undue hardship on the business’s employees.” Groff, 2023 WL 4239256 at *14. Thus, while employee disgruntlement might not be an acceptable consideration, these two Justices might be willing to consider other impacts on co-employees as part of the undue hardship analysis.
This is just the beginning of a new test. In Alabama, the Eleventh Circuit Court of Appeals and our United States District Courts will have to apply the new “undue burden” cases that come before them. As a result, employers should tread carefully when considering religious accommodation requests.
Employees who do not belong to a formal religious denomination can still have sincerely held religious beliefs protected by Title VII of the Civil Rights Act of 1964.
I just received a press release from the EEOC, which is suing an employer who refused to allow an employee to wear a beard. The employee asked for a religious accommodation but admitted he did not belong to formal religious denomination. Nevertheless, he claimed to hold a Christian belief that men must wear beards. The employer denied the request for accommodation because the employee was unable to provide additional substantiation of his beliefs or a supporting statement from a certified or documented religious leader.
Many times, employers will think that an employee is “inventing” a religious belief to avoid work requirements. But, refusing to take religious accommodation claims seriously can be dangerous. That’s because the EEOC takes the position that “religion” is very broadly defined for purposes of Title VII. According the EEOC: “The presence of a deity or deities is not necessary for a religion to receive protection under Title VII. Religious beliefs can include unique beliefs held by a few or even one individual; however, mere personal preferences are not religious beliefs. ”
Obviously, I don’t know all of the facts of this case. And, the EEOC can be selective in the facts that it includes in a press release. But, this announcement should help employers understand that they need to take all religious accommodation requests seriously.
If you want to arbitrate employment disputes, get a hand-signed arbitration agreement from your employee. That’s the lesson to be learned from an opinion issued by Judge David Proctor last week. Allen v. PJ Cheese, Inc., No. 2:20-CV-1846-RDP, 2022 WL 16972494 (N.D. Ala. Nov. 16, 2022).
I really don’t like arbitration of employment disputes. When I first started practicing law, arbitration was advertised as a cheaper, faster way to get a decision from an experienced decision-maker. Most attorneys now agree that employment arbitration is neither cheaper nor faster than litigation. And, employment arbitrators tend to “split the baby” attempting to make everyone happy.
Nevertheless, I have some clients who want to arbitrate their employment disputes. And, in this age of pervasive technology, they frequently obtain their arbitration agreements through online applications and the use of “electronic signatures.” Allen demonstrates one weakness with that process.
Mr. Allen sued his employer, PJ Cheese, for race discrimination. PJ Cheese filed a motion for summary judgment asking Judge Proctor to dismiss the case because Mr. Allen signed an arbitration agreement. PJ Cheese relied upon its electronic application process, which required e-signatures on a variety of documents, including an arbitration agreement. Mr. Allen admitted that he e-signed documents “relating to taxes and wages,” but “unequivocally disputed” that he ever e-signed an arbitration agreement. PJ Cheese admitted that none of its representatives saw Mr. Allen sign the agreement and could not “definitively say who was the individual who applied this electronic signature to this document.”
Faced with conflicting evidence, Judge Proctor was required to deny the motion for summary judgment. Instead, he set the case for trial — presumably on the issue of whether Mr. Allen e-signed the agreement. At trial, a jury will determine whether Mr. Allen is telling the truth when he denies e-signing the arbitration agreement.
Allen teaches that a hand-signed arbitration agreement is better than an e-signature. But, even a hand-signed agreement is not foolproof. The party opposing arbitration can still argue that a hand-signed document is forged. See Ex parte Meadows,782 So.2d 277 (Ala. 2000). Still, a hand signature is the best way to avoid the trial required by Allen.
Late last week, the Alabama Legislature passed, and Governor Kay Ivey signed, SB9 which is designed to restrict the ability of Alabama businesses to impose vaccine mandates on their employees. Here is a link to SB9: SB9 Limiting Vaccine Mandates. While there are many unanswered questions in SB9, I think most Alabama businesses will be able to comply with federal vaccine mandates while simultaneously complying with SB9.
Here are my big takeaways regarding SB9:
1. Employers are required to give their employees a specific vaccine exemption form.
Employers cannot require any employee to receive a vaccination as a condition of employment without providing an opportunity to be exempted for religious or medical reasons. Most importantly, employers must use a specific form drafted by the Legislature. To access that form: (1) click on the the SB9 link above; (2) go to page 2, line 18 of SB9; (3) “cut and paste” all text through page 5, line 5. The form must be made “readily available” to all employees along with directions for submitting the form.
