Hot topics in employment law SHRM presentation April 8, 2015

Polsinelli PC. In California, Polsinelli LLP
Hot Topics in Employment Law
April 8, 2015, SHRM Meeting

real challenges. real answers. sm
Hot Topics
Disability
Pregnancy Discrimination
Transgender/Gender Identity and Sexual
Orientation
Wellness Programs
Obesity

Charge Trends @ EEOC

Disability
ADAAA
American’s Health
Policies
– Leave
– Reasonable Accommodation

Pregnancy

Pregnancy Discrimination Act (PDA)
1. An employer may not discriminate
against an employee on the basis of:
– Pregnancy
– Childbirth
– Related medical conditions
2. Women affected by pregnancy, childbirth,
or related medical conditions must be
treated the same as other persons not so
affected but similar in their ability or
inability to work

PDA Coverage
Same as Title VII: 15 employees
Pregnancy and Childbirth:
– Current
– Past
– Potential
– Related medical conditions

Enforcement Guidance
July 14, 2014

What does this mean?
Effect of Guidance
Not binding on a court
May be looked to by a court for guidance
The EEOC will likely cite the guidance as
persuasive authority
Indication of charges EEOC may pursue

Why now?
Increase in Charges
– 1997: More than 3,900 pregnancy discrimination
charges
– 2013: 5,342 pregnancy discrimination charges
Intersection of ADA and PDA is an “emerging issue”
under EEOC’s Strategic Enforcement Plan (2013-16)
EEOC v. Houston Funding – lactation is pregnancy-
related condition
Young v. UPS – Supreme Court decision in 2015
ACA – FLSA nursing breaks amendment

Americans with Disabilities Act
Pregnancy itself is not an impairment, but some
pregnancy related conditions may be an
impairment under the ADAAA even if only
temporary. Such as pregnancy related:
– anemia
– sciatica
– carpal tunnel
– gestational diabetes
– nausea
– swelling
– depression

Regarded as Having a Disability
Employer reassigns pregnant welder
employee to position tracking use of tools
Employer thought welder position may
cause a miscarriage
No work restrictions
Less pay
Problem? Yes, ADA and PDA

Record of Disability
Police officer applicant completes a post-
offer medical questionnaire in which she
indicates she had gestational diabetes
during her pregnancy, but the condition
resolved itself after birth of child.
Department withdraws job offer.
Issue: Violation of ADA

Reasonable Accommodation
Redistribution of marginal functions
Altering how essential or marginal job
function is performed
Modification of workplace policies
Purchasing or modifying equipment
Modified work schedule
Granting leave
Light duty

Maternity, Paternity and Parental Leave
Policies
Two types:
1. Leave for physical impairments imposed by
pregnancy and childbirth
• Birthing mother only
2. Leave for care and bonding with the child
Mother (birth, adoption, and surrogacy)
Father – if made available to women,
must be equally available to men

Other leave issues
Forced Leave: No, as long as she is able
to perform her job even if the employer
believes it is in the employer’s best
interest.
Sick Leave: “10-day ceiling on sick leave
and policy denying sick leave during the
first year of employment have been found
to disparately impact pregnant women”
– Employer must show: job-related and
consistent with business necessity

Health Insurance
If offered, must include pregnancy,
childbirth, and related medical conditions.
If pre-existing covered, then must cover
pre-existing pregnancy.
Not required to cover abortion, but must
cover complications.

