This article was originally written by Barbara E. Hoey and Alyssa M. Smilowitz, and originally posted on Kelley Drye’s Labor Days Blog.

Recent filings show healthcare employers remain susceptible to religious discrimination claims.

In August, the EEOC filed suit against Hackensack Meridian Health (“Hackensack”), a New Jersey healthcare network, alleging an employee was harassed due to religion. According to the complaint, Hackensack hired Jojy Cheriyan in August 2015 to perform clinical informatics work. The EEOC alleges that his supervisor discovered that Mr. Cheriyan was Catholic, which sparked a strong negative reaction. According to the complaint, the supervisor “exhibited disapproval” when he observed a crucifix in Mr. Cheriyan’s office, and began treating Mr. Cheriyan in a hostile and verbally abusive manner, which included screaming at Mr. Cheriyan during meetings, belittling him and his work, tearing his work up and throwing objects at him.

The EEOC claims that Hackensack was aware of the harassment – due to Mr. Cheriyan’s complaints to management – yet failed to take reasonable corrective actions to put an end to the treatment.

At this time, the litigation is in its infancy with only the August complaint on the docket and an answer due in a few weeks. In its press release about the case, the EEOC’s New York District Director stated, “[p]eople of all religions are entitled to go to work and do their jobs without fear of harassment.”

What to Take Away From This Case? Two Lessons

1.  What types of religious items (putting aside clothing) may an employee exhibit in the workplace and when can a manager limit such? Are there restrictions?

The EEOC Compliance Manual on Religious Discrimination provides some insight but does not provide a clear answer. To some degree, the EEOC seems to say that the answer depends on whether the display is in a public place.

2.  How Should a Supervisor Handle a “Religious” Display?

It is unknown if the plaintiff’s manager in the healthcare case actually was hostile or abusive toward the plaintiff. It is likely, however, that any conversation about the crucifix became tense, and may have brought about the charge.

A supervisor should not discuss religion with employees. Period. If an issue arises regarding religious observance, a supervisor should talk to human resources and get guidance about how to speak to the employee.

Clearly, any exchange that is perceived as hostile to religion could spur a discrimination claim.

The EEOC Compliance Manual on Religious Discrimination provides the following example:

  • “Susan and Roger are members of the same church and are both employed at XYZ Corporation. Susan works as an architect in a private office on an upper floor, where she occasionally interacts with co-workers, but not with clients. Roger is a security guard stationed at a desk in the front lobby of the XYZ building through which all employees, clients, and other visitors must enter.”
  • “At a recent service at Susan and Roger’s church, the minister distributed posters with the message ‘Jesus Saves!’ and encouraged parishioners to display the posters at their workplaces in order to ‘spread the word.’ Susan and Roger each display the poster on the wall above their respective work stations. XYZ orders both to remove the poster despite the fact that both explained that they felt a religious obligation to display it, and despite the fact that there have been no complaints from co-workers or clients. Susan and Roger file charges alleging denial of religious accommodation.”

According to the EEOC guidance:

  • For Susan, XYZ Corporation “will probably be unable to show that allowing Susan to display a religious message in her personal workspace posed an undue hardship, because there was no evidence of any disruption to the business or the workplace which resulted.”
  • But for Roger, “because Roger sits at the lobby desk and the poster is the first thing that visitors see upon entering the building, it would appear to represent XYZ’s views and would therefore likely be shown to pose an undue hardship.”

In addition, employers must not forget that an employer’s rights under the First Amendment may also come into play in such situations. To make things more complicated, government employers have their own unique considerations.

As religious holidays occur throughout the fall and beyond, employers should carefully consider any display of religion in the workplace and ensure both managers and employees are educated accordingly.

This post was written by Barbara E. Hoey and Diana R. Hamar and originally posted on Kelley Drye’s Labor Days Blog.

Anti-harassment policies are nothing new and we would be shocked to find an employee handbook without one.

But, have they really worked?

In the #MeToo era, it has become clear that these policies have not really been effective and employers are facing increasing scrutiny over why they cannot prevent harassment, and how they handle claims of harassment once they are filed.

Layering onto this is recent federal and state legislation, which makes harassment more expensive and public — like the federal tax law that prohibits companies from deducting harassment settlements if the settlement is subject to a nondisclosure agreement, and New York State’s anti-harassment legislation which will prohibit mandatory arbitration of those claims.

