The United States Department Labor recently issued a Notice of Proposed Rulemaking to enforce President Obama’s September 2015 Executive Order establishing paid sick leave for federal contractors. Now that we have been able to digest the lengthy proposed rules, we wanted to share some of our thoughts about the proposed rules with you.

What do the proposed rules say?

The proposed rules require certain federal government contractors and subcontractors to annually provide their employees with up to seven (7) days of paid sick leave. The leave can be utilized for the employee’s own illness, to attend a doctor’s appointment, to care for a sick family member, or for absences related to domestic violence, sexual assault, and stalking.

If finalized, when will the proposed rule go into effect?

If the proposed rule is not challenged, it is expected that the rules will apply to certain contracts entered into with the federal government on or after January 1, 2017.

Will this proposed rule impact every federal contractor?

No. It will only impact four types of contractual agreements: 1) procurement contracts for construction covered by the Davis-Bacon Act; 2) service contracts covered by the Service Contract Act; 3) concessions contracts for services on federal lands (i.e. the snack stand at a national park); and 4) contracts in connection with federal property or land rentals/leases. So, if your company manufactures widgets for the federal government, the proposed rule likely does not apply to you. However, if your company is constructing a building for the federal government, providing a service to the federal government, renting space from the federal government or vice versa, your company is probably covered by the new rule.

Does the proposed rule apply to all employees or just the employees servicing federal contracts?

The proposed rule only applies to persons engaged in performing work on a covered federal contract. The regulations provide that an employee who spends more than 20% of his/her working time performing services in connection with a covered federal contract is also covered under these rules. However, as a matter of practice, it may be difficult to explain to your workforce why some employees are entitled to paid sick leave and others are not.

Under the rule, will employees automatically be entitled to paid sick leave?

No. The rule requires contractors to allow employees to accrue at least one (1) hour of paid sick leave for every 30 hours worked on a covered federal contract. The proposed rule envisions that contractors will be able to limit the amount of paid sick leave to 56 hours each year but must permit employees to carry over accrued, unused paid sick leave from one year to the next. Even though rollover is required, a contractor can prevent an employee from accruing additional sick leave in excess of 56 total hours.

The proposed rule requires the contractor to provide employees with at least a monthly update on the amount of paid sick leave the employee has accrued but not used. Employees will be permitted to take sick leave in increments of no greater than 1 hour.

How does an employee request paid sick leave under the proposed rule?

The proposed rule requires that the employee request (orally or in writing) the ability to take leave at least 7 calendar days in advance of foreseeable leave and as soon as practicable in all other cases. Worried the employee is faking it? The proposed rules only allow a contractor to require certification from a physician or other provider if the absence is for three or more consecutive days.

Is this really a big deal?

Assuming the new rules apply to your business, probably! Most American business already provide some type of paid time off or paid sick leave to their employees—and most provide in excess of seven (7) days. The Department of Labor estimates that this new proposed rule will only impact a relatively small number of people—about 437,000 employees—who currently receive no paid sick leave. But, because the proposed rule provides specific instructions regarding accrual, use, requests for leave, and rollover, this rule could impact how many employers administer their PTO and/or sick leave policies. The provisions regarding domestic violence, sexual assault, and stalking are also unique.  If certain requirements are met, a contractor’s existing paid sick leave or PTO policy could meet the requirements of the rule.

How can I let the federal government know my feelings on the proposed rule?

Provide comments by clicking on this link. You have until April 12, 2016 to do so.

Interested in learning more? Check out this Department of Labor Fact Sheet, shoot us an email, or give us a call. As this proposed rule moves toward final implementation, we are happy to assist you in developing a sick leave and/or PTO policy that complies with the President’s Executive Order.


The federal government’s enforcement efforts relating to equal pay are intensifying after President Obama’s recent announcement that the Equal Employment Opportunity Commission (EEOC) will begin to collect expanded information on pay data and hours worked from employers with 100 or more employees completing the annual EEO-1 form.

