By Pamela Wolf, J.D. On October 28, 2021, the EEOC again updated its question-and-answer technical assistance on COVID-19, the ADA, the Rehabilitation Act, and other equal employment opportunity laws, this time to provide a sample form for employees to use when requesting a religious accommodation to an employer vaccine requirement. Requesting religious accommodation. Earlier this week, on October 25, the EEOC added a new section (L) on Title VII and religious objections to COVID-19 vaccination mandates (see Updated COVID-19 Q&As discuss religious accommodations to vaccination mandates, October 26, 2021). In that section the Commission explained, among other things, that employees are required to tell their employer if they are requesting an exception to a COVID-19 vaccination mandate because of a conflict between that requirement and their sincerely held religious beliefs, practices, or observances (religious beliefs). In making such a request, employees are not required to use any “magic words,” such as “religious accommodation” or “Title VII.” However, they do need to notify the employer that there is a conflict between their sincerely held religious beliefs and the employer’s COVID-19 vaccination requirement. The same principles apply when employees have a religious conflict with getting a particular vaccine and would like to wait until an alternative version or specific brand of COVID-19 vaccine is available. The EEOC also suggested the best practice is that employers provide employees and applicants with information about whom to contact, and the procedures (if any) to use, to request a religious accommodation. Sample form. The Commission has now added, as an example, its own workplace religious accommodation request form. The EEOC explained that, although its internal forms typically are not made public, the agency has shared it in this latest technical assistant update due to “the extraordinary circumstances facing employers and employees due to the COVID-19 pandemic.” The form, among other things, asks the requester to answer four inquiries: 1. Please identify the EEOC requirement, policy, or practice that conflicts with your sincerely held religious observance, practice, or belief (hereinafter “religious beliefs”). 2. Please describe the nature of your sincerely held religious beliefs or religious practice or observance that conflict with the EEOC requirement, policy, or practice identified above. 3. What is the accommodation or modification that you are requesting? 4. List any alternative accommodations that also would eliminate the conflict between the EEOC requirement, policy, or practice and your sincerely held religious beliefs. Additionally, the form provides sections to explain the decision made in response to the request, as well as information about requesting reconsideration and pursuing administrative and collective bargaining rights, or those enforced by the Merit Systems Protection Board. …

By Thomas K. Lauletta, J.D. An African American truck driver failed to raise genuine issues of material fact that would require the Fifth Circuit to overturn a district court decision granting summary judgment in favor of his former employer on his Title VII race discrimination and FLSA unpaid overtime and retaliation claims. In an unpublished opinion, the Court of Appeals held that the driver provided insufficient evidence that race was a motivating factor in his dismissal, even though his supervisor had made racially insulting remarks. The FLSA overtime claim failed because there was no evidence that the employer miscalculated his compensation. Further, the employer’s piece-rate system was meant to compensate drivers for both productive and nonproductive time and the employee had agreed to it. Finally, the driver’s informal complaints did not qualify as protected activity under the FLSA (Lockhart v. Republic Services Incorporated, October 25, 2021, Wiener, J.). Calculation of pay. The employee, who is African American, provided waste removal service to Republic’s customers in San Antonio as a roll-off driver. Drivers were paid on a piece-rate basis, also known as “can pay,” which was computed weekly by multiplying the individual driver’s personal “can rate” (determined by that driver’s experience and seniority) by each haul’s “can value” (based on the location of the can, its distance from the landfill, and the difficulty of the haul). Can values were set by Republic and communicated to the drivers on a detailed spreadsheet. At the end of the day, the driver filled out a route sheet, recording the containers he had hauled that day and the values associated with each haul. The driver believed that he was not being properly compensated for each haul that he completed because Republic classified some hauls as container “swaps,” rather than “dump and returns,” which are compensated at a higher rate because they involve more travel. He believed that he could be more productive if he could decide whether to treat a given haul as a swap or a dump-and-return while he was still in the field. Infractions and termination. In November 2017, he was terminated under the employer’s four-step progressive disciplinary procedure. First, he was given a verbal warning for recording an incorrect container pay on his route sheets. For the second infraction, he received a written warning for abuse of company equipment, charging him with causing more than $4,000 in damage to his company-owned vehicle by pushing the truck’s “regen button” in excess of forty times. He was suspended as a result of his third infraction for: (1) discussing his personal vehicle with an on-duty mechanic, (2) refusing to wear personal protective equipment as required, and (3) being insubordinate to the shop manager. His fourth infraction, for his entering a landfill through an exit gate in violation of company policy, resulted in termination. Following his discharge, he sued his former employer alleging that he had been discriminated against on the basis of race, religion, and sex, and retaliated against in violation of Title VII and …

