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Telecommuting | Required Reasonable Accommodation Under the ADA?


by Jack B. HarrisonJack B. Harrison

In what should be a decision of great importance for employers, the United States Court of Appeals for the Sixth Circuit issued a decision on April 22, 2014, holding that employers may be required under the Americans with Disabilities Act (“ADA”) to allow telecommuting as a “reasonable accommodation” for a disabled employee.  The Court of Appeals rendered this decision despite evidence presented by the employer that personal interaction with other employees and customers was an essential function of the position held by the employee.

In EEOC v. Ford Motor Company, the employee, Jane Harris was employed as a resale buyer for Ford.   In her position as a resale buyer, Harris purchased steel and resold it to entities that manufactured and supplied vehicle parts to Ford’s plants.  Ford took the position that the position of resale buyer was “highly interactive,” arguing that the interactions between resale buyers and those with whom they deal professionally should optimally occur face to face.

Throughout her career, Harris repeatedly had attendance issues.  In 2009, she requested that she be allowed to telecommute as an accommodation for her irritable bowel syndrome.  Ford investigated possible ways in which to accommodate the request, but ultimately rejected Harris’ request, concluding that her job required face to face interactions.  Ford concluded that if Harris was unable to be physically present for her work, then she did not meet the essential qualifications for the job.

Following the denial of her request, Harris sued Ford, with the EEOC ultimately pursuing the case on her behalf.  Ford then moved for summary judgment, arguing that face to face interactions were an essential function of the job of resale buyer.  Because Harris was unable to be physically present, Ford argued that she was not “otherwise qualified” for the position as required by the ADA.  The district court accepted Ford’s arguments and granted summary judgment.  In discussing whether telecommuting is a reasonable accommodation in the case of Harris, the district court stated, “in general, courts have found that working at home is rarely a reasonable accommodation.”

The EEOC then appealed the decision of the district court to the United States Court of Appeals for the Sixth Circuit.  On appeal, the Court of Appeals reversed the lower court decision.  Unlike the district court, the Court of Appeals did not defer to the employer’s conclusion that being physically present was an essential function of Harris’ position as resale buyer.  Rather, the Court of Appeals reviewed other factors, such as the employee’s own sense of how much of her job involved face to face interactions and how much took place via conference calls.  The Court of Appeals concluded that based on the entire record, it was error for the district court to conclude, as a matter of law, that Harris needed to be physically present at the office to perform her job as a resale buyer.

The Court of Appeals went even further by noting that prior decisions holding that being physically present in the workplace is an essential function of a particular position may well be based on antiquated notions of the “workplace.”  The Court of Appeals stated:

When we first developed the principle that attendance is an essential requirement of most jobs, technology was such that the workplace and an employer’s brick-and-mortar location were synonymous. However, as technology has advanced in the intervening decades, and an ever-greater number of employers and employees utilize remote work arrangements, attendance at the workplace can no longer be assumed to mean attendance at the employer’s physical location.  Instead, the law must respond to the advance of technology in the employment context, as it has in other areas of modern life, and recognize that the “workplace” is anywhere that an employee can perform her job duties. Thus, the vital question in this case is not whether “attendance” was an essential job function for a resale buyer, but whether physical presence at the Ford facilities was truly essential. Determining whether physical presence is essential to a particular job is a “highly fact specific” question. Hoskins, 227 F.3d at 726. Accordingly, we consider several factors to guide our inquiry, including written job descriptions, the business judgment of the employer, the amount of time spent performing the function, and the work experience of past and present employees in the same or similar positions. See 29 C.F.R. § 1630.2(n)(2).

Employers, particularly those within the jurisdiction of the Sixth Circuit, should find this decision troubling, particularly given the refusal of the Court of Appeals to defer to the employer's business judgment in managing its workforce.  In response to this decision, prudent employers should carefully review their job descriptions to insure that where the employer sees physical presence as an essential function of a position, such a requirement is clearly delineated in the job description.  Additionally, when an employer has a telecommuting policy, those policies should be reviewed to insure that they are narrowly drafted to specifically define when such an employment arrangement is allowed.