As we have previously reported on this Blog, the Obama Administration has taken unprecedented action over the past two years to increase the number of requirements imposed upon companies with federal contracts or subcontracts. These requirements have ranged from increasing the minimum wage for employees of federal contractors/subcontractors to $10.10/hour (now $10.15), new protections for LGBT workers, mandatory paid sick leave, and new regulations regarding pay transparency. Experts expected that the Administration would announce a rule for collection of pay data from federal contractors but most were floored when the President announced on January 29, 2016 that all businesses with 100 or more employees would need to provide pay data to the EEOC and the Office of Federal Contract Compliance Programs (OFCCP).

The EEO-1 report is an annual survey completed by most federal contractors and all employers with at least 100 employees. The survey requires employers to provide data on employees by job category, sex, race, and ethnicity. The EEOC announced that beginning with the report due on September 30, 2017, the EEO-1 report will be revised to include expanded information on pay data and hours worked. Pay Data will also be collated based on gender, race, and ethnicity. The new Section of the form can be found here. Per the EEOC, once the information is gathered, the data will be used to investigate discrimination complaints, identify pay discrepancies among males/females and minorities/non-minorities across various industries and job classifications, and to discover discriminatory pay practices. The Commission also intends to aggregate and publish the data in order to allow employers to evaluate their own pay practices to ensure compliance.

Secretary of Labor Thomas E. Perez said that the government cannot ensure equal pay unless it has “the best, most comprehensive information about what people earn.” We sincerely doubt that this new burden will do much to combat pay discrimination and that the information will have no practical utility in combating pay disparities. Those familiar with the EEO-1 form know that employees are divided up into 10 incredibly broad job categories. Within these broad categories, the EEOC has identified 12 pay bands for purposes of government reporting.

Comparing the W-2 wages of employees based on these broad categories, without the opportunity to demonstrate legitimate, non-discriminatory reasons or any context for pay decisions, will surely raise a red flag with the EEOC and could result in unnecessary and unproductive investigations. For example, your company might place all engineers into the “Professionals” category. If you have a female engineer who has worked for your company for 5 weeks making $129,000/year and a male engineer who has worked for your company for 5 years making $163,000/year, the EEOC’s metric will surely indicate potential gender discrimination when it is clear that no such discrimination has occurred (because the male has 5 more years of experience than the female).

Continue Reading EEOC Announces Proposed Collection of Pay Data with EEO-1 Reports

The Pennsylvania Supreme Court recently re-affirmed the principle that in order to have an enforceable non-compete agreement in Pennsylvania, the agreement must be supported by adequate consideration and that a statement merely agreeing to be “legally bound” doesn’t meet that requirement. The Court ruled against a waterproofing company hoping to enforce a non-compete agreement against one of its former salesmen.  The employer did not provide consideration but unsuccessfully based its argument on language from a 1927 state law called the Uniform Written Obligations Act (“UWOA”). The full opinion, Socko v. Mid-Atlantic Systems of CPA Inc., can be read here.

In the Socko case, after the start of his employment, a salesman (Socko) signed a non-compete agreement. The salesman was not given any additional consideration (such as a raise or access to new, confidential information) but the agreement did state that the parties intended to be “legally bound.” In seeking to enforce the non-compete, the employer attempted to rely on the UWOA which provides that a written promise “shall not be invalid or unenforceable for lack of consideration, if the writing also contains an additional express statement, in any form of language, that the signer intends to be legally bound.” The “magic” statutory language seems pretty clear, so the employer should easily win, right?  Several employers had won on this issue in prior Pennsylvania federal court decisions, so they felt optimistic about their chances.  However, the issue is ultimately controlled by state law, and that is interpreted by the Pennsylvania Supreme Court.

The Supreme Court rejected the employer’s approach. It noted that, while courts typically do not inquire into the adequacy of consideration, “the area of restrictive covenants in employment contracts is an exception to the general rule” and a non-compete agreement is unenforceable in Pennsylvania unless the employee receives an actual benefit in consideration for his/her agreement. Recognizing that non-competes have historically been disfavored by courts as a restraint on trade that prevent a former employee from earning a livelihood, the Court concluded that the salesman’s agreement lacked actual, valuable consideration and struck down the agreement as unenforceable.

