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Editors Column - U.S. Supreme Court Decides Abercrombie Religious Discrimination Case

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On June 1, 2015 the U.S. Supreme Court ruled in the EEOC v. Abercrombie that case that the Equal Employment Opportunity Commission was not required to prove that a Muslim applicant for employment had requested that Abercrombie & Fitch accommodate her wearing of a headscarf in order to prove that she was denied employment based on religion in violation of Title VII.  Evidence that the Company failed to hire her because it assumed (correctly) she would request such an accommodation was sufficient to prove that her religion was a motive for the decision. 

Fact of the Case:  An applicant for employment, a practicing Muslim, interviewed for a sales position with Abercrombie & Fitch wearing a headscarf.  Abercrombie & Fitch at the time had a “Look” policy that dictated that sales employees wear clothing that projected the Company’s image.  Among the prohibited items of clothing were “caps.”  There was no discussion between the interviewer and the applicant about whether she required an accommodation for her religion in the form of being permitted to wear her headscarf. 

The interviewer rated the applicant as “qualified to be hired” but after the interview, consulted with her District Manager to determine whether the headscarf would violate the Look policy.  The interviewer believed the headscarf was worn as an expression of the applicant’s religion. The District Manager said it would, and the applicant was not offered a job.  The EEOC brought suit on the applicant’s behalf, claiming that the denial of employment was intentional religious discrimination, and a jury found in her favor.  A federal appellate court, however, overturned the verdict, ruling that unless there was proof that the employer had actual knowledge of a need for a religious accommodation, a Title VII violation could not be proven.  Given that there was no discussion of the applicant’s religion or an accommodation, she could not prove actual knowledge.

The Court’s Ruling:  The Supreme Court reversed. The Court majority held that if an employer refuses to hire an individual based on its belief that she will require a religious accommodation, and she actually would need one if hired, Title VII is violated.  Proof of actual knowledge is not required.  The Court reasoned that, unlike some anti-discrimination statutes, Title VII’s “intentional discrimination provision prohibits certain motives regardless of the state of the actor’s knowledge. Motive and knowledge are separate concepts.”  The Court continued, “Thus, the rule for disparate treatment claims based on a failure to accommodate a religious practice is straightforward: An employer may not make an applicant’s religious practice, confirmed or otherwise, a factor in employment decisions.”  The Court also rejected the Company’s argument that a “neutral policy” that treats all applicants the same cannot constitute “intentional discrimination.”  Noting that this might be true for other forms of discrimination, the Court observed that Title VII imposes affirmative obligations on employers to provide special accommodations to policies for religious reasons.

Writing separately, Justice Alito took up the question that the Court majority said would not be decided because it had not been briefed: whether it is a condition of liability that the employer know or suspect that the practice it refuses to accommodate is a religious practice.  The Court majority had acknowledged it to be “arguable” that motive could not be established unless the employer at least suspected that the practice in question was religious.  Justice Alito, however, would hold this to be the case: “an employer cannot be liable for taking an adverse action because of an employee’s religious practices unless the employer knows that the employee engages in the practice for religious reasons.”   
Lessons Learned:  The Court rejected the principle a generally applicable, neutral policy can never form the basis of a claim of intentional religious discrimination.  Thus, employers that make employment decisions motivated by the belief that an individual’s religion will conflict with a company policy may be liable for intentional discrimination under Title VII, although the employer should still be able to avoid liability if it can establish that accommodating the individual’s religious practice would be an undue hardship.  Yet, by leaving unanswered the question of whether an employer must know or at least suspect that a practice is religious to establish motive, the majority has created the potential for “mischief.”  As Justice Alito pointed out, if knowledge is irrelevant then Abercrombie & Fitch would be liable to the applicant by refusing to hire her due to her headscarf even if it had absolutely no suspicion that she wore it for a religious purpose.  Does this mean that if a company does not hire an individual who says he cannot work Saturdays as required by company policy, the company is liable if the unstated reason for this refusal is the employee’s religious imperative to keep the Sabbath (the motive being a criteria that is based on religion)?  We do not think this outcome is supported by the Court’s decision, but we expect this to become an issue of dispute, and one the Supreme Court may be called upon to decide in the future.

By Don Phin, Esq

Requiring Paid Leave Use Before FMLA Leave

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Question: When an employee takes FMLA leave, may we require that the employee exhaust all available sick and vacation leave? The intent is to avoid additional vacation requests following a leave or a resignation and therefore cash out of any vacation accrual.

Answer: Federal Family and Medical Leave Act (FMLA) regulations pertaining to the substitution of paid leave are found at 29 C.F.R. § 825.207. The relevant portions are set forth below.