2. Denials of exemptions are appealable and employers cannot terminate employees based upon vaccination status until conclusion of an appeal.
If an employer denies an exemption request, the employee will be allowed to appeal that denial to an Administrative Law Judge appointed by the Alabama Secretary of Labor. If the ALJ also denies the exemption, the employee will be able to file an appeal with a court of competent jurisdiction.
SB9 also recognizes that employers might want to terminate based on vaccination status after denying an exemption. The new law prohibits any such termination until an administrative law judge or court issues a final ruling in the employer’s favor.
3. Here’s what SB9 DOESN’T do.
SB9 does not limit an employer’s ability to gather information. It says that employers must provide the Alabama form to employees. But, it does not say this is the onlyform that can be given to employees. SB9 does not restrict the duty or obligation of employers to engage in an “interactive process” with employees who request an accommodation or exemption.
SB9 does not limit the accommodations that an employer can require. In fact, SB9 says nothing whatsoever about accommodations. Some of my risk-averse clients have been fairly liberal in granting exemption requests even before SB9 was passed. Indeed, exemption from the vaccine is not an exemption from the obligation to protect your co-workers. Employers who grant exemptions under SB9 can also require that employees test for COVID-19 weekly and wear masks while around other employees.
3. The Alabama grounds for exemption are expansive.
The Centers for Disease Control has extensively discussed the impact of the COVID-19 vaccine on particular groups of people. (CDC COVID-19 Vaccine Discussion). This new Alabama law seems to take a different view of COVID-19 and allows employees to attempt to opt-out of vaccines based on: (1) their own statements of health history; or, (2) a generic statement that the vaccine conflicts with sincerely held religious beliefs, practices or observances — without requiring a statement defining those beliefs. Here’s the complete list of grounds for exemption:
My health care provider has recommended to me that I refuse the COVID-19 vaccination based upon my current health conditions and medications. (Note: This is the only ground that requires the signature of a “licensed health care provider.” Other health-based reasons discussed below don’t require any medical support.)
I have previously suffered a severe allergic reaction (e.g., anaphylaxis) related to vaccinations in the past.
I have previously suffered a severe allergic reaction related to receiving polyethylene glycol or products containing polyethylene glycol.
I have previously suffered a severe allergic reaction related to receiving polysorbate or products containing polysorbate.
I have received monoclonal antibodies or convalescent plasma as part of a COVID-19 treatment in the last 90 days.
I have a bleeding disorder or am taking a blood thinner.
I am severely immunocompromised such that receiving the COVID-19 vaccination creates a risk to my health.
I have been diagnosed with COVID-19 in the past 12 months.
Receiving the COVID-19 vaccination conflicts with my sincerely held religious beliefs, practices, or observances.
4. Mandated exemption or just a presumption?
SB9 says that “[a]n employer shall exempt vaccination as a condition of employment for any employee who has submitted the exemption form ….” This seems fairly clear: If the employee fills out the State-sponsored exemption form, they don’t have to get vaccinated.
But, the law later says that “submission of the completed form creates a presumption that the employee is entitled to the exemption.” Moreover, it sets forth a process for an employee to challenge a “denial of a request for an exemption.” Thus, it seems that employees don’t automatically get an exemption if they fill out the form.
This internal inconsistency is important. In the next few points, I discuss conflicts between SB9 and federal mandates. If completing the form is a mere “presumption” of exemption, then Alabama employers might be able to argue that the presumption is rebutted by the requirements of federal law.
5. There are conflicts with the vaccine mandate for federal contractors.
The most glaring ground for exemption under SB9 is COVID-19 diagnosis in the last 12 months. That exemption flies directly in the face of the federal contract mandate (found here Federal Contractor Mandate) which plainly states that “covered contractor employees who have had a prior COVID-19 infection are required to be vaccinated ….”
Notably, the federal contractor mandate allow employers to grant exemptions for health reasons and sincerely held religious beliefs. So, in some ways, SB9 comports with that mandate. This is where it is important for Alabamians to know if exemption is mandated upon completion of the SB9 form or if it is merely a presumption that can be rebutted. If it’s a presumption, then I think that a federal contractor could argue that the presumption of exemption for past COVID-19 infection is rebutted because federal law does not allow an exemption for federal contractor employees on that ground.
