Refusal to Use Biometric Hand Scanner Leads to EEOC Religious Discrimination Lawsuit

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In the latest of many religious discrimination cases involving religious beliefs about the Mark of the Beast, earlier this year, the EEOC filed, in the Northern District of West Virginia, an action under Title VII’s religious accommodation provisions against Consol Energy, Inc. and the Consolidation Coal Company. See Civil Action No. 1:13-cv-00215-FPS.  The charge that precipitated EEOC’s suit was filed by an employee who had been with the company for over 35 years.  The employer implemented a new requirement whereby all employees had to use a biometric hand scanner to track their time and attendance.  The complainant / employee repeatedly declined to use the hand scanner, on the ground that to do so would violate his sincerely held religious beliefs as an evangelical Christian.  The basis for the employee’s sincerely held religious belief is found in the Book of Revelation:

And I beheld another beast coming up out of the earth, and he had two horns like a lamb, and he spake as a dragon… And he causeth all, both small and great, rich and poor, free and bond, to receive a mark in their right hand, or in their foreheads: and that no man might buy or sell, save that he had the mark, or the name of the beast, or the number of his name.  Here is wisdom.  Let him that hath understanding count the number of the beast: for it is the number of a man; and his number is Six hundred threescore and six.

Revelation 13:11, 16-18 (King James Version).  Many religious denominations believe that the above passage is a prophecy, indicating that people will one day be required to get a mark (often called the “Mark of the Beast”) on their person in order to buy or sell goods or services, and that the mark will also serve as a sign of allegiance to the Anti-Christ – a false prophet, and an agent of the devil.

The employee requested an exemption from the hand scanning, based on his religious beliefs.  The employer responded by giving the employee a letter written by the scanner’s vendor, Recognition Systems, Inc., which was addressed “To Whom it May Concern.”  The letter noted that the above Bible passage only specifically references the mark being used in either the right hand or the forehead.  The letter suggested that persons with concerns about taking the Mark of the Beast should use the hand scanner with their left hand, and with their palm facing up, and concluded by assuring the reader that the vendor’s scanner did not assign the Mark of the Beast.

Based on the above letter, the employer attempted to require the employee to use the scanner with his left hand, with his palm facing up.  The employee refused, on the grounds that his sincerely held religious beliefs prohibit him from submitting to scanning of either hand.  He proposed that he be allowed to continue submitting his time and attendance records manually, as he had done before the employer adopted the hand-scanning technology.  Alternatively, he suggested that he be permitted to check in and out with his supervisor.  The employer refused the employee’s alternative proposals, and indicated that the only accommodation the employer was prepared to offer was scanning of the employee’s left hand, and that the employee needed to make a decision based on that offer.

In face of the refusals to accommodate his religious beliefs, the employee retired earlier than he had originally intended, specifically indicating to his superiors that he was resigning involuntarily and under protest, and that he felt that he had no choice but to retire because of the employer’s refusal to grant him an exception from the biometric hand scanning.

 After conciliation failed, the EEOC filed suit.  The complaint, which is available on PACER, alleges that “[a]t least two persons employed by Defendants… at the time that [employee] requested religious accommodation were permitted exemptions from biometric hand scanning due to missing fingers,” and that “[t]hese two persons were permitted to submit their time and attendance by other means.”

On September 30, 2013, the EEOC filed an emergency motion to continue the proceedings due to the shutdown of the federal government.  On October 1, 2013, the district court judge, Judge Frederick P. Stamp, Jr., treated the motion as a motion to stay, and granted a stay of the matter until further notice.

For other cases involving employee’s beliefs about the “Mark of the Beast,” both in the U.S. and in other countries, see, e.g.:

• -          Hover v. Florida Power & Light Co., No. 93-14236-CIV-RYSKAMP, 1994 U.S. Dist. LEXIS 19920 (S.D. Fla. Nov. 14, 1994), magistrate judge’s report and recommendation aff’d, 1994 U.S. Dist. LEXIS 19919 (Dec. 9, 1994) (Employee believed that his social security number was the Mark of the Beast, and claimed religious discrimination based on his employer forcing him to provide his social security number on certain tax and employment documents as a condition of employment as a health physics technician.  The Court granted the employer’s motion for summary judgment, on the basis that the employer was required by federal law to obtain the employee’s social security number for background criminal history checks, security clearances, radiation clearances, and monitoring and tax withholding to the IRS, and that requiring the employer to violate federal law to accommodate the employee’s religious beliefs constituted an undue burden.);

• -          Hyatt v. Berry Plastics Corp., No. 4:11-cv-278-HLM-WEJ (N.D. Ga.), complaint available here (Employee in a plastics plant claimed that he was fired for refusing to wear a sticker celebrating how many days the plant had been accident free.  Once the number of accident-free days reached six hundred and sixty six (666), employee refused to wear the sticker on the basis of his religious beliefs, on the grounds that 666 is the Mark of the Beast.  The parties jointly stipulated to dismiss the case for no specified reason, presumably indicating that the parties ultimately settled the matter.);

• -          Kendall v. Arbor Place of Puryer, No. 1:07-cv-01058-JDT-sta (E.D. Tenn.), complaint available here (Two former employees of a nursing home alleged that their sincerely held religious beliefs prevented them from using a biometric hand scanner.  The parties ultimately settled the matter.);

