Nolo’s Employment Law Blog

The U.S. Supreme Court has denied a request by global shipping giant FedEx to review a $100,000 punitive damages award against it for failing to provide a reasonable accommodation to a deaf package handler. Ronald Lockhart worked for FedEx at the company's Baltimore Ramp at the Baltimore-Washington International Airport. Lockhart repeatedly asked his supervisor for a sign language interpreter or written notes from daily, weekly, and monthly meetings and training sessions. Despite these repeated requests, for the first two years of his employment FedEx made no attempts to accommodate Lockhart. After Lockhart complained to the EEOC, FedEx did provide some accommodations, but sporadically. (For instance, a translator was present at some meetings but not others.)

In contesting the jury's finding of a punitive damages award, FedEx claimed that its adoption of an ADA compliance policy, as well as its internal grievance policy for handling employee complaints, established it had acted in good faith to comply with the ADA. But the court recognized, "an employer maintaining such a compliance policy must also take affirmative steps to ensure its implementation." Equal Employment Opportunity Commission v. Federal Express, 513 F.3d 360, 374 (4^th Cir. 2008) (PDF file). There was evidence to support the jury's finding that FedEx had failed in this regard, including evidence that at least 3 higher-ups, in addition to Lockhart's supervisor, knew of his request for accommodation.

The Supreme Court's decision not to hear the case means employers who fail to provide reasonable accommodations when requested may be subject to punitive damage awards. The existence of a policy, on its own, won't be adequate evidence of an employer's good faith. Policies must be implemented if they are to offer protection.

The Equal Employment Opportunity Commission (EEOC) recently issued a new section of its Compliance Manual on religious discrimination, along with a fact sheet of questions and answers and a best practices guide. These documents were issued partly in response to a rise in charges of religious discrimination, which have doubled in the last 15 years (although they still make up a small fraction of the total charges the EEOC receives -- 3.5%, according to the agency).

Religion is unique among the characteristics protected from discrimination. Religion isn't really a characteristic, like race or gender; it's a belief system. And unlike other protected traits, which are sometimes protected precisely because they are "immutable," religious belief is deeply personal and can change over time. A person might become more religious, convert from one religion to another, or abandon faith entirely. A person might strongly feel him- or herself to be part of a religion, yet not share all of its beliefs or follow all of its teachings. Also, unlike other protected traits, religion sometimes requires particular behavior while adherents are at work, such as prayer; observing certain holidays; wearing specified items, types of clothing, or hair styles; or professing one's faith to others.

All this adds up to potential workplace conflict, especially when you consider that atheism is also considered a "religion" for purposes of anti-discrimination law. What if an employee's religious beliefs require him or her to "spread the good news" to customers and coworkers -- who complain about it? What if an employee's religious garb creates a potential safety hazard or simply violates the company's uniform rule? What if an employee requests an accommodation for a claimed religious belief that you've never heard of, refuses to provide a Social Security number because it constitutes "the mark of the beast," or asks to be excused from a management training course featuring a New Age speaker?

The EEOC's Manual attempts to clarify some of these issues. Among other things, the new Manual provides guidance on:

What constitutes a religious belief. Once an employee goes beyond recognized religious affiliations, it can be hard for an employer to determine whether the employee's belief is actually religious. Vegetarianism, particular styles of dress or hair length, and views on appropriate gender roles, for example, could each be part of a system of religious practices or could simply be a matter of personal opinion or preference. As the Manual points out, personal beliefs are not protected by Title VII; that privilege is reserved for religious beliefs, defined as those that are sincere, meaningful, occupy a place for the believer "parallel to that filled by...God," and concern "'ultimate ideas' about 'life, purpose, and death.'"

Discrimination based on third party bias. The Manual makes clear that employment decisions based on customer preference or prejudice -- for example, against employees who are perceived as Muslim -- are discriminatory. Oddly, the Manual also says that it would be okay for employers to require Muslim applicants to undergo more extensive security or background checks if required by federal law or Executive Order, but then goes on to say that no such law or Order exists, as far as it knows.

Reasonable accommodation and undue hardship. Employers are legally required to accommodate an employee's religious belief, practice, or expression. The Manual gives extensive guidance on accommodations that might be reasonable for an employee who requests a scheduling change (to observe religious rituals or a Sabbath), an exception from usual dress or grooming requirements, or breaks at work to pray. The Manual indicates that employers would be well-advised to follow the "interactive process" required by the ADA in working with employees to come up with a suitable accommodation. Although the Manual notes that any expense beyond administrative costs is considered an undue hardship under Title VII, it also states that an employer might be expected to pay premium wages (for example, overtime pay to another employee) as a temporary accommodation for an employee who needs time off for religious reasons.

