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

The question of "what is religion?" has been litigated extensively.  What do you think about these groups? Rastafarian, Wiccan, Church of Marijuana, Voodoo, Atheism, Ethical Culture Society, Church of Body Modification?  

According to the EEOC Technical Assistance Training Seminar I attended last week in Pasadena, "religion" is defined as follows:

A sincere and meaningful belief that occupies in the life of its possessor a place parallel to that filled by God.

• Religion includes not only traditional organized religion, but also "moral or ethical beliefs as to what is right and wrong which are sincerely held with the strength of traditional religious views." (Note: this would cover "atheism".)

Some courts say that religion refers to ultimate ideas about life, purpose, death, including right and wrong.

I once investigated a religious discrimination case where the female employee refused to enter the male supervisor's office to receive an "official discussion" (the first step of progressive discipline for this employer) for something she had done wrong at work. When she repeatedly refused to come into the supervisor's office, she was given a "letter of warning" for insubordination for refusing to come into his office to receive her official discussion.   When she filed her EEO claim alleging "religious discrimination," she identified her religion as follows:  "My husband and I vowed to never be alone in a room with a person of the opposite sex."   Does that spousal vow constitute a "religion"?  Personally, I highly doubt it.  However, I could see this employee arguing that her articulated religion falls within the second bullet point above:  "a moral or ethical belief as to what is right and wrong which is sincerely held with the strength of traditional religious views."  

As an EEO investigator, it is not always easy to predict what a court might say on this question. However, the EEO investigator does need to probe all of these facets of what courts believe make up a "religion" and the investigator should probe into whether the belief is "sincerely held" by looking at the employee's prior conduct for consistency (or lack of) regarding the "belief" or whether something else is truly motivating the employee's conduct or religious accommodation request.

According to the EEOC presenter, Michael J. Farrell, Esq., Supervisory Trial Attorney of the EEOC Los Angeles District Office, religion does NOT include:

• Practice or espousal of social, political, or economic philosophy.
• Personal preference.
• Some cases identify single dimensional beliefs as not constituting a religion, such as, "Church of Marijuana."

According to Attorney Farrell, an employer can ask for the employee to corroborate his claims of religious beliefs, and of course, the employer can always challenge whether the beliefs are "sincerely held."   See my prior post on "sincerely held beliefs."

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A benefit of using employment applications in hiring is the ability of the employer to directly ask an applicant if he/she has a criminal history that would show up if a thorough background check was conducted, according to Lester S. Rosen of Employment Screening Resources in his August 2009 article in the Lorman Education Service Labor and Employment Law Update Newsletter.

He states that "one problem is that many employers use language that is either too narrow, too broad, or too ambiguous to successfully accomplish this," and each of these errors may lead to legal problems or bad hires. This post addresses the job application that is "too narrow."

According to Attorney Rosen:

"An example of a question that is too narrow is to only ask about felonies.  Many standard employment applications only ask if an applicant was convicted of a felony. That allows the application form to be used in all states. However, misdemeanors can be very serious.  Under California law, for example, most employers would want to know if an applicant had a conviction for offenses such as fighting with a police officer, illegal possession of weapons, spousal abuse or child abuse, commercial burglary, assault and many other offenses. Yet in California and other states, these can all be misdemeanors. Many serious offenses are plea-bargained down to misdemeanor offenses as well. Without the proper language, an applicant can honestly answer that he or she has not been convicted of a felony even though there may be serious misdemeanor convictions an employer needs to know about. A best practice would be to utilize an application form that asks about past criminal conduct in the broadest language allowed by law in your state."

Personally, I have had this issue come up in an EEO investigation, but in the context of an employer learning about a criminal conviction after the employee was hired.  It should be noted that "having a prior criminal record" is not a protected class under any EEO laws, thus, it is not something that normally would trigger an EEO investigation.  However, this is an issue that can creep into any workplace investigation.  For example, it may come up in a "mixed motive" case where an employer based its employment decision on a legitimate business reason, but the employer contemporaneously "discovered" a past conviction of the affected employee.