• -          Amos v. Hertz Corp., No. 1:07-cv-0491 (N.D. Ga.), complaint available here, (Former van driver for Hertz refused to participate in a timekeeping system involving a hand scanner, and was fired a week after notifying his boss of the “religious issues” which he had in using such a system.  In a January 9, 2009 recommended opinion by a magistrate judge (available on PACER), which was later adopted by the Court, the employer’s motion for summary judgment was granted on procedural grounds – i.e., that the employee had failed to properly exhaust administrative requirements, as his initial charge against the employer was for disability discrimination.  The Court found that “Plaintiff has pointed to no facts in his EEOC charge that would have indicated to a reasonable investigator that Plaintiff was complaining about discrimination based on religion.”);

• -          407 ETR Concession Company v. National Automobile, Aerospace, Transportation and General Workers Union of Canada, CAW-Canada, 2007 CanLII 1857 (ON LA Jan. 29, 2007), opinion available here (Holding by an arbitrator in a Canadian labor grievance case that an Ontario company “never seriously addressed the question of what it could do to accommodate” three employees with regard to the use of a hand scanner, apart from allowing them to use their left hand, which they declined to do.  The arbitrator reasoned that the accommodation which the union and the employees sought, that the employees be allowed to use the biometric scanner with a swipe card and a password, without its biometric features, “does not impose an undue hardship on the Employer.”

• -        Matthew Heller, Hand Scanners Spark Religion Bias Suits, On Point (March 28, 2007), available here (discussing the above Hertz, Arbor Place, and 407 ETR Concession Company cases, as well as a 2004 decision by the Employment Relations Authority of New Zealand, finding no basis for a religious discrimination claim involving a hand scanner, because the scanner does not stamp a mark on a person, or storage the image of a fingerprint).

Similar cases have also been brought in the context of education.  For example, in Hernandez v. Northside Indep. Sch. Dist., 916 F. Supp. 2d 757 (W.D. Tex. 2013), the plaintiff challenged a school district’s mandatory rule that every student on campus carry the same radio-chipped student ID badge for identification, safety, and security purposes, on the grounds that the requirement violated the student’s First Amendment free speech and free exercise rights, her rights under the Texas Religious Freedom Act, and her Fourteenth Amendment due process and equal protection rights.  The student and her family believed that the chip in the badge was the Mark of the Beast, and had a religious objection to the student carrying the badge.  The school offered to allow the student to wear the badge like other students, but without the radio chip.  The student and the family still objected, on the grounds that doing so would make it appear that the family was part of the chip ID program, which would signal their approval of what they saw to be the Mark of the Beast.  The judge, District Judge Orlando Garcia, denied the plaintiff’s motion for a preliminary injunction, on the grounds that it was unlikely that the plaintiff would prevail on the merits of her claims.

In view of all of the above, it is even more important than ever for organizations to develop strong anti-discrimination practices.  While well drafted anti-discrimination and complaint policies are certainly a part of that, it is equally crucial for employers to train its employees on how to respond to complaints:

• All Complaints Should be Treated Seriously: Regardless of an employer’s personal beliefs or background, all complaints should be treated the same.  Preferably, all complaints should be promptly directed to trained, Human Resources personnel who are sufficiently experienced and qualified to resolve them promptly and appropriately.  There should be a well-oiled process for escalating disputes to upper management in a timely fashion.  The most serious complaint is the one the appropriate management official doesn’t hear about until it is too late.

• Don’t Ask “Why” – Ask “Why Not”: Employers would be well advised to accommodate the restrictions of its employees, whether based on their convictions or their disabilities, unless the employer would suffer a demonstrable undue hardship.  Only if the employer can demonstrate that accommodating the employee would involve an undue hardship should the employer ask whether the employee is actually “disabled” or has a “genuinely held religious belief”.

• Keep an Open Mind: Especially in cases of religious accommodations, it is important for employers to keep an open mind.  Remember, to qualify for protection, an employee’s religious belief need only be “genuinely held.”  It need not be objectively – or even subjectively – reasonable.  If an employer must assess whether its employee’s beliefs are “genuine” and “deeply held” (and see point 2 “Don’t Ask Why – Ask Why Not”, above), the employer should carefully separate its own, personal, views, from those of its employees.

• Training: All management employees should be well trained in the law and in the employer’s policies.  Anti-retaliation training is especially important.

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EEOC Wins Summary Judgment in Religious Head Scarf Case

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We have written often on the banning of religious garb, whether in the workplace or otherwise.  See, e.g., our article on banning the wearing of burquas (here), our article on the push in France to ban the wearing in public of Muslim veils (here), and our article on the Third Circuit affirming a workplace head scarf ban (here).

In a recent development on this issue, the EEOC recently won a motion for summary judgment, in a religious discrimination case involving the wearing of a religious head scarf. See EEOC v. Abercrombie & Fitch Stores, Inc., No. 11-cv-03162-YGR, 2013 U.S. Dist. LEXIS 125628 (N.D. Cal. Sept. 3, 2013).  The defendant in that case, Abercrombie & Fitch, Inc., operates retail stores across the country under the brand names Abercrombie & Fitch, Hollister Co., Abercrombie Kids, and Gilly Hicks. Id. at 4.  The case revolved around Abercrombie’s “Look Policy”, which sets forth certain rules regarding employee appearance, including a prohibition on wearing any form of headwear. Id. at *6-7.  All in-store Abercrombie employees were required to comply with the Look Policy, are to be informed of the Look Policy during the job interview process, and are required to sign an acknowledgement of the Look Policy when they are hired. Id. at *7.  The Look Policy also appears in Abercrombie’s handbook. Id.

