911 August/September 2015

Issue 4 · Volume 3

&&

Pregnancy Discrimination Act

By Rick Birdsall, J.D. — Growth Company Inc.

A pregnant employee sues alleging discrimination. Who wins?

Congress passed a Pregnancy Discrimination Act that amended Title VII.

This act preceded the American’s for Disability Act (ADA) which came sev-

eral years later. Historically, pregnancy has not been viewed as a

“disability” because it is a natural human condition. In other words, it is a

special ability, not a disability.

An employee works for UPS where she is required to do a considerable

amount of lifting over 50 pounds while working in a warehouse and making

deliveries. She tells her supervisor she is pregnant and is experiencing a

higher risk pregnancy than normal. She presents a doctor’s note limiting

her lifting to 10 pounds or less. She asks for a light duty accommodation

for the remaining term of her pregnancy.

The employer elects to place her on paid and unpaid leave until she is

ready to return work after delivery of her child.

Other employees had been given light duty accommodations for off-duty

related injuries not related to pregnancy. Continued on page 2...

411 HR

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Employees Stressed

Out by Managers is

Not Disabled and

may be Terminated

(Page 3)

EEOC Wins Big at

Supreme Court on

Religious Accom-

modation Case

(Page 4)

Employers Can

Check Applicant’s

LinkedIn Reference

Without Violating

the FCRA

(Page 5)

Abercrombie

Decision:

What’s Next For

Employers?

(Page 6)

Alaska’s Best Kept Secret

There is a NEW generation in the workplace:

Who is Gen Z?

(Page 6)

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In March, 2015, the U.S. Supreme Court issued an opinion in the case of Young v. United Parcel Service dis-

cussing the issue of “accommodation” for pregnancy. Too keep a long story short, even though there is a sepa-

rate federal Pregnancy Discrimination Act which was enacted several years before the ADA, the Court decided

to apply ADA principles and treat pregnancy as a temporary disability requiring “reasonable accommodation.”

The Court even went on to suggest that pregnancy may be a “protected class” based on gender.

Here are the “elements” the Court opined should be examined in future cases:

An employee has a pregnancy related condition;

The employee sought reasonable accommodation;

The employee was not accommodated; and

The employer accommodated others for work limitations for other conditions or reasons unrelated to

pregnancy (bad back, etc.)

Here is another way to look at the analysis. Let’s say you had an employee this last winter break a collarbone

snow machining. You allowed the employee 2 weeks off of unpaid leave to get healthy and then allowed him

to return to light duty with weight lifting restrictions of 10 lbs or less. In the Court’s view, a pregnant employee

should be treated no less differently than employees that have suffered disabilities in the past. In a nutshell, a

pregnant employee should not be treated any differently than other employees for other qualifying disability

conditions.

The Supreme Court has just opined pregnancy can be a temporary disability based on the ADA. This is a NEW

concept which remains quite vague at the moment. Undoubtedly, there will be future cases to further define

the legal parameters of this concept. To state it another way, we are treading on new legal ground and preg-

nancy issues like this must be consulted with HR and borough counsel, if necessary. Tread carefully here.

Rick Birdsall, J.D., Senior Associate at The Growth Company

911 && 411 www.thegrowthcompany.com HR 411 411 && 411 911 && 411

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EMPLOYEE STRESSED OUT BY MANAGER IS NOT DISABLED AND MAY BE TERMINATED

By Karen Wentzel on May 29th, 2015 Posted in FMLA, Mental Health

Stress can be a common workplace complaint, and such complaints are often attributed to manag-ers—perhaps unsurprisingly given the managerial role of meeting performance goals. A recent case found that such narrow and particularized stress is not a disability recognized under California’s Fair Employment and Housing Act (FEHA). (See Higgins-Williams v. Sutter Medical Foundation (Third Appellate Dist, May 26, 2015), Case No. C073677) [pdf].

Aside from the reason for the plaintiff’s stress, the sequence of events that unfolded following her diagnosis is not atypical for such leaves. The plaintiff, a clinical assistant at Sutter Medical Foundation, reported to her doctor that she was stressed because of interactions at work with human resources and her manager. She was diagnosed as having “adjustment disor-der and anxiety.” Based on this diagnosis, Sutter granted her a stress-related disability leave under the Family and Medical Leave Act (FMLA) and its California equivalent (CFRA).

Plaintiff took the full amount of leave allowed and returned briefly to her job. When she returned she received a negative

performance evaluation from her supervisor, and alleges that she was singled out for negative treatment and a dispropor-

tionate share of work. She also alleges that she was inaccurately accused of being irresponsible, and that the regional man-

ager grabbed her arm and yelled at her, after which she suffered a panic attack, left work, and never returned. At that

point, plaintiff sought and was given a leave of absence as an accommodation for her “disability.” Over the next five

months, plaintiff supplied a variety of doctor’s notes, first stating that she could come back to work only if assigned to a

different supervisor, and then that she was “willing to try” to return to work under her old manager. Sutter finally terminat-

ed her employment.

