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Title VII Extends Protection to Sexual Orientation Says the Seventh Circuit

By: Dan Cohen – 4/6/17

Earlier this week, the 7th Circuit Court of Appeals became the first federal appellate court to extend Title VII of the Civil Rights Act of 1964 to workplace discrimination on the basis of sexual orientation. The decision should not come as a surprise following the announcement last July by the Equal Employment Opportunity Commission that Title VII does prohibit discrimination on the basis of sexual orientation, which would be considered a form of sex discrimination.

The case was filed in 2014 by Kimberly Hively, a former part-time instructor at Ivy Tech Community College who said the college did not hire her full-time because she was a lesbian. Ivy Tech denied her claim. The federal trial court dismissed the case finding that Title VII did not protect against discrimination on the basis of sexual orientation. The 7th Circuit initially agreed with the trial court and affirmed the dismissal of the case.  However, the 7th Circuit decided to rehear the appeal en banc (before the entire bench) and reversed the lower court in an 8-3 decision.

According to Chief Judge Diane P. Wood, “Hively’s claim is no different from the claims brought by women who were rejected for jobs in traditionally male workplaces, such as fire departments, construction, and policing.” Judge Wood went on to conclude that sexual orientation is a form of discrimination based upon sex. Judge Richard Posner, in his concurring opinion, acknowledged that even though Title VII was passed without consideration of one’s sexual orientation, the concept of sex discrimination has since broadened as society’s definitions of gender and sex have also broadened.

The dissenting opinion, written by Circuit Judge Diane Sykes, argued that extending Title VII protection to sexual orientation violates constitutional design and gives the court a power left for Congress. According to Judge Sykes, “however welcome today’s decision might be as a policy matter, it comes at a great cost to representative self-government.” Moreover, rejecting the notion that sexual orientation is a form of sex discrimination, Judge Sykes noted the many federal statutes that refer to both sex and sexual orientation separately.

If it stands, the decision gives Kimberly Hively and other gay and lesbian people the right to sue over what they perceive as discriminatory employment practices based on their sexual orientation. This does not end the case, which will now proceed to trial on the merits unless Ivy Tech seeks to involve the Supreme Court. However, with the current composition of the High Court, a 4-4 ruling is likely, which would not change the outcome.  Of course, one can see how confirmation of Judge Neil Gorsuch could affect the outcome of this issue when it does reach the Supreme Court.

From my standpoint, I do not believe the case requires employers to do anything different or special. We have been preaching to our clients for my entire career that decisions should be based upon legitimate, non-discriminatory business reasons, that those decisions be well-documented and that policies and rules be applied uniformly.  This decision does not change that approach.  Moreover, many businesses have already modified their EEO policies to include sexual orientation and gender identity as protected classifications.  This ruling does not necessarily require that since the rationale of the 7th Circuit is that discrimination on the basis of sexual orientation is a form of sex discrimination, which is already a protected classification.  I do, however, think it’s a good idea to include catch-all language that extends the policy to “any other protected classification.”  If you conduct business in a state or municipality that specifically protects against discrimination on the basis of sexual orientation and gender identity, it is probably worth making the modification.

Therapy Lizards Are No Joke to Employers

Therapy Lizards Are No Joke to Employers

By’  Bill Pilchak – 2/26/15

We all know that animals are often trained to assist humans with disabilities. Leader Dogs for the Blind is headquartered in Rochester, Michigan and their service animals provide invaluable assistance to the blind. We have heard of animals that alert the deaf to noises, predict seizures, pull wheelchairs and retrieve items for those with mobility items. Allowing a disabled person to bring a legitimate service animal to work is clearly a required accommodation under the ADA.

However, like most of the benevolent laws we deal with, some seek to exploit the concept. The latest trend is for individuals to claim that their pets provide emotional support. So far, most of the case law has involved individuals attempting to avoid “no pet” rules in housing complexes and homeowner associations. An Iowa state court held that a plaintiff was entitled to a trial to determine if her two Dobermans were a reasonable accommodation of her post-traumatic stress disorder caused by a prior break-in. However, a federal case held that a bulldog was not an individually trained service dog so as to be an accommodation of depression and anxiety.