Plaintiff, Ms. Umme-Hani Khan, a Muslim, believes that Islam requires her to wear a head scarf, also known as a hijab, when in public or in the presence of men who are not immediate family members. Id. at *7-8.  For more on the practice of wearing a hijab among Muslim women, see Kim Parker, Women, Islam, and Hijab, Postcolonial Studies @ Emory (May 2012) (available here); Islam’s Women: Jewels of Islam, The Virtues of Hijab (available here); Al-Islam.org, The Qur’an and Hijab (available here).  At the time Ms. Khan was hired, she had fully adopted the practice of wearing a head scarf on the above occasions, and she therefore wore a head scarf when she interviewed for the position. Id. at *8.  She acknowledged the Look Policy, and agreed to abide by it. Id. 

Ms. Khan worked for Abercrombie from October 2009 to February 2010, all the time wearing her head scarf. Id. at *9.  Local supervisors allowed her to wear her head scarf so long as it matched company colors (the Look Policy was a part of Abercrombie’s marketing strategy, aimed at “communicating the spirit of” the store’s brand). Id. at *6-7, *9.  Her store managers never informed her that she was not complying with the Look Policy. Id. at *9.

In February of 2010, a District Manager made a regularly scheduled visit to the store at which Ms. Khan worked, noted that Ms. Khan was not in compliance with the Look Policy, informed Ms. Khan of same a few days later, and asked Ms. Khan if she could take her head scarf off. Id. at *10.  Ms. Khan responded that she could not take the head scarf off because it was part of her religion.  Within weeks, Abercrombie suspended and then fired Ms. Khan, solely due to her non-compliance with the Look Policy. Id. at *10-11.  Eleven days after the termination, Abercrombie offered Ms. Khan an unconditional offer of reinstatement with the accommodation of being allowed to wear her head scarf to work, but Ms. Khan declined the offer of reinstatement. Id. at *11.

At the time that Ms. Khan filed her charge of discrimination with the EEOC, the EEOC was involved in two other cases against Abercrombie in connection with the wearing of headscarves – one case alleging a refusal to hire an applicant for an associate position because she wore a hijab, and the other alleging a refusal to hire a woman as a model because she wore a hijab. Id. at *11-12.  The EEOC found reasonable cause to believe that Abercrombie had discriminated against Ms. Khan in violation of Title VII. Id. at *13.  The EEOC unsuccessfully attempted to jointly settle all three cases with Abercrombie.  Id. at *12-13, *15. The EEOC, as a part of a conciliation effort, attempted to get Abercrombie to agree to modify its policies to allow the wearing of head scarves by all employees, but Abercrombie rejected that proposal, as the EEOC’s proposed policy modification did not allow for a case-by-case consideration of whether employees should be permitted to wear head scarves. Id. at *13-14.  After continued unsuccessful efforts at conciliation and settlement, EEOC filed suit on behalf of Ms. Khan as Plaintiff-Intervenor. Id. at *15-16.

In litigation, Abercrombie raised a number of affirmative defenses, including that the EEOC failed to engage in conciliation in good faith, Id. at *19, that Abercrombie’s Look Policy is protected commercial free speech, Id. at *24, that accommodating Ms. Khan’s religious beliefs would constitute an undue hardship, Id., and that punitive damages and injunctive relief were not warranted, Id. at *46-47, *50.  Judge Yvonne Gonzalez Rogers of the U.S. District Court for the Northern District of California granted the plaintiffs’ motion for summary judgment (and denied Abercrombie’s cross-motion) as to all of those issues, as well as to the issue of liability. Id. at *23-24, *41, *45, *50, *56.

Abercrombie did not dispute that the plaintiffs had established a prima facie case of unlawful discrimination. Id. at *29.  As to liability, setting aside the procedural issues about good faith conciliation and whether punitive and injunctive relief was available, Abercrombie based its defense solely on its undue hardship and commercial free speech defenses.

Abercrombie’s undue hardship defense was that the Look Policy was “key to Abercrombie’s success and/or that deviations from the policy ‘detract from the in-store experience and negatively affect [the] brand.’” Id. at 32.  Judge Gonzalez Rogers rejected that argument, as it was based only on the testimony of Abercrombie employees as to their “beliefs” based on “personal experience” about the effects of the Look Policy, and not on any hard data.  Id. at *35-37.  The Judge therefore found the employees’ “beliefs” to be “speculative and purely subjective in nature,” and that “[a] reasonable jury could not conclude that Abercrombie would be unduly burdened by allowing Khan to continuing [sic] wearing her hijab as she had been prior to February 2010.”  Id. at *38, *41.

Abercrombie’s commercial free speech defense, which Judge Gonzalez Rogers characterized as a “novel argument,” was that “the store associates should be classified as ‘living advertisements’ for [Abercrombie’s] brand and therefore their appearance is protected as commercial free speech.” Id. at *42.  The standard for a finding of commercial free speech was succinctly summarized by the Court as follows:

Commercial speech is that ‘which does 'no more than propose a commercial transaction.’’ Valle Del Sol Inc. v. Whiting, 709 F.3d 808, 818 (9th Cir. 2013) (quoting Va. State Bd. of Pharmacy v. Va. Citizens Consumer Council, Inc., 425 U.S. 748, 762, 96 S. Ct. 1817, 48 L. Ed. 2d 346 (1976)). The test for determining whether commercial speech exists is set forth in Bolger v. Youngs Drug Products Corp. There, the Supreme Court held that commercial speech can be found where the speech: (i) is an advertisement; (ii) refers to a particular product; and (iii) the speaker has an economic motivation for the speech. 463 U.S. 60, 66-67, 103 S. Ct. 2875, 77 L. Ed. 2d 469 (1983) (holding that the ‘combination of all these characteristics’ provided ‘strong support’ that the pamphlets at issue were properly characterized as commercial speech). Commercial speech is entitled to constitutional protection, albeit a lesser degree of protection than is afforded to other forms of speech. See Central Hudson Gas & Elec. Corp. v. Public Service Comm'n of New York, 447 U.S. 557, 562-63, 100 S. Ct. 2343, 65 L. Ed. 2d 341 (1980).

