Questions of Substance

By John Gannon, Esq.

 

Can a job applicant be rejected because of medical-marijuana use? Can employees be let go for lawfully using narcotic pain medications, such as prescription opioids? These are questions without easy answers.

Medical-marijuana dispensaries are opening throughout the Commonwealth. Meanwhile, prescription opioids are wreaking havoc across the country. With medical marijuana use on the rise, and prescription-medication dependence becoming increasingly common, employers are left in the precarious position of trying to help their employees while ensuring workplace safety and employee productivity. Now more than ever, employers need to be aware of the legal pitfalls associated with disciplining or firing employees who rely on these substances for palliative care.

Medical-marijuana Use

In November 2012, Massachusetts residents voted to legalize marijuana for medicinal purposes. Despite marijuana being classified as an illegal Schedule I drug by the federal government, state law does not punish marijuana use by qualifying patients.

Approved patients can obtain a medical-marijuana identification card and purchase marijuana at various licensed dispensaries. There are approximately 10 dispensaries currently approved to sell marijuana in Massachusetts, but that number could soon increase because nearly 100 additional dispensaries are close to final approval.

Use by Employees

The Massachusetts medical-marijuana statute explains that employers do not have to allow on-site medical marijuana usage, but does not address off-site use. So can employers take action against employees for their off-site medical-marijuana use? This has been litigated in Massachusetts and other states. Most courts, including a Massachusetts Superior Court, have confirmed that employers can reject applicants and terminate employees who fail drug tests due to medical-marijuana usage.

The common rationale is that marijuana remains illegal under federal law, so employers can refuse to accommodate illegal activity. However, that rationale should be taken with a grain of salt.

Last month, the Massachusetts Supreme Judicial Court heard oral arguments in a case about the rights of employees who use medical marijuana off-site. The plaintiff in that case was disabled and using medical marijuana for her condition. She was rejected for employment after failing a drug test. She claimed this was disability discrimination because medical marijuana did not impact her ability to do the job.

The court’s decision, which should be issued in the coming months, could change the rights of employers relative to medical-marijuana users. Employers should monitor the status of this case carefully.

What about Use of Prescription Drugs?

If an employer suspects an employee is taking a prescribed opioid — or any other medication that could compromise their ability to perform their duties — can the employer ask the employee about it? As a general rule, the answer is no.

Asking an employee about their prescription medications is a ‘disability-related’ inquiry that could run afoul of the Americans with Disabilities Act (ADA), which prohibits employers from asking disability-related questions unless there is good reason to believe the employee cannot effectively or safely do the job. This might include a visual observation or reliable information from a credible co-worker about safety concerns.

Even if an employer has a valid reason to believe the employee is unfit because of prescription-drug use, termination of employment is not the next step. Employers have an obligation to engage employees in an interactive dialogue to determine whether it can accommodate their medication use.

This might involve offering a temporary ‘light-duty’ assignment until the employee is off the medication, or giving a job-protected leave of absence until the employee is fit to return. Terminating an employee without engaging in this interactive dialogue could trigger costly damages under the ADA. Employers concerned about an employee’s prescription-drug use should consult with an employment attorney before taking action.

What If an Employee Is Acting Oddly?

Employers may also encounter a situation where an employee is acting oddly, and the employer suspects that drugs might be involved. Can an employer ask the employee to take a drug test?

Generally, it is acceptable to ask employees to take a drug test when the employer has an objective, reasonable suspicion that drugs are involved. To ensure legal compliance, employers should have a drug-testing policy and provide training to all frontline managers about how to spot drug use. Employers should consult with employment counsel when establishing and enforcing any reasonable-suspicion drug testing program or policy.

Bottom Line

Medical-marijuana laws and employee prescription-drug use put businesses in a tough position. Employers attempting to protect the safety of their workers and others could inadvertently violate an employee’s rights under the ADA. But if an employer merely ignores the problem, they could face financial consequences stemming from an employee’s use of illegal or prescription drugs.

