Balancing Title VII rights: religion vs gender identity – and accommodation; HOA sues owner for fence removal; ESAs in condo/HOAs; and more in Our Social Media Posts This Week, May 21 – 27, 2023.

Below is a review of the posts (on Facebook, LinkedIn, and Twitter) from the past week. You can check out the full posts by clicking on the links.

The post on Sunday 5/21/2023 was about balancing Title VII rights: religious worker fired for refusing to use trans co-worker’s pronouns. A clash between religious views and gender identity. Let’s get some background. In 2019 Denise Haskins was hired to work at a blood bank. As part of her job, she had to routinely interact with another employee, RS, whom Haskins had known for years. In early 2021 RS told co-workers that he identified as male and preferred masculine pronouns. How did Haskins, a “believing Christian”, feel about that? See the post. Haskins did not want to use male pronouns relative to RS. In Feb. 2021, Haskins was told that RS had filed a complaint against her. Haskins and a supervisor discussed the matter. Haskins asked for a religious accommodation (described in the post) which she alleges was denied. The supervisor allegedly asked Haskins to resign and when she refused, she was fired. Haskins sued under Title VII and state law. The employer filed a motion to dismiss the suit. The court first went through the elements of a Title VII religious discrimination claim (and they are listed in the post). The Court said Haskins met the requirements (the explanation as to how is in the post). The employer argued that it could not accommodate Haskins because if would suffer undue hardship, specifically potential Title VII liability to RS. How the company supported its argument is in the post. The court made one interesting comment which is in the post. The court also denied the motion to dismiss after analyzing it (again, see the post).

TAKEAWAY: An employer’s obligations under the interactive accommodation process may be clouded by many things, including the impact on other employees. Get assistance from an employment lawyer.

The post on Monday 5/22/2023 told us SCOTUS may draw new line for religious accommodation requests under Title VII. Current case law says that employers need not incur “more than a de minimis cost” to accommodate sincerely help religious beliefs in the workplace. But that might change. The Court heard oral arguments last month in the case of Groff v. DeJoy, filed by a former US postal worker. Groff alleges that the USPS did not accommodate his request to not work on Sundays due to his religious beliefs. What USPS told him, and how it played out, are in the post. In 2022 the 3rd Circuit Court of Appeals (which takes precedence in PA cases) said that Groff’s requested accommodation would have been an undue hardship for USPS under the “more than de minimus” test – on what it based that decision is in the post. Groff then appealed to the Supreme Court, thus asking it to throw out the decision from 1977 resulting in the current “more than de minimis” standard. During the argument, Groff’s lawyer suggested a different test (which is noted in the post). The government had some interesting arguments, including that the Court could keep the current test but clarify how it is to be used/applied. Stay tuned.

TAKEAWAY: Review our post from 5/21/2023, and compare it to what may happen with the Supreme Court’s coming decision. Be ready.

The post on Tuesday 5/23/2023 told us the EEOC sues T.C. Wheelers for harassing and driving out transgender employee. The employer operates a bar and pizzeria in New York. The suit filed by the EEOC alleges that beginning in January 2021, an owner repeatedly harassed Quinn J. Gambino, a transgender male. Some of the things that were said to Gambino are listed in the post. But there’s more. The owners also used female pronouns when referring to Gambino and let employees and customers do that too. And there’s still more – other employees said and did things as noted in the post. Gambino, who worked as a cook, often and repeatedly complained to management. What was done in response to the complaints is in the post. Eventually Gambino resigned. When conciliation failed, the EEOC filed suit. The relief requested in the suit is listed in the post.

TAKEAWAY: Don’t discriminate on the basis of sexual or gender identity – or any other protected characteristic. Just don’t.

The post on Wednesday 5/24/2023 told us an HOA sues resident over fence removal, house color. Usually it’s installing a fence that is the problem so let’s look at the facts here. The Fieldbrook Estates property owner’s association is suing an owner over the removal of a fence, the repainting of a home in a color not approved by the HOA, and other cosmetic issues. Apparently the owner needed approval to remove the fence, but did not request (or receive) approval. Umit Yigit, the owner, removed a fence that is used to block a swimming pool. The HOA claims that removal of the fence creates an extreme safety hazard (and also violates the las as noted in the post). The suit also alleges that Yigit and his tenant, Michael Trussel, made several unapproved cosmetic changes to the property. What the HOA wants the court to order, and what it would like to see happen if Yigit does not comply, are in the post.

        TAKEAWAY: Lie it or not, owners of property in a condo or homeowners’ association ae bond to follow the governing documents – the alternative is not to ignore the restrictions, but to get them changed. Consult a community association lawyer if there are issues.

In the post on Thursday 5/25/2023 we questioned if emotional support animal (ESA) rights run amok? Condo resident balks at service dog poolside. Yes, there is a huge difference between service dogs and ESAs. No, service dogs are not subject to restrictions barring pets. But what about ESAs? Here there was a sign advising that no pets are allowed in the pool area. You know that sign does not apply to service dogs, but what about ESAs? Especially those doing the things listed in the post … The first thing to remember is that most community associations are NOT affected by the ADA, but rather the federal Fair Housing Act (FHA) applies.  What the FHA says in general about accommodating disabled persons is in the post. There is an argument that ESAs should not be allowed in the pool area – see the post. But would a court buy the argument?  And what if other owners are allergic to the ESA – whose rights win? See the post for a bit more on this.

TAKEAWAY: Associations have an obligation to reasonably accommodate disabilities, be it with service dogs or ESAs, but there are still limits (see the post and consult a community association lawyer).

The post on Friday 5/26/2023 told us an ex-HR director dues Honeywell for “sabotaging” his job, firing him because of his age. Baker was hired to work for Honey-well in July 2020 when he was 55. How he was received, and work evals, are discussed in the post. But then in December 2020 his reporting chain changed; he began to report to a VP of HR. What that person said and did is in the post. When he asked for a PIP, the supervisor refused – but instead asked him to do something else (that is in the post). Honeywell terminated Baker in March 2021. So what was it that made Baker say he was discriminated against on the basis of age? See the post for several things.

TAKEAWAY: Age will never be a legal basis upon which to discriminate (or take adverse) against an employee.

Finally, in the post yesterday 5/27/2023, we got lucky and saw that the EEOC sues Vegas casino in class-action disability discrimination suit. Yep, the suit was filed in fedeal court in Nevada. Allegedly the Downtown Grand Hotel & Casino discriminated and then retaliated agaisnt 2 employees and others. The first party who complained was diagnosed with stage 4 colon cancer; that that required of him medically isw in the post. When the HR director learned about the situation, the employee was fired. The basis relief on for termination is in the post. The other compaining party was denied 2 requested accommodations (which are noted in the post) as were others also included in the suit. But there’s more – see the post for the retaliation claim.

TAKEAWAY: Don’t assume an employee needs an accommodation or that a condition is unsafe – get the facts before taking adverse action. And hit speed dial for your employment lawyer.

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