Id. at *41-42.  The Court concluded that Abercrombie had not provided any authority to support its “novel argument”, and concluded that Abercrombie had failed in any event to satisfy the above standard to establish commercial free speech. Id. at *43. The Court based this decision primarily on the fact that the employees in question did much more than just purportedly “representing the brand,” given that “the employees’ responsibilities consist of ensuring shipments are complete, folding clothing, and placing/replacing clothing on the floor,” duties which were “primarily performed in the stockroom.” Id. at *44.  And, while the Look Policy restricted what employees could and could not wear, it did not require employees to wear only Abercrombie’s products. Id.

After also dispensing with Abercrombie’s argument about good faith conciliation, Judge Gonzalez Rogers granted the plaintiffs’ motion for summary judgment as to liability, “[t]here being no viable defense” thereto. Id. at *45.

As to Abercrombie’s arguments about the plaintiffs’ entitlement to injunctive relief, the Court explained the applicable standard as follows:

‘Generally, a person subjected to employment discrimination is entitled to an injunction against future discrimination, unless the employer proves it is unlikely to repeat the practice.’ E.E.O.C. v. Goodyear Aerospace Corp., 813 F.2d 1539, 1544 (9th Cir. 1987) (citations omitted). ‘[V]oluntary cessation of allegedly illegal conduct does not deprive the tribunal of power to hear and determine the case, i.e., does not make the case moot.’ County of Los Angeles v. Davis, 440 U.S. 625, 631, 99 S. Ct. 1379, 59 L. Ed. 2d 642 (1979) (quoting United States v. W. T. Grant Co., 345 U.S. 629, 632, 73 S. Ct. 894, 97 L. Ed. 1303 (1953)). However, an injunction may be unnecessary where there is no reasonable expectation that the alleged violation will recur and ‘interim relief or events have completely and irrevocably eradicated the effects of the alleged violation.’ County of Los Angeles, 440 U.S. at 631. To obtain an injunction, the ‘necessary determination is that there exists some cognizable danger of recurrent violation, something more than the mere possibility which serves to keep the case alive.’ W. T. Grant Co., 345 U.S. at 633.

Id. at *46. The plaintiffs sought an “injunction enjoining Abercrombie from engaging in practices which discriminate on the basis of religion, and an order that Abercrombie institute policies, practices, and programs providing employment opportunities for employees of all religions and which ‘eradicate’ effects of past unlawful practices”. Id. at *45.  Abercrombie opposed such an injunction, arguing that (a) Abercrombie had offered Ms. Khan unconditional reinstatement with the accommodation of wearing her hijab; (b) there was no threat of future, recurring violations, as Abercrombie had made “significant policy changes” since the events in question; and (c) the injunction was overbroad. Id. at *46-47.  The Court denied Abercrombie’s summary judgment motion on this issue, finding triable issues as to whether the changes in Abercrombie’s policies “completely and irrevocably eradicated the effects of the alleged violation.” Id. at *49.  The Court pointed to evidence that Abercrombie had changed its policies due to the instant litigation rather than because of the law, and on the fact that several of Abercrombie’s witnesses continued to believe that wearing religious headwear harmed Abercrombie’s image and brand. Id. at *49-50.  As to Abercrombie’s argument as to the breadth of the contemplated injunction, Judge Gonzalez Rogers concluded that the record was not sufficiently developed to determine that issue. Id. at *50.

Finally, the Court rejected Abercrombie’s summary judgment motion regarding the availability of punitive damages, finding that “[r]easonable jurors could determine that by offering Khan one option – to remove her hijab despite her religious beliefs – Abercrombie acted with malice, reckless indifference or in the face of a perceived risk that its actions violated federal law.” Id. at *55.  As to Abercrombie’s anti-discrimination policies, the Court concluded that triable issues existed as to whether those policies were implemented in good faith, and that there was insufficient information in the record to determine whether deterrence or punishment would be necessary. Id. at *56.

 

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Pregnancy and Pregnancy-Related Conditions Continue to Engage the Attention of the Courts, Regulators, Employers, and Employees

            There has been an extraordinary amount of activity of late regarding pregnancy and pregnancy-related issues, and this post will refer to but a few.  

I.                 Pregnancy Discrimination

            On February 15, 2012, the EEOC held a hearing where speakers discussed unlawful discrimination against pregnant workers and workers with caregiving responsibilities.  The testimony can be found at http://www.eeoc.gov/eeoc/meetings/2-15-12/.  At the hearing, written testimony was received from both Ms. Peggy Mastroianni, Legal Counsel with the EEOC, and Ms. Melvina Ford, Senior Policy Advisor in the Wage and Hour Division of the Department of Labor.  Ms. Ford in particular addressed the issue of nursing mothers, noting that the Affordable Care Act, P.L. 111-148 § 4207 amended section 7 of the Fair Labor Standards Act, 29 U.S.C. § 207(r) to require employers to provide nursing mothers with break time and private space in which to express breast milk.  Furthermore, in December of 2010 the Wage and Hour Division published a Request for Information at 75 Fed. Reg. 80073 (Dec. 21, 2010) seeking comments to certain questions on the Department’s preliminary interpretations of the law.  See also 29 U.S.C. § 207(r)(3) (undue hardship exemption from the FLSA); 75 Fed. Reg. 80075, 80076, 80078 (regulations relating to time, space, and enforcement of the requirements).  A follow-up blog will appear in this space once the full transcript of the hearing becomes available.  

