We also address the ever-timely issue of wage and hour classification, in this case, focusing on the classification of assistant store managers.

The articles in this Take 5 include:

1. Managing Employees’ Political and Social Activism in the Workplace
2. Religious Accommodation: Handling Unusual Requests
3. Second Circuit Agrees with NLRB That Employee’s Vulgar Facebook Tirade Against Manager Is Protected Concerted Activity
4. Increasing Criminal Background Check Requirements Pose Challenges for National Retailers
5. Correctly Classifying Assistant Store Managers to Avoid Wage and Hour Misclassification Claims

Read the full Take 5 online or download the PDF.

When: Tuesday, October 18, 2016 8:00 a.m. – 4:00 p.m.

Where: New York Hilton Midtown, 1335 Avenue of the Americas, New York, NY 10019

Epstein Becker Green’s Annual Workforce Management Briefing will focus on the latest developments in labor and employment law, including:

• Latest Developments from the NLRB
• Attracting and Retaining a Diverse Workforce
• ADA Website Compliance
• Trade Secrets and Non-Competes
• Managing and Administering Leave Policies
• New Overtime Rules
• Workplace Violence and Active-Shooter Situations
• Recordings in the Workplace
• Instilling Corporate Ethics

This year, we welcome Marc Freedman and Jim Plunkett from the U.S. Chamber of Commerce. Marc and Jim will speak at the first plenary session on the latest developments in Washington, D.C., that impact employers nationwide.

We are also excited to have Dr. David Weil, Administrator of the U.S. Department of Labor’s Wage and Hour Division, serve as the guest speaker at the second plenary session. David will discuss the areas on which the Wage and Hour Division is focusing, including the new overtime rules.

In addition to workshop sessions led by attorneys at Epstein Becker Green – including some contributors to this blog! – we are also looking forward to hearing from our keynote speaker, Former New York City Police Commissioner William J. Bratton.

View the full briefing agenda here.

Visit the briefing website for more information and to register, and contact Sylwia Faszczewska or Elizabeth Gannon with questions. Seating is limited.

In December 2015, EEOC Chair Jenny Yang released a statement highlighting the need for employers to “remain vigilant” in light of the recent terrorist attacks. Yang commended employers that have “taken steps to issue or re-issue policies preventing harassment, retaliation, and other forms of discrimination in the workplace.” At the same time this statement was released, the EEOC also released two technical guidance tools regarding religious discrimination: “Questions and Answers for Employers: Responsibilities Concerning the Employment of Individuals Who Are, or Are Perceived to Be, Muslim or Middle Eastern” (“Employer Q&A”) and a similar guide for employees.

The Employer Q&A does the following:

• provides helpful insight on the various measures that employers should undertake to avoid violations of Title VII, which prohibits discrimination based on religion and national origin, among other protected categories;
• addresses questions about hiring and other employment decisions, harassment, religious accommodation, and background investigations;
• reminds employers that they may not discriminate against an individual because the individual’s religious garb may make customers feel uncomfortable; and
• emphasizes the need to engage in an interactive process with employees who request a religious accommodation, such as time off for religious holidays and exceptions to dress and grooming codes.

When evaluating whether the religious accommodation will cause an undue hardship, the EEOC (through the Employer Q&A) explains that employers may not speculate on whether other employees may seek the same accommodation and make decisions based on those speculations. Rather, each accommodation request must be addressed on a case-by-case basis.

Earlier this year, the EEOC joined forces with other federal agencies, including the Department of Justice, to create an interagency initiative aimed at religious bias. As part of this initiative, in March 2016, the EEOC released another technical guidance tool titled “What You Should Know About Religious and National Origin Discrimination Against Those Who Are, or Are Perceived to Be, Muslim or Middle Eastern” (“What You Should Know Guidance”).

Among other things, the What You Should Know Guidance:

• summarizes some of the ways in which discrimination against individuals who are (or could be perceived to be) Muslim or Middle Eastern can materialize in the workplace;
• reminds employers of their obligations to prevent and correct unlawful discrimination or harassment, and provide reasonable religious accommodations;
• points out several recent cases brought against retailers that involve claims of religious and national origin discrimination and harassment, or a failure to accommodate based on these factors; and
• highlights the increase in litigation in these areas (in particular, the What You Should Know Guidance reports that, since 9/11, there has been a 250 percent increase in EEOC charges involving religious discrimination against Muslims).