So what should an employer do? The single best thing an employer can do to prevent exposing themselves to legal risk is to consult with an attorney before taking any action. Doing so will only take a few minutes in the short term, but could save the business tons of time and money in the long run.

John Gannon is an attorney with Skoler, Abbott & Presser, P.C.

Help Wanted

By AMELIA J. HOLSTROM, Esq.

 

In response to an increase in claims of workplace harassment, the U.S. Equal Employment Opportunity Commission (EEOC), the agency responsible for enforcing federal anti-discrimination laws including Title VII, issued a 75-page Proposed Enforcement Guidance on Harassment on Jan. 10.

The majority of the guidance deals with matters previously addressed by the EEOC, including the elements of harassment; the list of protected characteristics under federal law, including the EEOC’s interpretation that ‘sex discrimination’ includes one’s sexual orientation and gender identity; and the defenses available to an employer facing a harassment suit.

Although it has a long-standing practice of issuing harassment-enforcement guidance, the EEOC appears to take things a step further in this proposed guidance and makes suggestions for employers, including policy and training suggestions, among others. Before providing specific suggestions in the guidance, the EEOC begins by articulating that senior leaders are the “cornerstone of a successful harassment-prevention strategy,” and that they have to express frequently and with clarity that harassment will not be tolerated.

As part of that strategy, the EEOC notes that employers must allocate resources and time for harassment-prevention efforts and regularly assess harassment risks and take necessary steps to eliminate them. So, how might an employer implement and enforce such a strategy?

First, the EEOC suggests that employers adopt an anti-harassment policy. According to the EEOC, the policy should include an express statement that harassment on the basis of any protected characteristic is illegal; examples of harassment; details regarding the employer’s complaint system, including how to report; language that encourages employees to report any harassment; an indication that the employer will conduct a prompt and thorough investigation into the allegations and assurance that it will take appropriate corrective action; and a statement that retaliation is prohibited against those who file complaints and/or participate in investigations. Additionally, the EEOC recommends, among other things, that the policy be written and communicated to all employees.

Massachusetts employers should already have an anti-harassment policy that contains the criteria suggested by the EEOC. Under Massachusetts law, employers are required to have a sexual-harassment policy that includes a number of the same criteria. Employers are also required to distribute that policy to all employees both at time of hire and annually. As a practical matter, however, savvy employers have adopted and issued broader anti-harassment policies that include all types of unlawful harassment, as the EEOC suggests. Regardless, this proposed guidance should signal to employers that it is time to review their policies and consider whether changes would be appropriate.

Second, and in follow-up to its suggestion that details of the complaint system be included in the policy, the guidance makes recommendations regarding how an employer should structure its complaint system.  Under state and federal law, an employer has a duty to promptly and thoroughly investigate all allegations of harassment and discrimination.  As a result, every employer should already have a protocol in place for doing so. For example, some employers choose to hire a third party to conduct investigations, while others have an internal person or department such as Human Resources handle investigations.

In its guidance, the EEOC recommends that employers fully resource the complaint system; provide multiple avenues for filing the complaint, such as listing a male and female to which complaints may be brought; have a process to ensure that the alleged harasser is not presumed guilty before the investigation is complete; and have a procedure for informing the complaining party and accused of the outcome of the investigation or corrective action to be taken, to the extent appropriate.

The EEOC also notes that, among other things, those responsible for receiving and investigating the complaints need to be well-trained and neutral, have authority and the resources to investigate, have the ability to make people feel comfortable, and keep adequate documentation during the investigation.

Lastly, the EEOC notes that, even if all employees know about the policy and complaint system, those are only part of an effective strategy to eliminate harassment. To be sure that employees understand what constitutes illegal harassment, the EEOC recommends regular and interactive training that is promoted by senior leaders and conducted and revised regularly. The training should include examples of unlawful harassment, information about employees’ rights, details of the complaint process, and the range of consequences for someone who engages in prohibited conduct. Additionally, because managers and supervisors have additional responsibilities under federal law (and state law too) when it comes to harassment complaints and investigations, the EEOC suggests that managers and supervisors undergo additional training that includes training on recognizing risk factors, methods for addressing harassment, and clear instructions regarding reporting harassment.