By Brandi O. Brown, J.D. A male-to-female transgender police trainee who has been diagnosed with gender dysphoria will proceed to discovery with claims against some, but not all, of the defendants after a federal district court in Illinois granted, in part, their motion to dismiss. Her Section 1983 claims were premised on an alleged violation of her substantive due process right to medical privacy and the defendants’ failure to supervise sheriff’s office personnel and protect her from discrimination and harassment. Specifically, she contends that by outing her as transgender, the defendants essentially revealed her medical history, which included gender confirmation surgery and hormone treatments. Her gender discrimination claim under the Illinois Civil Rights Act also moved forward, as did her indemnification count (Arriaga v. Dart, October 23, 2021, Kendall, V.). Under the radar. While she was undergoing treatment for gender dysphoria, the employee secured a job as a police officer for the Northeast Regional Commuter Railroad Corporation (Metra) and enrolled in the Cook County Sheriff’s Police Academy. At the time, she alleged, she was “living in stealth,” i.e., she was living as a transitioning person without disclosing that fact publicly. She sought to keep her male-to-female transgender identity and associated medical treatments private. Her transgender status was disclosed. Nevertheless, when she entered the Academy the defendants disclosed her identity as a transgender woman to Academy administrators and staff, police chiefs in municipal departments, and her superiors and coworkers. The defendants include the Cook County Sheriff, Metra, Cook County, the Metra Police Chief, the Metra Deputy Chief, and four other individuals who hold supervisory roles at the sheriff’s office and police academy. She also alleged that recruits who went through academy with her disseminated information about her gender identity amongst themselves and to another Metra police officer, although she was not aware of the full extent of those disclosures until later. Alleged it revealed her history. This disclosure, the employee alleged, effectively revealed her psychiatric condition and her history of procedures. She contended that her feminine voice and appearance could only be achieved through gender confirmation surgery and hormone treatments and such procedures are only available to people who suffer from gender dysphoria. Therefore, she contends, these disclosures were equivalent to revealing her confidential medical history. And led to inquiries, jokes, and slurs. Moreover, she alleged, the disclosures led to discrimination and harassment by fellow recruits, including taunting, jokes, and inquiries about the procedures and her protected status, both in-person and over group chats. For example, she alleged that her colleagues distributed an older photograph of her as a male prior to transition that had been found on Facebook. A fellow recruit also referred to her by a transphobic slur, she alleged. These actions caused her significant psychological distress. Alleges no remedial action. She contends that she reported the offensive conduct to the defendants, who took no remedial action and concealed the fact that it failed to discipline any of the offending parties. She claims that these failures perpetrated the ongoing practice …

By Brandi O. Brown, J.D. After the Third Circuit reversed a district court’s grant of summary judgment against the Title VII retaliation claim of a white employee who alleged he was fired after complaining that a colleague had called his biracial grand-niece a “monkey,” the federal district court in Pennsylvania found his claim should go to a jury. The appeals court determined that the employee had engaged in protected activity and district court found fact disputes prohibiting summary judgment on the remaining aspects of his retaliation claim (Kengerski v. County of Allegheny, October 19, 2021, Ranjan, N.). Called her a “little monkey.” As described in the Third Circuit’s opinion, in 2015, the employee, a captain at a county jail, complained to the warden that a newly promoted superior previously had made a racist comment about his relative, whom he had stated he might be taking care of in the future. Among other things, the superior asked him if his grand-niece was black and when he responded that she was biracial, she stated that the employee “will be that guy in the store with a little monkey on his hip like” another jail employee who has a biracial child. The employee then “asked her not to speak like that about [his] situation” and left the room. He also contended that she sent racially offensive text messages to him. Fired, sued. His complaint about the major was referred to the county’s law department and seven months after his complaint, he was fired. He contended that the real reason was that he had reported his superior, a major, and caused her to resign three months before his termination. He filed suit and the district court initially granted the employer’s motion for summary judgment, concluding that the employee’s retaliation claim failed as a matter of law because the employee, who is white, could not maintain a claim for Title VII retaliation. Judgment for employer reversed. The employee appealed and the Third Circuit reversed. “Title VII protects all employees from retaliation when they reasonably believe that behavior at their work violates the statute and they make a good-faith complaint,” the appeals court explained, agreeing with its sister circuits that have held that associational discrimination is well grounded in the text of Title VII. It remanded the case to the district court to consider the sole remaining issues—whether there was a causal connection between his protected activity and termination and whether the employer’s given reason for the latter was legitimate or pretextual. On remand, the district court concluded that the issues of causation and pretext were “overwhelmed by factual disputes” and require a jury to weigh the evidence and witness credibility. It also concluded that the employee presented sufficient evidence to survive summary judgment. Causation and pretext. Regarding causation, the court considered, as the appeals court had emphasized, “the circumstances as a whole” and whether the employee showed a causal connection with evidence of intervening antagonism, inconsistent explanations, or other circumstantial evidence supporting an inference of a …

