hot topics in employment law shrm presentation april 8, 2015

Polsinelli PC. In California, Polsinelli LLP

Hot Topics in Employment Law

April 8, 2015, SHRM Meeting

real challenges. real answers. sm

Hot Topics

� Disability� Pregnancy Discrimination� Transgender/Gender Identity and Sexual

Orientation� Wellness Programs� Obesity


Charge Trends @ EEOC


Disability

� ADAAA� American’s Health� Policies

– Leave– Reasonable Accommodation


Pregnancy


Pregnancy Discrimination Act (PDA)

1. An employer may not discriminate against an employee on the basis of:– Pregnancy– Childbirth– Related medical conditions

2. Women affected by pregnancy, childbirth, or related medical conditions must be treated the same as other persons not so affected but similar in their ability or inability to work


PDA Coverage

� Same as Title VII: 15 employees� Pregnancy and Childbirth:

– Current– Past– Potential– Related medical conditions


Enforcement Guidance

July 14, 2014


What does this mean?

� Effect of Guidance� Not binding on a court� May be looked to by a court for guidance

�The EEOC will likely cite the guidance as persuasive authority

� Indication of charges EEOC may pursue


Why now?

� Increase in Charges– 1997: More than 3,900 pregnancy discrimination

charges– 2013: 5,342 pregnancy discrimination charges

� Intersection of ADA and PDA is an “emerging issue” under EEOC’s Strategic Enforcement Plan (2013-16)

� EEOC v. Houston Funding – lactation is pregnancy-related condition

� Young v. UPS – Supreme Court decision in 2015� ACA – FLSA nursing breaks amendment


Americans with Disabilities Act

� Pregnancy itself is not an impairment, but some pregnancy related conditions may be an impairment under the ADAAA even if only temporary. Such as pregnancy related:– anemia– sciatica– carpal tunnel– gestational diabetes– nausea– swelling– depression


Regarded as Having a Disability

� Employer reassigns pregnant welder employee to position tracking use of tools

� Employer thought welder position may cause a miscarriage

� No work restrictions� Less pay� Problem? Yes, ADA and PDA


Record of Disability

� Police officer applicant completes a post-offer medical questionnaire in which she indicates she had gestational diabetes during her pregnancy, but the condition resolved itself after birth of child.

� Department withdraws job offer.� Issue: Violation of ADA


Reasonable Accommodation

� Redistribution of marginal functions� Altering how essential or marginal job

function is performed� Modification of workplace policies� Purchasing or modifying equipment� Modified work schedule� Granting leave� Light duty


Maternity, Paternity and Parental Leave Policies

� Two types:1. Leave for physical impairments imposed by

pregnancy and childbirth• Birthing mother only

2. Leave for care and bonding with the child� Mother (birth, adoption, and surrogacy)� Father – if made available to women,

must be equally available to men


Other leave issues

� Forced Leave: No, as long as she is able to perform her job even if the employer believes it is in the employer’s best interest.

� Sick Leave: “10-day ceiling on sick leave and policy denying sick leave during the first year of employment have been found to disparately impact pregnant women”– Employer must show: job-related and

consistent with business necessity


Health Insurance

� If offered, must include pregnancy, childbirth, and related medical conditions.

� If pre-existing covered, then must cover pre-existing pregnancy.

� Not required to cover abortion, but must cover complications.


Enforcement Guidance: Related Issues

� FMLA� Reasonable breaks for nursing mother� Young v. United Parcel Service, Inc.

– A pregnant worker sued her employer after she became subject to a 20 lb. lifting requirement and her employer refused to accommodate the restriction in her current role or assign her to light duty.

– Employer’s policy allowed light duty for those injured on the job or with disabilities under the ADA.

– SCOTUS opinion issued March 25, 2015


Best Practices

� Review and revise policies� Train managers (and employees)� Conduct employee surveys� Respond appropriately to pregnancy-

related complaints� Review and revise job duties


Best Practices

� Monitor compensation practices and performance reviews

� Monitor case law� Careful about taking positions inconsistent

with guidance where no support in case law is found


Transgender, Gender Identity and Sexual Orientation


Why now?

