Workplace Investigations Blog : California Employment Investigation Lawyer & Attorney : Debra Reilly Law Firm : CA Personnel, Sexual Harassment & Equal Employment Opportunity (EEO) Investigator

The EEOC takes religious accommodation cases very seriously when it comes to "dress code violations," and employers are oftentimes losing on the "undue hardship" defense.

Tatoos:  In 2005, the EEOC brought suit against Red Robin Gourmet Burgers. The EEOC alleged in its suit that Red Robin refused to offer Edward Rangel, a server at the restaurant, any accommodation for his Kemetic religion, an ancient Egyptian faith.  As part of his practice, Rangel went through a rite of passage where he received religious inscriptions in the form of tattoos.  The inscriptions, less than a quarter-inch wide and encircling his wrists, are a verse from an Egyptian scripture and are written in a liturgical Egyptian language.  The inscriptions symbolize his dedication and servitude to his creator and Rangel’s beliefs make it a sin to intentionally conceal the religious inscriptions.

Red Robin had a dress code prohibiting employees from having visible tattoos and asked Mr. Rangel to cover his tattoos with wrist bans or bracelets.  Red Robin maintained that allowing any exceptions to its dress code policy would undermine its "wholesome image."  Mr. Rangel refused, stating that covering his tattoos was a sin.   He had multiple conversations with management, explaining his faith and his need for an accommodation in the form of an exception to the policy, but he was terminated for failing to conceal his tattoos.

At summary judgment, Red Robin argued that exempting Mr. Rangel from its dress code policy would create an undue hardship because it had a certain image it wanted to portray to customers. The district court disagreed, stating that allowing the employee to show his tattoos must not be much of a hardship given that Mr. Rangel worked for six months before being asked to cover his tattoos, no customers complained, and the tattoos were small. The case was ultimately settled with Red Robin paying $150,000 and making substantial policy and procedural changes, which the EEOC will monitor through a Consent Decree.  

Acting EEOC Regional Attorney Kathryn Olson noted, "We live in a diverse society where individuals have the religious freedom to practice many different belief systems."

Nose Ring:  In EEOC v. Pain Enterprises, Inc. [PDF], during a monthly site visit, a field consultant for Subway Development, found one of its Subway franchisees, Papin Enterprises, Inc., out of compliance with its contractual commitments based in part on an employee wearing a nose ring. The franchisee (Mr. Papin) told the employee to remove her nose ring because it was contrary to the no-facial-jewelry policy set forth in the Subway® Employee Handbook, but she refused, explaining that her wearing of the nose ring was religious in nature.  Mr. Papin requested a waiver of the no-facial-jewelry policy from the franchisor.  The franchisor requested documentation supporting the religious nature of the nose ring, so the employee provided a note from her mother and herself regarding her religion. The employee was asked for some sort of “religious text” or a “note from a minister” to support the waiver request, but she could not do so because she had no minister.

Subway denied a waiver because it was unaware of any religion requiring a nose ring.  The employee was told she had to comply with Subway’s uniform policy by removing the nose ring and if she did not “show some sort of bona fide documentation regarding [the] nose ring and its significance to [her] religion within five days,” she would be terminated for insubordination and violation of company policy.  The employee did not provide any documentation and refused to remove the nose ring while working, so she was terminated.  

Defendants asserted in litigation that they had offered the employee two reasonable accommodations, both of which she refused. First, they offered to allow her to cover the nose ring with a flesh-colored Band-Aid.  Second, they offered to allow her to leave the store when the inspector from Subway Development came by each month so that the store would not be written up as “out of compliance” based on her wearing of the nose ring.  The district court found that neither offer was a reasonable accommodation and that no undue hardship existed.

Gingerbread Man Necklace:  In Krielcamp v. Roundy's, a federal court rejected a grocery store employee’s claim that his employer had failed to accommodate his religion when it had required him to wear a gingerbread man necklace as part of a sales promotion.  Because the employee could not point to any conflicting religious belief—aside from perhaps an understandable aversion to wearing gingerbread men necklaces—that conflicted with the requirement, he had no claim.  

