indiana primary health care association may 4, 2015 hot topics in employment law sara r. blevins...

Indiana Primary Health Care AssociationMay 4, 2015

Hot Topics in Employment Law

Sara R. BlevinsLewis & Kappes, P.C.

(317) [email protected]

www.lewis-kappes.com

Lewis & Kappes, P.C. * www.lewis-kappes.com

Nothing contained herein should be construed as legal advice. Lewis & Kappes recommends that you seek the advice of retained legal counsel to determine how the law applies to you.


What’s Hot?

• Religious Accommodation• Indiana Religious Freedom Restoration Act• Title VII religious accommodation• EEOC v. Abercrombie & Fitch (U.S.

Supreme Court)• Pregnancy Discrimination and Accommodation

• Young v. UPS (U.S. Supreme Court)• Criminal history (“Ban the Box”)

• Background checks• Changes to Indiana’s law on wage assignments

and wage claims


Indiana Religious Freedom Restoration Act (RFRA)

• 2015 Indiana Senate Bill 101, signed into law by Governor Pence on March 26, 2015

• Amended by Senate Bill 50 to provide anti-discrimination safeguards (the “Fix”), signed into law by Governor Pence on April 2, 2015

• Effective July 1, 2015

• IRFRA says that the government cannot substantially burden a person’s exercise of religion unless it is in furtherance of a compelling government interest and is the least restrictive means of furthering that interest.

• The “Fix” makes it clear the IRFRA does not “authorize a provider to refuse to offer or provide services, facilities, use of public accommodations, goods, employment, or housing to any member or members of the general public on the basis of race, color, religion, ancestry, age, national origin, disability, sex, sexual orientation, gender identity, or United States military service.”


What Does IRFRA Say?

• “Exercise of religion” includes “any exercise of religion, whether or not compelled by, or central to, a system of religious belief.”

• “Person” is defined to include not only individuals, but also religious groups and, companies (including partnerships, LLCs, corporations, etc.). In order to claim protection under IRFRA, however, what the company does must be compelled by a system of religious beliefs held by the individual(s) that control or have substantial ownership of the company.


What Does IRFRA Say?

• A person whose exercise of religion has been substantially burdened or, is likely to be substantially burdened, may file a lawsuit or raise a defense in a lawsuit based on IRFRA. The government does not have to be a party to this lawsuit, but can join in to defend itself. It also permits an award of reasonable attorney fees to the prevailing party to any lawsuit that is against a government entity.

• Finally, IRFRA states that it does not create a claim against a private employer by any job applicant, employee, or former employee.


What Does the “Fix” Say?

• IRFRA does not “authorize a provider to refuse to offer or provide services, facilities, use of public accommodations, goods, employment, or housing to any member or members of the general public on the basis of race, color, religion, ancestry, age, national origin, disability, sex, sexual orientation, gender identity, or United States military service.”

• A “provider” is defined as an individual, partnership, association, organization, LLC, company, corporation, or “other organized groups or persons,” but does not include churches or religious non-profit organizations (including affiliated schools). “Provider” also does not include “a rabbi, priest, preacher, minister, pastor, or designee of a church or other nonprofit religious organization or society when . . . engaged in a religious or affiliated educational function . . .”


What Does it Mean?

• Does IRFRA prohibit all discrimination in employment based on sexual orientation or gender identity? No, it does not. There is no general protection based on sexual orientation or gender identity under Indiana law. The IRFRA “fix” only applies to situations where the discrimination is a result of the provider exercising his/her/its religion. This is not a general prohibition against employment discrimination based on sexual orientation or gender identity

• What happens now? IRFRA will become effective July 1, 2015. Over time, the courts will work through how IRFRA applies to particular circumstances. Also, advocates for equality undoubtedly will continue to urge the Indiana General Assembly to add sexual orientation and gender identity as protected classes under Indiana’s general anti-discrimination laws.


Do other laws prohibit employment discrimination based on sexual orientation or gender identity?

• Yes, but not in all places and not in all circumstances. Some Indiana municipalities and counties have ordinances that prohibit discrimination in employment based on sexual orientation and/or gender identity. Municipalities and counties with such ordinances include: Indianapolis/Marion County, Bloomington/Monroe County, Lafayette/West Lafayette/ Tippecanoe County, Michigan City, South Bend, Fort Wayne, Terre Haute, Evansville, and New Albany.

• In addition, federal non-discrimination laws have been applied by the U.S. Equal Employment Opportunity Commission (“EEOC”) and some courts to prohibit discrimination against transgender individuals. The EEOC and some courts have also applied federal non-discrimination laws to prohibit discrimination based on sexual orientation in very fact-specific circumstances where the discrimination manifests as gender discrimination.


Do other laws require religious accommodation?

• Title VII of the Civil Rights Act of 1964 protects workers and applicants from employment discrimination based on race, color, religion, sex, national origin, or protected activity.