Religious expression. The Manual cites a survey indicating that 19% of employees proselytize to coworkers. It also discusses other forms of religious expression in the workplace, from an employee who wears a button with an anti-abortion message and graphic photograph of a fetus or a patch saying "Jesus is Lord," to employees who wish to greet customers with "Have a Blessed Day," "Praise the Lord," or "in the name of Jesus of Nazareth."

The Manual doesn't do much to resolve the current legal bind of employers here: These are considered forms of religious expression entitled to accommodation. On the other hand, other employees may find these statements harassing -- and the employer itself might legitimately feel that such statements give the public the wrong idea about the company's own values and mission. There are no bright lines: Unlike racist or sexist comments, which an employer can and should stop whether or not they've reached the level of legal harassment, religious comments are not considered legally inappropriate. In fact, they are legally protected to some extent, and an employer who prohibits them absent complaints or other evidence of trouble could face a successful legal challenge.

With gas prices hovering around $4 per gallon, a survey by placement firm Challenger, Gray & Christmas reveals that 57% of polled employers are offering alternatives to help employees cope, according to CNN. Strategies include a compressed work week -- four 10-hour days (23%) -- employee carpools (20%), subsidizing the cost of public transportation (18%), and allowing employees to telecommute at least one day a week (14%).

Personally, I'm surprised telecommuting is so far down the list. All the other options are good ones, but telecommuting has some distinct advantages for employers as well as employees. (Full disclosure: I'm writing this from home, as a telecommuting employee.) Here are just a few of the benefits:

• Recruiting and retaining the best employees. According to the survey, 34% of employers have had a qualified candidate turn down a job because of a long commute, while 40% of jobs could be done telecommuting. Allowing employees to telecommute is an attractive job benefit that will help you attract the best candidates, even if far away. Another study shows telecommuting employees are more satisfied with their jobs, and less likely to leave.


• Decreased costs. Telecommuting may decrease your costs -- for example, if it allows employees to share work space and office equipment.


• Increased efficiency. Employees working at home are free of the distractions of a ringing phone, interruptions by co-workers, and the like. Particularly if working on focused projects, this allows employees to work more efficiently.


• Positive environmental impact. One 2005 study found Americans drive an average of 16 miles each way to work. In addition to reducing commuting times and costs, allowing telecommuting has a positive environmental impact as fewer workers drive to the office.

Alayna Schroeder

There are plenty of stories about employers firing employees for criticizing the workplace on their personal blogs. Then there are the tales of employee blogs getting companies into hot water by revealing confidential company information, or criticizing third parties. But a recent blog saga has an interesting twist: a Burger King executive used his middle school-aged daughter's online identity to attack a farmworkers' advocacy group that was trying to increase pay and improve conditions for tomato pickers. (In another dramatic turn, Burger King also allegedly hired a private investigator who tried to infiltrate the organization.) Though Burger King declined to name the employee, other reports claim that it was Vice President Steven Grover (who, according to a company telephone operator, no longer works at Burger King).

Dealing with employee blogs is a delicate thing. On the one hand, you don't want to overstep legal limits on regulating off-duty conduct; on the other, you do want to keep company secrets. Companies like Dell, IBM, and Cisco require their blogging employees to disclose their identities and company affiliation when blogging about company-related issues. And many companies require bloggers to make clear that their views are their own, not those of the company.

I doubt Burger King had such a policy, but in this case, you'd also doubt that the employee would have followed it anyway. After all, any company executive who will assume his pre-teen's identity (did he really expect to go undetected?) to make disparaging remarks has questionable business acumen. The law related to blogs may be complicated, but it's not that complicated.

Of course, that's my view, not necessarily that of my employer.

Alayna Schroeder

Today, the Familes and Work Institute released its "National Study of Employers," a survey of the programs, policies, and benefits U.S. employers provide to address work-life issues such as job flexibility, time off, and health and retirement benefits. One purpose of the study was to identify trends over the last ten years. (The Institute released a similar study in 1998, and another in 2005.)

Its findings? Things haven't changed much, overall. For most of the more than 80 policy options the study surveyed, roughly the same percentage of employers offer them today as did ten years ago. The biggest change is who pays -- the study shows that costs are shifting to employees for these benefits:

• Maternity disability leave. 16% of employers provide leave with full pay for the period of time when a female employee is unable to work due to pregnancy and childbirth, compared to 27% of employers ten years ago.


