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Over 25 years of employment law experience in Chicago
Over 25 years of employment law experience in Chicago

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WONDER WOMAN AND THE FIGHT AGAINST UNCONSCIOUS BIAS

By David S. Kim Ford & Harrison LLP

Not only has the recently released Wonder Woman movie garnered mainly favorable reviews, but it has been highly successful at the box office, having made more than $200 million domestically in its first two weeks of release alone. From a purely movie industry insider perspective, the success of Wonder Woman is incredibly important to Warner Brothers and the DC Comics line of movies. After subpar reviews for Man of Steel and Batman v. Superman, Wonder Woman is key to helping the aforementioned keep pace with the juggernaut that is the Marvel Cinematic Universe, which seemingly churns out title after title on an almost quarterly basis.
More important, Wonder Woman demonstrates that a female-driven superhero movie can be not only be good but also financially successful and appeal to a mass audience both domestically and globally. In addition, the fact that the movie’s director, Patty Jenkins, is also female helps further advance the notion that female directors are just as equipped to handle big-budget, superhero-type movies. The hope of course is that this will lead to more female centric movies as well as female director roles in a genre that typically has been dominated by male figures.
Of course, no success story would be complete without its own set of controversies, warranted or not. Some stem from the fact that Wonder Woman is played by Gal Gadot, who is Israeli and served a mandatory two-year stint in the Israeli Defense Forces as required of most Israeli citizens. Abroad, this has caused certain countries to ban, or consider banning, the showing of Wonder Woman due to Gadot’s past military service. Domestically, media pundits have lamented the fact that Wonder Woman is not “American” or “patriotic” enough, despite the fact that Wonder Woman is a fictional Amazonian warrior princess in the comics. In addition, the Washington Post had a lengthy article discussing and debating, in the context of Gadot’s nationality and religion, the interplay between Jewish identity and race.
Yet, race and ethnicity are not the only issues being discussed. Although Wonder Woman has made positive strides toward female representation in films, gender equality also has become an issue. Specifically, certain theaters across the country held limited female-only screenings of the movie to embrace “girl power” and female empowerment, advertising it as “No Guys Allowed” for that special screening. However, these screenings were met with by complaints from men, as well as legal scholars, who claimed that banning any particular group from public accommodation, such as movie theaters, was discriminatory and violative of applicable law, as well as serves to create a divide amongst gender groups when the movie is meant to celebrate gender equality.
While one can certainly understand that point of view, others also understandably argued that these limited screenings were a fun, celebratory way to watch the movie and that men could watch any of the multitude of other offered screenings on a daily basis. Regardless of where one stands on the multitude of issues involving gender, race, religion, and nationality, the reality is that Wonder Woman has created discussions involving these controversial and sensitive topics.
This includes unconscious bias. While the concept of unconscious bias has been in the lexicon for many years, it is interesting when considered in the context of Wonder Woman. Unconscious bias refers to bias that we may be unaware of and that is triggered by our brain making snap assessments based upon our background, cultural environment, and personal experiences. Essentially, it’s your analytical process taking shortcuts and using past knowledge to make assumptions.
Unconscious bias could manifest itself through the belief by industry executives that since Catwoman and Elektra were unsuccessful female-driven superhero movies, this meant audiences weren’t receptive to a female comic book hero movie. Rather than analyzing the fact that these prior endeavors were simply terrible movies that no one would want to see and that if you deliver a good movie, individuals of all sexes would be interested in watching it. One need look no further than the fact that the holy triumvirate of DC Comics involves Superman, Batman, and Wonder Woman (all created in the late 1930s and early 1940s), yet it took until 2017 for Wonder Woman to get her own movie, while Superman and Batman have had multiple iterations over the years.
Unconscious bias could also manifest itself in the belief that Wonder Woman of course must be portrayed by an American, simply because she has always been portrayed in other media as American, her “costume” is red, white, and blue, and because she has historically fought for American causes. Yet, this is an assumption that doesn’t take into account her actual origin history from the comics, nor recognizes that it is possible for someone to not be “born” American, yet can still fight for America and its values. The Washington Post article referenced above, discussing Jewish identity and race, also touches upon the assumptions held by many, likely created through unconscious bias.
Just like in the context of Wonder Woman, it is important to understand the role that unconscious bias plays in the workplace. Implicit associations and assumptions often can lead to actions that result in claims of discrimination, or even harassment and retaliation. Many major companies have been, and are, addressing unconscious bias in the workplace through a variety of initiatives and training, and employers should at least be aware of these efforts and determine whether it may make sense for their businesses. That includes placing a primary emphasis on employee skills when dealing with hiring and promotion, reviewing internal data to determine whether it shows that minorities and females are not well represented in upper-level positions and asking why, as well as promoting group discussions toward employment decisions to ensure unconscious bias isn’t a primary factor as well as to help individuals recognize any unconscious biases he or she may harbor. While the concept of unconscious bias may seem abstract or conceptual, it is real and something employers must be aware of in today’s social climate if they want to stay ahead of the curve.


