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Articles Posted in Employment Discrimination

Title VII of the Civil Rights Act of 1964 prohibits employers from discriminating against employees on the basis of religion. On the other hand, the First Amendment prohibits Congress from enacting laws which interfere with how churches govern themselves. When a church makes an employment decision based on religion which negatively impacts one of its employees, does that church then violate the anti-discrimination provisions of Title VII? Today’s Long Island employment law blog explores the ministerial exception as elaborated on by the Supreme Court of the United States in the Our Lady of Guadalupe decision.

In 2012, the Supreme Court decided a case, Hosanna-Tabor. In that case, the country’s highest court applied a legal doctrine called the ministerial exception. The ministerial exception generally says that church employees who perform jobs which relate to religious responsibilities are exempt from coverage under anti-discrimination laws. For example, if a Catholic school teacher was responsible for teaching students math, but was also responsible for teaching bible studies, the teacher would likely not be protected by anti-discrimination laws because of the ministerial exemption. So, if the teacher was not married, but became pregnant, the church could lawfully terminate the teacher if it believes the teacher violated religious tenets.

Turning to the Our Lady of Guadalupe case, the decision concerns two cases which were heard and decided at the same time. In both cases, the plaintiffs were teachers at religious schools who had employment contracts with the school. Each teacher taught general elementary education classes, but both plaintiffs were charged with providing some religious instruction and leading prayer. Ultimately, each school terminated the respective teacher. One teacher alleged age discrimination, the other alleged disability discrimination. After the parties litigated whether the ministerial exception barred the claims, the cases reached the Supreme Court.

The Equal Employment Opportunity Commission (EEOC) has been issuing guidance for employers about how federal discrimination laws relate to the COVID-19 pandemic. Specifically, disability discrimination laws cross paths with employers’ efforts to mitigate the risk of COVID-19 transmission in the workplace. Today’s Long Island employment law blog discusses some of the most recent guidance issued by the EEOC, the government agency responsible for enforcing federal discrimination laws. Our previous blogs discussed EEOC guidance issued earlier this year.

Employees with high risk family members at home have expressed concern about returning to work for fear of contracting coronavirus and spreading it to their families. The Americans with Disabilities Act requires employers to provide reasonable accommodations to employees with disabilities. The EEOC has already indicated that employers may be required to provide reasonable accommodations to employees who face higher risks from covid-19. But, do employers have to provide accommodations because of an employee’s family member’s risk to coronavirus? The latest EEOC guidance says employers are not required to accommodate an employee because a family member is at risk.

Federal anti-discrimination laws, such as the ADA and Title VII, also prohibit an employer from creating a hostile work environment against employees based on the employees membership in a protected class, such as having a disability or based on race or national origin. The June 2020 EEOC guidelines remind employers to be mindful of their obligation to prevent workplace discrimination. As it relates to coronavirus, the EEOC suggested that employers be “alert” to comments directed at employees based on employees of Chinese or Asian national origin. Comments from co-workers about the origins of coronavirus may be discriminatory. Though not particular to COVID-19, the EEOC reminds us that harassment can take the form of e-mails, phone calls, and video chats. In other words, use of technology is no defense to a claim of discrimination.

Title VII of the Civil Rights Act of 1964 prohibits workplace discrimination. Title VII, however, prohibits only the types of discrimination identified in the statute, including race discrimination, religious discrimination, national origin discrimination, and sex discrimination. Title VII does not explicitly prohibit discrimination based on sexual orientation and transgender status. Accordingly, for years, scholars and courts debated whether Title VII’s prohibition of sex discrimination includes discrimination based on sexual orientation or transgender status.

On June 15, 2020, the United States Supreme Court settled the question. In a 6-to-3 ruling, the Court held that an employer who fires an individual for being gay or transgender violates Title VII. Today’s Long Island employment law blog discusses the Bostock v. Clayton County decision.

The Background of Bostock and Sexual Orientation and Gender Identity Discrimination Law in the United States

With covid-19 not giving up, employment lawyers across the country, including our Long Island employment lawyers at Famighetti & Weinick PLLC, are facing questions about how the new pandemic will affect essential workers and non-essential workers who go back to work as the country adjusts to “the new normal” and the economy reopens.

In one of our previous posts, we opined that workers with generalized fear or anxiety about workplace covid-19 exposures likely were not protected under the Americans with Disabilities Act (“ADA”). That blog assumed that only vulnerable workers, or workers with underlying medical conditions worried about contracting coronavirus, were protected under the ADA.

A recent federal court decision, however, suggests that even workers with generalized fear or anxiety about workplace covid-19 exposures may be protected under the ADA. Even though the decision was issued by a Texas district court concerning voters, the analysis may be used to extend the disability discrimination laws’ coverage for workers who lack immunity to covid-19.

When the coronavirus pandemic started taking hold in the New York region, government moved to shutdown businesses to help control the spread of the virus. New York State Governor Cuomo instituted the Pause program which required all non-essential businesses in New York to close. But, essential businesses were allowed to stay open.

Almost immediately, employment lawyers across the state, including our Long Island employment lawyers at Famighetti & Weinick PLLC, were inundated with calls from essential workers worried about contracting covid-19 from the workplace. We blogged about these concerns and also posted a video about these issues.

