What Are the Top Ten Cited Violations By OSHA?

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By Kathleen J. Jennings (kjj@wimlaw.com)

Everybody likes a good Top Ten list, and those of us who follow OSHA like to know what types of violations make it to OSHA’s Top Ten list.

So here we go–the following are the Top Ten Most Cited Violations by OSHA in 2021:

1) Fall Protection: 5,295 violations

2) Respiratory Protection: 2,527

3) Ladders: 2,026

4) Scaffolding: 1,948

5) Hazard Communication: 1,947

6) Lockout/Tagout: 1,698

7) Fall Protection – Training Requirements: 1,666

8) Personal Protective and Lifesaving Equipment – Eye and Face Protection: 1,452

9) Powered Industrial Trucks : 1,420

10) Machine Guarding: 1,113

Note that fall protection has held the top spot on the list for eleven straight years. The violation that moved up the charts this year was respiratory protection, possibly driven by COVID related issues. Hazard communication (Hazcom) fell from second to fifth.

Employers need to regularly check their worksites to make sure that workers are protected from fall hazards. OSHA requires that fall protection be provided at elevations of four feet in general industry workplaces, five feet in shipyards, six feet in the construction industry and eight feet in longshoring operations. In addition, OSHA requires that fall protection be provided when working over dangerous equipment and machinery, regardless of the fall distance.

Furthermore, to prevent employees from being injured from falls, employers must:

  • Guard every floor hole into which a worker can accidentally walk (using a railing and toe-board or a floor hole cover).
  • Provide a guard rail and toe-board around every elevated open sided platform, floor or runway.
  • Regardless of height, if a worker can fall into or onto dangerous machines or equipment (such as a vat of acid or a conveyor belt) employers must provide guardrails and toe-boards to prevent workers from falling and getting injured.
  • Other means of fall protection that may be required on certain jobs include safety harness and line, safety nets, stair railings and hand rails.

And make sure that employees are trained in the use of any safety harnesses and actually utilize them. I have visited a site where a worker fell 15 feet onto a concrete floor (and survived). His employer had provided a safety harness, but he never bothered to put it on. A supervisor or manager should conduct regular checks of workers to verify that they are using fall protection when necessary.

Kathleen J. Jennings is an attorney licensed to practice law in Georgia and New York. She graduated from Cornell University, College of Arts & Sciences, with distinction and New York University School of Law. She is a principal in the Atlanta office of Wimberly, Lawson, Steckel, Schneider, & Stine, P.C. and defends employers in employment matters, such as sexual harassment, discrimination, Wage and Hour, OSHA, restrictive covenants, and other employment litigation and provides training and counseling to employers in employment matters. She can be contacted at kjj@wimlaw.com.

Copyright 2021 Kathleen Jennings

The materials available at this blog site are for informational purposes only and not for the purpose of providing legal advice. You should contact your attorney to obtain advice with respect to any particular issue or problem. Use of and access to this Web site or any of the e-mail links contained within the site do not create an attorney-client relationship between Kathleen J. Jennings and the user or browser. The opinions expressed at or through this site are the opinions of the individual author.

Dealing With Religious Objections to a COVID-19 Vaccine Requirement

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By Kathleen J. Jennings (kjj@wimlaw.com)

In our discussions of rules mandating COVID-19 vaccines, we’ve mentioned the two possible exemptions to a vaccine requirement: disability and religion. Let’s break down the religious exemption.

Under Title VII of the 1964 Civil Rights Act, a covered employer is required to “reasonably accommodate” an employee’s sincerely held religious beliefs or practices, unless such an accommodation would create an “undue hardship” for its business.

EEOC guidance explains that the definition of religion is broad and protects beliefs, practices, and observances with which the employer may be unfamiliar. Therefore, the employer should ordinarily assume that an employee’s request for religious accommodation is based on a sincerely held religious belief, practice, or observance. However, if an employee requests a religious accommodation, and an employer is aware of facts that provide an objective basis for questioning either the religious nature or the sincerity of a particular belief, practice, or observance, the employer would be justified in requesting additional supporting information. As an example: if an employee has always taken a flu shot, but then claims that they have a religious objection to a COVID-19 vaccine, that is objective evidence that the religious objection to the COVID-19 vaccine is not sincere.

