Legal Update Preview:

Julie Pate, Esq.

Founder and President at Employment Compliance Solutions LLC

Broomfield, CO

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Hello, my name is Julie Pate and I'm an employment and labor attorney based in Denver, Colorado. I've been practicing in this area for about 24 years. I specialize in workplace investigations of state and federal EEO claims, title IX, investigations, legal training, and small employer, HR legal compliance. In this session, we will be discussing legal issues that continue to develop in 2021 and are advancing to date in 2022. The first thing is an update on the crown act. In our last update, we discuss the crown act, which stands for creating respectful and open world for natural hair. This act provides protections for discrimination based on race based hair traits, including hair texture, hair type, or protective hairstyles, commonly, and historically associated with race. Since our last update, there are a total of 12 states that have passed their own crown act. Doubling what was in effect during our last update.

As of March 22, the crown act was passed at a federal level through the house judiciary education and labor committees, and has been moved on to the us Senate. It's been read twice in assigned to the judiciary committee for review. This is important because should the crown act pass the Senate? It would then go on to the president for signature and it would create new federal law that would prohibit racialized hair discrimination across the country. The next topic I'd like to talk about and give an update on is vaccine mandates while the pandemic created many legal questions for employers who were trying to balance the needs of their business with the CDC guidelines with employee safety concerns and the ever-changing landscape of the pandemic in the last year, we've seen federal state and sometimes even local mandates requiring the COVID 19 vaccine for their employees.

We're going to address a few areas where the COVID-19 mandates have a direct intersection with EEO laws and could certainly trigger an investigation. The first one falls under the Americans with disabilities amendments act, as you know, the ADA prohibits employers from discriminating against employees on the account of a physical or mental impairment that substantially limits one or more major life activity or perceptions of the person having a disability. The ADA also requires reasonable accommodation for employees with known disabilities. So as you look at the vaccine question, then employers who are making vaccine mandates are still required to reasonably accommodate the employee's physical or mental impairment. If it

Restricts their ability to take the vaccine, thereby considering an exemption from the vaccine mandate could pose a reasonable accommodation requirement. Now title seven also protects an individual who associates with members of a protected class and experiences discriminatory treatment, even if they are not members of the protected cell class themselves. These, this is associational protection under title seven. Now caregivers of individuals with disabilities have non-discrimination protections under the, those associational protections and caregiver discrimination also can come ti sometimes show up in a variety of ways and also could be connected to gender biased stereotypes for those roles as caregivers. And those would be things that could be investigated under title sevens, associational protection as well. Now the other big area that deals with vaccine mandates is religion. So religion under title seven requires an employer to accommodate employees with a deeply held religious belief or practice that would prevent them from taking the vaccine.

Now that reasonable accommodation would most likely be an exemption from the vaccine. Now, title VII prohibits covered employers from also engaging in disparate treatment or maintaining policies or practices that would result in unjustified disparate impact based on religion, the EEOC put out guidelines regarding this. And they provided that a claim based on a failure to accommodate a religious belief, observance or practice absent undue hardship is a form of disparate treatment. The commission recognizes that harassment and denial of religious accommodation are typical forms of disparate treatment in the terms and conditions of employment. Now, there are different types of fact patterns that can arise in relation to title VII, religious discrimination that you might be called upon to investigate. One of which would be denying and needed reasonable accommodation by an applicant or an employee for a, a deeply held religious belief, observance or practice.

If the accommodation does not impose an undue hardship on the business, the second one would be maybe treating applicants or employees differently or disparately by taking an adverse action based on their religious beliefs, observances or practices or lack thereof in any aspect of employment that could include recruiting, hiring assignments, discipline promotions, discharges, or benefits. And the third scenario that you might investigate would be taking adverse action motivated by a desire to avoid accommodating a religious belief observance or practice by the employee where the employer knew or suspected that that accommodation was needed and would not pose an undue hardship to the organization. Now, another area that might delve into this is when an employer requests too much information in the areas of both disability or religion regarding that employee's request for reasonable accommodation doing so in digging deeply and questioning too deeply in those areas could certainly be ripe for discrimination charges and pending investigations.