These guidance tools serve as a follow up to the EEOC’s previously released guidance on religious garb and grooming in the workplace, which provides even more detail on how employers should address these issues. Given the EEOC’s increased scrutiny of religious and national origin discrimination against people who are, or are perceived to be, Muslim or Middle Eastern, retailers should be particularly wary of religious or national origin bias. Retailers can work toward preventing this type of bias in the workplace by reviewing and disseminating their anti-discrimination policies and providing training to employees and managers.

A version of this article originally appeared in the Take 5 newsletter “Five New Challenges Facing Retail Employers.”

Under this program, which is to begin by October 1, 2015, the Commission is to use a technique known as “matched pair testing” to conduct at least five investigations into the employment practices of New York City employers.  The law requires the Commission to use two “testers” whose credentials are similar in all respects but one: their protected characteristics, i.e., actual or perceived age, race, creed, color, national origin, gender, disability, marital status, partnership status, sexual orientation, alienage, citizenship status, or another characteristic protected under the New York City Human Rights Law.  The testers will apply for jobs with the same employer to evaluate whether that employer is using discriminatory practices during the hiring process.

Employers may wish to notify their human resources personnel about the program and have them remind individuals who review job applications and conduct interviews to focus on job-related skills and abilities, not protected characteristics.  Job postings/advertisements should also be reviewed to ensure that they are neutral.

The case arose from Abercrombie’s “Look Policy,” which establishes appearance guidelines for employees. The Look Policy requires employees to wear clothing exemplifying the brand’s “casual,” “preppy” style and prohibits the wearing of “caps” — a term left undefined in the policy.

Samantha Elauf applied and interviewed for a position as a store associate.  She wore a hijab to her interview, but did not mention her religion or ask whether wearing a hijab would conflict with the Look Policy.  The interviewer suspected that Elauf wore the scarf for religious purposes, but did not ask. Rather, she sought guidance from her supervisor, who advised that the Look Policy prohibited all headgear.  For this reason, Abercrombie rejected Elauf’s application.

The Equal Employment Opportunity Commission (“EEOC”) filed suit against Abercrombie on Ms. Elauf’s behalf alleging religious discrimination in violation of Title VII.  The EEOC claimed store managers declined to hire Ms. Elauf because they believed her hijab violated the Look Policy’s headgear ban.  The retailer responded that it did not know that Ms. Elauf was Muslim, or that she wore a hijab as part of her religious practice.  Before reaching the Supreme Court, Abercrombie successfully argued to a lower court that Ms. Elauf’s religious accommodation claim required a showing that the employer have actual knowledge of the applicant’s need for accommodation of a religious practice.

The Supreme Court rejected the retailer’s argument, finding that an employer will be liable if a desire to avoid accommodating a religious practice is a “motivating factor” in the employer’s adverse employment decision. In rendering its decision, the Court distinguished Title VII, which does not expressly include a knowledge requirement in its statutory language, from other discrimination statutes, such as the Americans With Disabilities Act, that do.

The Court noted that “it is arguable that the motive requirement itself is not met unless the employer at least suspects that the practice in question is a religious practice.” It declined, however, to address the issue because Abercrombie had suspected that Elauf wore the scarf for religious purposes and therefore neither side had addressed the question.

To avoid similar claims, employers should train interviewers to be alert to potential religious accommodation issues, and to refer them to Human Resources or other responsible personnel for resolution. In its application procedures employers should, as they do for ADA compliance, include disclosure of job requirements, including any applicable appearance standards and ask applicants whether they need any accommodation to comply.  The employer can then consider – and if necessary discuss with the applicant — whether and how, it can reasonably accommodate the applicant’s religious practice.

The Court already has heard argument in Integrity Staffing Solutions, Inc. v. Busk, No. 13-433, which concerns whether the Portal-to-Portal Act, which amends the Fair Labor Standards Act, requires employers to pay warehouse employees for the time they spend, which in this case runs up to 25 minutes, going through post-shift anti-theft screening. Integrity is a contractor to Amazon.com, and the 9th Circuit had ruled in against it, holding that the activity was part of the shift and not non-compensable postliminary activity. Interestingly, DOL is on the side of the employer, fearing a flood of FLSA cases generated from any activity in which employees are on the employers’ premises.  This case will affect many of our clients and should be monitored carefully.