In sum, while in some cases an employer may be alerted to, or aware of, the religious nature of a practice, in other circumstances it can be difficult to know whether an employee’s claim relates to an actual, if obscure, religious practice or whether it reflects a creative effort by employees to circumvent company policy.  As new religions become more prevalent in America’s social network, the uncertainties created by the ambiguities in the definitions of religion and religious practice are bound to increase.  Workplace investigators need to be aware that these cases can involve both a religious accommodation claim as well as disparate treatment claim and investigate each theory accordingly.

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Today an interesting article appeared in The Wall Street Journal by Anne Tergeson titled Age Bias at Work is Harder to Prove.

U.S. Supreme Court Ruling:

Ms. Tergesen writes that age-discrimination claims against employers have skyrocketed in recent years; however, the June 18, 2009, U.S. Supreme Court ruling in Gross v. FBL Financial Services Inc. will make it harder for older workers to win such cases.  The court ruled that employees who sue under The Age Discrimination in Employment Act of 1967 ("ADEA"), that bans discrimination against those 40 or older must prove, by a preponderance of the evidence, that age was the “but-for” cause of the challenged adverse employment action-- widely interpreted as meaning the "sole cause" -- of an employer's actions, rather than one of the "motivating factors".  The burden of persuasion does not shift to the employer to show that it would have taken the action regardless of age, even when a plaintiff has produced some evidence that age was one motivating factor in that decision.

Dan Kohrman, a senior attorney with AARP says that the ruling will make it more difficult to prove age discrimination than to prove unfair treatment at work due to race, sex or religion. "That strict standard could be devastating for even very strong age-discrimination claims," he adds.

In the wake of the ruling in Gross v. FBL Financial Services, legislation was introduced in Congress in October that would override the Supreme Court decision.  The proposed legislation requires older worker plaintiffs to prove only that age was "one factor" behind an employment decision.  If passed, the law would cover all claims filed since the high Court's June decision, says Cristina Martin Firvida, director of economic security in government relations at AARP. 

Age Discrimination Claims on the Rise:  

According to the U.S. Equal Employment Opportunity Commission, age-discrimination allegations against current, former and prospective employers have hit a high -- up 29% to 24,582 in fiscal year 2008, from 19,103 in 2007.  Behind the trend are the recession and the graying of the American work force.   As of June [2009], almost 20% of the labor force was 55 or older, up from 13% in 1999.  When combined with widespread layoffs, "it's not surprising that a greater number of older people are alleging discrimination," says David Grinberg, a spokesman for the EEOC.

It will be interesting to see how this plays out on the federal side.  This court ruling will not effect age discrimination claims filed under California's anti- age discrimination laws, nor how California workplace investigators should investigate an age discrimination complaint.  It is interesting to note how federal courts interpreted the Americans with Disabilities Act so narrowly, which prompted Congress to enact all of the new ADA Amendments this year.  I wonder if Congress will react similarly on the age discrimination issue.  

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The Civil Rights Office of the United States Department of Transportation ("DOT") has a written policy that helps its employees understand how one can tell if conduct is "unwelcome."  I like the DOT's policy because it gives employees some practical advice on how to convey that inappropriate sexual comments or conduct is unwanted.  

The policy states that "Only unwelcome conduct can be sexual harassment.  Consensual dating, joking, and touching, for example, are not harassment if they are welcomed by the persons involved." 

"Conduct is unwelcome if the recipient did not initiate it and regards it as offensive.  Some sexual advances (“come here Babe and give me some of that”) are so crude and blatant that the advance itself shows its unwelcomeness.  In a more typical case, however, the welcomeness of the conduct will depend on the recipient’s reaction to it."

Outright Rejection:  The clearest case is when an employee tells a potential harasser that conduct is unwelcome and makes the employee uncomfortable.  It is very difficult for a harasser to explain away offensive conduct by saying, “She said no, but I know that she really meant yes.”  A second-best approach is for the offended employee to consistently refuse to participate in the unwelcome conduct.  A woman who shakes her head “no” and walks away when asked for a date has made her response clear.

