August 21, 2015

Facilitator: Welcome to today’s live webinar entitled From Religion to Romance, Bullying to FMLA Abuse: Avoiding and Handling Thorny Employee Issues. At this time, I would like to turn the call over to your host, Jennifer Trulock. Please go ahead.

Jennifer: Hi. Good afternoon, everyone. It’s a pleasure to be here with you and glad to have the opportunity to talk through some interesting topics with you today with my colleague, Shiquan Lewis. And so, we have a limited amount of time and so we’re going to dive right in. The first of our four topics is how to handle relationships in the workplace. Somehow, this is a topic that actually never seems to get old, always happens. And be realistic. A friend of mine gave me a couple of Latin phrases and lawyers I guess are big on Latin phrases. I never had them but I thought the couple I put on this slide was ... were pretty funny. Be realistic. Amor vincit omnia. Love conquers all. The fact is that employees spend more time than ever working. Today’s workplace is right for romance because people are spending so much time working that they tend to meet most people through work.  It seems like workplace romances are inevitable. I have seen some employers who try to have a zero tolerance policy for and just ban workplace romance all together. If you’re a large employer, you realize that that is completely unrealistic.  In fact, it can make the problem worse than ever.  Why? This is my favorite phrase, I’m sure I will mangle the Latin so forgive me. It’s the alitur vitium vivitque tegendo means that vice is nourished by being concealed so it makes it all the more exciting if you have to hide it from your employer.

We typically don’t recommend having a zero tolerance policy. Instead, try to deal with it as it comes up because it will come up. And what we try to do with our clients is take a look at what the challenges are when you have relationships in the workplace and some of the very real challenges are issues of favoritism where you believe that the person having a relationship in particular, one of the people in the relationship is a supervisor, that there are maybe some sort of favoritism involved. Whether there is or there isn’t, perception is reality and that can create problems in the workplace. You also may have workplace harassment claims. If someone is trying to start a relationship with someone and it’s unwanted or if someone wants to try to continue a relationship that the other party doesn’t want to continue, that can lead to harassment claim. There can also be embarrassing or destructive confrontations, stalking, even potential workplace violence. That is certainly an issue. Then, you see just the general embarrassment, you know. We have all seen the CEOs who have resigned and then in the news that they wind up marrying someone who is with the company or it turns out they are getting a divorce because they are involved with someone that they work with. There is potential damage to the employer’s relationship.

How do you do damage control? How do you address the challenges that come with workplace romances? First of all, you probably do need to have some policies or at least some practices in order to make sure that you know how you’re going to deal upfront with things like favoritism or what are you going to do with behavior that’s unwelcome. You can’t stop love, right? That’s pretty much impossible but you can certainly manage the behavior that’s going to compromise the workplace. Couple of recommendations. First of all, in terms of dealing with paramour favoritism, it’s a pretty interesting concept. In general, it’s not illegal, believe it or not, to treat someone that you’re having a relationship with more favorably. If you look at the EEOC Policy Guidance on paramour favoritism, treating someone you’re involved with, granting benefits due to a relationship, the interesting thing is it may be unfair, but it’s not discrimination based on gender. It doesn’t discriminate because someone is a male or a female. It’s discrimination based on a particular relationship that you may have. And so, but, what the EEOC Guidance also says is that if it is widespread, if there are too many people that are being favored, then you may think that the way to get ahead at the company is by engaging in sexual conduct, that may be an issue and it may be a hostile work environment.

The sentinel case on the issue is the Miller versus Department of Corrections case out of California. It’s actually a pretty crazy case. It comes out of the Department of Corrections where a man who was the warden of a prison out there, it turns out he was having serial affairs and he had an affair with his secretary, he had an affair with the associate warden, and he had an affair with another colleague. After they had or during the affairs, all three of these women were promoted. It was apparently a great thing to have an affair with the warden. But, unfortunately, for two women who were not chosen by him for an affair, they were passed over for promotion. And so, they sued the Department of Corrections claiming that there was a promotion scheme and that they were left out because they were not selected to have a sexual affair with the warden. They had a hard time with their law suit but eventually got to the California Supreme Court and because the trial court had granted summary judgment in favor of Department of Corrections saying that, “Look, it’s not unfair. It’s not fair, but it’s not discriminatory against men or women,” but the California Supreme Court said, “Look, this is clearly something that is benefiting only women that this guy chooses to have a sexual affair with and we’re going to send it back and so it goes to trial because it’s a certain subset of women who are being favored by this particular warden.” And so, this small group was too favored, so that was kind of interesting.

And then, contrast that case with a more recent Iowa case, Knight versus Nelson, where you have the case of a dental hygienist and she was very attractive apparently, and the dentist’s wife is like, “Look, buddy. It’s her or me.” And, the dentist was like, because he thought that the hygienist was also very attractive. And so, he basically fired her to save his marriage because he was afraid that he was going to try to have an affair with her. She sued him for gender discrimination. She didn’t sue him for hostile work environment or anything like that. She sued him and lost. It went all the way to the Iowa Supreme Court.  In 2013, they held, “Yeah, you know, it wasn’t a decision. He is not discriminating against this woman based on her gender. He is basically firing her because he is worried that he is going to have an affair with her.” So, it was kind of a bizarre turn of events because it was just one employee and he didn’t fire all of the attractive one in his office but just this one woman.  The dentist was able to escape liability. Okay.

