The U.S. Equal Employment Opportunity Commission (“EEOC”) recently announced a pilot program which modifies certain aspects of the agency’s mediation program. The EEOC mediation program is a voluntary, informal and confidential way for parties to resolve EEOC charges prior to the EEOC conducting a formal investigation. The EEOC has launched a pilot program known as “ACT” (Access, Categories, Time). The pilot program, which began on July 6, 2020, expands the categories of charges eligible for mediation and generally allows mediation to take place even after an investigation has commenced. Presently, only certain types of charges are eligible for mediation prior to the EEOC beginning its investigation. Since 1999, when the EEOC first implemented its mediation program, the agency has conducted more than 235,000 mediations, resolving over 170,000 charges and obtaining over $2.85 billion in benefits for charging parties. As a result of these recent changes, there are now fewer restrictions on mediation. Consequently, it is likely that more charges will be eligible for and referred to mediation leading to resolution both prior to and during an investigation and/or before the EEOC renders a determination.

In a 7-2 decision this week, the United States Supreme Court clarified and expanded upon its 2012 decision in Hosanna Tabor Evangelical Lutheran Church and School v. EEOC, 565 U. S. 17, by holding that the First Amendment’s religion clauses prevent civil, secular courts from adjudicating employment-related claims brought by teachers and others entrusted with carrying out an organization’s religious mission and goals.

Under the First Amendment, religious institutions may “decide for themselves, free from state interference, matters of church government as well as those of faith and doctrine.” Kedroff v. Saint Nicholas Cathedral of Russian Orthodox Church in North America, 344 U. S. 94, 116. Applying this principle, the United States Supreme Court held eight years ago in Hosanna that the First Amendment barred a court from hearing an employment discrimination claim brought by a teacher, Cheryl Perich, against the religious elementary school where she taught. Adopting a “ministerial exception” to laws governing the employment relationship between a religious institution and certain employees, the Court found relevant in Hosanna that Perich held the title “Minister of Religion, Commissioned,” that she had religious educational training, and that she had responsibility to teach religion and participate with students in religious activities.

Plaintiffs in the Court’s decision this week, Agnes Morrissey-Berru and Kristen Biel, were elementary school teachers at Roman Catholic schools in the Archdiocese of Los Angeles, California. Each of their employment agreements set out the schools’ mission to develop and promote a Catholic School faith community and also imposed commitments regarding religious instruction, worship, and personal modeling of the Roman Catholic faith. Each was required to comply with her school’s faculty handbook, which set out similar expectations. Each taught religion in the classroom, worshipped with her students, prayed with her students, and had her performance measured on religious bases.

Both teachers sued after their employment was terminated and both cases were dismissed by California district courts on summary judgment. Applying only the four factors outlined in the Hossana decision, the Ninth Circuit Court of Appeals overturned the dismissals based on the fact that the teachers did not have the formal title of “minister,” lacked or had limited formal religious training, did not hold themselves out publicly as religious leaders, and did not have a ministerial background.

This week, however, Justice Alito writing for the majority, noted that the Court in Hossana declined to adopt a “rigid formula” for determining whether the ministerial exception applies, and instead noted that the exception may vary from case to case. “What matters, at bottom,” according to the Court, “is what an employee does.” In the cases of Biel and Morrissey-Berru, the Court held that ministerial exception applied because there was “abundant” evidence that the teachers “performed vital religious duties,” which in their cases included an obligation to teach students about the Catholic faith, as outlined in their employee handbook, as well as carrying out the school’s religious mission, praying with students, and attending Mass with them.  The fact that their schools expressly saw them as playing a vital role in carrying out the Church’s mission was important in the Court’s analysis.

In clarifying and broadening the standard to whether an employee “carries out a religious organization’s mission and goals” and/or “performs vital religious duties,” the Court has arguably opened the door for interpretation and application of the ministerial exception beyond religious schools and their teachers and ministers. Religiously-affiliated employers now have the ability to apply the exception regardless of whether an employee is a “minister,” or an educator, or whether (as the Court hints in its slip opinion) the employee is even a “practicing” member of the religion with which the employer is associated. If furthering religion is a critical part of the employee’s job and if the employer has a good-faith basis that the position involves carrying out, fulfilling, or communicating the faith in some way, the Court’s decision this week provides a plausible basis for applying the ministerial exception.

It is important to note that the Court’s decision in Our Lady of Guadeloupe School does not mean religious employers should scrap their anti-discrimination policies or categorically apply the exception to their entire workforces. It does, however, provide religious institutions greater control over deciding who teaches, ministers, and delivers their religious message and to make employment-related changes.

Frantz Ward attorneys have more than 30 years of experience serving educational institutions. From special education and policy issues facing secondary schools to the complex legal issues confronting higher education, Frantz Ward has assisted clients in specific issues such as the hiring of faculty members, as well as serving as general counsel for a broad range of legal issues confronting higher education. Please contact Christina Niro or another member of Frantz Ward’s Education Practice Group with questions.

