Mark Kluger Quoted in SHRM Article: How to Avoid Discrimination Lawsuits

An Applebee’s franchisee in Plant City, Fla., subjected a Black, gay worker to racial and homophobic epithets and then forced him to quit, according to a lawsuit filed by the U.S. Equal Employment Opportunity Commission (EEOC).

In July, Neighborhood Restaurant Partners (NRP) Florida LLC, the restaurant operator, agreed to pay the plaintiff $100,000 in monetary relief.

“No employee should have to endure homophobic and racist harassment by co-workers,” EEOC regional attorney Robert E. Weisberg said in a statement. “Failing to take corrective action to correct a work environment permeated with racial and homophobic slurs, and, even worse, punishing an employee for reporting harassment will not be tolerated.”

From March to June 2019, two of the restaurant’s staff members continuously made derogatory statements to the employee and wore attire, including Confederate flag paraphernalia, that offended him. The harassment occurred “on a near daily basis,” according to the EEOC’s lawsuit.

The employee complained to various levels of management at the restaurant, but he was told to “ignore it,” and no other actions were taken by the company. Afterward, his scheduled hours were cut and he was forced to quit, the lawsuit states.

In addition to the financial settlement, NRP will provide specialized training on sexual orientation and race discrimination to prevent further workplace discrimination and so HR officers and managers know how to address complaints.

The decree also requires NRP to appoint an internal monitor to review complaints of sexual-orientation and race-based harassment and to provide EEOC with reports of harassment complaints that also describe its actions taken in response to the complaint.

None of the individuals named in the complaint are still employed by NRP, according to Pamela Jones, vice president of marketing for NRP Florida.

“At Neighborhood Restaurant Partners Florida, we are committed to maintaining a safe and inclusive environment for all,” Jones said. “We have used this isolated incident as a learning opportunity and will make training available to ensure that our restaurants are a place where all feel welcome and respected.”

Examples of Discrimination

Peter Spanos, an attorney with Taylor English Duma LLP in Atlanta, opined that NRP made two serious mistakes if the allegations of discrimination are true.

First, Spanos said, the company failed to fulfill its obligation under federal anti-discrimination laws to conduct a reasonable investigation of the cook’s allegations of harassment. Second, NRP unlawfully retaliated against the cook by reducing his hours and shifts after he complained about harassment.

“The EEOC’s complaint paints a picture of the restaurant management turning a blind eye to the verbal harassment by two co-workers,” Spanos said.

Title VII of the Civil Rights Act of 1964 makes it illegal for an employer to discriminate against a person based on race, color, religion, sex—including pregnancy, sexual orientation and gender identity—or national origin in such aspects of employment as:

  • Job assignments.
  • Pay rate.
  • Hiring or firing.
  • Training.
  • Promotions.
  • Benefits.
  • Layoff.

Nearly half of LGBTQ workers have dealt with unfair treatment in the workplace at some point in their career, according to a 2021 report by the Williams Institute. And a 2021 Gallup poll showed that about 1 in 4 Black employees in the U.S. reported having been discriminated against at work in the past year.

Examples of discrimination that could lead to a lawsuit include:

  • Giving workers bad reviews due to their race, gender, disability, religion or sexual orientation.
  • Showing preferential treatment, such as giving a group of employees less-desirable jobs.
  • Making it harder for a group of workers, such as people of color, to earn promotions.
  • Banning religious attire, such as a hijab or yarmulke.
  • Making racially derogatory or sexually suggestive comments.

The EEOC lawsuit against NRP illustrates the serious consequences that will likely occur if management does not effectively investigate and take prompt remedial action when harassment occurs in the workplace, Spanos said.

“It also illustrates how jokes, unnecessary comments and other talk in the workplace can be unlawful harassment … and the serious consequences of adverse personnel actions, such as retaliation, taken after an employee complains about harassment,” he said.

Do You Have a Complaint Procedure?

Spanos said employers can take several action steps to reduce or eliminate unlawful harassment and discrimination based on all protected categories, including sexual orientation and race:

Adopt clear and meaningful anti-harassment and anti-discrimination policies.
Conduct periodic training for the workforce, management and HR personnel.
Update mission statements that emphasize the company’s commitment to a workplace free from unlawful harassment and discrimination.
Host employee forums periodically to explore whether any discrimination or harassment is occurring.
If an investigation reveals inappropriate conduct, managers must take prompt and effective remedial action, Spanos explained. This can include a variety of measures, including discipline, termination, performance improvement plans, the restructuring of departments and other options.