What does this all mean? Well, without the availability of the UWOA’s “magic” language, for a non-competition agreement to be enforceable in Pennsylvania, non-compete agreements must be entered into either at the commencement of employment or, if entered during employment, supported by new and valuable consideration. In addition to the required consideration, the non-compete must also be reasonably necessary for the protection of an employer’s legitimate business interests and reasonably limited in scope, duration, and geographic coverage. In plain English, to be enforceable in court, the Agreement needs to be reasonable and either a) signed at the start of employment or b) supported by other adequate consideration (such as a monetary payment or a promotion).

Because reliance on the UWOA had been an iffy proposition for years, employers not wishing to test the parameters of the law had been following the consideration rules for years despite the potential beneficial language of the UWOA. The proposition that non-competes are generally disfavored by Pennsylvania courts and valuable consideration is needed to enforce them is not news to them. However, If you wish to review your current non-compete agreements or explore entering into non-competition agreements or other restrictive covenants for your employees (or if your business is considering hiring somebody subject to a non-competition agreement), contact any of the attorneys in the McNees Labor & Employment Group for guidance. If a competitor is trying to enforce a non-competition agreement on you or you are seeking to enforce a non-competition agreement against a current or former employee, legal action could be necessary within a matter of days, if not hours. If you find yourself in a situation where you need to prevent or stop the release of trade secrets or other confidential business information, contact the McNees Injunction team for immediate assistance.

As previously reported on this Blog, recent news reports indicated that President Obama would be issuing an Executive Order mandating paid sick leave for the employees of federal contractors. The President did just that on Monday (Labor Day). We have read the Executive Order and our analysis regarding its contents remains the same as when we reported on this issue last month. The Executive Order can be read here. The Executive Order is broad and much about the Order remains unanswered. We expect to have more answers to these questions when regulations are released by the Department of Labor on or around September 30, 2016. The requirements of the Executive Order will not go into effect until 2017.

We did notice one change from the draft Executive Order. In addition to “paid sick leave” including absences related to domestic violence, sexual assault, or stalking, if the time absent from work is for medical treatment/diagnosis, to obtain additional counseling, to seek relocation, to seek assistance from a victim services organization, to take related legal action, including preparation for or participation in any related civil or criminal legal proceeding, the final Executive Order also allows individuals to use paid sick leave to “assist an individual related to the employee . . . in engaging in any of these activities.” Recall from our prior post that an “individual related to the employee” is quite broad and includes “a child, a parent, a spouse, a domestic partner, or any other individual related by blood or affinity whose close association with the employee is the equivalent of a family relationship.”

Questions? Call meSchaun Henry, or your usual McNees Attorney contact.

We recently learned that President Obama plans to issue an Executive Order mandating paid sick leave for employees of federal contractors and subcontractors. This comes as no surprise as the President has utilized his power over the contracting community in recent years to further his policy goals that have stalled in Congress (such as increasing the minimum wage of federal contractors to $10.10 per hour and prohibiting discrimination based on sexual orientation and gender identity). We took a look at the proposed Executive Order. Here are the key takeaways:

  • Contractors would be required to provide a minimum of 56 hours of paid sick leave per year and employees would be able to accrue at least 1 hour of paid sick time for every 30 hours worked. Any accrued paid sick time would carry over from year to year.
  • Paid sick leave could be used for an employee’s medical condition, obtaining care from a doctor, or caring for a child, parent, spouse, domestic partner, “or any other individual related by blood or affinity whose close association with the employee is the equivalent of a family relationship.” While the Executive Order is still in draft form, it seems that one could arguably take paid sick leave to care for a close friend.
  • Paid sick leave could also be used for absences “resulting from domestic violence, sexual assault, or stalking, if the time absent from work is to seek medical attention, obtain counseling, seek relocation, seek assistance from a victim services organization, or take related legal action, including preparation for or participation in any related civil or criminal legal proceeding.”
  • Employers paying employees fringe benefits under the Service Contract Act and Davis-Bacon Act would not be able to receive credit toward prevailing wage or fringe benefit obligations by providing sick leave to satisfy the Executive Order.
  • Contractors would only be able to require certification from an employee (such as a doctor’s note) if 3 or more consecutive workdays were missed.
  • Here is one employer-friendly provision: contractor’s would have no obligation to pay out the value of unused sick time to employees upon separation of employment.
  • Detailed regulations would be issued by the Department of Labor no later than September 30, 2016.