By Jeffrey H. Brochin, J.D. The First Circuit has affirmed a district court’s order denying a preliminary injunction to several Maine healthcare workers and a healthcare provider who filed a lawsuit seeking to enjoin the State of Maine from enforcing its emergency vaccination rule. The rule mandates that all state healthcare workers be vaccinated against COVID-19, with the exception of those who are medically exempt from vaccination. The appellants are unvaccinated Maine healthcare workers (and a healthcare provider) who object to vaccination with any of the three available COVID-19 vaccines based on their religious beliefs that prohibit them from using the products. The appeals court rejected their Constitutional Free Exercise Clause, Supremacy Clause, and Title VII arguments, finding that the emergency rule is religiously neutral, and that the state has the authority to grant exemptions based on the underlying circumstances and compelling public interest in preventing the spread of a communicable disease (Does 1-6 v. Mills, October 19, 2021, Lynch, S.). History of mandatory vaccinations. Maine has mandated that its healthcare workers be vaccinated against certain contagious diseases since 1989, but prior to 2019, state law exempted workers from vaccination in three circumstances: when vaccination was medically inadvisable, contrary to a sincere religious belief, or contrary to a sincere philosophical belief. However, in 2019, the state responded to declining vaccination rates by amending its law to allow for only the medical exemption. On August 12, 2021, Maine’s Department of Health and Human Services (HHS) and its Center for Disease Control (CDC) issued an emergency rule adding COVID-19 to the list of diseases against which healthcare workers must be vaccinated. Pointing to a 300 percent increase in COVID-19 cases between June 19 and July 23 and the danger of the delta variant, the agencies determined that the rule was necessary because the presence of the highly contagious delta variant in Maine constituted an imminent threat to public health, safety, and welfare. Claimed religious basis for exemption. The healthcare workers and provider who filed the lawsuit seeking a preliminary injunction against the emergency rule’s enforcement claimed that their objection to the vaccination was based on their religious beliefs, which prohibit them from using any product connected in any way with abortion. They argued that Johnson & Johnson/Janssen used cells ultimately derived from an aborted fetus to produce its vaccine, as did Moderna and Pfizer/BioNTech in researching their vaccines. Accordingly, their religious beliefs prohibited them from being vaccinated, and to mandate vaccination pursuant to the emergency rule would violate their Free Exercise and Supremacy Clause rights, as well as violate Title VII’s civil rights protections. The district court disagreed, and denied their petition for preliminary injunction (see Preliminary injunction prohibiting Maine’s COVID-19 vaccine mandate for healthcare workers denied , October 18, 2021) and the instant appeal ensued. Determining neutrality. The appeals court first examined the First Amendment’s Free Exercise Clause (as incorporated against the states by the Fourteenth Amendment) and observed that it protects religious liberty against government interference. When a religiously neutral and …

By Pamela Wolf, J.D. The Hotel Association of New York City has filed a lawsuit in federal court against the city challenging an October 5, 2021, law requiring hotel owners to pay $500 in weekly severance to hotel employees who were laid off due to hotel closures or “mass layoffs,” for up to 30 weeks, unless the hotels meet certain criteria. The severance law, prompted by COVID-19 pandemic layoffs, requires severance payments to begin as of October 11, 2021. The Hotel Association, alleging that the New York City Council has “dramatically overstepped its bounds,” seeks a declaration that the severance law is preempted by ERISA and New York State’s Municipal Home Rule Law, and an injunction halting future enforcement. The challenged law was introduced in the City Council less than a week after the Pandemic Unemployment Assistance program in the federal Coronavirus Aid, Relief, and Economic Security (CARES) Act, which provided $300 a week to unemployed workers, came to an end on September 5, according to the complaint. The extension of New York State insurance benefits for workers laid off because of the pandemic also ended at the same time. About the new law. According to a legislative summary, the severance law, Int. No. 2397-2021, requires severance pay for hotel service employees in the event of: The closure of a hotel to the public, provided the hotel has not, by October 11, 2021, recalled at least 25 percent of employees and reopened to the public by November 1, 2021; or A mass layoff of at least 75 percent of employees. The severance pay requirement will not apply to a hotel that has closed permanently and has or is in the process of converting to an alternate use, provided employees are offered severance of at least 20 days’ pay per year of service and the severance is specifically tied to the conversion. The obligation to provide severance ends when an employee is recalled, or, for a closed hotel, when the hotel reopens to the public and recalls 25 percent of its employees. The severance law expires and is deemed repealed on June 1, 2022. Costly post-employment benefit. With the severance law, the city has created a mandatory post-employment benefit plan for union and nonunion hotel workers, according to the complaint. While the law may be intended to compel hotels to reopen their doors to the public, it will likely cause many hotels to close permanently, the Hotel Association contends. Those that stay open will allegedly “need to set aside millions of dollars of reserves, and create large infrastructures, many out of whole cloth, to manage the financial assets in the reserves, determine the eligibility of employees for these additional severance benefits, and to assess what is owed to each individual employee.” The Hotel Association says that the severance law will cost its members more than $150 million in potential payments, given that the industry has been forced to lay off thousands of employees due to the pandemic. When disputes arise over eligibility for severance payments, …