EEOC Announces Resolution of Personality Test Challenges

Yesterday, the EEOC announced conciliation agreements with both CVS and Best Buy over the use of personality tests/assessments as part of their hiring process which allegedly had a disparate impact on applicants on the basis of their race or national origin.   The issue was investigated between 2002 and 2010 and resulted in the filing of a Commissioner’s Charge.  Both CVS and Best Buy discontinued the challenged practice upon receiving the Charge.   The announcement does not reflect the payment of any damages or backpay or the hiring of any rejected applicants.  Rather, both companies agreed to implement certain best practices, to be more mindful of minority hiring, improving training for hiring managers and to submit regular reports to the EEOC.

Court of Appeals Finds Employee Has Right to Challenge Termination in Court to Determine Fall-Back Rights

Earlier this week, a divided Franklin County Court of Appeals reversed the 12(B)(6) dismissal of a declaratory judgment action seeking a determination about whether an unclassified civil service employee had been fired for cause.   Harris v. Dept. of Veterans Servs., 2018-Ohio-2165.  The employee alleged at the SPBR that he had been fired in retaliation for making a whistleblower complaint.  He then withdrew that that charge and filed a mandamus action and declaratory judgment action seeking his fall-back right to a classified civil service position he held four years earlier.   The court’s majority refused to rule on the mandamus claim because it was premature in that he could only seek fall-back rights if he had been fired without cause and his termination notice notified him that he was fired for cause.  However, the court’s majority found that the trial court had abused its discretion in dismissing the declaratory judgment action because he was entitled to a determination of whether or not his termination had been with or without cause.  The dissent observed that his whistleblower claim was subject to the jurisdiction of the SPBR and, thus, he was required to have brought such a claim before the SPBR instead of in court.

NOTICE: This summary is designed merely to inform and alert you of recent legal developments. It does not constitute legal advice and does not apply to any particular situation because different facts could lead to different results. Information here can be changed or amended without notice. Readers should not act upon this information without legal advice. If you have any questions about anything you have read, you should consult with or retain an employment attorney.

Supreme Court Finds Violation of Free Exercise Clause Based on Direct Evidence and Disparate Treatment, but Does Not Define the Limits

As widely covered in the media, the Supreme Court decided with a healthy 7-2 majority that a baker’s sincerely held religious views were improperly censored by a local civil rights commission in violation of the First Amendment’s Free Exercise Clause when the commission concluded that the baker had unlawfully discriminated on the basis of sexual orientation in refusing to create and sell wedding cakes to same-sex couples on the grounds that he did not want to endorse behavior that violated his conscience and that gay marriage was then illegal in Colorado.  Masterpiece Cakeshop Ltd v. Colorado Civil Rights Commission, No. 16-111 (6-3-18).  The Court did not address whether the baker was entitled to live his life and conduct his sole proprietor business according to his conscience, but found that he had been discriminated against by the government agency which was so blinded by its pursuit of justice for the same-sex couple that it forgot that the baker has civil rights, too.    The Court was sympathetic that his refusal took place before same sex marriage was even legal in Colorado and before the Court itself upheld the right of same sex couples to marry.  It was also influenced by evidence that he was willing to sell other baked goods, just not wedding cakes.   The more problematic issue was that the government absolved other bakers of religious discrimination when they refused to create and bake cakes with homophobic or anti-gay marriage themes (with religious quotes presumably about marriage) and that one of the government officials disparaged and equated the baker’s sincere convictions and conscience with slavery and the holocaust.  Above all things, a government must remain neutral in matters of religion, view point and conscience, and that was entirely missing in this case as government officials wanted to publicize their distaste for the baker’s convictions: “[T]he delicate question of when the free exercise of his religion must yield to an otherwise valid exercise of state power needed to be determined in an adjudication in which religious hostility on the part of the State itself would not be a factor in the balance the State sought to reach.”