Ambiguous Rejection:  Matters are more complicated when an offended employee fails to communicate clearly.  All of us, for reasons of politeness, fear, or indecision, sometimes fail to make our true feelings known.  A woman asked out for a “romantic” dinner by her boss may say, “Not tonight, I have a previous commitment” when what she really means is “no way, not ever.”  The invitation is not inherently offensive, and the response leaves open to question whether the conduct was truly unwelcome.

Soured Romance:  Sexual relationships among employees often raise difficult issues as to whether continuing sexual advances are welcome.  Employees have the right to end such relationships at any time without fear of retaliation on the job, so that conduct that once was welcome is now unwelcome.  However, because of the previous relationship, it is important that the unwelcomeness of further sexual advances be made very clear.

Sexual harassment investigations sometimes fall within a gray area where the comments were "boorish" or "childish."  It may not be readily apparent if the conduct was consensual, or if the Complainant was truly offended but the Complainant neither did or said anything to convey to the accused that he/she was offended and that the harasser should stop.  A sexual harassment investigator will need to probe into the past relationship of the parties to determine if they have had past interactions which might have led the accused harasser to believe that his/her conduct was welcomed.  Soured romantic relationships, especially if they are on-again, off-again pose a particular set of problems that require close scrutiny by the sexual harassment investigator.     

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"Neutrality" is the name of the game.  In the recent California case of Nazir v. United Airlines, Inc., the court gave strong cautionary advice about choosing the right workplace investigator.  

The Nazir court raised the point that this particular employer (United Airlines) had extensive rules and policies about the investigation of employee complaints.  One of United's policies stated that if “there is any reason you would not be perceived as an unbiased investigator, choose another investigator.”  In the Nazir case, a company management employee (who had some prior negative interactions with the complainant in the workplace) took the lead in conducting the internal investigation.  He also engaged a co-employee to assist him in the investigation; however, this "assistant investigator" described himself as a labor relations person, who had been assigned to assist the lead investigator in the facilities maintenance department.  The assistant investigator attended most staff meetings in the lead investigator's department and considered the lead investigator to be “an internal customer” of his, that is, a person he "served", according to the Nazir court.

Based on the underlying facts the Complainant alleged against the lead investigator, the Court found that the "lead" investigator was a person "who at least inferentially had an axe to grind" with the Complainant.  Further, the "assistant" investigator was someone who worked in a capacity of "serving" the lead investigator; thus, the Nazir court held that "such an investigation can itself be evidence of pretext. . . . [and] such investigation could “exploit a disciplinary process predisposed to confirm all charges.”

The Nazir court juxtaposed the two investigators (described above) against the investigator used in another California case, Silva v. Lucky Stores, Inc. (1998).  In the Silva case, the investigation was "by a well-trained human resources representative, who had no connection with the accused employee. The investigator carefully followed Lucky's written policy, and interviewed no fewer than 15 employees during a month-long investigation.  And in doing all that, the investigator asked, “relevant, open-ended, non-leading questions.”

How do you, as an employer, avoid this problem?  

• If you are going to choose a company employee to conduct the investigation, in lieu of going to an outside investigator, be sure to pick someone who has never been involved in any prior negative incidents with the Complainant.  Further, the investigator should not be anyone who "witnessed" any of the incidents alleged by the Complainant because he/she is likely to be automatically biased.  
• Select an investigator who is not in the Complainant's "chain of command"-- either up or down.  If the investigator reports to the Complainant, the investigator’s neutrality is compromised.  In short, you cannot investigate your boss without worrying that you can be fired if you make findings against your boss.  Similarly, even where the accused employee reports to the investigator, a supervisory investigator may be inclined to bury facts under the rug because the supervisor may not want to have his supervisory/management skills tarnished by a finding that a bad situation was allowed to occur or fester under his/her watch. On the other hand, a supervisor who runs a great department with no employee problems is looked upon favorably by upper management.
• In short, you want someone who is far enough from the situation to be impartial and who has experience investigating these types of issues.

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The California Supreme Court in Cotran v. Rollins Hudig Hall International, Inc. established what constitutes "good cause" to terminate an employee under an implied contract that requires "good cause" to terminate.  The Court held that in such cases an employer does not have to prove that allegations of misconduct are true, just that the employer fairly formed a reasonable belief that they were true.  Thus, the employer must show not just that it honestly believed the charges, but also that it was reasonable to believe them.  