� 2012 – Macy v. Holder – EEOC decision that gender identity discrimination is covered by Title VII

� 2013-16 – EEOC’s Strategic Enforcement Plan – coverage of LGBT workers is an “emerging issue”

� September 2014 – EEOC’s first two suits alleging gender identity discrimination

� October 2014 – EEOC amicus in Muhammad v. Caterpillar

� December 2014 – Attorney General memo


Chavez v. Credit Nation Auto Sales, Inc, 2014 WL 4585452 (N.D. Ga.)

� Adopts recommendations of Magistrate Judge granting summary judgment to employer

� Employer supportive of employee in gender transition process who is discharged for sleeping on job

� “nervous” employer not enough to establish animus


Jamal v. Saks & Co., (S.D. Tex.)

� Saks filed motion to dismiss on 12/29/14� Plaintiff alleges violations of Title VII

because of her “gender, gender identity and gender expression”

� Argues that not “gender” discrimination but status as transsexual.

� Argues not discrimination or harassment due to gender


Federal Contractors

� July 21, 2014 - Executive Order – Amending Executive Order 11478, Equal Employment Opportunity in the Federal Government, and Executive Order 11246, Equal Employment Opportunity– Added “gender identity” and “sexual orientation” to the

list of protected categories


Wellness Programs


Why now?

� “Very important” issue for EEOC in 2015.� NPRM – March 20, 2015� Relation to ADA


ADA Considerations

� Wellness programs often involve disability-related inquiries and medical examinations

� General Rule: Under the Americans with Disabilities Act (ADA), disability-related inquiries and medical examinations must be job-related and consistent with business necessity.– The employer must have a reasonable belief based

on objective evidence that either: � an employee’s ability to perform an essential job function will

be impaired by a medical condition; or � an employee will pose a direct threat due to a medical

condition.

28


ADA Considerations

� Wellness programs tend to be implemented “across the board” without regard to an employer’s belief based on objective evidence.– Thus, the EEOC believes that wellness programs do not typically

meet the “job-related and consistent with business necessity standard.”

� The ADA permits disability-related inquiries or medical examinations that are not job-related and consistent with business necessity provided they are voluntary.� Employer may not require participation nor penalize employees

who choose not participate.

29


ADA: What Incentives Can be Considered?

� EEOC still appears unwilling to shift from its current position that the only way a wellness program can be used is when the program is truly voluntary:� EEOC generally accepts the premise of a “reward” based

system (e.g., a premium discount) vs. a “penalty” (e.g., premium surcharge)

� Questions remain as to whether the amount of any award vs. penalty has any impact over the “voluntary” nature of such rewards/penalties

� The “good news” is EEOC is finally taking a stance in three recent court filings (including EEOC v. Honeywell International, Inc., Case No. 14-cv-04517-ADM-TNL, U.S. Dist. Of Minn, 10/27/14).

30


EEOC Claims

� Honeywell recently announced revisions to its existing wellness initiatives, to further encourage employees to participate in smoking cessation programs and biometric testing with a blood draw.

– Refusal to participate in the biometric screening or smoking cessation programs result in annual increases in premium contribution rates:

� Denial of an employer contribution of $1,500 to the employee’s health savings account and up to $500 for refusal to participate in biometric screenings; and/or

� Up to $1,000 in additional premium costs for any employee (and a separate $1,000 for any spouse) who uses tobacco and refuses to participate in smoking cessation program.

� EEOC filed suit to prohibit Honeywell from implementing these new programs based on a violation of the ADA (because the wellness programs are not “voluntary” based on the penalties for non-compliance) and GINA (because genetic health information is being requested of a spouse, and his or her health history); Update: Honeywell sought and received a separate injunction from EEOC’sclaims

31


Where Does this Leave Us?

� Although the outcome of the Honeywell case is far from over:– Thus far there are no final determinations from EEOC or any

other agency that prohibit the usage of wellness arrangements, and they are supported under PPACA, etc.

– It is better to “reward” healthy behavior (by reducing premium costs) vs. “penalizing” unhealthy behavior� Don’t increase premium costs for those who choose not to

participate.� Consider additional incentives (but not additional costs) for

those with adverse health factors who participate in targeted wellness iniatives (e.g. disease management)

– Ensure proper communication of reasonable accommodation standards.

