Iowa Employment Law Blog : Iowa Employment Lawyer & Attorney : Patrick Smith : Bradshaw Fowler Proctor & Fairgrave Law Firm : Des Moines, Central IA Discrimination & Labor Law

There is an interesting op-ed in today's Des Moines Register concerning religious discrimination in the workplace.   The author, Lake Lambert III,  is a professor of Religion at Wartburg College in Waverly.  He contends employees are subject to religious tyranny because Title VII does not give enough protection to employees' ability to practice their religion at work.   Under existing law, an employer is required to provide a reasonable accommodation of an employee's religious practice, unless it would result in an undue hardship on the conduct of the employer's business.  Generally speaking, an accommodation is an undue hardship if it is costly, compromises safety, decreases efficiency, infringes on the rights of other employees, or causes other employees to do more than their share of hazardous or burdensome work.  

Professor Lambert supports a proposed law known as the "Religious Workplace Freedom Act(RWFA)", which would change the existing reasonable accommodation standard.  Under the proposed law, for an accommodation to be considered reasonable, "the accommodation shall remove the conflict between employment requirements and the religious observance or practice of the employee."   The only defense to such an accommodation is if it requires "significant difficulty or expense."  In other words, the burden would be on the employer to alter any employment requirement that conflicts with an employee's religious practice, unless the employer can prove it would be too financially costly.

Few would disagree that employees should be permitted time off to attend religious services, observe holy days, and the like.  If that is the problem, the proposed changes in the law could be more narrowly tailored to address it.   In a country with so many different religious practices, however, an expanded duty to accommodate them all could create more problems than it solves.  What happens when the practices of different religions conflict?  What about situations where an employer's legitimate interest in safety or uniformity impacts an employee's desire to wear religious clothing or articles?  Under existing law, employers have more  flexibility to address these situations in the context of legitimate business needs.  The proposed RWFA tips the balance too far the other way.

While Professor Lambert's proposal may sound good in theory as a way of promoting religious tolerance, in practice it imposes unreasonable obligations on employers and adds very little to religious liberty. 

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On October 30, the Iowa Civil Rights Commission (ICRC)  issued its annual report for 2009.   Once again this year, complaints of employment discrimination constituted the vast majority (85%) of the charges.   The non-employment charges (in the areas of credit, education, housing, and public accommodations) make up the remaining 15% of the charges.

The total number of complaints alleging employment discrimination increased by 13% over the prior year, from 1453 in 2008 to 1644 this year.   The rate of increase in charges filed with the ICRC is comparable to the increase in those filed with the federal EEOC.   Of course, most charges filed with the ICRC that alleged employment discrimination are also cross-filed with the EEOC. 

The category with the largest number of complaints was sex (717), followed by race, (694), disability (562) and age (368).   There were 55 claims of religious discrimination, and six alleging discrimination on the basis of sexual orientation or gender identity.   Despite the publicity relating to the Iowa Supreme Court's decision legalizing marriage among persons of the same sex, there was no increase in charges in the sexual orientation category. 

The largest increase in the type of claim was retaliation.   Retaliation claims increased 30%, from 435 last year to 567 this year.   Although retaliation is a separate category of complaint, charges alleging retaliation are frequently accompanied by a charge of discrimination.

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This post in HR Observations (Hat tip: Ohio Employer's Law Blog) explores whether obesity could be the next characteristic to become protected under the anti-discrimination laws.   A group called the "Obesity Action Coalition" complains that discrimination against obese people is widespread.  Employer concern about rising costs associated with employee health coverage, workers' compensation costs,  and an emphasis on employee wellness may also contribute to the perception among the overweight that they have been marginalized in the workplace.

Although obesity is not officially a protected class under the federal discrimination laws or Iowa Civil Rights Act, employers are wise to be alert to weight related conditions that might lead to discrimination claims.   Health problems associated with obesity may protect an employee under the recent amendments to the ADA.   To the extent that gender or age contribute to weight related health conditions, policies or practices that favor fit and healthy employees may adversely impact one gender or age group more than others.   Even an employer wellness program designed to combat obesity could potentially discriminate against those who do not benefit from it.    It remains to be seen whether the EEOC will address obesity in the revised ADA regulations, and whether the Courts are open to expansive interpretations that will, in effect, result in weight becoming a new protected class.

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Between a busy trial schedule and the other distractions of summer, we have been a little delinquent in keeping you up to date during the past couple of weeks.  We apologize for the inactivity on the blog, as there have been many developments in the employment law world since our last posting at the end of June.   The following is a brief summary of four of the more interesting and important current events:

1.  Ricci v. DeStefano. 

The Supreme Court issued its opinion on June 29.   This is a significant case dealing with the sensitive and controversial issue of reverse discrimination.   The case is notable not only for the subject matter, but because Sonia Sotomayor, whose Senate confirmation hearings are now underway, was one of the judges on the Second Circuit Court of Appeals who decided the case below.  

The case was about firefighers in New Haven, Connecticut who applied to be on the promotion list for captain and lieutenant positions.   A candidate's rank on the list was determined by process that included written and oral exams.    After the testing process, only white and Hispanic candidates qualified for a promotion to captain, and only white candidates for lieutenant.   The City's Civil Service Board refused to certify the test results because it would result in no black candidates being eligible for promotion. 

The Ricci case presents a clash between two types of discrimination, disparate treatment and disparate impact.  Disparate treatment is intentional discrimination based upon race or some other legally protected classification.  Disparate impact, on the other hand, is not necessarily intentional discrimination, but occurs when job criteria that are neutral on their face have an adverse impact on certain groups.   In this case, the black firefighters contended the testing process was discriminatory because it resulted in no black candidates qualifying for the promotions list.     The City's defense in the lawsuit brought by the white firefighters was that it could not certify the list because if it did, it would be subject to disparate impact liability.   In other words, the City did not believe it could promote only white candidates because it would be sued by the non-white candidates who did not qualify for promotion.