Will this Order apply to your company? If you have federal service or construction contracts or subcontracts, the answer is almost definitely yes.

We stress that the above anakysis is based off of a draft Executive Order obtained by The New York Times. While it seems likely that the President will soon issue an Executive Order, nothing is set in stone. The new regulations would go into effect on January 1, 2017, just 20 days before the end of President Obama’s second term.

We’ll keep you updated. Stay tuned. In the meantime, if you have concerns, please consider contacting your local Chamber of Commerce, Representative, or Senator.

The U.S. Department of Labor Wage and Hour Division recently released new guidance for businesses in an attempt to provide clarity and notice to organizations that may have individuals performing services for them who are improperly classified as independent contractors. The unsurprising summary? The DOL believes that the vast majority of such individuals performing services for employers are “employees” under the Fair Labor Standards Act (FLSA), and the DOL will pursue employers who it believes have misclassified “employees” by labeling them as “contractors.”

Per the guidance, the key question to ask when determining whether somebody is an employee under the FLSA is whether the individual is truly in business for himself/herself (a contractor) or if he/she is dependent upon the employer for work (an employee). Merely calling someone a “contractor,” having the individual sign an independent contractor agreement, and/or giving the individual a Form 1099 does not make the individual an independent contractor. In order to actually determine whether someone is an independent contractor or an employee under the FLSA, courts use a multi-factor “economic reality” test. While different courts have applied different permutations of these factors, courts generally ask:

  • Are the services being performed an integral part of the employer’s business? If you are operating a restaurant, your cooks and wait staff are going to be employees. The person who comes and fixes the oven a few times a year? That person probably may be properly classified as an independent contractor. DOL warns that those teleworking at home or utilizing a flexible work schedule can still be “integral” to the employer’s business and thus employees.
  • Does the individual’s managerial skill affect his/her opportunity for profit or loss? Can the individual lose money by performing services for you? If so, there is a good chance they are a contractor. Here courts will consider whether the individual can make decisions that impact how much profit or loss he/she realizes.
  • How does the individual’s relative investment compare to the employer’s investment? If the individual has not made any type of investment in the work (such as providing his/her own tools or workspace), then the individual is likely an employee. But just because individuals provide their own tools does not automatically make them an independent contractor.
  • Do the services performed require special skill or initiative? Does the individual demonstrate managerial and business skills indicative of an independent contractor? Does the individual market his/her own services, determine when to order materials, and determine when to fulfill orders or requests? If yes, the individual more likely could be properly classified as an independent contractor.
  • Is the relationship between the individual and the employer permanent or indefinite? Is the individual performing services on one small project or does the individual perform services continuously and repeatedly for the same employer? Does the relationship continue indefinitely until one party decides to end it? If yes, the individual is likely an employee. Part-time workers and temporary workers are still employees if hiring such individuals is an operational characteristic intrinsic to a particular industry.
  • What is the nature and degree of the employer’s control? Does the employer control the hours of work, manner of dress or how the individual performs a particular job or service?

In considering these questions, each factor is analyzed in relation to one another and no single factor is determinative. The factors should not be looked at as a “checklist” and are to be considered in their totality.

Properly classified independent contractors are typically not entitled to minimum wage, overtime, benefits, unemployment compensation, or workers’ compensation. We expect that the Plaintiff’s Bar will attempt to use the DOL memo as a basis to file more lawsuits on behalf of individuals allegedly improperly classified as “contractors” in an effort to recover unpaid wages and benefits. Keep in mind that the DOL believes that almost all those performing services for a business are employees rather than contractors, so in the event that the DOL comes knocking, you already know how they will view the relationship.