If an employee makes an objection to the vaccine based upon a religion that you have never heard of, it is important not to dismiss the employee or his/her stated religion out of hand or make any negative comments about them. In other words–don’t buy yourself a claim of religious discrimination or harassment. On the other hand, don’t be afraid to do some research into any unknown religion.

If an employer determines that a religious objection to the COVID-19 vaccine is sincere, then the employer must determine whether it can reasonably accommodate the unvaccinated employee. Under Title VII, an employer should thoroughly consider all possible reasonable accommodations for religious accommodation for Covid-19 vaccination requirements, including telework and reassignment. Other employee accommodations include: wearing a face mask; working a modified shift; and being periodically tested for Covid-19.

As with reasonable accommodation requests made pursuant to the ADA, requests for religious accommodations must be analyzed on a case by case basis. Document the request as well as the process of reaching a decision on the requested accommodation.

However, an employer can lawfully reject a requested accommodation if it would cause an undue hardship, which is “more than a trivial cost to its operations.” Applying this standard to COVID-19 vaccination requirements, employers have argued that allowing COVID-19 to spread among employees and the public would be an undue hardship, and therefore, there is no reasonable alternative to vaccination of all employees in jobs where they have contact with other employees or the public, and the spread of COVID-19 cannot be otherwise mitigated.

Pro Tip: employers need to develop a process and designate responsible personnel to handle employee requests for religious exemptions from vaccine requirements.

Kathleen J. Jennings is an attorney licensed to practice law in Georgia and New York. She graduated from Cornell University, College of Arts & Sciences, with distinction and New York University School of Law. She is a principal in the Atlanta office of Wimberly, Lawson, Steckel, Schneider, & Stine, P.C. and defends employers in employment matters, such as sexual harassment, discrimination, Wage and Hour, OSHA, restrictive covenants, and other employment litigation and provides training and counseling to employers in employment matters. She can be contacted at kjj@wimlaw.com.

Copyright 2021 Kathleen Jennings

The materials available at this blog site are for informational purposes only and not for the purpose of providing legal advice. You should contact your attorney to obtain advice with respect to any particular issue or problem. Use of and access to this Web site or any of the e-mail links contained within the site do not create an attorney-client relationship between Kathleen J. Jennings and the user or browser. The opinions expressed at or through this site are the opinions of the individual author.

Protected Concerted Activity in the Era of COVID-19: What Employers Need to Know

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By Kathleen J. Jennings (kjj@wimlaw.com)

The National Labor Relations Board (NLRB) is one of the federal agencies that many employers do not have on their radar. The NLRB is most closely associated with union organizing efforts and collective bargaining agreements between unions and companies. In 2020, only 10.8 percent of wage and salary workers in the US were members of unions (according to the Bureau of Labor Statistics), so the vast majority of companies may think that the NLRB will not bother with them. And they would be wrong.

The National Labor Relations Act (NLRA), signed into law by President Franklin Roosevelt on July 5, 1935, is the federal statute administered and enforced by the NLRB. Most employees in the private sector are covered by the NLRA. The NLRA guarantees the right of employees to organize and bargain collectively with their employers, and to engage in other protected concerted activity. It’s the “other protected concerted activity” that even non-union employers need to be aware of.

Basically, the NLRA gives employees the right to act together to try to improve their pay and working conditions, with or without a union. If employees are fired, suspended, or otherwise penalized for taking part in protected group activity, they can file a complaint with the NLRB. The NLRB has the power to investigate and take action to make an aggrieved employee whole for any losses due to the employer’s violation of the NLRA (think lost wages and benefits for a terminated employee).