PRACTICAL TIPS FOR MAINTAINING DIGNITY DURING TERMINATION MEETINGS: EVERYBODY WINS

By Christina M. Kennedy Foley & Lardner LLP

This past week, the nation was shocked with yet another senseless act of violence in the workplace. On Monday, a disgruntled former employee, walked into his former employer’s job site and killed 5 of his former co-workers before taking his own life. No one would suggest that the employer could have done something differently to prevent this kind of violence. However, these events underscore the importance of having strong practices and procedures in place to handle events surrounding the employment termination. These steps allow employers do everything they can to deescalate and defuse these, admittedly, difficult situations. In addition, these steps can serve to protect employers, from a legal perspective, in case the former employee later raises claims relating to the termination or the reasons supporting the termination.
Today, let us focus on the actual termination meeting and steps that the employer can take in order to create an environment that defuses tension and is handled with respect and professionalism. When thinking about this meeting, ask yourself – how would you want an employer to fire your mother, favorite uncle, or best friend? Viewing terminations through these practical and empathetic lenses may provide helpful insights. Yes, some of this makes common sense, but as we know emotions often can get the best of anyone. Being thoughtful and intelligent in your approach is key to the success of the meeting. Here are some best practices to consider:
Setting up the meeting: Be prepared and plan ahead. Employees should be terminated in face-to-face meetings. Resist the urge to terminate via e-mail, text, voicemail, or Twitter. Hint: informing the employee in question of the employer’s decision to terminate via the media is not advisable. In addition, consult with the appropriate company official to make sure all questions regarding benefit continuations, final wage payments, etc., are handled in advance. Who should be present at the termination meeting? Ideally, the employer will have 2 representatives present. Resist the urge to put too many people in the room. The spokesperson and the note taker. Each should be able to project a degree of empathy and remain calm in situations that are fluid. The spokesperson must be familiar enough with the facts in order to be able to properly respond to comments/questions from the employee in question. Also be mindful as to location. The meeting should also be held in a sufficiently private location so that other employees cannot overhear the conversation. In addition, the meeting should not occur in the employee’s office, but rather the office of the spokesperson or other neutral territory like a conference room.
During the meeting: Give fair notice and opportunity to be heard. During the meeting, the spokesperson should give the employee concrete examples of the issues that have led to the decision to terminate their employment. Remember, raising issues after the fact following any claim filed by the employee may provide arguments for pretext. After all, if reason x was really the justification for a termination, why didn’t the employer just say so during the meeting? Once the issues have been explained, give the employee an opportunity to respond and explain (if the employee wishes to do so). Listen to what the employee has to say. If the employee raises credible information that would affect the termination decision, the decision can be put on pause, in order for the employer to conduct additional investigation. If the termination decision is not affected by any information raised during the meeting, inform the employee of the termination decision.
Take home message: We have discussed in previous articles the importance of establishing legitimate and non-discriminatory business reasons which serve as a basis for decisions that affect the terms and conditions of employment. However, the most reasoned and justified bases cannot fix a termination meeting that goes horribly wrong. After all, employees who leave termination meetings feeling like the termination was handled with professionalism and respect, despite feeling the expected levels of anger and/or disappointment, may be less likely to engage in violent acts or call a lawyer to file a complaint. While there is no way to avoid every possible circumstance, using these tips can help the employer handle a difficult situation with civility and respect, allowing the employee to retain a degree of dignity.