These laws coupled with the increased scrutiny make it essential for employers of all sizes to take a hard look at their anti-harassment program, and determine whether it is doing its job — namely: preventing, disclosing, and dealing with bad behavior in the workplace, before that behavior becomes a lawsuit or explodes on the front page.

So what does an effective harassment program look like and how is it implemented?

The EEOC recently published new informal guidance that is an excellent starting place for employers. Appropriately titled, “Promising Practices for Preventing Harassment,” this guidance has been in process for years and is nothing really new.

Even so, that does not make it bad. Indeed, the informal guidance should cause employers to go back to the basics. This guidance serves as a reminder for best practices and gives employers a roadmap for what the EEOC will be looking at when it is investigating harassment claims. For that reason, it is a good resource. Continue Reading EEOC’s New Guidance Takes Us Back to the Basics

This post was originally written by Barbara E. Hoey and posted on Kelley Drye’s Labor Days Blog.

Earlier, we blogged about James Damore, an engineer at Google who was terminated for his memo, which openly expressed his belief that women were not “biologically suited” for certain types of positions and criticism of the company’s efforts to diversify its work force.

The engineer challenged his termination by filing a charge with the National Labor Relations Board and launched a media offensive arguing that he was fired for his ‘conservative’ views.

I am pleased to report that the NLRB’s general counsel issued an advice memorandum affirming that Google was indeed acting lawfully when it terminated Mr. Damore. Among the conclusions, the NLRB General Counsel Jayme Sophir found that any employer must be given “particular deference” when it is acting to promote and comply with state and federal employment laws, and to promote diversity in their workplaces.  Thus, “employers must be permitted to ‘nip in the bud’ the kinds of employee conduct that could lead to a ‘hostile workplace’, rather than waiting until an actionable hostile workplace has been created before taking action.”

The general counsel also confirmed that the Board has already found that employee conduct, which “significantly disrupts work processes, creates a hostile work environment, or constitutes racial or sexual discrimination” it is not protected.

Using that rationale, the Board concluded that Mr. Damore’s “use of stereotypes bases on purported biological differences between women and men should not be treated differently than the types of conduct the Board found unprotected in these cases,“ as such comments “were likely to cause serious dissension and disruption in the workplace.”  Therefore, while “much of” the memorandum may have been protected, his statements about “biological differences  between the sexes were so harmful, discriminatory and disruptive as to be unprotected”.

The Board also noted that Google “carefully tailored” its message to explain Mr. Damore’s termination and to ensure employees were aware of their right to engage in protected speech.

The Takeaway for Employers – This decision confirms that, while it may be fine, there is a line which employees cannot cross when they are “protesting” employer actions with which they disagree. Employees may not engage in speech in the workplace (verbally, in written or electronic form), which is openly discriminatory, or which is likely to cause dissension or disruption in the workplace. This should be empowering to all employers. While employers certainly need to be careful when disciplining or discharging an employee under these circumstances, they do have the right to set some reasonable limits on what type of speech will be tolerated in the workplace

This post was written by Barbara E. Hoey, Mark A. Konkel, Steven R. Nevolis and Diana R. Hamar and originally posted on Kelley Drye’s Labor Days Blog.

As January draws to a close, New York employers are confronting the reality of many new laws and regulations that govern the employment relationship – from the new Paid Family Leave law, to the new federal tax law. We are also tracking several newly-signed and proposed pieces of legislation, which could further complicate the employment relationship in New York.

Here is what there is so far:

New York Paid Family Leave

As we previously reported, effective January 1, most employers in New York State will be covered by the new Paid Family Leave law (“PFL”). Under the PFL, employers will need to provide eligible employees with 8 weeks of family leave with salary reimbursement capped at 50% of the state’s average weekly wage. This will increase on an annual sliding schedule until 2021 when employees will be entitled to 12 weeks of family leave with salary reimbursement capped at 67% of the state’s average weekly wage.

Eligible employees will be permitted to take leave to care for a qualified family member’s serious medical condition, to care for the birth or placement of a child, or for a qualified military exigency. Leave under the PFL will overlap with an employee’s leave under the Family and Medical Leave Act under certain circumstances.

For a more extensive analysis of the PFL, its requirements (including employer notice requirements), and suggested steps for compliance, we encourage you to read our previous blog post on this law: “A New Headache – New York’s Paid Family LeaveContinue Reading The New Year Brings New Rules to New York

This post was written by Barbara E. Hoey and originally posted on Kelley Drye’s Labor Days Blog.