NLRB Decision Impacts Employer Social Media Policies


by Jack B. HarrisonJack B. Harrison

On April 22, 2014, an administrative law judge for the National Labor Relations Board (“NLRB”) held that certain provisions of the Kroger Co. of Michigan’s online communication policy was unlawfully broad because specific provisions of the policy could reasonably be interpreted as infringing upon employees rights under the National Labor Relations Act.  Specifically, the decision held that the provisions at issue could be interpreted as unlawful limitations on employees’ rights under Section 7 of the Act to “self-organization, to form, join, or assist labor organizations, to bargain collectively through representatives of their own choosing, and to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection, and shall also have the right to refrain from any or all of such activities.”

The four specific policy provisions that were of concern to the Board in this decision follow:

  1. If you identify yourself as an associate of the Company and publish any work-related information online, you must use this disclaimer: “The postings on this site are my own and do not necessarily represent the postings, strategies or opinions of The Kroger Co. family of stores.”

  2. You must comply with copyright, fair use and financial disclosure laws, and you must not use without permission or compromise in any way the Company’s intellectual property assets (like copyrights, trademarks, patents or trade secrets –including, for example, Kroger or banner logos, or trade names of products, or non-public information about the Company’s business processes, customers or vendors).

  3.  Confidential and proprietary information should not be discussed in any public forum unless it has been publicly reported by the Company. Confidential and proprietary information includes but is not limited to: financial results, new store designs, current or future merchandising initiatives, and planned technology uses or applications. Do not comment on rumors, speculation or personnel matters.

  4. When online, do not engage in behavior that would be inappropriate at work—including, but not limited to, disparagement of the Company’s (or competitors’) products, services, executive leadership, employees, strategy and business prospects.

In each instance, the Board concluded that the provisions were unlawfully broad, in that a broad application of these restrictions would, in the Board’s view, necessarily implicate an employee’s legitimate Section 7 activity.  For example, the Board found unlawful the following sentence included in these policies: “Do not comment on rumors, speculation or personnel matters.”  The Board’s reasoning for finding this statement unlawful was that a “rule prohibiting employees from commenting on “personnel matters” strikes at the heart of Section 7 activity,” in that this rule could arguably lead employees to believe that they were prohibited from discussing conditions of employment and wages with union representatives, a right protected by Section 7.

The important learning for employers from this decision is that they must be cautious in the language used in Social Media policies to insure that they do not potentially reach activity protected by the National Labor Relations Act.  In drafting these policies, prudent employers should adhere closely to the language provided in the Board’s Social Media Policy Guidance Memoranda, keeping in mind that the Board has made it clear that it will interpret even the language contained in the sample policies in its own Memoranda very narrowly.

With the dramatic increase in the use of social media in the workplace and by employees outside the workplace, it is important that employers have policies in place that both protect their interests and can withstand Board scrutiny.  Additionally, as the law in this area is rapidly changing, employers must constantly review their social media policies to insure that they are consistent with the current state of the law.

Kentucky Enacts New Data Breach Law


Jospeh S. Burns

by Joseph S. Burns

The Kentucky General Assembly has enacted a new law regarding data breaches (H.B. 232), making it the 47th state to have a data breach notification law.  The new laws will take effect on July 15, 2014.

The new law applies to any person or business conducting business in Kentucky that is not otherwise governed by Title V of the Gramm-Leach-Bliley Act (“GLBA”) or the Health Insurance Portability and Accountability Act (“HIPAA”).  The law covers unencrypted unredacted computerized “personally identifiable information,” which is defined as an individual’s first name and (a) a driver’s license number, (b) bank or credit card account number, or (c) social security number.   

