Below is a review of the posts (on Facebook, LinkedIn, and X [formerly Twitter]) from the past week. You can check out the full posts by clicking on the links.
The post on Sunday 11/19/2023 was about the law: religion in the workplace. This is one of the most confusing areas in employment law – and also one of the fastest growing areas of employee complaints and concerns. EEOC statistics show that religious discrimination charges have increased 50% in the last 10 years! Why? Perhaps because many religions require various duties and practices, such as those noted in the post — any of which could result in conflict with existing policies and coworkers’ beliefs. One simple example that brings it home is in the post. And of course the COVID-19 pandemic and mandatory vaccinations required employers to consider reasonable accommodation requests for religious reasons. Work environments should treat differences with respect and inclusion and DEI training should include religious differences.
With that said, what is prohibited under the law? The following types of religious discrimination: disparate treatment, disparate impact, and hostile work environment. All are defined in the post. It should be obvious that an employer cannot refuse to hire or promote members of a particular religion. And what about requiring attendance at prayer meetings as a condition of employment? See the post.
Harassment on the basis of religion (or, as the case may be, the lack of belief therein) is also prohibited. It should not be tolerated. A few actual cases are discussed in the post by way of example. On the other hand, a simple disagreement over religious principles probably will not be deemed unlawful harassment. But the facts matter.
And what about the employees with sincerely held religious beliefs? Does an employer have a duty to accommodate those beliefs? You bet! Unless doing so would impose an undue hardship on the business operations. Thanks to a recent Supreme Court case (which we reported on in a prior blog), it is harder for employers to prove undue hardship relative to religious accommodation. But again, the facts matter. Employers should focus on whether the employee’s request is “reasonable.” Some examples (and whether they might be considered reasonable) are in the post. The employer and employee, working together, can probably come up with ways to accommodate. A creative example is in the post.
TAKEAWAY: as noted in the post, employers must balance the religious-based expectations of employees; respectful treatment of employees’ religious beliefs (or lack of them) will avoid litigation (and lead to better morale).
The post on Monday 11/20/2023 told us Apple to pay $25M over allegations of hiring discrimination against US citizens, permanent residents. Yes, you read that right. Apple has agreed to pay up to $25 million in backpay and civil penalties to settle allegations it illegally discriminated against U.S. citizens and permanent residents in favor of foreign nationals seeking green cards. This is the largest award the DOJ has recovered under anti-discrimination provisions in the Immigration and Nationality Act.
DOJ says that it determined Apple’s recruitment practices discriminated against U.S. candidates and non-U.S. residents, instead favoring beneficiaries of the permanent labor certification program (PERM). What PERM is is in the post. The DOJ began investigating Apple in 2019 and found that it engaged in a “pattern or practice of citizenship status discrimination in recruitment for positions it hired through PERM, and that the company’s unlawful discrimination prejudiced U.S. citizens, U.S. nationals, lawful permanent residents, and those granted asylum or refugee status.” What else the DOJ found (other violations) and the effects are noted in the post. In a statement to the Associated Press, Apple said it employs more than 90,000 people in the U.S. and “When we realized we had unintentionally not been following the DOJ standard, we agreed to a settlement addressing their concerns.”
Under the settlement, Apple will pay $6.75 million in penalties and establish an $18.25 million back-pay fund for alleged discrimination victims. And there is significant non-monetary relief too – see the post.
TAKEAWAY: Know the laws that apply to your business and how to properly comply with them – it can be quite expensive if you don’t.
The post on Tuesday 11/21/2023 told us a nonbinary teacher fired for using gender neutral Mx title sues school for wrongful discrimination. Given today’s environment where there are more nonbinary people, this scenario may become more common. While this happened in Florida under that state’s law, it could happen in many states so pay attention.
A non-binary teacher who was fired for using an Mx honorific in school has filed a wrongful discrimination against their employer – while the state’s “Don’t Say Gay” law sits in front of an appeals court. AV Vary, a physics teacher, was terminated on Oct. 24 after refusing to change the courtesy title used on school materials and communications from ‘Mx.’ to ‘Ms.,’ ‘Mrs.’ or ‘Miss.’ The school said the chosen ‘gender-neutral’ title violated a section of a Florida law signed in May (which expands the “’Don’t Say Gay’ law. Vary has worked as a teacher for 15 years, uses ‘they/them’ pronouns, and recently transitioned from Ms. to the ‘Mx’ title. Vary told their principal about the change; what happened next is in the post. Vary refused to be referred to as ‘Missus,’ and after a back and forth argument with HR, Vary was eventually fired. NOTE: AV Vary is not their full legal name, but how they requested to be referred to due to ‘privacy concerns.’ The school issued a statement about why it acted as it did – see the post. Vary then filed a complaint with the EEOC. Why did Vary say they filed the charge? See the post.