Some things to consider. This doesn’t happen in most workplaces but it is kind of fun to think about and talk about. Every now and then you’ll across the guy who engages in serial affairs, but it is important to consider talking about it in your workplace harassment training, especially if you have employees in California. I think in sexual harassment training, in general, it’s important to provide a lot of examples when you are doing your training. I think it’s helpful to include paramour favoritism in your harassment training as an example. Also, solutions to consider is try to discourage and avoid relationships between supervisors and subordinates. That’s where you really have to talk to your managers and supervisors about the risk and if a supervisor engages in a relationship with a subordinate, that’s where the company may need to step in and say, “You know, it’s fine that you are having a relationship but we need to change the reporting chain to where, you know, you guys are not within that chain and there’s no common or promotion ability or hiring and firing ability that that manager will have on that subordinate that they are in a relationship with."

And then, when the other more common problem is when love goes wrong and then all of a sudden, if especially if one person wants to keep the relationship going and they behave accordingly, or one person is bitter about the breakup and then formerly welcome behavior becomes unwelcome or a volunteer in a relationship now becomes an objector. Now, the employer unfortunately becomes a bit of a referee.  The referee has to now step in to the relationship, has to know when to call time out, when to keep the parties apart and what rules to apply. Of course, the rule book is the employer’s workplace harassment policy. I think of that as one of the most important policies that any employer can have in their handbook. It has to be readable, user friendly for everyone. Everyone needs to be educated on it but especially supervisors need to understand what their responsibilities are. If an employee comes and explains that they used to be in a relationship with this person, but now that person still wants to be involved, the employer can’t really say, “Well, you just need to keep that behavior at home,” or,  “Don’t bring that behavior into the workplace.” If they are coworkers, it’s in the workplace. And so, unfortunately, the employers in the position of having to investigate the complaints promptly and thoroughly and taking action where appropriate in the workplace.

And then, some employers like to consider and require employees enter in to some sort of love contract. And so, I don’t put you guys to sleep. Does your employer or do you have your clients that require love contracts? And so, you get to actually vote in the poll. And so, if you can go ahead and click on yes or no or hey, we do this on a case by case basis. I can see from, I can see like the real time answers as you guys vote. There are a couple of… So far, we have 8% yes and 92% no and then we have 0 case by case basis which is kind of interesting.  I don’t know if you remember when the office was on, but the supervisor, Michael, got in to a relationship with the HR Manager, Jen, and the office under [inaudible] require that Jen and Michael enter into a love contract.  It always makes me laugh because Michael saw the love contract as proof of Jen’s love. He didn’t really get the point that it was actually setting forth what was going to happen in their relationship if things went wrong and, of course, being that it was the office on television, things of course went very wrong. But, that always makes me laugh. And so, it’s an awkward situation to have employees enter into a love contract. When do you do it? At what point in the relationship? Is it serious enough? Do you do it like after they have been on a couple of dates? Do they have to change their Facebook status in a relationship? I think that’s hard for employers to say, “Okay, you know, now is the time where you have to enter into a love contract.”

And some employers choose instead to do what we call a love note which is just a simple reminder that I understand that you’re in a relationship. That’s all fine and good. Just want to remind you that we expect you to comply with our policies which include,  “Here is our policy on professionalism at the office and here is our policy on workplace harassment.” Make it an invitation to speak up if there are some sort of difficulties in the workplace that arise and I would make it clear that it should be difficulties in the workplace.

And so, I was also curious if the people listening in on the webinar, if you require one of the members of a supervisor and subordinate relationship to transfer out of the supervisory chain or, if that’s not possible, to leave the company. I have seen it where the company  allows it to go up to the employee, or if they say, always it’s the supervisor who stays or always it’s the subordinate who stays. I have seen it where the company will decide who stays or goes, and then lots of employers just say nothing about it at all. It will be interesting to know if you guys have any such requirements. Right now, just seeing two answers so far. I’m seeing a little over 60% yes. Oh no. Now, we have 3 answers. We have 7% yes at the employee’s choice, they can decide who will move. See a little over 50%, about 55% yes, but the company will make the choice. And then, 35% of you said no, we don’t have that requirement. And I think you can do whatever you want on that but it may give you as an employer some freedom if a supervisor and a subordinate get in to a relationship, we’re going to require one of you to get out of the supervisory chain. If we can’t find a way to transfer you out, then the company will make a choice as to who leaves the company because you may think that one of the employees is way better than the other. But, if you leave the choice up to the employees, inevitably, it’s going to be the weaker person that decides to stay because that’s just how things always tend to work out in the real world. Just some food for thought on what you might want to do.

What’s our conclusion when it comes to workplace romance? Don’t try for the zero tolerance because pretty much love in the workplace is inevitable. As always, we want to hope for the best and plan for the worse with good policies and thinking ahead. You do want people to be open about having relationships because you want to know that it’s going on. You want to be aware. If people are hiding it, it seems like there is more of a likelihood for problem. And always treat each situation on its own unique facts. I’m going to turn it over to Shiquan now who is going to talk to you about a very timely issue, the issue of workplace bullying.

Shiquan: Thank you, Jennifer. Workplace bullying, this is a relatively prevalent topic in the workplace right now and a lot of folks are talking about it. And, as we go through looking at this together, it will be interesting to see what the research says about whether or not workplaces, the American workplace is actually addressing this. We’ll take a look at that. But, first, let’s talk about actually what workplace bullying is. It’s this idea of someone being repeatedly mistreated. It doesn’t always have to be by a group of people but it certainly can be. Sometimes, it’s just one employee and that can look and feel like a number of different things. It could be verbal abuse or threats, intimidation, trying to mess them up, mess someone up as they are doing their job. I mentioned to you earlier that it’s a pretty prevalent thing. We should know that around 35% of the American workforce has reported being bullied at work and that amounts to right around 53 and a half million people. But, only half of employers in the American place have a workplace bullying policy. There are some that, a symmetry that I kind of set up as a harbinger earlier to a big topic. A lot of people are experiencing it, yet only half of employers are actually having policies in place with this.

