Employment & Labor Insider

Employment & Labor Insider

Legalese is not spoken here

Wal-mart, EEOC reach accord in drug test “accommodation” lawsuit

Posted in Americans with Disabilities Act, Drug Testing, Transportation Industry

Laura Jones was offered a sales job at the Wal-Mart store in Cockeysville, Maryland, and was told that she would have to take a drug test. According to the U.S. Equal Employment Opportunity Commission, Ms. Jones told an assistant store manager that she had end stage renal cancer, which prevented her from taking a urine test. The EEOC says that Jones then went to the drug testing collection center and requested that an another type of test be performed, which the center said could be done if Wal-Mart ordered it. She then allegedly took that information back to the store, but was allegedly told that “corporate” would not allow an alternate test.


A Wal-Mart store in Charlotte, NC.

Wal-Mart’s offer was withdrawn after Ms. Jones failed to be tested within 24 hours of the company’s request, and the EEOC sued Wal-Mart for violation of the Americans with Disabilities Act. Wal-Mart filed an answer denying the EEOC’s key allegations, but the denials are general, so it is difficult to determine the company’s side of the story.

In any event, on October 21 Wal-Mart and the EEOC entered into a consent decree in which Wal-Mart will pay Jones $72,500. The company also agreed to provide notice to applicants of alternative specimen testing for those persons “whose physical condition prevents them from producing urine” and who request accommodations in the pre-employment drug screening process. The consent decree provides for use of blood tests when urinalysis is not possible.

Wal-Mart also agreed to provide 90 minutes of hiring manager training on the accommodation process and to post a notice to all store employees. The EEOC says it has filed similar lawsuits against Kmart (also in Maryland) and against the Fort Worth (Texas) Center of Rehabilitation. In all cases, the applicants had end-stage renal disease.

These EEOC lawsuits are a good reminder that the ADA reasonable accommodation obligation applies at the application and hiring stages as well as during employment. Employers are required to make reasonable accommodations that will allow individuals with disabilities to apply and be considered for jobs. This would obviously include accommodations in connection with the pre-employment drug testing process.

Transportation employers should already be familiar with the regulations of the U.S. Department of Transportation (found at 49 CFR Parts 193 and 195) pertaining to “shy bladder.” Of course, DOT regulations do not apply to retail sales clerks or workers in a rehabilitation center. But the DOT also requires that accommodations be made if the applicant has a legitimate medical reason for not being able to provide a urine sample.

Image credit: flickr, by Mike Kalasnik, Creative Commons license.

Racial talk at work? Beware of reverse discrimination.

Posted in Discrimination, Harassment

“What’s good for the goose . . .”

When I do harassment training, I ask my audiences whether they think employers should ban the “N” word even when it’s used by African-Americans among themselves. In my experience, the African-Americans in the audience have been the most vocal advocates for treating everyone equally in this regard. In other words, they argue, the word should be banned for everybody — not banned for some and allowed for others.

I agree, for two reasons: (1) it’s a revolting word and likely to be offensive to others even if the people using it are African-American, and (2) without fail, somebody who is not African-American will hear it and think it’s ok to start saying it. And, at that point, we have an employment disaster.

Now we have two more reasons to support equal treatment: (3) Tom Burlington, ex-weekend anchor for Fox 29 TV in Philadelphia, and (4) Craig Hecht, ex-elementary school teacher at Linden Charter Academy in Flint Township, Michigan.

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BREAKING: EEOC seeks court order to halt Honeywell’s biometric testing

Posted in Americans with Disabilities Act, Genetic Information Non-Discrimination Act

UPDATED 10/29/14 (see below). Thanks to Kate Bischoff of The Employment Law Navigator for bringing this to our attention.

The Equal Employment Opportunity Commission filed a petition yesterday in federal court in Minnesota to stop Honeywell International, Inc., from requiring that employees (and spouses, if the employees have family health insurance coverage) either get biometric testing, or face the loss of employer contributions to Health Savings Accounts and incur other charges.

The EEOC is seeking a temporary restraining order and a preliminary injunction to stop the testing, which was scheduled to take place October 22 through the end of this week.