HIRING BEST PRACTICES: 5 DOS AND DON’TS WHEN A JOB APPLICANT ANNOUNCES A PREGNANCY

By Maria Greco Danaher Ogletree Deakins

Want a road map for how not to react to a successful job applicant who announces her pregnancy immediately after receiving an offer letter? Look at the reaction of one prospective employer in Florida who recently settled a legal claim on that issue. EEOC v. Brown & Brown of Florida, Inc., MDFL, No. 6:16-cv-1326-Orl-37DCI, Consent Decree signed May 3, 2017.
Here’s what happened:
In early 2015, Nicole Purcell applied for an entry-level position with the brokerage firm of Brown & Brown in Daytona, Florida.
Purcell successfully made it through multiple rounds of interviews.
The company made Purcell an offer of employment.
Upon receiving the offer, Purcell called the company’s Employee Services Coordinator to accept and asked about maternity benefits, announcing that she was pregnant.
Within 30 minutes of the call, the coordinator sent an email to Purcell, stating that the company was rescinding the job offer, because the company needed somebody in the position “long term.”
Purcell filed a charge of discrimination with the U.S. Equal Employment Opportunity Commission (EEOC).
In July of 2016, the EEOC filed a federal lawsuit on her behalf.
The parties recently resolved their differences by entering into a two-year consent decree, with the company agreeing to pay to Purcell $100,000 in damages.
Besides a payment term, the consent decree includes provisions requiring Brown & Brown to
take affirmative steps to avoid pregnancy discrimination in the future;
create and adopt a pregnancy discrimination policy (to be submitted for approval to the EEOC);
distribute copies of the policy to every manager, employee, and applicant;
provide two hours of in-person training on gender discrimination, including pregnancy discrimination, to every manager involved in the hiring process;
retain, at the company’s cost, a “subject matter expert” (to be agreed upon by the EEOC) on sex discrimination who will conduct the in-person training sessions;
provide to non-managers one hour of video or webinar training on the same topic(s);
make yearly reports to the EEOC for two years regarding further complaints of pregnancy discrimination, if any;
post a notice of the consent decree at the facility; and
retain all documents and data related to compliance with the consent decree.
Key Takeaways
Had the company engaged in an interactive conversation with Purcell regarding any limitations she might have developed related to her pregnancy, and whether any potential limitations existed affecting her ability to do her job that could be accommodated, it is possible that much that followed could have been avoided.
Here are some DOs-and- DON’Ts that might be helpful for employers faced with a similar situation.
Don’t assume that a pregnant employee is unable to do a job or will be absent for a lengthy period.
Document discussions with applicants who raise the issue of pregnancy, to assure that any issues raised are appropriately addressed.
Ask for (and document) specifics of any accommodation or job modification requested, to assure that all issues are addressed.
Assure compliance with federal and state laws regarding pregnancy leaves.
Remember that post-partum issues also require compliance with federal and state laws.


INTERVIEWING AN INDIVIDUAL WITH A VISIBLE DISABILITY: FROM THE EMPLOYER’S PERSPECTIVE

By David T. Wiley Jackson Lewis PC


In a recent Q&A on the “Ask a Manager” blog, an individual wrote in to say that she had a genetic disorder requiring the use of a cane for walking and ring braces for finger stability. Although she had been public about her condition with friends and family, both in person and through social media, she was concerned that a job interviewer might view her ring braces as a form of costume jewelry inappropriate for an interview setting and, presumably, hold that against her. She did not believe that removing the ring braces for the interview was the best approach, both because they would be necessary in the performance of the job(s) for which she would be applying and because she felt that doing so “erased” her disability when she otherwise had embraced it as part of her life. So, the individual wanted to know whether, and if so what, she should preemptively say about the finger braces at the beginning of an interview. “Ask a Manager” suggested that she preface the interview by mentioning that the braces “aren’t evidence of unusual taste in jewelry – they’re supports for finger stability.” Under the ADA, an applicant in the interview setting may, but is not obligated to, notify a prospective employer of her disability – unless, for example, an accommodation will be needed for the interview process itself. But what are the prospective employer’s options in this situation?
Let’s put aside for the moment the possibility that the prospective employer may already be aware of this individual’s condition, given that she is “out” about it on Facebook. Under the EEOC’s ADA guidelines, while generally an employer may not ask an applicant whether she has a disability or will need a reasonable accommodation to perform a job, under circumstances where “[a]n employer might know that an applicant has a disability because it is obvious or she has voluntarily revealed the existence of one . . . and it is reasonable to question whether the disability might pose difficulties for the individual in performing a specific job task, then the employer may ask whether she would need reasonable accommodation to perform that task.” [EEOC ADA Guidelines for Job Applicants].
In the above scenario, the individual is walking into the interview with the use of a cane, a visible sign of a potential disability. Thus, even without the finger braces in the picture, the interviewer may inquire about the individual’s ability for prolonged walking/standing/ stepping/etc. – if those types of tasks are a regular part of the job(s) in question. This, of course, presents a perfect opportunity for the applicant to address not only how, if at all, any accommodation will be needed for mobility issues, but also to mention the purpose of the ring braces and whether any form of accommodation (beyond the mere wearing of the braces) would be needed for her finger stability issues, without the potential clumsiness of bringing it up preemptively. If, however, the job(s) in question would not reasonably implicate the potential need for a mobility accommodation (e.g. sedentary desk jobs), then the interviewer should not make any reference to the cane, the applicant’s condition requiring the use of a cane or any other comments suggesting that the interviewer regards the individual as having a disability. Under such circumstances, a “head in the sand” approach is the recommended course of action, unless and until the applicant – or subsequently the employee – raises the need for an accommodation.