Enforcement Guidance: Related Issues
FMLA
Reasonable breaks for nursing mother
Young v. United Parcel Service, Inc.
– A pregnant worker sued her employer after she
became subject to a 20 lb. lifting requirement and
her employer refused to accommodate the
restriction in her current role or assign her to light
duty.
– Employer’s policy allowed light duty for those
injured on the job or with disabilities under the ADA.
– SCOTUS opinion issued March 25, 2015

Best Practices
Review and revise policies
Train managers (and employees)
Conduct employee surveys
Respond appropriately to pregnancy-
related complaints
Review and revise job duties

Best Practices
Monitor compensation practices and
performance reviews
Monitor case law
Careful about taking positions inconsistent
with guidance where no support in case
law is found

Transgender, Gender Identity and
Sexual Orientation

Why now?
2012 – Macy v. Holder – EEOC decision that
gender identity discrimination is covered by
Title VII
2013-16 – EEOC’s Strategic Enforcement
Plan – coverage of LGBT workers is an
“emerging issue”
September 2014 – EEOC’s first two suits
alleging gender identity discrimination
October 2014 – EEOC amicus in Muhammad
v. Caterpillar
December 2014 – Attorney General memo

Chavez v. Credit Nation Auto Sales, Inc, 2014
WL 4585452 (N.D. Ga.)
Adopts recommendations of Magistrate
Judge granting summary judgment to
employer
Employer supportive of employee in
gender transition process who is
discharged for sleeping on job
“nervous” employer not enough to
establish animus

Jamal v. Saks & Co., (S.D. Tex.)
Saks filed motion to dismiss on 12/29/14
Plaintiff alleges violations of Title VII
because of her “gender, gender identity
and gender expression”
Argues that not “gender” discrimination but
status as transsexual.
Argues not discrimination or harassment
due to gender

Federal Contractors
July 21, 2014 - Executive Order – Amending
Executive Order 11478, Equal Employment
Opportunity in the Federal Government, and
Executive Order 11246, Equal Employment
Opportunity
– Added “gender identity” and “sexual orientation” to the
list of protected categories

Wellness Programs

Why now?
“Very important” issue for EEOC in 2015.
NPRM – March 20, 2015
Relation to ADA

ADA Considerations
Wellness programs often involve disability-
related inquiries and medical examinations
General Rule: Under the Americans with
Disabilities Act (ADA), disability-related inquiries
and medical examinations must be job-related
and consistent with business necessity.
– The employer must have a reasonable belief based
on objective evidence that either:
an employee’s ability to perform an essential job function will
be impaired by a medical condition; or
an employee will pose a direct threat due to a medical
condition.
28

ADA Considerations
Wellness programs tend to be implemented “across the
board” without regard to an employer’s belief based on
objective evidence.
– Thus, the EEOC believes that wellness programs do not typically
meet the “job-related and consistent with business necessity
standard.”
The ADA permits disability-related inquiries or medical
examinations that are not job-related and consistent with
business necessity provided they are voluntary.
Employer may not require participation nor penalize employees
who choose not participate.
29

ADA: What Incentives Can be Considered?
EEOC still appears unwilling to shift from its current
position that the only way a wellness program can be
used is when the program is truly voluntary:
EEOC generally accepts the premise of a “reward” based
system (e.g., a premium discount) vs. a “penalty” (e.g., premium
surcharge)
Questions remain as to whether the amount of any award vs.
penalty has any impact over the “voluntary” nature of such
rewards/penalties
The “good news” is EEOC is finally taking a stance in
three recent court filings (including EEOC v. Honeywell
International, Inc., Case No. 14-cv-04517-ADM-TNL,
U.S. Dist. Of Minn, 10/27/14).
30

EEOC Claims
Honeywell recently announced revisions to its existing wellness
initiatives, to further encourage employees to participate in smoking
cessation programs and biometric testing with a blood draw.
– Refusal to participate in the biometric screening or smoking cessation programs result
in annual increases in premium contribution rates:
Denial of an employer contribution of $1,500 to the employee’s health savings account and up
to $500 for refusal to participate in biometric screenings; and/or
Up to $1,000 in additional premium costs for any employee (and a separate $1,000 for any
spouse) who uses tobacco and refuses to participate in smoking cessation program.
EEOC filed suit to prohibit Honeywell from implementing these new
programs based on a violation of the ADA (because the wellness
programs are not “voluntary” based on the penalties for non-
compliance) and GINA (because genetic health information is being
requested of a spouse, and his or her health history); Update:
Honeywell sought and received a separate injunction from EEOC’s
claims
31