            Professor Jeannette Cox has posted her forthcoming Boston College Law Review article entitled Pregnancy as “Disability” and the Amended Americans with Disabilities Act (online) in which she argues that even though pregnancy, while more often than not a healthy biological state, can be viewed as a workplace “disability.”  Based on that premise, Professor Cox argues that the duty to accommodate may extend to pregnancy.  

            In Been v. New Mexico Dep’t of Information Tech., No. 6:09-cv-00726, 2011 U.S. Dist. LEXIS 114982 (D.N.M. Sept. 30, 2011), a state employee who was fired while absent to deal with pregnancy complications established disputed issues of material fact on gender discrimination and FMLA claims.  The court allowed plaintiff’s claim to proceed despite the fact that she had failed to identify any similarly situated, non-pregnant, individuals who were treated more favorably, holding that such “comparison evidence” is not necessary to establish a prima facie case.  Following the Tenth Circuit’s opinion in Dodd v. Riverside Health Sys., Inc., 76 F.3d 392 (10th Cir. 1996), the court found that to make out a prima facie case of discrimination “a plaintiff need only show that her position remained open and was ultimately filled by a non-pregnant employee.” 

II.              Breastfeeding or Expressing/Pumping Breast Milk 

           In EEOC v. Houston Funding II, Ltd., CA H-11-2442, 2012 U.S. Dist. LEXIS 13644 (S.D. Tex. Feb. 2, 2012) (as amended Feb. 9, 2012), a case that has occasioned extensive commentary (see here, here, and here for a small sampling), Judge Lynn N. Hughes held that “[f]iring someone because of lactation or breast-pumping is not sex discrimination.”  (footnote omitted).  Judge Hughes relies on Puente v. Ridge, No. M-04-267, 2005 U.S. Dist. LEXIS 46624, at *11-12 (S.D. Tex. July 6, 2005) (on the facts before it, breast feeding did not qualify for protection under the Pregnancy Discrimination Act, 42 U.S.C. § 2000e(k)); Martinez v. NBC Inc., 49 F. Supp. 2d 305, 311 (S.D.N.Y. 1999) (prohibition on breast pumping did not show that female employee was treated differently than non-pregnant men who were similarly situated); Jacobson v. Regent Assisted Living, Inc., No. CV-98-564-ST, 1999 U.S. Dist. LEXIS 7680, at *29-30 (D. Or. Apr. 9, 1999) (to the extent that plaintiff based her claims on employer’s prohibition on breast pumping, she failed to state a claim); Wallace v. Pyro Mining Co., 789 F. Supp. 867, 869 (W.D. Ky. 1990) (so long as employees are treated the same under benefits plan, no disparate impact claim despite exclusion of coverage for uniquely female condition of pregnancy).

In Puente, the federal district court for the Southern District of Texas reviewed several opinions from courts which have addressed this issue and concluded that:

 Those few courts which have addressed the issue have generally held that breast-feeding is not a condition within the scope of the PDA. See Fejes v. Gilpin Ventures, 960 F. Supp. 1487 (D. Colo. 1997)(Based on the language of the PDA, its legislative history, and decisions from other courts interpreting the Act, the district court held that breast-feeding is not a condition within the scope of the PDA; breast-feeding is not a medical condition related to pregnancy or childbirth within the meaning of the PDA); Vachon v. R.M. Davis, Inc., 2004 U.S. Dist. LEXIS 6339 (D. Me., 2004). While these opinions are not controlling on this Court, the Court will follow the holdings of these cases. As a result, Plaintiff's decision to breast feed in the present case does not afford her protection under the PDA [and as a result neither under Title VII.] See e.g. Molero v. Port Cargo Enters., LLC, 2005 U.S. Dist. LEXIS 5519, *9 (E.D. La. 2005)(Generally in order to support a hostile work environment sexual harassment claim, an employee is required to show that (1) she belongs to a protected group; (2) she was the subject to unwelcome sexual harassment; (3) the harassment complained of was based on sex; (4) the harassment complained of affected a term, condition, or privilege of employee; and (5) the employer knew or should have known of the harassment and failed to take prompt remedial action.). As a consequence, even viewing Plaintiff's allegations in a light most favorable to her, Plaintiff's claims of gender discrimination, hostile work environment, and disparate treatment fail to state a claim upon which relief can be granted. Accordingly, the Court orders that Plaintiff's claims of gender discrimination, hostile work environment and disparate treatment be DISMISSED.

III.            Protection for Pre-Eligibility Activity Under the FMLA

As we have previously noted, not all courts have taken this path in determining the pregnancy-related protections afforded to women.  In Pereda v. Brookdale Senior Living Cmtys., Inc., No. 10-14723, 2012 U.S. App. LEXIS 492 (11th Cir. Jan. 10, 2012), the Court ruled on two issues relevant here:

1)     The Court found that plaintiff’s interference claim could proceed “because the [Family Medical Leave Act] contemplates notice of leave in advance of becoming eligible, i.e., giving birth to a child, the FMLA regulatory scheme must necessarily protect pre-eligible employees, such as [plaintiff], who put their employers on notice of a post-eligibility leave request.” 

2)     In addition, the Court found that plaintiff could also state a cause of action for retaliation, holding that “a pre-eligible request for post-eligible leave is protected activity because the FMLA aims to support both employees in the process of exercising their FMLA rights and employers in planning for the absence of employees on FMLA leave.” 

See our blog post on Pereda and related cases for further discussion of these issues. 

Please be sure to visit our website at http://RobertBFitzpatrick.com

American "Can Do"

The Man Who Thinks He Can
by Walter D. Wintle


If you think you are beaten, you are.
If you think you dare not, you don't.
If you'd like to win, but think you can't,
It's almost a cinch that you won't.


