Does a Termination to Avoid “Racial Tension” Violate Title VII?

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Arguably, a termination to avoid racial tension could violate Title VII of the Civil Rights Act of 1964.

This is not a post about race relations in America.  Instead, this post is focused on the following issue:  What happens if an employer terminates an employee to avoid racial tension caused by  that employee’s conduct?

That was one of the underlying issues in Burton v. Gwinnett County School Dist., No. 18-10904, 2018 WL 6259631 (11th Cir. Nov. 28, 2018).  Lauri Burton was a Principal at B.B. Harris Elementary School in the Gwinnett County School District.  She is white.  She and two African-American Assistant Principals removed a disruptive African-American student to a conference room.  The student then repeatedly slammed a chair against a wall, causing a small indentation.  When Burton met with the student’s family, she lied and claimed that the student made a hole in the wall.  After that meeting, Burton ordered one of the Assistant Principals to take a hammer and make a hole in the wall.  She then e-mailed pictures to the student’s family.

When Burton’s actions were discovered, she was terminated from employment by the system’s Superintendent.  After she was terminated, an Associate Superintendent told Burton:  “This could look like you framed children.  This is a little black boy.  This is two black APs.”  Additionally, the School District submitted a report to the Georgia Professional Standards Commission.  In the course of making that report, the District’s Executive Director of Human Resources and Staffing made statements to an investigator indicating that concerns about race relations in the community were a factor.

Burton sued under Title VII of the Civil Rights Act of 1964 claiming that her race was a factor in termination of her employment. Her lawsuit was a “mixed motive” claim.  Burton effectively acknowledged that her actions were improper but argued that race was also a factor in the termination decision.  Without any discussion, the Eleventh Circuit appeared to assume that Burton might be able to succeed on a mixed motive theory — if she could prove that avoiding racial tension motivated her termination.

But, the court sidestepped the issue by finding that Burton provided no evidence regarding the Superintendent’s motives.  The Superintendent was the decision-maker, and the Superintendent denied that race was a factor.  Burton’s evidence consisted solely of statements made by non-decision-makers after the termination decision.  Thus, the court found that she could not meet her burden of proving that race motivated her termination.

But, what if the Superintendent made the statements?  What if an admitted reason for termination was to avoid the potential for racial tension in the community?  Could Burton have succeeded in her race discrimination claim?

I did some quick, but by no means exhaustive, research and I could not find any other cases discussing termination of employees as part of an effort to avoid racial tension.  Title VII expressly prohibits termination “because of” an employee’s race.  See 42 U.S.C. § 2000e-2.  And, in a mixed-motive case, the employee only must show that race was “a motivating factor” for the employer in making the employment decision.  At least one Eleventh Circuit case holds that a employee can “succeed on a mixed-motive claim if she demonstrates that ‘discriminatory input,’ such as [race or gender] bias, factored into the board’s ‘decisional process.'” Quigg v. Thomas Cty. Sch. Dist., 814 F.3d 1227, 1241 (11th Cir. 2016)

In short, I think that an employee like Ms. Burton could at least make an argument that Title VII forbids termination where a motivating factor is avoiding racial tension.  Under that argument, Ms. Burton would show that race factored into her employer’s decisional process.  A counter-argument would stress that racial bias is the deciding factor — not merely the presence of race.  While race relations in the workplace or the community were considered, the employer will argue that it was not biased against Ms. Burton because of the color of her skin.  Instead, it acted to avoid discord.

I wouldn’t want to be the Judge deciding that case, and I wouldn’t want to be the employer being sued for such a claim.  Therefore, my advice is to avoid even the suggestion that race plays any role factor whatsoever in an employment decision.

Every Wrong Does Not Create a Legal Right

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Employees who have been “done wrong” do not automatically have a legal right to sue their employers.

In preparing for today’s blog post, I tried to figure out a way to incorporate the lyrics from:  “If Loving You Is Wrong, I Don’t Wanna Be Right.”  I couldn’t do it.  Instead, the real message of today’s post is a maxim that I learned back in law school:  “The law does not provide a remedy for every wrong.”  In other words, an employee who has been “done wrong” does not automatically possess a legal right to sue his employer.   Two Alabama employees recently learned that lesson when they tried to sue their employers for discrimination.

