Supreme Court lowers bar for religious accommodation; employer liability for conduct outside the workplace; condo election fraud; possible workplace effect from Supreme Court affirmative action decision; and more in Our Social Media Cases This Week, July 16-22, 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.

supreme court overturns title vii precedent, lowring bar for religious accommodations

The post on Sunday 7/16/2023 told us the Supreme Court overturns Title VII precedent, lowering bar for religious accommodations. The case involved a former U.S. Postal Service employee who was denied his request not to work on Sundays in order to observe the Sabbath. Relying on the 1977 Supreme Court decision in Trans World Airlines, Inc. v. Hardison, the 3rd U.S. Circuit Court of Appeals ruled in favor of USPS, holding that the employee’s requested accommodation would have imposed upon his co-workers, disrupted the workplace and workflow, and diminished employee morale. Then the Supreme Court issued a unanimous opinion in Groff v. DeJoy, The opinion was written by Justice Samuel Alito. Much of what Alito’s decision includes is in the post, including how “undue hardship” is shown in the religious discrimination context and analyzing the more-than-de-minimis-cost language in Hardison. So what is no longer allowed to show that a requested religious accommodation is an undue hardship? A showing that it would result in more than a de minimis  cost. Instead, what employers must do is noted in the post. That is not as far as what the EEOC suggested (which is in the post). The net effect of the decision in Groff is a higher bar for employers to meet in order to deny an accommodation request for religious reasons. There were also several other clarifications to the law that are noted in the post.

TAKEAWAY: as with all accommodation requests, employers must know what is required in order that must do to comply with the law – consulting an employment lawyer regarding a religious accommodation is now recommended.  

3 ways the SCOTUS affirmative action ruling may have ripple effects on employers + 6 steps to boos your DEi program

         The post on Monday 7/17/2023 explained 3 ways the SCOTUS affirmative action ruling may have ripple effects on employers + 6 steps to boost your DEI program. While employers may not be directly impacted by the Supreme Court’s decision blocking affirmative action in education admissions, the new standard will likely have big ripple effects on the workplace soon — so now is the time for employers to prepare for what may be coming.

Here’s What Just Happened. The Supreme Court just severely limited higher educa-tional institution’s use of race-conscious admission processes, ending a decade’s long admission process used by schools across the country. Prior to the ruling, higher ed institutions could consider race for the purpose noted in the post. That was referred to as “affirmative action.” But recently this was challenged – the argument they made is in the post. The Supreme Court agreed and ruled that the admissions programs in question violated the Equal Protection Clause of the Constitution, explaining the three main problems with using affirmative action in admissions (the first of which is that affirmative action doesn’t pass the “strict scrutiny” test that needs to be applied whenever one person is favored over another because of their race and the other two of which are described in the post).

Affirmative Action in Admissions Is Alive – But Just Barely. The Court said that nothing prohibits universities from considering an applicant’s discussion of how race affected the applicant’s life during the admissions process, including things listed in the post.

3 Potential Impacts on the Workplace. While the Court’s decision focuses on race-conscious admissions decisions in higher ed, such that the  legality of your company’s DEI program is not directly affected, there are several ways your workplace could feel the ripple effect. The first is less diversity in applicant pools. Why? There might be fewer applications from historically underrepresented racial and ethnic groups — and therefore fewer workers from those groups to fill vacancies and move into leadership. One example of something employers can do about this is in the post. Another ripple effect might be more cases challenging private employer DEI programs under work-place anti-discrimination laws, such as Title VII of the Civil Rights Act. Title VII bars discrimination against job applicants and employees based on race, color, religion, national origin, and sex. Notably, the law protects workers from discrimination if they are in a protected category as defined in Title VII. So, along the same lines as the educ-ation cases, we may see workers from majority groups claim that diversity efforts result in discriminatory outcomes for them. While such challenges might not ultimately be successful, you should prepare for a potential surge in so-called “reverse discrimina-tion” claims and watch for rulings and guidance in this area. The form those suits might take is discussed in the post. And the third area of ripple effect is in the post.

6 Steps Employers Should Consider Taking Now. These are things to boost DEI efforts while staying in compliance with anti-discrimination laws. First, develop a strong message from your leadership team. How to do that is in the post Next, expand your applicant pool. Ways to do that are also in the post, along with the other four suggested steps.

TAKEAWAY: It is amazing how a decision in one area can affect the workplace – keep up with your obligations by sitting down with an employment lawyer.

6 essential safety tips for homeowners’ associations: building a security community

The post on Tuesday 7/18/2023 was about 6 essential safety tips for home-owners’ associations: building a secure community together. Safety is (or should be) a top priority for every condo and homeowners’ association as it plays a crucial role in fostering a secure and harmonious living environment. Effective safety measures protect residents and their properties, and also community bonds. The post discusses six essential safety tips for associations, emphasizing teamwork and collective efforts to create a safe neighborhood.

First, establish a neighborhood watch committee. Why that helps, and the components, are in the post. Next is maintaining a clean and well-lit neighborhood. There are aesthetic benefits, but also safety benefits as discussed in the post. The other suggestions are in the post.

TAKEAWAY: Condo and homeowner associations should be safe for all residents; certain steps can be taken to work toward that goal.

harassment outside the workplace: can it lead to employer liability?

The post on Wednesday 7/19/2023 talked about harassment outside the workplace: can it lead to employer liability? We know that employers cannot police all employee conduct outside the workplace, but we also (should) know that employee interactions outside of work can – and do – impact the work environment. And there are some circumstances when an employee’s inappropriate conduct outside the workplace may subject an employer to liability. But what constitutes actionable discrimination or harassment that triggers potential liability is not always clear. 