The type of conduct that falls under the definition of “protected concerted activity” is very broad. To be protected conduct, employee conduct must be both “concerted” and for “mutual aid and protection.” But individual conduct or speech can be considered “concerted;” it is well-established that concerted activity includes statements by a lone employee addressing coworkers that seek to initiate, induce, or prepare for group action or, or statements directed to management communicating a truly group complaint.

Bottom line: if employees are talking about anything related to work, it’s probably protected by the NLRA. For example, any workplace rule that prohibits employees from discussing their rates of pay with one another violates the NLRA.

A practical example of what constitutes “protected concerted activity” in the era of COVID-19 was recently addressed by the NLRB in an Advice Memorandum. An employee of a company that sells replacement windows posted a message about COVID-19 precautions on a group work chat maintained by the employer on a third-party messaging application and accessed from personal equipment: “[i]n the last three weeks, our case count has spiked in parallel timing with the last Phase of reopening.” This started a discussion among other employees offering their opinions about the effectiveness of COVID precautions.

The employee was removed from the group chat, then reinstated to the chat with the admonition that he not post anything about COVID-19. The employee eventually refused to report to work on the ground that “the imminent threat to safety caused by the recent spike in area COVID-19 cases, the Employer’s inaction in mitigating the threat, and the inability to discuss these dangers with coworkers prohibited him from performing his job in good faith.” On these facts, the NLRB concluded that the Employer had violated the NLRA by removing the employee from the group chat, making statements that restrained the employee from communicating about his work-related concerns, and constructively discharging the employee. Going forward, the NLRB will issue a complaint against the Employer, and a hearing will be conducted to determine whether the employee is entitled to reinstatement to his job and backpay.

The Takeaway: Many employees have very strong opinions about all things COVID, and they are eager to share them with others. Employers may wish to limit such discussions so that they do not interfere with work. However, when those discussions touch on workplace issues, such as workplace mitigation procedures, workplace vaccination policies, or workplace safety, employers need to tread very lightly or risk an NLRB complaint (or even worse, an OSHA citation for retaliating against an employee who complains about workplace safety issues).

Kathleen J. Jennings is an attorney licensed to practice law in Georgia and New York. She graduated from Cornell University, College of Arts & Sciences, with distinction and New York University School of Law. She is a principal in the Atlanta office of Wimberly, Lawson, Steckel, Schneider, & Stine, P.C. and defends employers in employment matters, such as sexual harassment, discrimination, Wage and Hour, OSHA, restrictive covenants, and other employment litigation and provides training and counseling to employers in employment matters. She can be contacted at kjj@wimlaw.com.

Copyright 2021 Kathleen Jennings

The materials available at this blog site are for informational purposes only and not for the purpose of providing legal advice. You should contact your attorney to obtain advice with respect to any particular issue or problem. Use of and access to this Web site or any of the e-mail links contained within the site do not create an attorney-client relationship between Kathleen J. Jennings and the user or browser. The opinions expressed at or through this site are the opinions of the individual author.

It’s Not A Good Idea To Admit To Discrimination in a Text Message

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By Kathleen J. Jennings (kjj@wimlaw.com)

Sometimes, I just have to shake my head when I read about an employment decision gone horribly wrong. And this one is really a head shaker: according to a lawsuit just filed by the EEOC, a manager at a Franklinton, Louisiana, restaurant fired a newly-hired worker after sending her a social media message saying, “I’m not gonna be able to hire you. I didn’t realize that you were expecting a baby.” When the worker reapplied for work several months later, the restaurant wrote “pregnant” on her application and did not rehire her.

Now, this is just the EEOC’s side of the story, so the restaurant may have an entirely different version of the facts. But I find it unlikely that the EEOC is going to fabricate the existence of a social media message wherein the manager admits that he is discriminating on the basis of pregnancy, which is a violation of Title VII of the Civil Rights Act.

Here’s the thing: it is unlawful for an employer to fire an employee simply because she is pregnant. Furthermore, an employer cannot make assumptions about what a pregnant worker can or cannot do.