Now, the EEOC recognizes this, and they've provided frequently asked questions or guidance to help employers navigate this area. I find these EEOC guidance documents to be very helpful as an investigator as well. The two that I'd like to refer you to are accommodations for employees with conflicting medical conditions or religious beliefs that prevent them from taking the vaccine. Obviously, this is exactly on point of what we're talking about. The other one really deals with COVID 19 pandemic and caregiver discrimination under EEO law. So those are the two that I think are most relevant from an investigative standpoint. You know, we've looked at this issue because failure to accommodate under these under title VII's religious provision, or the ADA can raise discrimination issues that require investigation. We also can be called upon as investigators to investigate retaliation complaints by individuals who sought reasonable accommodation from the vaccine requirement, and then later suffered some form of adverse action.

So those are the two areas where we would see potential investigations related to the pandemic and the vaccine mandates the next area. I'd like to talk about deals with paternity policies. Now, historically companies had, um, maternity and paternity policies and they considered them separately. So, it would not be uncommon for a policy of an organization to say, you know, a female, having a baby would get at 12 weeks of paid leave, where, you know, a male going on paternity leave would get five weeks of paid leave or something similar to that. The EEOC has recently taken a hard stance against that. So, they've issued guidance around parental leave or bonding time policies, which provide more time off for one gender than the other. Following the birth or adoption of a child. The EEOC is actively pursuing policies that are not gender neutral, but instead provide parental leave to women more favorably than to men. These two-tiered types of leave policies where the birth mother other is entitled to more bonding time or

Parental leave. Then, the father under the EEOC's guidance is discriminatory. The EEOC has had a couple of recent cases on this issue in one the EEOC obtained a 5 million settlement from JP Morgan chase. And in another one, 1.1 million in settlement from a stay Lauder where the EEOC alleged that the parental leave policies discriminated against men by providing them with less parental leave than they did to the female employees. The EEOC's position on these policies must be applied uniformly and without regard to gender. So, gender equal, the last area I'd like to talk about is retaliation. This is the largest growing area of concern in the EEO space, according to the EEOC, 56% of all the charges that were filed in 2021 included an allegation of retaliation. As you probably know, retaliation is a standalone claim that can, it can go ahead and succeed.

Even if the underlying charge of discrimination fails. Now, the EEOC prohibits punishing employees for asserting their rights to be free from employment discrimination, including harassment, participating in the complaint process is protected under the retaliation provisions or opposing acts of discrimination are protected. As long as the employee was acting with a reasonable belief that something in the workplace was violating E L law engaging in EEO activity, the EEOC has clarified, does not necessarily shield the employee from all disciplinary actions or discharge. It says that the employers are employers are free to discipline terminate workers. If motivated by non-retaliatory. Non-discriminatory reasons that would've otherwise resulted in those consequences. Now that's important as investigators for us to look at because looking at the causation requirement and whether or not that action would've occurred, regardless of discriminatory intent is an important aspect. When we're looking at investigating retaliation complaints.

Now, of course the employer's not allowed to do anything in response to, to good faith EEO activity or that anything that would discourage a reasonable person from resisting or complaining about future discrimination. Now, from an investigator's perspective, I too have seen a large increase in retaliation claims in the investigations that we conduct an area of confusion that we run across frequently. And you may as well is where the complainant uses the term retaliation, but they use it very broadly. They use it for any event that occurred after an employee has done something like complaining about their boss's management style or a conflict with coworkers. These things are not complaints that were in any way connected to discrimination or any actual protected activity. And so, there is a big misperception and use of the word retaliation for any type of a complaint made to HR, even if it is not in opposition to discrimination or engaging in any other type of protected activity.

The other area where we see misuse of the terms, and you may as well is hostile work environment, right? We're seeing many, many claims of hostile work environment to describe things that are more appropriately a toxic work environment or an ugly place to work, or the boss is a jerk. And the reason that they're not a hostile work environment is because the actions and treatments by the respondent are not based on the complainant's protected status, instead they're based on, you know, any other factor other than a protected status. Now, these are both areas where while the buzzword of retaliation and hostile work environment are used applicability of EEO protections, aren't clear until you interview and do a thorough interview of the complainant and can very much clarify their use of the term retaliation and their use of the term hostile work environment. And whether those really do tie back to protected status or some form of protected activity. And if not, then, um, the, the employer or the client has the, um, opportunity to determine whether or not they go forward with an investigation. Those are the EEO updates. Thank you so much for your time today. And I hope you have a great rest of your day.

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