On May 6, 2020, the United States Department of Education (“Department of Education”) released its Final Rule updating Title IX regulations and addressing sexual misconduct in schools. The Final Rule codifies sexual harassment as unlawful sex discrimination under Title IX.  Although the Department of Education had previously addressed sexual harassment through Dear Colleague Letters and other guidance documents, such documents are not legally binding. The Final Rule updates regulations to define sexual harassment to include quid pro quo harassment; unwelcome conduct that is severe, pervasive, and objectionably offensive; and sexual assault, dating violence, domestic violence, or stalking.

The Final Rule also includes the following significant updates:

  • Schools must respond promptly if they have “actual knowledge” of sexual harassment. The Final Rule defines actual knowledge to include notice in person or via email, phone, or mail to a Title IX Coordinator or any elementary or secondary school employee.
  • Schools are required to investigate sexual harassment that occurred at an event or location over which the school exercised substantial control. This includes off-campus housing or events controlled by a student organization recognized by the school, such as fraternities or sororities.
  • A school’s response to a complaint of sexual harassment must not be “clearly unreasonable in light of the known circumstances.”
  • Schools must offer supportive measures to every complainant, even if the complainant chooses to not file a formal complaint.
  • Schools are required to follow a specific grievance process designed to ensure due process, as well as a reliable determination. Schools may not issue discipline to an accused student without first following the grievance process.

All of the Department of Education’s updates to current Title IX regulations are outlined in the Final Rule. The updated regulations take effect on August 14, 2020, just in time for the new school year.

As the coronavirus pandemic continues to disrupt multiple facets of life across the United States, questions continue to arise related to working parents caring for school aged children. On Friday, June 26, 2020, the Department of Labor (“DOL”) issued two Field Assistance Bulletins FIELD ASSISTANCE BULLETIN No. 2020-3 (FAB No. 2020-3) and FIELD ASSISTANCE BULLETIN No. 2020-4 (FAB No. 2020-4); relating to whether school is considered “in session” for purposes of employing children under the age of 16 and whether canceled summer camps entitle parents to paid leave under the Families First Coronavirus Response Act (“FFCRA”).

FIELD ASSISTANCE BULLETIN No. 2020-3

Depending on whether school is “in session,” and whether a child is working in an agricultural or nonagricultural setting, federal child labor regulations limit the number of hours certain children may work. Generally speaking, federal regulations specify that for non-agricultural employment, school is considered “in session” during any week in which a public-school district requires students to attend school either physically or through virtual or distance learning. For agricultural employment, school is “in session” based on the school calendar for the public-school district where the minor lives.

As the summer months continue, and schools contemplate re-opening or extending the school year with virtual learning and summer school, how can these decisions impact whether a school is “in session” for purposes of school aged children working?

FAB No. 2020-3 makes it clear that for non-agricultural employment, if a public-school district physically closes schools but requires all students to continue instruction through online or virtual learning, school is “in session.” In a slightly similar fashion, for agricultural employment, if a school district is requiring online or virtual instruction, school is “in session.” Finally, while summer school is typically considered outside of normal school hours, if a school implements mandatory summer school sessions for all students, the school will be considered “in session” during that time period.

DOL’s new guidance appears to take an all or nothing approach in determining whether school is “in session.” If a school district is extended learning for all students, school will likely be “in session.”

FIELD ASSISTANCE BULLETIN No. 2020-4

Under the FFCRA, Employees are eligible for FFCRA leave if they unable to work or telework due to a need to care for their child whose school, child care provider or place of care is closed due to COVID-19. FAB 2020-4 clarifies that under the general FFCRA framework, summer camps are a place of care, and cancelled summer camps may entitle parents to FFCRA leave.

FAB 2020-4 makes it clear that cancelled summer camps may qualify as a place of care for purposes of FFCRA leave. Whether a parent is entitled to leave for a canceled summer camp is heavily dependent upon whether the parent’s child was enrolled in the camp prior to its closure, and/or any steps that may have been taken to enroll the child in the camp prior to its closure.

A closed summer camp may be considered a child’s place of care if they were enrolled in the camp prior to its closure. If a child was not fully enrolled in a summer camp prior to its closure announcement, the child’s parent still may be entitled to leave if the parent can show; (1) a plan to send his or her child to a summer camp or program, or (2) that even though the employee had no such plan at the time the summer camp or program closed, his or her child would have nevertheless attended the camp or program had it not closed.

Finally, FAB 2020-4 makes it clear that an employee who requests leave to care for his or her child based on the closure of a summer camp, must provide the typical substantiating documentation required for FFCRA leave. As such, parents who provide their employer with the name of their child, the name of the canceled summer camp and a statement that no other suitable person is available to care for the child, have satisfied their documentation requirements for seeking FFCRA leave.

