Last week Oregon Governor Ted Kulongoski signed Senate Bill 786, which will require employers to more extensively accommodate employees' religious practices and observation. The bill passed both the Oregon House and Senate by wide margins earlier this Spring. The new law will take effect January 1, 2010.
Oregon law already prohibits discrimination based on an employee's religion. Senate Bill 786 also requires employers to reasonably accommodate employees' religious practices. The law specifies types of accommodations that may be required, such as shift changes, approving vacation time for religious holidays, and allowing employees to wear jewelry or religious clothing. The bill makes exceptions if the requested accommodations create an undue hardship on the employer. The law contains only one occupation-specific exception: public school teachers will be prohibited from wearing religious dress while at work.
The new Oregon law is modeled after federal regulations interpreting the Civil Rights Act of 1964, and guidance on those regulations will help Oregon employers comply with the new law. For an excellent guide on accommodating religious practices, check out this article on religious accommodation from HR Hero. And, expect more tattooed and pierced employees to request accommodations due to their membership in the Church of Body Modification.
Ricci v. DeStefano -- Supreme Court Holds City Violated Title VII By Rejecting Racially Disparate Test Results
To end its term, the Supreme Court today issued its long awaited opinion in Ricci v. DeStefano--a case that has received extra media attention because Supreme Court nominee Sonia Sotomayor was on the Second Circuit Court of Appeals panel that decided the case below. The conservative justices on the Court reversed the Second Circuit (and by extension, Judge Sotomayor) in a 5-4 decision, ruling that the city of New Haven violated Title VII by discarding the results of a firefighter promotion test where white applicants fared disproportionately better than other applicants. As one might expect, Justice Kennedy provided the swing vote and authored the majority opinion.
New Haven used the test in question to identify firefighters best qualified for promotion. Despite being objectively administered, the test's racially disproportionate results led the city to question whether it should validate the results. The city, of course, found itself in a "damned if you do, damned if you don't" position: certify the test results, and face Title VII disparate impact litigation from minority applicants; fail to certify them, and face Title VII reverse discrimination litigation from the white officers who passed but were denied a promotion. The city opted for the latter course, and, as expected, the white firefighters filed a reverse discrimination lawsuit. The city prevailed on summary judgment at the district court level, and the Second Circuit affirmed.
The Supreme Court found that discarding the tests violated Title VII , while certifying the test would not have been a violation of law because there was no "strong basis in evidence" for believing that the black firefighters would prevail on a disparate impact claim. The court noted that despite what otherwise would have constituted a "prima facie" showing of disparate impact race discrimination, several defenses were available to the city--namely that the exam at issue was job related, consistent with business necessity, and there existed no equally valid, less discriminatory alternative that suited the city's needs but was not adopted. The four dissenting justices disagreed, arguing that the majority's analysis was flawed because "New Haven had ample cause to believe its selection process was flawed and not justified by business necessity."
Ultimately, the Ricci decision will have little to no impact on most employers, but represents a small victory for employers (despite the positioning here that held against the city/employer). Employers can now take a somewhat more confident stand in backing test results that may demonstrate some disparate impact, so long as the test was objective and no other less discriminatory alternative exists. The Ricci decision may not last for long, however. Political condemnation by Democrats has been swift, with Senator Patrick Leahy (D-VT) saying that "it is less likely now that employers will conscientiously try to fulfill their obligations under this time-honored civil rights law. This is a cramped decision that threatens to erode these protections and to harm the efforts of state and local governments that want to build the most qualified workforces." Don't be surprised if Congress passes legislation down the road aimed at upending the Ricci decision.
Just in time for Pride Month, Representative Barney Frank (D-MA) introduced the Employment Non-Discrimination Act of 2009 (ENDA) earlier this week. If passed, ENDA would prohibit employment discrimination on the basis of sexual orientation or gender identity. It would also prohibit employers retaliation against employees who oppose such discrimination who participate in any investigation or proceeding under ENDA. To read more about ENDA, check out this article from the Human Rights Campaign.
ENDA would be the first federal law prohibiting sexual orientation and gender identity discrimination. Title VII of the Civil Rights Act of 1964 prohibits discrimination on the basis of, among other things, sex; it does not explicitly prohibit sexual orientation or gender identity discrimination). Several states already have similar protections in place, but ENDA would apply nationwide. ENDA would exempt from its coverage small businesses (those with less than 15 employees), religious organizations, and the armed forces.
This isn't ENDA's first trip through Congress; versions of the bill have been introduced in almost every Congress since 1994. However, with a strong Democratic majority in both houses of Congress, a Democratic President who is feeling the heat from the GLBTQ community, and the gay rights movement riding a wave of successes in state legislatures, 2009 may well be the year ENDA becomes law.