6. There are conflicts with the CMS mandate for many medical facilities.
I discussed CMS’s vaccine mandate for medical facilities here: CMS Vaccine Mandate. That mandate imposes strict requirements on employees who seek exemptions for medical reasons:
For staff members who request a medical exemption from vaccination, all documentation confirming recognized clinical contraindications to COVID–19 vaccines, and which supports the staff member’s request, must be signed and dated by a licensed practitioner, who is not the individual requesting the exemption, and who is acting within their respective scope of practice as defined by, and in accordance with, all applicable State and local laws. Such documentation must contain all information specifying which of the authorized COVID–19 vaccines are clinically contraindicated for the staff member to receive and the recognized clinical reasons for the contraindications; and a statement by the authenticating practitioner recommending that the staff member be exempted from the facility’s COVID–19 vaccination requirements based on the recognized clinical contraindications.
Obviously, SB9 does not require that level of detail for employees to obtain an exemption for medical reasons. Indeed, Alabama apparently prefers that employers to just take the employee “at their word” for a host of medical issues.
Once again, the issue will be whether exemption is mandatory once the employee submits the SB9 Form. If the form merely creates a presumption, then facilities covered by the CMS mandate might be able to argue that the presumption is rebutted by the CMS mandate requiring a more-detailed statement for medical exemptions.
7. No direct conflict with the OSHA mandate for employers with 100+ employees.
Last week, OSHA also imposed a vaccine mandate on employers with 100 or more employees. I wrote about that mandate here: OSHA Vaccine Mandate. The OSHA mandate offers employers the option to adopt: (1) a policy mandating all employees be vaccinated; or, (2) a policy where employees can “test out” of vaccine requirements. Under the “test out” option, employees are not required to be vaccinated if they test for COVID-19 on a weekly basis and observe masking protocols. If Alabama employers adopt the “test out” option, there does not appear to be a direct conflict between OSHA and SB9.
Even so, there is some level of conflict. As discussed above, SB9 grants an exemption to employees who have been infected with COVID-19 in the last 12 months. But, the OSHA standard “does not offer any exemptions to vaccination requirements based on ‘natural immunity’ or the presence of antibodies from a previous infection.”
8. Is leave without pay an option?
SB9 only restricts the ability to terminate an employee. What if an employer decides not to “terminate”? In other words, an employer could grant an exemption and then move the employee to long-term leave without pay status. This would be an aggressive strategy by the employer.
Technically, the employee could not appeal under SB9 because that law only allows appeals where exemptions are denied. But, long-term leave without pay would probably be considered a “constructive discharge.” Employers adopting this strategy would probably face a legal challenge of some kind.
9. Additional possible loophole?
Section (h)(2) of SB9 says: “Nothing in this section shall be construed to alter or amend the ability of an employer to terminate an employee for reasons other than the employee’s COVID-19 vaccination status.” This seems to reiterate that Alabama is an “employment at will” state. This means that, in the absence of an employment contract, an employer or employee can terminate the employment relationship at any time. Indeed, “employment at will” is so strong in Alabama that courts repeatedly say that an employee can be fired “for a good reason, a bad reason or no reason at all.”
SB9 also clearly states that it does not “create or imply a private cause of action for employees who are terminated after refusing to receive a vaccination mandated by their employer.” This means that employees cannot sue for wrongful termination. Instead, the only remedy allowed by SB9 is review “of an employee’s denial of a request for an exemption” by an Administrative Law Judge and Alabama’s courts.
I think creative attorneys could figure out ways to argue that a termination is “for reasons other than the employee’s COVID-19 vaccination status.” I also think that a “mixed motive” analysis (where vaccine status and some other reason provide the impetus for termination) could provide a defense.
10. The Alabama Department of Labor has to provide a process for employees.
SB9 requires that the Alabama Department of Labor develop a process for employees to appeal the denial of their exemption requests. DOL is supposed to release that process by November 26. In that process, DOL must appoint Administrative Law Judges to review the appeals. And, even after the ALJ rules, employees must be given the right to file a further appeal in “a court of competent jurisdiction.”
As soon as DOL issues its rules regarding the appeal process, I will provide an update.
11. Closing Thoughts
I think the Legislature’s main goal in passing SB9 was to force businesses to think-twice before terminating an employee based upon a vaccine mandate. And, SB9 dramatically slows the process for terminating employees on that ground.
But, as a practical matter, I was already advising my clients to think-twice before termination. Any time an employee asks for a religious or disability accommodation of any kind, an employer incurs risk if they terminate soon thereafter.