GROWING QUESTIONS ABOUT EMPLOYEE MEDICAL MARIJUANA USE LEAVE EMPLOYERS IN A HAZE

By Carol J. Faherty and Nathaniel M. Glasser Epstein Becker Green

The intersection of employment and marijuana laws has just gotten cloudier, thanks to a recent decision by the Rhode Island Superior Court interpreting that state’s medical marijuana and discrimination laws. In Callaghan v. Darlington Fabrics Corporation, the court broke with the majority of courts in other states in holding that an employer’s enforcement of its neutral drug testing policy to deny employment to an applicant because she held a medical marijuana card violated the anti-discrimination provisions of the state medical marijuana law.
Background
Plaintiff applied for an internship at Darlington, and during an initial meeting, she signed a statement acknowledging she would be required to take a drug test prior to being hired. At that meeting, Plaintiff disclosed that she had a medical marijuana card. Several days later, Plaintiff indicated to Darlington’s human resources representative that she was currently using medical marijuana and that as a result she would test positive on the pre-employment drug test. Darlington informed Plaintiff that it was unable to hire her because she would fail the drug test and thus could not comply with the company’s drug-free workplace policy.
Plaintiff filed a lawsuit alleging Darlington violated the Hawkins-Slater Act (“the Act”), the state’s medical marijuana law, and the Rhode Island Civil Rights Act (“RICRA”). The Hawkins-Slater Act provides that “[n]o school, employer, or landlord may refuse to enroll, employ, or lease to, or otherwise penalize, a person solely for his or her status as a cardholder.” After concluding that Act provides for a private right of action, the court held that Darlington’s refusal to hire Plaintiff violated the Act’s prohibition against refusing to employ a cardholder. Citing another provision that the Act should not be construed to require an employer to accommodate “the medical use of marijuana in any workplace,” Darlington contended that Act does not require employers to accommodate medical marijuana use, and that doing so here would create workplace safety concerns. The court rejected this argument, concluding:
The use of the phrase “in any workplace” suggests that statute does require employers to accommodate medical marijuana use outside the workplace.
Darlington’s workplace safety argument ignored the language of the Act, which prohibits “any person to undertake any task under the influence of marijuana, when doing so would constitute negligence or professional malpractice.” In other words, employers can regulate medical marijuana use by prohibiting workers from being under the influence while on duty, rather than refusing to hire medical marijuana users at all.
By hiring Plaintiff, Darlington would not be required to make accommodations “as they are defined in the employment discrimination context,” such as restructuring jobs, modifying work schedules, or even modifying the existing drug and alcohol policy (which prohibited the illegal use or possession of drugs on company property, but did not state that a positive drug test would result in the rescission of a job offer or termination of employment).
The court thus granted Plaintiff’s motion for summary judgment on her Hawkins-Slater Act claims.
With respect to Plaintiff’s RICRA claim, the court found that Plaintiff’s status as a medical marijuana cardholder was a signal to Darlington that she could not have obtained the card without a debilitating medical condition that would have caused her to be disabled. Therefore, the Court found that Plaintiff is disabled and that she had stated a claim for disability discrimination under RICRA because Darlington refused to hire her due to her status as a cardholder. Importantly, the court held that the allegations supported a disparate treatment theory.
Finally, while noting that “Plaintiff’s drug use is legal under Rhode Island law, but illegal under federal law [i.e. the Controlled Substances Act (the CSA”)],” the Court found that the CSA did not preempt the Hawkins-Slater Act or RICRA. According to the court, the CSA’s purpose of “illegal importation, manufacture, distribution and possession and improper use of controlled substances” was quite distant from the “realm of employment and anti-discrimination law.”
Key Takeaways
While this decision likely will be appealed, it certainly adds additional confusion for employers in this unsettled area of the law – particularly those who have and enforce zero-tolerance drug policies. The decision departs from cases in other jurisdictions – such as California, Colorado, Montana, Oregon, and Washington – that have held that employers may take adverse action against medical marijuana users. The laws in those states, however, merely decriminalize marijuana and, unlike the Rhode Island law, do not provide statutory protections in favor of marijuana users. In those states in which marijuana use may not form the basis for an adverse employment decision, or in which marijuana use must be accommodated, the Callaghan decision may signal a movement to uphold employment protections for medical marijuana users.
While this issue continues to wend its way through the courts in Rhode Island and elsewhere, employers clearly may continue to prohibit the on-duty use of or impairment by marijuana. Employers operating in states that provide employment protections to marijuana users may consider allowing legal, off-duty use, while taking adverse action against those users that come to work under the influence.
Of course, it remains unclear how employers can determine whether an employee is under the influence of marijuana at work. Unlike with alcohol, current drug tests do not indicate whether and to what extent an employee is impaired by marijuana. Reliance on observations from employees may be problematic, as witnesses may have differing views as to the level of impairment and, in any event, observation alone does not indicate the source of impairment. Employers choosing to follow this “impairment standard” are advised to obtain as many data points as possible before making an adverse employment decision.
All employers – and particularly federal contractors required to comply with the Drug-Free Workplace Act and those who employ a zero-tolerance policy – should review their drug-testing policy to ensure that it (a) sets clear expectations of employees; (b) provides justifications for the need for drug-testing; (b) expressly allows for adverse action (including termination or refusal to hire) as a consequence of a positive drug test. Additionally, employers enforcing zero-tolerance policies should be prepared for future challenges in those states prohibiting discrimination against and/or requiring accommodation of medical marijuana users. Those states may require the adjustment or relaxation of a hiring policy to accommodate a medical marijuana user.
The Callaghan decision also serves as a reminder of the intersection of medical marijuana use and disability. Here, the court allowed a disability discrimination claim to proceed even though Plaintiff never revealed the nature of her underlying disability because cardholder status and disability were so inextricably linked.
Finally, employers should be mindful of their drug policies’ applicability not only to current employees, but to applicants as well. In Callaghan, the court found the employer in violation of state law before the employee was even offered the internship or had taken the drug test.