A number of limitations exist under state and federal law concerning what an employer may legally ask about or "discover" concerning an applicant's or employee's criminal record. Under California law, an employer who knowingly violates some of these rules could be unwittingly committing a misdemeanor. 

California Labor Code Section 432.7 prohibits employers from asking about an arrest or detention that did not result in a conviction. There is an exception for certain arrest records when the applicant is applying for work at a health care facility and would have access to patients, drugs or medication.  Further, California law limits the consideration of any misdemeanor conviction information in cases where probation has been successfully completed or otherwise discharged and the case has been judicially dismissed when making employment decisions.

An employer should consult with its attorneys on how to most broadly draft this question on an employment application without crossing the line.  

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Knowledge of Familial Disabilities

When investigating a claim of preferential treatment (or disparate treatment) by an employee alleging "Caregiver Disability Discrimination," the EEO investigator should first try to obtain information about familial disabilities of the employee who was allegedly treated preferentially in the case at hand.  The EEO investigator should first ask the complainant employee if he/she knows anything about the preferentially treated employee's family and whether any have "known" disabilities.  Also, ask the responsible management official (the decision-maker) if he/she has any information about familial disabilities of the preferentially treated employee.  

If the preferentially treated employee ALSO has a similarly disabled family member, it will be much harder for the complainant to prevail on his/her claim.  If management says they had no knowledge of any familial disabilities of the preferentially treated employee, then the question ends there. Whether the preferentially treated employee actually has disabled family members is not something the EEO investigator would need to delve into because it is not relevant unless the decision-maker knew about it when he/she made the decision. If the management official was aware of familial disabilities of the preferentially treated employee, then they can describe what they knew to the EEO investigator.  

If management says they had no knowledge of any familial disabilities of the preferentially treated employee, then the EEO investigator needs to examine management's explanation for their actions. Can management articulate a legitimate, non-discriminatory reason for their actions and why complainant was treated differently?  Is the reason they give a pretext (fake excuse or ploy) for a true discriminatory motive?

Similar Prior Decisions by Management

Secondly, an EEO investigator can, and should, also seek "comparative data" based on similar prior decisions by the "decision-maker" with other employees ("comparators").  So, depending on the size of the employer, I usually ask the responsible management official to go back about one or two years to describe all similar incidents and address whether any of the employees he/she gave preferential treatment to had disabled family members. It is very important to only ask for "known" information, that is, information the decision-maker knew at the times they made their decisions in the comparative situations. Sometimes management witnesses want to "help" by finding out the answers for an EEO investigator.  Witnesses need to be cautioned that they are not to "research" the EEO investigator's questions, unless specifically asked to do so.

If the management official can show that he/she had knowledge of familial disabilities of the favorably treated employees (including the employee treated preferentially in the pending investigation) in similar situations or under similar circumstances, then this is fairly strong evidence that the management official does not have a propensity to discriminate against employees who have disabled family members.  However, as in every case, this evidence must be weighed against other factors too, so it is not a perfect litmus test.

Employer Must Show Legitimate Non-discriminatory Reason for Actions

Discrimination laws do not prevent employers from firing a disabled employee or his/her caregiver. They simply require that employers have a legitimate non-discriminatory reason for the termination. "Nondiscriminatory" means you have terminated similarly situated employees for the same reason and haven't discriminated on the basis of protected group status.  "Legitimate" means a non-pretextual reason.

An employer's pre-termination actions with the complainant and the comparator employees, especially comparator documentation, should be examined closely by the EEO investigator to determine if the documentation supports the employer's stated legitimate reason for the adverse employment action.