According to the Court’s opinion several of the commissioners were openly hostile to religion and religious dissenters (notwithstanding that several of the initial 13 colonies were initially settled by and because of religious dissent):

At several points during its meeting, commissioners endorsed the view that religious beliefs cannot legitimately be carried into the public sphere or commercial domain, implying that religious beliefs and persons are less than fully welcome in Colorado’s business community. One commissioner suggested that Phillips can believe “what he wants to believe,” but cannot act on his religious beliefs “if he decides to do business in the state.” Tr. 23. A few moments later, the commissioner restated the same position: “[I]f a businessman wants to do business in the state and he’s got an issue with the— the law’s impacting his personal belief system, he needs to look at being able to compromise.”

                Another of the commissioners went even further:

Freedom of religion and religion has been used to justify all kinds of discrimination throughout history, whether it be slavery, whether it be the holocaust, whether it be—I mean, we—we can list hundreds of situations where freedom of religion has been used to justify discrimination. And to me it is one of the most despicable pieces of rhetoric that people can use to—to use their religion to hurt others.”

The Court observed that the tension between the first amendment and civil rights statutes has been and will remain a difficult issue to resolve, not just for bakers, but for other artists and sole proprietors. It recognized that exceptions will have to be made, but also made clear that those exceptions cannot be too broad without violating the rights of gay citizens:

When it comes to weddings, it can be assumed that a member of the clergy who objects to gay marriage on moral and religious grounds could not be compelled to perform the ceremony without denial of his or her right to the free exercise of religion.  This refusal would be well understood in our constitutional order as an exercise of religion, an exercise that gay persons could recognize and accept without serious diminishment to their own dignity and worth. Yet if that exception were not confined, then a long list of persons who provide goods and services for marriages and weddings might refuse to do so for gay persons, thus resulting in a community-wide stigma inconsistent with the history and dynamics of civil rights laws that ensure equal access to goods, services, and public accommodations.

There were a number of concurring opinions. The justices did not agree about the relevance of the other bakers who refused to create and sell cakes which they found personally offensive according to their own conscience.  Some saw their different treatment by the civil rights commission as discriminatory, while others did not.  Justice Kagan submitted that making a special cake that disparages gay marriage is so unique that it cannot be compared to a “regular” wedding cake that the baker refused to sell.  She distinguished it from Justice Gorsuch’s view that the “regular” wedding cake was a special cake to celebrate a same-sex marriage.  She joined the majority opinion not because she felt that the other bakers should not have been treated differently, but because of the reasoning of the state agency reflected improper hostility towards religion.  Justice Kennedy’s majority opinion described it as follows:

Another indication of hostility is the difference in treatment between Phillips’ case and the cases of other bakers who objected to a requested cake on the basis of conscience and prevailed before the Commission.

The Commission had found the cake texts to be derogatory and hateful, giving those bakers the right to legally refuse to create and bake those cakes.

The treatment of the conscience-based objections at issue in these three cases contrasts with the Commission’s treatment of Phillips’ objection.  The Commission ruled against Phillips in part on the theory that any message the requested wedding cake would carry would be attributed to the customer, not to the baker.  Yet the Division did not address this point in any of the other cases with respect to the cakes depicting anti-gay marriage symbolism.  Additionally, the Division found no violation of CADA in the other cases in part because each bakery was willing to sell other products, including those depicting Christian themes, to the prospective customers.  But the Commission dismissed Phillips’ willingness to sell “birthday cakes, shower cakes, [and] cookies and brownies,” App. 152, to gay and lesbian customers as irrelevant. The treatment of the other cases and Phillips’ case could reasonably be interpreted as being inconsistent as to the question of whether speech is involved, quite apart from whether the cases should ultimately be distinguished.  In short, the Commission’s consideration of Phillips’ religious objection did not accord with its treatment of these other objections.

                 . . . .

 . . .A principled rationale for the difference in treatment of these two instances cannot be based on the government’s own assessment of offensiveness.  Just as “no official, high or petty, can prescribe what shall be orthodox in politics, nationalism, religion, or other matters of opinion,” West Virginia Bd. of Ed. v. Barnette, 319 U. S. 624, 642 (1943), it is not, as the Court has repeatedly held, the role of the State or its officials to prescribe what shall be offensive.

