Harassment/Discrimination Archives

7

September, 2023

Workplace Investigations: Gain Clarity as to Meaning

“It’s bullying,” “I’m being harassed,” or “this is creating a hostile work environment.” As a workplace investigator these are phrases that I hear on a daily basis from complainants and their colleagues, and even sometimes from the respondents accused of harassing behavior. “Harassment” and “hostile work environment” are actually legal terms, by which I mean they have been defined in the law and behaviors that meet those legal definitions may create liability for an organization. The definition of “bullying,” as I discussed in a prior post, is less clear under the law, at least in most jurisdictions. Beyond the law, most organizations have their own policies that specifically define harassment, hostile work environment, and often bullying as well. The role of a workplace investigator is to get past the language used by the interviewees, and understand whether behaviors themselves are occurring that violate the organization’s policies.

Gaining Clarity

The only way to effectively determine what behaviors are occurring is by gaining clarity, through interviews, and potentially review of relevant documentation. It requires continually asking for examples and explanations, and never assuming that the investigator has correctly inferred what the interviewee meant.

When a complainant asserts that the complainant is being subjected, for example, to a “hostile work environment“ the investigator needs to ask follow-up questions, such as:

What do you mean by that?
Can you tell me more?
Can you give me some examples?
What does that look like?
What does that sound like?
How often has it occurred?
Is it only directed at you or others as well? And if others, who, what happened with them, can you provide those examples?

Layers of an Onion

We often speak in generalizations, and use idioms, slang, and vague language in our conversation. Perusing my notes from some recent investigation interviews I had conducted presented a range of such terminology, all cited as examples of “harassment” or a “hostile work environment”:

“has me on edge;”
X person “is targeted;”
“bad mouthing me;”
gave “illegal directives;”
it’s “gaslighting.”

With each of these phrases, it was not that I did not understand the literal words being used. But they provided no greater clarity as to the offending behaviors than the initial complaint of “harassment.”

Gaining clarity therefore requires digging deeper, almost like peeling back layers of an onion, to get to what the interviewee is actually experiencing or observing. We need to continuously ask ourselves whether we know what the interviewee means by the words being used or whether we are making inferences and assumptions. If the latter, then we need to peel another layer back, with further questions, to seek specific examples of what the interviewee was experiencing:

What do you mean this person has you “on edge?”
How is this person “targeted”?
“Bad mouthing” you in what way?
What do you mean by “illegal directives?”
I have found people use the term “gaslighting” in different ways. What does that term mean to you?

Sometimes, the response provided to clarify a phrase is exactly consistent with my assumption. But there are plenty of times when it is not. Gaining clarity through further questioning provides an extra layer of detail, which enables the investigator to better understand the underlying behaviors at issue, question others to determine if those behaviors have occurred as initially described, and analyze the context to ultimately reach conclusions as to whether policies were violated.

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In this periodic Workplace Investigations blog series, I will be exploring considerations that arise from our firm’s experience conducting workplace investigations and my work as an educator with Cornell University ILR school’s professional certificate programs on conducting effective workplace investigations.

By Tracey I. Levy

22

August, 2023

Supreme Court Decision Suggests that LGBTQ+ Employees Have Lesser Protections than Others

In workplace training programs, I will at times encourage participants to consider the case study – or a situation they are personally confronting – through a different perspective. You may not be too bothered by a situation in which a woman is touching a man while speaking to him, but how would you assess the situation if the roles were reversed and it was the man doing the touching? Or perhaps you have assessed a certain pattern of behaviors to be excusable when directed at someone of a particular ethnicity. Would you feel the same if those behaviors were directed at someone of a particular race? Would it matter with which racial group the targeted person identified?

I keep reflecting on that exercise in the context of the Supreme Court’s recent decision in 303 Creative LLC et al. v. Elenis et al (June 30, 2023) and wonder whether the Supreme Court meant to signal that sexual orientation is actually not protected to the same degree as religion, race, color, and national origin. Reflecting on the 303 Creative decision in the context of federal court decisions over the past three years, I think there is ample reason to conclude that the Court did mean to signal exactly that, and sexual orientation and gender identity enjoy a lesser degree of protection than other characteristics under federal law.