GENDER IDENTITY DISORDER & THE ADA

By Marjory D. Robertson Sun Life Financial Inc

A federal district court judge in Pennsylvania recently decided that an individual with gender identity disorder had a protected disability under the ADA.  The decision is somewhat surprising because section 12211 of the ADA specifically excludes “gender identity disorders.” The case is Blatt v. Cabela’s Retail, Inc. (E.D. PA 5/18/17). The plaintiff alleged that she was diagnosed with “gender dysphoria” (which is also known as gender identity disorder) and that this condition substantially limited one or more of her major life activities, including, but not limited to, interacting with others, reproducing, and social and occupational functioning. She alleged that shortly after she was hired, her employer discriminated against her because of her disability and subsequently terminated her employment for discriminatory and retaliatory reasons. 
Avoiding a constitutional issue. The court concluded that the plaintiff's gender identity disorder was a protected disability – notwithstanding the express exclusion of gender identity disorders in section 12211 of the ADA. The court reached this result through the relatively obscure “constitutional avoidance canon” which requires courts to interpret statutes in a way that avoids a constitutional issue, if possible. Here, the plaintiff argued that if the ADA did not provide protection then the ADA’s exclusion of gender identity disorders violated her right to equal protection under the Fourteenth Amendment to the Constitution and the ADA itself was unconstitutional in that regard.
Gender identity vs. Impairments resulting therefrom. To avoid having to address the constitutional issue, the court concluded that the term gender identity disorder as used in the ADA should be “read narrowly to refer to only the condition of identifying with a different gender” and should not encompass a condition like the plaintiff’s gender dysphoria which is also characterized by “clinically significant stress and other impairments that may be disabling.” The court reasoned that such a condition was different from gender identity standing alone because it was “actually disabling.” The court concluded that this interpretation of the ADA was consistent with Congress’ intent in adopting section 12211 because Congress had been careful to distinguish between excluding certain sexual identities, on the one hand, and not excluding disabling conditions that persons who have such an identity might experience, on the other hand.
Lessons for employers?   Courts have found ways to interpret existing laws, including the ADA and Title VII’s prohibition of gender discrimination, to protect individuals with a gender identity disorder from discrimination.   There are also a number of state laws that may offer protection to transgender individuals. This is an area of the law that will probably evolve over time to grant more protections to transgender individuals and employers may want to consider being ahead of the curve on this trend.
Sun Life Financial Inc -