                 . . . .

                The Constitution “commits government itself to religious tolerance, and upon even slight suspicion that proposals for state intervention stem from animosity to religion or distrust of its practices, all officials must pause to remember their own high duty to the Constitution and to the rights it secures  . . . . “

                 . . . It hardly requires restating that government has no role in deciding or even suggesting whether the religious ground for Phillips’ conscience based objection is legitimate or illegitimate.

NOTICE: This summary is designed merely to inform and alert you of recent legal developments. It does not constitute legal advice and does not apply to any particular situation because different facts could lead to different results. Information here can be changed or amended without notice. Readers should not act upon this information without legal advice. If you have any questions about anything you have read, you should consult with or retain an employment attorney.

Sixth Circuit Affirms City's Judgment But Reversed Union's Judgment in Case Alleging Discriminatory Layoffs

This week there have already been three interesting decisions.  In one, the Sixth Circuit absolved a City of discrimination for accommodating a union demand to layoff one group of employees over another, but pulled the union back into the litigation for potential discrimination liability for making that demand in the first place.   Peeples v. City of Detroit, No. 17-222 (6^th Cir. 2018). The Court refused to let plaintiffs alleging race discrimination “piggyback” on the only timely EEOC Charge which resulted in a right-to-sue letter when that charge alleged only national origin discrimination.  It also refused to find statements made by a city employee about the union’s purported motivation as direct evidence.  It also found no circumstantial evidence of discrimination based only on statistics which did not attempt to show significant deviations from non-discriminatory factors, like seniority, and which were based on small sample size.  The Court, however, found that the plaintiffs did not need to show that the union breached its duty of fair representation in order to sue the union under Title VII.

According to the Court’s opinion, the City of Detroit instituted layoffs in advance of filing for bankruptcy protection.  It announced the layoff list based on city-wide seniority, but the fire department union objected on the grounds that it should be based on department seniority and filed a grievance. The City ultimately resolved the grievance by granting the union’s request.   The distinction resulted in the layoff of more minority officers under the union’s proposal than the City’s plan.  After four EEOC Charges followed, the fire union relented and agreed to the City’s initial plan.  The City ended up re-hiring the affected employees 80 days later and giving them full back pay, missed overtime pay and medical benefits.  Nonetheless, even though only one of the plaintiffs had obtained a right-to-sue letter from the EEOC, eleven of the affected minority employees brought suit against the City and the Union, seeking compensatory and punitive damages.

The Court addressed whether all of the plaintiffs could piggy back onto the one plaintiff’s right-to-sue letter.  Sadly for the plaintiffs, they did not raise any arguments to rebut the failure-to-exhaust remedies argument raised in the City’s summary judgment motion and, thus, were limited in what could be argued on appeal.   The only plaintiff to obtain a right-to-sue letter asserted only a national origin discrimination claim and the remaining plaintiffs were asserting racial discrimination.  The Court found that they were not substantially related claims, and thus the race claims could not piggyback onto an EEOC Charge asserting only national origin discrimination.

The Court also rejected the plaintiff’s claim of direct evidence of discrimination.  One of the plaintiffs testified in deposition that he heard a City employee state that he concluded the union was trying to protect the “white boys” from layoff.    This was not direct evidence of discrimination because it was a city employee explaining the union’s motivation and required an inference that the City endorsed that motive.  It also likely hearsay, but the Court did not ultimately resolve that issue.  

