The post on Sunday 8/6/2023 alerted us that the EEOC issues new PWFA guidance: What HR needs to know now. You should know that the Pregnant Worker Fairness Act became effective in June 2023. The EEOC has released guidance to help employers comply with the Act (at least until Regulations are issued). The PWFA is narrow and focuses on accommoda-tions. It applies to employers with 15 or more employees; what it requires an employer to do is noted in the post. While the EEOC is developing compliance regs, it has issued PWFA guidance. Because of the deadline for employer compliance (noted in the post), this is especially helpful. So what does the guidance include? First, an infographic which outlines employer obligations and more (as listed in the post). It also includes a poster that defines relevant legal terms in the PWFA, provides examples of potential accommodations under the PWFA, and more (yes, in the post). Third, the guidance includes a notice to be given by employers to employees; the contents of the notice are described in the post.
TAKEAWAY: EEOC started accepting PWFA charges on June 27; know what your obligations are so that you are not the subject of a charge.
The post on Monday 8/7/2023 told us a MAGA-hat-wearing White postal employee loses race bias lawsuit. This shows that application of law to the facts matters. The US Postal Service (USPS) defeated a federal lawsuit by a White mail carrier who claimed discrimination, in part because he was treated differently for wearing a MAGA hat than a Black co-worker was for wearing a Black Lives Matter hat. The ruling was issued in early July in federal court and partly turns on a rare application of the Hatch Act in the employment bias context. What that law does is explained in the post. James Halbauer’s July 2020 suit alleged that his Black colleague repeatedly called him a racist after he arrived for work at their Louisville location in August 2019 wearing a Make America Great Again hat. He further alleged that she continued to yell at him even after a union steward told her to stop and that a supervisor later told Halbuaer that he would be escorted off the premises if he wore his MAGA hat again at work. Halbuaer alleged that the way he was treated was different than when the Black co-worker came to work about a week later wearing a BLM hat. What the complaint says happened to her is in the post. The Judge legally distinguished Halbuaer’s treatment from that of the Black employee – see the post. While Halbauer also alleged other supposed unequal treatment relative to his dress code violations compared to the Black co-worker, including footwear, the Judge also found it insufficient and granted summary judgment to the USPS. The post explains why Halbuaer’s reverse discrimination suit failed, including that he never raised race discrimination in his internal EEO complaint and thus didn’t exhaust his pre-suit remedies.
TAKEAWAY: Know the steps an employee must take in filing suit and what must be proven before the burden shifts to the employer or after it shifts back to the employee. Use your employment lawyer.
The post on Tuesday 8/8/2023 talked of a legal demand to a military outfitting company allegedly engaged in religious discrimination – contractor backs down. The employer here is an Army and Air Force contractor that allegedly singled out and targeted an employees for keeping a Bible on her desk and reading aloud from her Bible during break time. Let’s look at the background.
For over five months, the employee worked at an Army outfitting company. During that time, she kept a Bible on her desk and would read from it during lunch and break time. Her interactions with co-workers are noted in the post. At one point she was approached by her supervisor and told that she must remove her Bible from her desk and would only be allowed to keep it at work in a locker – out of sight of other employees. The employee requested a meeting with HR. What happened during that meeting is described in the post. The employee complied with what HR instructions out of fear of losing her job, but a few weeks later was “written up” for discussing her faith with fellow employees during her breaks. How the employee said she handled co-workers during the discussions is in the post. In the following weeks the employee allegedly experienced more negative criticism of her work and removal of her desk where she had previously kept her Bible. The employer also took other adverse action – see the post. So a legal demand was sent to the employer as to alleged religious discrimination, identifying applicable law (detailed in the post), ant then it allowed the employee to keep her Bible on her desk and read it aloud during break time.
TAKEAWAY: Employers must know what employees can and cannot do during work and on premises – again, get legal assistance.
The post on Wednesday 8/9/2023 told us an active duty military member returned home to find being evicted over nonpayment of HOA dues. Air Force Master Sergeant Christopher Banda returned home after being overseas, only to discover an eviction notice due to missed HOA fees. Banda claimed he had automatic pay-ments set up while overseas for 15 months, but something went wrong and the funds weren’t processed. There were also other issues noted in the post. Banda presented his case to a judge in late July. Banda supposedly is continuing to make his mortgage payments, but the HOA put a lien on the house which was purchased by a third party at foreclosure while Banda was overseas. Now the new owner wants to evict Banda. What did Banda say he would pay? See the post. And how did it get to this point? See the post for Banda’s explanation. He also argued to the judge that USERRA is a federal law protecting military members from this kind of situation. The argument made against the new owner, and what should happen given the facts, is noted in the post. The Judge postponed the hearing until this month for a verdict. What’s at stake? Banda could potentially lose a $400,000 home because of $2,500 in unpaid HOA fees.