TOP 10 MISTAKES EMPLOYERS MAKE IN EMPLOYMENT APPLICATIONS


By Jennifer R. Cotner Ogletree Deakins

Employment applications—almost every employer in the country uses them. They can seem innocuous, but they contain a number of minefields of which employers should be aware. A general theme of federal and state laws, regulations, and guidance is that employers should avoid asking an applicant questions that elicit information that cannot be considered in making a hiring decision. Below is a list of the top 10 mistakes to avoid in application materials:
Including any disability-related or medical questions. Employers should steer clear of questions related to whether an employee is disabled or has a medical condition. Any such inquiry would violate guidance from the U.S. Equal Employment Opportunity Commission (EEOC) and possibly the Americans with Disabilities Act (ADA) and similar state laws. If an employer asks an applicant such a question, the EEOC or a court may presume prohibited information was a factor in hiring.
Not including an at-will disclaimer. Employers may want to inform applicants that the application is not intended to and does not create a contract or offer of employment and state that, if hired, employment with the company would be on an at-will basis and could be terminated at the will of either party. This disclaimer is helpful to avoid any claim that the application is an offer of guaranteed employment or to defend a claim of breach of contract if the employee is not hired or is later discharged.
Not including a non-discrimination statement. Employers may want to inform applicants that the company is an equal opportunity employer (i.e., through an EEO statement) and does not discriminate in hiring based on federally-protected classifications (i.e., race, color, national origin, ancestry, religion, sex, disability, veteran status, age (40 or over), or genetic information). Employers may want to add any additional protected classifications under state or local law (e.g., sexual orientations or marital status).
Requesting graduation dates in the education section. Asking applicants for graduation dates (usually in the education section of the employment application where it inquires about degrees obtained) may lead to a finding of discriminatory intent on the basis of age under the Age Discrimination in Employment Act (ADEA) or state law—particularly if the employee’s graduation date has no bearing on the qualifications for the position—as it enables the hiring manager to guess the age of the applicant. It is appropriate to ask questions regarding the experience of the applicant if it is relevant to a job qualification.
Asking about arrests and convictions, without appropriate disclaimers. A number of states and local jurisdictions expressly prohibit employers from asking about applicants’ criminal histories on employment applications (these are called “ban the box” laws). EEOC Guidance further recommends that employers not ask about convictions on job applications, but, if they do, to limit their inquiries to convictions for which exclusion would be “job related for the position in question and consistent with business necessity.” The EEOC discourages employers from asking about arrests on applications at all, because it reasons that the fact that an individual was arrested is not proof that he or she engaged in criminal conduct. The EEOC also has taken the position that an arrest record, standing alone, may not be used to screen out an applicant, but an employer may make an employment decision based on the conduct underlying the arrest if the underlying “conduct makes the individual unfit for the position in question.” Employers may want to use caution in this area.
Putting a background check acknowledgement on the employment application. Under the Fair Credit Reporting Act (FCRA), the disclosure of an employer’s intent to obtain a background check and section must be in a “stand-alone” document separate from the application.
Not including language telling applicants how to request a reasonable accommodation to apply or participate in the interview process. The ADA imposes a duty on employers to provide reasonable accommodations to applicants during the application process to ensure equal access to available positions. In light of this obligation, employers may consider instructing applicants on how to initiate that process independent of the employer’s online application system and hiring manager.
Asking for a photograph. Guidance from the EEOC prohibits employers from asking applicants for photographs. If needed for identification purposes, an employer may obtain a photograph of an applicant after the applicant accepts an offer of employment.
Asking about marital or familial status. Asking questions about an applicant’s marital status, the number of kids he or she has, the ages of his or her children or dependents, or provisions for childcare could be construed as discrimination on the basis of sex. Furthermore, in many states, marital or familial status is a protected classification about which employers may not inquire during the application process—similar to the federally-protected classifications listed above.
Asking about citizenship. The anti-discrimination provision of the Immigration Reform and Control Act prohibits employers from discriminating against an applicant because he or she is not a U.S. citizen. The Form I-9, rather than an employment application, is the appropriate forum to determine an applicant’s citizenship status. Rather than asking about citizenship, employers may want to ask if an applicant is legally qualified to work in the United States.
Conclusion
Employment applications are not only one of a company’s first contacts with applicants and new employees, they are also written documents that can later be used as evidence in an adversarial proceeding. Avoiding these common blunders can help employers maintain best practices for employment application materials.