According to the EEOC’s petition, the testing requires a blood draw, and blood samples will be checked for cholesterol and glucose. Participants’ blood pressure and waist circumference will also be measured, and they’ll be checked for use of nicotine and cotitine. The EEOC contends that the testing violates the Americans with Disabilities Act as applied to employees, and the Genetic Information Nondiscrimination Act as applied to employees’  spouses.

According to the EEOC, the penalties for non-participation can cost as much as $4,000 per employee for the 2015 plan year.

UPDATE (10/29/14): Honeywell has issued the following statement: 

The Chicago EEOC office is unfamiliar with the details of our wellness programs and woefully out of step with the healthcare marketplace and with the core intent of the Affordable Care Act, or ACA, to provide expanded access and improved healthcare to all Americans. The incentives in our wellness programs are pro consumer and have delivered demonstrably better healthcare outcomes for employees and their families. The incentives we provide are specifically sanctioned by two separate Federal statutes – the Health Insurance Portability and Accountability Act, or HIPAA, and the ACA. Honeywell’s wellness plan incentives are in strict compliance with both HIPAA and the ACA’s guidelines, which were designed by Congress to encourage healthier lifestyles while helping to control healthcare costs. No Honeywell employee has ever been denied healthcare coverage or disciplined in any way as a result of their voluntary decision not to participate in our wellness programs. Biometric testing provides valuable private information to each employee about potentially life threatening issues. Honeywell wants its employees to be well informed about their health status not only because it promotes their wellbeing, but also because we don’t believe it’s fair to the employees who do work to lead healthier lifestyles to subsidize the healthcare premiums for those who do not. Biometric information will help all employees make healthier decisions. Over 60% of Honeywell biometrics participants have reduced at least one health risk, and encouraging more participation is the right thing to do. For employees with single coverage who voluntarily decide to take a biometric screening, their monthly premiums will be $125 lower than the employees who decide not to take a biometric screening. Biometric results are strictly confidential and not shared with the company. We’re proud to provide employees with the opportunity to lead healthier lifestyles and are disappointed that the EEOC would take a position that is so contrary to a fundamental component of the President’s health care plan, legislation passed by Congress, and the desire of all Americans to lead healthier lives.

(Thanks to Law360 and theflyonthewall.)

I’ve written about the EEOC’s position on the “coercive” aspects of wellness programs here, here, here, here, here, and here. The latest will definitely be a case to watch.

LGBT charges are rolling in, EEOC Commissioner says

Posted in Discrimination, Gender Identity Discrimination

Chai Feldblum, a Commissioner of the U.S. Equal Employment Opportunity Commission, recently presented an update on the EEOC’s handling of charges alleging sexual orientation and gender identity discrimination.

At the meeting, reported this week in Bloomberg BNA, Commissioner Feldblum said that the EEOC is now tracking the intake and resolution of these charges, which I’ll refer to collectively as “LGBT charges.”

From January 1 through June 30 of this year, Feldblum said, the agency had received 459 sexual orientation charges and 81 gender identity charges. In calendar year 2013, the agency received 834 sexual orientation and 199 gender identity charges.

Chai Feldblum

EEOC Commissioner Chai Feldblum

As of September 18, 2014, 614 LGBT charges had been resolved: Eleven with “cause determinations,” 68 settlements, three conciliations, and 18 withdrawals “with benefits to the charging party.” If my math is correct, that means the EEOC issued dismissals and notices of rights in most of the resolutions this year (514 of 614).

As most employers know, until recently the EEOC refused to accept LGBT charges against private employers because federal law does not explicitly address this type of discrimination. However, the agency has recently changed its practice, primarily because of court decisions interpreting Title VII to treat “sexual stereotyping” as an unlawful form of sex discrimination.

The statistics cited by Commissioner Feldblum don’t appear to be available on the EEOC’s website, but you can read about the agency’s enforcement position on gender identity discrimination here. And the EEOC recently filed a brief in a case pending before the U.S. Court of Appeals for the Seventh Circuit contending that even discrimination based on sexual orientation was a form of unlawful sex stereotyping. (The Seventh Circuit hears appeals from federal district courts in the states of Illinois, Indiana, and Wisconsin.)

Commissioner Feldblum spoke at PLI’s Employment Law Institute on Monday.

Halloween in the workplace? Bah! Humbug!

Posted in Discrimination, Harassment

When it comes to Halloween in the workplace, just call me Scrooge.