  • a. Generally, FMLA leave is unpaid leave. However, under the circumstances described in this section, FMLA permits an eligible employee to choose to substitute accrued paid leave for FMLA leave. If an employee does not choose to substitute accrued paid leave, the employer may require the employee to substitute accrued paid leave for unpaid FMLA leave. The term substitute means that the paid leave provided by the employer, and accrued pursuant to established policies of the employer, will run concurrently with the unpaid FMLA leave. Accordingly, the employee receives pay pursuant to the employer’s applicable paid leave policy during the period of otherwise unpaid FMLA leave. An employee’s ability to substitute accrued paid leave is determined by the terms and conditions of the employer’s normal leave policy. When an employee chooses, or an employer requires, substitution of accrued paid leave, the employer must inform the employee that the employee must satisfy any procedural requirements of the paid leave policy only in connection with the receipt of such payment. See §825.300(c). If an employee does not comply with the additional requirements in an employer’s paid leave policy, the employee is not entitled to substitute accrued paid leave, but the employee remains entitled to take unpaid FMLA leave. Employers may not discriminate against employees on FMLA leave in the administration of their paid leave policies.
  • b. If neither the employee nor the employer elects to substitute paid leave for unpaid FMLA leave under the above conditions and circumstances, the employee will remain entitled to all the paid leave which is earned or accrued under the terms of the employer’s plan.
  • c. If an employee uses paid leave under circumstances which do not qualify as FMLA leave, the leave will not count against the employee’s FMLA leave entitlement. For example, paid sick leave used for a medical condition which is not a serious health condition or serious injury or illness does not count against the employee’s FMLA leave entitlement.
  • d. Leave taken pursuant to a disability leave plan would be considered FMLA leave for a serious health condition and counted in the leave entitlement permitted under FMLA if it meets the criteria set forth in §825.112 through 825.115. In such cases, the employer may designate the leave as FMLA leave and count the leave against the employee’s FMLA leave entitlement. Because leave pursuant to a disability benefit plan is not unpaid, the provision for substitution of the employee’s accrued paid leave is inapplicable, and neither the employee nor the employer may require the substitution of paid leave. However, employers and employees may agree, where state law permits, to have paid leave supplement the disability plan benefits, such as in the case where a plan only provides replacement income for two-thirds of an employee’s salary.

When examining an employee’s need for leave under the FMLA, employers should also do a simultaneous assessment of the employer’s obligations, if any, under the Americans with Disabilities Act (ADA). For additional information, see the Equal Employment Opportunity Commission’s Enforcement Guidance: Reasonable Accommodation and Undue Hardship Under the Americans with Disabilities Act.

So you've reported an accident to OSHA: what happens next, and how do you respond?