Each of of the federal vaccine mandates allows employers to exempt employees who have disabilities or sincerely held religious beliefs. SB9 is designed to liberalize the process for granting exemptions. But, at the end of the day, employers just need to proceed carefully and gather as much information as reasonably possible before deciding to grant or deny an exemption request. If an exemption is denied, employees can now appeal that denial to an ALJ and drag the process out. Otherwise, the process largely remains the same. Employers just have to use the additional form mandated by SB9 as part of that process.
I am getting swamped with calls wanting to discuss religious objections to vaccine mandates. I’ve written about President Biden’s vaccine mandate here (Mandate Announcement) here (12/8 Deadline) and here (FAR Clause for Vaccine). Government contractors have deadlines for vaccine compliance that are rapidly approaching. Additionally, many private employers are rolling-out vaccine policies in advance of anticipated OSHA requirements. Nevertheless, many employees don’t want to get vaccinated. And, thanks to the internet, I’m seeing a lot of “cut and paste” religious objections to the vaccine.
For the sake of my clients, I’m not going to re-publish those objections. But, many people seem to have the same beliefs regarding vaccines. Presumably, those employees have read that there are two primary, legal avenues for trying to avoid the vaccine: (1) the Americans with Disabilities Act; and, (2) Title VII of the Civil Rights Act of 1964. Title VII prohibits discrimination against individuals because of their “sincerely held religious beliefs.” As I understand the literature, there are few medical reasons for avoiding the vaccine. As a result, I am not seeing many requests for ADA accommodations. Instead, presumably because of the subjectivity of whether a belief is “religious” and/or “sincerely held,” I am seeing many more requests for religious accommodation.
At least for federal contractors, the Safer Federal Workforce Task Force has recognized that employees are entitled to religious accommodations: “A covered contractor may be required to provide an accommodation to covered contractor employees who communicate to the covered contractor that they are not vaccinated against COVID-19 because of a disability (which would include medical conditions) or because of a sincerely held religious belief, practice, or observance.” (The guidance is found here: Guidance for Federal Contractors.) But, when asked to provide details on reviewing religious accommodation requests, the Task Force punted:
Q4: Who is responsible for determining if a covered contractor employee must be provided an accommodation because of a disability or because of a sincerely held religious belief, practice, or observance?
A: A covered contractor may be required to provide an accommodation to contractor employees who communicate to the covered contractor that they are not vaccinated for COVID-19, or that they cannot wear a mask, because of a disability (which would include medical conditions) or because of a sincerely held religious belief, practice, or observance. A covered contractor should review and consider what, if any, accommodation it must offer. The contractor is responsible for considering, and dispositioning, such requests for accommodations regardless of the covered contractor employee’s place of performance. If the agency that is the party to the covered contract is a “joint employer” for purposes of compliance with the Rehabilitation Act and Title VII of the Civil Rights Act, both the agency and the covered contractor should review and consider what, if any, accommodation they must offer.
So, we know that employers are required to give accommodations. Well, what is the process for giving an accommodation? Generally, there are two steps.
I. DETERMINE IF A RELGIOUS BELIEF IS SINCERELY HELD
Historically, the United States Equal Employment Opportunity Commission has taken a liberal stance on this issue. Here is a link to their guidance on religious discrimination: EEOC: Religious Discrimination. Generally, they don’t want employers second-guessing beliefs:
Because the definition of religion is broad and protects beliefs, observances, and practices with which the employer may be unfamiliar, the employer should ordinarily assume that an employee’s request for religious accommodation is based on a sincerely held religious belief. If, however, an employee requests religious accommodation, and an employer has an objective basis for questioning either the religious nature or the sincerity of a particular belief, observance, or practice, the employer would be justified in seeking additional supporting information.
The EEOC has not provided any updated guidance on requests for accommodation in relation to vaccine mandates. As a result, employers are left to muddle-through without clear direction. I don’t think there is a “right” or “wrong” way to approach this issue. Instead, I think there is sliding-scale of risk that each employer should review before determining if a belief is sincerely-held:
Take the employee’s word for it. If an employee says he/she has a religious objection, an employer could just say: “Ok.” This is the easiest way to avoid a potential discrimination claim from the employee. But, for federal contractors, I sincerely doubt that the federal government would accept this approach if vaccine compliance is audited.
Get an attestation of truthfulness. One step beyond taking the employee’s word is getting them to swear to the truthfulness of their beliefs. Under this approach, the employee would sign a statement swearing or attesting under penalty of perjury that their statement of religious belief is true and correct. This approach probably complies with the EEOC’s desire to avoid second-guessing. It also would provide documentation to the federal government in the event of an audit. Any documentation related to the accommodation process should be kept in a file separate from the employee’s regular personnel file.