The duty to notify under the new law is triggered when unencrypted unredacted computerized data is acquired in an unauthorized fashion, thereby compromising the security of an individual’s personally identifiable information.  After discovering a breach, the information holder must notify any Kentucky resident whose personally identifiable information is reasonably believed to have been acquired by an unauthorized person.  The effected individual(s) must be contacted in writing without “unreasonable delay.”  While the information holder is not required to notify the Kentucky Attorney General, if more than 1,000 persons are affected by the discloser, the information holder must notify consumer reporting agencies.

For businesses, the new law highlights the importance of (i) encrypting electronic data; and (ii) maintaining policies and procedures regarding data security and the investigation of security breaches, and training employees on such policies and procedures.

Don't Gloss Over Boilerplate Provisions


by Joseph S. BurnsJoseph S. Burns

On March 27, 2014, in a decision styled Biotronik AG v. Conor Medsystems Ireland, Ltd., the New York Court of Appeals highlighted, in a 4-3 decision, the pitfalls of glossing over boilerplate contract language, when it ruled that a “no consequential damages” clause in an agreement did not preclude the plaintiff from proceeding with a $100 million claim for lost profits.

Plaintiff, an exclusive distributor of defendant’s medical devices, sued for breach of contract – claiming lost profits – when the defendant terminated the distribution agreement. A clause in the agreement provided as follows: "Neither party shall be liable to the other for any indirect, special, consequential, incidental, or punitive damages with respect to any claim arising out of this agreement (including without limitation its performance or breach of this agreement) for any reason."  Relying on this provision, defendant argued that plaintiff’s claim for lost profits was clearly barred, as lost profits fell within the definition of consequential damages.

It is generally believed that lost profits – particularly those that do not directly flow from a breach of the agreement – are consequential damages.  The Biotronik court pointed out, however, that lost profits may be either general or consequential damages, depending on whether the non-breaching party bargained for such profits and such profits were the direct and immediate fruits of the contract – i.e., such profits were a direct and likely result of the breach. Indeed, after conducting a very fact-intensive analysis, the court concluded that plaintiff’s lost profits should be considered general damages (rather than consequential) because the damages were a direct and probable result of the breach, even though the profits would have been earned pursuant to a contract other than the breached agreement. As such, the court concluded that plaintiff’s claim for loss profits was not barred by the provision prohibiting the recovery of consequential damages.

The takeaway from this decision is that attention should be paid to these sorts of standard boilerplate clauses. Indeed, such provisions should be crafted to avoid the scenario in Biotronik. For instance, consider the following:

  • Identify with specificity any and all damages that should be excluded.  For example, the limitation of liability provision could specify that the other party shall not, in any event, be entitled to recover “lost profits, lost revenue, lost income, or any revenue arising from loss of anticipated business, even if such damages were or should have been foreseeable by the breaching party.”

  • Include a liquidated damages provision that excludes recovery for actual damages, and be sure to note that such sum is not a penalty, but a reasonable estimate of damages in the event of a breach.

  • Specify that the limitation of liability provision is an integral part of the agreement that has been bargained for by the parties, and that such provision will remain in effect even if any other provision of the agreement fails of its essential purpose.

Sixth Circuit Strikes Down Merger of Ohio Hospitals


Joseph S. Burns

by Joseph S. Burns

In a unanimous opinion on April 22, 2014, a three-judge panel of the Sixth Circuit Court of Appeals in Cincinnati ordered ProMedica Health System, Inc. (“ProMedica”) to unwind its merger with rival St. Luke’s Hospital (“St. Luke”) in Lucas County, Ohio. 

In 2010, ProMedica, a nonprofit healthcare system based in Toledo, entered into a merger agreement with St. Luke’s, a community hospital located in Lucas County.  In 2011, the Federal Trade Commission (“FTC”) ordered ProMedica to divest St. Luke’s, citing antitrust laws and finding that the merger of the two hospitals would impede competition and create an unfair advantage in the market.  ProMedica subsequently filed a petition to overturn the FTC’s ruling.