The Supreme Court held it was unlawful for the City to refuse to certify the results of the promotional exam based solely upon the relative racial make-up of the candidates who qualified versus those who did not qualify.  The Court sympathzed with the City's position that it would be liable for disparate impact discrimination if the test results had been certified.  However, Justice Kennedy, writing for a 5-4 majority, held that, at least in this case, such concerns did not justify denying promotions to candiates who had the highest scores because no black candidates were in that group.   

Is is ever permissible to make an employment decision based upon an employee's race because of the fear of disparate impact liability to persons of another race?  The Court concluded such a decision would be permissible only if there is a  "strong basis in evidence" it would be subject to disparate impact liability.  In the Ricci case, the Court concluded, the evidence showed the City had taken great care to ensure its testing process was free from discriminatory impact and reasonably related to the jobs for which it tested.  Therefore, there was insufficient basis for the City to conclude its tests had an unlawful disparate impact.

For detailed discussion, analysis, and contrasting arguments on the Ricci case, I recommend the following posts:  First, for a local flavor, Connecticut Employment Law Blog provides a good summary of the lessons to be learned from the case.   Employee rights attorney Ellen Simon opines at Employee Rights Post that the Ricci decision was not only wrongly decided, but is bad for both employers and employees.  Finally, for an analysis without the rhetoric, try SCOTUSblog.

2.   Employers and Social Networking

Facebook, Linked In, and other social networking sites have exploded in popularity in recent years.  Are employers entitled to make employment decisions based upon information an employee posts on the internet outside of work time?  Should an employer allow or even encourage employees to use the social networking on the internet? 

For a detailed analysis of some of the issues surrounding social networking, I recommend the following:

• In "The Voice", a weekly publication of the Defense Research Institute, attorney Helen Adams writes about the employment implications of "Doocing", a new slang word to describe terminations based upon an employee's activities on the internet. 
• The Delaware Employment Law Blog discusses reasons employers should have a policy covering social networking sites.   
•   The National Law Journal reports that some management side lawyers have warned about the use of Linked In to make recommendations of employees, for fear it will be used against the employee in the event  of a termination.
• Locally, The Des Moines Register reported on the case of a police officer who was asked to resign because of photographs she posted on Myspace. 

Suffice it to say that social networking is not going away any time soon, and employers would be well advised to develop practices and policies for dealing with its impact on the workplace. 

3.  Al Franken Certified as the Winner of the Senate Race in Minnesota

This is imporant because Mr. Franken becomes the 60th Democratic Senator, giving the party a filibuster proof majority.   The Senate thus constituted is in a better position to pass EFCA, or the so-called "Employee Free Choice Act."  EFCA would have a substantial impact on labor law in the United States and present many challenges for employers.  I recommend the the blog at Laborpains.org to keep track of the latest developments on EFCA and other labor union matters.

4.  WARN Act

The WSJ Law Blog notes that litigation relating to layoffs is heating up, particularly under the heretofore seldom utilized WARN Act.  WARN requires employers under certain circumstances to provide at least 60 days notice of plant shutdowns or significant layoffs.   A violation means the employer has to pay wages to the laid off employees for the sixty period, plus other potential penalties.   However, the fact that the downturn occurred so swiftly and is protracted  may provide a defense to a WARN Act claims.

Stay Cool!

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Much ink has been spilled over the last week analyzing the background and record of Judge Sonia Sotomayor, the nominee to replace Justice David Souter on the United States Supreme Court.    Given that the Supreme Court's docket has included a large number of employment related cases in recent years, a record which is likely to continue given the many changes to the federal employment laws under the Obama administration, how will a Justice Sotomayor potentially affect the jurisprudence in this area?

Judge Sotomayor has served as a judge on the U.S. Court of Appeals for the Second Circuit since 1998, and before that was a U.S. District Court judge in New York.   In one of her most notable cases as a trial court judge, Judge Sotomayor issued an injunction which prevented the Major League Baseball owners from using replacement players during the 1995 season.   

More recently, Judge Sotomayor was part of a three judge panel of the Second Circuit that issued a controversial opinion in the case of Ricci v. DeStefano ,a case which ultimately was appealed to the U.S Supreme Court.    Ricci involves a claim of reverse discrimination by a group of firefighters in New Haven, Connecticut, seventeen of whom are white and one who is Hispanic.    Based upon the results of written and oral promotional exams, only white and Hispanic candidates qualified for promotion to the position of Captain, and only white candidates qualified for promotion to Lieutenant.   Because no black candidate had a high enough score to be considered for the available captain and lieutenant positions, the City's Civil Service Board refused to certify the results of the exam, which prevented the promotions from occurring.  The trial court found that the City's refusal to allow the promotions did not constitute race discrimination, and granted summary judgment to the City (a thorough discussion of the decision is reported at Connecticut Employment Law Blog). 

The three judge panel on which Judge Sotomayor sat issued a short opinion affirming the trial court, but did not analyze any of the substantive issues.    Notably, another judge on the Second Circuit was critical of the panel for failing to address the important constitutional claims at issue in the case, stating that "this perfunctory disposition rests uneasily with the weighty issues presented by this appeal."    At least one critic has opined that Judge Sotomayor's apparent refusal to weigh in on this important issue of civil rights law does not make her a jurist worthy of serious consideration for the Supreme Court. 

Judge Sotomayor certainly has a compelling personal story, and she may have empathy, but it remains to be seen whether she will make positive contributions to the development of employment law.   Stay tuned.

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