And please–do not fire (or unhire) employees via social media messages or text messages. Just don’t. It is not professional, and the shorthand often utilized in those media can confuse your message. Any time you put something in writing regarding an important employment decision, such as hiring, firing, promotion, or discipline, expect that it will be shown to an attorney, maybe the EEOC, or ultimately, a jury. How will your message look to someone who doesn’t know you or your business?

Having an attorney review these types of communications in advance will save the company money in the long run. Let’s face it: if the restaurant manager above had let the company’s attorney review his social media message to the pregnant worker before he sent it, I like to think that there is a high probability that the message would have said something completely different, and maybe the EEOC wouldn’t be suing the company. So asking an attorney to review these communications in advance can be money well spent.

Kathleen J. Jennings is an attorney licensed to practice law in Georgia and New York. She graduated from Cornell University, College of Arts & Sciences, with distinction and New York University School of Law. She is a principal in the Atlanta office of Wimberly, Lawson, Steckel, Schneider, & Stine, P.C. and defends employers in employment matters, such as sexual harassment, discrimination, Wage and Hour, OSHA, restrictive covenants, and other employment litigation and provides training and counseling to employers in employment matters. She can be contacted at kjj@wimlaw.com.

Copyright 2021 Kathleen Jennings

The materials available at this blog site are for informational purposes only and not for the purpose of providing legal advice. You should contact your attorney to obtain advice with respect to any particular issue or problem. Use of and access to this Web site or any of the e-mail links contained within the site do not create an attorney-client relationship between Kathleen J. Jennings and the user or browser. The opinions expressed at or through this site are the opinions of the individual author.

How To Handle The Employee Who Refuses To Get Vaccinated for COVID-19

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By Kathleen J. Jennings (kjj@wimlaw.com)

Yesterday, the Biden administration announced that the Labor Department will issue a regulation requiring companies with 100 or more employees to ensure their workforces are either “fully vaccinated” or test negative for Covid-19 at least once a week. The regulation will be issued by OSHA, most likely in the form of an Emergency Temporary Standard (ETS). When enforcing the ETS, OSHA could fine noncomplying businesses up to $14,000 per violation. We anticipate that OSHA will issue the ETS in the next few weeks. We also anticipate that there will be challenges made to the ETS and the authority of the federal government to mandate vaccines.

This is in addition to the expansion of the emergency regulations requiring vaccinations for nursing home workers to include hospitals, dialysis facilities, ambulatory surgical settings, and home health agencies, among others, as a condition for participating in the Medicare and Medicaid programs.

The bottom line is that over 80 million private sector workers are expected to be covered by a COVID-19 vaccine mandate. And some of those workers are going to refuse to get vaccinated, mandate or not. How does an employer deal with the employee who refuses to be vaccinated?

First, find out if the employee has a legitimate reason to refuse to be vaccinated. Legitimate reasons are generally limited to medical (supported by documentation) or a sincerely held religious belief. “I don’t believe in vaccines” is not enough to qualify as a sincerely held religious belief.

Second, if there is no legitimate reason for the employee to refuse a vaccine, the employer should clearly communicate the consequences of not becoming fully vaccinated by a specific date. Can that consequence be termination? Absolutely. Can you require the employee to pay for weekly COVID testing? Possibly. Or require unvaccinated employees to pay a surcharge on their health insurance? Yes–at least one major employer is already doing it.

As with any workplace rule, an employer needs to be consistent in its enforcement of the vaccine mandate or risk claims of discrimination.

What complicates the situation is the current labor shortage in a number of industries. Many businesses cannot afford to terminate all vaccine refusers because they already do not have enough workers. But will there be enough COVID-19 testing facilities to meet the needs of employers who need to test unvaccinated employees weekly? That remains to be seen.

This is a very fluid situation, and I will continue to provide updates.

Kathleen J. Jennings is an attorney licensed to practice law in Georgia and New York. She graduated from Cornell University, College of Arts & Sciences, with distinction and New York University School of Law. She is a principal in the Atlanta office of Wimberly, Lawson, Steckel, Schneider, & Stine, P.C. and defends employers in employment matters, such as sexual harassment, discrimination, Wage and Hour, OSHA, restrictive covenants, and other employment litigation and provides training and counseling to employers in employment matters. She can be contacted at kjj@wimlaw.com.