The Sixth Circuit upheld the FTC’s ruling. Given that it controlled 46.8 percent of the healthcare market in Lucas County prior to the merger, ProMedica was already the “dominant” healthcare player in Lucas County, according to the Court. Adding St. Luke’s – which controlled approximately 11.5 percent of the county’s healthcare market prior to the merger – would lead to a tremendous increase in concentration in a market that already was highly concentrated.  The merger, according to the Court, would provide ProMedica with undue leverage to control reimbursement rates with health insurers, leading to higher prices for patients.

The Sixth Circuit’s ruling signals a difficult challenge for hospitals that are more aggressively seeking mergers to establish economies of scale and boost their bargaining power with insurers.

Arbitration Agreements Waiving Employees' Rights to Class & Collective Actions are Enforceable


by Jack B. HarrisonJack B. Harrison

On March 21, 2014, the U.S. Court of Appeals for the Eleventh Circuit, in Walthour v. Chipio Windshield Repair, LLC, et al., joined four other Circuit Courts of Appeals in holding that an arbitration agreement that waives the right of an employee to bring a class or collective action under the Fair Labor Standards Act (“FLSA”) is enforceable.  In so holding, the Eleventh Circuit joined the Second, Fourth, Fifth, and Eighth Circuits in giving employers support regarding the enforceability of class and collective action waivers.

In Walthour, the employees had signed arbitration agreements with their employer, under which they agreed to arbitrate all claims arising out of their employment and to pursue claims only individually, rather than collectively or as a class.  Additionally, the agreement at issue specifically waived the ability of the employees to bring a class action in the arbitration context.   However, even in the face of the agreement, once the employees’ employment ended, the employees brought a collective action against the employer under the FLSA.  In this lawsuit, the employees alleged that the employer failed to pay them the required minimum wage and overtime and failed to maintain records required by the FLSA.  The employer then filed a motion to compel arbitration based on the agreement that the employees had signed.  The federal district court granted the motion, a decision that was then appealed to the Court of Appeals.

After reviewing the language of the FLSA, its legislative history, and Supreme Court precedents interpreting the FLSA, the Court of Appeals dismissed the argument made by the employees that the right to bring a collective action under the FLSA is a non-waivable substantive right, concluding that there was no “congressional command” under which the FLSA had overridden the requirement of the Federal Arbitration Act (“FAA”) that collective action waivers in arbitration agreements were to be enforced.

Based on the FAA’s “liberal federal policy favoring arbitration agreements,” the Court of Appeals concluded that the agreements in question were enforceable under the FAA.  Based on multiple Supreme Court precedents (American Express Co. v. Italian Colors Rest. (2013); AT&T Mobility LLC v. Concepcion (2011); Gilmer v. Interstate/Johnson Lane Corp. (1991)), the Court of Appeals concluded that it was compelled to “rigorously enforce arbitration agreements according to their terms.” (quoting American Express Co. v. Italian Colors Rest.).

The importance of this decision for employers is that the Eleventh Circuit's decision in Walthour is consistent with decisions by other Courts of Appeals and with recent Supreme Court decisions regarding the enforceability of arbitration agreements that include waivers of class and collective actions by employees.  However, prudent employers should note that the NLRB continues to take the position that waivers such as this violate the rights of employees to engage in protected activity in concert under the National Labor Relations Act.  As a result, the NLRB continues to bring charges for unfair labor practice against employers that include class and collective action waivers in their arbitration agreements.

More Guidance on Background Checks from EEOC and the FTC


by Jack B. HarrisonJack B. Harrison

The U.S. Equal Employment Opportunity Commission (EEOC) and the Federal Trade Commission (FTC) jointly released two documents regarding the use of background checks in the workplace on March 10, 2014.  These two documents, one aimed at employers and one aimed at employees and job applicants, can be located on the EEOC’s website.  The documents are titled: Background Checks: What Employers Need to Know and Background Checks: What Job Applicants and Employees Should Know.  While these documents offer very little new guidance, they do serve to remind employers of the “best practices” to be followed in the use of background checks in the employment context.