Where Does this Leave Us?
Although the outcome of the Honeywell case is far from
over:
– Thus far there are no final determinations from EEOC or any
other agency that prohibit the usage of wellness arrangements,
and they are supported under PPACA, etc.
– It is better to “reward” healthy behavior (by reducing premium
costs) vs. “penalizing” unhealthy behavior
Don’t increase premium costs for those who choose not to
participate.
Consider additional incentives (but not additional costs) for
those with adverse health factors who participate in targeted
wellness iniatives (e.g. disease management)
– Ensure proper communication of reasonable accommodation
standards.
32

Obesity

Obesity
Body weight outside a normal range or body
weight that is the result of a physiological
disorder can be an impairment under the
ADA (29 C.F.R. Pt. 1630, App. § 1630.2(h))
Being overweight is not an impairment by
itself, but “severe obesity, which has been
defined as body weight more than 100
percent over the norm, is clearly an
impairment.” (EEOC Compliance Manual §
902.2(c)(5)

Obesity Evolves
Not a disability in and of itself
Conditions arising from obesity might be
“disabling”
Or, obesity caused by a physiological
condition (generally rare)
June 2013: AMA issues statement that
obesity is disease
– Does that make obesity a physical
impairment?

Powell v. Gentiva Health Servs, 2014 WL
554155 (S.D. Ala.)
Difference between impairment and perception of
impairment
Morbidly obese employee called on accounts for
hospice referrals. Testified that nothing about her
weight impacted her ability to do her job
Alleges actual and regarded as claims (although latter
not plead properly)
“That Gentiva may have believed its customers did not
want to buy hospice services from an overweight
salesperson is no more a perception of an impairment
than a belief that customers do not want to buy
hospice services from a salesperson with a brightly
colored rebellious hairstyle”

Whittaker v. America’s Car-Mart, Inc., 2014 WL
1648816 (E.D. Mo.)
Plaintiff alleges disability discrimination based on
severe obesity
On Motion to Dismiss Defendant contends that obesity
not disability itself unless related to an “underlying
physiological disorder or condition”
Plaintiff did not allege any underlying condition or
disorder
Plaintiff plead that he was severely obese which
resulted in a physical impairment (also “regarded as”
claims)
Motion to Dismiss denied since question of whether
Plaintiff could prove weight rose to level of disability
not an issue

Wrap-up
Disability
Pregnancy
Transgender, Gender Identity and Sexual
Orientation
Wellness Programs
Obesity

About the Presenter
Erin Schilling provides advice, counsel, and
peace of mind so that employers can focus on
what they do best – operating their business.
Erin provides counsel to clients on a variety of
employment issues including retaliation, leave
issues and discrimination including age, race,
disability, religion, national origin, and sex
discrimination. She also represents employers in
state court, federal court, and before state and
federal agencies, defending clients against these
claims. In addition, Erin advises clients on
OFCCP compliance including affirmative action
plan structure and preparation and represents
clients in during audits by the Department of
Labor.
Erin D. Schilling
Polsinelli
900 West 48th Place
Kansas City, MO 64112
816.374.0559
816.817.0138
eschilling@polsinelli.com
You may also visit us on the web at www.polsinelli.com or our
blog at www.polsinelliatwork.com.
39

About Polsinelli
Polsinelli provides this material for informational purposes only. The material provided herein is general and is not intended to be
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© 2015 Polsinelli PC. In California, Polsinelli LLP.
Polsinelli is a registered mark of Polsinelli PC
Polsinelli, a national law firm ranked among the Am Law 100 with over 740 attorneys located in
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Polsinelli attorneys successfully build enduring client relationships by providing practical legal
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100 service areas and 70 industries.
*The American Lawyer 2013 and 2014 reports

Hot topics in employment law SHRM presentation April 8, 2015

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