He also said companies must establish avenues for employees to complain about alleged harassment or discriminatory treatment. This should include both a general open-door policy as well as formal complaint rules and opportunities detailed in HR policies and employee handbooks.

“Both formal and informal complaints should be taken seriously,” Spanos said. “A prompt and reasonably thorough investigation should be done in each instance. Supervisors should be trained to alert responsible HR personnel to situations that they encounter or learn about, even if no formal complaint is received.”

Mark Kluger, founder of law firm Kluger Healey LLC in Fairfield, N.J., said an effective complaint procedure is the most important tool that an employer can have to prevent discrimination at work.

“What makes a complaint procedure effective is both its accessibility to employees and the response from employers to complaints,” Kluger explained. “The response requires well-trained HR professionals that react quickly, assess the merits and provide prompt remedial solutions when warranted.”

Read the full article here.

Mark Kluger Featured in HR Brew Article: The EEOC’s Update Trends Medical-Testing Guidance Back Toward Pre-Pandemic Norms

Pre-pandemic (if you can remember that long ago), were you ever required to check your temperature, upload proof of vaccination to a mobile app, or test for a virus just to attend an in-person work event? Probably not.

According to the employment attorneys interviewed for this piece, that’s because the scope of workplace medical examinations has historically been very narrow—justified if employers can prove testing is “job-related and consistent with business necessity.”

Like most things, this changed at the onset of the pandemic. Mark Kluger, partner at Kluger Healey, said the number of Covid cases, speed of community spread, and lack of available vaccines gave employers the “green light” to test employees for Covid-19. It was “implicit,” Kluger explained, that in every industry, testing was a business necessity.

Last month, the EEOC updated its guidance on workplace Covid-19 testing, reverting the standard from an automatic “yes” back to a qualified “maybe.”

Some factors determining whether or not it’s necessary, according to the agency, include rates of community spread, employees’ vaccination status, the likelihood of breakthrough infections, and transmissibility and severity of current variants, as well as the type of contact employees have with coworkers and the public.

Each expert interviewed for this piece stressed that the prior Covid-19 testing policy was unusual and adopted to meet the emergency at hand. Evandro Gigante, partner at Proskauer Rose, said last month’s update marks a bit of a return to pre-pandemic employment law normalcy.

“It’s [now] not automatically the case that an employer can conduct testing in any circumstance at any time just because we are in the midst of a pandemic,” Gigante said.

Not so fast. Just because the agency has reinstated more scrutiny doesn’t mean testing will stop. Though the policy, on paper, may seem to be business-as-usual, Devjani Mishra, leader of Littler Mendelson’s Covid-19 task force and return-to-work team, points out that the circumstances are still anything but normal.

“They say, ‘Well, look at CDC guidance,’ and the CDC guidance is essentially bright red. You go through the different factors: [Is there] transmission? Yes. Is it possible for people to get breakthrough infections? Yes. Will [there be] potentially severe infections? Yes, we know that hospitalizations are up in many, many places,” Mishra said.

If anything, she said, CDC guidance suggests a need for more testing, particularly at companies without “slack in the system” to provide coverage for workers taking time off due to Covid. She sees the EEOC update as guidance for the future when conditions are less severe.

But when to say “when”? The criteria, Kluger said, don’t outline clear thresholds for how much community transmission or how severe a variant must be to warrant continued testing. If a highly severe variant has a low transmission rate, but workers are frequently interacting with each other and the public, then what?

Kluger said he has “no idea.” The ambiguity around thresholds, Kluger said, leaves employers to make “judgment calls” about whether conditions warrant employee testing.

Mishra said some clients read the EEOC’s announcement and were initially worried about increased legal risk. However, she said most feel that testing currently holds up, no matter what threshold you use.

“I think an employee would have to work really hard to identify the analysis that allows them to say, ‘Oh, no, transmission is not really bad right now or ‘Breakthrough infections don’t exist,’” she said.

Mishra said employees may be able to “get there” somewhere down the line—she noted that the guidance could have been designed to empower workers to push back on policies that were “put in place then forgotten about”—but even then, she suspects most testing policies won’t end in complaints. In her opinion, most companies will be on the lookout for a testing “off-ramp” as soon as it’s safe.

“Testing is expensive. It’s burdensome. It’s time-consuming,” Mishra said. “There aren’t that many employers out there that really want to do more testing than they have to do.”

Whether employers are looking to justify or reduce testing, one thing is clear: The days of the CHRO doubling as the chief Covid officer are far from over.

“HR departments are gonna have to continue to have their finger on the pulse,” Kluger said.—SV

Read more here.