New Yorker Magazine, not often friendly to the business perspective, noted the problems businesses face and documented how easy it is to get a psychologist to certify the need for a support animal.  http://www.newyorker.com/magazine/2014/10/20/pets-allowed . The author noted that anyone could register their animal (or actually a beanie baby) as a support animal for a fee between $70 and $250. The author registered a thirteen-pound turtle with the Emotional Support Animal Registration of America, who evaluated her over the phone and provided her with a letter certifying her need for the turtle. She also succeeded in registering a snake, a turkey, an alpaca (who she tried to take on a train) and a pig (who she did take on a plane in a stroller) as emotional support animals.

The New Yorker author found that those who push the envelope are armed by federal publications that warn that the only two questions that may be asked is: 1) Is the animal required because of a disability? 2) what work or task has the animal been trained to perform? Such publications exist, however, other publications suggest other strategies.

Readers might be interested in knowing that the government has (once again) largely avoided the mess that service animals may cause (pun intended). Title II of the ADA applies to state and local government services. Title III applies to public accommodations and commercial facilities. In those realms, a July 12, 2010 bulletin published by the Department of Justice, Disability Rights Section (http://www.ada.gov/service_animals_2010.htm ), while indicating the above two questions are the only permissible questions, also states:

  • Only dogs are recognized as service animals under Titles II and III of the ADA;
  • A Service animal is a dog that is individually trained to do work or perform tasks…which must be directly related to the person’s disability;
  • Service animals are working animals not pets;
  • Dogs whose sole function is to provide comfort or emotional support do not qualify as service animals under the ADA.
  • [Despite the above provisions, a following provision states:]
    • In addition to the provisions about service dogs…miniature horses that have been individually trained to do work and perform tasks [may qualify as service animals].
    • Assessment factors included whether the horse is housebroken,  under the owners control, etc.

Businesses faced with this issue with regard to customers and visitors are cautioned to assure themselves that the 2011 bulletin remains in effect. Otherwise the joke may be on them.

The New Yorker article ends up being humorous, but employers aren’t laughing. They have been jerked around before by employees who seek to control them. Fortunately, employers are armed a bit more with respect to employees than businesses open to and required to accommodate the public. Employers are not required to accommodate an unknown disability and may make reasonable inquiries (if consistent with business necessity) to determine if the person has a covered disability and to identify a reasonable accommodation. Such inquiries should be made with care, however, to avoid a violation of the ADA. Additionally, an employer might conduct a medical examination, if consistent with business necessity. Such an examination might smoke out that no treating medical professional has prescribed the need for the animal. Finally, employers are obligated to provide reasonable accommodations and not the accommodation of the employee’s choice. Thus, as long as there is some other form of reasonable and effective accommodation, employers are within their right to reject a request to bring an employee’s pet iguana to work as an accommodation.

Much Ado About Pregnancy Discrimination: New EEOC Guidance

Much Ado About Pregnancy Discrimination: New EEOC Guidance

By: Rhonda Armstrong  7/22/14

           Yes, this is another article about dealing with pregnancy in the workplace! I’ve previously set forth my recommendations on this topic in two prior articles – New Mom’s Back at Work (6/12/14) and The Mother’s Day Edition (5/8/14). Not to overkill the issue, but the EEOC just released new guidance on July 14, 2014, including an Enforcement Guidance, a Fact Sheet, and a related Q & A – all of which can be downloaded from the EEOC website (www.eeoc.gov).