ALERT: Full Federal Appeals Court In NYC To Reconsider Whether Title VII Covers Sexual Orientation

(7th Circuit ruled that Title VII protects sexual orientation after a similar full court review)

By Richard B. Cohen and Amy Epstein Gluck FisherBroyles LLP

In really breaking news, the federal appeals court in NYC just agreed to have its full bench reconsider the issue “Does Title VII of the Civil Rights Act of 1964 prohibit discrimination on the basis of sexual orientation through its prohibition of discrimination ‘because of … sex’?”
This comes after a three-judge federal appeals panel of the same court held in March in Christiansen v. Omnicom Grp., No. 16-478, 2017 WL 1130183, at *2 (2d Cir. Mar. 27, 2017), that Title VII does not cover sexual orientation discrimination claims. A second such panel of the court thereafter issued a similar ruling in Zarda v. Altitude Express.
This reconsideration is in the Zarda case.
In Christiansen, the Court seemed to be unhappy with its decision, holding that it was nonetheless “hamstrung” by its own precedent in Simonton v. Runyon, 232 F.3d 33 (2d Cir. 2000), and could not overrule it – that only the en banc Court could do that. (“En banc” means the appeals court sitting with all of its judges).
However, in a stunning concurring decision, two of the three judges on the panel bemoaned the fact that they were controlled by this precedent, seemingly adopting the EEOC’s rationale that “the legal landscape has changed and the understanding of sex and sexual orientation has evolved over time.”
Why Would The Full Court (“en banc”) Reconsider this Issue?
Well, because a similar situation arose in Chicago where the full appeals court heard a case with the identical issue and reversed its own panel in Hively v. Ivy Tech Comm. Coll., No. 15-1720, 2017 WL 1230393, at *1-2 (7th Cir. Apr. 4, 2017) (en banc), holding that Title VII indeed covers sexual orientation. And its decision is directly opposed to the decision of the NY panel.
As I noted in an earlier post, it is rare that a full court will reconsider a decision of one of its panels, but in this situation: (1) two of the three judges on the Christiansen appeals panel seemingly wanted to see Simonton overruled by the full court; (2) the full court in Chicago did just that and reversed its panel to overrule its own precedent; and (2) as the EEOC noted, “the legal landscape has changed and the understanding of sex and sexual orientation has evolved over time.”
Takeaway
So, will the full court reverse and hold that Title VII prohibits discrimination on the basis of sexual orientation through its prohibition of discrimination because of sex?
I think that there is a good chance.