In Stubbs v. Compass Bank, No. 2:18-cv-00661-RDP, 2018 WL 5084860 (N.D. Ala. Oct. 18, 2018), Pamela Stubbs sued Regions Bank for gender discrimination because she was “treated differently and dealt with more harshly than one of her male coworkers.”  At the time of her lawsuit, she remained a current employee of Regions. Nevertheless, she was suing because she took sick leave, and then was “pulled into meetings” about her attendance, but a male employee was not subjected to scrutiny for his sick leave.  United States District Judge David Proctor found that Ms. Stubbs’s allegation did not satisfy a crucial requirement of a gender discrimination claim:  an “adverse employment action.”  Title VII of the Civil Rights Act of 1964 only provides a remedy to employees who suffer “a serious and material change in the terms and conditions, or privileges of employment.”  Generally, there must be “a significant change in employment status such as hiring, firing, failing to promote, reassignment with significantly different responsibilities, or a decision causing a significant change in benefits.”  Judge Proctor found that getting “pulled into meetings” did not satisfy that standard.

Magistrate Judge John Ott reached a similar conclusion on Martinez v. City of Birmingham, No. 2:18-cv-0465-JEO, 2018 WL 5013861 (N.D. Ala. Oct. 16, 2018).  In that case, Randy Martinez sued under Title VII for race and national origin discrimination.  His claim was based upon a litany of conduct, including: (1) unjust discipline by placing a letter of reprimand in his employee file; (2) transfer or reassignment to different departments within a short amount of time; (3) working in an area segregated/isolated from other employees; (4) failure to train and/or offer the Martinez continuing education opportunities; (5) unreasonable workload expectations; and (6) falsely investigating Martinez for failure to follow rules and regulations.  Judge Ott noted that “not all conduct by an employer negatively affecting an employee constitutes an adverse employment action capable of supporting liability under Title VII.”  He then reviewed Mr. Martinez’s allegations and concluded that none of the “wrongs” gave him a legal right to sue under Title VII.

The Stubbs and Martinez decisions don’t give employers carte blanche authority to treat their employees like dirt.  From a practical perspective, employers should want their employees to have some level of job satisfaction.  From a legal perspective, Stubbs and Martinez also demonstrate that employers can get sued for differential treatment, and spend legal fees defending that treatment, even if they ultimately win.  So, the true lesson to be learned is:  treat your employees right, and  you hopefully won’t get sued.  But, if an employee sues you just for being “done wrong,” you will probably have a good defense.

 

 

An Employee’s Insistence on Enforcing “Rules” Can Be Insubordination.

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Employees who disregard workplace directives in favor of their interpretation of the “rules” may be insubordinate.

I frequently encounter employees who think that workplace rules make them bulletproof.  Usually, these employees have memorized their employer’s handbook and know it better than the Human Resources staff.  They then insist that any workplace action must be taken in compliance with the “rules.”  And, they think that any action which contradicts the “rules” must be invalid.  One employee recently learned the hard way that his insistence upon the “rules” amounted to insubordination, which justified termination of his employment.  Veasy v. Sheriff of Palm Beach County, No. 17-13174, 2018 WL 3868674 (11th Cir. Aug. 14, 2018).

Wilbur Veasy was employed as a corrections officer by the Palm Beach County Sheriff for 25 years.  Over the course of those 25 years, he was written-up for insubordination six times.  He is African-American.  On February 5, 2013, Mr. Veasy was directed to submit to a random urine drug screen.  In accordance with written policy, Mr. Veasy appeared at the Sheriff’s Internal Affairs Office to submit his urine sample.  But, despite the language of the written policy, the Sheriff’s Office had not accepted urine samples at Internal Affairs for more than four (4) years.  Thus, upon arrival, Mr. Veasy was directed to drive his personal car to a third-party contractor’s office to submit a sample.