          In short, the new guidance does not differ from what I had previously outlined as employer obligations, and in fact re-emphasizes many points I made, including:

  • ADA Accommodation Implications – In my prior articles, I warned employers to be careful in denying accommodations to pregnant workers because it could give rise to failure to accommodate claims under the Americans with Disabilities Act (ADA). While courts have routinely ruled pregnancy alone is not a disability (which the EEOC does not dispute, even now), courts routinely find pregnancy complications protected by the ADA.   The EEOC stressed that, with the passage of the ADA Amendments Act (making it easier for employees to prove disability and extending to temporary conditions), it will also be much “easier” for pregnant workers to demonstrate ADA protections including relative to conditions which may only be temporary. The EEOC cited the following as examples:
  1. Pregnancy-related anemia;
  2. Pregnancy-related sciatica (back-aches)
  3. Nausea that causes severe dehydration (morning sickness);
  4. Abnormal heath rhythms;
  5. Leg swelling.

           I don’t know about you, but Nos. 2, 3, and 5 seem a normal part of most pregnancies at some point along the way (at least for my two pregnancies). The EEOC provided several examples of what might be appropriate accommodations, including:

o   Redistributing marginal (not essential) job functions or altering how job functions are performed;

o   Modifying policies (e.g., a no water at workstation policy or lifting requirement);

o   Purchasing or modifying equipment or devices (e.g., a providing a stool);

o   Modified work schedules or granting leaves of absence; or

o   Providing a temporary assignment to light duty position.

           With respect to leaves of absences and light-duty assignments, the EEOC cautioned that denying leave or light-duty to pregnant employees with disabilities that are provided for persons with similar ability/inability with other disabilities could be unlawful. So, for example, if you let a person with only one leg (an obvious disability under the ADA) sit at a cash register, failure to let a pregnant employee do the same could be pregnancy discrimination.

  • Breastfeeding Accommodation – In my Mom’s Back at Work article, I cautioned employers about treating breastfeeding employees differently or in refusing to provide necessary break-time. The EEOC’s new guidance confirms this point (“[a]n employee must have the same freedom to address…lactation-related needs that she and her co-workers would have to address other similarly limiting medical conditions.”). While the EEOC did not outright require break-time, the implication is certainly that such practices will be closely scrutinized.
  • Non-Pregnancy as Bona Fide Occupational Qualification (BFOQ) – In my prior article, I warned that juries and courts rarely find it lawful to prohibit pregnancy for safety or other reasons. The EEOC confirmed that this stating the BFOQ is an “extremely narrow exception” that employers will “rarely” meet.

          The EEOC provided many examples of what constitutes discriminatory practices in violation of Title VII, the Pregnancy Discrimination Act, or the ADA. Some additional examples beyond those I mentioned in my prior articles include: (1) Penalizing an employee for taking time off for fertility treatments; or (2) Failing to hire a pregnant applicant who could not meet a 50-pound lifting requirement when the lifting requirement is not job-related and consistent with business necessity.

          Lastly, the EEOC provided employers with a laundry-list of “best practices.”  These include practices that most prudent employers should already have in place, such as: having a strong policy prohibiting discrimination, harassment, and retaliation; training managers regarding Title VII, the PDA, FMLA, etc.; reviewing policies to ensure no negative impact on protected groups of employees; investigating complaints and taking prompt corrective measures, as appropriate.

          Some of the suggestions that may be new “take-aways” for employers include:

  • Extending non-discrimination, harassment, and retaliation policies to “pregnancy, childbirth, and related conditions” and “breastfeeding.”
  • Implementing written reasonable accommodation procedures and stating explicitly that they may be available to persons with temporary impairments, including those relating to pregnancy.
  • Training managers to understand their obligations with respect to pregnant employees.
  • Avoid assuming that pregnancy is not a disability under the ADA.

          In closing, the EEOC’s guidance sends a strong message that it will closely scrutinize practices that treat pregnant employees differently or fail to accommodate the impairments associated with pregnancy. If you are in a position that you believe is a close question, it is better to be safe than sorry and give us a call.