• Solely with respect to religion, Title VII also requires reasonable accommodation of employees’ sincerely held religious beliefs, observances, and practices when requested UNLESS accommodation would impose an undue hardship on business operations.

• Religion = all aspects of religious observance and practice as well as belief.• Includes all religion and atheism – from traditional and organized to an “odd”

belief of one. It is religious if it the person holding the belief sees it as such (what is the motivation for the activity?) – but typically must concern “ultimate ideas” about life, purpose, right and wrong, death, etc.. Social, political, or economic philosophies and mere personal preference are not protected religious beliefs under Title VII.

• Sincerely held belief = factors include consistency of behavior, accommodation requested is particularly desirable for secular reasons, suspect timing, etc. Must have objective basis for questioning sincerity.


What is a Reasonable Accommodation? • Employee or applicant is seeking adjustment to a neutral work rule that infringes on

the employee’s ability to practice his or her religion.• At least for now, employee or applicant must make the employer aware both of

the need for accommodation and that it is being requested for religious reasons – stayed tuned for more on EEOC v. Abercrombie & Fitch (SCOTUS). No magic words.

• Do not need to engage in an as an extensive interactive process like you do with an ADA accommodation request, but should promptly obtain whatever information you need to determine if an accommodation is available that would eliminate the religious conflict without posing an undue hardship. Should have some discussion with the employee. All should cooperate.

• Accommodation is not reasonable if it merely lessens, rather than eliminates the conflict between religion and work. But, must not unnecessarily disadvantage terms, conditions, or privileges of employment.

• Not obligated to provide employee’s preferred accommodation – but need to treat similarly situated employees the same.


Undue Hardship • Undue Hardship – accommodation would pose more than a de minimis cost on employer• Employer must objectively demonstrate how much cost or disruption the accommodation

would involve – factors include type of workplace, nature of employee’s duties, identifiable cost in relation to the size and operating costs of the employer, and number of employees needing accommodation.

• Undue hardship usually includes: • Hiring additional employees• Diminished efficiency of other jobs• Infringing on other employees’ rights or benefits; significant disruption• Impairing workplace safety or security• Causes co-workers to take on extra share of potentially hazardous or burdensome work

• Undue hardship usually does NOT include:• General disgruntlement of co-workers or customers• “Image”• Schedule changes that do not affect employee’s ability to

perform his/her duties• Voluntary substitutes and shift swaps absent more than de

minimis cost• Some changes in job tasks or job transfer


EEOC v. Abercrombie & Fitch• Samantha Elauf wore a headscarf during a job

interview for a position with retailer Abercrombie & Fitch – violated their “Look Policy” – otherwise would have been hired. Was not hired.

• Employer thought headscarf was for religious reasons, but did not ask and Elauf did not request an accommodation during the interview.

• Question before the U.S. Supreme Court: Whose burden is it to bring up religious accommodation? Employer or employee?

• Oral arguments held February 2015; opinion expected this summer.

• During argument, Justices seemed to lean towards some burden on employers to inquire whether complying with neutral policy would be a problem when need for religious accommodation may be reasonably suspected.


Pregnancy Discrimination and Accommodation

• In 1978, the Pregnancy Discrimination Act (“PDA”) amended Title VII of the Civil Rights Act of 1964 (15+ employees) to include pregnancy discrimination in the definition of sex discrimination:• First clause: Pregnancy, childbirth, or related medical

conditions• Second clause: Women affected thereby “shall be treated

the same for all employment-related purposes, including receipt of benefits under fringe benefit programs, as other persons not so affected but similar in their ability or inability to work”

• FMLA (50+ employees) – 12 weeks unpaid leave for prenatal care and pregnancy related medical conditions, birth of a child, and own serious heath condition following birth.

• ADA and ADAAA (15+ employees) – Pregnancy in and of itself is not a qualified disability, but pregnancy related medical conditions may be if they substantially limit a major life activity. Usually includes things like temporary lifting restrictions.


Young v. UPS• Open question under PDA: extent of accommodation (the same or better?)• Peggy Young was employed by UPS, whom generally required employees to be able to lift

70 lbs. Light duty was available for on-the-job injuries, ADA qualified conditions, and those who lost DOT certification. During pregnancy, Ms. Young was restricted to lifting 20 lbs.; because her condition did not meet qualifications for light duty, she was not accommodated (note: this happened before 2008 ADA amendments which have been expanded in such a way that Ms. Young likely would have qualified under ADA)

• SCOTUS determined that pregnancy is not entitled to “most-favored nation” status – i.e. do not have to treat the same as ANY other employee

• May make a disparate treatment claim through indirect evidence – denied accommodation when others similar in ability to work were not, with no non-prextual, legitimate, non-discriminatory reasons for doing so (not cost or convenience)

• Pretextual if imposes significant burden without sufficiently strong justification

• Must grant pregnant employees accommodation if grant the same accommodation to other employees with similar limitations – what is the impact?