Halloween costumes at work? Bah! Humbug!

A reader writes,

Hi, Robin. I dread the prospect of employees coming to work in inappropriate Halloween costumes. I’ve seen costumes that are sexually provocative, or that reflect racial or ethnic stereotypes. Some people even say that employers shouldn’t have Halloween parties because some employees have religious objections. Can you write about this before Halloween?

Sure, and thank you for suggesting such a great topic for this time of year! There is very little from the courts on “Halloween in the workplace,” and for that we can all be grateful because it probably means that it doesn’t get litigated too often. I did find one case from a federal court in Pennsylvania in which a woman claimed that she was discriminated against for refusing to attend a “mandatory” employer Halloween party. The woman was a Jehovah’s Witness, and believed that Halloween parties were sinful. (The court dismissed her claim because she hadn’t raised it in her EEOC charge.)

Even though there isn’t much court guidance, here is my question: Why let employees wear Halloween costumes to work at all? The costumes become more indecent by the minute, increasing the risk that someone will either be sexually harassed because of a costume, or will be considered to be sexually harassing co-workers because of a costume. Even costumes that are not meant to be sexually provocative may still be very inappropriate for the workplace . . . for example, a ballerina costume (too much bare leg, shoulder, and arm), or a “superhero” costume (waaaaaaay too much like underwear).

Ballerina.Male.Chris Millett.flickrCC

This prima ballerina is showing too much skin for the office.

In addition to being provocative, as my reader points out, many Halloween costumes may be considered inappropriate for racial, ethnic, or religious reasons. Or they may be too gory, violent, and disgusting for work. (I’m thinking of the classic axe-in-the-head mask.)

In addition to that, Halloween costumes may present safety issues. (What if that pointy witch’s hat gets caught on some machinery?) They may make it harder for employees to get their work done. (You’ll get that green ghoul makeup all over your keyboard! And do you know how hard it is to take a business call while you’re wearing a Tor Johnson mask?)

You’ll shoot your eye out, kid! Get off my lawn! Bah! Humbug!

And why on earth would an employer ever require an employee to attend a Halloween party, especially if the employee’s reason for not attending was a religious one?

OK, OK, I admit – I really do like Halloween. Even at work. I owned a pair of skeleton earrings that I wore to the office every Halloween until they broke a couple of years ago. I don’t see any harm in putting out a bowl of candy corn in the break room, or even in throwing a little party as long as “conscientious objectors” are excused with no penalty. But that’s about it for me, for the reasons stated above.

Underwear Ad.SenseiAlain.flickrCC

“Aw, gee, Maw — that underwear looks just like a superhero costume!”

Now, what about employees who may be offended by any celebration of Halloween? This can include some evangelical Christians, Jehovah’s Witnesses, and possibly others. Don’t feel like you have to ban the festivities, but don’t mandate participation, either. If employees can opt out without penalty, that should be accommodation enough.

Are we all ready for next Friday now?

Speaking of parties, I’ll be doing a webinar on November 12 for XpertHR on “How to Make Your Workplace Holiday Party Sparkle – With No Legal Hangovers.” Please join us as we talk about that other big holiday that causes employer headaches. (Ho! Ho! Ho!)

Image credits: All from flickr, Creative Commons license. Ebenezer Scrooge by forwardstl, ballerina by Chris Millett, 1960s Hanes Underwear ad rephotographed by SinseiAlan.

Top 10 Technology Blunders for Employers

Posted in eLaw, Social media

I’d like to thank Sarah Phaff of our Macon, Georgia, office, who wrote this post with me.


Fully clothed selfie: Kate Upton, eat your heart out!

As one who presumably has no nude selfies, you may not be too concerned about a “hack” like the one that continues to afflict celebrities like Jennifer Lawrence and Kate Upton. But that doesn’t mean there aren’t still plenty of technology issues that an employer should look out for. Are you guilty of any of these top ten technology blunders that are either committed or allowed by employers?

Blunder No. 1: Recruiting or hiring employees using “coherent people profiles” assembled by aggregators like Spokeo. Spokeo was fined $800,000 in 2012 by the Federal Trade Commission because it gathered all kinds of data about individuals – including race, ethnic background, religion, economic status, and age ranges – and sold the information to employers who used it in making recruiting and hiring decisions. Spokeo was hit because it was not complying with the Fair Continue Reading

Eggs in the workplace

Posted in Discrimination, Pregnancy
Eggs Fried


No, not that kind of egg.