Copyright 2021 Kathleen Jennings

The materials available at this blog site are for informational purposes only and not for the purpose of providing legal advice. You should contact your attorney to obtain advice with respect to any particular issue or problem. Use of and access to this Web site or any of the e-mail links contained within the site do not create an attorney-client relationship between Kathleen J. Jennings and the user or browser. The opinions expressed at or through this site are the opinions of the individual author.

Lawfully Handling Employee Mental Health Issues

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By Kathleen J. Jennings (kjj@wimlaw.com)

Thanks to the effects of a worldwide pandemic and revelations by high profile athletes, the issue of mental health is being openly discussed. Such discussions may even happen in your workplace. So how do you deal with employees who reveal that they are struggling with mental health issues, either their own or those of a close family member?

As a starting point, employers that are covered by the Americans WIth Disabilities Act (ADA) cannot discriminate against employees who suffer from mental health conditions that would be considered “disabilities.” Morever, the ADA prohibits employment discrimination against a person, whether or not he or she has a disability, because of his or her known relationship or association with a person with a known disability.

The ADA also protects employees from harassment on the basis of their mental health disabilities. Additionally, the ADA imposes a duty on covered employers to determine whether they can provide reasonable accommodations to disabled employees. An employer is not required to provide an accommodation that would impose an undue hardship.

These are complicated issues, and the EEOC has provided detailed (albeit not up to date–it was issued in 1997) Enforcement Guidance on the Americans With Disabilities Act and Psychiatric Disabilities. More recently, in 2016, the EEOC issued a technical assistance document targeted toward employees entitled “Depression, PTSD, & Other Mental Health Conditions in the Workplace: Your Legal Rights.” This is something your employees may review if they feel like they are not being treated lawfully, so it is worth the time for employers to review it as well.

Every situation is different, so an employer should deal with employees with mental health disabilities on a case by case basis and with the assistance of qualified counsel. However, the following are some general guidelines:

  • If an employee reveals that he or she has been diagnosed with a mental illness, that information must be kept confidential.
  • There are very limited circumstances under which an employer can ask an employee if he or she is mentally ill. Before making such an inquiry, consult with counsel.
  • It is inappropriate for anyone to refer to another employee as “crazy,” “nutcase,” “cuckoo for coco puffs,” “insane,” or other types of derogatory words and phrases. If the use of such terms is considered to be severe or pervasive, the employer could be liable for harassment. Your harassment prevention training should cover this issue.
  • Some examples of possible accommodations for employees with mental health disabilities include altered break and work schedules (e.g., scheduling work around therapy appointments), quiet office space or devices that create a quiet work environment, changes in supervisory methods (e.g., written instructions from a supervisor who usually does not provide them), specific shift assignments, and permission to work from home.
  • The Family and Medical Leave Act may come into play, if the employer and employee are covered by it.

Most of all, a little compassion goes a long way.

Kathleen J. Jennings is an attorney licensed to practice law in Georgia and New York. She graduated from Cornell University, College of Arts & Sciences, with distinction and New York University School of Law. She is a principal in the Atlanta office of Wimberly, Lawson, Steckel, Schneider, & Stine, P.C. and defends employers in employment matters, such as sexual harassment, discrimination, Wage and Hour, OSHA, restrictive covenants, and other employment litigation and provides training and counseling to employers in employment matters. She can be contacted at kjj@wimlaw.com.

Copyright 2021 Kathleen Jennings

The materials available at this blog site are for informational purposes only and not for the purpose of providing legal advice. You should contact your attorney to obtain advice with respect to any particular issue or problem. Use of and access to this Web site or any of the e-mail links contained within the site do not create an attorney-client relationship between Kathleen J. Jennings and the user or browser. The opinions expressed at or through this site are the opinions of the individual author.

Can An Employer Fire Employees Who Refuse To Come Back to the Office?