We should take a moment to sort of appreciate the cause that are associated with bullying. One obvious measure is going to be a sort of the financial projections and we see loss productivity measurements all the time. If you remember, every year, March madness, they try to figure out how much productivity is lost in the workplace because people don’t go to work or people will call out sick. Well, as it pertains to workplace bullying, around 5 to 6 billion dollars are loss in productivity. That manifests itself in a couple of different ways, increase turnover, so we can imagine having a hard time trying to replace folks that they are coming and going and the recruiting cost associated with that. Absenteeism, so maybe you are having to backfill folks or give people overtime in order to replace folks that aren’t showing up to work because they are being bullied. There’s just the idea of hours lost and there are also the legal risk and we’ll touch on that a little bit more.

But, the nature of bullying has actually changed. You see, the first go we had in the ‘70’s, it was physical and I don’t think that’s happening in Facebook. The idea we are trying to convey here is that there was a point in time in which, a few decades ago, bullying manifests itself in physical acts and we thought that meant that someone is being beaten up or being threatened to be beaten up and that’s not so much what employees are reporting today. 62% of folks stated that looks and feels like having their work or their reputation sabotage. 52% of people say that’s browbeating or threats or intimidation, and then, you see, there’s a very small number. Only 4% of folks now are saying that’s about physical intimidation or assaults. As we look at the 21st Century workplace, we should be really careful and mindful of what bullying actually looks and feels like to people and it may not be what it was 25 or 30 years ago.

Who is actually doing this bullying? Overwhelmingly, people report that they feel like it’s coming from their bosses. You see here, 56% of folks say they feel like their bosses are bullying them. About 3rd of folks experienced it from their coworkers and 11% actually experienced from their subordinates. I guess that’s a brave population of folks that find it appropriate to bully their bosses.

Now, there are some legal protections for people who actually report bullying as an issue. One of the big ones is going to be Title VII and we’ll touch on Title VII a couple of different times before we’re done. But, generally, civil rights laws operate a couple of different ways. They seek to stamp out discrimination, to reduce disparate treatment, and to remove the cause of the hostile work environment. But, we should know that the biggest hook here is having membership in a protective class. About a lot of people will report that they feel bullied but as the way the law is set up, really only about 20% of that is illegal. Another way say that it's 80% of bullying activities are actually legal. If you can’t hook the bullying that someone says that they experienced to their membership in a protective class, be that race or gender, then a lot of times it’s really not a big legal hook there, so we just sort of recognize that. But, the big point is this, courts are not trying to get involved in personnel matters. What they really want is employers to actually handle that. They want that the private market, the workplace actually resolve these issues. I’ll just give you a great quote as an example from Holman Ci in Indiana. This is a Federal court case in Indiana and the court said this, “It is for Congress to decide whether to address bad workplace behavior that cannot be labeled as discriminatory. Again, that connects us back to this idea of membership in a protective class and being able to tie discrimination to that and that being really would get people on the hook as it pertains to workplace bullying.

So, what does that legal liability actually look like from a sort of a mechanical or procedural standpoint? Again, Title VII, that’s of the Civil Rights Act of 1964, it’s a big linchpin. We will touch on that a little bit more. But, there are a couple of causes of action that we want to bring to your attention in hopes that it helps you make a little more sense of this. The first will be intentional infliction of emotional distress. That’s [inaudible] basically the idea here is that extreme or outrageous conduct is designed to intentionally cause a one severe distress. And, in placement in which you see that successful is usually tied to racial insult or a gender based discrimination, and then threat of physical security. But, again, remember that very rarely are we seeing people report that physical concept is actually what their bullying looks and feels like at the workplace. There is also this idea of interference with the employment relationship and basically that is making it hard for someone to get their job done. We’ll have a chance to visit that in just a little bit more. But, other ideas are just whistle blower harassing, this idea that someone reports something and then they feel retribution from a supervisor, from their coworkers as a result of that. And then, defamation on the assault or the attack of someone’s character.

One thing I’d like to call your attention too is this idea of the Healthy Workplace Bill. If you want, jot this down, healthyworkplacebill.org. Again, healthyworkplacebill.org. It’s a website that you can actually go and take a look at what Healthy Workplace Bill look like. About 28 states in the country so far have introduced something that’s in line what is modeled here and you’ll see that at the website. California had not done so but, they had passed the law that requires training on an abusive work environment. This idea of a Healthy Workplace Bill basically, these laws tend to define what an abusive work environment is. They require actual proof of harm to someone that complains. And then, if the employer has internal correction or preventive mechanisms, then, that actually, in some cases, can shield them from vicarious liability. And then, of course, it provides the private right of action for the victim to pursue retribution to the legal system. Again, heathyworkplacebill.org would be a place to go and take a look at and kind of understand what’s going on.

One thing we’ll look at as well in understanding this is the idea of what do bully victims look like. In this chart we have here for you and I’ll talk you through the numbers. It really measures the targeting witnesses. In the case of, you see, 57% here with the Hispanic population, so that means 57% of the Hispanic population has either been a target of bullying or has witnessed bullying. You can go through and read the numbers there with that in mind. One thing I sort of would lift up for us to consider here is that if you look at the Hispanic population, the African American population, and Asian population, you will notice that that all outpaces the national average which is 48% of people that are either targets or witnesses to bullying. The Workplace Bullying Institute which maybe another group you want to check out online. They say that bullying basically compounds discriminatory conduct. And, again, we can kind of see it as we look at the racial and ethnic minorities that we have here on this list and how their experiences outpaced not only that of their white counterparts, but that of the national average as well.