LABOR AND EMPLOYMENT ALERT: SIXTH CIRCUIT EXPANDS CAT’S PAW TO FMLA CASES

By Michael C. Griffaton and Allen S. Kinzer Vorys Sater Seymour and Pease LLP


The Family and Medical Leave Act (FMLA) prohibits an employer from discriminating or retaliating against employees who have used FMLA leave. It also states that employers cannot use the taking of leave as a negative factor in employment actions. The term "cat's-paw" refers to situations where a biased subordinate uses the formal decision-maker as a dupe to deliberately trigger a discriminatory employment action. The plaintiff thus seeks to hold the employer liable for the discriminatory animus of a supervisor who did not make the ultimate employment decision. The Sixth Circuit Court of Appeals (which covers Kentucky, Michigan, Ohio, and Tennessee), recently expanded the theory of cat’s paw liability to cases under the FMLA.
In Marshall v. Rawlings Co., the employee took FMLA leave and claimed that she had been harassed, demoted and then ultimately terminated by two lower-level supervisors after returning from leave. While neither supervisor made the decision to demote or terminate her, the employee asserted they unlawfully influenced the decision-makers who actually made those decisions. In reversing the trial court which had dismissed the case, the Sixth Circuit expressly adopted the cat’s paw theory of liability to FMLA retaliation claims and, in doing so, made several important observations.
First, the Court explained the cat’s paw theory applies even if there are multiple levels of supervision between the employee and the individual who made the ultimate decision or took the ultimate adverse action. “The primary rationale for the cat's paw theory of liability is that, because a company's organizational chart does not always accurately reflect its decision-making process, an employee of lower rank may have significant influence over the decision-maker.” The Court did note that “in some cases, allegations that a lower-level supervisor successfully carried out such a scheme might be far-fetched. But those cases can be screened out using existing legal procedures.”
Second, to prevail under this theory, the employee must establish a prima facie case of discrimination or retaliation then show the employer’s reason for taking the adverse employment action was merely a pretext to mask its discriminatory or retaliatory animus. Then, the employee must prove that the ultimate decision-maker was the cat’s paw of the biased lower-level supervisor.
And third, the Court held that the “honest belief” rule does not apply in cat’s paw cases. Under this rule, as long as an employer has an honest belief in its non-discriminatory or non-retaliatory reason, the employee cannot establish that the reason was pretextual simply because it is ultimately shown to be incorrect. The Court explained that the honesty or sincerity of the decision-maker’s belief is irrelevant to whether a biased low-level supervisor intentionally manipulated the decision-maker. Instead, what is relevant is that the belief is rooted in a biased recommendation. An employer can protect itself from liability by showing its decision-maker made an independent investigation before taking the adverse action. However, that investigation will defeat a cat's paw claim only when it finds "that the adverse action was, apart from the supervisor's recommendation, entirely justified."
The Marshall decision highlights the importance of training managers and supervisors in their EEO responsibilities at the frontend. It also shows that decision-makers may need to conduct independent and objective investigations without relying solely upon information from or a recommendation by a subordinate. Contact your Vorys lawyer if you have questions about the FMLA or about conducting internal workplace investigations.


HONOR OUR VETERANS BY RECRUITING AND HIRING MORE OF THEM


By Alyssa Peters Constangy Brooks Smith & Prophete LLP


Memorial Day is upon us. While the idea of a three-day weekend, cookout, and pool party can be distracting, I encourage everyone to stop and remember those who have lost their lives in the
service of our country. It’s also a perfect time for us to refresh ourselves on the legal obligations of federal contractors to employ veterans. “We honor the dead best by treating the living well.”
As a quick refresher, the Vietnam Era Veterans’ Readjustment Assistance Act prohibits discrimination on the basis of protected veteran status and requires affirmative measures to employ protected veterans. These requirements apply to any contractor with a federal contract worth $150,000 or more. Contractors that meet the monetary threshold and have at least 50 employees must also develop written affirmative action plans for each establishment. That includes allowing applicants and employees to self-identify as protected veterans, tracking employment activity, and documenting outreach and recruitment activities. All covered contractors are required to develop an annual hiring “benchmark,” a number that reflects the representation of veterans in the civilian labor force. Contractors are allowed to use the national benchmark. As Stephanie Underwood reported in April, the national hiring benchmark was recently reduced from 6.9 percent to 6.7 percent.
To offer another carrot in attempting to increase employment and retention of our veterans, the Department of Labor has recently issued a press release about its new HIRE Vets Medallion Program. This program is designed to recognize employers “who make hiring veterans a priority.” The awards will be presented around Veterans Day (November) to small, medium, and large employers.
So after you return to work from your long weekend, think about ways to increase your veteran workforce. Some ideas include listing job openings with a local veteran advocacy group, contacting a local veteran affairs office, having or participating in a job fair, contacting the transitional office at your nearest military base, chatting with your local colleges to see whether they have veteran representatives on campus, or asking veterans you know for ideas on how to post job opportunities.
Who knows? These Memorial Day brainstorming ideas may help you reach your company’s VEVRAA benchmark or put you on the short list for one of the new DOL awards!

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