Ask some questions about the belief. Does a “cut and paste” religious statement create an “objective basis for questioning either the religious nature or the sincerity of a particular belief” as recognized by the EEOC’s guidance? Maybe. Some employers are asking a few questions about the nature of an employee’s belief. Can you provide any scripture to support your belief? Can you provide a spiritual advisor that we can talk to who supports your belief? The more questions you ask, the more danger that you run afoul of Title VII. But, you probably get more cover in the event of a federal audit of vaccine compliance.
Ask a bunch of questions about the belief. One of the primary objections to vaccines is the claim that they were developed from fetal cells — implicating objections to abortion. Some employers who are less risk-avers are providing employees with a list of other medications developed from fetal cells and asking employees to affirm that they will not use those medications. Ifyou are going to question the sincerity of belief, the EEOC’s guidance says that the following are factors that could be considered: “whether the employee has behaved in a manner markedly inconsistent with the professed belief; whether the accommodation sought is a particularly desirable benefit that is likely to be sought for secular reasons; whether the timing of the request renders it suspect (e.g., it follows an earlier request by the employee for the same benefit for secular reasons); and whether the employer otherwise has reason to believe the accommodation is not sought for religious reasons.”
Determine that the belief is not sincerely held. This is the most-aggressive stance, because it opens you up to claims of religious discrimination under Title VII. If you are going to determine that a belief is not sincerely held, be prepared to explain why you came to that conclusion and have documentation of your decision.
II. ENGAGE IN THE ACCOMMODATION PROCESS
A sincerely-held religious belief is not a “get out of jail free” card. Employees don’t get to saunter around the workplace, consequence-free, because they have an objection. Instead, Title VII merely requires an accommodation of a sincerely-held belief. For federal contractor employees, unvaccinated employees must be masked in the workplace and in federal facilities. Other accommodations designed to honor a belief, while also protecting co-employees, could include: weekly COVID-19 testing; changing work locations to increase distance from other employees; reassignment to another vacant and available position; telework; unpaid leave; or, a combination of options.
In some circumstances, it might not be possible to accommodate a religious belief. Typically, this occurs where the only accommodation requested or available imposes an “undue hardship” on the employer. The “undue hardship” standard is different from the “undue burden” analysis that sometimes occurs in disability accommodation cases. An undue hardship is one that causes “more than a de minimis cost” to an employer. But, the cost is not just monetary. Instead, an undue hardship can be judged by the general burden on the conduct of an employer’s business. The EEOC’s guidance recognizes that undue hardship can arise where the accommodation diminishes efficiency in other jobs, infringes on other employees’ job rights or benefits, impairs workplace safety, or causes coworkers to carry the accommodated employee’s share of potentially hazardous or burdensome work.
When it comes to requests for a religious accommodation, I cannot emphasize the following point enough: GO SLOW. Determine your risk level. Review the applicable facts of each case. Decide if accommodations can be made. And, document, document, document. Obviously, the assistance of a good employment lawyer is invaluable in that process.
On Thursday evening, President Joe Biden addressed the nation and announced his plan for a “Path Out of the Pandemic.” A broad outline of President Biden’s plan can be found on the White House web site here: Biden COVID Plan. That outline includes a vaccine mandate for all government contractors and private employers with 100 or more employees. After the President’s address, the White House released two Executive Orders. Here’s what we know:
1. FEDERAL CONTRACTOR VACCINE MANDATE
After President Biden’s press conference, the White House posted a copy of an “Executive Order on Ensuring Adequate COVID Safety Protocols for Federal Contractors.” Here’s a link to that order: Exec. Order Vaccine Protocols/Contractors. Highlights of the order include:
Significantly, the Executive Order does not explicitly implement a vaccine mandate. Instead, the Order defers to guidance from the Safer Federal Workforce Task Force. Nevertheless, given the tone of President Biden’s comments, it is safe to assume that the Task Force will mandate vaccines for federal government contractors.
Federal agencies must include clauses in their contracts requiring contractors to comply with guidance issued by the Task Force. The requirements in those clauses must also be flowed-down to subcontractors.
Here’s a link to the Task Force’s current discussion of vaccines: Task Force Vaccine Discussion. You should regularly check that link because it will almost certainly change in the coming days and weeks.
The Task Force shall issue guidance by September 24, 2021 which will essentially provide details for the requirements of the Executive Order.