The documents do make it clear that “it’s not illegal for an employer to ask questions about an applicant’s or employee’s background, or to require a background check.”  However, they also caution employers that the use of background checks must comport with the federal Fair Credit Reporting Act (FCRA), if the background information is being obtained from a consumer reporting agency (CRA), as well as Title VII of the Civil Right Act of 1964.

Among the guidance offered employers in these documents is the following:

  • In all cases, make sure that you're treating everyone equally. It's illegal to check the background of applicants and employees when that decision is based on a person's race, national origin, color, sex, religion, disability, genetic information (including family medical history), or age (40 or older). For example, asking only people of a certain race about their financial histories or criminal records is evidence of discrimination.
  • Except in rare circumstances, don't try to get an applicant's or employee's genetic information, which includes family medical history. Even if you have that information, don't use it to make an employment decision. (For more information about this law, see the EEOC's publications explaining the Genetic Information Nondiscrimination Act, or GINA.) Don't ask any medical questions before a conditional job offer has been made. If the person has already started the job, don't ask medical questions unless you have objective evidence that he or she is unable to do the job or poses a safety risk because of a medical condition.
  • Apply the same standards to everyone, regardless of their race, national origin, color, sex, religion, disability, genetic information (including family medical history), or age (40 or older). For example, if you don't reject applicants of one ethnicity with certain financial histories or criminal records, you can't reject applicants of other ethnicities because they have the same or similar financial histories or criminal records.
  • Take special care when basing employment decisions on background problems that may be more common among people of a certain race, color, national origin, sex, or religion; among people who have a disability; or among people age 40 or older. For example, employers should not use a policy or practice that excludes people with certain criminal records if the policy or practice significantly disadvantages individuals of a particular race, national origin, or another protected characteristic, and does not accurately predict who will be a responsible, reliable, or safe employee. In legal terms, the policy or practice has a "disparate impact" and is not "job related and consistent with business necessity."
  • Be prepared to make exceptions for problems revealed during a background check that were caused by a disability. For example, if you are inclined not to hire a person because of a problem caused by a disability, you should allow the person to demonstrate his or her ability to do the job - despite the negative background information - unless doing so would cause significant financial or operational difficulty.
  • Any personnel or employment records you make or keep (including all application forms, regardless of whether the applicant was hired, and other records related to hiring) must be preserved for one year after the records were made, or after a personnel action was taken, whichever comes later. (The EEOC extends this requirement to two years for educational institutions and for state and local governments. The Department of Labor also extends this requirement to two years for federal contractors that have at least 150 employees and a government contract of at least $150,000.) If the applicant or employee files a charge of discrimination, you must maintain the records until the case is concluded.
  • Once you've satisfied all applicable recordkeeping requirements, you may dispose of any background reports you received. However, the law requires that you dispose of the reports - and any information gathered from them - securely. That can include burning, pulverizing, or shredding paper documents and disposing of electronic information so that it can't be read or reconstructed. For more information, see "Disposing of Consumer Report Information? Rule Tells How" at

Both the EEOC and FTC have made it clear that enforcement of Title VII and the FCRA remains a top priority.  Thus, employers who make use of background checks should review their processes, policies, and procedures to ensure that they comply with these laws.  Additionally, prudent employers should also review their respective state’s laws regarding the use of background checks to ensure that they are in compliance with those laws as well.

Voluntary Job Transfer = Adverse Employment Action? Maybe.


by Jack B. HarrisonJack B. Harrison

Can a lateral employment transfer, specifically one requested by an employee, be an adverse employment action that triggers potential liability for an employer under federal antidiscrimination laws?  In a recent decision, Deleon v. Kalamazoo County Road Commission, the United States Court of Appeals for the Sixth Circuit held that such a lateral transfer, even where initially requested by an employee, may be considered an adverse employment action when the terms and conditions of the transfer are intolerable.  In setting forth this standard, the Court of Appeals stated, a “transfer may constitute a materially adverse employment, even in the absence of a demotion or pay decrease, so long as the particular circumstances present give rise to some level of objective intolerability.”