Prioritizing Speech Over LGBTQ+ Interests

In 303 Creative, the Court held that a graphic designer who was looking to get into the wedding website design business only for marriages between a man and a woman could not be required to design websites for other types of marriages. The Court’s analysis was grounded in the First Amendment, and a conclusion that compelling the graphic designer to design web sites for weddings she does not support on moral and religious grounds would be an impermissible form of compelled speech. The graphic designer had stipulated that she was not entirely refusing to provide services to LQBTQ+ clients and organizations, and therefore the Court reasoned that she was refusing to serve customers based on expressive speech, and not their protected characteristics. The Court further stated, and repeated throughout its opinion, that First Amendment protections extend to speakers whose motives may be misinformed or offensive to others, and to messages that others may find “deeply ‘misguided’” and likely to cause “’anguish’ or ‘incalculable grief.’”

But would the Court have reached the same holding if the graphic designer had stipulated that she would provide services to Black clients and organizations, provided they did not include any “Black Lives Matter” statements? What if the graphic designer said that she firmly believes all lives matter, that we are all created in the image of G-d, and it therefore is contrary to her religion to design a web site that prioritizes certain lives over others?

What the Supreme Court Has Said About LGBTQ+ Protections Under Title VII

In June 2020, right at the height of the pandemic and the Black Lives Matter protests, the Supreme Court issued a landmark six to three decision in Bostock v. Clayton County, Georgia (June 15, 2020). Perhaps lost in the headlines of more immediate concerns, the Court for the first time held that the prohibition against “sex” discrimination in Title VII of the Civil Rights Act of 1964 includes a prohibition against discrimination based on sexual orientation, gender identity, and transgender status. Resolving a trio of cases, each involving the termination of a long-time employee allegedly based on the employee’s sexual orientation or transgender status, the Court held that the impacted employees had stated a viable claim that they each had been terminated because of their sex and were therefore protected by Title VII.

Responding to points raised by the dissent, that “sex-segregated bathrooms, locker rooms, and dress codes will prove unsustainable after our decision today,” the majority of the Court said it was not prejudging that issue, which was not then before it. The Court further said it was not addressing how doctrines protecting religious liberty, including First Amendment free exercise protections, interact with Title VII. It left those as questions to be decided another day, in a case in which they were squarely presented.

Open Questions

The scope and reach of the Bostock decision and, with it, the scope of federal law protections for individuals based on sexual orientation and gender identity, therefore remain open questions. The most narrow construction of Bostock is that an individual cannot be fired simply because of that person’s sexual orientation or gender identity. That much employers can presume with confidence.

A year after the Supreme Court’s decision, the EEOC issued guidance that Title VII, consistent with Bostock, stands for more than that, specifically that it:

Forbids discrimination in any aspect of employment, including pay, job assignments, promotions, training, benefits and other terms or conditions of employment;
Forbids harassment based on sexual orientation or gender identity, including offensive or derogatory remarks, and intentional and repeated use of the wrong name and pronouns for a transgender employee;
Forbids discrimination or segregation in assignments based on customer preference for an individual of a different sexual orientation or gender identity;
Forbids restrictions on a transgender person dressing or presenting consistent with that person’s identity; and
Forbids employers from denying equal access to the bathroom, locker room or shower that corresponds to an employee’s gender identity.

Two federal district courts, in Tennessee and Texas, have struck down the EEOC’s guidance as going beyond the scope of the law, specifically with regard to employee dress, bathroom use, pronoun use and customer preferences. Further, the 11^th Circuit Court of Appeals cited the Bostock majority’s disclaimer in a December 2022 decision (Adams v. Sch. Bd. of St. Johns Cnty.) to hold that the Supreme Court’s decision did not preclude a school board from enforcing a policy of assigning student bathrooms based on sex at birth.

How This Ties Back to 303 Creative

In this context, the Court’s most recent decision in 303 Creative, although not an employment law case, has ominous implications for those who were looking for a broad construction of the Bostock decision. Fundamentally, the question that employers periodically need to wrestle with is whether it is permissible to discriminate based on sexual orientation or gender identity in the name of accommodating an employee’s religious beliefs or practices. 303 Creative suggests that the answer may be a qualified “yes,” that an employee’s outright refusal, on religious grounds, to work with an individual based on that individual’s sexual orientation or gender identity need not be accommodated, but that employers may need to make exceptions to other policies promoting equal treatment of individuals based on sexual orientation or gender identity. Employers facing these issues in their own workplace should consult with legal counsel to understand the evolving scope of the federal law protections, and also consider whether state and local laws that protect individuals based on sexual orientation and gender identity impact the legal analysis.