Mr. Veasy refused.  He insisted that the Sheriff Department’s policy did not require him to drive his personal vehicle to a testing facility.  Mr. Veasy requested an “official vehicle” to drive to the testing facility.  A sergeant denied Mr. Veasy’s request, and ordered that Mr. Veasy drive to the testing facility.  When Mr. Veasy refused, the matter was referred to the Sheriff.    The Sheriff gave Mr. Veasy two options: either drive to the test site in his personal vehicle or be placed on administrative leave.  Mr. Veasy responded that his “2007 red four door Tacoma is not going,” and the  Sheriff placed him on administrative leave.  Mr. Veasy was ultimately terminated for refusing to comply with a direct order and for refusing to submit to a random drug screen.

Mr. Veasy sued for race discrimination.  The Eleventh Circuit assumed that he could prove a basic (prima facie) case of discrimination.  But, Mr. Veasy could not rebut the Sheriff’s legitimate nondiscriminatory reason for termination:  insubordination.  Mr. Veasy tried to argue that he had not actually violated a work rule.  After all, the Sheriff’s written policy said to arrive at Internal Affairs ready to submit a sample, and he did just that.  The Eleventh Circuit was not persuaded.  The issue was not whether Mr. Veasy violated the written rule, but whether he was insubordinate when he refused two direct orders to travel to the third-party contractor’s office.  The Eleventh Circuit found he was insubordinate, and affirmed dismissal of his discrimination claim.

Overzealous employers might be tempted to read Veazy to permit them to terminate an employee for insubordination any time the employee refuses a direct order.  To quote Lee Corso:  “Not so fast, my friend.”  There are numerous factors that need to be considered before any employee is terminated.  Probably, the most important factor is treatment of other similar employees who refuse direct orders.  So, if an employer only terminates insubordinate employees in a protected class, then the termination might be impermissible.  Veazy is more of a cautionary tale for employees to be careful about their insistence on work rules.

 

 

Complaints About Homosexual Discrimination Not Protected by Title VII

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Employees who complain about homosexual discrimination are not protected by Title VII’s anti-retaliation provisions.

In some areas of the country, federal courts have interpreted Title VII of the Civil Rights Act of 1964 to prohibit discrimination on the base of sexual orientation, including homosexuality.  However, the Eleventh Circuit Court of Appeals, which interprets federal law for Alabama,  has held that sexual orientation is not protected by Title VII.  In December of 2017, the United States Supreme Court declined to review the Eleventh Circuit’s position on this issue.  Here’s a link to a post that I wrote on that decision:  Supreme Court Won’t Review 11th Circuit LGBT Decision.

Although sexual orientation is not protected in the Eleventh Circuit, the court has prohibited discrimination against employees for “failure to conform to gender stereotypes.”  Here’s a link to a previous post that discusses the issue:  LGBT Issues in the Workplace.  In short, employers in the Eleventh Circuit can discriminate based upon sexual orientation, but arguably can’t discriminate because an employee’s manner, attributes, attire, etc. don’t comply with gender stereotypes.  As a result, homosexual employees who suffer discrimination are forced to file claims alleging that they suffered discrimination, not because of their sexual orientation, but because of their failure to conform to gender stereotypes.

In Brakeman v. BBVA Compass, No. 2:16-01344-JEO, 2018 WL 3328909 (N.D. Ala. Jul. 6, 2018), Chief United States Magistrate Judge John Ott discussed these issues in the context of a retaliation claim.  Krystal Brakeman is gay and married to another woman.  She claimed that a co-worker made statements to the effect that Brakeman needed to “talk to Jesus” and “get a man in her life.”  Ms. Brakeman complained to a supervisor about those statements.  Two months later, she was terminated from employment.  Her employer asserted that the termination was based upon separate improper conduct by Ms. Brakeman and a lack of truthfulness during an investigation of that conduct.