What makes this even more difficult is that it occurs at a time of dire teacher shortages across the country. Statistics on that are in the post. And homeschooling is still on the rise, as are book bannings. Again, statistics and examples are in the post.
TAKEAWAY: States are free to enact laws as they see fit, but not when those laws contradict federal law. Sexual orientation is protected in the US.
The post on Wednesday 11/22/2023 was about an HOA dispute: concrete walkway causes controversy. A couple in a found themselves embroiled in a long and frustrating dispute with their homeowner’s association (HOA) over a concrete walkway they added to their front yard. The couple had submitted an Architectural Review Committee (ARC) application as they were supposed to. But they then went ahead with the work before receiving final approval from the HOA. The HOA later sent a violation letter, citing two reasons for their disapproval (which are in the post). But despite the failure to approve the project, the HOA later approved the couple’s request to add concrete steps leading to their front door. Confused by the conflicting decisions, the couple asked the HOA for clarification (including the things noted in the post). While the Board received positive feedback from the couple’s neighbors, the board’s opinion differed.
The couple just wanted the situation resolved. Unfortunately they had to engage a lawyer to help them. There was finally a response from the board (which is in the post). The couple promptly submitted a new ARC application that incorporated the requested changes. But then things stalled again – until the couple met the president of the HOA at a Christmas party in late December 2022. The president suggested resolving the issue by arranging a meeting at the couple’s home after the holidays. However, in January 2023, the president told them that only he would be available to meet. What he told them during that meeting is in the post – and again changed course for the HOA.
The couple’s frustration grew. They confronted the board about the fines levied against them (background on that is in the post). Seeking resolution, the couple approached the property management office; they say they were advised to write a letter requesting removal of the fine. They did – the result is in the post (and includes a partial attorney fee reimbursement). But that was not the end – there was more relative to the fine that the Board imposed. See the post.
TAKEAWAY: While there are restrictions and processes to follow in both condo and homeowner associations, both parties (owners and Board) must work together. A good community association lawyer can help too.
In the posts on Thursday 11/23/2023, here, here and here, we celebrated Thanksgiving. Being thankful every day in the workplace also helps keep a happier work environment and builds employee morale.
TAKEAWAY: Holidays affect various workplaces differently – some close, some remain fully open, and others are somewhere in the middle. But all need to remember to follow applicable employment law and policies.
The post on Friday 11/24/2023 noted husband shoved a fellow worker — can he get his job back? First, the facts: husband pushed a colleague at work. The colleague was in husband’s face, so husband felt threatened. The colleague went to the manager; the police were called, and husband was fired. The colleague apparently regretted this and is coming to court to support husband and drop the charges. The employer said that husband could either retire or resign. Husband wants to clear his name and fight the termination and legal charges. Husband has been with the company for 20 years and has never had an incident. The question is whether husband has a chance?
Next, the response: As to the legal charges, that is a criminal law matter and one outside the scope of this blog. However, job termination is clearly one of the things this blog discusses. So how does that fall out given the facts? See the post.
TAKEAWAY: Employers have certain rights and responsibilities in the workplace – knowing what they are, and the breadth, is important for both them and the employees. Employment lawyers can help.
Finally, in the post yesterday 11/25/2023, we learned a staffing firm to pay $900K to resolve DOJ discrimination claim. We noted that’s a whopping number, especially on this Small Business Saturday. Kforce is the company. It has dozens of offices across the U.S. and allegedly discriminated against non-U.S. citizens who had permission to work in the US. From early 2019 to early 2022, Kforce allegedly posted job ads containing unlawful hiring restrictions based on citizenship status and also screened out candidates. Of what statute is this a violation? See the post. So now KForce will pay $690,000 to the government and $230,000 in damages to the job candidates. And there is also non-monetary relief as noted in the post.
The case is a good reminder for HR and employers that legal compliance isn’t just about what happens on the job, but also before it. Most laws apply to applicants too. Some examples of ways employers can avoid discrimination are in the post.
TAKEAWAY: Employers must train their workers to comply with applicable laws beginning with hiring and continuing through employment and termination; sometimes the assistance of an employment lawyer might be needed.
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