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By Kathleen J. Jennings (kjj@wimlaw.com)

As COVID restrictions ease, many employers are deciding whether to require employees who have been working remotely to come back to the office. So can an employer fire employees who refuse to come back to the office? Yes–with some important exceptions.

Let’s face it, we have learned over the past year that remote work has some advantages. No commute, no need to dress up and put on makeup very day (unless there is a Zoom meeting), no uncomfortable shoes, and you can fix your own pretty inexpensive lunch. And that super-chatty co-worker can’t stop by and take up your time with another story about his cats. But there are disadvantages as well. It’s hard to have a consistent corporate culture when employees are not in the same place. Employees may not feel connected to their co-workers because they don’t have the water cooler or break room conversations. Mental health issues have arisen for people who have felt lonely or isolated during remote work. And we cannot underestimate the value of face-time in furthering career advancement. The bottom line: some people thrive in a remote work setting, and some people don’t. Some people simply prefer to be in an office setting with co-workers.

If an employer decides that it wants employees back in the office, it can generally terminate employees who refuse to give up their remote work lifestyles; it is insubordination for an employee to refuse a reasonable directive of her/his employer. However, and this is a big however, if an employer is covered by the Americans With Disabilities Act, it may need to consider whether allowing a disabled employee to continue to work remotely is considered a reasonable accommodation. For example, in Massachusetts, a worker with asthma sued their employer regarding a work from home accommodation, and the federal district court allowed the case to go forward.

The success of remote work in the past year or so will make it more difficult for an employer to convince a court that working remotely is not a “reasonable” accommodation or that working at a particular location is an “essential function” of the job. It’s a good idea to consult an attorney in this situation.

Just because you CAN do something does not mean that you must do it. There are going to be some folks who feel so strongly about working remotely that they are willing to quit rather than return to the office. Or maybe they still don’t have reliable child care. Is it worth losing employees, especially valuable employees, over this issue? How easily will you be able to replace them?

And finally–if you want to avoid claims for discrimination on the basis of characteristics other than disability, you’d better have some valid, non-discriminatory reasons for allowing some employees to work remotely while others are required to go into the office. Don’t play favorites.

Kathleen J. Jennings is an attorney licensed to practice law in Georgia and New York. She graduated from Cornell University, College of Arts & Sciences, with distinction and New York University School of Law. She is a principal in the Atlanta office of Wimberly, Lawson, Steckel, Schneider, & Stine, P.C. and defends employers in employment matters, such as sexual harassment, discrimination, Wage and Hour, OSHA, restrictive covenants, and other employment litigation and provides training and counseling to employers in employment matters. She can be contacted at kjj@wimlaw.com.

Copyright 2021 Kathleen Jennings

The materials available at this blog site are for informational purposes only and not for the purpose of providing legal advice. You should contact your attorney to obtain advice with respect to any particular issue or problem. Use of and access to this Web site or any of the e-mail links contained within the site do not create an attorney-client relationship between Kathleen J. Jennings and the user or browser. The opinions expressed at or through this site are the opinions of the individual author.

Think Before You Require Your Employees to Sign Non-compete Agreements

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By Kathleen J. Jennings (kjj@wimlaw.com)

Today, the President issued an Executive Order broadly tackling the issue of competition in the marketplace. One of the particular issues that the FTC has been tasked with is to restrict the use of non-competition agreements that have become common in certain industries and limit worker mobility. In addition, several states have enacted laws that restrict the use of non-competition agreements, especially for lower level employees. Nevertheless, there may be situations in which it is prudent for an employer to require some employees to sign non-competition agreements. As a practical proposition, such agreements are useful if an employer wants to protect something valuable that could give a competitor an unfair advantage.

Generally, non-competition agreements are governed by state laws. Every state is different, so if you decide to use non-competition agreements, it is best to have them drafted by an attorney who practices in that area. Furthermore, if your company has employees working in different states, you may need to tailor the agreements to meet the requirements of the state in which an employee works. Even the choice of which law to apply to a particular agreement will depend on a state’s law. Complicated? Yes–that’s why an attorney should draft these agreements.