What can you do to ensure your independent contractors are truly “contractors” in the eyes of the law? We recommend that you audit your practices by considering the relationship you have with all contractors and reviewing the duties of those classified as such. Attorneys in the McNees Labor & Employment Group regularly conduct audits to make sure that such individuals are properly classified and that employers are complying with the requirements of the FLSA and applicable state wage and hour laws.

Quick. Answer this: if one of your employees tells his supervisor that he needs surgery and will miss 2-3 weeks of work, do your managers know what to do? Do they call the employee’s surgeon? (NO!) Do they know who to speak with in HR and can they identify the above scenario as a potentially FMLA-qualifying event? Does your HR team know the steps to take when they become aware that an employee may need FMLA leave (including making an initial decision regarding potential eligibility and issuing a Notice of Rights and Responsibilities to the employee)? If not, consider training your managers, supervisors, and entire HR team on your company’s leave of absence management process.

Plaintiffs’ attorneys are on the hunt for violators of the complex federal law known as the Family and Medical Leave Act—even the smallest of errors can result in significant liability. And what’s one of your best defenses that even the courts recognize? Training!

Under the FMLA, an employee is entitled to liquidated (i.e. double) damages if an employer has violated the Act. What does this mean in plain English? Well, if an employer is found to have violated the FMLA and an employee has suffered $50,000 in damages, the damages are automatically doubled to $100,000 unless the employer’s violation of the law was in good faith. How does an employer demonstrate good faith? One federal court in Indiana recently wrote that “[e]vidence of whether the [employer] provided proper training, adhered to policies, and engaged human resource and FMLA personnel will assist the trier of fact in assessing” whether the employer’s actions were in good faith.

Training your managers and supervisors on FMLA issues just makes sense. With proper training, you can avoid an FMLA claim altogether—and if a manager or supervisor does err in implementing the FMLA, evidence that your company educated managers and supervisors on the law will prevent you from incurring double damages.

For more information on FMLA training and other training programs you can provide your workforce, check out the McNees Training Academy!

This post was contributed by Ambria Armstrong, a Summer Associate with McNees Wallace & Nurick LLC. Ms. Armstrong is a law student at William & Mary Law School and is expected to earn her J.D. in May 2016.

The Occupational Safety and Health Administration (OSHA) requires that all employers covered by the OSH Act provide employees with sanitary toilet facilities so that employees will not suffer adverse health effects if toilets are not available when employees need them. According to the Williams Institute at UCLA, an estimated 700,000 adults in the United States are transgender. In some workplaces, transgender employees have been unable to utilize the restroom that corresponds with their gender identity.

On the same day that Olympic Athlete Caitlyn Jenner (formerly known as Bruce Jenner) appeared on the cover of Vanity Fair Magazine to announce to the world that she had transitioned from male to female and just a few days before the Pennsylvania Senate voted 49-0 to confirm Dr. Rachel Levine, a transgender woman, as the Commonwealth’s new Physician General, OSHA issued guidance titled “A Guide to Restroom Access for Transgender Workers.”

What does it mean to be transgender? According to the Human Rights Campaign, transgender people are individuals whose gender identity is different from the sex assigned to them at birth. Gender identity is a person’s innate, deeply-felt psychological identification as a man, woman, or some other gender. Per the OSHA guidance, “a transgender man may have been assigned female at birth and raised as a girl, but identify as a man. Many transgender people transition to live their everyday life as the gender they identify with. Thus, a transgender man may transition from living as a woman to living as a man” and vice versa. Transition might include social changes (including names and clothing), medical steps, or changes to identification documents. “Sex” and “Gender” also have different meanings. Sex refers to the designation of a person at birth as male or female based on their anatomy and hormones, whereas gender refers to the cultural roles, behaviors, and attributes expected for men and women.