In Deleon, the plaintiff was a fifty-three year old Hispanic male of Mexican descent.  He worked as an Area Superintendent for the defendant.  In this job, the plaintiff supervised road maintenance activities and repairs.  In 2008, the employee applied for the position of Equipment and Facilities Superintendent, which would have been a lateral transfer.  The plaintiff applied for this job because he believed that the position of Equipment and Facilities Superintendent would provide him with a better potential for career advancement.  The posting for the open position specifically described the working conditions in the position as “primarily in the office and in garage where there is exposure to loud noises and diesel fumes.”  While the plaintiff did not initially receive the position, the individual who did receive the position left it shortly thereafter. Upon not initially receiving the position, the plaintiff complained to his supervisors.  However, in 2009, the plaintiff was transferred to the Equipment and Facilities Superintendent position.  Shortly after receiving the position he had originally sought, the plaintiff began to complain about the diesel fumes and alleged that he suffered from bronchitis and sinus headaches as a result of the working conditions.  Ultimately, the employee was hospitalized for adverse health effects and stress that he attributed to his working conditions.  The plaintiff then took eight months of FMLA leave. When he was cleared to return to work, he discovered that his employer had already terminated him because he had exhausted his leave.

Following this, the plaintiff sued the employer asserting claims for race, national origin, and age discrimination.  In his Complaint, the plaintiff claimed that the job transfer was an adverse employment action, in that he was set up to fail.  In granting summary judgment to the employer, the District Court determined that transferring an employee to a position the employee applied for was not an adverse action.

On appeal, the Court of Appeals stated that generally reassignments without changes in salary, benefits, or title would not be considered an adverse employment action.  However, the Court of Appeals indicated that a job transfer could perhaps be considered an adverse employment action where it constitutes a constructive discharge.  Under this analysis, the Court of Appeals noted that for an employee to show that he/she had been constructively discharged as a result of a job transfer, the employee must show that the working conditions in the new position would be objectively intolerable to a reasonable person.  In this specific case, the Court of Appeals determined that the plaintiff had effectively shown that his working conditions were objectively intolerable.

In dissent, Judge Sutton describes the very difficult position employers now face.  As Judge Sutton stated: “Whatever the correct interpretation of the employment retaliation laws may be, they surely stop at this line: imposing liability on employers whether they grant or deny an employee’s request for a transfer.”  Judge Sutton further described the Hobson ’s choice now facing employers, where an employer gives an employee exactly what the employee requests, a job transfer, yet under the majority’s analysis, the employee may still have a cognizable claim. According to Judge Sutton, “It follows under the majority’s analysis that, when the employer denies what the employee wants, he also has a cognizable claim.”  

As a result of this decision, employers, defending a discrimination or retaliation claim, cannot simply assert that the employee previously requested the new position as an absolute defense to liability in a case where the employee is alleging that a transfer represents an adverse employment action.  It is possible that the employer in this case may appeal to the United States Supreme Court asking it to weigh in on this important issue.  Employers should follow these important developments and keep them in mind as they transfer employees laterally, even at the employee’s request.

New Guidance Issued by the EEOC on Religious Accommodation


by Jack B. HarrisonJack B. Harrison

As employers have become increasingly aware, Title VII of the Civil Rights Act of 1964 prohibits discrimination in employment based on religion, including religious practices.  The result of this prohibition against religious discrimination is that employers are required to reasonably accommodate employees' sincerely held religious practices except in cases where such an accommodation would impose an undue burden on the employer.  Often, this results in an employer being forced to make exceptions to their existing policies and rules in the workplace.

Consistent with Title VII, the United States Equal Employment Opportunity Commission ("EEOC") recently provided employers with new guidance regarding religious workplace accommodations.  Religious Garb and Grooming in the Workplace: Rights and Responsibilities, issued by the EEOC, provides guidance to employers in accommodating employees religious requests and practices, including clothing, religious dress, head coverings, hair styles, and facial hair.  The document contains twenty-one case-specific examples of religious accommodation to guide employers.  According to the EEOC guidance:

Examples of religious dress and grooming practices include wearing religious clothing or articles (e.g., a Muslim hijab (headscarf), a Sikh turban, or a Christian cross); observing a religious prohibition against wearing certain garments (e.g., a Muslim, Pentecostal Christian, or Orthodox Jewish woman's practice of not wearing pants or short skirts), or adhering to shaving or hair length observances (e.g., Sikh uncut hair and beard, Rastafarian dreadlocks, or Jewish peyes (sidelocks)).

