Suzanne Bailey, Senior Attorney, National Legal Research Group

     For almost 80 years, the National Labor Relations Board ("NLRB" or "Board") has awarded "search-for-work" and "interim employment" expenses as part of its broad discretionary authority under section 10(c) of the National Labor Relations Act ("NLRA"), 29 U.S.C. § 160(c), to provide a make-whole remedy for those injured by unfair labor practices in violation of section 8 of the NLRA, 29 U.S.C. § 158. See Crossett Lumber Co., 8 N.L.R.B. 440, 497-98, enforced, 102 F.2d 1003 (8th Cir. 1938). Such expenses include, for example, increased transportation costs necessitated by seeking or commuting to interim employment, room and board while seeking employment and/or working away from home, and the cost of moving if necessary to assume interim employment. During those almost-80 years, the NLRB has awarded these expenses to those individuals who have suffered discrimination under section 8 of the NLRA in the form of an offset to interim earnings, rather than as a separate element of a back-pay award. The result of treating the award as an offset to interim earnings was that (1) individuals who were unable to find interim employment did not receive any compensation for their search-for-work expenses, and (2) individuals who found jobs that paid wages lower than the amount of their expenses did not receive full compensation for the search-for-work and interim employment expenses

     EEOC announced that McDonald’s will pay $56,500 and other relief to settle a disability discrimination lawsuit in which EEOC alleged that the company refused to hire a deaf applicant. The applicant, a man who is unable to hear or speak, had previous experience working at another McDonald’s. When the manager discovered that the young man needed an interpreter for the interview, she canceled the interview, even though the applicant’s sister had volunteered to act as an interpreter for the interview. The applicant made several (unsuccessful) attempts to reschedule the interview and McDonald’s continued to interview other applicants throughout that time period.

 For additional information, see the EEOC press release.

     Title VII protects employees from discrimination based on their religion (or lack of religious belief). A U.S. District court recently clarified that for the purposes of discrimination, a belief system called “Onionhead” is a religion. The defendant in the case is a small company that decided its corporate culture was deteriorating. The company hired a relative of the CEO to assist with morale and she brought Onionhead, a program she had developed, to the workplace. The company asserted that Onionhead is a conflict resolution tool. The plaintiffs asserted that it is a system of religious beliefs and practices. There were a series of Onionhead workshops, prayers, and meetings in the workplace, which the defendant said were voluntary but plaintiffs characterized as mandatory. Some plaintiffs described being told not to use overhead lighting "to prevent demons from entering the workplace through the lights." Plaintiffs also cited many other instances where spiritual language was used in Onionhead training. Plaintiffs contended that they were fired for either rejecting Onionhead beliefs or for having their own, non-Onionhead religious beliefs. The court found that the Onionhead set of beliefs did constitute a religion, based on a two-factors analysis: (1) whether the beliefs are sincerely held and (2) whether they are, in the believer’s own scheme of things, religious. The court stated that as a matter of law, the Onionhead beliefs are religious. On the issue of sincerity, the court found that there was a factual dispute and that a reasonable factfinder could find that the beliefs were sincerely held. For background on this case, see the EEOC’s new release: https://www.eeoc.gov/eeoc/newsroom/release/6-11-14.cfm    

     There have been similar cases in the past in this same vein. For example, in one case, the Eighth Circuit upheld a jury verdict that an employer that used Mind Body Energy (MBE) training sessions had discriminated against an employee on the basis of religion. The employer, a home builder and seller, required employees to participate in MBE sessions to "cleanse negative energy." The sessions included reading Hindu and Buddhist literature and affirming the belief in past lives. The employee complained that the sessions conflicts with his religious beliefs and he declined to participate in them. He was subsequently terminated. The Eighth Circuit noted that although there was some conflicting testimony as to the reasons for the employee’s termination, the fact that the employer kept attendance records for the sessions and the fact that the sessions were reasonably perceived by employees as required, was sufficient basis for a jury to find in the employee’s favor. Ollis v. HearthStone Homes, Inc., 495 F.3d 570 (8th Cir. 2007).     