32


Obesity


Obesity

� Body weight outside a normal range or body weight that is the result of a physiological disorder can be an impairment under the ADA (29 C.F.R. Pt. 1630, App. § 1630.2(h))

� Being overweight is not an impairment by itself, but “severe obesity, which has been defined as body weight more than 100 percent over the norm, is clearly an impairment.” (EEOC Compliance Manual §902.2(c)(5)


Obesity Evolves

� Not a disability in and of itself� Conditions arising from obesity might be

“disabling”� Or, obesity caused by a physiological

condition (generally rare)� June 2013: AMA issues statement that

obesity is disease– Does that make obesity a physical

impairment?


Powell v. Gentiva Health Servs, 2014 WL 554155 (S.D. Ala.)

� Difference between impairment and perception of impairment

� Morbidly obese employee called on accounts for hospice referrals. Testified that nothing about her weight impacted her ability to do her job

� Alleges actual and regarded as claims (although latter not plead properly)

� “That Gentiva may have believed its customers did not want to buy hospice services from an overweight salesperson is no more a perception of an impairment than a belief that customers do not want to buy hospice services from a salesperson with a brightly colored rebellious hairstyle”


Whittaker v. America’s Car-Mart, Inc., 2014 WL 1648816 (E.D. Mo.)

� Plaintiff alleges disability discrimination based on severe obesity

� On Motion to Dismiss Defendant contends that obesity not disability itself unless related to an “underlying physiological disorder or condition”

� Plaintiff did not allege any underlying condition or disorder

� Plaintiff plead that he was severely obese which resulted in a physical impairment (also “regarded as” claims)

� Motion to Dismiss denied since question of whether Plaintiff could prove weight rose to level of disability not an issue


Wrap-up

� Disability� Pregnancy� Transgender, Gender Identity and Sexual

Orientation� Wellness Programs� Obesity


About the Presenter

Erin Schilling provides advice, counsel, and peace of mind so that employers can focus on what they do best – operating their business. Erin provides counsel to clients on a variety of employment issues including retaliation, leave issues and discrimination including age, race, disability, religion, national origin, and sex discrimination. She also represents employers in state court, federal court, and before state and federal agencies, defending clients against these claims. In addition, Erin advises clients on OFCCP compliance including affirmative action plan structure and preparation and represents clients in during audits by the Department of Labor.

Erin D. SchillingPolsinelli900 West 48th PlaceKansas City, MO [email protected]

You may also visit us on the web at www.polsinelli.com or our blog at www.polsinelliatwork.com.

39


About Polsinelli

Polsinelli provides this material for informational purposes only. The material provided herein is general and is not intended to be legal advice. Nothing herein should be relied upon or used without consulting a lawyer to consider your specific circumstances, possible changes to applicable laws, rules and regulations and other legal issues. Receipt of this material does not establish an attorney-client relationship.

Polsinelli is very proud of the results we obtain for our clients, but you should know that past results do not guarantee futureresults; that every case is different and must be judged on its own merits; and that the choice of a lawyer is an important decision and should not be based solely upon advertisements. © 2015 Polsinelli PC. In California, Polsinelli LLP.

Polsinelli is a registered mark of Polsinelli PC

Polsinelli, a national law firm ranked among the Am Law 100 with over 740 attorneys located in 21 offices, deliberately seeks constant improvement in all that we do. At its inception more than forty years ago, the firm established a culture of openness and entrepreneurship that still pervades today. As the fastest growing U.S. law firm for the past six years as ranked by The American Lawyer*, the firm’s growth has been fueled by the recruitment of like-minded attorneys from top law firms across the country.

Polsinelli attorneys successfully build enduring client relationships by providing practical legal counsel infused with business insight, and with a passion for assisting General Counsel and CEOs in achieving their objectives. The firm focuses on healthcare, financial services, real estate, life sciences and technology, and energy and business litigation, and has depth of experience in100 service areas and 70 industries.

*The American Lawyer 2013 and 2014 reports