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The U.S. Department of Labor, in its Family and Medical Leave Act Advisor, recently clarified what an employer may require of an employee seeking to return to work from an illness. If the employer requires, the employee must provide a medical certification of the employee's fitness to return to work if the FMLA leave was taken for the employee's own serious health condition.

The employer's requirement must be made pursuant to a practice or uniformly-applied policy and FMLA applies only to the health condition which caused the employee to be unable to perform the functions of the employee's job. For example, if the employee took FMLA leave because a back injury prevented the employee from loading trucks, the employer could not require the employee to submit certification regarding HIV.

The employer's requirement for a fitness for duty medical certification must be communicated to the employee in writing, usually at the time the employee provides notice of the need for leave, or immediately after leave begins if unforeseeable.

The medical certification of the employee's fitness to return to work may be only a “simple statement” from the employee's doctor.

The requirement for a certificate of fitness to return to work must be job-related and consistent with business necessity pursuant to the Americans with Disabilities Act (ADA) as detailed in Regulations 29 CFR Part 825.310.  In a recent case I worked on, the trial judge interpreted the “job related” requirement very narrowly. The Judge opined that an employer must give specific job descriptions/job duties of all vacant positions to the employee’s physician, so the employee’s work restrictions may be precisely evaluated for his return to work. The judge opined that simply asking an employee for his/her “work restrictions” was overbroad and a violation of the law.  

To avoid this situation, employers may wish to err on the side of caution and be very precise when asking for “job-related” medical restrictions. For example, consider:

• Having specific jobs in mind when you make this request of your employees 
• Supplying the employee with written job descriptions that set forth the physical and mental requirements of the job

If all the employer's notification responsibilities have been met, and the employee fails to provide a fitness certificate as required at the time the employee is to return to work, the employer may delay the employee's return to work until the fitness certificate is provided.

Under some circumstances, if the employee fails to provide the fitness certificate, the employee may be terminated as noted in Regulations 29 CFR Part 825.311(c).   It should be noted that under California law, other considerations come into play.  This blog only considers Federal law.

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In a recent newsletter by HR Strategies, Staffing Concepts International, Inc. outlined some of the changes employers can expect with the new amendments to the Americans with Disabilities Act (ADA).

The Americans with Disabilities Act Amendments Act (ADAAA) was signed into law by President Bush on September 25, 2008, and became effective on January 1, 2009. The ADA prohibits discrimination and ensures equal opportunity for persons with disabilities in employment, state and local government services, public accommodations, commercial facilities and transportation. 

Employers should, by now, have trained their managers and supervisors about the new changes in effect under the ADAAA. If a company has 15 or more employees, they must comply with the ADA and the ADAAA. The ADAAA broadens the definition of a “disability” making more employees subject to protection under the ADAAA.  

Disability is now defined as:

• A physical or mental impairment that substantially limits one or more major life activities (see list below)
• A record of such impairment
• Being regarded as having such an impairment

The ADAAA specifically defines a “major life activity” to include, but not be limited to:

• Caring for oneself
• Performing manual tasks
• Seeing
• Hearing
• Eating
• Sleeping
• Walking
• Standing
• Lifting
• Bending
• Speaking
• Breathing
• Learning
• Reading
• Concentrating
• Thinking
• Communicating
• Working

 The ADAAA states that a major life activity includes the operation of a major bodily function, including, but not limited to:

• Functions of the immune system
• Normal cell growth
• Digestive, bowel, bladder, neurological, brain, respiratory, circulatory, endocrine and reproductive functions.

In short, the definition of disability has expanded. Employers and EEO investigators should no longer be questioning merely whether someone is disabled, but rather, questioning whether a reasonable accommodation can be made. If an employee is only “regarded as" having a disability, no accommodations need to be made for that person.  If a disability is under control with medication (aka "mitigating measures"), or in remission, he or she can still be considered disabled under the ADA’s protections.