Ms. Brakeman sued and asserted several theories, including a claim that she was fired in retaliation for complaining about the homosexual-oriented comments of her co-worker.  Because homosexual discrimination is not prohibited in the Eleventh Circuit, complaints about homosexual discrimination are not protected.  Therefore, Ms. Brakeman argued that she suffered retaliation for complaining about a failure to comply with gender stereotypes.  Judge Ott refused to accept that argument, finding that “a plaintiff cannot ‘bootstrap’ an invalid sexual orientation claim into a viable gender stereotyping claim by asserting that homosexuals failed to comply with gender stereotypes because of their homosexuality, real or perceived. …. To hold otherwise ‘would mean that every case of sexual orientation discrimination would translate into a triable case of gender stereotyping.'”

In short, Judge Ott found that Ms. Brakeman was really complaining to her supervisor about homosexual discrimination.  And, because homosexual discrimination is not prohibited in the Eleventh Circuit, Ms. Brakeman’s complaints were not protected by Title VII’s anti-retaliation provisions.

At this point, there do not appear to be any decisions from the Eleventh Circuit itself addressing retaliation and gender stereotyping.  Nevertheless, Judge Ott’s analysis appears to be a natural extension of the Eleventh Circuit’s position on sexual orientation discrimination.  As a result, at least in the Eleventh Circuit, complaints about sexual orientation discrimination are unlikely to be protected by Title VII’s anti-retaliation provisions.

Arbitration Agreements: The Gifts That Keep On Giving

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Arbitration agreements can be binding even if they were signed during a different period of employment.

Diamonds are forever — and so are employment arbitration agreements.  That’s the lesson to be learned from Gillian v. Cowabunga, Inc., No. 2-17-cv-01389-JEO, 2018 WL 2431345 (May 30, 2018).  (For fans of Teenage Mutant Ninja Turtles, I unsuccessfully tried to find a way to work “Cowabunga, Dude!” into the title of this blog post.)

Scarlett Gillian was first employed by Cowabunga from November 2015 to March 2016.  When she was first hired, Ms. Gillian signed an agreement to arbitrate any disputes relating to her employment.  Ms. Gillian quit her job on March 14, 2016, but was re-hired on May 4, 2016.  She did not sign an arbitration agreement when she was re-hired.  Ms. Gillian claimed that she was sexually harassed during her second period of employment and filed suit in federal court.  Cowabunga moved to dismiss that lawsuit and claimed that Ms. Gillian was required to arbitrate any claims because of her prior arbitration agreement.  Ms. Gillian argued that she should not be required to arbitrate because she did not sign a new arbitration agreement when she was re-hired.

United States Magistrate Judge John Ott agreed with Cowabunga.  There appears to be no authority from the Eleventh Circuit Court of Appeals on this issue.  Nevertheless, Judge Ott relied upon decisions from several United States District Court Judges.  His opinion hinged upon the following conclusion:  “Where an arbitration agreement contains express language indicating intent for the agreement to survive termination of employment, parties may be compelled to arbitrate claims arising during subsequent re-employment.”  Gillian, 2017 WL 2431345 at *2.  Ms. Gillian’s arbitration agreement contained an express provision stating that it survived termination of her employment.  Therefore, Judge Ott found that she could be compelled to arbitrate, even though she did not sign a new arbitration agreement when she was re-hired.

Gillian provides employers with another way to avoid lawsuits in federal court.  Of course, if you are a regular reader of my blog, you know that arbitration agreements aren’t always a perfect solution for employers:  Arbitration Isn’t Always Good for Employers.  Nevertheless, if you require your employees to sign an arbitration agreement, you should make sure that the agreement also contains a provision stating that the agreement survives termination of employment.

Title VII, Premarital Sex and the Religious Employer

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Employers who terminate employees for premarital sex risk violating Title VII’s rule against pregnancy discrimination.

Title VII of the Civil Rights Act of 1964 and the Pregnancy Discrimination Act prohibit termination of employees because they are pregnant.  But, what if pregnancy is irrefutable evidence of premarital sex?  And, what if a religious employer has beliefs prohibiting premarital sex?  Can that employer terminate the pregnant employee without violating Title VII?  Those are the issues that United States Magistrate Judge Herman Johnson struggled with recently in Kelley v. Decatur Baptist Church, No. 5:17-CV-1239-HNJ, 2018 WL 2130433 (N.D. Ala. May 9, 2018).

