Play us in Keith Richards

Last month, the EEOC announced here that it had sued two companies, claiming that they violated federal law by failing to accommodate an employee’s religious beliefs:

According to the EEOC’s lawsuit, Beverly R. Butcher, Jr. had worked as a general inside laborer at the companies’ mine in Mannington, W.V., for over 35 years when the mining companies required employees to use a newly installed biometric hand scanner to track employee time and attendance. Butcher repeatedly told mining officials that submitting to a biometric hand scanner violated his sincerely held religious beliefs as an Evangelical Christian. He also wrote the mining superintendent and human resources manager a letter explaining the relationship between hand-scanning technology and the Mark of the Beast and antichrist discussed in the Book of Revelation of the New Testament and requesting an exemption from the hand scanning based on his religious beliefs.

In the complaint filed in federal court in West Virginia, the EEOC claims that the two employers refused to consider other ways to track Butcher’s time and attendance, “such as allowing him to submit manual time records as he had done previously or reporting to his supervisor, even though the mining company had made similar exceptions to the hand scanning for two employees with missing fingers.”

This case serves as a reminder for employers that even though an employee’s religious beliefs may seem strange, as long as those beliefs are sincerely held, the law requires that employers accommodate them absent undue hardship.

(h/t Donna Ballman @employeeatty)


New York City.

As Jay-Z and Alicia Keys sang, it’s the “concrete jungle where dreams are made of. There’s nothin’ you can’t do.”

That includes taking indefinite leave as a “reasonable” accommodation under the New York City Human Rights Law.

Yep. That’s what the song means. Trust me. It’s in the liner notes.

HOVA foreshadows this recent decision, in which the NY State Court of Appeals held that leave for an indefinite period of time may, indeed, be a reasonable accommodation — unless the employer can show that it would cause an undue hardship.

Richard Cohen at the Employment Discrimination Blog wrote here about why this ruling will leave a worse taste in employer’s mouth than the City’s froo-froo salsa: 

This ruling, although virtually preordained by the City law’s edict that it be construed “broadly in favor of discrimination plaintiffs” to effectuate the law’s “uniquely broad and remedial purposes” (as this Court reiterated) is nonetheless a blow to employers who have relied upon interpretations of New York state and federal statutes which have found that an indefinite leave is not a reasonable accommodation.

Now, courts agree that the Americans with Disabilities Act, which contemplates a number of possible forms of reasonable accommodation, doesn’t go so far as to include indefinite leave among them. However, employers in NYC and in other localities with disability discrimination laws more expansive than the ADA shouldn’t dismiss an indefinite leave request out of hand.

Thumbnail image for ffiction.pngThat’s right folks. It’s time for another edition of “Fact or Fiction” a/k/a “Quick Answers to Quick Questions” a/k/a QATQQ f/k/a “I don’t feel like writing a long blog post.”

Earlier this week, I spoke at the SHRM Lehigh Valley Annual Conference on leave issues under the Americans with Disabilities Act and the Family and Medical Leave Act. During the course of our discussion, not only did we address the interplay between these federal laws, but we also touched upon the impact of workers’ compensation laws. 

One question that came up is whether an employer can require that an employee take FMLA leave concurrently with workers’ compensation leave.

Absent a collective bargaining agreement provision to the contrary, the answer is yes. But here are a few other things you should know about the interplay (all of this comes from a Department of Labor Opinion letter):

  1. Where an employee is collecting workers’ compensation, which is also a serious health condition under the FMLA, the employer cannot require the employee to substitute any paid vacation, personal, or medical or sick leave, for any part of the absence that is covered by the payments under the workers’ compensation plan. Similarly, an employee is precluded from relying upon FMLA’s substitution provision to insist upon receiving workers’ compensation and accrued paid leave benefits during such an absence. However, the employer and employee may be able to agree to paid leave to supplement the workers’ compensation replacement income.
  2. An employer may not recover health insurance premiums from an employee taking FMLA and workers’ compensation concurrently, if the employee does not return to work. Also, an employer may not recover any non-health benefit premiums paid during a FMLA-designated temporary disability leave or workers’ compensation absence, as opposed to during unpaid leave.
  3. If the employer designates workers’ compensation as FMLA leave, then the employee is entitled to all employment benefits accrued prior to the date on which the leave commenced.

Now, if you’ll excuse me, I’m trying to figure out what the fox says.

Oil StainsTo receive the protections of the Americans with Disabilities Act, an individual with a disability must be qualified to perform the essential functions of the job with or without reasonable accommodation. Absent undue hardship, an employer must provide a reasonable accommodation.

So, you’d think that the ADA would require a link between a requested accommodation and an essential job function. Well, not so much according to this recent decision from the Fifth Circuit Court of Appeals, a case in which the Attorney General’s office refused to accommodate one of its attorneys who requested a parking spot close to the office.

Noting that the text of the ADA specifically contemplates “making existing facilities used by employees readily accessible to and usable by individuals with disabilities,” without any indication that an accommodation must facilitate the essential functions of one’s position, the Fifth Circuit held that the ADA does not require a nexus between the requested accommodation and the essential functions of the position.