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OSHA's "Interim Enforcement Procedures" Prioritize Its Responses to Reported Accidents, Calling for Inspections in Some Cases and Submission of the Employer's Own Accident Investigation Report in Others  
To guide the Occupational Safety and Health Administration in responding to the new requirement to report all in-patient hospitalizations, amputations, and loss of an eye within 24 hours of these events, OSHA has issued its "Interim Enforcement Procedures for New Reporting Requirements under 29 C.F.R. 1904.39." These Procedures were sent out to the OSHA Regional Administrators and State Designees in anticipation of a large increase in the number of reported accidents in 2015. The Procedures include criteria for "triaging" employers' reports to determine which reports to respond to with an on-site inspection and which to address through the Agency's new "Rapid Response Investigation" process. The RRI process requires the reporting employer to conduct and submit the results of its own accident investigation to OSHA. According to OSHA, the Procedures are only an "interim" enforcement plan that the Agency will evaluate and adjust based on its experience this year under the new accident reporting rule, 29 CFR §1904.39. 
OSHA Triage of Accident Reports 
To determine whether to conduct an on-site inspection or an RRI, the Interim Enforcement Procedures instruct the OSHA Area Offices to sort the employers' accident reports into one of three categories. Category 1 is for reports that require an on-site OSHA inspection. For Category 2 reports, the Procedures authorize and encourage the OSHA Area Office to conduct an inspection, but the Area Director is allowed to exercise discretion and decide not to conduct an on-site inspection. An on-site inspection is not warranted for Category 3 reports, but the Area Director will require the employer to submit an accident investigation report explaining how the accident occurred and how such incidents can be prevented in the future. 
The criteria for the three Categories are as follows: 
Category 1 
These reported accidents will result in an on-site inspection: 
(a) All fatalities and reports of 2 or more in-patient hospitalizations 
(b) Any injury involving a worker under 18 
(c) Known history of multiple injuries (same or similar events in previous 12 months) 
(d) Repeat offenders (history of egregious, willful, failure-to-abate, or repeated citations) 
(e) The employer has been placed in OSHA's Severe Violator Enforcement Program (SVEP), or an OSHA National or Local Emphasis Program (NEP/LEP) applies 
(f) Any imminent danger. 
Category 2 
For these reported accidents, an inspection may be conducted if a number of the questions below can be answered "yes." This list is not exhaustive, however, and there may be other criteria particular to the incident that could be considered by the OSHA Area Director. 
(a) Are employees still being exposed to the conditions underlying the hazards that resulted in the injury or illness? 
(b) Was the incident the result of a safety program failure such as Permit-RequiredConfined Spaces (PRCS), Lockout/Tagout (LOTO), Process Safety Management (PSM), etc.? 
(c) Was the employee exposed to a serious hazard (i.e., explosive materials, combustible dust, falls or heat)?  
(d) Were temporary workers injured or made ill?  
(e) Has another government agency (federal, state, or local) made a referral?  
(f) Does the employer have prior OSHA inspection history?  
(g) Is there a Whistleblower complaint/inspection pending?  
(h) Is the employer a Cooperative Program Participant, e.g., VPP, OSHA Strategic partnerships, SHARP or an active Alliance member? 
(i) Did the incident involve health issues such as chemical exposures, heat stress, etc.? 
Category 3 
An on-site inspection will not ordinarily occur if the answers to all of the above Category 2 questions are "no." As will be discussed in more detail below, the OSHA Area Office will require submission of an accident investigation report in Category 3 cases. 
To help make sure that OSHA obtains enough information to triage the incident into the appropriate Category, the Interim Enforcement Procedures include a detailed questionnaire of nearly 30 questions that the OSHA official taking the employer's report is to go over with the employer during the initial telephone call. See attached Appendix 1 from the Procedures. These questions go into much greater depth about the injured employee, the workplace, and the incident (including whether there have been similar accidents or near misses) than the eight items of information that the OSHA regulation itself requires to be reported. See 29 C.F.R. §1904.39(b)(2). 
On-Site OSHA Inspections 
If OSHA determines that an on-site inspection of the reporting employer is warranted, the Interim Enforcement Procedures state that the inspection "will be initiated as soon as resources permit and will normally be initiated within five working days" of the employer's report of the incident. Though not addressed in the Procedures, the scope of the inspection should be limited to the circumstances of the accident that was reported. But even if the inspection starts out being limited to the scope of the reported accident, it can be broadened if the OSHA Compliance Officer sees or hears about any other hazardous or non-compliant condition during the course of the inspection. 
Rapid Response OSHA Investigations 
If the OSHA Area Director decides not to conduct an on-site inspection, OSHA may initiate a Rapid Response Investigation based on the Area Director's belief that there is a "reasonable basis that a violation or hazard exists." The Interim Enforcement Procedures explain that for incidents that have been designated for an RRI, a representative from the OSHA Area Office will call the employer contact identified by the employer when the accident was called in to OSHA. According to a "script" that the Interim Enforcement Procedures provide for the Area Office call, the employer is to be told to "find out what led to the incident and what safety modifications can you make now to prevent future injuries to other workers." Employers are also to be directed to investigate the "root causes" of the incident.

The OSHA Area Office call is then to be followed up with a faxed letter that asks the employer to "immediately conduct your own investigation into the reported incident and make any necessary changes to avoid further incidents." The OSHA letter directs the employer to document both its investigation findings and the corrective actions taken in response, and to submit that information to OSHA, either on the employer's own incident investigation form or on the "Non-Mandatory Incident Investigation" form that OSHA attaches to its letter. Significantly, and as discussed further below, both OSHA's letter and its attached incident investigation form ask for the employer to investigate and identify the root cause(s) of the accident, which OSHA describes as "both the immediate and the underlying causes of the incident." OSHA's form even includes space for witnesses to be identified and for their description of the incident to be documented. In addition, employers must send OSHA documentation showing that the condition that led to the injury has been abated.

