Monday, November 28, 2016

Takeaways from the EEOC’s New Enforcement Guidance on National Origin Discrimination

On November 18, 2016, the Equal Employment Opportunity Commission (EEOC) issued its new, 49-page Enforcement Guidance related to national origin discrimination.  Not surprisingly, its views are broad, and employers should familiarize themselves with its positions, highlighted below, on this topic:

Definition:  national origin discrimination means discrimination because an individual (or his or her ancestors) is from a certain place or has the physical, cultural, or linguistic characteristics of a particular national origin group, and includes “perceived as” claims.  An employee’s place of origin, national origin group or ethnicity, as well as his association with someone of a particular national origin, or his citizenship status, may form the basis of a national origin discrimination claim.  While most employers think of national origin in terms of origin outside the U.S., “American” is a national origin subject to protection.
Scope of Coverage:  coverage extends to all employees and applicants for employment in the United States.  It also extends to: (1) U.S. citizens working for American employers operating in foreign countries (unless compliance with Title VII would cause the employer to violate the laws of the foreign country in which the workplace is located); (2) foreign employers doing business in the U.S. (unless the foreign employer is exempt from coverage by a treaty or international agreement); (3) U.S. citizens working abroad for a foreign employer that is controlled by an American employer; and (4) foreign nationals outside the U.S. who apply for U.S.-based employment (meaning a job in the U.S.).   
Employment Decisions:  these include recruitment, hiring, promotion, work assignments, segregation and classification, transfer, wages and benefits, leave, training and apprenticeship programs, discipline, layoffs, termination, and other terms and conditions of employment, and decisions are subject to both disparate treatment and disparate impact analyses.  Notably, the EEOC repeatedly expressed its belief that an employer’s reliance on word-of-mouth advertising to fill vacant positions may be discriminatory. 
Customer Preferences: employers cannot rely on the discriminatory preferences of coworkers, customers, or clients, and an employment decision based on the discriminatory preferences of others “is itself discriminatory.” 
Social Security Numbers:  newly hired employees should be allowed to work if they have applied for but have not yet received a Social Security number.  
Security Requirements and Screening:  in limited circumstances, primarily where an individual does not meet job requirements that are imposed in the interest of the national security of the United States under any security program in effect pursuant to or administered under any federal statute or executive order, employers may justify their employment selection decisions based on national origin.  The EEOC may, however, review whether the grant, denial, or revocation of a security clearance was conducted in a discriminatory manner, and whether procedural requirements for making security clearance determinations were followed without regard to an individual’s protected status.
Hostile Work Environment:  ethnic slurs, ridicule, intimidation, workplace graffiti, physical violence, or other offensive conduct directed at an individual because of his birthplace, ethnicity, culture, language, dress, or foreign accent can form the basis of a hostile work environment claim. 
Accent Discrimination:  due to the link between a person’s accent and his or her national origin, employment decisions or harassment based on accent may violate Title VII.  An employment decision may legitimately be based on an individual’s accent if the accent “interferes materially with job performance.”  To meet this standard, an employer must provide evidence showing: (1) effective spoken communication in English is required to perform the job duties; and (2) the individual’s accent materially interferes with his or her ability to communicate in spoken English. 
English Fluency Requirements:  generally, an English fluency or English proficiency requirement is permissible only if required for the effective performance of the position for which it is imposed. 
English-Only Rules and Policies:  since 1980, the EEOC has taken the position that blanket rules requiring employees to speak English in the workplace at all times are presumed to violate Title VII.  A limited language-restrictive policy, meaning one that does not apply at all times or to all jobs, workplace situations, or locations, may be permissible if the employer can establish that the policy is job related and consistent with business necessity.  To meet this burden, the employer must show that the policy is "necessary to safe and efficient job performance."
Whether this new Guidance will survive a change in administrations is uncertain, but for now, it will be cited and relied upon by the EEOC in its enforcement actions. 

Tuesday, November 22, 2016

Texas Judge Grants Nationwide, Preliminary Injunction on Implementation of New FLSA Regulations

Approximately one hour ago, a federal judge in Texas granted a nationwide, preliminary injunction preventing the majority of the new FLSA regulations from taking effect on December 1, 2016.  The Court found that the state plaintiffs established a prima facie case that the United States Department of Labor's salary level and the automatic updating mechanism are without statutory authority, and that the public interest is best served by the injunction preserving the status quo.

Thursday, November 3, 2016

Useful Reminders About an Employer's Obligation to Accommodate Disabilities

In Dillard v. City of Austin, Texas, No. 15-50779 (5th Cir. Sept. 26, 2016), the Fifth Circuit affirmed summary judgment for the City of Austin on a former employee's claims that the City violated the Americans with Disabilities Act, as amended (ADA), by terminating him for a disability and failing to reasonably accommodate him.  The Court's decision provides employers with useful reminders about the mechanics of the accommodation process.
Following a car wreck, the plaintiff was unable to perform his tasks as a manual laborer and field supervisor for the City's Public Works department.  Even though the plaintiff exhausted all available leave under the Family and Medical Leave Act and the allotted time under the City's Return to Work Program, the City allowed him to remain on leave.  Once he was released to limited duty, the City searched for other positions within the Public Works department to accommodate the restrictions, and offered him a temporary position as an administrative assistant.
The plaintiff accepted the temporary position even though he did not know how to complete administrative work.  To assist him with gaining the necessary skills, the City gave him on-the-job typing and computer training, and allowed him to shadow another administrative assistant.  His supervisor also showed him how to register for other City training programs, which he did not do.  The plaintiff's computer and typing skills did not improve, and his supervisor found him playing computer games, surfing the internet, sleeping, making personal calls, and applying for other positions within the City during his work time, allegations which he did not dispute.   The plaintiff told the City he was unhappy in the position and asked for another job because he lacked the skills needed to be an effective administrative assistant.  His doctors also provided further releases which expanded the list of activities he was cleared to perform. The City ultimately terminated the plaintiff's employment and the lawsuit followed.

In support of its decision affirming summary judgment for the City, the Court reminded employers of the following principles related to the duty to accommodate:
  • Just because the City could have fired the plaintiff after he exhausted all available leave options and had no specific return to work date, the fact that it retained him did not extinguish its obligation to reasonably accommodate him once he returned to work.
  • The interactive process is a two-way street, and requires the employer and the employee to work together, in good faith, to determine a reasonable accommodation.
  • Once an employee accepts a position as an accommodation, the employee must make an honest effort to learn and carry out the duties of the new job, particularly when the employer offers training assistance.
  • Even though the plaintiff asked for another position, he did not attempt to fill his new role in good faith, and for this reason, he could not argue that the City should have continued the interactive process by offering him a different job.
  • Employers should not attempt to elude the obligation to accommodate a disabled employee by giving him a job that he was destined to botch, with or without training, which was not the case here.
  • Terminating an employee whose performance is unsatisfactory according to management's business judgment is legitimate and nondiscriminatory as a matter of law.
  • The ADA provides a right to reasonable accommodation, not to the employee's preferred accommodation.
Employers should ensure that supervisors and Human Resources personnel understand the interactive process obligations and document all efforts to provide reasonable accommodations.