Summiting Mt. Clemens: The Fifth Circuit Reminds Employers that Failing to Maintain Accurate Time Records Could Be a Very Costly Mistake

The Fair Labor Standards Act requires employers to create and maintain accurate records of hours worked each workday and each workweek by non-exempt employees.  These types of records are commonly used to prove overtime and minimum wage violations—but what are employees supposed to do when their employer not only fails to properly compensate them, but also fails to properly create or maintain the very documents needed to prove their claims?

There’s A[nother] New Accommodation Standard in Town: Supreme Court Unanimously Rejects De Minimis Cost Test for Title VII Religious Accommodations, and Confirms Limitations on Coworker Impact Evidence in Undue Hardship Analysis

As we wrote earlier this year, the United States Supreme Court agreed to consider a case challenging the standard by which an employer may refuse to accommodate an employee’s religious beliefs.  Since the Court’s 1977 decision in Trans World Airlines, Inc. v. Hardison, many lower courts have held that employers could deny a requested religious accommodation if providing it would result in “more than a de minimis cost.”  For years, critics have argued that the de minimis cost test does not appear anywhere in the language of Title VII, and effectively eliminates the statute’s protections against religious discrimination.  On June 29, 2023, a unanimous Supreme Court agreed.

Are Your Employment Practices Up to Snuff, or Evidence of Pretext?

The factors you rely on to promote or hire one candidate over another may put you at risk of violating Title VII of the Civil Rights Act.

Title VII prohibits employers from discriminating based on race, color, religion, sex, and national origin in decisions related to hiring, firing, promotion, and compensation.  In Watson v. School Board of Franklin Parish, 2023 WL 2054308 (5th Cir. Feb. 16, 2023), the Fifth Circuit found that the reasons proffered by a school district for selecting one candidate over another were unworthy of credence and could be based on race.  Why?  Read more to find out.

 

The Great Pronoun Debate Continues Unresolved!

Last week the Seventh Circuit issued its long-awaited decision in Kluge v. Brownsburg Comm. Sch. Corp., __ F.4th ___, 2023 WL 2821871 (7th Cir. 2023), a case involving a high school music teacher (Kluge) who was terminated (or forced to resign) for refusing to use the gender-preferred names and pronouns of transgender students in his class, which he objected to on religious grounds.

EEOC Issues Guidance on Accommodating Job Applicants and Employees with Hearing Disabilities

On January 24, 2023, the Equal Employment Opportunity Commission released updated guidance on how the Americans with Disabilities Act applies to job applicants and employees with hearing disabilities. The Q&A resource comes on the heels of the EEOC’s announcement of two settlements—one for $44,250 and the other for $180,000—with two employers accused of adverse employment actions against deaf individuals in violation of the ADA. Although the EEOC guidance does not contain new legal mandates, it is an important reminder to educational employers of how the agency will apply existing legal standards in cases involving individuals with hearing disabilities. Employers should review the guidance and their policies, procedures, and practices to mitigate the risk of challenges of employment discrimination by applicants and employees with hearing disabilities. The following is a summary of the major points from the guidance that employers should know.

The Fifth Circuit Reconsiders What Workplace Actions May Form the Basis of a Discrimination Claim

The Fifth Circuit Court of Appeals could soon broaden the scope of employment actions that may serve as grounds allowing an employee to file a discrimination claim. Currently, Fifth Circuit precedent requires plaintiffs to show they experienced a discriminatory ultimate employment decision, such as being hired, granted leave, discharged, promoted, or compensation issues. Those who claim they suffered other discriminatory conduct that falls short of the “ultimate” action bar cannot pursue a discrimination claim. The Fifth Circuit, however, may be in the process of reconsidering and eliminating that requirement.

Federal law under Title VII and the Age Discrimination in Employment Act (ADEA)—as well as parallel Texas state anti-discrimination law—prohibits employers from discriminating against any person with respect to their compensation or the “terms, conditions, or privileges” of their employment on the basis of the employee’s race, color, religion, sex, age, or national origin. The Fifth Circuit’s decisions—unlike most other federal courts nationwide—have limited the availability of discrimination claims to circumstances when an employee experiences an “adverse employment action” that constitutes an “ultimate employment decision.” In other words, Fifth Circuit precedent strictly defines and limits the types of events that alter the “terms, conditions, or privileges” of employment. The Court has repeatedly held that “ultimate employment decisions” only include events such as hiring, granting leave, discharging, promoting, or compensation. A plaintiff who has not experienced one of these adverse employment actions cannot bring a discrimination claim in Texas federal or state courts.