An element of such reasonableness is "an adequate investigation that includes notice of the claimed misconduct and a chance for the employee to respond."  Although the Cotran Court did not expressly describe the essentials of an adequate investigation, the Court set some broad parameters -- the procedure may be less formal than a civil trial, but the fact finder should not jump to a conclusion before the end of the process.  That begs the question-- When have you reached the end of the process?  An investigation must be "thorough" to reach the end of the process.

What makes an investigation "thorough"?  

Here are a few starters:

• Get all relevant documentation from ALL sides.  This includes documentation related to the comparator employees, if you are investigating a disparate treatment claim.  (Note:  Due to privacy rights, do not seek medical/diagnosis information of comparators in disability disparate treatment cases.  In that case, try to obtain documentation of the work-related physical limitations of the comparators.  That is probably as close as you can get.)
• Get the complete story from the Complainant before you interview anyone else, assuming you are able to interview the Complainant.  If the Complainant is already represented by an attorney, you will need to make a request for an interview with the attorney.  Rarely is this request denied, but it can happen.  In that case, you have to go on any written or verbal complaints or statements the Complainant has made to co-workers, supervisors, Human Resources, or others.  You want to have the full story from the Complainant before you interview the accused employee(s).  
• Interview all witnesses identified by the Complainant--unless a witness is clearly irrelevant and then document with an investigator's note the reason you did not interview that witness. For example, when I ask the Complainant to identify all the witnesses that the Complainant would like to be included in the investigation, I also ask the Complainant to state what he/she expects to be the factual information gleaned from each named witness.  If the "performance" of the Complainant is not an issue in your investigation, then you do not need to interview a named witness whose only knowledge is how great the Complainant was at his/her job.
• Document the amount of time you spend interviewing each witness.  Someone recently complained to me that he was working on a case and his investigator had only spent 10-15 minutes with one of the major players.  He was worried how he was going to handle the defense of this case when the investigator had spent so little time with this particular witness. So, if you are taking time and getting the whole story from your witnesses, you want to have documentation of your time.  
• Interview witnesses to whom the Complainant may have made contemporaneous statements.  Since this is a possible exception to the hearsay rule, and since you may determine this information to be trustworthy, for whatever reason, this type of information should be obtained and documented in the investigation.  You can balance it with your other evidence and decide how much weight to give it later.  So, when interviewing your Complainant, be sure to ask if he/she contemporaneously reported the incident to any peers or third parties, as this may be evidence that the harassment or alleged incident occurred.   
• Sometimes the witnesses may even be former employees, customers, students, clients. Understandably, the employer may sometimes be reluctant to get their customers involved in an internal employee issue, so in that case, you have to weigh how important the information is against the employer's desire to not unnecessarily involve customers in their private personnel matters.  Can the information be obtained from another source without involving a customer?  Is the information to be sought duplicative of information you already know?   If so, you may not need to involve a customer.  
• Follow the same note-taking procedure for all of your witnesses, including the Complainant and the accused employee.  I now prefer to tape record my interviews and not take notes, unless I just jot down a few key points to remind me to get a document or to interview someone I had not known of.   There are pros and cons on tape recording interviews, and that will be the subject of a separate blog someday soon.
• You may need to circle back and re-interview witnesses to clear up new issues that have come up with other witnesses.  I sometimes tell witnesses right at the end of the interviews that I made need to call them back later for follow-up questions if something new occurs to me.  Sometimes you may need to only ask one follow-up question, which might be handled quickly in a telephone call.  However, if you have a large amount of follow-up questions on significant issues, a follow-up interview in person is advised.
• Since I prefer to tape record interviews, I have the complete statements of the witnesses preserved.  I try to avoid too much paraphrasing in my reports because that can be the subject of attack if you get it wrong.
• The EEOC has issued guidance on the minimum questions that should be asked of the Complainant, alleged harassers, and third party witnesses.  These questions should be asked, if relevant to the facts of your particular type of investigation, to help insure thoroughness.

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