Mark Kluger Quoted in SHRM Article: When Should Service Dogs Come to Work?

On June 30, the U.S. Equal Employment Opportunity Commission (EEOC) sued arts-and-crafts retailer Hobby Lobby for refusing to reasonably accommodate and then firing an employee with multiple mental health conditions who requested the use of a service dog.

The EEOC alleges Hobby Lobby violated the Americans with Disabilities Act (ADA) and is seeking back pay, compensatory and punitive damages, and reinstatement for the employee.

“Millions of Americans are successful, productive workers despite having mental health conditions that can be debilitating,” Andrea G. Baran, regional attorney for the EEOC’s St. Louis District Office, said in a statement. “The ADA ensures equal employment opportunity for these individuals, including those who are assisted by service animals.”

On Oct. 3, 2020, a part-time clerk at a Hobby Lobby store in Olathe, Kan., advised her manager that she needed to bring her fully trained service dog to work to alleviate her symptoms of post-traumatic stress disorder, anxiety and depression, according to the lawsuit.

After submitting a letter from her mental health provider, the worker met with Hobby Lobby’s HR representative to discuss her request. But the company concluded that the dog would present a safety concern because a colleague or customer might be allergic to the dog or trip over it, or the animal might break something.

Hobby Lobby permits customers to bring service dogs and other dogs into the Olathe store. But managers were unwilling to allow the employee’s service dog in the store to assess whether their safety concerns were legitimate.

Two weeks later, the employee returned to work with her service dog and renewed her request for reasonable accommodation. The store manager sent her home, reinforcing that she could not have her service dog at work.

The manager also told her that if she could not work without her service dog, it would be considered job abandonment. The employee did not return to work, and Hobby Lobby terminated her employment, according to the lawsuit.

How Does the ADA Define Service Animals?

Service animals help individuals with disabilities live and work independently. Under the ADA, a service animal is a dog that has been trained to perform tasks for an individual with a disability such as:

  • Vision problems.
  • Mobility impairments.
  • Seizure disorders.
  • Mental health conditions.

“Employers must not reject service animals, or any other reasonable accommodation, based on stereotypes or assumptions regarding the safety or effectiveness of the accommodation,” David Davis, acting director of the EEOC’s St Louis District Office, said in a statement.

Emotional service, therapy, comfort or companion animals are not considered service animals under the ADA’s Title III public accommodation provisions. However:

A dog trained to sense an impending anxiety attack and take a specific action to help avoid or reduce its effect would qualify as a service animal.
Under Title I of the ADA, an emotional support animal could conceivably be an accommodation for an employee in the workplace, such as for a veteran with post-traumatic stress disorder.
Peter Spanos, an attorney with law firm Taylor English Duma LLP in Atlanta, said that requests for accommodation via emotional support animals were once rare but have become increasingly common.

But the lack of clear guidance and precedents, as well as the open-ended nature of obligations under Title I of the ADA, make the employers’ task of evaluating and responding to such requests difficult, Spanos explained.

“In many cases of accommodations for disabilities, the employer must thoroughly investigate the nature and reasons for the preferred accommodation and the question of undue hardship,” he said. “Extensive discussion and possibly expert advice may be necessary to fully resolve accommodation issues.”

Did Hobby Lobby Do Enough?

Andrew M. Gordon, an attorney with the law firm Hinshaw & Culbertson LLP in Fort Lauderdale, Fla., said the ADA is one of the most confusing laws for employers because the interactive process can create gray areas that can result in charges of discrimination and lawsuits.

“In this case, the EEOC appears to believe that Hobby Lobby reached the wrong conclusion after going through the interactive process regarding whether or not to allow this employee to use a service animal,” Gordon said. “However, it is very important to keep in mind that this is a just a lawsuit—just allegations. This will be a very fact-intensive process and will not be a slam dunk either way.”

Although the legal proceedings must play out, more effort could have been made to determine how the accommodation could have been provided, according to attorney Mark Kluger, founder of law firm Kluger Healey LLC in Fairfield, N.J.

For example, he wonders whether Hobby Lobby asked the employee’s co-workers if any of them had an allergy or anxiety about dogs. Or the store could have checked to see if the dog could be contained behind the register with the employee.

“That might have required choosing a specific register for the employee or even providing a slightly expanded space, but it would be difficult to argue that such measures would be an undue hardship,” Kluger said. “There is a no doubt a well-thought-out and documented interactive process that involves genuine consideration of proposed accommodations is critical for employers to be able to successfully defend a determination of undue hardship.”