On December 3rd, the Court will hear argument in Young v. United Parcel Service, Inc., No. 12-1226, which poses whether the Pregnancy Discrimination Act requires an employer to accommodate a pregnant woman with work restrictions related to pregnancy in the same manner as it accommodates a non-pregnant employee with the same restrictions, but not related to pregnancy. The 4th Circuit had ruled in favor of the company, which offered a “light duty program” held to be pregnancy blind to persons who have a disability cognizable under the ADA, who are injured on the job or are temporarily ineligible for DOT certification. Ms. Young objects to being considered in the same category as workers who are injured off the job. This case, too, will create a precedent of interest to at least some of our clients. Of  note, this week United Parcel Service sent a memo to employees announcing a change in policy for pregnant workers advising that starting January 1, the company will offer temporary light duty positions not just to workers injured on the job, which is current policy, but to pregnant workers who need it as well. In its brief UPS states “While UPS’s denial of [Young’s] accommodation request was lawful at the time it was made (and thus cannot give rise to a claim for damages), pregnant UPS employees will prospectively be eligible for light-duty assignments.”  The change in policy, UPS states, is the result of new pregnancy accommodation guidelines issued by the Equal Employment Opportunity Commission, and a growing number of states passing laws mandating reasonable accommodation of pregnant workers.

On October 2nd, the Supreme Court granted cert. in a Title VII religious accommodation case, EEOC v. Abercrombie & Fitch Stores, Inc., No. 14-86. The case concerns whether an employer is entitled to specific notice, in this case  of a religious practice – the wearing of a head scarf —  from a prospective employee before having the obligation to accommodate her.  In this case, the employer did not hire a Muslim applicant. The Tenth Circuit ruled that the employer was entitled to rely upon its “look” policy and would not presume religious bias where the employee did not raise the underlying issue. Retail clients and others will be affected by the outcome.

More will follow as developments warrant.

The EEOC has just published guidance to employers on accommodating religious dress and grooming practices pursuant to Title VII of the Civil Rights Act. This guidance comes on the heels of several high profile religious discrimination cases that have brought the issue of religious dress and grooming accommodation to the forefront.  Employers with 15 or more employees are covered by Title VII and should take note of the new guidance.

Title VII requires employers to provide reasonable accommodations for “sincerely held religious practices, unless the accommodation would cause an undue hardship” and prohibits workplace or job segregation based on religion, harassment based on religion or retaliation for requesting a religious accommodation.  Certain states, including California, have adopted similar protections for religious practices in their non-discrimination statutes, expressly requiring the accommodation of religious dress and religious grooming absent undue hardship.  Taken together, these laws require employers to make exceptions to “their usual rules or preferences to permit applicants and employees to observe religious dress and grooming practices.”  This means, among other things, allowing for some flexibility to dress codes or uniform policies.

The EEOC provides the following examples of religious dress and grooming practices: “wearing religious clothing or articles (e.g., a Muslim hijab (headscarf), a Sikh turban, or a Christian cross); observing a religious prohibition against wearing certain garments (e.g., a Muslim, Pentecostal Christian, or Orthodox Jewish woman’s practice of not wearing pants or short skirts), or adhering to shaving or hair length observances (e.g., Sikh uncut hair and beard, Rastafarian dreadlocks, or Jewish peyes (sidelocks)).”  While this list is helpful, employers should be cautioned that it is not exhaustive.

Rather, the guidance makes clear that the EEOC takes a jarringly broad view of what constitutes a religious practice or belief that may require accommodation.  For example, the guidance notes that Title VII “defines religion very broadly to include not only traditional, organized religions such as Christianity, Judaism, Islam, Hinduism, Buddhism, and Sikhism, but also religious beliefs that are new, uncommon, not part of a formal church or sect, only subscribed to by a small number of people, or may seem illogical or unreasonable to others.”  The guidance further states, “an employee’s belief or practice can be ‘religious’ under Title VII even if it is not followed by others in the same religious sect, denomination, or congregation, or even if the employee is unaffiliated with a formal religious organization.” Because the EEOC takes such a broad view, employers may find it difficult to refute that a practice or belief is “religious.”  Nevertheless, the guidance provides that “if a dress or grooming practice is a personal preference, for example, where it is worn for fashion rather than for religious reasons, it does not come under Title VII’s religion protections.”  Employers should obviously approach such matters cautiously and engage legal counsel for assistance on anything that may be a “close call.”