TAKEAWAY: With so many people in the military, HOA and condo association must know the effect of USERRA – make sure your community association lawyer can help you.
In the post on Thursday 8/10/2023 we learned about a condo complex for cars – yes, you read that right. You’ve heard of “man caves,” where people gather their gadgets and TVs to be entertained. You’re heard of the “Batcave,” where Batman parks his car. Now a Florida city will soon have Motocave, a 43-unit luxury condo complex for automobiles. Construction has started and units have already been sold. But this is not the first car condo in the area – another opened up the road in late 2022 with 300 units, only five of which are unsold. And there are more – see the post. So what’s behind the car condo trend? Space — or lack thereof. Many condos and apartments — for humans — may have space for 1-2 cars, but often the owners have more, especially collectors. But these condos are not just storage. The neighboring one includes amenities – see the post. But they don’t come cheap; the units range in price from $400,000 to $2.5 million. These units will eventually be run by a homeowners association. And it will have its own amenities as described in the post. There will also be an auto detailer on the property.
TAKEAWAY: remember that condominiums need not only be residences for humans – they can also have a variety of commercial applications (such as this one). But they still have to follow applicable law, so know what that is for the given circumstances.
The post on Friday 8/11/2023 reiterated that employers need to go further to accommodate an employee’s religion. You should know from our post on Sunday 7/16/2023 that the US Supreme Court issued a unanimous opinion in Groff v. DeJoy that effectively made it easier for employees to secure religious-based accommodations in the workplace. Prior to Groff, an employer could deny an accommodation request if it could show that the accommodation would result in anything more than a de minimis cost on/for the business. But now, after Groff, employers may only refuse the request if the accommodation would cause a substantial burden in the overall context of an employer’s business. So where do employers go from here?
Title VII of the Civil Rights Act of 1964 (“Title VII”) prohibits discrimination based on an employee’s religion. How it defines religion is discussed in the post. But it was the meaning of “undue hardship” that was at issue in Groff. How that term had previously been interpreted, based on a 1977 Supreme Court case, is detailed in the post. In Groff, the Supreme Court clarified the de minimis standard seemingly outlined in the 1977 case. The background of Groff is in our 7/16/2023 post and this post. The Supreme Court said it was doubtful the 1977 case intended to create a de minimis “undue hard-ship” standard and held that an employer may demonstrate “undue hardship” by showing “that the burden of granting an accommodation would result in substantial increased costs in relation to the conduct of its particular business.”
But the Court also noted in Groff that application of this new standard is context specific and to be considered at the trial court. Its instructions to trial courts are noted in the post. And without adopting current EEOC guidance on the issue, the Court also recognized that such guidance would be mostly “unaffected” by the decision, including those areas listed in the post.
The Court also provided additional guidance when an employer analyzes undue hardship in the context of impact on other employees. That analysis/discussion is in the post. Ultimately that means that employers must confirm whether and when an employee-based impact also sufficiently impacts the conduct of the business. The Court helped a bit by noting at least two particular instances when it does not; see the post. Finally, the Court reminded employers of their overall obligation relative to an accommodation request – see the post.
So how did Groff impact employers? It is more difficult for employers to deny religious-based accommodation requests. Employers should revisit policies relative to religious-based accommodation requests to ensure they will meet muster under the new Groff standard. Other steps employers should take are outlined in the post.
TAKEAWAY: an increasing number of employees are requesting accommodation for their religious beliefs, making it imperative that employers know the steps to follow as part of the interactive process under Groff. Get help from an employment lawyer.
Finally, in the post yesterday 8/12/2023, we looked at workplace inclusion: disclosing a disability at work and how to identify who needs accommodation. Often employees do not want to disclose a disability even though it affects their ability to perform their job. So what should an employer do? Initiatives and education are a good start – especially given the need for workers in all segments of the working world. The included VID discusses potential hurdles and some examples of how to get over them (i.e., potential accommodations).
TAKEAWAY: Statistics show that a majority of accommodations cost nothing but significantly improve performance – but employers must engage in the interactive process to see what is needed for each request and go from there.