As many of us settle into September, with fond memories of our summer vacations, do not think that the federal agencies were on a hiatus. In fact and despite predictions that the EEOC under the new administration would be less aggressive in enforcing the discrimination laws, the Commission has been very active and did not take much of a summer vacation.

A survey of recent enforcement actions brought and settlement by the EEOC illustrate that the agency is still aggressively prosecuting cases, and continues to be focused on several key areas namely: combatting disability discrimination, proper accommodations and treatment of pregnant employees, and claims of systemic gender discrimination in company policies.

EEOC Sues Accuses Employer of Firing Worker With Breast Cancer
In late August, the EEOC sued the Illinois Action for Children (IAC), alleging that the IAC unlawfully fired an employee who was out on leave for breast cancer treatment, violating the Americans with Disabilities Act and the Civil Rights Act of 1991.

This case highlights the danger of standing behind a strict leave policy and denying requests for leave extensions.

The plaintiff, Myrnie Brown, had worked for the IAC for two years, when she was diagnosed with breast cancer and requested, and was granted, a leave that would span June through October 1, 2015. She later requested an extension of that leave to November when her doctor ordered follow-up treatments. IAC denied that extension and fired Brown.

Interestingly, Brown was eventually rehired, but had been out of a job for over 6 months. Clearly, the rehiring did not save the day for the IAC, as the EEOC contends that it failed to accommodate Brown by not considering an extension of the leave as a reasonable accommodation.

EEOC Chicago district regional attorney Greg Gochanour said, “Anyone suffering from breast cancer has enough to face and overcome without her employer violating federal law and denying her adequate leave to combat her illness. When such a situation sadly occurs, the EEOC is ready to step in and fight for people who are fighting discrimination as well as cancer.”

– We will have to wait and see where that case goes. Continue Reading No Summer Breaks for the EEOC

This post was written by Barbara E. Hoey and Steven R. Nevolis and originally posted on Kelley Drye’s Labor Days Blog.

The blogs and networks have been buzzing over the past few days with news that a senior software engineer at Google – James Damore – had taken it upon himself to write and post on an internal Google mailing list a ten page memo, explaining his theory on why Google’s efforts to diversify its workforce were not working. In his words, Google’s “politically correct mononculture” had reached the point where efforts to create diversity by hiring and promoting more women (and other under-represented groups) was actually hurting the company.  Implicit in his criticism was what seemed like an undercurrent that men were somehow better suited than women for many tech jobs, and that Google was hiring or promoting women over men, even when the woman might not be the best person for the role.

In the course of this memo, Damore made a number of openly sexist and stereotypical comments about women, which many employees of both sexes took great offense to.  Most disturbing was his core view, that the reason women did not succeed in tech jobs was “biological”.

For instance, he opined:

  • that women were more apt to have a stronger interest in “people rather than things” and that tech was an industry which focused on things
  • that women had a higher level of “agreeableness”, which is why they had a harder time negotiating salary
  • that women had “higher anxiety/lower stress tolerance”

Finally, he theorized that the reason there were not more women in leadership roles at tech companies was because they did not have the same “drive for status” or to succeed as men did.

Damore also was very critical and dismissive of Google’s diversity programs, training, and other company initiatives aimed at helping women and diverse employees advance.

The memo of course went viral, and was soon circulating outside of Google and all over the world.

Putting aside the fact that Damore’s views were perpetuating stereotypes and that any dialogue with a woman who has risen to a leadership role or managed large projects at work, while also managing a home and family will tell him – a woman’s ability to multi-task, handle stress, and desire for success knows no bounds. However, the immediate question that Google’s senior management had to confront was how to react to this memo. Many employees, male and female, were greatly offended by the memo and felt that it did not accurately reflect the opinions and culture of most people at the company. More fundamentally, many felt that this memo was openly hostile to, and advanced stereotypical views of, women at Google. It also perpetuated the myths and challenges that tech companies like Google face, as they work on bringing more women into senior positions. Moreover, as many who follow this area know, the Department of Labor is currently suing Google for salary discrimination, and there have been rumors of class actions looming against companies in this industry. See Anita Hill, Class Actions Could Fight Discrimination in Tech, THE NEW YORK TIMES (Aug. 8, 2017). Given this backdrop, the company needed a strong response.

Continue Reading Is Misogyny Protected Activity?