Alexandria Kelley was employed by Decatur Baptist Church as a maintenance and child care employee.  She notified her employer in the Summer of 2015 that she was pregnant, and she was terminated shortly thereafter.  When Ms. Kelley sued in federal court, Decatur Baptist moved to dismiss her complaint, and argued that she was terminated because she engaged in sexual conduct outside of marriage — which violates biblical standards.  Judge Johnson denied that motion to dismiss, while leaving open the possibility for dismissal at a later stage of the litigation.

Decatur Baptist provided Judge Johnson with two legal arguments in support of dismissal.  First, the church argued that the “ecclesiastical abstention doctrine” barred Ms. Kelley’s claims.  Under that doctrine, courts do not decide issues connected to “theological controversy, church discipline, ecclesiastical government, or conformity of members of the church to the standards of morals required of them.”  Myhre v. Seventh-Day Adventist Church, 719 Fed. Appx. 926 (11th Cir. 2018).  (I previously wrote about courts’ reluctance to engage in ecclesiastical disputes here:  Ecclesiastical Disputes In Alabama.) Second, Decatur Baptist argued that Ms. Kelley’s claims were prohibited by the “ministerial exception,” which “precludes application of [employment discrimination laws] to claims concerning the employment relationship between a religious institution and its ministers.”  Kelley, 2018 WL 2130433 at *4.

Judge Johnson found that both of the church’s arguments were premature.  While the church claimed that its decision was based upon religious principals, Ms. Kelley’s complaint (which Judge Johnson was required to accept as completely true) alleged that the termination was based solely upon her pregnancy, and had nothing to do with religion.  Therefore, Judge Johnson gave Ms. Kelley the opportunity to engage in discovery in an attempt to provide evidence in support of her claim.

Decatur Baptist will unquestionably move to dismiss Ms. Kelley’s claims after discovery by filing a motion for summary judgment.  At that point, the church will probably also assert an additional fact-based defense — that it terminated Ms. Kelley for engaging in premarital sex, not for getting pregnant.  “Title VII does not protect any right to engage in premarital sex, but as amended by the Pregnancy Discrimination Act of 1978, Title VII does protect the right to get pregnant.”  Hamilton v. Southland Christian School, Inc., 680 F.3d 1316, 1319-20 (11th Cir. 2012).

 

Government Contracts: OFCCP Compensation Audits Might Change

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The OFCCP might make compensation audits more fair for government contractors.

Recent discussions inside the Office of Federal Contractor Compliance Programs (“OFCCP”) indicate that compensation audits of federal contractors might become more fair for employers.  On April 19, 2018, Bloomberg News released an article indicating that OFCCP was contemplating significant changes to its audit rules.  Here’s a link to the Bloomberg article: Bloomberg OFCCP Article.  The OFCCP conducts audits of government contracts and federal contractors to ensure that employers are complying with federal laws and regulations prohibiting pay discrimination.  Under the Obama Administration, the OFCCP issued Directive 307, which allows auditors to compare compensation of employees even if they perform different work.  For example, auditors might find discrimination by comparing the compensation of two “managers,” even though one manager works in accounting and the other in human resources.

Comparisons of dissimilar employees are generally not permitted in discrimination cases arising under Title VII of the Civil Rights Act of 1964.  Instead, an employee suing for pay discrimination must usually compare themselves to another employee doing the same work, in the same location, with the same supervisors.  Because of the discrepancies between OFCCP’s enforcement efforts and traditional employment law, the U.S. Chamber of Commerce released a report in late 2017 critical of the OFCCP.  It’s report, “OFCCP, Right Mission, Wrong Tactics” can be found here.

The Bloomberg article indicates that the OFCCP is about to scrap or significantly change Directive 307.  That’s good news for federal contractors, who need consistency in the law to succeed in business.  Unfortunately, the Bloomberg article caused some concern among civil rights groups, and an article from the Society for Human Resource Management (which can be found here) indicates the OFCCP’s plans may be delayed.  Even with the delays, the information coming from OFCCP is good news for government contractors, because it indicates a willingness by OFCCP to address employer concerns.