• Family health insurance benefits. Only 4% of employers pay the full cost of covering family members, compared to 13% ten years ago.


• Retirement benefits. Although most employers contribute to employee retirement plans, the number has declined from 91% to 81%. And far fewer employers offer defined benefit pension plans (which pay out a set monthly benefit upon retirement).

Some programs have become more popular in the last ten years. Employers are now much more likely to provide health insurance coverage for their employees' unmarried partners, for example. They are also more likely to offer employee assistance programs (EAPs), information about elder care resources and services, and flexible hours, allowing at least some employees to change their starting and quitting times.

One of the more interesting findings of the survey is that racial and ethnic diversity at the top predicts a more work-life friendly workplace. The survey looked at four categories of work-life benefits: flexibility, caregiving leaves, child and elder care assistance, and health and economic security (primarily medical, disability, and retirement benefits). In every category, companies with more racial and ethnic minorities in senior positions were more likely to offer benefits.

Lisa Guerin

I went to a great event last week called "Putting Transgender People to Work," cohosted by Out & Equal and the Transgender Economic Empowerment Initiative. The speakers made the business case for hiring and retaining transgender employees and offered strategies for making companies friendlier for transgender employees and customers. One of the featured speakers, Susan Friedman of Macy's West, talked about creating a nondiscrimination program, complete with policy language, training, and written guides for managers and employees, for Macy's and Bloomingdale's stores.

A big part of the business case is the tremendous untapped human resource of transgender employees -- employees whose identification or expression of their gender is different from the gender they were born into or the stereotypes associated with it. According to the "Good Jobs Now!" survey cited by the speakers, transgender people are disproportionately unemployed or underemployed, and more highly educated, than the general population of California. That's the carrot: The stick is that discrimination on the basis of gender identity -- which includes discrimination against transgender employees and applicants -- is illegal in a handful of states (including California) and a much larger number of cities and counties.

For information on making your company more welcoming to transgender employees and applicants, check out the extensive resources available at the Transgender Law Center's website. You'll find information on everything from revising your policies to include gender identity as a protected category to making bathrooms accessible to transgender employees, handling coworker concerns, and respecting transgender employees' privacy. TLC also does workplace trainings.

Lisa Guerin

There was an interesting article by Marcia Coyle in The National Law Journal last week, reporting on a study of court rulings on employment arbitration awards. The study found that federal courts upheld arbitration awards at roughly the same rate, whether the employee or the employer won the underlying arbitration. State courts were a different story, however: State appellate courts confirmed employee arbitration victories only 56.4% of the time, but confirmed 86.7% of employer victories.

Previous studies have looked at how employees fare in arbitration: how often they win, how the costs and fees compare to those paid in litigation, and how large the awards are. The National Workrights Institute has compiled some of this research here. The data they looked at partially contradict the anecdotal evidence -- and gut feeling -- of many lawyers that employees tend to do better in front of a jury than before an arbitrator or panel of arbitrators.

Although the figures in the research they looked at vary, they appear to indicate that employees may win more often in arbitration than in litigation, and that the median arbitration award is comparable to the median award in court. That isn't the whole story, however: The mean award to employees was much higher in litigation than in arbitration. (In case you missed that day, the median is the midpoint of a range of numbers, which means there are an equal number of awards above and below the median; the mean is the average award.) The higher mean for employees in litigation suggests that employees do better in court in the big money cases. However, the study also points out that, because litigation costs more than arbitration, employees who go to court may actually have better cases -- and that the ultimate amount the employee gets is often quite a bit less than the award.

Lisa Guerin

Remember the Source Family? Wore long robes, lived together in a mansion in Los Feliz, ran a trendy vegetarian restaurant on Sunset, had a psychedelic band called Ya Ho Wa 13, all went by the last name "Aquarian"? If not -- or if so, but you'd like to remember more -- you can find out all about them in the book I'm reading, The Source: The Untold Story of Father Yod, Ya Ho Wa 13 and the Source Family (my version annotated by the inimitable Mrs. Stim). You can also check out National Public Radio's recent series on the group, including an audio slideshow, here.

Being a lawyer, reading this book got me thinking about religion in the workplace -- for my money, one of the most interesting areas of employment law. Consider this: What if someone who wasn't a member of the Source Family wanted to work at their restaurant? An aspiring actor or musician could have done worse in the early '70s; after all, John Lennon, Julie Christie, Warren Beatty, and Paul Mazursky all spent time there. What if an aspiring thespian wanted to rub elbows with celebrities, but didn't want to attend the 4 a.m. meditation or learn the Ten Commandments for the Age of Aquarius?

