EEOC Hosts Virtual Hearing on Civil Rights Implications of COVID-19 Pandemic in the Workplace

In its first all-virtual/remote video-cast hearing, the Equal Employment Opportunity Commission (EEOC) discussed workplace civil rights implications of the COVID-19 pandemic for employees and employers.  (Transcript of the April 28, 2021 hearing is available here.)  During the hearing, Chairwoman Charlotte Burrows acknowledged that the EEOC must help employers navigate the new workplace landscape created by the pandemic, including equal opportunity issues related to telework, public health announcements, and more.  Commission members also acknowledged the need for EEOC guidance on COVID-19-related issues, such as accommodation under the Americans with Disabilities Act (ADA), vaccine incentives, mandatory vaccination policies, selection criteria for layoffs or furloughs, and return-to-work policies and challenges.

Not long after the hearing, the EEOC updated its guidance on COVID-19 to include additional information on vaccines, incentives, and the confidentiality of vaccination status.

The hearing itself included two panels of witnesses from, or representing, communities hit especially hard by COVID-19.  Members of the Commission asked the panelists various questions to gain insight on how the EEOC should address contentious workplace issues. The first panel was comprised of a senior economist and policy expert, directors of advocacy groups representing Asian Americans, migrant workers, and women, and the presidents and executive directors of the Society for Human Resource Management and the Lawyers’ Committee for Civil Rights Under Law. Members of the Commission asked the first panel how, following months of extended periods of telework, the EEOC could help employers determine whether in-person work is an essential function. Panelists suggested the EEOC focus on retaliation, specifically in the context of changes in schedules and remote work, as well as establishing best practice guidance for safely returning to physical work sites, safety standards, and vaccination education. Other topics raised by the Commission in the first panel included: the type of guidance needed from the EEOC to address recent heightened awareness of discrimination toward the Asian American and Pacific Islander communities during the COVID-19 pandemic; whether retaliation claims have increased during the pandemic, and how the EEOC could reach affected vulnerable groups; and the type of vaccination incentives employers should offer.

The second panel included an expert on the American-Indian community, economics consultants, national labor and health policy experts, senior attorneys and experts with various organizations that combat disability discrimination, age discrimination, religious and national origin discrimination, as well as a Senior Vice President and Assistant General Counsel at the Center for Workplace Compliance (a national employer association). In response to Commission questions, the second panel recognized a pandemic-related increase in failure to accommodate claims, especially with regard to teleworking accommodations, as well as an increase in workplace harassment claims arising in new contexts, including virtually and in remote call settings. The second panel also discussed the need for guidance regarding vaccine incentives and mandatory vaccine policies to help employers avoid potential Title VII violations.  With regard to harassment claims, panelists recommended a strong anti-harassment policy and modifications to training presentations to address some of these new contexts.

The EEOC is expected to issue additional guidance on these and other pandemic and post-pandemic workplace challenges soon.

Jackson Lewis attorneys will continue to monitor and report any further developments from the EEOC. In the meantime, if you have questions about the EEOC, or any employment law issues, please do not hesitate to contact Jackson Lewis attorneys.

Ninth Circuit Upholds Arbitration for Non-Signatory Defendant

California law is not typically seen as amiable to compelling employees to arbitrate their claims. However, in Franklin v. Community Regional Medical Center, ___ F.3d___(9th Cir. 2021), the Ninth Circuit panel upheld a motion to compel arbitration by a non-signatory to an arbitration agreement based on California law.

Isabelle Franklin was employed by a staffing agency and assigned to Community Regional Medical Center’s hospital (CRMC). Franklin signed a mediation and arbitration policy and agreement that required Franklin and the staffing agency to arbitrate “all disputes that may arise out of or be related to [Franklin’s] employment, including but not limited to the termination of [Franklin’s] employment and compensation.” Franklin also signed an assignment contract with the staffing agency when she was assigned to CRMC. The assignment contract set forth the terms of her assignment including her hourly wage, overtime rate, length of shifts, and business expense reimbursement. The assignment agreement also included an arbitration clause. CRMC and Franklin had no contracts between them.

Franklin worked at CRMC for two months and then brought a class and collective action against CRMC only, alleging various state and federal wage and hour violations, including that CRMC required Franklin to work during meal breaks and off-the-clock.