The Federal Acquisition Regulation (“FAR”) will be amended to implement the Executive Order.
The new clause will be included in all new contracts, extensions, renewals or options of contracts on or after October 15, 2021.
2. FEDERAL EMPLOYEE VACCINE MANDATE
President Biden’s second Executive Order explicitly mandates COVID-19 vaccines for federal employees. That order can be found here: Federal Employee Vaccine Mandate. Here are the highlights:
The order repeatedly finds that the “best way” to combat COVID-19 is to “be vaccinated.”
Based on that finding, the order finds “it is necessary to require COVID-19 vaccination for all Federal employees, subject to such exceptions as required by law.” I anticipate that those exceptions will be narrow and focus on people with disabilities and sincerely-held religious beliefs.
Once again, the Safer Federal Workforce Task Force will lead the way. “The Task Force shall issue guidance within 7 days of the date of this order on agency implementation of this requirement for all agencies covered by this order.” So, we should have additional guidance by September 16, 2021.
3. PRIVATE EMPLOYER MANDATE???? Employers with 100+ Employees
The Executive Orders do not address a vaccine mandate for private employers. Nevertheless, the White House’s broad outline says that OSHA will be issuing an emergency standard mandating vaccines and/or testing for private employers with 100 or more employees:
The Department of Labor’s Occupational Safety and Health Administration (OSHA) is developing a rule that will require all employers with 100 or more employees to ensure their workforce is fully vaccinated or require any workers who remain unvaccinated to produce a negative test result on at least a weekly basis before coming to work. OSHA will issue an Emergency Temporary Standard (ETS) to implement this requirement. This requirement will impact over 80 million workers in private sector businesses with 100+ employees.
The process for issuing an Emergency Temporary Standard (“ETS”) is governed by 29 U.S.C. § 655(c). Under that statute an ETS will become effective immediately when it’s published in the Federal Register. Prior to publication, however, the ETS will likely identify compliance dates and deadlines for when certain actions must occur. The ETS will also allow for a public comment period prior to publication.
In large part, today’s news is: “Hurry up and wait!” We know that the federal government is going to implement a vaccine mandate. But, we don’t know the exact contours of that mandate. We should have more guidance from the Task Force in the near future.
I plan to provide regular updates on this issue. I also maintain an e-mail distribution list for clients, friends and generally anybody interested in employment law issues. If you would like for me to include you on that list, please send me an e-mail at: firstname.lastname@example.org
In June, the United States Supreme Court issued its landmark decision in Bostock v. Clayton County, 140 S.Ct. 1731 (Jun. 15, 2020). In Bostock, the Court found that discrimination against employees on the basis of sexual orientation or transgender status violates the sex discrimination prohibitions of Title VII of the Civil Rights Act of 1964. Here is a more-detailed blog that I wrote on Bostock: Bostock – LGBTQ+ Decision. A recent decision from the Eleventh Circuit Court of Appeals suggests that it might also be discriminatory to deny transgender individuals access to the bathroom of their chosen gender. See Adams. v. School Board of St. Johns County, No. 18-13592, 2020 WL 4561817 (11th Cir. Aug. 7, 2020).
Adams Involves Schools and Students, Not Employers
Importantly, Adams is not a Title VII case. Instead, it concerned the rights of a transgender student to be free from discrimination in a public school. As a result, the student pursued discrimination claims under the Equal Protection Clause of the United States Constitution and Title IX of the Civil Rights Act.
The sole issue in Adams was the use of restrooms. Drew Adams was assigned the female gender at birth but began to transition to the male gender. He commenced ninth grade and presented as a boy. For his first six weeks as a ninth grader, he used the boys’ restroom. However, he was told that he could no longer use the boys’ restroom when two unidentified girls complained. There were no complaints from boy students who shared the bathroom with Adams. Nevertheless, the school system offered Adams two choices: (1) use a single-stall gender-neutral bathroom; or, (2) use the girls’ facilities. The school board believed that offering single-stall restrooms reconciled accommodations for transgender students with privacy concerns for non-transgender students. Yet, Mr. Adams felt “alienated and humiliated” every time he was required to use the gender-neutral bathroom.
This is a case where facts played a huge role because the school board presented no facts indicating that any male student complained or that any “untoward” activities occurred in the bathroom. As a result, two judges of the Eleventh Circuit repeatedly criticized the “hypothetical” dangers of allowing transgender students to use their chosen restrooms.