As businesses in Ohio and across the country continue reopening, many employees are refusing to return to work, and are instead remaining off collecting unemployment benefits. This has frustrated many employers, and Ohio Governor DeWine recently stepped in to address the issue.

In particular, Governor DeWine issued an Executive Order specifying that employees who refuse an offer to return to work may have their unemployment benefits cut off unless one of the following circumstances exists:

  • A medical professional recommends that the employee not return to work because the person is considered high-risk by the CDC, and the employer cannot offer teleworking options;
  • The employee is 65 years of age or older;
  • There is tangible evidence of a health and safety violation by the employer that prevents the employee from practicing social distancing, hygiene, and wearing protective gear;
  • The employee has been potentially exposed to COVID-19 and is subject to a quarantine period as prescribed by a medical or health professional; or
  • The employee must stay home to care for a family member who is suffering from COVID-19 or is subject to a prescribed quarantine period by a medical or health professional.

The Governor’s Executive Order will remain in effect until he declares the current state of emergency over, or until he rescinds it, whichever happens first.

On June 17, 2020, the Equal Employment Opportunity Commission (EEOC) updated its Technical Assistance Questions and Answers to clarify that employers may not require COVID-19 antibody testing before permitting employees to re-enter the workplace. Antibody tests can show whether the subject had a past infection or has recovered from the virus that causes COVID-19. Currently, there is a fair amount of debate in the scientific community as to what the results of antibody tests mean and whether they demonstrate immunity to the virus.

The EEOC’s position results from separate guidelines from the Centers for Disease Control and Prevention (CDC), which provides that antibody test results “should not be used to make decisions about returning persons to the workplace.” Given the CDC’s position regarding antibody testing, the EEOC explained that “an antibody test at this time does not meet the ADA’s ‘job related and consistent with business necessity,’ standard for medical examinations or inquiries for current employees.” According to the EEOC, requiring an employee to submit to an antibody test before re-entering the workplace violates the ADA’s prohibition of certain medical inquiries/tests of current employees.

It is important to note that antibody tests are not the same as COVID-19 tests, which look for signs of active virus in the subject. The EEOC has previously indicated in its guidance that under the ADA employers may require employees to submit to a COVID-19 test before re-entering the workplace because an individual with the virus will pose a direct threat to others.

The EEOC’s Technical Assistance Questions and Answers, including the updated guidance related to antibody testing can be found here.

Today, in Bostock v. Clayton County, Georgia, the United States Supreme Court held that gay, lesbian, and transgender employees are protected from adverse action based on their sexual orientation or gender identity. The 6-3 Court reasoned that the plain meaning of the term “sex,” as used in Title VII, includes sexual orientation and gender identity. Justice Gorsuch writing for the Majority explained: “An employer who fires an individual for being homosexual or transgender fires that person for traits or actions it would not have questioned in members of a different sex. Sex plays a necessary and undisguisable role in the decision, exactly what Title VII forbids.”

The Supreme Court’s decision was based upon the consolidated cases of two gay men and a transgender woman who sued for sex discrimination under Title VII in the Second, Sixth, and Eleventh Circuit Courts of Appeals after they were terminated from their respective employers. (See Altitude Express, Inc. v. Zarda; R.G. & G.R. Harris Funeral Homes v. EEOC; Bostock v. Clayton County, Georgia)

Ohio’s law remains the same and does not provide any protections for LGBT employees. However, Ohio employers are prohibited under Title VII from discriminating against LGBT employees. Therefore, employers should consider taking the following steps as a result of today’s decision:

  • Update anti-discrimination, anti-harassment, retaliation, and reporting policies to include language protecting sexual orientation, gender identity, and gender expression. The policies should be easy to understand. Modernize the policies to include specific and updated examples of harassing behavior and terminology and remove legalese.
  • Update company policies and employment forms to include appropriate and inclusive terminology. Consider updating policies to indicate acceptable terms and definitions of those terms, as well as guidelines for appropriate pronoun use for employees of all sexes and gender identities.
  • Distribute updated policies to employees and require employees to sign an acknowledgement of the updated policies.
  • Regularly train employees and managers. All employees should receive training that covers workplace harassment and discrimination on a regular basis. Managers should receive additional training, including how to recognize harassment and discrimination, how to address a complaint, and how to have a conversation with employees about harassment and discrimination.
  • Foster an inclusive workplace culture. Employers should consider expanding upon traditional discrimination and harassment resources to include diversity training, such as acknowledging unconscious bias, and providing gender-transition resources to employees. Developing an inclusive workplace culture must start at the top. Therefore, management, including senior executives, must voice their support for the company’s inclusive policies.
  • Maintain an open door policy and encourage employees to approach human resources with questions or to obtain educational resources.