Putting all that aside, what bothers me here is that what the plaintiff was requesting on the difficulty scale strikes me as about a 2 out of 10. There are certain accommodation requests which, to me, are no-brainers; e.g., an orthopedic office chair for a bad back, a screen magnifier for vision issues, a wrist rest for carpal tunnel. A closer parking spot for, in this particular case, osteoarthritis of the knee, is hardly worth a fight.

When an employee comes to you with an accommodation request, maybe you should think about the value of the accommodation versus the cost of litigation when you deny it.

(h/t Employment Law Lookout)

Readers: A brony is a male fan of the children’s television show My Little Pony.

(This is the part where you let everything that you’ve read thus far sink in, as you watch this clip, close your office door, and laugh hysterically. Go ahead. It’s ok).

According to Gawker, the brony posted to Reddit that his co-workers gave him a raft of crap for setting his office computer screensaver to Applejack, a My Little Pony character.

(Go ahead. Really, it’s ok to laugh).

After getting called into his boss’ office and told to change his screensaver because, you know, it’s creepy as all hell when a man in his 30s has a My Little Pony screensaver on his office computer, the former employee relented.

That is, until a few months later when, on Take Your Child to Work Day, the brony saw that the boss’s daughter was wearing a Rainbow Dash t-shirt, and commented to her that he likes the shirt. (Rainbow Dash is also a My Li— yeah, you get the idea).

Eventually, the brony claims he was was fired for being a brony, but not before calling HR to obtain some answers surrounding his termination.

Could you imagine being on the receiving end of that call? I bet there’s nothing in that PHR certification of yours to prepare you for that one, is there?


Legal “Brony discrimination” or unlawful sexual stereotyping?

There is a serious point to this post. 

*** searches desperately for serious point to an otherwise gratuitous post ***

As I’ve noted before, Title VII does make it unlawful to stereotype based on a person’s gender non-conforming behavior. So, taking the brony’s version of the facts as true, would he have been fired if he were a woman? I’d like to think yes and, therefore, what happened here was perfectly legal. Because, damn, what grown person — male or female — would think it professional to have a My Little Pony screensaver at work.

But, then again, what do I know? I have an Allen Iverson fathead in my office and heard about this brony story listening to Howard Stern on the ride back from speaking at an HR conference yesterday. So that, plus this blog, makes me a bit of an enigma and probably the wrong person to ask.

What do you think? Did the brony’s former employer break the law? Or was the employer justified in firing the brony? Let me know in the comments below.

Cut the music.

A little over a year ago, I wrote here about a steel worker named Kerry Woods. Unfortunately for Mr. Woods, he was on the receiving end of a constant barrage of “raw homophobic epithets and lewd gestures” from his supervisor. Notwithstanding, the Fifth Circuit Court of Appeals tossed out a $500K jury award for Mr. Woods, holding that Mr. Woods’s same-sex sexual harassment claims failed because he failed to satisfy the Supreme Court’s test in Oncale v. Sundowner Offshore Services, Inc.

Oncale was another same-sex harassment case involving employees at an oil rig. In Oncale, the high court held that a jury may infer that same-sex harassment occurred because of sex when the plaintiff can produce:

  1. credible evidence that the harasser was homosexual;
  2. evidence that makes it clear that the harasser is motivated by general hostility to the presence of the same sex in the workplace; or
  3. comparative evidence about how the alleged harasser treated members of both sexes in the mixed-sex workplace.

As Mr. Woods failed to satisfy any of the three Oncale elements, the Fifth Circuit overturned the jury award in his favor. This led me to dork out by likening employment law to wrestling develop the Ravishing Rick Rude / Adorable Adrian Adonis test: “Put simply, if the plaintiff is stereotypically masculine, like Rick Rude, a theory of sexual stereotyping will fail and so will a claim under Title VII.”

Last week, the Fifth Circuit Court of Appeals (here) reconsidered, reversed itself and, in doing so, gave my theory the rude awakening. First, it held that a plaintiff may establish a sexual harassment claim with evidence of sex-stereotyping. Further, it recognized that the Supreme Court did not intend for its Oncale three-part test to be exclusive; but rather, illustrative. That is, to prevail on a same-sex sexual harassment claim, a plaintiff need only show that his harasser stereotyped him as “insufficiently masculine.”

The recent opinion provides further reason for employers not to tolerate offensive remarks of any sort in the workplace.

Now, hit the music.



Let me tell you about a teacher in South Dakota. In 2010, she received a letter communicating concerns about her performance. Subsequent evaluations of the teacher’s classes noted several deficiencies. So, the school placed the teacher on a performance improvement plan.

It was right around this time that the teacher met with a physician’s assistant, who diagnosed the teacher with “anxiety and depression, likely stemming from her concerns about possibly getting fired.” 