OSHA makes a number of recommendations for companies to take to ensure that all employees are permitted to use the facilities that correspond with their gender identity—meaning that a person who identifies as a man should be permitted to use the men’s restroom and a person who identifies as a woman should be permitted to use the women’s restroom. In addition to this overarching principle, OSHA recommends that employers:

  1. Consider providing optional alternative bathroom facilities such as single-occupancy gender-neutral facilities or the use of multiple-occupant, gender-neutral restroom facilities with lockable single occupant stalls.
  2. Do not ask transgender or transitioning employees for any medical or legal documentation of their gender identity in order for them to have access to gender-appropriate facilities.
  3. Do not limit transgender employees to facilities that are an unreasonable distance or travel time from the employee’s worksite.
  4. Above all, be respectful and ensure all employees are treated with dignity and are free from harassment. Do not make assumptions, and if in doubt about which name or pronoun to use, ask (appropriately and respectfully). Education is key, and open conversations are essential.

While not strictly necessary, employers may wish to consider adding “gender identity” (and “sexual orientation”) to non-discrimination policies. While neither Pennsylvania nor federal anti-discrimination laws list “gender identity” as a protected trait, the EEOC has held that discrimination against an individual because that person is transgender is discrimination because of “sex” and therefore is covered under Title VII of the Civil Rights Act of 1964.

Need help developing transgender policies or procedures? Give us a call.

This post was contributed by Paul Ritchey, a Summer Associate with McNees Wallace and Nurick LLC. Mr. Ritchey is a law student at the University of Virginia School of Law and is expected to earn his J.D. in May 2016.

We have seen it before: boss shouts (or glares, or laughs) at subordinate, and subordinate’s feelings are hurt. But it’s not only feelings that are hurt, and angry bosses aren’t the only ones offending. Workplace bullying can occur within many kinds of professional relationships, and when it does it can impact an employer’s bottom line just as easily as an employee’s feelings.  To reduce turnover, sick days, and legal liability, as well as the promotion of a more harmonious work environment, employers should consider whether implementing an anti-bullying policy is right for them.

Workplace bullying has recently gained increased attention within the human resources community. A 2012 survey, conducted by the Society for Human Resources Management, reported that more than half of employers surveyed had experienced incidents of bullying in their workplaces. Of these, only 43% reported having a workplace anti-bullying policy.

With increased attention has come new initiatives to reduce personnel problems and legal risks that can arise from workplace bullying. As with any hot topic, lawmakers have joined the action as well. For example, in 2014, California passed Assembly Bill 2053, amending its regulations to require employers to incorporate training on “abusive conduct” into its already mandatory anti-harassment training.

While the California law simply requires training about broadly defined abusive conduct, other jurisdictions, including Pennsylvania, are working on legislation with more bite. Pennsylvania’s proposed “Healthy Workplace Act” is illustrative. As written, the Pennsylvania law would prohibit employees from being subject to an “abusive work environment.” The Bill defines “Abusive Conduct” as any act “intended to inflict and resulting in physical or psychological injury.” Like most non-discrimination laws, the Bill also contains an anti-retaliation provision.

The Bill would also provide a number of affirmative defense for employers, similar to the affirmative defenses available under Title VII. If no adverse employment action such as termination or demotion takes place and the employer can demonstrate it exercised reasonable care in preventing and/or correcting illicit conduct, and the complaining employee failed to take advantage of those preventive measures, the employer can avoid liability. The Bill also indicates than an employee can be individually liable for a violation of the Act. The proposed Law would impose civil liability on employers for any conduct of its employees that subjects an employee to abusive conduct and would allow for remedies including reinstatement, damages for emotional distress, punitive damages, and attorneys’ fees.1403682953dxk6k

While unlikely to pass, if adopted, the Pennsylvania Healthy Workplace Act would surely make employers the target of a plethora of frivolous lawsuits.

