Regular job duties as protected activity, accommodation vs the law, result of non-compliance with mandatory vaccination, how to “get around” condo/HOA rules, and more in Our Social Media posts This Week, July 18-24, 2021.

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.

regular job duties as protected activity under title VII?

In the post on Sunday 7/18/21 we asked: is performance of regular job duties protected activity for discrimination claims? Think this through: the job of HR and EEO personnel is to ensure that the employer follows applicable laws and regulations, right? So, within their job, what could they do that would be protected under anti-discrimination laws? One federal court recently answered that very question under the opposition clause of Title VII. If you aren’t sure what that provision says, check the post. In the subject case, Jackson was the employer’s HR director and an EEO officer. Jackson alleged that she was terminated in retaliation for investigating employees’ claims of racial discrimination and attempting to ensure that the employer complied with EEO regulations. The trial court said that neither of those things was protected because they were Jackson’s normal job duties. She appealed. Her basis of appeal, supported by the United States as amicus curiae, is noted in the post. The appellate court agreed with Jackson but said that a plaintiff must have a “reasonable and good-faith belief that the opposed practices were unlawful.” The appeals court rejected the employer’s argument under the FLSA (see the post). The appellate court also rejected a state-law claim by Jackson. So, in a nutshell what do we get from this decision? See the post for a quick summary.

TAKEAWAY: HR/EEO professionals doing their regular job duties may be able to state a claim for retaliation under Title VII’s opposition clause. But employers should consult their lawyers and ensure the HR/EEO personnel are treated like all other employees.

ada accommodation as contrary to existing law; which governs?

The post on Monday 7/19/21 reaffirmed that ADA reasonable accommodations need not violate the law. Seems like a “duh” moment, right? But it took a federal appellate court to say this. Here, Black firefighters with a skin condition (detailed in the post) requested an accommodation to the employer’s grooming policy. The employer said no based on an OSHA regulation. The firefighters sued for failure to accommodate under the ADA. How the appellate court identified and analyzed the issue are in the post – and pretty simple to read and understand. Yep, duh.

TAKEAWAY: Employers must follow the law, period. Double-check adverse actions with an employment lawyer if you are unsure.

how to abide by condo/hoa rules and still do what you want

The post on Tuesday 7/20/21 let us see the clever way this couple got around their HOA’s “no flags” rule for Pride. One couple make their home festive for whatever the season is, including Pride. They put out a pride flag in front of their house but were told by their HOA to remove it (the basis for removal is in the post). They did, but then figured out a workaround. Since the husband was on the board, he knew about the rule and what it allowed and prohibited. His socmedia post about this is in the post – and perfectly explains the situation.

TAKEAWAY: Everyone must abide by the Governing Documents in a condo or homeowners’ association, but that doesn’t foreclose alternative ways to do certain things. A community association lawyer can assist you.

noncompliance with mandatory vaccination as endangering job

The post on Wednesday 7/21/21 asked a still-timely question: If you do not want to get your COVID-19 vaccine, could your job be on the line? The quick and simple answer is “maybe.” Employers can mandate vaccination for employees – as long as they accommodate those who cannot get vaccinated for medical or religious reasons. See the post for examples of accommodations an employer mandating vaccination might need to provide. If those reasons don’t apply? See the post.

TAKEAWAY: Know what rights and obligations employees have in the face of a mandatory vaccination policy – consult an employment lawyer to assist.

applicants’ allegations of discrimination under title vii
result in settlement

In the post on Thursday 7/22/21 we saw that US Foods will pay $160,000 to settle allegations of hiring discrimination against Black and female job applicants. This is a good reminder that the law applies to applicants too! US foods is a food service giant. This case involves 114 people who sought positions at a distribution facility over an 18-month period in 2018-2019. US Foods denied the allegations but did not comment. And how did the allegations (which involved statistically significant actions) come to light? See the post. The settlement involved a monetary payment and other relief as detailed in the post and also includes continuing compliance monitoring for 3 years.

TAKEAWAY: No matter how big you are, the laws on discrimination still apply – treat all applicants and employees the same (unless the law requires different treatment).

condo/hoa rule in conflict
with applicable law:
which takes precedence?

The post on Friday 7/23/21 was about a new law that may help condo or HOA homeowners sued over solar. Jennifer and Mark Bassler wanted to reduce their carbon footprint and help the environment, so they covered most of their roof, front and back, with solar panels. That conflicted with HOA rules (noted in the post) which they knew about. But they thought the were legally protected – see the post for why. The HOA apparently thinks to the contrary and is pursuing removal of the panels in the front of the house. Neighbors in the community are divided.

TAKEAWAY: Know what you can and cannot do in your planned community (condo or HOA), but also know whether or not those restrictions comply with applicable law. Engage the services of a community association lawyer if needed.

what control does religious employer have over non-religious studies teacher?

Finally, in the post yesterday 7/24/21, we read about an unmarried Catholic schoolteacher who got pregnant, was fired, and sued. Victoria Crisitello was fired in 2014 because she was pregnant and unmarried. The lawsuit has been bouncing around trial and appellate courts since then. Trial courts dismissed the suit twice and she then won on appeal twice. Now the NJ Supreme Court has the case that tests the limits of religious freedom. What is the basis of the school employer’s appeal? See the post. And how does Crisitello’s attorney counter that? Again, see the post. What may be key, and as pointed out by her attorney, is that the school did not investigate to see if any males on staff were engaging in premarital sex (how that results in gender discrimination is noted in the  post). This case does not fall under the holding by SCOTUS in Lady of Guadalupe School v. Morrissey-Berru because Crisitello taught art. Stay tuned.

TAKEAWAY: Lady of Guadalupe told us that employers have “control” over those whose duties involve (teaching) religion – but left open what if any limits exist for other employees of a religious entity.

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