Use of Criminal History in Hiring (“Ban the Box”)

• Nationwide “Ban the Box” Campaign started in 2004 aimed at ending hiring discrimination against people with criminal histories. The Campaign asks employers to remove questions regarding conviction histories from their employment applications and to adopt hiring practices that give applicants a fair chance

• 100 cities and counties (including Indianapolis-Marion County) and 16 states have adopted Ban the Box legislation in some form. Hawaii, Illinois, Massachusetts, Minnesota, New Jersey, and Rhode Island—and twelve localities— Baltimore (MD), Buffalo (NY), Chicago (IL), Columbia (MO), D.C., Montgomery County (MD), Newark (NJ), Philadelphia (PA), Prince George’s County (MD), Rochester (NY), Seattle (WA), and San Francisco (CA)—have “banned the box” for private employers

• Recent call for President Obama to issue an executive order to “ban the box” for federal jobs and contractors.


Indianapolis Ban the Box Ordinance• February 2014 – Indianapolis City-County Council passed Ban the Box ordinance,

now Indianapolis Ordinance 671.• Applies to three types of employers:

• (1) The City of Indianapolis;• (2) any employer with ten or more full-time employees that holds or enters into a

contract with a City agency; and • (3) any Marion County employer that receives an economic incentive from the

government.• Prohibited from:

• Asking about criminal history on job application or at first interview, or• Asking about or taking adverse action based on any criminal arrest or accusation

not resulting in conviction, unless then pending.• Can discuss criminal history if applicant voluntarily

discloses it.• If hiring for a position where certain convictions are a

bar to employment under state or federal law, then the employer may ask about those certain convictions, or take adverse action if permitted by other law.


EEOC Guidelines on Criminal History• EEOC Guidelines prohibit blanket prohibitions on hiring people with criminal histories. If

you disqualify a candidate based on criminal history must be justifiable under the following criteria:• (1) the nature and gravity of the offense or conduct; • (2) the time that has passed since the offense or conduct occurred and/or the sentence

was completed; and • (3) the nature of the job held or sought.

• Best practices:• No blanket prohibition on hiring people with criminal or arrest histories;• Develop a narrowly tailored policy taking into account essential job requirements,

types of offenses, the time frame for the offense, and requires and individualized assessment of the candidate and his or her situation;

• Limit criminal history and arrest inquires to what is job related and justified by business necessity;

• Keep confidential all records and other information obtained during any hiring process; and

• Conduct training for hiring personnel and managers regarding the policies, practices, standards, and legal requirements.


Criminal Background Checks

• If you use a third-party vendor, you must comply with the federal Fair Credit Reporting Act (FCRA).

• Notify applicant or employee that you might use information from a background check to make decisions.• In stand-alone, written format. Must be

clear and not confusing and describe scope.

• Get written permission from applicant or employee. Can be part of the notification form.

• Certify to the vendor that you have notified the applicant/employee and have permission, complied with all FCRA requirements, and won’t discriminate or violate the law.


Criminal Background Checks

• BEFORE taking adverse action, give applicant or employee notice with a copy of the report and a copy of “A Summary of Your Rights Under the Fair Credit Reporting Act” (vendor should give you this)

• AFTER you take adverse action, you must:• Tell the applicant or employee that s/he was

rejected because of information in the report, • Give him/her the contact information for the

vendor,• Tell him/her that the vendor did not make the

hiring decision and can’t give reasons for it,• Tell him/her that s/he can dispute the report.

• When it is time to dispose of the reports, do so securely.

• Your vendor likely will have forms and checklists for you to use.


Changes to Indiana Wage Assignments and Claims• Indiana House Bill 1469 – in conference committee (??)• Wage Assignments, additional categories of permissible deductions:

• Merchandize, goods, or food for the employee’s benefit, use, or consumption• Uniforms and equipment necessary to fulfill duties of employment, not to exceed

lesser of $2500 annually or 5% of employee’s weekly disposable earnings• Education or training unless provided through economic development incentive• Payroll or PTO advance• Interest rate may not exceed Prime + 4%• Still must get signed, written authorization by both employer and employee,

revocable at any time!!• Wage Payment Claims (Indiana Code § 22-2-5-2) (for employees that are still working

for employer or who voluntarily quit):• Removes virtually automatic treble

damages and attorney fees provision• Treble damages, interest (for not timely

paying judgment), and attorney fees only apply if employer was not acting in good faith.


More Information

Sara R. BlevinsLewis & Kappes, P.C.

(317) [email protected]

www.lewis-kappes.com

Some websites with a wealth of information:

U.S. Equal Employment Opportunity Commission: www.eeoc.gov

U.S. Department of Labor: www.dol.gov

Federal Trade Commission: www.ftc.gov

Indiana Civil Rights Commission: www.in.gov/icrc/

indiana primary health care association may 4, 2015 hot topics in employment law sara r. blevins...

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