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In addition to protecting qualified applicants and employees with disabilities from employment discrimination, one ADA provision – the "Association" provision (42 U.S.C. § 12112(b)(4))-- protects applicants and employees from discrimination based on their relationship or association with an individual with a disability, whether or not the applicant or employee has a disability.

Protection Against Adverse Actions

According to the EEOC’s Questions and Answers About the Association Provision of the Americans with Disabilities Act, the purpose of the “association” provision is to prevent employers from taking adverse actions based on unfounded stereotypes and assumptions about individuals who associate with people who have disabilities.  Thus, it makes unlawful actions such as:

• Refusing to hire an individual who has a child with a disability based on an assumption that the applicant will be away from work excessively or be otherwise unreliable
• Firing an employee who works with people who are HIV-positive or have AIDS based on the assumption that the employee will contract the disease
• Denying an employee health care coverage available to others because of the disability of an employee's dependent

Reasonable Accommodation Not Required

However, the ADA does not require an employer to provide a reasonable accommodation to a person without a disability due to that person's association with someone with a disability.  Only qualified applicants and employees with disabilities are entitled to reasonable accommodation. For example, the ADA would not require an employer to modify its leave policy for an employee who needs time off to care for a child with a disability. However, an employer must avoid treating an employee differently than other employees because of his or her association with a person with a disability.

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The new FMLA regulations give additional leave rights to military families and revise the FMLA in many new respects.  

Staffing Concepts International, Inc.’s recent newsletter article, FMLA: Overhaul of Regulations and the Impact on Employers, summarizes some of the recent changes to The Family and Medical Leave Act (FMLA). On November 17, 2008, the U.S. Department of Labor (DOL) published final regulations implementing the first major overhaul in over 10 years to the FMLA, which became effective January 16, 2009.  Two new leave entitlements – “Military Caregiver” leave and "Qualifying Exigency” leave have been created.

• Military Caregiver Leave: This leave is available to eligible employees who are family members of a covered service member who has a serious illness or injury incurred in the line of (active) duty.  Eligible employees will be able to take up to six months (26 workweeks) of leave in a single 12-month period to care for the service member. Employers must use the rolling calendar methods; the 12-month period begins when the employee starts using military caregiver leave. The calendar year method will not be an option for employees using this type of leave. The military caregiver leave entitlement provides for each service member and for each illness or injury incurred.
• Qualifying Exigency Leave:  Family members of the National Guard and Reserves are eligible for exigency leave when a member is on active duty or called to active duty status in support of a contingency operation. The 12-week leave allowance may be used all at once or intermittently. A qualifying contingency includes a broad category of reasons and activities, including short-notice deployment, military events and related activities, child care and school activities, financial and legal arrangements, counseling, rest and recuperation, post-deployment activities, and any additional activities agreed to by the employer and the employee.

The US Department of Labor's "Final Rule" on these FMLA Amendments also states that a “serious health condition” is defined as two visits to a health care provider occurring within 30 days of the start of the period of incapacity. The first visit to the health care provider must occur within seven days of the start of the incapacity.  Two new medical certification requirements (forms), including the ability to gather missing or insufficient information on a form, are also addressed in the new rules.

The new regulations expand the information that an employer may require in a fitness for duty certification. An employer may now require that the certification specifically address whether the employee can perform the essential functions of his or her job. Also, if an employer has reasonable concerns about an employee’s ability to safely perform a job, the employer can require an employee to provide a fitness for duty certification before the employee returns to work following an absence while on intermittent leave.

The new regulations also consolidate the particular types of notice employers must provide to their employees, as well as additional related information into one section.  Employees must now comply with an employer’s policies for reporting an absence, unless unusual circumstances prevent this, when the need for FMLA leave is required.  Employees may now use accrued paid leave as a substitute for unpaid FMLA leave, and employers may require employees to exhaust all paid leave before taking unpaid leave.  An employee must comply with the company’s policy for requesting such leave.

You can find a complete overview of the recent changes to FMLA on their website.

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