Employment Law Observer

On April 29, 2024, the Equal Employment Opportunity Commission (EEOC) published a final version of its Enforcement Guidance on Workplace Harassment. The new guidance provides  updates and agency direction on workplace harassment in virtual or online work environments, as well as harassment related to sexual orientation, gender identity, pregnancy, and religion.

The U.S. District Court for the Western District of Wisconsin recently addressed an employer's responsibilities to accommodate an employee's religious beliefs. In EEOC v. Walmart Stores East, LP, the court examined whether Walmart was required to accommodate a candidate for an assistant manager position who informed Walmart—after he received his offer—that he could not work on Saturdays due to his religion. Walmart ultimately withdrew the offer of employment, but offered the employee the opportunity to seek a non-management position as well as the assistance of human resources in his job search. The employee refused Walmart's offer and asserted claims of religious discrimination and retaliation under Title VII.

On June 3, 2019, the Supreme Court of the United States made a ruling that employers and their legal counsel need to be aware of. In Fort Bend County v. Davis, the Supreme Court ruled that the charge-filing requirements for EEOC discrimination claims filed under Title VII, including that Act's scope of charge and filing rules, are not jurisdictional and instead are claims processing rules which can be waived by a defendant if not timely raised in federal court proceedings. This decision resolves a split among multiple federal Circuit Courts which have confronted the issue.

As Illinois employers get into the swing of 2019, do not forget Illinois has a new and additional posting requirement that came about as a result of amendments to the Illinois Human Rights Act in the Fall of 2018. That posting requirement obligates employers to post the notice found here with your other postings to employees and to include the substance of the content in your employee handbooks. It reminds employees of their right to be free from discrimination, sexual harassment, and retaliation, as well as their right to a reasonable accommodation for pregnancy and disabilities.

Every employer has faced the unfortunate experience of hiring an employee whose performance fell well below expectation. As highlighted in the Seventh Circuit’s recent Ferrill v. Oak Creek-Franklin Joint School District decision, employers faced with poor performing employees should carefully address and document such shortcomings to ward off potential Title VII charges.

In Ortiz v. Werner Enterprises, Inc., the Seventh Circuit stated in very clear terms that lower courts and parties to discrimination actions should not divide evidence into direct and circumstantial buckets under the familiar direct and indirect methods of proving discrimination under Title VII of the Civil Rights Act of 1964. The Court’s instruction should apply with equal force to claims brought under the Age Discrimination and Employment Act and the Americans with Disabilities Act.

The U.S. Supreme Court held in Green v. Brennan that the statute of limitations for a constructive discharge begins to run on the date of resignation, not the date of the employer’s last discriminatory act, resolving a circuit split. As a result, in determining the deadline for filing a charge of discrimination with the EEOC, constructive discharge cases will be treated the same way as actual discharge cases.

Effectively responding to employee discrimination complaints by current employees without running afoul of federal and state anti-retaliation laws presents a slippery slope for all employers. In fact, retaliation complaints make up nearly half of all discrimination charges filed with the EEOC today. Thus, it is critical that employers, their managers, supervisors, and employees understand who the laws protect and what constitutes retaliation.

On the heels of the biggest religious discrimination case in years, and in line with the EEOC's "hottest litigation trend" (according to David Lopez, General Counsel of the EEOC, pictured right), the EEOC continued its charge against religious discrimination in the workplace in EEOC v. Star Transport Co., Inc. Last week, a Northern District of Illinois jury awarded two Muslim truck drivers $240,000 finding Start Transport fired them for refusing to transport alcohol despite their religious beliefs.

Your author joined the ranks of the bearded in January after six years of daily shaving for the Air Force, skillfully concealing his newfound hirsuteness amid the current popularity in facial hair (see: Special Forces members, hipsters, baseball players). For many others, though, beards, uncut hair, or other grooming practices are not personal preferences, but rather religious obligations. On the other hand, many employers wish to convey a certain image to the public or have safety concerns addressed through grooming standards. 

The U.S. Supreme Court has issued its long-awaited decision in the "Looks Policy" case. It's not terribly unexpected, but it is a little scary considering the potential far-reaching effects going forward. 

In a case we discussed earlier, the U.S. Supreme Court did not appear impressed with Abercrombie & Fitch's recent argument that a hijab wearing applicant needed to ask for religious accommodation before they were obliged to grant it to her. News sources have reported that oral argument this past Wednesday seemed to favor Samantha Elauf's right to an accommodation even though the teenage, Muslim job applicant in Tulsa did not explicitly tell Abercrombie & Fitch that she was wearing the black head scarf for religious reasons.  

In what seems to be a rather rare result these days, an employer facing religious discrimination claims actually prevailed on its undue hardship defense!

An applicant sought a position with a retail clothing company that had a "Look Policy," which required employees to dress in clothing that was consistent with the type of clothing sold in the stores. The policy precluded the wearing of caps, though the term was not defined. If, during the interview process, there is an issue about the application of the Look Policy, or if there's a request for a deviation from the policy due to religious practices, the manager is to contact a supervisor or human resources to determine how to proceed.

Veganism = religion? Well, it's certainly akin to a religious belief, holds a federal district court in Ohio.

The Fourth Circuit recently held that an employer did not have to hire independent contractors or take other action which would have been detrimental to other employees in order to accommodate the religious beliefs of one of its drivers.