The proposed guidance is available HERE. The EEOC recently sought public comment, and will next review all feedback and consider making revisions prior to finalizing its guidance.

Amelia J. Holstrom joined Skoler, Abbott & Presser in 2012 after serving as a judicial law clerk to the judges of the Connecticut Superior Court, where she assisted with complex matters at all stages of litigation. She is a 2011 graduate of Western New England University School of Law, where she was managing editor of the Western New England Law Review. Her practice is focused on labor law and employment litigation; (413) 737-4753.

Tricks and Treats

By Stefanie Renaud, Esq.

October in Massachusetts is a beautiful time, filled with colorful leaves, bright orange pumpkins, and pleasant fall weather. For most of us, Halloween marks a time of fun and revelry, complete with costumes, good-natured pranks, and lots of candy.

Even workplaces get in on the fun, holding costume parties and providing candy to sugar-deprived employees. But for employees with food allergies — about 15 million people across the U.S. — Halloween can be full of increased exposure risk from holiday ‘treats’ and potentially life-threatening reactions to innocent ‘tricks.’

This Halloween, avoid having a holiday horror story of your own.

Dirty Tricks

Everyone loves a good prank, but what if that trick was life-threatening to an employee? The employer might be liable for discrimination. That’s what happened to Panera LLC last fall, when a former employee sued, alleging that Panera violated Title VII of the Civil Rights Act of 1964 by allowing harassment against him based on his food allergies.

Plaintiff Dustin Maldonado alleged that his manager and co-workers taunted him about his allergy, intentionally exposed him to peanuts, tricked him into eating nut-laced food items, and teased him that his EpiPen would spread AIDS. One time the manager ‘pranked’ Maldonado by leaving peanut butter outside his office. Another time, the manager ‘tricked’ Maldonado, telling him that his co-workers had made dinner for him, then placed peanut-butter-filled treats into Maldonado’s uncovered hands, causing an allergic reaction. After the incident, Maldonado filed a formal complaint with the human resources department, which allegedly told Maldonado to have a better sense a humor about the situation.

Although liability in this case remains to be seen, employers should be aware that even innocent-seeming pranks can result in potential legal liability.

You might be thinking, who on earth would think it was OK to intentionally expose someone to an allergen, even as a prank? More people than you think, apparently. In the Sept. 29, 2016 edition of the Washington Post’s advice column, another employee with food allergies wrote in, seeking advice. According to the employee, she had repeatedly asked a co-worker to not bring or consume peanut products in the office, due to the employee’s severe allergy. A few months later, the employee sat at her desk and began to notice reaction symptoms.  Finding a smear of peanut butter on her hand, the employee looked under her desk and found a large glob of peanut butter smeared on her desk. When the employee called her boss, he shrugged it off and told her he “didn’t think [the employee] should be able to dictate what others can eat.”

That’s the wrong answer. Be sure to keep an eye out for the forthcoming lawsuit!

Killer Treats

What about those candy bowls spread around the office? Obviously, it is easy enough to know that peanut-butter cups might be a trigger for a person with food allergies, but what about those deluxe Halloween cookies your co-worker makes each year? They can also pose an exposure risk, and possibly lead to litigation.

In March 2015, a family sued the grocery chain Publix after their son died after eating a mislabeled cookie. The family purchased the cookie from the bakery section of the store only after being told it was nut-free, as no ingredients were listed, and there was no allergen warning. Despite this assurance, the little boy had a severe reaction to the cookie, which contained walnuts, and he eventually died.

While there are no similar cases where an employer was found liable for exposure to treats brought in by another employee, it is plausible that such a suit could occur, particularly if the treats were shared as a part of company-sanctioned festivities. Thus, employers may need to be cautious when encouraging employees to share homemade treats during the Halloween season.