If you think you'll lose, you're lost,
For out in the world we find
Success begins with a fellow's will.
It's all in the state of mind.


If you think you're outclassed, you are,
You've got to think high to rise.
You've got to be sure of yourself before
You can ever win a prize.


Life's battles don't always go
To the stronger or faster man,
But soon or late, the man who wins,
Is the man who thinks he can.


- Walter D. Wintle


Rick Majerus and Sayed Parwiz Kambakhsh

Two stories from different parts of the globe seem to have, in a sense, some striking similarities. Rick Majerus, basketball coach at St. Louis University, a Catholic institution, stated at a Hillary Clinton rally that he, a Catholic himself, is pro-choice. The St. Louis archbishop, Raymond Burke, has demanded that he be disciplined by the University and denied Holy Communion. See http://www.stltoday.com/stltoday/news/stories.nsf/religion/story/
30545D6CFAE202E1862573D90017AE3B?OpenDocument.

Thousands and thousands of miles away in Afghanistan, a court sentenced Sayed Parwiz Kambakhsh, a 23-year-old journalism student, to death for blasphemy for distributing an article from the Internet that was considered to be an insult to the Prophet Mohammad. See http://www.nytimes.com/2008/01/24/world/middleeast/24afghan.html?ref=todayspaper.

I leave it to you to judge whether there is or is not a striking similarity in terms of fundamentalism. 'Nough said before I lose the few readers that we have.


Hangmen's Nooses

It seems like hardly a day goes by without some idiot insulting African Americans with the display of a hangman's noose. Now, the EEOC announced a $465,000 settlement with a North Carolina furniture company, Henredon Furniture Industries, in a case arising, in part, out of the display of a hangmen's noose. See http://www.eeoc.gov/press/1-24-08.html.


In California, You Can Have Your Ganga, but Not Your Job

A divided California Supreme Court yesterday in Ross v. Ragingwire Telecommunications, Inc. 2008 Cal. LEXIS 784 (3d Dist. Ct. App., #C043392, 9/7/05) upheld the employer's termination of an employee who tested positive for ganga and who argued that to do so was disability discrimination because, pursuant to California's Compassionate Use Act of 1996, a doctor had recommended ganga for medical purposes.


Privacy and the Company Computer

Recently, in Scott v. Beth Israel Medical Center, 2007 WL 3053351, 2007 N.Y. App. Div. LEXIS 7561 (NY Sup. Oct. 17, 2007), the hospital and a doctor who had been formerly employed there, locked horns over emails on the hospital's computer system between the doctor and his attorney. The hospital argued that the privilege status of those communications had been waived by the doctor by virtue of the fact that he had used the hospital's email system to communicate with his lawyer. The court, utilizing the test articulated by the Bankruptcy Court of the Southern District of New York in In re: Asia Global Crossing, Ltd. 322 B.R. 247, 2005 Bankr. LEXIS 415 (Bankr. S.D.N.Y. 2005), concluded that no privilege attached to the doctor's emails with his attorney as the court determined that the doctor had actual or constructive notice of the hospital's policy which stated that its communications systems were its property and were to be used "for business purposes only," and that employees "have no personal privacy right in any material created, received, saved or sent" using those systems. See also Long v. Marubeni America Corp., 2006 WL 2998671, 2006 U.S. Dist. LEXIS 76594 (S.D.N.Y. Oct. 19, 2006) (court held that employees had waived privilege even though employees, in communicating with their counsel, used personal, password-accessed email accounts).


Leave Home Without It

Recently, in In re: Boucher, 2007 WL 4246473, 2007 U.S. Dist. LEXIS 87951 (D. Vt. Nov. 29, 2007), Magistrate Judge Niedermeier quashed a subpoena which would have required a Mr. Boucher to provide the password to encrypted files on his laptop, holding that to do so would violate his Fifth Amendment right against self-incrimination. This case is on appeal to the First Circuit.

In United States v. Arnold, 454 F. Supp. 2d. 999 (C.D. California, 2006), Judge Pregerson also refused to authorize a search of a laptop. Judge Pregerson's decision was argued on appeal before the Ninth Circuit last October, and some are predicting a reversal based on the oral argument. United States v. Arnold, No. 06-50581 (9th Cir. 2007).

The Fourth Circuit in 2005 in United States v. Ickes, 393 F.3d 501, 504 (4th Cir. 2005) upheld a conviction in circumstances somewhat similar to the above cases.


Corporate Social Responsibility

For those advising clients regarding CSR policies, read the Maquila Solidarity Network report on Corporate Social Responsibility available at http://en.maquilasolidarity.org/en/node/749.

James v. Metro Government of Nashville

Someone asked if I would set out the citations that reflect the circuit split on this issue - the issue being whether the judge or the jury decides whether the facts support a claim that the retaliatory act could have deterred protected conduct. In our post of Friday, we provided the Fourth, Sixth and D.C. Circuit authorities on this issue.

The Fifth Circuit has held that judges, not juries determine whether the fact-bound Burlington Northern standard has been met. See DeHart v. Baker Hughes Oilfield Operations, Inc., 214 Fed. Appx. 437 (5th Cir. 2007). The Eleventh Circuit so held in Collins v. Board of Trustees of University of Alabama, 211 Fed. Appx. 848 (11th Cir. 2006). The Eighth Circuit goes with courts, not juries. See Higgins v. Gonzales, 2007 WL 817505 at *8-*9 (8th Cir., March 20, 2007). The Seventh Circuit in at least six cases since Burlington Northern has held that judges are to decide the question. See Roney v. Illinois Dept. of Transportation, 474 F.3d 455, 459 (7th Cir. 2007); Phelan v. Cook County, 463 F.3d 773, 781 n.3 (7th Cir. 2006); Szymanski v. County of Cook, 468 F.3d 1027, 1031 (7th Cir. 2006); Thomas v. Potter, 2002 Fed. Appx. 118 (7th Cir. 2006); Novak v. Nicholson, 2007 WL 1259054 at *5 (7th Cir., Apr. 12, 2007); Schmidt v. Canadian National Railway Corp., 2007 WL 755171 at *4 (7th Cir., Mar. 13, 2007).