This kind of egg:

Ovum Human


Eggs – human eggs, aka ova – have been in the news this week. First, it was announced that Facebook and Apple will begin offering insurance coverage for female employees to freeze their eggs for later fertilization and implantation, a procedure that can cost as much as $20,000. There are mixed feelings about this – on the one hand, some women will be grateful for the benefit. On the other hand, as noted in this New York Times blog post, could this be viewed as pressure on women to stay childless as long as they want to advance their careers?

There is nothing illegal about this benefit in itself, but it could become exhibit A in a lawsuit brought by a woman who is turned down for a promotion because of pregnancy, or because of actual or perceived “maternal” responsibilities.

Speaking of Exhibit A, Bloomberg BNA reports that a federal judge in Colorado understandably denied summary judgment to an optometry practice in a pregnancy discrimination case, in part because of “egg talk” by the employer. The optometrist in charge of the practice allegedly demoted the plaintiff, saying it was “too bad that she had to go and get pregnant.” He also admitted to telling the plaintiff’s supervisor “in a joking manner” that he should not hire women with “viable eggs” but only women with “dead eggs.”

The employer alleges that by “dead eggs” he meant “good work ethic” and that the plaintiff was fired for stealing time. The jury will decide who is right.

Egg discrimination: the next big thing. Remember that you read it here first!

Image Credits: Both from flickr, Creative Commons license. Fried eggs on toast by Mike McCune, human ovum by Ed Uthman.

A reader asks: “Is it me, or has job interviewing become really complicated?”

Posted in Americans with Disabilities Act, Discrimination, Pregnancy

Last week, I wrote about the two situations in which an employer should ask an applicant about a disability or a religious belief or practice that might require reasonable accommodation. (As I emphasized last week, 99 percent of the time, you should stay away from these topics in job interviews.) My post prompted one reader to ask some follow-up questions that I think are worthy of another post.Help Me.vtdainfo.flickr

Q. You wrote about disability and religion, but what about pregnancy? That one has me stumped.

A. You and everybody else. As you know, the Equal Employment Opportunity Commission now says that pregnancy “and related conditions” must be reasonably accommodated if the employer accommodates employees with disabilities, which of course it is required to do under the Americans with Disabilities Act. Many state and some local laws also require pregnancy accommodation. Assuming the EEOC’s new Enforcement Guidance is the law of the land for now, or if you are in a state or city that requires pregnancy accommodation, I would apply the same principles to pregnancy that I discussed last week with respect to applicants who may need disability or religious accommodations. In other words, I would avoid discussion of an applicant’s pregnancy 99 percent of the time.

The extent of an employer’s duty to make reasonable accommodations for pregnancy under the federal Pregnancy Discrimination Act is going to be decided by the Supreme Court sometime next year (oral arguments are scheduled for December 3). It is possible that the Court will disagree with the position taken by the EEOC, in which case the EEOC will have to abide by the Court’s decision. However, the Supreme Court decision will not affect state or local laws requiring pregnancy accommodation.

I would talk about pregnancy in the interview if, and only if,

*The pregnancy is obvious, AND it could disqualify the applicant from consideration.  (For example, the applicant is eight months pregnant, and she’s applying for a stevedore position.) In that case, I might explain the duties of the job and ask how the applicant would perform those duties. That could lead to the beginning of the reasonable accommodation “interactive process,” and in this limited situation I think that would be fine.

*The applicant volunteers that she is pregnant, AND it could disqualify her from consideration. If the pregnancy would not preclude her from consideration, then your only response should be, “A baby — how wonderful! Congratulations!” (And then hire her, or be darned sure that whoever you hire instead is demonstrably more qualified for reasons having nothing to do with pregnancy.) But if she brings up the pregnancy and it seems that this would be a “deal breaker,” then you should be able to engage in the reasonable accommodation “interactive process.” Start by explaining the job duties and physical requirements, ask her how she would perform those functions, and let it flow from there.

Q. But interviewers without a lot of skills may open a Pandora’s box when they delve into these areas. We’ve always told our employees to avoid discussion of disability, religion, etc., and not to document it if the employee brings it up. We tell the applicant it won’t be included in the [hiring] score, and if they are selected, we will discuss accommodation at a later date.