However, even in the absence of a legal requirement to do so, many workplaces could benefit from the implementation of an anti-bullying policy. Some of the costs of workplace bullying are obvious: impaired communication, increased turnover, and a less-than-enjoyable workplace.  But there are more complicated effects that employers might not immediately realize. According to the American Psychiatric Association, bullying can cause psychological harm, causing an employee to miss work for treatment. Further, anti-bullying policies could prohibit abusive behaviors in the workplace that are not based on protected traits (think weight, fashion sense, and political affiliation, for example) and might not be prohibited by other employment policies. While an anti-bullying policy might not stop abusive conduct immediately, it can send a clear message from the employer that bullying will not be tolerated. If well crafted, an anti-bullying policy can work toward reducing the wasted energy and needless tension so often produced by workplace bullying.

This post was contributed by Matthew Garber, a Summer Associate with McNees Wallace and Nurick LLC.  Mr. Garber is a law student at Rutgers University School of Law – Camden and is expected to earn his J.D. in May 2016.

Last week, in EEOC. v. Abercrombie & Fitch Stores, Inc., the Supreme Court addressed religious accommodations under Title VII of the Civil Rights Act of 1964.

The background of the case dates to 2008.  A young woman named Samantha Elauf interviewed for a position with the clothing retailer Abercrombie & Fitch.  Elauf’s interviewer, an assistant store manager named Heather Cooke, gave Elauf good marks on the interview—good enough to be hired.

Despite Elauf’s high marks, Cooke was concerned about the fact that Elauf wore a head scarf—a violation of Abercrombie’s “Look Policy,” which prohibited the wearing of any “caps.” Notably, “caps” are not defined under the Abercrombie policy. Although Cooke did not ask Elauf about the head scarf, she suspected that it was a part of her religious observance.  (Elauf is, in fact, a practicing Muslim.)  After conferring with her district manager, Cooke was directed to not hire Elauf, as any head covering (religious or not) would run afoul of the Look Policy.

The EEOC sued Abercrombie under Title VII of the Civil Rights Act, which forbids employment discrimination against an individual based on the individual’s religious practices or beliefs. Employers are required to reasonably accommodate religious observances or practices unless the employer can demonstrate undue hardship on the conduct of the employer’s business.

At trial, Abercrombie did not focus on demonstrating undue hardship.  Rather, Abercrombie argued that a job applicant cannot prove intentional discrimination if the company did not know of the applicant’s need for an accommodation.  Abercrombie asked the Supreme Court to place the burden of seeking accommodation onto the job applicant.  In Abercrombie’s view, Elauf should have stated her need for an accommodation to the employer before the employer could ever be accused of intentional discrimination.  (Makes sense, right?)

By a decisive 8-1 vote, the Supreme Court rejected Abercrombie’s argument.  Writing for the majority, Justice Antonin Scalia held: “Motive and knowledge are separate concepts.  An employer who has actual knowledge of the need for an accommodation does not violate Title VII by refusing to hire an applicant if avoiding that accommodation is not his motive.  Conversely, an employer who acts with the motive of avoiding accommodation may violate Title VII even if he has no more than an unsubstantiated suspicion that accommodation would be needed.” Huh??

Essentially, employers are prohibited from making an applicant’s religious practice a factor in an employment decision.  Whether the need for an accommodation is merely suspected or fully confirmed, religious practices are protected under Title VII.

What Does This Mean For Employers and Hiring Managers?

  1. Explain the essential requirements of the position—then put the ball in the applicant’s court.  The good news is that interviewers do not need to go “fishing” for potential accommodations.  (The problem with Abercrombie was that it made a suspected need for an accommodation a factor in deciding not to hire Elauf.)  Rather, interviewers can explain their essential job requirements and ask the applicant whether any accommodations would be required.
  2. Document hiring decisions.  The Abercrombie decision does not mean that overtly religious applicants are to be given preference.  Rather, a religious practice may not be a motivating factor in an employment decision.  Documentation showing the internal evaluation process of a candidate—all based on legitimate factors unrelated to any protected traits—will go a long way.
  3. “Undue hardship” remains intact.  Religious accommodations are not always feasible.  If you believe accommodating a religious practice will create an undue hardship, be prepared to articulate the reasons.  Proactively consult legal counsel so you can be sure you are on solid ground before such a situation arises.