So, at the teacher’s request, the physician’s assistant wrote a letter to the school seeking a laundry list of accommodations, including:

  • restructuring her job to include only essential functions if stressful situations continue to negatively impact her
  • encouraging her to walk away from stressful confrontations with supervisors; and
  • providing coverage if she becomes overwhelmed with stress from the work environment and needs to leave

The school responded to the full list of accommodation requests, agreeing to provide some, rejecting some, and requesting clarification as to others.

A few months later, after the PIP ended, the school recommended against renewing the teacher’s contract, delivering to her a “notice of his intent to recommend nonrenewal.” Shortly after receipt of the notice, the teacher took a medical leave of absence for the rest of the school year, after which her contract was not renewed.

The teacher then sued for discrimination under the Americans with Disabilities Act.

What is a disability under the ADA?

The ADA requires employers to accommodate a disabled employee if, doing so, will allow that employee to perform the essential functions of her position without resulting in undue hardship for the employer. An employer who fails to discharge these obligations has violated the law. 

However, to make out a “failure to accommodate” claim, the employee most first establish that she has a “disability.” One example of a disability under the ADA is a physical or mental impairment that substantially limits one or more major life activities of such individual. Major life activities include, but are not limited to, “caring for oneself, performing manual tasks, seeing, hearing, eating, sleeping, . . . learning, reading, concentrating, thinking, communicating, and working.” 

This includes conditions arising from the fear of possibly getting fired.

The burden of proving a disability is rather light. But could it even include anxiety and depression about possibly getting fired? According to this recent federal court opinion, yes:

When asked what activities of daily living Huiner [the teacher] was unable to perform, Buman [the physician’s assistant] stated she was unable to maintain her nutritional needs, had difficulty caring for her children, and had sleep pattern deficits. The medical records from Huiner’s appointments with Buman correspond to Buman’s testimony. Huiner’s difficulty maintaining her nutritional needs is further evidenced by her significant weight loss during that time period; she lost over thirty pounds from September 7, 2010, to June 29, 2011. Based on this evidence, the court finds Huiner has come forth with sufficient facts to make a prima facie showing that her anxiety constitutes a disability under the ADA. This is especially the case when considering the relaxed standards imposed under the ADAAA for determining what constitutes a disability.

Hear that? It’s the sound of litigation floodgates opening. 

And my pockets getting fatter.

yankeestadium.jpgYou’re probably thinking to yourself, “What kind of person cares that much about going to a baseball game that he would risk losing his job over it?”

The guy who hasn’t missed a Yankees home game for 38 years.

According to this CBS2 New York Report, Joseph Neubauer, who hadn’t missed a Yankees home game since the 1970’s, was fired from his position because he didn’t want to mess up an attendance streak at Yankee Stadium.

It all went down last year. Mr. Neubauer, who worked for the City of New York, was scheduled to attend a night game at Yankee Stadium. Unfortunately, the game was rained out and rescheduled for the following afternoon. Mr. Neubauer, who had run out of paid time off, opted to skip work to keep his attendance streak alive.

And, for that, he got fired.

Now, before you start tuning up the violin, the CBS2 story further notes Mr. Neubauer’s attendance issues went far beyond one unexcused absence:

A Judge suspended him for 60 days without pay in 2011 for going to Phoenix for the All-Star game even though his vacation request had been denied.

A year prior to that Neubauer had been suspended for 25 days after calling out sick for 13 Yankee games. Despite his problems in the past, Neubauer said he just wants his job back.

Well, at least now, nothing stands in the way of Mr. Neubauer attending the Yankees’ playoff games this season. 


righttowork.jpgBefore I get into the this new bill, let’s clear up a popular misconception: David Hasselhoff lives in my basement rent-free right-to-work means that an employee can be fired at any time for any non-discriminatory reason. No, dudes. That’s called at-will employment.

Right-to-work laws give individual employees in a unionized workplace the right not to join or financially support the union. 24 states, plus Guam, have passed right-to-work laws. Absent a right-to-work law, all employees in a collective bargaining unit must join the union and pay union dues.

And Pennsylvania could be next.

Here is a copy of the Freedom of Employment Act. This bill, if passed, would prohibit the following conditions of employment:

  1. Membership.–No person shall be required to become or remain a member of a labor organization as a condition of employment or continuation of employment.
  2. Abstention from membership.–No person shall be required to abstain or refrain from membership in a labor organization as a condition of employment or continuation of employment.
  3. Dues, fees and charges.–No person shall be required to pay or refrain from paying any dues, fees or charges of any kind to a labor organization or to a charity or other third party in lieu of the payments to a labor organization as a condition of employment or continuation of employment.

Any violation of the law would be considered a misdemeanor of the third degree, punishable by a fine of not more than $1,000 or up to six months in the hoosegaw, or both. Each day of a continued violation is a separate offense.

Governor Corbett has said that he would sign right-to-work legislation if it crossed his desk.

Earlier this year, six Republican state representatives each introduced right-to-work variants, none of which gained any traction.

Here’s the video:


Here’s the question:

<a href=””>Would you hire this employee?</a>

Would you hire this woman? Tell me why or why not in the comments below.

UPDATE: What’s good for the goose, is good for the gander.