The majority also relied heavily upon Bostock when deciding Mr. Adams’s Title IX claim: “Bostock confirmed that workplace discrimination against transgender people is contrary to the law. Neither should this discrimination be tolerated in schools. The School Board’s bathroom policy, as applied to Mr. Adams, singled him out for differential treatment because of his transgender status. It caused him psychological and dignitary harm. We affirm the District Court’s ruling that maintaining this policy violated Title IX.” Adams, 2020 WL 4561817 at *16.
Lessons for Employers
Adams is extremely important for employers, even though it explicitly applies only to the relationship of schools and students. At least two judges of the Eleventh Circuit believe that denial of access to a chosen bathroom is discriminatory. As a result, if employers deny transgender employees the right to utilize their chosen bathroom, their risk-level under Title VII increases.
In my opinion, however, a mere denial of a chosen restroom should not amount to a violation of Title VII. Usually, an employee can only succeed in proving discrimination under Title VII if he or she suffers an “adverse job action.” And, a job action must be “materially” adverse. In other words, if there is monetary risk associated with an action, it will probably be adverse. Since denial of a bathroom doesn’t logically involve denial of money, it should not be enough, by itself, to support a successful Title VII claim.
Despite my views, the EEOC has on at least one occasion found that requiring a transgender woman to use a single-stall bathroom violated Title VII. See Lusardi v. McHugh, EEOC Doc. 0120133395, 2015 WL 1607756 (Apr. 1, 2015). The Lusardi decision originated on Redstone Arsenal in Huntsville. Among other things, a transgender female Army employee was required to use a single-stall “executive” restroom rather than the restroom assigned to women. The EEOC reviews discrimination complaints from federal agencies and determined that the bathroom assignment sufficiently altered the terms and conditions of Ms. Lusardi’s employment to violate Title VII. A copy of the Lusardi opinion can be found here: Lusardi Opinion
Viewed in tandem, the Lusardi and Adams cases should cause employers to think carefully if they decide to deny a transgender employee the opportunity to use their chosen bathroom. Even if I am right, and denial of a bathroom does not, by itself violate Title VII, the denial could still be used against an employer. For example, I think that denial of a chosen bathroom could be one piece of evidence to use in a sexual harassment/hostile work environment claim under Title VII. Typically, an employee must show that their workplace is permeated with discriminatory intimidation, ridicule, and insult, that is sufficiently severe or pervasive to alter the conditions of the victim’s employment and create an abusive working environment. Denial of a bathroom might be one factor in finding a “severe or pervasive” work environment.
As I noted in the discussion of Adams, above: facts matter. It’s possible that a different result might be reached in a case where an employer can show that other employees using the restroom complained or that “untoward” conduct occurred. In any case, employers need to consult with their attorneys before taking any action that treats a transgender employee differently.
On Monday, the United States Supreme Court ruled that Title VII of the Civil Rights Act of 1964 prohibits employers from taking adverse employment actions based upon the sexual orientation or gender identity of an employee. See Bostock v. Clayton County, Ga., 2020 WL 3146686 (Jun. 15, 2020). The Bostock decision is a groundbreaking reversal of longstanding precedent in the Eleventh Circuit, which includes Alabama. In the past, gay and lesbian employees have enjoyed very limited employment rights, while transgender employees enjoyed some protection. Here is an old blog post providing a good overview of prior law for LGBTQ employees: Emerging LGBT Issues in the Workplace
The Bostock case was initially decided by the Eleventh Circuit Court of Appeals. Gerald Bostock worked as a child welfare advocate for Clayton County, Georgia. After a decade of working for the county, and winning numerous awards, he began participating in a gay recreational softball league. Shortly thereafter, community members made disparaging comments about Mr. Bostock’s sexual orientation and he was ultimately terminated for conduct “unbecoming” a county employee. Mr. Bostock sued, and lost, in the United States District Court for the Northern District of Georgia. On appeal, a panel of the Eleventh Circuit issued a one-page opinion upholding dismissal and adhering to longstanding precedent that “[d]ischarge for homosexuality is not prohibited by Title VII.” Bostock v. Clayton County Bd. of Comms., 723 Fed.Appx. 964 (2018) (quoting Blum v. Gulf Oil Corp., 597 F.2d 936, 938 (5th Cir. 1979).)
The Supreme Court reversed the Eleventh Circuit in a decision authored by Justice Neil Gorsuch. Title VII prohibits discrimination on the basis of “sex.” And, in the first paragraph of his opinion Justice Gorsuch concluded: “An employer who fires an individual for being homosexual or transgender fires that person for traits or actions it would not have questioned in members of a different sex. Sex necessarily plays a necessary and undisguisable role in the decision, exactly what Title VII forbids.”