In the document, the EEOC points out that the number of religious discrimination charges filed against employers has nearly doubled since 2007.  As a result, the EEOC reminds employers that the definition of "religion" has been interpreted very broadly in the Title VII context, including religious beliefs that are "new, uncommon, not part of formal church or sect, only subscribed to by a small number of people or that seem illogical or unreasonable to others" or beliefs that are based on some non-theistic moral or ethical code or system.  The EEOC points out that "[b]ecause this definition is so broad, whether or not a practice or belief is religious typically is not disputed in Title VII religious discrimination cases."

Some of the case specific examples provided by the EEOC in the document include the following:

What if an employer questions whether the applicant's or employee's asserted religious practice is sincerely held?

Title VII's accommodation requirement only applies to religious beliefs that are "sincerely held." However, just because an individual's religious practices may deviate from commonly-followed tenets of the religion, the employer should not automatically assume that his or her religious observance is not sincere. Moreover, an individual's religious beliefs - or degree of adherence - may change over time, yet may nevertheless be sincerely held. Therefore, like the "religious" nature of a belief or practice, the "sincerity" of an employee's stated religious belief is usually not in dispute in religious discrimination cases. However, if an employer has a legitimate reason for questioning the sincerity or even the religious nature of a particular belief or practice for which accommodation has been requested, it may ask an applicant or employee for information reasonably needed to evaluate the request.

EXAMPLE 1 | New Observance

Eli has been working at the Burger Hut for two years. While in the past he has always worn his hair short, he has recently let it grow longer. When his manager advises him that the company has a policy requiring male employees to wear their hair short, Eli explains that he is a newly practicing Nazirite and now adheres to religious beliefs that include not cutting his hair. Eli's observance can be sincerely held even though it is recently adopted.

EXAMPLE 2 | Observance That Only Occurs at Certain Times or Irregularly

Afizah is a Muslim woman who has been employed as a bank teller at the ABC Savings & Loan for six months. The bank has a dress code prohibiting tellers from wearing any head coverings. Although Afizah has not previously worn a religious headscarf to work at the bank, her personal religious practice has been to do so during Ramadan, the month of fasting that falls during the ninth month of the Islamic calendar. The fact that Afizah adheres to the practice only at certain times of the year does not mean that her belief is insincere.

Can an employer exclude someone from a position because of discriminatory customer preference?

No. If an employer takes an action based on the discriminatory religious preferences of others, including customers, clients, or co-workers, the employer is unlawfully discriminating in employment based on religion. Customer preference is not a defense to a claim of discrimination.

EXAMPLE 3 | Employment Decision Based on Customer Preference

Adarsh, who wears a turban as part of his Sikh religion, is hired to work at the counter in a coffee shop. A few weeks after Adarsh begins working, the manager notices that the work crew from the construction site near the shop no longer comes in for coffee in the mornings. When the manager makes inquiries, the crew complains that Adarsh, whom they mistakenly believe is Muslim, makes them uncomfortable in light of the anniversary of the September 11th attacks. The manager tells Adarsh that he will be terminated because the coffee shop is losing the construction crew's business. The manager has subjected Adarsh to unlawful religious discrimination by taking an adverse action based on customer preference not to have a cashier of Adarsh's perceived religion. Adarsh's termination based on customer preference would violate Title VII regardless of whether he was correctly or incorrectly perceived as Muslim, Sikh, or any other religion.