Obama’s New LGBT Discrimination Order:  What Does It Mean for Michigan Employers

Obama’s New LGBT Discrimination Order: What Does It Mean for Michigan Employers

By:  Rhonda Armstrong – 6/19/14

         Hot off the press: President Obama seeks to issue yet another Executive Order regarding workplace protections for federal contractors – this time extending non-discrimination protections on the basis of sexual orientation and gender identity.   See: http://www.huffingtonpost.com/2014/06/16/obama-enda_n_5499377.html. To date, neither Federal nor Michigan statutes extend protections to these categories, despite much prompting from lesbian, gay, bisexual, and transgender rights (LGBT) groups.

          President Obama has already been criticized in the past for issuing Executive Orders on matters that Congress refuses to make law, including requiring federal contractors to pay higher minimum wages and prohibit retaliation for disclosing or inquiring about pay. This is another example. To date, while Democrats have pushed for passage of the federal Employment Non-Discrimination Act (which would extend non-discrimination protections to LGBT groups), it has only passed Senate approval (in November 2013) and has since been stalled in the House.

          The anticipated order will, however, now require all federal contractors and subcontractors to extend such protections to employees. As noted in our March 25, 2014, Blawg post, many businesses operate without realizing they are federal subcontractors. This is the second Executive Order issued in 2014 that prompts employees to determine their employer’s status.

          If your organization is not a federal contractor or subcontractor, however, the planned executive order will not apply to you. All the same, Michigan employers must beware that sometimes actions that seemingly appear as sexual orientation discrimination may still be actionable as “sex” discrimination even absent specific protections in Michigan. For example, treating employees differently because they are not sufficiently feminine or masculine has been recognized to be illegal for years.

          Also, employers must beware that 21 states, the District of Columbia, and some Michigan cities have enacted local ordinances that extend protections on this basis including Detroit, Ann Arbor, Ferndale, Lansing, Huntington Woods, etc. Also, some contracts (e.g., with local governments) may require businesses to not discriminate on this basis.

          I am often asked whether a Michigan employer should extend its non-discrimination, harassment, and retaliation policy to sexual orientation. In my opinion, at this juncture, it is a better practice to refrain from extending your written policies to categories beyond what the law or your client contracts require. Unfortunately, a judge or jury may hold you to a higher standard based upon your own policy. However, in practice, it is wise for employers to train their supervisors to avoid discrimination and harassment on the basis of sexual preference and promptly address known or suspected incidents, notwithstanding. This sends a message that you will not tolerate archaic or biased opinions in the modern-day workplace.

New Moms Back at Work:  Michigan Employer’s Obligations

New Moms Back at Work: Michigan Employer’s Obligations

By:  Rhonda Armstrong – 6/12/14

          As a follow up to the Mother’s Day post, I thought it would be a good time to review employer obligations when new mothers come back to work. The biggest challenges for employers relate to breastfeeding, requests for part-time/modified schedules, and absenteeism. I have outlined below what employers should consider in these common scenarios.

 Lactation Accommodation:

          Before March 2010, employers had no duty to permit the use of breast pumps at work or to provide related break-time. However, that changed in 2010 when the Fair Labor Standards Act (FLSA) was amended to require employers to provide non-exempt employees (generally the hourly-paid workforce) with reasonable break time (up to 1 year after the child’s birth) and to provide private space (not a bathroom) that is free from intrusion. While some states have laws that protect employees company-wide, Michigan has not yet joined these ranks.

           So, should Michigan employers be concerned about their salaried employees, given the exclusion under the FLSA? In EEOC v. Houston Funding II, Ltd., 717 F3d 425 (5th Cir. 2013), the Fifth Circuit recently ruled that firing an employee because she was lactating or wanted to use a breast pump at work was unlawful discrimination under both Title VII (prohibiting sex discrimination) and the Pregnancy Discrimination Act (PDA)(prohibiting discrimination on the basis of pregnancy, childbirth or related conditions). While the Fifth Circuit found disparate treatment, the Court noted the PDA does not create a duty to accommodate. For this proposition, the Fifth Circuit relied upon Wallace v Pyro Mining Co, 789 F Supp 867 (WD KN 1990), aff’d, 951 F2d 351 (6th Cir. 1991), which found an employer need not provide breastfeeding leave.