To dig into this just a little bit more, we have a chart here for you to consider that here are the ways that people along racial and ethnic lines, the way that they attribute bullying, why they think bullying happens the way that they explain it. And so, notably here, you can see that 32% of the Hispanic population said that this is about the target. Whatever it is, there is something about the target that attracts the bullying or somehow the target is to blame. That’s a prevalent thought as they compare to other racial groups. 47% of white respondents said that this is about the perpetrator’s attitude. They blamed this on the bully him/herself and not any other notions.

If you go down to this concept of employer factors, here, you see that Asian Americans and African Americans as compared to their white counterpart really do say that this is more about something that’s happening in the workplace, it’s something about the work environment and they attribute the reasons to that as compared to the bully him/herself or as compared to the target like we discussed with these other groups. And then, finally, African Americans almost overwhelmingly as compared with other racial groups say that there is something about suicidal factors that contribute to the race and bullying experience.

Seeking to just understand who bullies and victims are, we can look and see that overwhelmingly in the workplace the bullies are male. 69% of bullies are male and 31% are female. And then also, we see that both of these groups that the primary target here are females with 57% of female targets for male bullies and 68% of female targets for female bullies.

Just a quick [inaudible] in that slide we just looked at, we can see that even though there is [inaudible] or this breakdown between what percent are male bullies, what percent are female bullies and what are the genders of the targets, we should recognize that most bullying is actually same gender. In fact, it’s reported that 77% of these cases are same gender bullying. In those situation, it can be hard to show discrimination. One case that will call your attention to is EEOC versus the National Education Association in Alaska. This is the Knight [inaudible] case from 2005. Just to briefly give you a flavor of what the facts were like there, the record in this case show that an executive director who is a male will shout at female employees and he would do so with little provocation. He would be hostile with his physical action. He would stand over them and he would watch them and sort of in a leering and glaring way. In some case, he even shake his fist at women. The record also show that he didn’t exhibit this exact same behavior towards men. He would banter back and forth with them, but the experience was totally different. One of the big takeaways in this case is that even though bullying may have been gender neutral, the victim identity can help defeat summary judgment. The case specifically held not facially sex specific harassment can still violate Title VII itself if there is a vision evidence of differences both qualitative and quantitative in the harassment that’s suffered by female and male employees. That’s something for us to just consider and remember. Again, that’s EEOC versus National Education Association of Alaska if anyone wants to visit that case a little bit further.

Sort of going back to the cause of action that we eluded to earlier, intentional infliction of emotional distress and interference, these usually aren’t successful. And, again, it’s very hard to have success with this if you can’t tie it to a protective class. But, again, just to recap, IIED is repeated, severe and pervasive. It essentially creates the hostile work environment. Again, that is this extreme outrageous conduct that’s intentionally desired, intentionally aimed rather at making sure that someone experiences severe distress. And then, interference is this idea of making someone’s workplace difficult, making it hard for them to do their job and they experience harassment on a day to day basis.

We think that there are ways that you can actually avoid some of these problems and policy would be one good way. If you look at this, you see there are 68% of executives said that workplace bullying was a serious problem. But, when we examined workplace or employer reactions, you see that 72% of them either condone or basically sustain this bullying. Effectively, less than 20% of folks who are taking actions actually stopped this bullying voluntarily at least just that’s say nothing of sort of court ordered or anything else that causes workplace to act in certain way. The issue isn’t being properly or adequately addressed to policies right now.

I mentioned employer reactions a little bit earlier. I want to kind of breakdown what this looks like. Basically, we see there are negative and there are positive reactions. The negative ones, employers may have encouraged it. That’s folks that say, “You know what? This bullying or what is perceived as bullying is necessary to have a competitive organization.” Some folks defended it. They say, “Hey, I stand by my manager.” Some folks would rationalize it by saying,  “This is innocent. This happens all the time. It’s routine.” Others would just deny it all together and say, “Hey, this is flat out. It does not happen.” And, some would discounter and say, “Look, this isn’t that serious.” The folks that are responding positively would say, “Hey, I’m concerned about this. I have policies and procedures in place. I hope it can illuminate it.” Or,"I’m going to go as far as condemn anything that looks or feels like workplace bullying in the first place." But, we have to start next to denying discount and sort of combine 41% of folks are doing these things. And so, the most common reaction is to say it doesn’t happen or it’s not that serious. And so, that’s a point to consider as you train your managers, your supervisors, and your employees in terms of how they deal with each other in the workplace.

This can also be avoided through effective action. Then, it looks like written policy, that looks like training which I did allude to. Some folks would consider zero tolerance and others would have a 100% accountability. As Jennifer mentioned earlier with zero tolerance, sometimes that can be really a few things. These cases are very fact specific and sometimes you can’t really draw a bright line with a positive. It’s going to completely eradicate something. And so, it’s certainly appropriate for those that either have it and that have explored it, but we caution it just because it can be really difficult to implement and we sort of air on the side of not implementing a policy that cannot be easily administered.

But, a good policy for example would say, “We prohibit bullying. We prohibit harassment. We prohibit intimidation.” You might show examples to your employees of what that looks like. You would set up procedures for reporting and investigation and just, basically, just illuminating and highlighting for folks of what it looks like so people can more easily recognize and then perhaps know what to avoid. Sometimes, people may be engaging in acts that constitute workplace bullying and don’t even know it in the first place.