By Tracey I. Levy

27

July, 2023

EEOC Guidance Provides Pathways and Considerations for Accommodating the Hearing Disabled

I currently stand on a precipice, as the waning days of Disability Pride Month this July also represent a final countdown to when a cochlear implant surgery will make me a bionic woman. It appeared an opportune time to review the recent updates to the EEOC’s guidance on Hearing Disabilities in the Workplace and the Americans with Disabilities Act. While familiar principles of disability accommodation law resonate throughout the guidance, the details and examples are a helpful resource for employers that are not familiar with the challenges and range of assistive options for those who qualify as hearing disabled.

Hearing Disabilities Are Broader Than Being Deaf

The guidance begins by explaining that people with a variety of hearing conditions may have ADA disabilities if they are substantially limited in hearing or another major life activity. From personal experience, the ability to discern spoken language can be significantly impacted even if an audiology report does not register as deafness. Hearing loss and conditions like tinnitus (ringing in the ear) and sensitivity to noise can impede the ability to engage in conversation at networking events, social functions, or other large gatherings, or in loud workplaces. Where a hearing condition is not obvious, the EEOC guidance makes clear that an employer can ask for medical documentation, but only to confirm that a covered disability exists and what accommodations may be needed, not to ascertain the cause or nature of the impairment.

An Employer Can Ask About Hearing Issues if They Appear to Impact Performance

Employers generally should not be asking employees about their medical conditions. However, the EEOC guidance notes that if an employer knows an employee’s medical condition or has observed symptoms of a condition and reasonably believes the medical condition or those observed symptoms are causing performance problems, the employer can inquire further for purposes of discerning whether the employee needs a reasonable accommodation. The EEOC offers the example of an employee who wears a hearing aid and had been a consistently good performer in an administrative position prior to being promoted to a new role that involves considerably more time on the phone. If the employee’s performance has declined because she is making many mistakes with customer orders she records over the phone, the employer can ask whether she has difficulty hearing on phone calls and ask whether she would benefit from an accommodation. The employer could not ask those questions, however, if the performance issues the employee demonstrated were typographical errors, lateness, or other issues having nothing to do with hearing.

Hearing Impairments May Warrant a Range of Accommodations Short of a Sign Language Interpreter

There may be times when providing a sign language interpreter is a reasonable accommodation for an employee or group of employees who are hearing impaired. But not every hearing impaired individual understands American Sign Language (ASL), particularly if the impairment developed later in life, and for some employers the cost of an interpreter may be prohibitive to the degree of presenting an undue hardship. There are, however, a range of other, often less expensive, accommodations that employers may consider for those with hearing disabilities, including:

Blue-tooth enabled or other hearing aid or cochlear implant-compatible technology to connect to telephone headsets and sound systems;
Non-auditory safety alerts, like strobe lighting or vibrating pagers for emergency notification systems;
Other assistive software and technology, including video remote interpreting, automated captioning, telephone amplifiers or adapters, captioning features on virtual meeting platforms, voice carry-over/captioned or text telephones, and voice recognition or sound detection software;
Equipment for hearing protection to block noise or protect hearing function;
Assistive listening devices that translate voice into text and vice versa;
Appropriate written memos and notes, especially for brief, simple or routine communications;
Work area adjustments, such as away from a noisy area;
Time off as needed for treatment or adaptive services;
Altering marginal job functions; and
Reassignment to a vacant position.

Several of the EEOC’s illustrative examples make the point that accommodations need to enable the hearing disabled employee to participate fully in the workplace. Accommodations like providing notes or the summary of a meeting when a deaf employee has requested a sign language interpreter would not be a reasonable alternative if the deaf employee is unable to ask questions and participate in discussions at the meeting. Technology advances have been substantial, including services like video remote interpreting, and can facilitate participation in more cost-effective ways than was possible in years past.