          Based on the above authority, an employer should not discipline an employee simply because she brings a breast pump to work. It becomes a closer question for employers when an exempt employee (a supervisor for example) asks for special accommodations (e.g., extra break time, modification of certain spaces, etc.). While the law may not require an employer to provide such accommodations, employers must still be careful. If an employer has granted similar requests to others (e.g., permitting smokers to take intermittent breaks, or providing designated areas for smoking), this is the kind of disparate treatment evidence that will attract the attention of the EEOC or even plaintiff’s counsel and create difficulty for an employer under Title VII, the Michigan Civil Rights Act and the PDA.

Requests for Modified or Part-Time Schedules:

          Here is an often played-out scenario: Upon return from leave, the new mother asks if she can work a modified or reduced schedule. What should you do? If the request is due to a medical condition of the child or the mother, the employer may have obligations under the Family Medical Leave Act (FMLA) or the Americans with Disabilities Act (ADA). Employers’ obligations will depend on the particular facts. If the employee exhausted her FMLA leave entitlement, she would have no right to an  accommodation to care for her child. The ADA simply does not create a duty to accommodate an employee who seeks to care for a sick family member. If the employee still has some FMLA leave time remaining or if the modified or part-time schedule is needed for her own medical condition, then reduced time FMLA rights and the ADA both come into play.

          If neither the FMLA nor ADA applies, employers are generally free to deny such requests to the extent their denial is not discriminatory. For example, while the employee claimed marital status discrimination, the Michigan Court of Appeals held an employer had no obligation to honor a married woman’s request to be home at night with her family and children. Noecker v. Dep’t of Corrections, 203 Mich App 43 (1993). Like the lactation accommodation cases, a disparate treatment analysis would take center stage.

Dealing with Absenteeism for Child-Related Reasons:

          While some states have specific rights relative to education functions or child medical emergencies, Michigan does not. To the extent an employee’s absenteeism or request for time off does not implicate the FMLA or ADA, as in the situation where FMLA rights have been exhausted and the time off is sought to care for the child, an employer can generally enforce its attendance policies. Thus, employers may discipline employees who violate attendance policies so long as they apply their policies in a non-discriminatory manner. Once again, employers must be aware of disparate treatment. In other words, don’t excuse male employees gone during hunting season, yet deny similar time off requests by new mothers.

          The law may not require an employer to let an employee attend a kindergarten graduation or work part-time if the employee’s infant has a heart condition, but denying such requests most often will send the wrong message to your workforce particularly if the employee’s request is legitimate and the employee does not have a history of abusing the attendance policy. On the other hand, some employees’ requests are onerous or indefinite, and employers may have to say “no.” Just make sure, when you do, you have crossed the “T’s” and dotted the “I’s” because parents with sick kids garner a great deal of sympathy, rightfully so, and juries will punish you.

The Mother’s Day Edition:  So Your Employee is Going to be a Mom – Now What?

The Mother’s Day Edition: So Your Employee is Going to be a Mom – Now What?

By:  Rhonda Armstrong – 5/8/14

Happy Mother’s Day! With Mother’s Day upon us, it’s a good time to recap what Michigan employers’ responsibilities are with respect to non-discrimination, handling leave, and light-duty requests for expectant mother employees.

Non-Discrimination

The most common pregnancy-related discrimination claims are brought pursuant to the federal Pregnancy Discrimination Act (which prohibits discrimination on the basis of pregnancy, childbirth, or related conditions), and laws prohibiting sex discrimination (e.g., Title VII and Michigan’s Elliott-Larsen Civil Rights Act). The Family Medical Leave Act (FMLA), largely known for its leave provisions, also prohibits retaliation against employees.