Title VII: Being a Jerk Is Not Discrimination

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Title VII does not protect employees from bosses or co-workers who are jerks

Employees frequently think that they should be able to sue under Title VII of the Civil Rights Act of 1964 because their boss, or a co-worker, is mean to them.  I frequently hear the complaint:  “I’m being harassed, and that’s illegal!”  In the employment law context, however, there is nothing illegal about being a jerk.  In fact, there is nothing illegal about harassing employees — unless that harassment is bad-enough and based upon a protected characteristic like race, sex or age.  Being a jerk generally does not violate any  employment laws.

At the outset, let’s be clear.  Sexual harassment, racial harassment or harassment based upon any other protected characteristic will get you sued.  But, even that harassment must be so severe and pervasive that it alters an employee’s terms and conditions of employment.  There is abundant case law holding that Title VII is not a general civility code.  It is not designed to make sure that people “get along” in the workplace.  Instead, Title VII is supposed to prevent discrimination at work.  Sometimes, there’s a fine line between behavior that’s boorish and behavior that will violate the law.  Some obvious examples of conduct that will get you sued, however, are repeated use of the “N” word toward African-American employees, and touching a female employee in a sensitive location.

An employee must suffer an “adverse employment action” to possess a claim under Title VII.  Such an action must have a tangible adverse effect on the plaintiff’s employment.  As a result, giving discriminatory job assignments, in many cases, won’t be illegal.  Similarly, just being mean to an employee, even if based on a protected characteristic, does not violate Title VII.  For example, last year, the Eleventh Circuit affirmed dismissal of a Title VII action filed against the Post Master General.  See Coles v. Post Master General, 711 Fed. Ap’x 890 (11th Cir. 2017).  In that case, a postal employee claimed she was subjected to age and race discrimination because:  her vehicle was searched at work; an investigation was conducted into her work absences; and, she was assigned “culling belt work” (an unfavorable assignment).  The Eleventh Circuit found that treatment was not an “adverse employment action” under Title VII.

The foregoing observations on the state of the law are not intended to encourage employers to be jerks to their employees.  Indeed, positive morale is a vital component of any workplace.  Moreover, sometimes a court will allow an employee to sue for “constructive discharge.”  A constructive discharge occurs when an employer makes an employee’s working conditions so intolerable that an employee is compelled to resign.  In short, if an employer is too much of a jerk, and the employer’s conduct is aimed at a protected characteristic, an employee may be able to sue — even if they resign.

 

Alabama Employers Need Effective Anti-Harassment Policies

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Many types of harassment are prohibited by Title VII. An effective policy prohibiting harassment can help employers avoid liability.

Almost 20 years ago, the United States Supreme Court provided employers with an important defense to harassment claims under Title VII of the Civil Rights Act of 1964.  Under that defense, even if impermissible conduct occurs in the workplace, an employer can avoid liability by maintaining an effective policy against harassment.  Even though two decades have passed, I still occasionally encounter an employer who has not adopted an anti-harassment policy.  A recent decision from a federal judge in Alabama demonstrates the wisdom of adopting such a policy.

In Garrett v. Tyco Fire Products, LP, No. 2:16-cv-00372-SGC, 2018 WL 1319060 (N.D. Ala. Mar. 14, 2018), Tyco was sued by six African-American employees for racial harassment.  Magistrate Judge Staci Cornelius conducted an extensive review of each employee’s claims, and found that three of them potentially were exposed to the types of severe and pervasive conduct that that are impermissible under Title VII, as well as another law, 42 U.S.C. § 1981.  They each heard, or were called, “boy” and the “n” word “constantly,” saw racial grafitti in Tyco’s bathroom and saw lightning bolts and other Nazi paraphernalia.