The district court granted CRMC’s motion to compel arbitration despite being a non-signatory to the contracts between Franklin and the staffing agency. The district court stated that Franklin’s allegations were “intimately founded in and intertwined with” her contracts and employment with the staffing agency. The district court held that, under California law, Franklin was equitably estopped from avoiding the arbitration provisions in her employment agreements with the staffing agency.

The Ninth Circuit panel affirmed the district court decision, holding that California law allows a non-signatory to invoke arbitration under the doctrine of equitable estoppel even when the signatory attempts to avoid arbitration by suing non-signatory defendants. The Ninth Circuit stated that the doctrine of equitable estoppel prevents a party from “playing fast and loose with its commitment to arbitrate.”

This case is instructive for employers who utilize staffing agencies and highlights the importance of understanding the agencies’ agreements with their employees. Moreover, staffing agencies and similar entities should review their contracts with employees to ensure their clients are encompassed within arbitration agreements they enter into with employees.

Jackson Lewis attorneys can assist in evaluating the enforceability of arbitration agreements and coverage, as well as assisting in developing arbitration agreements.

Seventh Circuit Upholds High Bar for Plaintiffs Filing Retaliation Claims

The Seventh Circuit Court of Appeals recently reaffirmed employers’ rights under Title VII to make merit-based hiring decisions, even when it means rejecting a candidate who recently raised a meritorious claim of discrimination.

In Robertson v. Wisconsin Department of Health Services, 949 F.3d 371, 374 (7th Cir. 2020), the plaintiff reported discriminatory conduct in the workplace which resulted in her supervisor’s termination.  The plaintiff then applied for her supervisor’s position but was not awarded the job.  She later complained that the candidate selected to replace her supervisor treated her less than ideally.  The district court rejected the plaintiff’s Title VII retaliation claim because she failed to establish that her prior complaint was the “but-for” cause of her not being promoted and because she couldn’t overcome her employer’s legitimate motive for hiring another candidate. The court further held that the new supervisor’s minor workplace slights are not adverse employment actions that can give rise to a claim for retaliation.

The Seventh Circuit agreed with the district court.  Although the employee claimed that she was “objectively the most qualified candidate” for the director-level position, the Seventh Circuit held that an employee’s “own opinions” about her qualifications were not enough to prove the company’s selection of another candidate was retaliatory.  Rather, the plaintiff had to show that there could be no dispute that she was “clearly better qualified” for the position.  Here, she could not do so because the employer documented its legitimate reasons for selecting another candidate.

The plaintiff also claimed her new boss retaliated against her by disregarding her thoughts and preventing her from performing tasks she was assigned under her previous supervisor.  The court held that being given the “cold shoulder” or “snubbed” by a supervisor is not a materially adverse action that supports a claim for retaliation.  Instead, plaintiffs must show a materially adverse action, like a “change in work hours, compensation, or career prospects.”

The Seventh Circuit’s ruling in Robertson reaffirms several core principles for employers.  First, when making any hiring or promotion decisions, especially when considering a candidate who recently engaged in protected activity, it is critical to document the selection process, including the legitimate business reason for selecting a particular candidate.  Second, not every workplace slight is retaliation.  However, employers should seek counsel before making significant changes to the hours, compensation, or job responsibilities of employees who recently engaged in protected activity.

Jackson Lewis attorneys are ready and able to help employers navigate the complexities of employee complaints and their effects on employment decisions.  Please contact us if you have questions or need assistance.


Balancing Public Employees’ Religious Rights with the Establishment Clause

When it comes to striking a balance between the religious rights of government employees and the government’s duty to avoid Establishment Clause violations, “context matters.”

In Kennedy v. Bremerton School District, 991 F.3d 1004 (9th Cir. 2021), the Ninth Circuit held that the public prayer by Joseph Kennedy, a football coach employed by the Bremerton School District, at the fifty-yard line immediately after football games violated the Establishment Clause and was not protected speech. This result was driven in large part by the following circumstances:

  • Kennedy spoke as a public employee rather than as a private citizen. Public employees who make statements pursuant to their official duties speak for the government rather than for themselves. Kennedy engaged in a public demonstration where he audibly prayed while kneeling in the middle of a football field, in the course of his duties as a football coach who was tasked with providing motivational speeches at the end of games, and in full view of his students and the public. Thus, Kennedy spoke as a public employee and his speech was not protected.
  • The school district had a compelling interest to avoid Establishment Clause violations. The government may not convey a message that a religion is favored or preferred, and the courts are particularly vigilant about monitoring for Establishment Clause violations in public schools. Kennedy had a long history of on-field religious activity, engaged in media blitzes to generate publicity regarding his on-field prayers, was intent on sending a message to students and the public, and allowed students to join in his prayers. Given these circumstances, an objective observer would believe that Kennedy’s actions were endorsed by the school district, and the school district was justified in limiting his speech to avoid an Establishment Clause violation.
  • The school district attempted to accommodate Kennedy’s religious beliefs. The school district, as Kennedy’s employer, attempted to engage in an interactive dialogue to accommodate his beliefs while avoiding Establishment Clause violations. It suggested praying in private locations or praying on the field after the stadium had emptied. Kennedy did not respond but indicated through the media that the only acceptable outcome would be for the school district to allow him to pray on the fifty-yard line immediately after games. The school district was not required to accommodate his request because it would constitute an Establishment Clause violation and, therefore, impose an undue hardship on the school district.

The U.S. Constitution enshrines and protects the right to free speech and religious liberty, but these rights are not boundless. The Establishment Clause compels government neutrality between religions, as well as between religion and non-religion, and may limit public employees’ rights when they are government actors. On the other hand, the Establishment Clause may not quash all of a government employee’s religious expression. The religious words and actions of public employees create scenarios that challenge government bodies to craft unique solutions by balancing the rights of the individual with the interests of the state.

Although federal, state, and local governments have additional requirements to consider, both public and private employers must tread carefully when encountering and accommodating their employees’ religious practices. Jackson Lewis attorneys are available to help guide employers through this process.

Take-Home Exposure for COVID-19 Fails in California District Court

  As COVID-19-related litigation increases, courts are being called upon to interpret the scope of employers’ duties to protect their employees with relation to the virus.  On May 10, 2021, a California federal judge dismissed an amended complaint brought by a spouse attempting to hold her husband’s employer liable for her COVID-19 infection.  The judge held that California’s worker’s compensation law barred the wife’s  claim, noting that the employer’s duty to provide a safe work environment is limited to the employer’s employees.  Corby and Robert Kuciemba vs. Victory Woodworks, Inc., No. 3:20-cv-09355-MMC (N.D. Cal. May 10, 2021).

In February 2021, the California District Court granted Victory Woodworks’ motion to dismiss Mrs. Kuciemba’s case, citing that her claims were barred because worker’s compensation was the exclusive remedy for her claims.

Mrs. Kuciemba amended her Complaint, arguing that Victory Woodworks did not exercise ordinary care to prevent exposure to COVID-19, as a result of which, Mr. Kuciemba was exposed to the virus, and brought home the virus on his clothes and other personal items.  This legal concept of “take-home exposure” is common in asbestos litigation, and is founded on the idea that employers and premises owners have a duty to exercise ordinary care to prevent exposure to asbestos due to asbestos fibers being carried on workers’ clothing.

Click here to read the full article on the Jackson Lewis California Workplace Law blog.

Amendment to Florida Rules Increases Likelihood of Summary Judgment in State Court

The Florida Supreme Court recently amended Florida Rule of Civil Procedure 1.510 (Summary Judgment), adopting the less restrictive federal summary judgment standard as articulated by the United States Supreme Court in Celotex Corp. v. Catrett, 477 U.S. 317 (1986), Anderson v. Liberty Lobby, Inc., 477 U.S. 242 (1986), and Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574 (1986).  Summary judgement is the procedural mechanism whereby lawsuits may be disposed of prior to a trial if the judge determines that, based on the uncontested material facts in the case, there is no way for the nonmoving party to win.  The amended Rule 1.510 will apply to any summary judgment motion decided on, or after, May 1, 2021, including in pending cases.  See In re Amends. to Fla. R. Civ. P. 1.510, No. SC20-1490, 309 So. 3d 192 (Fla. Dec. 31, 2020).