That sort of connects this next idea of avoiding this problem through your culture and one really good way to get at this is surveying your employees, asking them questions that give them sort of an anonymous and honest space to say what they think and feel about their workplace. If you know you have a good workplace, you may hear people say things like folks are respectful to each other or the atmosphere is positive. I won't read this whole list, but you can look at it and you can either sort of reverse engineer it and ask questions and survey their design to get a response that are like this or show the ups of this so you know their problem. But, the idea is you might want to make your own survey to reveal answers about your own workplace culture so you know what people are experiencing on a day to day basis.

Now, when you do get a bullying allegation, you’re going to have to respond to it. One of the first things that we think you should do is implement a formal complaint process. That is making sure that you either have a reporting mechanism and the people know that I either fill out a form and I got to take it to this person and then we do this and then we do a hearing or whatever your process is. But, implement something that’s formal and transparent, is understandable and is repeatable. Publicize that policy so people know how to avail themselves of it and actually encourage folks to use it. Talk about the time frame it will take the resolution and then maybe figure out how you respond to it in advance of actually meeting the folks.

Investigating these bullying allegations is going to be another important piece of what you need to do and you want to make sure that there is a strong reporting mechanism. Ideally, you’d like a victim to be able to report to someone who is impartial that may not necessarily be in the direct chain of command. It’s someone more at centralize role. That could be HR. It could be some sort of ombudsman. It could be whatever you design that’s sensible for your workplace but just consider the idea of creating a strong reporting structure to make sure that you can actually give people the chance to avail themselves of this process. And then, your investigation should be prompt and diligent. Again, you don’t want to have an impartial person like an ombudsman or someone along those lines. And then, also, make sure that when people reported and you are investigating and your folks can be confident that the reports are actually made in confidence. That can be another gateway, too, to make sure that you don’t have to worry about whistle blower retaliations or anything along those lines. And, one of the ideal spaces you want to be in is where you talk to everyone involved. You have heard the perspective of the alleged bullying. You have heard the perspective of alleged victim. It can really synthesize a really sensible representation of what did and did not happen in order to make your decision.

When it’s time to sort of measure and understand the results of your investigation, one of the important things you can do is document your findings. You want to do that not only for your immediate sake, but also for the sake of posterity. And, you want to inform both the victim and the accused or alleged bully of what the investigation show and what you intend to do. A couple of ways that you may undress this in the result stage would be discipline for someone you determine as appropriate, set up a mentoring situation so that the alleged victim can get integrated back in the workplace. They feel comfortable where they are, but also mentoring an environment to make sure people there were bullies even knowingly or perhaps unwillingly find themselves in a better professional situation to whether or not doing these types of things again. And then, of course, as we said a little bit earlier, this idea of training people to understand what bullying looks and feels like, how to avoid it, how are we going to respond to it.

I’m now going to move in to a slightly different topic. This is religious accommodations in the workplace. How do you handle that? So, the first thing we’ll look at is our old friend Title VII again of the Civil Rights Act in 1964. And, Title VII basically requires a few things that the workplace be free of religious discrimination and harassment that you make reasonable accommodations for seriously held religious beliefs. But, a big check on that is you don’t have to do this if there is undue hardship on your workplace. Now, free from discrimination. What does that look and feel like? Well, in terms of hiring, in terms of firing, in all of the really sensible or essential terms, the conditions of employment, you don’t want people to feel like they are on the butt end of discrimination based on their religious expression or their religious identification. And, you want to be sure in a reasonable accommodation piece that the combination you provide actually reasonable for your workplace and we’ll get a chance to talk about that a little bit more later. But, this idea of what is reasonable, this idea of what is an undue hardship is very fact specific and we’ll kinda go through a couple of examples again in a little bit to hopefully eliminate that for you.

Before we get there, though, it’s probably sensible to talk about what religion actually is. You see here on this slide, we have a couple of sort of traditional representations of religion. You are seeing Christianity. You see Buddhism. You see the Jewish faith represented. Well, you should also recognize that religion doesn’t necessarily mean someone having a professed faith. In this context, this also covers someone who doesn’t have the least. The atheist or the agnostic were covered. The EOC defines religion as basically a set of moral or ethical beliefs about right or wrong and they are sincerely held with the shrink at least of traditional values. Again, we pick this off for you more and going to list about right and wrong and sincerely held. That’s going to be an important thing and we’ll kinda talk that here in just a second, on this slide in fact.

Again, a little bit more about what is religion. When you are evaluating this, you want to consider the sincerity of the employee’s belief, but you should appreciate this. This is a subjective analysis. If you are really close friends with an Orthodox Jew or a fundamentalist Christian, you shouldn’t assume that how you see them express their faith in their religion and they, the life as you know it is going to be the exact the same way that someone else expresses theirs. A person can have a sincerely held belief and adhere to something that’s of the faith but not others. If you feel like someone is falling down on a particular metric that really is not an opening for you to say, “Oh, this is in a sincerely held belief because if you were sincerely a Christian, you would x, y, z. You should also recognize that, like people, folks’ religious beliefs can change over time and the evolution of the religious belief does not mean that that person’s belief is not sincerely held. And, you can even have a sincere belief in a practice that is not really held by other observers, other religion. You want to make sure that you understand that. Again, this would go to [inaudible] as well. This covers the atheist. This covers the agnostic. But, again, the real thing that hinge your head on here is understanding the fact specific analysis as sincerity of someone’s belief and recognizes that that can be a moving, living, breathing thing as well.