According to the Interim Enforcement Procedures, OSHA's telephone call to the employer should take place within one day of OSHA's receipt of the employer's initial accident report, and OSHA's letter should then require the employer to submit the written results of its investigation of the reported incident within the next five days. OSHA recognizes, however, that the employer may ask for an extension of that time period for "complicated events." Once the employer has submitted its incident investigation report to OSHA, the Agency will evaluate the report to determine whether to conduct an inspection in order to perform its own investigation and root cause analysis of the incident, to verify that the employer has abated the root cause(s) identified in its report by taking the actions indicated, or simply to investigate further.  
Employer Response 
In responding to an OSHA RRI, it is important for employers to understand that the accident report submitted to OSHA can be used against them if OSHA subsequently decides to inspect and issue a citation related to the incident. Specifically, the root cause(s) identified in an employer's report can amount to an admission of a violation, such as failure to conduct required training or repair a faulty safety device, and in some cases could even support characterization of the violation as "willful." This seems to be exactly the kind of information that OSHA is asking for in the root cause section of the "Non-Mandatory Incident Investigation" form attached to the letter it sends to employers. That form asks the employer to state not only what the root causes were, but to include "why" those causal conditions were present. The root cause section of OSHA's form gives the following examples and guidance on what should be written: 
If safety procedures were not being followed, why were they not being followed? If a machine was faulty or a safety device failed, why did it fail? It is common to find factors that contributed to the incident in several of these areas: equipment/machinery, tools, procedures and policies, training or lack of training, work environment. If you identify these factors, try to determine why these factors were not addressed before the incident. 
Root-cause analysis is by definition designed to uncover management's shortcomings or deficiencies and, if shared with OSHA, provides a blueprint for citations. Obviously, if an employer provides OSHA with an admission that it was not compliant with an OSHA requirement, or worse, knew before the accident that it was not in compliance, the employer has walked itself into a Serious or even Willful citation. And, maybe of even greater concern is that these responses to OSHA are discoverable by plaintiffs' attorneys seeking to circumvent the workers' compensation exclusive remedy bar and sue the employer for an employee's injury. Once the report is provided, it would be extremely difficult for the employer later to contradict its own statement and successfully contest an OSHA citation for the alleged violation.

For this reason, we advise that employers simply respond to OSHA in a letter that addresses the company's investigation, conclusions, and the corrective action(s) taken. These letters should be very carefully crafted to avoid admissions to the extent possible. We recommend that, in all but the simplest cases, employers carefully review their response letters with upper management and legal counsel prior to submitting them to OSHA, even if an extension of the due date has to be obtained to allow time for such review. In cases of a particularly severe injury, consideration should also be given to retaining an attorney to conduct the accident investigation under the attorney-client privilege or work product doctrine. And finally, in all cases, it would be wise to prepare for the possibility that OSHA will conduct an on-site inspection in response to the employer's letter.  
By David Smith and William K. Principe Atlanta Office of Constangy, Brooks, Smith & Prophete, LLP  

Workplace Deaths Created by Poor Safety Practices

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You would think that by 2015 employers would have realized that unsafe working conditions are dangerous, in violation of the law, can kill people and leave the family left behind in poverty. But that’s not the case. Plenty of workers still get killed on the job…and for no good reason. If you have any doubts here are just some of the workplace fatalities that occurred  in June of 2015
  • Open-flame heater likely cause of Coalgate oil rig fire; 3 deaths and serious injuries to 2 others
  • 62-year-old worker dies after manufacturer ignores safety hazards
  • 7,600-pound conveyor crushes worker after weld failure - a preventable death, says OSHA
  • 7-ton buoy hits, kills 2 workers and injures 2 others at Pearl Harbor naval facility

Not only are employers subject to OSHA fines and work comp claims, the employee and/or their family may sue directly if there is an exception to the work comp exclusivity rule. In most states  a worker may sue directly where there was concealment of a safety hazard, removal of a safety guard or other intentional malfeasance. Florida’s statute is an example. Pursuant to section 440.011(1)(b), Florida Statutes, in order for an employee to successfully prove an intentional tort as an exception to the exclusive remedy of workers’ compensation, the employee must prove, with clear and convincing evidence, the below-required elements of an intentional tort:

  1. The employer deliberately intended to injury the employee, or,
  2. The employer,
  • Engaged in conduct that it knew, based upon explicit warnings specifically identifying a known danger, was virtually certain to result in death or injury to the employee and,
  • The employee was not aware of the risk because the danger was not apparent and,
  • The employer deliberately concealed or misrepresented the danger so as to prevent the employee from exercising an informed judgment and
  • The conduct was a legal cause of the employees’ injury or death.

Other statutes are not as protective of employers. As a trend, where legislation reduces benefits, the courts have chipped away at the exclusivity rule, ruling there has been a change in the “bargain” that comes with exclusivity. 

Bottom line: regardless of what the precise law is in your state, a safe workplace culture protects workers, the company brand and the bottom line. There is no substitute for taking the proper steps to create a safe workplace including the training of managers, supervisors, foreman, workers.