Non-competition agreements are considered restraints on trade, so the chances that one will be enforced by a court can depend on what the agreement is designed to protect. Valid protectable interests include trade secrets, confidential information, confidential customer lists or databases, and even the company’s employees. The greater the measures a company takes to protect certain information from being divulged, the more likely it will be found to be a protectable interest. Conversely, if the information or the names of the company’s main customers can be readily found on the internet, they are not likely to be found to be protectable. If a company makes a big investment in employee training, it may have an interest in preventing those employees from taking that investment over to a competitor. Again, state law will determine what a protectable interest may be.

High level management employees or employees with specialized knowledge are more likely to have access to information about the company that could provide an advantage to a competitor and are the best candidates for these types of agreements. However, the agreements must be narrowly enough drawn so that the employee is still able to make some kind of living while any restrictions are in place.

Pro Tip: The stricter scrutiny being placed on non-competition agreements means that the tactic of making all employees sign these types of agreements simply to scare them from going to work for competitors, even when the employer knows they will not be enforced, may get an employer in legal hot water.

Kathleen J. Jennings is an attorney licensed to practice law in Georgia and New York. She graduated from Cornell University, College of Arts & Sciences, with distinction and New York University School of Law. She is a principal in the Atlanta office of Wimberly, Lawson, Steckel, Schneider, & Stine, P.C. and defends employers in employment matters, such as sexual harassment, discrimination, Wage and Hour, OSHA, restrictive covenants, and other employment litigation and provides training and counseling to employers in employment matters. She can be contacted at kjj@wimlaw.com.

Copyright 2021 Kathleen Jennings

The materials available at this blog site are for informational purposes only and not for the purpose of providing legal advice. You should contact your attorney to obtain advice with respect to any particular issue or problem. Use of and access to this Web site or any of the e-mail links contained within the site do not create an attorney-client relationship between Kathleen J. Jennings and the user or browser. The opinions expressed at or through this site are the opinions of the individual author.

EEOC Issues Updated Guidance on Avoiding Discrimination Against Transgender Employees

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By Kathleen J. Jennings (kjj@wimlaw.com)

Last week, on the first anniversary of the U.S. Supreme Court’s decision in Bostock v. Clayton County, in which the Court held that Title VII’s prohibition on discrimination on the basis is “sex” encompasses sexual orientation and transgender status, the EEOC issued some updated guidance regarding the treatment of transgender employees in the workplace. “All people, regardless of sexual orientation and gender identity, deserve an opportunity to work in an environment free from harassment or other discrimination,” EEOC Chair Charlotte A. Burrows said.

This new guidance is considered controversial, especially by social conservatives, because of both the substance and the way that it was announced. The substance addresses things such as dress codes, bathrooms, showers, and pronouns. And the guidance was issued without a vote by the five member bipartisan EEOC panel, which currently has a 3-2 Republican majority, resulting in three very unhappy Commissioners.

Keep in mind that the publication in itself does not have the force and effect of law and is not meant to bind the public in any way. Nevertheless, this guidance tells us the position the EEOC will take in response to EEOC Charges filed by transgender employees. EEOC guidance also can influence court decisions.

What kind of guidance did the EEOC offer to us? Here are some highlights.

Dress codes:

May a covered employer require a transgender employee to dress in accordance with the employee’s sex assigned at birth?

No. Prohibiting a transgender person from dressing or presenting consistent with that person’s gender identity would constitute sex discrimination.

Bathrooms, showers, locker rooms:

Does an employer have the right to have separate, sex-segregated bathrooms, locker rooms, or showers for men and women?

Yes. Courts have long recognized that employers may have separate bathrooms, locker rooms, and showers for men and women, or may choose to have unisex or single-use bathrooms, locker rooms, and showers. The Commission has taken the position that employers may not deny an employee equal access to a bathroom, locker room, or shower that corresponds to the employee’s gender identity. In other words, if an employer has separate bathrooms, locker rooms, or showers for men and women, all men (including transgender men) should be allowed to use the men’s facilities and all women (including transgender women) should be allowed to use the women’s facilities.