WEWS News Channel 5 Cleveland

Click here to view the video.

Excerpts from the story:

“Social media has been responsible for blurring the lines a lot between employees personal lives and their professional lives,” Christina Niro said.

Niro warned that in times of turmoil, many companies nationwide are cracking down on their social media conduct policies.

“Those policies are going to have anti-discrimination policies. They’re going to have social media policies,” Niro said. “Hopefully, in this day and age everybody’s got a social media policy.”

Niro added several factors determine whether an employer will choose to discipline or terminate an employee for an online post.

“It’s going to depend on the comment itself, whether it incites violence, for example,” Niro said. “Whether it’s hate language, whether its racist or bigoted.”

She said context is key if an employer is made aware of a questionable post.

“If it is ten years ago when they were in high school versus a year ago at their previous employer, that context, again context specific, would make a difference to me if I was an employer,” Niro said.

Niro advised sharing controversial thoughts on social media could not only affect you at your current workplace, but could also compromise future opportunities.

“A lot of employers do search public content when making their decisions about whether or not they’re going to be hiring or not offering an individual a job opportunity,” Niro said.

On May 7, the U.S. Equal Employment Opportunity Commission (“EEOC”) announced that it will delay the opening of the 2019 EEO-1 Component 1 data collection, the 2020 EEO-3 data collection, and the 2020 EEO-5 data collection.

 

The EEOC was planning to open these surveys in 2020; however, the EEOC decided to delay the opening of these surveys as it has recognized the impact that the coronavirus public health emergency is having on employers across America.

 

It is not yet clear when employers must submit these surveys. However, the EEOC expects to begin collecting the 2019 and 2020 EEO-1 Component 1 in March 2021, and the EEOC expects to begin collecting the 2020 EEO-3 and the 2020 EEO-5 in January 2021. The EEOC will notify filers of the precise date the surveys will open as soon as that date is available.

 

As a reminder, the EEOC collects this workforce data from employers with more than 100 employees (lower thresholds apply to federal contractors). The data is used for a variety of purposes including enforcement, self-assessment by employers, and research. Employers meeting the reporting thresholds have a legal obligation to provide the data meaning that compliance is not voluntary.

 

If you have any questions regarding the filing of EEO reports, please contact Frantz Ward’s Labor and Employment group.

On Friday, OSHA issued enforcement guidance regarding employers’ obligations to record COVID-19 cases. According to its previous statements, OSHA’s position is that COVID-19 is a recordable illness under OSHA’s recordkeeping requirements and employers are responsible for recording cases of COVID-19 if:

(1) the case is a confirmed case of COVID-19, as defined by Centers for Disease Control and Prevention (CDC);

(2) the case is work-related as defined by 29 CFR § 1904.5; and

(3) the case involves one or more of the general recording criteria set forth in 29 CFR § 1904.7.

However, recognizing the difficulty employers have faced during the past several weeks trying to determine whether workers who contracted the disease did so due to exposures at work, and given the ongoing community spread of COVID-19 in many areas of the country, OSHA has decided to significantly curtail its recording requirements for the majority of employers.

Per OSHA’s new guidance, OSHA will not enforce its recordkeeping standards against the majority of employers due to the difficulty in determining whether an employee contracted COVID-19 at work. Employers in the healthcare industry, emergency response organizations (e.g., emergency medical, firefighting, and law enforcement services), and correctional institutions must continue to make work-relatedness determinations pursuant to 29 CFR § 1904 and record COVID-19-related illnesses. Until further notice, however, OSHA will not require other employers to make work-related determinations unless:

  1. There is “objective evidence” that a COVID-19 case may be work-related (this could include, for example, a number of cases developing among workers who work closely together without an alternative explanation); and
  2. The evidence was reasonably available to the employer (examples of reasonably available evidence include information given to the employer by employees, as well as information that an employer learns regarding its employees’ health and safety in the ordinary course of managing its business and employees).

See the memo here. While no reference is made to reportability in this new guidance, employers may reasonably follow the same framework regarding determinations of work-relatedness in cases of employee deaths or in-patient hospitalizations.

The guidance also provides limited clarification regarding employee privacy, and states that because COVID-19 is an illness, if an employee voluntarily requests that his or her name not be entered on the log, the employer must comply as specified under 29 CFR § 1904.29(b)(7)(vi) by entering “privacy case” in the space normally used for the employee’s name, keeping a separate list of privacy concern cases, among other requirements.

Frantz Ward’s Coronavirus Response Team assists clients in navigating the multitude of issues presented by the current crisis. For assistance in addressing these issues or in developing other strategies to protect your business, please contact Frantz Ward Partners  Brian Kelly or Christopher Koehler and they will engage the appropriate members of the response team. In addition, please visit the Frantz Ward Coronavirus Daily Update/Resource Center for up-to-date information and links.