In addition to the D.C. Circuit, three other circuits have held that juries, not judges, determine the question. The Third Circuit has so decided in at least three cases. See Hare v. Potter, 2007 WL 841031 at *11 (3d Cir., Mar. 21, 2007); Ridley v. Costco Wholesale Corp., 217 Fed. Appx. 130, 1325 (3d Cir. 2007); Moore v. City of Philadelphia, 461 F.3d 331, 347 (3d Cir. 2006). The Second Circuit has aligned itself in favor of juries. See Kessler v. Westchester County Department of Social Services, 461 F.3d 199, 209-10 (2d Cir. 2006); Wrobel v. County of Erie, 211 Fed. Appx. 71, 73 (2d Cir. 2007); Zelnik v. Fashion Institute of Technology, 464 F.3d 217, 227 (2d Cir. 2006). And, the Tenth Circuit has joined the Second, Third and District of Columbia Circuits in holding that the application of the Burlington Northern standard to the circumstances of a case is a matter for a jury. See Williams v. W.D. Sports, 2007 WL 2254940 at *10 (10th Cir., Aug. 7, 2007).

False Claims Act

On January 22, 2008, the U.S. Supreme Court denied cert in U.S. ex rel. Bly-Magee v. Premo, Case No. 05-55556 (9th Cir. Dec. 13, 2006). The Ninth Circuit's opinion is at 470 F.3d 914. In Bly-Magee, the Ninth Circuit ruled that non-federal reports, audits, and investigations qualify as a source of public disclosure under 31 U.S.C. section 3730(e)(4)(A). This represents yet one more split in the circuits, for the Third Circuit limits this provision to federal reports, audits, investigations. See U. S. ex rel. Dunleavy v. County of Delaware, 123 F.3d 734, 745 (3d Cir. 1997). The Eighth Circuit, on the other hand, agrees with this Ninth Circuit decision. See Hays v. Hoffman, 325 F.3d 982, 988 (8th Cir. 2003).

FLSA Settlements

If you settle an FLSA claim and have it supervised by the US Department of Labor, pursuant to 29 U.S.C. Section 216(c), the settling employee may end up signing off on a government form entitled WH-58 "Receipt for payment for lost or denied wages, employment benefits, or other compensation." In a recent opinion, the Ninth Circuit teaches us that the language contained in that form can either extinguish a claim or merely extinguish some portion of a claim.

In Dent v. Cox Communications Las Vegas, Inc., 502 F.3d 1141 (9th Cir. 2007), Mr. Dent signed a WH-58 which acknowledged receipt of payment of unpaid wages for the period beginning with the workweek ending May 4, 2002 through the workweek ending October 11, 2003. Thereafter Dent claimed unpaid wages for a time period prior to May 4, 2002. The district court dismissed his claim, accepting the employer's argument that the unpaid overtime wage claim had been settled in full. The Ninth Circuit reversed, finding that his claim was released only with regard to the time period specified in the WH-58.

Two New New Jersey Employment Statutes

New Jersey has amended its Law Against Discrimination and expanded it to require that employers reasonably accommodate sincerely held religious beliefs unless to do so would impose an undue burden. The statute now defines "undue hardship" as an accommodation requiring unreasonable expense or difficulty, unreasonable interference with the safe or efficient operation of the workplace or a violation of a bona fide seniority system or a violation of any provision of a bona fide collective bargaining agreement. Further, the statute states that, in determining whether an accommodation constitutes an undue hardship, the factors considered shall include:

• The identifiable cost of the accommodation, including the costs of loss of productivity and of retaining or hiring employees or transferring employees from one facility to another, in relation to the size and operating cost of the employer.


• The number of individuals who will need the particular accommodation for a sincerely held religious observance or practice.


• For an employer with multiple facilities, the degree to which the geographic separateness or administrative or fiscal relationship of the facilities will make the accommodation more difficult or expensive.

The other statute concerns employment protections for employees on military leave in time of war or emergency.

Insurance Coverages for Federal Employees

There was an interesting article in one of the newspapers in the last few days about insurance coverages provided to federal employees who might be sued, and presumably not otherwise protected by immunity doctrines. Wright & Company, a Virginia-based insurance company, writes coverages. The article indicated that it provides $200,000 for legal fees incurred in an administrative proceeding, an additional $100,000 in fees for criminal investigations, and up to $1,000,000 for damages incurred in civil litigation. See: http://www.wrightandco.com/wmspage.cfm?parm1=23.

Corporate Social Responsibility

The January 19, 2008 issue of The Economist has a special report on corporate social responsibility. Reprints of the report are available. See www.economist.com/rights. A list of sources can be found at www.economist.com/specialreports and an audio interview with the author can be found at www.economist.com/audio.

For those who are interested, there is an ABA corporate social responsibility committee. If you should be interested in joining, please let me know and I will forward your name to the committee chair.

Hangman's Nooses

In the past week we have observed first Kelly Tilghman making an utter fool of herself on the Golf Channel when she said that the way to defeat Tiger Woods was to take him out and lynch him. That merited only a two week suspension. Then to add fuel to the fire, Golfweek distributes this past week's issue with a cover image of a noose for an article about Ms. Tilghman's idiocy. That thankfully merited the discharge of Dave Seanor, the editor.