The guidance reiterates that the Title VII accommodation requirement only applies to sincerely held religious beliefs.  However, it may be challenging for an employer to decide whether a belief is sincerely held.  This is particularly true because the guidance makes clear that “an individual’s religious beliefs – or degree of adherence – may change over time, yet may nevertheless be sincerely held.”  Indeed, many of the recent cases of religious discrimination relate to a requested accommodation of a newly observed religious belief, such as a request by a Muslim employee to begin wearing a headscarf.  Likewise, a change in company policy may lead to new requests for accommodations.  For example, just last week, the U.S. Department of Justice sued the School District of Philadelphia for failing to accommodate a Muslim police officer who sought a variance from a new grooming policy that required a trimmed beard, which the officer claimed was forbidden by his religion. If there is a legitimate reason to question the sincerity of the belief or practice, the employer may ask for “information reasonably needed to evaluate the request.”

For example, in response to an employee’s request to wear a hijab, the employer may require that the hijab match the colors of a company uniform.  Unless there is a legitimate religious basis for a variance from the uniform colors, it will be difficult for an employee to demonstrate that it was not a reasonable accommodation of her religious beliefs to approve the wearing of a hijab in a certain color.  Employers should be cautioned, however, that requiring a certain color of dress may necessitate reimbursement for the costs of the religious garb if it would not otherwise be a typical part of the employee’s wardrobe.

The EEOC guidance provided some helpful examples to aid employers with addressing accommodation requests.  These examples further demonstrate that requests for accommodations should be considered on a case-by-case basis and with an understanding of the religious custom at issue and the employee’s beliefs regarding that custom.

After settling two religious discrimination suits with the Equal Employment Opportunity Commission (“EEOC”) last month, clothing retailer Abercrombie & Fitch scored a big win this week in another religious discrimination case before the Tenth Circuit Court of Appeal, which found that the EEOC did not prove its failure to accommodate claim for a Muslim job applicant denied hire by an Abercrombie store in Oklahoma because she wore a hijab (a religious headscarf), reversing a lower court.

Ordering judgment for Abercrombie, the Tenth Circuit found that the EEOC failed to show that the applicant neither informed Abercrombie of a conflict between her “inflexible religious belief” and a work rule nor requested an accommodation from compliance with the rule.  While the EEOC argued that Abercrombie was on constructive notice of a conflict between the applicant’s religious beliefs and the company’s “Look Policy,” which prohibits sales associates from wearing “caps,” the Tenth Circuit held that Title VII requires a showing that the applicant was the “source of the employer’s notice of a need for a religious accommodation.”  Because religion is “uniquely personal,” the court reasoned that only an employee or applicant will know whether the religious belief or practice is inflexible or whether he or she is observing the belief “for cultural or other reasons that are not grounded in that religion.”

This ruling comes on the heels of Abercrombie’s settlement last month of two separate religious discrimination cases brought by the EEOC on behalf of two Muslim teens for wearing hijabs.

In one matter, a district court found Abercrombie liable for religious discrimination when it fired a Muslim teenager from her “impact associate” (stockroom employee) position because she refused to remove her hijab, which Abercrombie claimed violated its “Look Policy.” Abercrombie asserted that it would harm the Abercrombie brand to allow a variance from the policy.  Observing that the job applicant had been interviewed and hired while wearing the hijab and had worked without incident for four months, the court dismissed Abercrombie’s argument.

In the other matter, a separate district court rejected Abercrombie’s defense of undue hardship on summary judgment.  There, it was alleged that a Muslim job applicant informed Abercrombie during her interview that she wore a headscarf for religious reasons.  She was later denied the job on the basis that Abercrombie claimed to be unable to accommodate her religious dress.  The retailer asserted that it could not accommodate the request to wear a hijab because of the impact of such an accommodation on store performance.

As part of the settlement between Abercrombie and the EEOC, Abercrombie has agreed to create an appeals process for denials of religious accommodation requests, inform applicants during interviews that accommodations may be available, and provide manager training on religious dress.

Given the aggressive stance that the EEOC has taken of late in prosecuting religious dress accommodations cases, it would seem likely that the EEOC will appeal the Tenth Circuit decision.  In the meantime, retailers would be cautioned against excluding a religious job applicant from employment on the basis of a dress code policy simply because the applicant does not affirmatively request an accommodation.