Clearly, firing or disciplining someone solely because they are pregnant would be a clear violation of the no-discrimination laws. But, here are a few examples which would likewise land an employer in hot water quick:

  • Terminating an unwed female employee because she got pregnant out of wedlock (likely also marital status discrimination under Michigan law);
  • Treating an employee who had an abortion differently;
  • Not offering the same types of leave/benefits to pregnant employees as that offered to others with short-term disabilities;
  • Not permitting an employee to use a breast pump at work;
  • Not allowing employees to come back to work until you feel they are safe or prohibiting employees from working because you feel it is unsafe for their unborn child.

 To date, courts have generally found leave or accommodation needs related to childcare (e.g., different or part-time schedules after a child is born) to be outside the purview of non-discrimination laws. And, while some employers have succeeded in treating pregnant employees differently for certain reasons (e.g., flight attendants who must be ready to help with passengers in emergency situations), this defense has not gained much court support (particularly with respect to across-the-board policies).

How much pregnancy/related leave must you provide?

If you are an employer with 50 or more employees, the answer is fairly clear-cut. You are covered by the Family Medical Leave Act (FMLA), and it requires employers to provide eligible employees with up to 12-weeks of unpaid leave in a 12-month period (which is measured a variety of ways, per the FMLA and depending on your written policy). Eligible employees include those who have worked for the employer for 12 months, have worked 1,250 hours in the prior 12 months, and work at a covered employer’s worksite where at least 49 other employees are employed within a 75-mile radius. Employers must be careful when navigating their responsibilities with respect to pregnant employees under the FMLA, as there are many rules regarding when certification may be requested, appropriately designating the leave, etc.

If you are a Michigan employer who is not covered by the FMLA and/or an employee does not meet the FMLA eligibility requirements, the answer is not so clear-cut. The only laws now in place to protect this group of employees are the non-discrimination laws which do not provide any clear answers. However, terminating an employee for missing work because of the standard 6 week inability to perform due to pregnancy and childbirth would be extremely risky. Our firm’s experience has been that courts are less inclined to dismiss pregnancy discrimination cases than most other discrimination cases.

Do you need to accommodate pregnant employees (beyond leave obligations)?

As set forth above, state and federal law requires employers to treat pregnant employees similar to how they treat others with short-term disabilities. Therefore, if an employer has provided light-duty assignments to workers with short-term disabilities, then it should do the same for pregnant employees. Prior to 2009, Michigan case law permitted employers to favor employees with respect to workers-comp/light-duty assignments, but Michigan amended its statute to specifically prohibit employers from treating pregnant employees different than those in other categories (in an apparent effort to override a court decision on the issue).

For employers covered by the Americans With Disabilities Act, while cases have held that pregnancy alone is not a “disability,” other cases have held that certain conditions may bring an employee within the ADA’s protections (e.g., employees with pregnancy complications such as back pain, spotting, dizziness, etc.). Once within the ADA’s protection, an employer has the duty to accommodate the employee’s disability unless to do so would pose an undue hardship.

Employers should be on the lookout, however! Some states have enacted laws that require employers to accommodate pregnant employees, but to date Michigan has not joined these ranks.

Employer Take Aways

Obviously, when the FMLA is implicated, employers must offer FMLA leave. But, even beyond that, employers need to offer at least SOME leave time. While no law now dictates a minimum amount for Michigan employers, we generally recommend at least 4-6 weeks. This is likely adequate to demonstrate that the employee has sufficiently healed from childbirth (to defend claims that the actions were related to childbirth-related conditions) and is probably what most would consider the bare minimum for a new mom. If employers have safety or other concerns, it is wise to involve counsel to evaluate what, if any, options the employer has under the circumstances. In our experience, we have found it increasingly difficult to defend pregnancy-based claims due to, among other things, juror sympathies. Jurors tend to empathize with the new mom who just got fired and now can’t support her newborn, even when the employer’s actions are legally defensible and justified.