What is religious discrimination? Really, a couple of different things. It is disparate treatment. It’s a harassing someone. It’s disparate impact. And, one of the big ones is going to be failure to accommodation. And, I’m sure I preview that for you earlier. But, again, failure to accommodate. Make this a reasonable accommodation so long as you not having an undue hardship. What’s an example of a disparate treatment? And, I won’t read every word of this example, but you could see here we have a person named Whitney who is a psychologist. She is trying to get her BA in Psychology. She practices a nontraditional amalgamation of West African religion. And, her supervisor denies her to [inaudible] from the ground that she shouldn’t pay for employees to study of Voodoo. This is the idea that, again, someone could be since-, could have sincerely held belief and studying this. Someone could be very interested in something, but just because it’s nontraditional to the supervisor, denying them to [inaudible] on the grounds of saying, “Hey, I don’t want you to study something that I think is Voodoo,” even if that’s an appropriate term would be disparate treatment. Be very careful in leery of situations like this. You may regularly and probably already do find yourself in situations where someone is doing or practicing or studying something different than you. Be very careful about diminishing the importance and the value there because of the different experience than your own.

Another disparate treatment example I’ll give you is how the industry adhere. They make all their employees go to diversity training, [inaudible] the guy who said that some of these teachings in the diversity training are violating his fundamentalist Christian beliefs. When he gets to skip, when he is refused to be excused in the session, he goes to the back of the room and read his Bible and then the supervisor gets all over him for that, for not being attentive because the training is mandatory. But, the folks who aren’t paying attention, so the people that are looking with their face within their phone, they are not being reprimanded. Obviously, this is the case where you have similarly situated people, that are being folks that aren’t paying too much attention to this diversity training and one person is being sort of excoriated because they express a discontent or a discomfort based on religious belief while other folks who aren’t paying attention even or being allowed to go just got free. That would obviously be a case of disparate treatment.

So, the second would be disparate impact. This is a little bit more rare and so I will read these bullet points because it has a little bit more legal footwork in it. Here an employee claims that neutral policy or practice inversely affects the protective class. Once that sort of [inaudible] case if you will as may, then the employer has to rebut by showing a business necessity when disparate impact claims is brought. Now, the employee can then rebut that business necessity, but they have to do so by showing that there are other means that could achieve the same objective with a less discriminatory impact. This is sort of a very, this is a grounded [?] in a deep constitutional analysis saying, “You know what? Here is a policy that harmlessly affects a specific group of people.” You, as the employer will say, “You know, if I aim that to a specific group of people, I have a really strong business case in this.” And so, the employee can overcome that by saying, “You know what? There are a lot less restrictive means that don’t target this group of people that could actually have the same effect and result for you, that don’t harm us as a group of people.” That’s what disparate impact would look like.

One undertone of this is religious harassment as well. What exactly is that? So, at Title VII, we put it this is when employees are either required or coerced to abandon, alter or adopt a religious practice as the condition of employment. In some cases, these folks will be subjected to unwelcomed statements or conduct that’s based on religion and it’s self-severe and pervasive. Again, we said it before, severe, repeated, pervasive. That a person really can’t work. They find hostile. They find an abuse to just be there solely because of the faith that they have expressed and that they profess. Be really careful about this. Again, it kinda goes back to the note that I made about differences. Mere comments about differences can really lead to folks expressing religious harassment particularly if it happened in a repeated and in a pervasive way. And, you want to make sure that in this situation that you have a strong understanding of what the employee or kinda like that the workplace victim as we had in our previous topic are, what they are feeling, what they are experiencing based upon the folks that they are dealing with.

There are few basis of prohibited harassment. The first is affiliation. This is folks that merely just because they are affiliated with a particular religion or particular group, they are singled out, they are targeted because of just mere affiliated. Another one is concepts would be physical or cultural traits. This is because I look a certain way or because I come from a certain place or because I eat certain things or I speak a certain language or have an accent, I dress in certain way, all these things that go in to people’s culture or how people where just born particularly as it pertains to a certain religion, this is, would be a prohibited base of harassment as well. Another one is perception.

Shiquan: Again, be careful here. This is just the perception that a person is a member of a particular religious group, whether or not that is true. Be very careful of looking at someone saying, "You're wearing this so you must be this religion." A course and a series of conduct that sort of touches and concerns that idea, that will be problematic as well. And then finally, actual association, this is an individual's association with a person or an organization of a particular religion. Harassing based on that is quite frankly clearly prohibited as well. 

I represented to you earlier that reasons will come and actions is an important concept to understand and explore here. And it is. And so again, this is -- you need to make a reasonable accommodation when someone is bringing something to you based on a sincerely held religious belief, practice or observance. A lot of times, the problem that you run into is that this conflicts with the work requirement. We'll see some examples of that in a second. Now, when the employer puts you on a note that this accommodation is needed, they need to go through that analysis of accommodating it so long as there is not that undue hardship. 

Now this undo hardship piece, that is going to be on you as the employer. That is your burden to show. You have to show that. And really what you need to do is show that it is more than a very minimal cost or more than a minimal burden. Now, it's the lower standard than in what you see under the American Disabilities Act but again it is a lower standard than that but it still the standard that you should recognize and appreciate. You cannot just rebut by saying nothing but you do it and say something that is really germane to your workplace and show why that would be an appreciable burden. 

So here are some examples of requests for religious accommodation. Amad works in client relations. He asked to be absent for Ramadan in Islamic Holiday. Now, as some of you know, this could be, in 2015 for example, this is June 17th to I believe July 17th. That is a 30-day holiday. If Amad is asking to be on vacation or be out for 30 days, if your workplace can't accommodate that, then you really would probably have some success with an undue burden or an undue hardship argument. 

Walter is a guy who is hired to work to Saturday maintenance shift and he asked to have his schedule change from Saturdays to Sundays because he is a Seventh Day Adventist and observation for the sabbath encompasses much on Saturday. This may not be as dramatic of a situation as Amad but if you truly cannot accommodate this and you can express and demonstrate that, then you probably would have a good chance of getting over the undue hardship burden. But again, you should go through that analysis. This should be a fact-specific thing. You shouldn't [?] conclude and say, "This cannot be done because this is not something that we want to do." 