The Court also rejected the plaintiffs’ statistical evidence, which was pretty much all that they had to show that they were selected for the layoff on account of their race (in that they were not replaced).  First, they failed to organize their statistics in any meaningful way before the trial court.  Second, the fact that the percentage of white layoffs fell and of minority layoffs rose significantly under the union plan did not, by itself, show impermissible bias.  To prove an inference of bias, “the statistics must show a significant disparity and eliminate the most common nondiscriminatory explanations for the disparity.”  For instance, one could use three standard deviations from hypothetical random chance.   The plaintiffs made no effort to account for seniority differences, for instance.  The City also argued about the sample size (only 27 people) and the other cost-cutting efforts made, including demotions, reductions in overtime and rescinded promotions.   The plaintiffs also made no effort to show the racial composition of the fire department before and after the layoff. “Unless the statistics, standing alone or in comparison, are sufficient to lead the mind naturally to the conclusion sought, they have no probative value; they do not move the proof one way or another.”

The Court also rejected the plaintiff’s damage claim in that they had already received full back pay with the resolution of their grievances. The plaintiffs failed to introduce any evidence disputing that they had already received full back pay.  The union pointed out that they never raised breach of settlement agreement claims based on the resolution of their grievances when they were reinstated.  Accordingly, while they might have some compensatory and punitive damages available under Title VII, their claims for backpay were rejected by the trial and appellate courts.

Finally, the Court rejected the union’s argument that Title VII claims were subject to the same burden of proof as fair representation claims under labor-relations laws, meaning that the plaintiffs need not show that the union breached its duty of fair representation before it could sue them for discrimination under Title VII. Because the union had prevailed on that issue before the trial court, the Sixth Circuit reversed the union’s summary judgment.  

NOTICE: This summary is designed merely to inform and alert you of recent legal developments. It does not constitute legal advice and does not apply to any particular situation because different facts could lead to different results. Information here can be changed or amended without notice. Readers should not act upon this information without legal advice. If you have any questions about anything you have read, you should consult with or retain an employment attorney.

Court Denies Unemployment When Employee Failed to Comply With Employer's Medical Recertification Request

This week, the Montgomery County Court of Appeals  affirmed the denial of unemployment compensation to a former police officer who had been told that he could not return to work without a complete medical release containing no medical restrictions.   Adams v. Dept. of Job & Family Servs., 2018-Ohio-2045.   Because the claimant had been given the opportunity to use the employer’s ADA policy to seek an extension of his medical leave and had unreasonably failed to provide an updated medical certification upon request, his unemployment was found to be voluntary, and thus, not compensable.  It did not matter that the employee’s physician had previously informed his employer that he could not return to work without medical restrictions for at least another month.  It also did not help his cause that he failed to appear at an internal disciplinary hearing to determine whether he was absent without leave or insubordinate to explain his position.  On the contrary, he had already applied for unemployment compensation before the hearing had even been held to determine his fate and a month before his employment was formally terminated.  Because he did not take reasonable steps to preserve his employment, his unemployment was determined to be voluntary and he was denied unemployment.

According to the Court’s opinion, the claimant had been on FMLA leave following an off-duty injury to his knee in June 2015.  He exhausted his FMLA, sick and vacation leave and had been allowed to work restricted duty until May 2016.  On July 8, 2016, he was directed to update his medical certification by July 12 or he would be considered absent without leave and/or insubordinate, etc.  He was also informed that he needed a release without medical restrictions, but was also directed to the ADA policy in case he wanted to request an accommodation.    Believing that his former medical certification (releasing him to return to work in August) was sufficient, the claimant did not comply and applied for unemployment compensation on July 21.  He was declared awol and a hearing was held on August 6, but he did not attend.  Without any communication from him (other than his unemployment compensation application), he was discharged on August 26.   Although his initial application was approved, the hearing officer reversed because the claimant had been given the opportunity to return to work (with an unrestricted medical release) or to seek an extension of his medical leave of absence (through the ADA policy).   By refusing to comply with the employer’s reasonable request for an updated medical certification, the claimant voluntarily chose to be unemployment through no fault of the employer.

NOTICE: This summary is designed merely to inform and alert you of recent legal developments. It does not constitute legal advice and does not apply to any particular situation because different facts could lead to different results. Information here can be changed or amended without notice. Readers should not act upon this information without legal advice. If you have any questions about anything you have read, you should consult with or retain an employment attorney.