Safety Concerns Should Be Based in Fact, Not Assumptions

The EEOC cautions that employers may exclude an individual with a hearing disability from a job for safety reasons only when the individual poses a direct threat, meaning a significant risk of substantial harm that cannot be resolved through a reasonable accommodation. The examples offered by the EEOC reflect that sometimes presumed safety risks can be addressed with the addition of simple visual aids or by leveraging technology, such as a visual alert on a smartwatch or vibrating pager with a light signal. The solution may not be obvious to the employer, which is why consulting with the employee or a service like the Job Accommodation Network (JAN) can be helpful.

A Final Personal Note

Many accommodations that can be provided to a disabled employee, including those with hearing disabilities, involve little or no cost to the employer. Flexibility in seating or work location, left-sided vs. right-sided headsets for those with single-sided deafness, permission to access the closed captioning services on software like Zoom and now available on Apple’s iOS, and patience in being asked to repeat, write or text something that was not heard the first time, particularly when in a loud environment, can make an appreciable difference in enabling those with hearing disabilities to fully and successfully participate in the workplace.

The EEOC notes that approximately 15 percent of American adults report some trouble hearing. If you are not one of them or have not closely engaged with someone in that category, it can be difficult to understand the range of contexts in which hearing difficulties may be impacted, and also to know the options for addressing those difficulties. Get advice and leverage the EEOC’s guidance and resources like JAN (which is free) for further information.

By Tracey I. Levy

25

July, 2023

Similar Standards Now Apply When Considering Accommodation Requests for Religion or Disability

Employers need to consider employees’ requests for religious accommodations from a much more supportive perspective as a result of a recent decision from the U.S. Supreme Court. In Groff v. DeJoy (June 29, 2023) the Court held that that an employer denying an employee’s request for a religious accommodation must demonstrate that the requested accommodation would impose a “substantial burden” in the overall context of the employer’s business. The Court’s holding modified long-standing guidance from the Equal Employment Opportunity Commission (EEOC) and nearly 50 years of prior court decisions that had imposed a lesser accommodation standard.

The Situation Considered by the Court

The Supreme Court considered the issue in the context of a complaint filed by Gerald Groff, who had a mail delivery job with the U.S. Postal Service. Groff is an Evangelical Christian who believes that Sundays should be dedicated to worship and rest, not work. His mail delivery job initially did not involve much work on Sunday, but then changed to include Sunday deliveries for a contract for Amazon. Groff transferred to a different station that did not require Sunday deliveries, but that station then changed to include Sunday deliveries. Groff continued to refuse working on Sunday and received progressive discipline for not doing so until he resigned. Groff asserted that USPS should have accommodated his religious observance.

The Legal Context and the Court’s Analysis

The Supreme Court last addressed the standard for a religious accommodation request back in 1977, in that case (Trans World Airlines, Inc. v. Hardison) involving a Saturday Sabbath observer seeking an accommodation from his employer, TWA. In that opinion, the Court stated that, “[T]o require TWA to bear more than a de minimis cost in order to give Hardison Saturdays off is an undue hardship.” Subsequent decisions by lower courts have applied a “de minimis cost” standard to requests for religious accommodation, which often has meant denying the accommodation requests, particularly for accommodations that might require hiring additional workers or paying other employees overtime to provide coverage.

In Groff, the Supreme Court stated that its “de minimis” reference in the earlier TWA case was taken out of context and should not be regarded “as the authoritative interpretation of the statutory term ‘undue hardship.’” While cautioning that it was not writing “a blank slate” in determining religious accommodations, the Court held that “hardship is more severe than a mere burden,” and should include consideration of all factors at hand, in the context of each accommodation request, and the practical impact relative to the size and operating cost of the employer. The Court further emphasized that the obligation is not merely to assess the reasonableness of a particular accommodation, but also to consider alternatives that may address the employee’s need without presenting an undue hardship. For a Sabbath observer, that may include considering the feasibility of voluntary shift swapping if forcing other employees to work overtime would be an undue hardship.