Your current practice is probably fine, provided that (1) you always hire the applicant with the obvious disability, religious conflict with your job requirements, or pregnancy (I’m going to refer to disability/religion/pregnancy as “DRP” from now on) or who mentions it in the interview, or, if you don’t, (2) the DRP applicant never challenges your decision not to hire.

But I suspect that you live in the real world, and that there are times when there may be better candidates available, or when you really can’t make an accommodation, or when a rejected candidate may be upset about the rejection and want to take legal action. If you don’t document, then you and the candidate may have the dreaded fact dispute about what was said, which (in the event of a failure-to-hire lawsuit) means your case will go to a jury. Documentation is no guarantee that there won’t be a fact dispute, but it does tend to make it harder for the plaintiff to claim that something different happened.

Beast of a Job Interview.Mike Licht.flickr

INTERVIEW “DON’T”: “Is that a bun in the oven?”

Rather than documenting nothing, which leaves you legally vulnerable if it really did come up in the conversation, I’d suggest documenting something like the following:

“Applicant mentioned that she is three months pregnant and asked whether that would be a problem for us. I told her absolutely not, and explained our maternity benefits to her. I told her we were interviewing other candidates and would select the most qualified candidate, but that her pregnancy would not count against her in any way.”

Or this:

“Applicant was visibly pregnant. I explained that the job entailed continuous lifting and moving of crates weighing 150 lbs. I told her that the pregnancy would not disqualify her from consideration for this job and also explained that we were willing to make reasonable accommodations if we could. She said that she had not realized that so much lifting was involved. She said she did not want to take a risk with her pregnancy and said she would wait and apply again after the baby was born. I told her that we are usually in ‘hiring mode’ for these jobs and that she would be welcome to reapply whenever she felt comfortable doing so.”

Now, the above is obviously not “HR 101.” If your interviewers are less than highly skilled and experienced, you might want to tell them to do something like this instead:

PROBLEM: Applicant Mentions Something DRP That Could Perhaps Be Accommodated.

SOLUTION: Punt to the HR Boss.

“I’m a Seventh-Day Adventist, and it’s a sin for me to work between sundown Friday and sundown Saturday. But I can work Saturday nights and Sundays.”

“Thanks for letting me know. I will check with our Human Resources Director about that, and one of us will be back in touch with you. Will that be all right?”

[Then continue with rest of interview. After interview, document that this came up and what you said and did about it. Notify HR director or equivalent and let him or her take it from there.]

PROBLEM: Applicant Mentions Something DRP That in All Likelihood Cannot Be Accommodated.

SOLUTION: Punt to the HR Boss.

“I have a mental illness that makes it impossible for me to work under supervision. Is that a problem?”

“Let me check with our Human Resources Director about that, and one of us will be back in touch with you. Is that all right?”

[Then continue with rest of interview. After interview, document that this came up and what you said and did about it. Notify HR director or equivalent and let him or her take it from there.]

Pretty easy, huh?

Happy Man

“Punt to the HR boss? Heck, even I can handle that!”

Q. And while you’re at it, can you give us some pointers for conducting interviews that we can share with our junior people?

A. Of course!

*Don’t make comments or jokes about race, national origin, color, sex, age, sexual orientation, gender identity, or any other protected characteristic. The same goes for DRP unless the employee brings it up and it appears that a reasonable accommodation needs to be discussed.

*Don’t ask a question that would, as the EEOC says, “tend to elicit information about a disability.” That means no questions pre-offer about number of days missed because of illness, prior workers’  comp claims, medical conditions, psychological or psychiatric conditions, medications, etc., etc. Questions like this at the pre-offer stage violate the Americans with Disabilities Act.

*Don’t ever ask about candidates’ child-bearing plans, or the lack thereof. If you ask about child-care arrangements (or reliable transportation to and from work), be sure you ask the same question(s) of all applicants.

*Focus your questions on the duties of the job and the candidate’s ability to perform the job in terms of education, skills and experience.

*Avoid making stereotypical assumptions about what a candidate can do, especially if those assumptions may be tied to a legally protected characteristic. (For example, “Sheesh, another mom – just what we need! She’ll be wanting to leave early every night to pick up the kids from day care, and she’ll want off every time they’re sick.”)