In its decision to amend Rule 1.510, the Florida Supreme Court noted key distinctions between the existing federal and Florida jurisprudence with regard to summary judgment motions. First, federal courts have long applied a far narrower definition to the term “genuine issue of material fact.” When determining whether a genuine issue of material fact exists, federal courts ask whether “the evidence is such that a reasonable jury could return a verdict for the nonmoving party.”  In re Amends. to Fla. R. Civ. P. 1.510, 309 So. 3d at 193 (internal quotations omitted).  Florida courts, on the other hand, have historically denied summary judgment where any competent evidence creates an issue of fact, no matter how “credible or incredible, substantial or trivial,” so long as “the slightest doubt is raised.”  Id.  As a result, the vast majority of Florida state court summary judgment motions are denied, and Florida litigants are routinely forced to spend significant time and resources litigating and trying incredibly weak cases (or entering into large settlements).  This chain of events is far less common under the federal summary judgment standard, which attempts to nip meritless lawsuits in the bud. Taking all of this into account, the Florida Supreme Court explained that its objectives in adopting the federal standard are “to improve the fairness and efficiency of Florida’s civil justice system, to relieve parties from the expense and burdens of meritless litigation, and to save the work of juries for cases where there are real factual disputes that need resolution.”  Id. at 194.

For many state court practitioners and their clients, the new Florida standard is a positive change. From an employment litigation defense perspective, the change will afford a greater opportunity to dispose of certain cases early on and will reduce the pressure on defendants to pay large settlements to avoid the costs of defending weak cases through trial.

If you have any questions regarding the new Florida summary judgment standards, or any other employment law questions, please do not hesitate to contact Jackson Lewis.

California Court Upholds Employer’s Refusal To Hire Applicant Who Failed Pre-Employment Drug Test Due To Medical Marijuana Use

A federal court in California dismissed the disability discrimination claims of a job applicant who failed a pre-employment drug test due to medical marijuana use, holding that he did not sufficiently prove that he was disabled.  More specifically, the court concluded that the applicant’s “subjective belief” that he suffered from “chronic back pain” was insufficient to establish that he was disabled for purposes of the California Fair Employment and Housing Act (“FEHA”) where he failed to “provide any supporting documentation . . . to substantiate the nature of his purported physical disability or any consequent restrictions or limitations on his ability to perform his work.” Espindola v. Wismettac Asian Foods, Inc., No. 2:20-cv-03702 (C.D. Cal. Apr. 28, 2021).

Click here to read the full article on the Jackson Lewis website.

Connecticut High Court to Decide If Women-Only Workout Area Violates State Anti-Discrimination Law

  On May 7, 2021, the Connecticut Supreme Court will hear oral argument in the case of Commission on Human Rights & Opportunities (CHRO) v. Edge Fitness, LLC, et al., SC 20538 (Conn.).  The case presents an issue of first impression and arises out of the State of Connecticut’s claim that a separate women-only workout area maintained by Edge Fitness violates the state’s public accommodations statute, CGS 46a-64.

Connecticut’s CGS 46a-64 prohibits businesses (and others) from discriminating, segregating, or denying anyone full and equal accommodations in any place of public accommodation because of their sex, gender identity, race, color, age, national origin, or any other group identified in the statute.

Since approximately 2014, Edge Fitness has offered a “women only” workout area (WOA) in its clubs. The purpose of the WOAs is to give female members the option of working out in a private, female-only area where they can be more comfortable, less self-conscious, and more able to enjoy the experience of exercising.

At the public hearing of this matter, University of Connecticut Professor Diane Quinn, PhD, testified about the psychological concepts of sexual objectification and self-objectification many women experience when exercising in the presence of men. In her opinion, the objectification that women experience in places like exercise clubs can lead to body shame and self-consciousness, impeding women’s athletic performance and discouraging them from exercising. The WOA is a way of addressing those issues. Dr. Quinn also testified that men and women are not the same in this regard and that men do not experience sexual objectification or self-objectification to the degree, or in the same way, that women do.

In 2016, the WOA was challenged by a male former gym member on the grounds that it violated Connecticut’s public accommodation anti-discrimination statute because it discriminated against men. Edge Fitness received favorable rulings before the Office of Public Hearings and the Superior Court. In July 2020, Superior Court Judge John Cordani held that the WOA does not violate the state’s public accommodations law. He concluded, “[T]he uncontroverted evidence in the record, which is supported by common experience, is that if the women only work out areas were eliminated, and women were deprived of the choice to exercise without men present, women would suffer from sexual objectification, extreme embarrassment, anxiety, stress, and many would choose not to exercise in public accommodations.”