As New York begins to emerge from the Pause and the economy is set to re-open, questions still remain about the rights of vulnerable segments of the workforce safely returning to work and the rights of other workers who are concerned about contracting the virus. Today’s Long Island employment law blog discusses some of these concerns, with a focus on the EEOC’s latest guidance issued on May 5, 2020.

As the country begins to re-open from the coronavirus shutdown, governments and employers are working to implement procedures to protect workers, patrons, and citizens generally, from the continued threat of covid-19. Face masks and temperature checks are likely to be universally accepted requirements for businesses and workplaces. But, antibody testing is also becoming widespread and was talked about early on in the re-opening discussion as an important tool because of the possibility that it could reveal individuals who have immunity.

But, the issue of immunity has been questioned more recently. Indeed, experts have expressed uncertainty as to whether a person exposed to covid-19 can become sick with the virus again. Some reports from overseas have supported the uncertainty by claiming that individuals who recovered from coronavirus, became sick again. Further, antibody testing is more invasive than merely taking temperatures by infrared thermometer or requiring a person to wear a mask externally.

So, can employers require that employees undergo antibody testing? Antibody testing (and even temperature checks) will be considered a medical examination under the Americans with Disabilities Act (ADA). The EEOC, which is responsible for guidance under the ADA, allows temperature checks to be taken of employees before they enter the workplace because of the severe risk posed by the spread of covid-19. The EEOC relies on the ADA’s permissible use of medical exams when the exam is job related and consistent with a business necessity.

Causation is part of every employment discrimination case. Causation means that there is a link between the employment action and a discriminatory reason.  For example, if a worker is fired because the worker was caught stealing from the employer, the decision to terminate the worker is legitimate, not discriminatory. But, if the employer terminates a worker because the worker is 60 years old, there is a link between the decision to terminate and a discriminatory motivation for the decision.

The law provides different standards of causation. Sometimes, discrimination must be a determinitive factor in the decision to take action against the employee, meaning that the employer would not make the same employment decision without a discriminatory animus present. This is usually referred to as “but for” causation. Other times, the law says that the discrimination can be one of many factors, usually called a mixed-motive or motivating factor standard.

Many employment discrimination laws, particularly federal laws, do not spell out which type of causation is required. So, courts are left to interpret the appropriate level of causation.  Recently, led by Supreme Court decisions, courts have been applying but-for causation to discrimination cases, except in circumstances where Congress has expressly acted to convey its intent that some other level of causation applies. Based on the decisions, we have clarity that but-for causation applies to age discrimination and retaliation claims. Motivating factor applies to federal Title VII claims (race, religion, sex, national origin).

As employment law attorneys, our email and social media is flooded with information from fellow employment lawyers about how employers should handle the coronavirus pandemic. Today’s Long Island employment law blog discusses some issues relating to how employees might handle the crisis.  Please note, this blog is informational only and should not be relied upon as legal advice, and certainly not medical advice.  The information below should be considered “food for thought.” If you have specific questions about your employment situation, we encourage you to call our lawyers, who remain available by phone throughout the crisis.

1. Listen to advice from government and medical authorities

First and foremost, pay attention to guidance given by officials from the government and from medical authorities.  Leading medical authorities include the CDC and WHO, but local health departments are also issuing guidance.  Best practices almost universally include washing hands, avoiding close contact with others, and proper hygiene including coughing and sneezing best practices. If you must report to work, continue to follow these instructions.

As coronavirus fears continue to spread throughout the country, workplaces are struggling to decide how to prevent possible outbreaks in their work forces.  Indeed, Seattle based tech giants Amazon, Google, Facebook, and Microsoft are closing offices and asking employees to work from home.  But, discussions about employees’ medical conditions necessarily invokes concerns about disability discrimination statutes, such as the Americans with Disabilities Act (ADA) and the Rehabilitation Act.

The federal government’s Equal Employment Opportunity Commission (EEOC) has issued guidance to help employers navigate the tricky waters of combating the spread of coronavirus while remaining compliant with anti-discrimination laws.  Today’s Long Island employment law blog discusses the EEOC’s guidance.

Preliminarily, the EEOC noted that while disability discrimination laws remain in effect and employers must follow these laws, the laws do not stop employers from following the CDC’s guidelines for employers.  The CDC’s guidelines include encouraging sick employees to stay home, separating sick employees upon arrival to the workplace, and reminding employees to use appropriate proper hygiene.

The Equal Employment Opportunity Commission (EEOC) is the federal agency charged with investigating and prosecuting claims of discrimination arising under federal law.  Generally, federal law prohibits workplace discrimination on the basis of sex, race, national origin, religion, color, disability, age, and genetic information.  Further, federal law prohibits employers from retaliating against employees who report or oppose unlawful workplace discrimination.

Before an employee may sue an employer for discrimination or retaliation (arising under federal law) employees must file a charge of discrimination with the EEOC.  In January 2020, the EEOC published data reporting the number of charges filed across the United States and its territories in 2019.  The publication shows the number of filings broken down by state and type of charge, and percentage of charges as a total of all filings and as a percentage of all filings within the state. Today’s Long Island employment law blog discusses the EEOC’s report.

New York saw a total of 3,220 EEOC charge filings (or 4.40% of all charges filed in the United States). This shows a continued a downward trend of EEOC charges in New York. As pictured in the graph below, in 2016, New York saw 3,740 total EEOC filings which steadily decreased to 3,220 last year.

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