Several federal laws prohibit workplace discrimination and harassment, and many states have adopted their own anti-discrimination and harassment laws. Perhaps the most well-known and frequently cited law governing public and private-sector work-place harassment is Title VII of the Civil Rights Act. What Title VII provides is specified in the post. The reach of Title VII (and other state and federal anti-discrimination laws) can, and often does, extend beyond the four walls of the office and the typical 9-5 day, but when liability will attach for out-of-office conduct is fact-specific.

The key question is whether the conduct has some nexus to the workplace or employment relationship. That nexus can be forged in any number of ways, some of which are identified in the post.

The tough cases involve a more tenuous link to the workplace, such as when an out-of-work incident is coupled with incidents that occurred in the workplace. What must an employer do then? See the post.

And keep in mind that different rules apply if the perpetrator supervises the employee or if the perpetrator works in close proximity to the employee because the employee may legitimately perceive the work environment to be hostile or discrimi-nation—even if the at-issue conduct took place outside of work.

How you as the employer react when you learn of potential discrimination or harassment is critical. There are a number of preventative steps employers can take to avoid being sued based on conduct that occurred outside the workplace. They include developing written employee policies (how this helps is in the post), providing a clear process for employees to report harassment and discrimination (why this is SO SO important for employers is in the post), and at least 2 other things listed and described in the post.

        TAKEAWAY: Out-of-workplace conduct may subject employers to liability, so having in place policies to help in those situations is a must – consult an employment lawyer to develop or review your policies.

an employer’s guide to inclusive language

In the post on Thursday 7/20/2023 we learned about An Employer’s Guide to Inclusive Language. To commemorate the June 15, 2020, Supreme Court decision in Bostock v. Clayton County, which held that Title VII prohibits employment discrimination based on sexual orientation or gender identity, the EEOC recently issued a statement acknowledging the progress made in protecting LGBTQ+ rights in the workplace. A key to the EEOC’s message is that workplace behaviors and language that are not inclusive often serve as a predicate to harassment, such that employers should adopt practices that embrace inclusive language. What does that entail? See the post.

Pronoun use is vital to inclusive language relative to an individual’s gender identity. Typical gender pronouns include those noted in the post (and misuse of pronouns, or refusal to use proper pronouns, can lead to suit as discussed in the post). So instead of assuming someone’s pronouns, workers should be encouraged to ask what pronouns the person uses or prefers. Other ways to use pronouns and how they foster a desirable workplace are in the post.

In addition to using proper pronouns, using gender-neutral terms aids inclusivity – and avoids assumptions about an individual’s gender identity. Examples of how gendered terms can be replaced are in the post. This applies to job titles too – see the post. And employers should consider revising handbooks, policies, and other docu-ments to include gender-neutral language (with examples as noted in the post).

What else can employers do? They can avoid language and beliefs that perpetuate stereotypes associated with sexual orientation or gender identity. An example of how this may come up in the workplace is in the post. And given that the EEOC recently filed suit against an employer who maintained stereotypical constructs concerning femininity (see the post for the substance), employers are advised to work on this. The EEOC reminds that employers must protect against harassment of employees based on their sexual orientation or gender – and that a failure to do so results in what is noted in the post.

Employers must also remember that the Bostock decision prohibits employers from limiting opportunities for career growth and leadership positions based on stereotypes or biases related to sexual orientation or gender identity. So what should employers do? See the post for possible actions.

TAKEAWAY: Since the EEOC is enforcing diversity and inclusion, employers should do what they can to stay on the right side of the law.

ex-Marco councilor Victor Rios gets two years probation in condo election fraud case

The post on Friday 7/21/2023 told us ex-Marco councilor Victor Rios gets two years probation in condo election fraud case. Rios was sentenced to two years of probation for committing personal information fraud while allegedly rigging a 2019 condo board election. Rios, 80, was found guilty of three fraud charges and cleared of two counts of forging a public record.

Rios was elected to the Marco Island council in 2014 and resigned mid-term in October 2020, citing “personal reasons.” Coincidentally, four months later, he was charged with fraud for allegedly fabricating votes to remain on the board of his condominium association.

Rios denied wrongdoing in a 2019 interview. What he said then is in the post. Rios allegedly altered ballots as described in the post. That led to election results showing a 97% voting rate, which at least one resident found suspicious and complained to the state. Why did this happen? Because the election was contentious and two residents wanted to inspect the ballots.  What they found upon inspection is detailed in the post. There was even forensic testing – and what it showed is also noted in the post.

TAKEAWAY: Elections in condo and homeowner associations are important and integrity should be top of mind and process.

eeoc sues formel d usa, inc for sex discrimination and retaliation

Finally, in the post yesterday 7/22/2023, we saw that the EEOC sues Formel D USA, Inc. for sex discrimina-tion and retaliation. Formel D is an automotive quality control company with multiple locations in several states. It allegedly maintained a sexually hostile work environment at one location and retaliated against a female employee who complained of being sexually harassed by a male supervisor according to the EEOC’s suit.

The EEOC alleges that shortly after the female employee was hired, her male supervisor began to make sexual advances toward her. What then happened, and what Formel D did about it, is in the post. Her hours were eventually reduced and she was subsequently fired. Conciliation failed so the EEOC filed suit. And what relief does the EEOC seek? See the post. What the EEOC said about the conduct alleged in the suit is also in the post.

TAKEAWAY: Train your employees – especially managers – how to act in the workplace so as to minimize liability as an employer. Bring in an employment lawyer early and often if you have questions or employees complain.

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