The court made short shrift of all her disability claims, stating explicitly that “An employee’s inability to work under a partic-

ular supervisor because of anxiety and stress related to the supervisor’s standard oversight of the employee’s job perfor-

mance does not constitute a disability under FEHA.” The court also dismissed her claims for discrimination for using FMLA/

CFRA leave, noting that it was undisputed that she had exhausted her entitlements under these leaves, and had been given

an additional five months of leave thereafter. Given that period of time and her equivocation about her ability to return

even then, the court held that Sutter had a legitimate business reason for terminating her employment, and she could not

raise an issue of fact that it was pretextual.

Should California employers rejoice at this result, seeming to finally put some limits on what constitutes a disability in Cali-

fornia? Probably not. If anything, the case illustrates the lengths to which a prudent employer must go before terminating

an employee with a claimed disability, especially one relating to mental health. And, with only a slight variation in facts (for

example, that it was not her supervisor per se that was causing her stress, but the particular type of job she held, or if she

had stated more affirmatively that she could return to her old job), the case could have gone the other way. The bottom

line: an employer still needs to proceed with extreme caution on any claim for mental disability in California or elsewhere.

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EEOC Wins Big at Supreme Court on Religious Accommodation Case

By Jeanine Gozdecki | Employment Discrimination | on 01 June 2015

This morning, the U.S. Supreme Court handed the EEOC a victory over national retailer Abercrombie & Fitch on a question of religious accommodation.

The court addressed whether an employer must have actual knowledge of an applicant’s need for a religious accommoda-tion to violate Title VII. By a vote of 8-1, the high court said, “no.”

It started when Abercrombie did not hire a woman who appeared for her interview wearing a headscarf, which would have violated the clothing store’s strict dress code. The manager who decided against hiring the candidate conceded that it did-n’t matter why the person was wearing the headscarf—whether for religious or other reasons—the headscarf was not al-lowed.

On behalf of the woman, who turned out to be a practicing Muslim, the EEOC sued Abercrombie in federal court in Oklaho-ma, which ruled in favor of the EEOC. Then, the 10th Circuit reversed the lower court and found that a company’s failure to accommodate a religious practice could not violate Title VII unless the employer has actual knowledge of a person’s need for an accommodation. In this case, the applicant did not ask for an accommodation.

On June 1, 2015, the Supreme Court rejected the 10th Circuit’s reasoning. In writing for the majority, Justice Antonin Scalia said that Title VII does not require employers to have actual knowledge; rather, Title VII prohibits certain motives. Thus, whether it is merely suspected or confirmed, an applicant’s religious practices may not be a motivating factor in employ-ment decisions. In his concurring opinion, Justice Alito reached the same decision, but questioned the majority’s analysis, saying that the language of Title VII “does not compel such a strange result.”

The majority opinion, at less than seven pages, emphasizes that Title VII is not neutral about religion. Instead, Title VII gives religious practices “favored treatment,” placing affirmative obligations on employers to accommodate religious practices.

The decision raises more questions, including whether Abercrombie could have accommodated the religious practice with-out creating an undue hardship. In 1977, the Supreme Court established a “de minimis” rule—any accommodation causing more than a de minimis cost would be an undue hardship. De minimis cost includes not only direct monetary costs, but also indirect, less tangible impacts on a business.

EEOC wins big at Supreme Court on religious accommodation case Blog Litigation

Barnes & Thornburg LLP This morning, the U.S. Supreme Court handed the EEOC a victory over national retailer Abercrombie & Fitch on a question of reli-gious accommodation…

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Employers Can Check Applicant’s LinkedIn Reference Without Violating the FCRA

By Lauren Harris on June 1, 2015 at 4:24 pm

The United States District Court for the Northern District of California recently dismissed a proposed class action alleging that LinkedIn was a Consumer Reporting Agency (“CSA”) under the Fair Credit Re-porting Act (“FCRA”) and violated the law when it provided an online feature that allows businesses to check applicants’ references on the site without the applicants’ knowledge. Sweet v. LinkedIn Corp., 5:14-cv-04531-PSG (N.D. Cal. April 14, 2015). The Plaintiffs unsuccessfully argued that the site’s “Reference Search” feature produced “Consumer Reports” (“CR”) under the law.

The four named plaintiffs each used LinkedIn to apply and interview for jobs. They argue that they were denied em-ployment opportunities after the potential employers connected with them on LinkedIn. The plaintiffs allege that LinkedIn’s publication of Reference Searches to prospective employers violated the FCRA.