The CHRO appealed again and the Supreme Court selected the case for an immediate review. Amicus briefs were filed by the Jewish Federation of Greater Hartford, the Muslim Coalition of Connecticut, and approximately a dozen other religious organizations in support of Edge Fitness and the WOA. The ACLU, GLBTQ Legal Advocates & Defenders, and the Quinnipiac University School of Law Legal Clinic filed amicus briefs on behalf of the state.

The case has been litigated by James Shea and Allison Dearington of Jackson Lewis’ Hartford office.

If you have questions about public accommodations or any other employment law issues, please do not hesitate to contact Jackson Lewis.

2,000 COVID-19-Related Employment Lawsuits Filed in the U.S.: An Analysis of the Data and Trends

On April 6, 2021, the total number of COVID-19-related employment complaints filed in United States courts passed the 2,000 mark.  Although it took eight months to reach the first 1,000 complaints (March–November 2020), it took less than five months to go from 1,000 to 2,000. Indeed, December 2020 through March 2021 included the four busiest months for new COVID-19-related employment complaints since the start of the pandemic.

As the country accelerates past the 2,000-complaint milestone, we note the following facts and trends using Jackson Lewis’ COVID-19 Employment LitWatch:

  • States with the most complaints filed are California (487), New Jersey (267), Florida (142), New York (137), Ohio (127), Texas (105), and Michigan (74).  Since January 1, 2021, states with the most, new complaints (in descending order) are California, New Jersey, Ohio, New York, Florida, Texas, and Michigan.
  • California is beginning to eclipse the rest of the country. Since January 1, 2021, California alone accounts for approximately 29% of all complaints filed in the United States, up from 21.4% of the first 1,000 complaints.  New Jersey holds steady in the number two spot, with 13% of complaints filed in 2021, slightly up from 12.6% of first 1,000 complaints.  Together, California and New Jersey account for 42% of all complaints filed in 2021.
  • California and New Jersey plaintiffs continue to flock to state court. Since January 1, 2021, 96.6% of California complaints and 89% of New Jersey complaints have been filed in state court.  During that same time period, outside of California and New Jersey, approximately 57% of complaints were filed in state court, and 43% in federal court.
  • Nearly all complaints now include allegations of wrongful termination. Since January 1, 2021, approximately 83.3% of complaints include allegations of wrongful termination.  This number has been steadily increasing throughout the pandemic.  Approximately 74% of the first 1,000 complaints included an allegation of wrongful termination.
  • The Healthcare industry continues to bear the brunt of COVID-19 litigation, but the Retail and Consumer Goods industry is experiencing a sharp increase. Since January 1, 2021, approximately 25.1% of all new complaints have targeted the Healthcare industry, which has been fairly constant throughout the pandemic.  The Retail and Consumer Goods industry, however, is experiencing a dramatic increase from 7.5% of the first 1,000 complaints filed, to approximately 13.7% of complaints filed in 2021.
  • “Disability, Leave & Accommodation,” “Discrimination/Harassment,” and “Retaliation/Whistleblower” continue to account for nearly all claims. These categories of complaints accounted for approximately 76% of the first 1,000 complaints but jumped to 85.5% of all complaints filed in 2021.
  • Class Action Lawsuits. Approximately 86 COVID-19-related employment class action complaints have been filed across the United States, primarily in California (36), Florida (14), Illinois (6), and New York (6).  Eighteen of these class actions were filed in 2021.

If you have any questions regarding COVID-19-related litigation, or any other employment law issues, do not hesitate to contact Jackson Lewis attorneys.

Federal Disability Discrimination Law Does Not Require Websites Be Accessible, Appeals Court Holds

A website is not a “place of public accommodation” and an inaccessible website is not necessarily equal to the denial of goods or services, a federal appeals court has held in a groundbreaking decision on disability discrimination under Title III of the Americans with Disabilities Act (ADA). Gil v. Winn-Dixie Stores, Inc., No. 17-13467 (11th Cir. Apr. 7, 2021).

While the Eleventh Circuit joins several other circuits in holding a website is not a “place of public accommodation” under Title III, it went further in expressly holding that, under the facts of the case, an inaccessible website is not necessarily tantamount to the denial of goods or services because the website lacked an auxiliary aid that would enable the website to be read aloud by screen-reader technology.

Click here  to read the full article on the Jackson Lewis website.