And again, we have this idea of Achilla who wants to wear a berka to work in the Payroll Department. She asked for permission to do that. Well, here you might have a more difficult analysis so one way to look at this is, "Okay if she works in Payroll, that is not necessarily a client-facing role. That's not necessarily something where customers see you." You may have a hard time there expressing a burden of letting that person express themselves and their faith just sitting at their desk in a comfortable way. Particularly, that doesn't impact anyone else so it is not a harm in the workplace in any way. In something like this, that is probably an accommodation you should make. I think that would be a reasonable accommodation. But again, it is a fact specific analysis. 

Another example, Asia works as a receptionist and asks, "We're sorry to work", kind of the same thing there. You have to ask yourself is that impacting her ability to do her job? Is it impacting what people see? Here, the analysis might be more difficult because of she is a receptionist. She might be the first person that the folks greet. But again, you may get into a weird step and song and dance of trying to make the case for why that is harmful so really do a very careful on specific analysis there. We'll talk here in just a second about how we suggest you go about that. 

Another example is Calvin, he asked to organize a lunch time prayer. He wants to use the conference room to have these meetings. Well, if you're letting a bunch of other folks meet on work grounds or in work facilities, even if it's at lunch time, about a bunch of other stuff, you probably don't want to accommodate Calvin there. He would get very easily argued that he is being targeted for [inaudible] trying to use it for prayer. You may not be making a reasonable accommodation if you can't show that you are making the accommodations for these other people as well. 

Finally, Cecille works at the product health department. She wants to say "Be blessed" every time she gets off the phone. Well, that could be easily argued as an endorser of religion and you may not want your customers to experience that. That would probably be a case where you can argue that this is an undue hardship or an undue burden and perhaps had some success. But again, please engage in this fact-specific exercise for your environment for what the request is. 

When you get a request, you recommend that you meet with the employee. Inform the HR Director, especially if you are in the business part of the organization, separate from the HR business, get HR involved immediately. Meet with them. Make sure you understand what they are asking. Make sure you undestand what will be effective. Ask for additional info. Ask what will be needed to evaluate the accommodation if you actually did that. 

And then we go back to this part that I've been saying in these examples, consider the undue hardship. If it is just too much to overcome and it is legitimate then you might want to express that. But if you can offer the accommodation, do so. And if you can't do it, then have a real, sensible and honest dialogue with the employee to explain why this is an undue hardship and see if [?] you may have heard any other ways that you can go about doing that. 

One thing I'll say here as well is it might be good to have a religious, excuse me, a request for a religious accommodation form in your workplace. Kind of like we talked about the workplace bullying is [inaudible] launch an investigation or make an allegation. You may want to have paperwork on hand that is routine. Mechanize and recognize that people can just automatically trigger, "No, I'm going to fill this out. It'll go here. We'll make a decision and we'll talk about it." Having a sort of strict process that you adhere to consistently in these very sensitive situations will really serve you well. 

Reasonable accommodations can look like a number of different things. One example is allowing if you want to change the schedules. Maybe that Saturday maintenance work, for example that we used, maybe giving him a chance to changes will be a good idea. 

Another one is voluntary substitution about their employees. Someone needs to work x number of hours and be off at a particular time. You can find so in the workplace that is willing to swap with them, that would be a reasonable accommodation. A shift swap would be another one. Perhaps someone can be transferred to another job laterally. And maybe you just change that person's job task based on what they are doing. If it is so uneasy to wear a berka and they are working in the kitchen for example, and you don't want them to do it because there is extra fabric. You don't want that to create any sort of hazard situation for anyone. Maybe you could change that person's job task. That could be a reasonable accommodation.

Sometimes, you do make exceptions to dressing and grooming rules. If you say, maybe you have a no beard policy at your workplace and there are some faith that really do call on folks to grow out their beard. Maybe you say, "You know what, this is a time for us to look at even a long held rule that we have, and perhaps change it as you consider shifting and moving in dynamic workplace."

You might, in the case that we talked about before, allow Calvin to use the conference room here in lunch for religious observance and then just generally permitting prayer or [inaudible] a religious expression in your workplace assuming that is something with which you are still comfortable. That is that. 

Next, we'll go back to Jennifer who's going to talk to us about employee leave abuse. 

Jennifer: Thanks, Shiquan. And let me also mention, I've had some questions after the Supreme Court case just said these past sessions, the EEOC vs. Abercrombie and Fitch. This isn't a reasonable accommodation case so it doesn't really fall under the section that you were discussing but the question, it was a failure to hire a religious discrimination case. I thought I would mention it because I think it is a good way for employers to consider how they want to set themselves up so that employees understand or potential hires understand the job requirements. For example, I think you said it was Walter who decided that even though he retired to work on Saturdays, his religion required him to be off on Saturdays. 

In the Abercrombie and Fitch case, this young woman Samantha [?] allows. She was a processing muslim who wore a head scarf. She applied for a Sales job and Abercrombie had what it called its Look Policy or was it a dress code and in their dress code they prohibited all caps and any kind of head wear. Samantha wore her head scarf to the interview and the Hiring Manager that interviewed her suspected that she wore that head scarf for religious reasons but she didn't say anything about the head scarf in the interview. Samantha didn't say anything about the head scarf or the Look Policy when she had the interview. The person who was hiring, the Hiring Supervisor talked to her Supervisor about it and said, "I suspected it is for religious reasons. Nobody ever mentioned if she [?] said it, I don't know for sure." But when they made the decision not to hire Samantha, the decision was basically made because she was wearing a head scarf. 