Pronouns:

Could use of pronouns or names that are inconsistent with an individual’s gender identity be considered harassment?

Yes, in certain circumstances. Unlawful harassment includes unwelcome conduct that is based on gender identity. To be unlawful, the conduct must be severe or pervasive when considered together with all other unwelcome conduct based on the individual’s sex including gender identity, thereby creating a work environment that a reasonable person would consider intimidating, hostile, or offensive. In its decision in Lusardi v. Dep’t of the Army, the Commission explained that although accidental misuse of a transgender employee’s preferred name and pronouns does not violate Title VII, intentionally and repeatedly using the wrong name and pronouns to refer to a transgender employee could contribute to an unlawful hostile work environment.

Basically, the EEOC is telling employers to treat transgender employees in accordance with their gender identity, which is simply a matter of respect. However, employers should anticipate resistance from some employees to these guidelines and deal with it accordingly, or possibly face an EEOC Charge or a lawsuit.

Kathleen J. Jennings is an attorney licensed to practice law in Georgia and New York. She graduated from Cornell University, College of Arts & Sciences, with distinction and New York University School of Law. She is a principal in the Atlanta office of Wimberly, Lawson, Steckel, Schneider, & Stine, P.C. and defends employers in employment matters, such as sexual harassment, discrimination, Wage and Hour, OSHA, restrictive covenants, and other employment litigation and provides training and counseling to employers in employment matters. She can be contacted at kjj@wimlaw.com.

Copyright 2021 Kathleen Jennings

The materials available at this blog site are for informational purposes only and not for the purpose of providing legal advice. You should contact your attorney to obtain advice with respect to any particular issue or problem. Use of and access to this Web site or any of the e-mail links contained within the site do not create an attorney-client relationship between Kathleen J. Jennings and the user or browser. The opinions expressed at or through this site are the opinions of the individual author.

Religious Liberty vs. LBGTQ Rights: Narrow Supreme Court Decision Fails to Resolve Many Questions

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By Kathleen J. Jennings (kjj@wimlaw.com)

One of the most eagerly anticipated decisions coming from the U.S. Supreme Court this term was Fulton v. Philadephia, a case involving a Catholic charity’s challenge to a Philadelphia ordinance that excluded it from part of the city’s foster-care program because the charity would not help place children with same-sex couples. The charity argued that the ordinance violated its First Amendment right to religious freedom, and the U.S. Supreme Court, in a unanimous decision, agreed. However, the Court’s decision focused very narrowly on the ordinance at issue and did not address the bigger question of what happens when religious liberty and anti-bias laws collide. Thus, it is likely that we will see more litigation on these issues.

What does this decision mean for employers? Not a heck of a lot–yet. Last year, the Supreme Court ruled that Title VII prohibits employment discrimination on the basis of sexual orientation and sexual identity. But that case did not answer any questions about the possibility of religious defenses to discrimination against LBGTQ employees and applicants. The ultimate question is this: Is there a Constitutional right to discriminate that would override Title VII in some context? 

Certain employers can invoke the Religious Freedom Restoration Act to defend against discrimination lawsuits brought by the government. Religious organizations, such as churches and religious schools, are permitted to give employment preference to members of their own religion under a Title VII exception. Religious groups are likely to continue pushing the boundaries of religious freedom. Whether that push will infringe upon the hard-won rights of LGBTQ people to be free from discrimination remains to be seen.

Kathleen J. Jennings is an attorney licensed to practice law in Georgia and New York. She graduated from Cornell University, College of Arts & Sciences, with distinction and New York University School of Law. She is a principal in the Atlanta office of Wimberly, Lawson, Steckel, Schneider, & Stine, P.C. and defends employers in employment matters, such as sexual harassment, discrimination, Wage and Hour, OSHA, restrictive covenants, and other employment litigation and provides training and counseling to employers in employment matters. She can be contacted at kjj@wimlaw.com.

Copyright 2021 Kathleen Jennings

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