On September 29, 2023, the EEOC released its Proposed Enforcement Guidance on Harassment in the Workplace. If adopted following the rule-making process, this will be the first time the EEOC has provided guidance on workplace harassment since 1999.
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.
LEGAL 101: The Standard for Title VII Religious Accommodations May Be Changing, and Every Employer Should be Paying Attention
It’s no secret that the current majority on the United States Supreme Court is focused on expanding certain religious liberties.
In Kennedy v. Bremerton School District, the Court significantly expanded religious freedoms in the First Amendment context when it held that a school district could not discipline a football coach for publicly engaging in prayer on the football field immediately after games. The Court’s opinion rejected decades’ worth of cases that had attempted to balance the competing rights secured by the Free Exercise Clause and the Establishment Clause, and also demonstrated the majority’s willingness to cherry-pick the facts of a case when analyzing religious freedoms.
Just in Time for Veterans Day, Federal Agencies Provide Military Service Members and Veterans with Guidance on Unlawful Employment Discrimination
On November 10, 2022, the U.S. Equal Employment Opportunity Commission (EEOC), the U.S. Department of Labor Office of Federal Contract Compliance Programs (OFCCP), the U.S. Department of Labor Veterans’ Employment and Training Service, and the U.S. Department of Justice Civil Rights Division jointly released a comprehensive resource document detailing federal laws and other authorities that specifically protect service members and veterans from workplace discrimination. In its press release, the EEOC described the jointly authored “Protections Against Employment Discrimination for Service Members and Veterans” as the first-of-its-kind single publication intended to “help veterans and service members determine which laws and federal agencies are responsible for enforcing their workplace rights and where to seek assistance if they believe those rights have been violated.”
Just How Hard is it to Prove Pretext? SDTX Holds that EEOC “Cause” Finding and Allegations of Falsified Evidence are Not Enough
On August 30, 2022, the Southern District of Texas issued its opinion in Love v. University of St. Thomas, a case that highlights the significant burden that employees must overcome in the burden shifting analysis used by courts in employment discrimination and retaliation claims. In the absence of direct evidence of discrimination or retaliation, courts follow the United States Supreme Court’s McDonnell-Douglas framework to determine whether an employer engaged in illegal conduct. Under this framework, an employee challenging an adverse employment action must first establish a prima facie case of discrimination or retaliation before the burden shifts to the employer to provide a legitimate, non-discriminatory reason for the action taken. Once the employer proffers such a reason, the burden shifts back to the employee to show that the stated reason is a pretext for discrimination or retaliation.