A California case last year dealt with this issue of the nonbeliever employee. Lynn Noyes, an employee of Kelly Services, claimed that she wasn't promoted because, unlike her manager and more than a third of her coworkers, she was not a member of the Fellowship of Friends, a group founded in 1970. (The Fellowship adheres to "Fourth Way" principles, which it refers to as esoteric Christianity.) After the district court granted summary judgment against Noyes, the Ninth Circuit Court of Appeals reversed, finding that she could take her case to trial. In doing so, the Court affirmed that reverse religious discrimination cases -- where the employee claims discrimination for not sharing a decisionmaker's beliefs -- are viable.

But what about the opposite situation -- what if a Source Family member wanted to get out of the restaurant business and take a job elsewhere? The employer would have to accomodate, among other things, the employee's wearing of robes, refusal to get a haircut or shave, and daily morning bong hit (to last exactly six seconds). (Family members also "didn't need" deodorant due to their healthful diets, but I don't think that was a requirement; also, it was the '70s). As for the robes and hair, altering company dress codes is often seen as a reasonable accommodation to an employee's religious practices (although the employee might have to make some alterations for safety reasons). The pot smoking is a different story, of course.

If, like me, you've worked in a few alternative environments, you have probably come across a different type of religion in the workplace: the vaguely spiritual or New Age ritual, often as a means of team building. If you've had to chant, meditate, close your eyes and picture something, or take your turn with the talking stick while on the clock, you know what I mean. Or, perhaps you've participated in a workplace training program intended to help you "self-actualize" or reach your "human potential". The EEOC says that making New Age and similar trainings mandatory could lead to a religious discrimination claim. In fact, that's just what happened to the DeKalb Farmers' Market, which allegedly fired or forced out employees who refused to attend training sessions run by The Forum, a later incarnation of est (erhard seminars training). The employees claimed that the program's emphasis on human potential violated their belief in the supremacy of God. (The case settled.)

Lisa Guerin

One year after the shootings at Virginia Tech, the argument continues over gun rights, particularly whether gun owners may bring their weapons to work or school. Yesterday, the Governor of Florida signed a law that will prevent employers from prohibiting guns in company parking lots, as long as those guns are locked in the employee's vehicle and the employee has a permit for the weapon. (An article by Jennifer Steinhauer in yesterday's New York Times carried an interesting graphic on similar efforts in other states, along with bills that would allow students and professors to carry guns on college campuses; it also covers laws seeking to limit gun rights.)

Similar "parking lot" bills were introduced in a number of states last year. As reported by SHRM, however, those efforts lost steam after the Virginia Tech shootings. The National Rifle Association said then that they would renew their state legislative efforts in 2008, and apparently they have made good on that promise.

Whatever you think about gun control, a law that requires an employer to allow guns in its parking lot puts companies in a tough spot: legally required to protect employees from violence, yet unable to prohibit guns on their own property. This argument will be tested soon in a case challenging a similar law in Oklahoma. In October of 2007, the district court judge prevented the law from going into effect, finding that it conflicted with OSHA, the federal law that requires employers to provide a workplace free of recognized hazards likely to cause death or serious injury. (Here's a summary of the case, by BLR.) The case is currently before the 10th Circuit Court of Appeals.

Lisa Guerin

In addition to health insurance, life insurance, and disability insurance, some employers now make pet insurance available to employees. A 2007 survey by the Society for Human Resource Management (SHRM) found that 5% of responding companies offered pet insurance as an employee benefit. And ABC News reported earlier this year that providers of pet insurance have seen big jumps in their corporate sales.

Perhaps one reason for the growing popularity of pet insurance is the bottom line: It doesn't cost employers anything to provide it. Employees who sign up for the benefit pay the full cost, but usually get a 5 to 10% discount off what they would have had to pay to purchase it on their own. It's not clear how much this helps pet owners defray the sometimes astronomical cost -- $9.8 billion last year, according to the ABC News report -- of pet health care, however. Because many pet insurance policies are chock full of exclusions, they don't always make financial sense for pet owners. Still, they make it possible for many pet owners to afford life-saving treatments that would otherwise be out of reach.

Undoubtedly, some employees consider pet insurance a valuable benefit. If your company decides to offer it, however, make sure it isn't perceived as coming at the expense of benefits for the human family members of your employees. Don't make the same mistake as Palm Beach Community College, which apparently decided to offer pet benefits -- complete with promotional literature from the benefit provider, saying "your pet is a member of your family" -- only 90 days after deciding not to offer domestic partner benefits. Ouch.

Lisa Guerin