The Supreme Court said, "Look, even though Abercrombie and Fitch didn't know for sure that Samantha needed an accommodation from the Look Policy, they didn't know that she needed to be able to wear a head scarf due to her religion." This is a case where it is clear from the testimony that they should have asked, right? I mean, it is really-- they suspected it. The practical takeaway for employers are if you have a job requirement, for example, like working on Saturdays, you are going to tell someone like this guy Walter, "Hey, this job requires you to work from Tuesday to Saturday. Is that something you can do?" If he says yes and you hire him and he comes back and start to work and he is like, "Oh, by the way, my religion requires me to have Saturdays off", you tell him, "The job is that you work on Saturdays. I can't accommodate your religious requests. I told you in the interview you have got to work on Saturdays and that is part of the essential functions of the job." Even though that is an ADA, the essential functions of the job is an ADA concept. I still think it comes clear here as well. 

If you tell [inaudible] friend, "Hey, our Look Policy is that generally when we hire a Sales Associate, they can't wear a head gear. They can't-- They have to look hip. They have to look cool. You don't have any budget from us. Is that something that you can do? I see that you are wearing mom jeans. Can you change how you look?" When if the person says, "Well, I have a religious issue. I wear a head scarf everyday. Is that going to be a problem? Is it something that you would have to deal with upfront?" So just the thought there, I think that most good Human Resources Managers and Hiring Managers talk about requirements for the job upfront anyway.If you have someone who comes to interview to work in a factory and they are wearing a sari or a berka wear, you can't have any lose fabric, I think that most Hiring Managers would explain, "Hey, we have safety requirements and you would have to wear something that-- make sure that any loose fabric is bound up so that it doesn't get caught in the machinery." And there would be a discussion about it.

These are just a few thoughts about accommodation. I don't mean to go on but it is interesting especially because the Supreme Court did weigh in this past year on the idea of privileges discrimination. 

On to Employee Leave Abuse. This is always an interesting topic and the answers are never 100% black and white here. The way that I thought we could approach it is by doing a few case studies and working through some factual scenarios. In our first factual scenario, we have Elaine. Elained works for a small title company and what she does is she puts the documents together and she handles closings on the sales on properties. Elaine learns that she will need back surgery. Apparently, she has been leaning over her desk, putting all the papers together and it has destroyed her back. She needs back surgery and she is going to be out for eight weeks. Due to her tenure, she is eligible for FMLA leave and she tells the company when she learns that the surgery is scheduled three weeks out. And here is where you get to do a little participation. What is the company's next step? Or what are you thinking? Do you think fire her? Three weeks is not enough notice but she needs back surgery. Do you give her an FMLA eligibility form? Do you find out why she only gave three weeks notice instead of more? Do you send her to your workers' compensation carrier? 

So far everybody is saying to give her an FMLA eligibility form. I think that is probably a good answer. Few people are thinking, "Maybe I am going to find out why she only gave three weeks notice." I think that is also valid. Let us move on because the fact is that the employee is supposed to provide the employer at least 30 days advance notice if the need is foreseeable. Here, we know the back surgery is scheduled in advanced. You are supposed to give 30 days notice. If 30 days isn't practicable, maybe she didn't know when her leave was required to begin. Maybe there was some sort of change in circumstances. Maybe the [inaudible] have got available. Maybe there is some other reason or there is an emergency. Notice just has to be given as soon as practicable.

I think that on our poll, either way would work. You could-- if she says, this is all due to you title company. I am going to-- this is a workplace injury. I think that at the outside, you could also send her to your workers' comp carrier but maybe she is also a weightlifter in her spare time. We just don't know but, anyway, either way giving her the FMLA eligibility form figuring out why she only gave three weeks notice, that is perfectly fine. 

You do have to give her all the notifications after you think about the amount of notice that she is giving. Think about what if you find out that Elaine actually has known about the date of the surgery six weeks in advance but she just forgot and she actually didn't give the employer notice until two weeks beforehand. Well, believe it or not, as an employer, you do have an opportunity to say, "That's not right. You can't do that to us." If the employee doesn't give timely advance notice and doesn't have a reasonable excuse, you can say, "Well, that is fine, Elaine. You are just going to have to use your paid time off because your FMLA coverage does not kick in until 30 days after you have provided notice." So that is one of their regulations and I am giving you the site at the top of the slide.

But do keep in mind that the need for leave and the approximate day that leave should be taken does have to be clearly foreseeable to the employee with at least 30 days in advance. After you get the whole notice issue figured out, you do have to give her an eligibility notice and let her know if she is eligible for FMLA. You got to give her the notice of rights and responsibilities and then also decide if you are going to designate the leave as FMLA leave. Always keep in mind that if you are going to require her to present a certification when she returns that she is fit for duty, then you need to provide notice that she is going to need to provide that along with the designation notice. Hopefully, it was a good reminder to think about.

Let us, getting passed that, continuing on with our facts. Elaine is eligible, she gives her notice properly and the company gives all of its proper designation and forms, which is so typical with someone who goes on leave. You never know what is going to happen with back surgery. After seven weeks of her eight weeks of leave, Elaine calls  and tells the HR person at the company that she is not recovering as she had thought she would and she went to see her doctor and her doctor thinks that she is going to need an additional four weeks off. She is going to see her doctor again in three weeks. It looks like she is going to need the full 12 weeks under the FMLA. What should the company do next? Option A: Fire her. She was supposed to only be out for eight weeks. Here you can just tell me what you really think. Get ready, she is never coming back. Do you want to let her know how much leave she has left? Would you maybe send her a letter docum