Nevertheless, Judge Cornelius found that Tyco was not liable, because of its effective anti-harassment policy.  Importantly, employers cannot just slap a policy on the books and expect to avoid liability.  Instead, the policy needs to be comprehensive, well-known to employees, vigorously enforced, and provide alternate avenues of complaint (so that an employee is not forced to complain to a harassing supervisor).  Tyco’s policy was effective because it did those things, and it was disseminated to all employees through orientation, training, publication in the employee handbook, and postings throughout Tyco’s facilities.  Despite that well-disseminated policy, none of the employees made a harassment complaint to Tyco.  And, because they failed to complain, their harassment claims were barred.

Judge Cornelius’s decision demonstrates that Alabama employers will benefit from adopting effective, well-disseminated anti-harassment policies.  Importantly, if an employee makes a complaint under such a policy, the employer is further required to diligently investigate any complaint and take “prompt remedial action” that is reasonably likely to prevent the misconduct from recurring.

 

 

Religious Objections to Work Shifts and Reasonable Accommodations

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Religious accommodations can require employers to make difficult decisions.

The Eleventh Circuit Court of Appeals issued an opinion on March 9, 2018 which provides guidance to employers on their duty to accommodate the religious beliefs of employees.  See Patterson v. Walgreen Co., No. 16-16923, 2018 WL 1224391 (11th Cir. Mar. 9, 2018).  Darrell Patterson is a Seventh Day Adventist, and his beliefs prohibit him from working during his Sabbath — sundown on Friday to sundown on Saturday.  He was hired by Walgreens as a customer care representative, and Walgreens initially accommodated his beliefs.

Patterson was promoted a number of times and became a training instructor.  The training classes he taught were regularly scheduled between Sunday and Thursday, but sometimes emergency trainings were needed on Friday nights or Saturdays.  In those circumstances, Walgreens allowed Patterson to swap shifts with other available trainers.  But, when Patterson could not find a replacement, he was disciplined.  In 2011, Walgreens scheduled Patterson for an emergency training on Saturday.  Patterson asked another training instructor to cover for him, but that trainer was not available.  Patterson did not ask several other employees about their availability to cover for him.

Patterson met with Walgreen’s Human Resources representative the next week.  That representative suggested that he return to a prior position as a customer care representative or look for another job at Walgreens that had a large employee pool from which Patterson could find employees willing to switch shifts.    Patterson refused unless he received a guarantee that he would not have to work on his Sabbath.  Walgreens terminated his employment because of his refusal to work on the Sabbath and his refusal to look for another position with more likely availability.

The analysis of religious accommodation cases is similar to other discrimination cases under Title VII of the Civil Rights Act of 1964.  An employee establishes a prima facie case of discrimination by showing:  (1) he had a bona fide religious belief that conflicted with an employment requirement; (2) he informed his employer of that belief; and, (3) he was discharged for failing to comply with the conflicting employment requirement.  If the employee establishes a prima facie case, the burden shifts to the employer to demonstrate that it either offered the employee a reasonable accommodation or could not do so without undue hardship.

The Eleventh Circuit’s Patterson decision focused on the reasonable accommodation offered by Walgreens.  The court found that “[a]n employer may be able to satisfy its obligations involving an employee’s Sabbath observance by allowing the employee to swap shifts with other employees, or by encouraging the employee to obtain other employment within the company that will make it easier for the employee to swap shifts and offering to help him find another position.”  Patterson, 2017 WL 1224391 at *3.  Importantly, Walgreens was only required to make shift swapping available  — if Patterson could find another employee to swap.  Walgreens was not required to guarantee a shift swap.  “Walgreens was not required to ensure that Patterson was able to swap his shift, nor was it required to order another employee to work in his place.”  Id. at *4.

The Court further found that Walgreens’ offer to allow a transfer to a customer care representative position was also a reasonable accommodation, and that Patterson “had a duty to make a good faith attempt to accommodate his religious needs through the means offered by Walgreens.”  Id.

The Patterson decision is useful for Alabama employers.  It firmly establishes that the duty to accommodate an employee’s Sabbath observance is not unlimited.  In most circumstances, offering the employee the ability to swap shifts should suffice.  Nevertheless, every situation is unique and employers should proceed cautiously if they are contemplating taking an employment action based upon a Sabbath observance or other religious belief.