When Work and Lifestyles Collide: How to Avoid Lifestyle Discrimination-Seminar by Weintraub Stock P.C., April 30, 2010
This seminar was valuable in that it reinforced the importance of being consistent in treatment, while avoiding disparate impact on protected classes.
More importantly, it updated me on some of the recent developments in this area so I can review our current practices and update Supervisors on it.
Some highlights of this seminar:
-Federal Court is better, since State Court is more subject to manipulation. However, Federal Court requires filing before the EEOC which provides the plantiff with free discovery
Lifestyle Discrimination Claims include Sexual Orientation, Physical Appearance, Pornography, Body Pieircing, Tatoos
GENERAL RULE: Treat all personnel the same. EXCEPT
-Can’t really do this so have to “accommondate” protected classes.
“Disparate Impact”: Neutral practices may have adverse impact on someone in a “protected class”.
RECOGNIZING HARRASSMENT
-Judged by looking at all the circumstances, not measure in isolation, includes a “reasonable interference” at work
Anyone can harrass anyone (including Vendor to Employee etc.)
TANAGIBLE Employment Action:
-Significant changes in job (hiring, firing, promotion, pay etc.)
***Employer has “vicarious liability” and consequences in tangible employment actions
Employer liable where “should have known” and failed to take action
SCOPE OF EMPLOYMENT:
Employer must have firm policies in place to demonstrate not work related.
Non-Verbal (gazing, leering, touching etc.) and “Visual Harrassment” (explicit pictures, improper pictures, “overabundance of pictures reflecting personal choices”.
KEY: Take care of a problem, investigate and take remedial action. Don’t worry about being accused of reducing liability etc., just take care of the problem
“Barnes vs. City of Cincinnati (Transexual case)- “Impact on Workplace” is a factor of defense.
Physical Appearance-body piercing and tattoos:
-Business impact: CAN prohibit tattoos (if consistent) if for business purpose and attempt to accommodate religious reasons
-Avoid dress codes that impact on national origin etc.
-Red Robbin (court case concerning tattoos)
-Cloutier vs. Costco Wholesale “Church of the Body Modification”
RELIGION CLAIM:
Ask questions! (for example, how long member, how old church, exceptions to the faith?)
-THEN, “how can we accommodate” (if can’t can terminate not on beliefs, but on actions or performance)
GROOMING STANDARDS, DRESS CODES
-Allowed to set “reasonable business standards” fitting in accordance with business needs.
-May depend on position
-Watch for ADA
-Physical Appearance: Weight, grooming, physical etc.
Abercrombie & Fitch “Look Policy”
Weight is a huge issue
Pornography: Access through computers
Court case: U.S. vs. Ziegler
Court Case: Doe vs. xyz corp
SMOKING:
Both “smokers” and “non-smokers” (freedom from 2nd hand smoke) may assert rights
-Be consistent
--Failure to maintain a smoke free workplace
CELL PHONE ISSUES:
-Prohibit use and texting on city vehicles etc.
-Use handsfree or pull over policy
NOTE: Can track cell phone records to see if driving and talking