Justice Samuel Alito, writing for a three-justice minority, argued that employers do not discriminate against LGBTQ employees on the basis of their “sex,” but on the basis of their conduct, which would not be prohibited by Title VII. According to Justice Alito, if an employer terminates both men and women for being gay, it draws no distinction on the basis of sex. But, Justice Gorsuch responded to that argument: “[I]t doesn’t matter if the employer treated women as a group the same when compared to men as a group. If the employer intentionally relies in part on an individual employee’s sex when deciding to discharge the employee — put differently, if changing the employee’s sex would have yielded a different choice by the employer — a statutory violation has occurred.”
While Bostock is a huge win for LGBTQ employees, it has not resolved all issues involving LGBTQ rights. After all, Justice Gorsuch is a conservative. Thus, he noted that employers with strong religious objections to LGBTQ employees might be protected by the Religious Freedom Restoration Act of 1993. In fact, Justice Gorsuch noted that “[b]ecause the RFRA operates as a kind of super statute, displacing the normal operation of other federal laws, it might supercede Title VII’s commands in appropriate cases.” But, because the RFRA was not before the Court, he made no express ruling on that issue. As a result, there is a strong likelihood that we will see further decisions involving employers like Hobby Lobby whose religious beliefs influence their business plans.
Justice Gorsuch also declined to say whether an employer violates Title VII by requiring sex-segregated bathrooms, locker rooms and dress codes. Instead, he expressly limited his opinion to a situation where an employer fires an individual merely for being gay or transgender.
What does it mean for something or someone to be “similar”? That was the existential question recently confronted by the Eleventh Circuit Court of Appeals in a race discrimination case: Lewis v. City of Union City, No. 15-11362, 2019 WL 1285058 (11th Cir. Mar. 21, 2019.) In particular, the Court was concerned with comparators in discrimination cases.
In a typical discrimination case, an employee in a protected class (race, gender, disability, age) will claim that another employee, outside the protected class, was treated better. For example, a female employee who was terminated for tardiness will claim that a male employee was tardy but not fired. In legal jargon, the male employee is considered a “comparator.”
But, comparators need to be similar. A business can have legitimate reasons for excusing the tardiness of a high-level, salaried manager, but not a lower-level, hourly employee. I have discussed the importance of comparators in other discrimination cases Here and Here. Courts can’t compare “apples and oranges.” So, Lewis is an effort by the Eleventh Circuit to provide lower courts with a better analysis for reaching an “apples to apples” comparison.
The United States Supreme Court has previously held that comparators must be “similarly situated.” But, the Eleventh Circuit, and other courts, have struggled with question of just how “similarly situated” a plaintiff and her comparators must be. Different groups of Judges in the Eleventh Circuit have announced different standards to the point that the Lewis court concluded: “It’s a mess.”
Therefore, the Court announced a new standard to be used in all cases going forward: a plaintiff and her proffered comparators must be “similarly situated in all material respects.” Great! But, what does that mean?
At one point in the opinion, the Court suggests that “essential sameness” is a requirement. Yet, the Court also states that the standard “must be worked out on a case-by-case basis.” The Court also identifies four “sorts of similarities” that will underlie a valid comparison:
The compartor will have engaged in the same basic conduct (or misconduct) as the plaintiff.
The comparator will have been subject to the same employment policy, guideline or rule as the plaintiff.
The comparator will ordinarily (although not invariably) have been under the jurisdiction of the same supervisor as the plaintiff.
The comparator will share the plaintiff’s employment or disciplinary status.
The Lewis Court concludes by stating that “a valid comparison will turn not on formal labels, but rather on substantive likenesses.” Moreover, “comparators must be sufficiently similar, in an objective sense, that they ‘cannot be reasonably distinguished.'”
So, what does this mean for Alabama employers? Generally, I think this standard is good for employers. By using phrases like “substantial sameness” and “substantive likenesses,” the Court appears to be signalling that the standard for similarity is high. Nevertheless, the new standard is not effective in helping employers in determining “how high” the bar is. I feel that, in many ways, we are left with Justice Potter Stewart’s famous saying: “I know it when I see it.” As a result, employers in Alabama and the rest of the Eleventh Circuit must simply do their best while the Eleventh Circuit continues to flesh-out the standard on a “case-by-case” basis.