The FCRA’s purpose is to protect consumers from the transmission of inaccurate information. The law requires com-panies that operate as CSAs to “adopt reasonable procedures for meeting the needs of commerce for consumer cred-it, personnel, insurance, and other information in a manner which is fair and equitable to the consumer, with regard to the confidentiality, accuracy, relevancy and proper utilization of such information …” 15 U.S.C. §1681(b). This edict applies to CRs created by the CSAs that contain information about a consumer regarding his or her “credit worthi-ness, credit standing, credit capacity, character, general reputation, personal characteristics, or mode of living, that will be used in whole or in part as establishing the consumer’s eligibility” for “employment purposes.” 15 U.S.C. §1681a(d)(1).

LinkedIn’s “Reference Search” feature creates a list of individuals who have worked for the same company during the same period of time as the person about whom the search is conducted. Employers can then contact these refer-ences through the site to obtain feedback about the applicant. The plaintiffs argued that the feature creates CRs and that the company violated the FCRA by not instituting the required procedures and complying with its notice and consent requirements. The court held that the feature is excluded from the definition of “consumer report” because the applicants voluntarily provide the information with the intention of LinkedIn publishing it.

Plaintiffs also argued that the Reference Searches revealed information about the potential references that could provide the employer with information about applicants’ character, general reputation and mode of living. Specifical-ly, the search shows that the references have jobs in certain industries, live in certain locations and have connections to other well-respected or notorious individuals (like Bernie Madoff). Therefore, the information about the refer-ences provides employers with additional information about the applicants. The court rejected this argument, stating that the Reference Search does not actually show that the applicant knows or associates with the recommended ref-erences, therefore the correlation between the references’ information and the applicants’ information is not neces-sarily there.

The court also found that the Reference Searches are not used or intended to be used for “employment purposes” under the FCRA. Employers do not use the Reference Searches themselves to make employment decisions but in-stead use them to locate people who may be able to provide information that could help employers evaluate the ap-plicants.

The court also found that LinkedIn is not a CSA, therefore it could not create a CR. Under the FCRA, a CSA gathers and/or evaluates information to make CRs to third parties in exchange for a fee. LinkenIn, however, gathers the infor-mation to carry out consumers’ information-sharing objectives.

Although this is an indication that courts are not willing to expand the FCRA’s application to social media, the court’s ruling is not completely determinative of the issue. The plaintiffs were granted leave to file an amended complaint but failed to do so, and the case was dismissed on May 21, 2015. We expect this will not be the last case that will try to expand the FCRA’s application, and we will continue to monitor this developing issue.

What does this ruling mean for employers? If social media sites are categorized as CSAs producing CRs under the FCRA, the employers who search these sites are likewise subject the FCRA’s pre- and post-screening notice, consent and disclosure requirements. The case sheds additional light on the use of social media during the hiring process and its potential pitfalls. Employers should still be cognizant of EEO laws when using social media during the hiring pro-cess. If you have questions regarding the FCRA’s requirements or any other laws pertaining to your hiring practices, please contact the attorneys in our Labor and Employment Group.

Lauren Harris is an associate in the Labor & Employment Practice Group at Greensfelder, Hemker & Gale, P.C. She can be reached at (314) 335-6839 orlharris@greensfelder.com.

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ABERCROMBIE DECISION: WHAT’S NEXT FOR EMPLOYERS?

By Jeanine Gozdecki | EEOC, Employment Discrimination | on 02 June 2015

The Supreme Court scored a victory for the EEOC yesterday, and, notably, for religion. The court’s majority decision emphasized that religion is a protected class that requires “favored treatment.” The decision also underscores that religious practices are equivalent to one’s religious beliefs, and are accorded the same protection.

Although the court could have limited its decision to the facts of this particular case (as did Justice Alito in his concurring opinion), it rejected the employer’s view that disparate treatment requires an employee to prove that an employer has “actual knowledge” of the need for an accommodation. The opinion itself de-scribes its central finding as “straightforward: An employer may not make an applicant’s religious practice, confirmed or otherwise, a factor in employment decisions.”

This is good advice for employers, but practically, the Abercrombie decision makes life incrementally more complicated. Front-line supervisors and managers should be trained on key decisions for individuals where disability, pregnancy and religion are involved—because all of those characteristics may require some form of reasonable accommodation. Requiring all employees to follow all the same rules ignores the nuances of the laws, and potentially will land companies in court.

911 && HR 411

Jeanine M. Gozdecki is a partner in the Labor & Employment Department in the firm's South Bend, Indiana office. Ms. Gozdecki manages and performs virtually all aspects of employment-related advice and litigation for business clients. She works with cli-ents to understand their structure, goals and challenges, allowing her to partner with them to manage significant employment-related issues.

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August 18, 2015 Seminar: 8:30 am—12:00 pm

Live Webinar: 1:00 pm—4:30 pm

September 2015 Seminar August 2015 Seminar

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To register or for more information please visit our website at:

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