Some of the obvious questions raised by these two incidents, other than being dumbfounded that supposedly intelligent people still just don't get it, would be the following:

• How come it took two days to apologize? You would have thought that within seconds after Ms. Tilghman uttered her stupidity, that she or someone associated with the channel, would have realized that what she said was over the top, and an apology should have issued within moments after she said what she said. Makes you wonder whom, in addition to Ms. Tilghman, at the Golf Channel simply doesn't get it.


• Makes you also wonder what the hiring practices are at the Golf Channel. I would assume that if there were African-Americans on the production team, that one of them would have spoken up immediately and demanded that she apologize on the air. I sure would like to see the Golf Channel's hiring statistics.


• That takes me to Golfweek magazine, the cover page, I am told, was vetted by a committee. So, it isn't just Mr. Seanor who doesn't get it, there are many others at the magazine who are simply clueless or worse than that, closet racists who took pleasure in insulting millions of our citizens. So, one wonders why Mr. Seanor is the only person who was disciplined. Yes, "the buck stops here", and the boss takes the fall, but the others ought not to go scot free.


• Finally, the incident, like the Golf Channel incident, has to raise questions about the hiring practices at Golfweek. Again, I sure would like to see some data.
  

The EEOC recently obtained a $2.5 million settlement on behalf of an African-American electrician who claimed he was harassed daily, including the display of nooses, at Lockheed-Martin. This was the largest settlement filed by EEOC on behalf of an individual. See: http://www.diversity.com/public/2919.cfm
http://www.eeoc.gov/press/1-2-08.html

Since Fiscal Year 2001, the EEOC has filed more than 30 lawsuits that involve the displaying of hangman’s nooses on the job. It recently settled for $290,000 such a claim against Helmerich & Payne International Drilling in Jackson, Mississippi, for $390,000 against Pemco Aeroplex in Birmingham Alabama, for $600,000 against AK Steel in Butler, Pennsylvania, and for more than $1,000,000 against Commercial Coating Service of Conroe, Texas. Tresa Baldas, EEOC Targets Workplace ‘Noose” Cases, National Law Journal, November 5, 2007. Available at: http://www.law.com/jsp/nlj/PubArticleNLJ.jsp?id=1193735026861. See Stephanie Armour, “Racial Bias Suits Climb in Workplaces,” Asbury Park Press, Oct. 29, 2007, available at http://www.app.com/apps/pbcs.dll/article?AID=/20071029/BUSINESS/710290307/1003.

For additional coverage of the Golf week debacle see:

http://www.washingtonpost.com/wp-dyn/content/article/2008/01/19/AR2008011902439.html?sub=AR

http://www.nytimes.com/2008/01/19/sports/golf/19magazine.html?_r=1&scp=1&sq=golfweek+fires+editor&st=nyt&oref=slogin

For some startling discussion of the use of nooses as a form of racial discrimination in the workplace see:

http://query.nytimes.com/gst/fullpage.html?res=9804E3DF1238F933A25754C0A9669C8B63&scp=1&sq=nooses%2C+symbols+of+race+hatred&st=nyt

http://www.cnn.com/2007/US/11/01/nooses/index.html

http://www.washingtonpost.com/wp-dyn/content/article/2007/11/07/AR2007110702700.html

http://www.businessweek.com/magazine/content/01_31/b3743084.htm?chan=search

Sunrise Senior Living Sued by Former CFO

The former CFO of Sunrise Senior Living filed suit back in September in Fairfax County Circuit Court in Virginia, claiming that he was fired in retaliation for uncovering improper accounting practices. Sounds like a snooze, but, trust me it has gotten real interesting. In recent court filings, Sunrise disclosed that it had discovered "more than 25,000 unique pornographic images" on a company-owned computer used by the former CFO. That disclosure raises interesting issues regarding the former CFO's attempt to delete material from laptops provided to him by Sunrise. Sunrise alleges that the former CFO returned one of two laptops after deleting all active electronic files, and that only after a forensic examination did it find the evidence of pornography on parts of the hard drive that had not been wiped clean. The former CFO's attorney has asked the court to strike all references to the pornography, arguing that Sunrise's instructions regarding retention of materials related to accounting activities under investigation and did not require the retention of the "adult materials". We hope to obtain more information about this interesting case and report further in the future.

Baseball

General Sherman supposedly once said: "If I owned Texas and Hell, I would rent Texas and live in Hell." Quite obviously, Roger Clemens is betting that the good citizens of Harris County, Texas will prove the good general wrong. In what, in retrospect, may well be viewed as a serious blunder, Brian McNamee's lawyers threatened to sue Clemens if he went on 60 Minutes. Presumably, that lawsuit would have been filed in a more favorable venue than Harris County, Texas. But Rusty Hardin beat McNamee's lawyers to the punch, and filed a fourteen page complaint for defamation in Harris County before McNamee could file elsewhere. The complaint can be found at http://i.cnn.net/si/2008_images/2008.01.06_Clemens_Original_Petition.pdf.

I am beginning to get that itch that starts about this time every year - the itch to go south for spring training. Many players that I would love to go observe. Will Elijah Dukes get through spring training before he gets arrested yet again? How will D Train (Dontrelle Willis) do in the American League? And who is this latest deportee from Japan, Yosuke Kukudome, who will play right field for the Cubbies?

Damages

Put this under the category of crass commercialism. I co-chair a two day CLE conference sponsored by ALI-ABA on damage issues in employment cases which will be held February 7-8 at Georgetown Law School in Washington, D.C. If you are interested in registering, just contact ALI-ABA at 1-800-CLE-NEWS.