Employers may be able to prevent this type of religious discrimination from occurring by taking steps such as training managers to rely on specific experience, qualifications, and other objective, non-discriminatory factors when making employment decisions. Employers should also communicate clearly to managers that customer preference about religious beliefs and practices is not a lawful basis for employment decisions.

Prudent employers should carefully review this document from the EEOC, as well as their existing policies and practices to insure that they are consistent with the EEOC guidance.  Additionally, many of the case specific examples provided by the EEOC should be incorporated in workplace training to insure that all employees, particularly managers and supervisors, understand what behavior is prohibited under Title VII. 

EPAs New Strategic Plan: Cuts in Enforcement While Promising Streamlined Methods of Compliance


David J. Schmittby David J. Schmitt

The  U.S. Environmental Protection Agency (“EPA”) recently released its“Draft FY 2014-2018 EPA Strategic Action Plan” (the “Plan”). Any parties interested in submitting comments need to do so by January 3, 2014.

  1. The Plan describes EPA’s five main strategic goals:
  2. Addressing climate change and improving air quality;
  3. Protecting America’s waters;
  4. Cleaning up communities and advancing sustainable development;
  5. Ensuring the safety of chemicals and preventing pollution; and
  6. Protecting human health and the environment by enforcing laws and assuring compliance.

The Plan also addresses four additional fundamental strategies that cut across all agency activities:

  1. Working toward a sustainable future;
  2. Working to make a visible difference in the communities;
  3. Launching a new era of State, tribal, local, and international partnerships; and
  4. Embracing EPA as a high-performing organization.

Within the Plan, each of these goals and strategies is discussed in great detail. For example, the goal of addressing climate change and improving air quality includes EPA’s priority goal to reduce greenhouse gas (“GHG”) emissions from new model vehicles and trucks by September 30, 2015.  This goal would potentially result in reducing GHG emissions by 6 billion tons and reducing oil consumption by about 12 billion barrels over the lifetime of the vehicles.  As another example, the goal of cleaning up communities and advancing sustainable development includes the benchmark of having 18,970 additional contaminated sites cleaned up and made available for use by 2015.  

Importantly however, the Plan also confirms that EPA is envisioning far fewer enforcement activities over the next five years.  Some primary examples of EPA’s reduced enforcement efforts going forward include:

  • Conducting only 70,000 federal inspections and evaluations by 2018, when 105,000 such inspections and evaluations had been conducted on average per year between FY 2005 and 2009;
  • Initiating only 11,600 enforcement cases by 2018, when 19,500 enforcement cases had been initiated on average per year between FY 2005 and 2009; and
  • Concluding only 10,000 enforcement cases by 2018, when 19,000 enforcement cases were concluded on average per year between FY 2005 and 2009.

EPA states in its Plan that its objective is to: “Pursue vigorous civil and criminal enforcement that targets the most serious water, air, and chemical hazards in communities to achieve compliance.”  EPA believes that addressing  the worst polluters first in identified sectors will result in less pollution, as well as fewer enforcement actions over time.  

Additionally, throughout the Plan, EPA stresses its intention to “modernize” how it functions. As the primary example, EPA envisions the use of “Next Generation Compliance” strategies and tools to improve compliance while reducing pollution.  

This Next Generation Compliance includes:

  1. Designing regulations and permits that are easier to implement, with a goal of improved compliance and environmental outcomes;
  2. Using and promoting advanced emissions/pollutant detection technology so that regulated entities, the government, and the public can more easily see quantified pollutant discharges, environmental conditions, and noncompliance;
  3. Shifting toward electronic reporting by regulated entities so that EPA has more accurate, complete, and timely information on pollution sources, pollution, and compliance, saving time and money while improving effectiveness and public transparency;
  4. Expanding transparency by making the information that EPA has today more accessible, and making new information obtained from advanced emissions monitoring and electronic reporting more readily available to the public; and
  5. Developing and using innovative enforcement approaches (e.g., data analytics and targeting) to achieve more widespread compliance. 

In discussing Next Generation Compliance EPA freely admits, “. . . [W]e are not there yet . . . it will take years to fully implement this transition.”

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