*Small talk and chit-chat in an interview are fine, but don’t pry into the candidate’s personal life – you may find out things you’d rather not have known and are illegal to consider.

*Do feel free to assess “intangibles” that are not connected with the applicant’s protected status, such as honesty, appropriate dress and grooming, cleanliness, personability, sense of humor, assertiveness, or whatever else you consider important for the candidate to fit in well at your workplace. But don’t disqualify people who don’t seem to “fit in” because of a protected status, such as national origin, age, religion, or disability.

*If you are unsure about how to handle an issue that arises in an interview, punt to your HR boss (in a nice way), and continue with the remainder of the interview.

Many thanks to the reader who sent me these excellent questions!


Here’s everything you need to know about the OFCCP’s new minimum wage rule for certain federal contractors, from Angelique Lyons.

And if you’re a federal contractor, do sign up for Cara Crotty’s webinar on the OFCCP’s new scheduling letter and itemized listing. The webinar will be from 2 to 3 p.m. Eastern on Wednesday, October 15.

Finally, please join me for a webinar on “Off-Duty Domestic Violence: What’s an Employer to Do?” with the ClearLaw Institute from 3 to 4:15 p.m. Tuesday, October 14. If you’re a Constangy client, you should have received an email with a code that will give you 35 percent off the standard price. Can’t beat it with a stick!


Image credits: All from flickr, Creative Commons license. “Help me” is by vtda.info, Beast of a Job Interview by Mike Licht, and happy guy by Greg Peverill-Conti.

An employer should never ask about disability or religion. Except when it should.

Posted in Americans with Disabilities Act, Discrimination

Everybody knows that an employer should never, ever, ever ask an applicant about religion or disability until after a conditional offer of employment has been made. And maybe not even then. Right?


Well, mostly right. But, as a couple of EEOC lawsuits show, there may be times when you have to make an exception to this rule. (Otherwise, it would be too easy for employers to stay out of legal trouble.)

The general rule, of course, is that you don’t get into these topics during the hiring process, and in fact it is usually against the law to get into these topics. But here are two situations — admittedly, rare — when you may be legally required to talk about religion or disability pre-offer.

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Colorado Supreme Court hears arguments in medical marijuana/discharge case

Posted in Drug Testing

Brandon Coats was partially paralyzed in a car crash as a teenager, using a wheelchair, and has been a medical marijuana patient since 2010 when he discovered that using pot helped calm violent seizures and muscle spasms. Coats was a telephone call-center operator with Dish Network for three years before he failed a cheek-swab random drug test in 2010Marijuana_joint and was fired. Dish Network has a zero-tolerance policy against using illegal drugs.

On Tuesday, the Colorado Supreme Court heard oral arguments in Brandon Coats’ case that may have major impact on marijuana and the workplace. Colorado voters first approved a constitutional amendment authorizing the use of medical marijuana in 2000. Marijuana for recreational use was approved by voters in 2012 and started being sold in retail shops in Colorado on April 1, 2014.

Twenty-three states and the District of Columbia now have medical marijuana laws. Washington and Colorado laws specifically state that employers do not have to accommodate employees’ marijuana use. But other states such as Arizona, Nevada, New York, Minnesota, and Delaware grant various levels of protections to medical marijuana card holders from discrimination.

Additionally, the Supreme Courts for the states of California, Washington, and Montana have all ruled that an employer has no duty to accommodate the use of an “illegal drug” such as marijuana. The fact that marijuana remains a schedule one “illegal drug” under federal law has been critical in each ruling for the employer.

Coats brought his lawsuit against Dish under Colorado’s lawful off-duty activities law, which specifically says employers cannot fire people for doing something legal on their own time. Originally the law was enacted to protect cigarette smokers and multiple states have similar laws. Both the trial judge and Colorado Court of Appeals have already ruled against Coats “legal use” argument holding that as long as marijuana is illegal under federal law the state law does not apply.

During the Tuesday Colorado Supreme Court hearing the justices did little to telegraph how they may vote. Only six of seven justices will decide the case as one recused himself because his father sits on the Colorado Court of Approval. Each side was asked to draft a proposal opinion for the justices to consider. A ruling may be months away. A tie means that the Court of Appeals ruling for Dish stands.