Where that Leaves Employers

This does not present unfamiliar territory for employers, just a different context. The Groff decision means that employers need to give more careful consideration to employees’ requests for religious accommodations. The “substantial” burden standard now set by the Supreme Court for religion cases appears to be very similar to the standard employers have already been applying with regard to requests for accommodation under the Americans with Disabilities Act (ADA). The EEOC’s guidance on the ADA provides that accommodations that impose significant expense or difficulty may present an undue hardship when considering factors such as:

the employer’s size and financial resources,
the nature and structure of its operation, and
the impact of the accommodation on operations.

Employers should now be evaluating requests for religious accommodation with consideration of those same factors.

By Tracey I. Levy

20

April, 2023

NYS Adds New Section, Range of New Provisions to Its Model Sexual Harassment Prevention Policy

An updated model sexual harassment prevention policy issued by New York State offers improvements and detractions relative to the original 2018 version, adds new information, and incorporates more recent changes in the law. Among the greatest improvements are the increase in scope and elimination of footnotes. Among the greatest detractions is the length – which has now ballooned from seven pages to eleven. The largest category of new information is a new section on bystander intervention.

Correcting Earlier Flaws

The new model policy partially corrects one of the most notable flaws in the original, which was a narrow focus on sexual harassment prevention. While the earlier approach was consistent with the state law mandate of what needed to be addressed in a written policy, practically speaking it meant that many employers only issued policies prohibiting sexual harassment, and had little or no policies to address other forms of unlawful harassment. The new model policy recognizes that the law prohibits harassment based not only on sex, but on a range of protected characteristics and the intersectionality of multiple characteristics, and directs that all such behavior should be reported in a manner consistent with the policy.

Footnotes really do not belong in an employee handbook policy, and the state’s new model policy shifts a former footnoted reference to independent contractors, gig workers and the like into the body of the policy. It is no longer necessary to read the fine print for clarification that those individuals are also covered.

New Detractions

While admirably comprehensive, the policy really needed to be shortened, not lengthened by 50 percent. The likelihood of most employees reading what the model policy has become is slim at best. While redundant of the content that follows, the policy tries to cure for that with a seven-point summary on pages two to three. The state’s training mandate also helps in that it ensures employees will be informed annually of all the key points contained in the policy. But really, an editing pen would have been useful.

Providing New Information

The additional length largely results from new material in this version of the model policy. There is an entirely new section on bystander intervention and the ways in which employees can support each other when they observe harassing behavior. Other additions include:

specific examples of how harassment can occur at the intersectionality of multiple protected characteristics;
an explanation of gender diversity and the definitions of cisgender, transgender and non-binary individuals;
emphasis that the intent of behavior does not neutralize a harassment claim, as the focus is on how behaviors impact someone else;
clarification that harassment also can occur in a remote environment, including through remarks made or visual images displayed over virtual platforms; and
a requirement that supervisors and managers accommodate the needs of those who have experienced workplace harassment to ensure a safe, supportive workplace.

Keeping Up with Changes in the Law

Finally, the model policy is updated to incorporate changes to the law since it was first drafted in 2018. Those changes include clarifying that harassment need not be severe or pervasive to be illegal, and adding information about the state’s sexual harassment hotline.

Employers Have Options

Now is the time for employers that have not been updating their own harassment prevention policies to incorporate the more recent changes in the law. Beyond those legal changes, employers can, but are not required to, adopt the model policy in its totality. Alternatively, employers can maintain their own policies, provided they include eight key elements:

a prohibition against sexual harassment consistent with the state’s guidance;
examples of prohibited conduct;
information about the applicable federal, state and local legal standards and available remedies;
reference to a complaint form;
an investigation procedure that ensures due process for all parties;
information on where employees can go externally with their complaints, and their options for redress;
a clear statement that sexual harassment is a form of employee misconduct, subject to sanctions for those who engage in it or supervisors who knowingly allow it to continue; and
a clear statement against retaliation.

In addition, the model policy states that employers can tailor the model to their individual needs, but at a minimum no section in the model policy should be omitted. Those sections outline the purpose and goals of the policy, summarize the key provisions, define sexual harassment, define retaliation, address reporting of sexual harassment complaints, describe supervisors’ responsibilities, address bystander intervention, describe the complaint handling and investigation process, and reference legal protections and external remedies. Employers should check whether their own policies cover all those subjects and, if not, consult with legal counsel on how best to update their policies to meet the new legal standard.

By Tracey I. Levy