Employers whose policies and handbooks don't already address discrimination on the basis of sexual orientation or gender identity should consider a revision. For an example of how one company has addressed such discrimination, click here to read IBM's anti-discrimination policy. Click here for a state-by-state analysis of existing sexual orientation discrimination laws;
Yesterday the United States Supreme Court ruled 5-4 that trial courts may not use a "mixed motive" framework in federal age discrimination cases. Rather, plaintiffs in age discrimination cases must prove that "but for" their age, they would not have been discriminated against. Click here to read the Court's decision in Gross v. FBL Financial Services.
Under a 1991 amendment to Title VII of the Civil Rights Act of 1964, plaintiffs may prove race, sex, religion or national origin discrimination by proving either they would not have been discriminated against "but for" their employer's unlawful motive, or if their employer had a "mixed motive," meaning that the employer had some lawful motives to take an adverse action against the employee, but also some unlawful motives. In "mixed motive" cases, employers can avoid some (but not all) liability by proving that it would have taken the same action against the employee even absent the unlawful motive. Prior to Gross, several circuit courts (including the Ninth Circuit Court of Appeals) had applied the "mixed motive" framework in cases under the Age Discrimination in Employment Act or the Americans with Disabilities Act, even though those statutes do not incorporate a"mixed motive" framework.
Gross is ultimately a technical case mostly of interest to employment litigators. Gross will make it incrementally more difficult for plaintiffs to prevail in age discrimination and some other federal discrimination cases. Employers do not need to change their current policies and practices in light of Gross - rather, employers should continue not to discriminate on the basis of age, sex or any other characteristic protected by federal, state or local law. (Well, duh!)
As expected, the Lilly Ledbetter Fair Pay Act passed Congress (the House passed the Senate version 250-177 on January 27). President Obama has announced he will sign the bill into law--the very first bill he will sign--on January 29. The Act will overturn a U.S. Supreme Court decision that limited the time frame for bringing pay discrimination claims. (For more information on the Act and its history, check out this previous post here at the Stoel Rives World of Employment).
Here's an important wrinkle: as passed, the Act will be retroactive, and will apply to all claims of discrimination in compensation that are pending on or after May 28, 2007. This may have an impact on many pending unfair and unequal pay lawsuits.
The U.S. Supreme Court opened its 2008-2009 term on October 6 with six labor and employment law cases on its docket. (For docket information and questions presented, click on the name of the case).
- Locke v. Karass: may a public employee union may charge nonmembers for representational costs for litigation expenses incurred by the international union on behalf of other bargaining units?
- Kennedy v. Plan Administrator for DuPont Savings & Investment Plan: is a qualified domestic relations order (QDRO) is the only valid way under ERISA for a divorcing spouse to waive his or her right to the other spouse's pension benefits?
- Crawford v. Metro. Gov't of Nashville & Davidson County: Is an employee who cooperates with an employer-initiated investigation into alleged unlawful discrimination protected by Title VII's anti-retaliation provisions?
- Ysursa v. Pocatello Education Ass'n: does an Idaho law that prohibits local government employers from allowing employee payroll deductions for political activities violate the First Amendment free speech rights of unions and their members?
- 14 Penn Plaza LLC v. Pyett: do employees covered by a collective bargaining agreement which providies that statutory employment discrimination claims must be pursued through the contractual grievance and arbitration procedures have a right for a court to decide their discrimination claims?
- AT&T Corp. v. Hulteen: must an employer give full service credit for purposes of calculating retirement benefits for pregnancy leaves taken before the Pregnancy Discrimination Act of 1978 if the plan gave full credit for other types of temporary disability leaves?
Some of these cases (such as the Penn Plaza and Crawford cases) have the potential to make significant changes in existing law. Stay tuned to the Stoel Rives World of Employment for developments as they occur!
In the first case of its kind before a federal circuit court, the Seventh Circuit Court of Appeals held recently that an employer violated Title VII for terminating a female employee who underwent in vitro fertilization treatments. To read the opinion in Hall v. Nalco Company, click here.
The employer terminated the employee citing “absenteeism—infertility treatments.” It then replaced her with a female employee who was incapable of becoming pregnant. The employee sued, alleging her termination violated the Pregnancy Discrimination Act (PDA), which amended Title VII to include pregnancy and childbirth as bases for discrimination. The employer argued that the termination was for a gender-neutral reason: infertility. However, the Seventh Circuit held that there was evidence the termination was for her gender-specific quality of childbearing, in violation of Title VII.
Despite Hall, employment actions based on infertility are not unlawful as long as they affect men and women equally. For example, employers may lawfully exclude all treatments for infertility from their health benefit plans. Employers should beware, however, of adverse treatment of a particular infertility-related procedure that affects women only. Just as an employer may not discriminate against women because of pregnancy or maternity leave, it may not discriminate against women who undergo in vitro fertilization. For more information on avoiding pregnancy discrimination, read this fact sheet from the EEOC.
The Ninth Circuit ruled last August that AT&T violated Title VII by calculating the female plaintiffs' retirement benefits based on a system which denied them credit for pregnancy leaves taken before the 1978 by the Pregnancy Discrimination Act of 1978, while giving credit for other types of leaves. Hard to say which way this one will go, but odds are it will be a 5-4 decision. Stay tuned.