     As these cases show, employers must take care to screen any training programs and accommodate any employees who give notice that these programs are inconsistent with the employees’ religious beliefs, whether or not the employer believes there is a religious basis for the employee’s objection.

      The EEOC announced that it has charged Detroit’s Greektown Casino with violating the Americans with Disabilities Act (ADA). The casino allegedly fired a pit manager who was on leave for a stress-anxiety disorder and requested several more weeks of leave. The casino denied the leave and fired him. For more information, see the EEOC’s press release:

https://www.eeoc.gov/eeoc/newsroom/release/10-4-17a.cfm

    The EEOC announced that it has released the latest edition of the Digest of Equal Employment Opportunity Law (EEO Digest), featuring an article on “Discrimination on the Basis of Mental Health Conditions Under the ADA and Rehabilitation Act.” The article discusses some cases specifically dealing with how to accommodate employees with mental health conditions, including modified work environments, use of leave, and reassignment. The digest is available at:

https://www.eeoc.gov/federal/digest/vol_4_fy2016.cfm#article

     In a Wisconsin case involving a wellness program, Orion Energy Systems argued that its program was not subject to scrutiny under the ADA because of the ADA’s insurance safe harbor provision. The plan required employees to undergo medical tests for the wellness program or pay 100% of the health insurance premium. Orion also argued that the wellness plan was voluntary and therefore lawful under the ADA. The court rejected Orion’s argument that the plan was not subject to scrutiny under the ADA but did find that the plan was lawful under the ADA because it was voluntary. However, the case will go forward because the court also found that there were issues of facts regarding whether the employee was fired in retaliation for her opposition to the plan. For additional information, see EEOC’s press release: https://www.eeoc.gov/eeoc/newsroom/release/9-23-16b.cfm.

     The EEOC alleges that M&T Bank failed to provide a reasonable accommodation and fired a bank manager after she returned from pregnancy leave. The woman had worked as a branch manager in Baltimore for several years when she became pregnant and informed upper management that she would need surgery to prevent a miscarriage. She then went on FMLA leave. While she was on leave, M&T told her that the bank would fill her position unless she returned to work within 10 days. She was unable to return to work until after the birth, at which time she applied for vacant positions. M&T failed to reassign her to a vacant position, including 24 vacant branch manager or assistant branch manager jobs for which she was qualified. For additional information, see EEOC’s press release: https://www.eeoc.gov/eeoc/newsroom/release/9-23-16.cfm.

     EEOC has announced a lawsuit filed against the Wynn Las Vegas for disability discrimination. The charge alleges that the Wynn failed to engage in the interactive process required to identify a reasonable accommodation. The accommodation was requested by one of its security guards, a veteran who was disabled with PTSD. EEOC also alleges that in addition to denying the employee a reasonable accommodation, the Wynn retaliated against him by suspending him after he filed a complaint with the EEOC. For additional details, see EEOC’s press release: https://www.eeoc.gov/eeoc/newsroom/release/9-16-16.cfm

     The Montevideo School District in Minnesota has signed a conciliation agreement under which it agrees to pay $50,000 to a female employee who was classified as a custodial aid but performed the duties of a custodian. Her male co-worker was classified as a custodian and received pay at almost double the female’s hourly rate. For additional details of the agreement, see the EEOC news release at https://www.eeoc.gov/eeoc/newsroom/release/9-7-16b.cfm.

     On August 29, the EEOC issued final Enforcement Guidance on Retaliation and Related Issues. The new guidance is part of the EEOC Compliance Manual and is available at https://www.eeoc.gov/laws/guidance/retaliation-guidance.cfm. The guidance provides detailed examples to help employers understand what types of actions may constitute retaliation. Retaliation is now the most frequently alleged form of discrimination and in FY2015, accounted for almost 40,000 filings, or approximately 45% of discrimination charges filed.