My Employee Has a Food Allergy, So What?

Depending on their severity, food allergies may be covered by the Americans with Disabilities Act (ADA) or similar state laws. The burden is on the employee to alert the employer to their food allergy.  Once an employee has done so, management must treat the claim seriously.

If the employee is seeking accommodations because of their allergy, the employer should follow the ADA protocol the same as it would with any other potentially disabled employee. The employer may request documentation of the allergy before granting an accommodation. If the medical documentation shows that the employee in fact suffers from a disabling condition, the employer needs to engage in the interactive process and brainstorm accommodations that would allow the employee to perform the essential functions of the job.

If there are no such accommodations, then the employee is simply not qualified for the position. However, you should not simply dismiss a request as unreasonable until you have fully explored whether it would, in fact, be possible. Remember, showing that an accommodation is unreasonable because it would present an undue hardship is a very high burden. Finally, the ADA’s anti-retaliation provisions mean that you cannot fire someone just because they have a food allergy or because they asked for an accommodation for that food allergy.

Around the workplace, employers can take a few easy steps to reduce their employees’ risk of exposure to food allergens. Employers may wish to conduct training on the risks associated with food allergies and helping employees recognize the signs of an allergic attack in others. Employers should consider posting signage in kitchen areas and providing disposable plates, cups, and utensils for use by employees with allergies.

Finally, employers must treat employees with food allergies, and their related needs, seriously. Don’t be the boss who shrugs off a food allergy.

Stefanie Renaud, Esq., is an associate with the law firm Skoler, Abbott & Presser, P.C., which exclusively represents management in labor and employment matters; (413) 737-4753; [email protected]

Sexual Harassment in the Workplace

By Karina L. Schrengohst Esq.

“I think you and I should have had a sexual relationship a long time ago . . . sometimes problems are easier to solve” that way.  This statement is one of several sexually charged statements former Fox News host, Gretchen Carlson alleges were made by former chairman and CEO of Fox News, Roger Ailes.  Carlson claims, among other things, that she was subjected to sex discrimination and sexual harassment in the workplace. In addition, she alleges that her employment with Fox News was terminated after she reported this discrimination and harassment and rejected Ailes’ sexual advances.

Carlson’s lawsuit illustrates the two different ways sexual harassment claims arise. Most commonly, sexual harassment claims are based on hostile-work-environment harassment, which happens when sexual advances, comments, or conduct are severe and pervasive enough to interfere with an employee’s work environment and work performance.

Carlson claims that her co-host created a hostile work environment by treating her in a sexist and condescending way, shushing her, mocking her, shunning her, refusing to engage with her, and belittling her contributions. According to Carlson, after reporting this conduct to Ailes, he called her a “man hater” and “killer” and told her she needed to learn to “get along with the boys.”

Carlson also claims that Ailes ogled her and made comments about her body, including asking her to turn around so he could view her posterior, commented on certain outfits enhancing her figure, and commenting on her legs. In addition, this case illustrates quid pro quo sexual harassment, which occurs when something — a raise or promotion, for example — is promised in exchange for sexual favors or when an employee is fired for saying no to sexual advances.

According to Carlson, Ailes made it clear to her that the problems she was having at work would not have existed and could be solved if she had a sexual relationship with him.

Sex discrimination and sexual harassment is prohibited in the workplace by state and federal law. As such, employers have an obligation to take reasonable steps to prevent sexual harassment before it arises and to create a harassment-free workplace.

The first step employers can take toward prevention is creating and implementing a comprehensive written policy prohibiting sexual harassment, which has a procedure for reporting harassment. The proliferation of electronic devices and social media adds a layer of complication that did not previously exist in the workplace. As employees increasingly communicate electronically and via social media sites, there are even more opportunities for problems to arise — and to arise outside of the line of sight of supervisors.

This means that an employer’s policies should consider how harassment can arise in this context.

The next step employers can take toward eliminating sexual harassment in the workplace is ensuring that their policies are effective in practice. It is critical to communicate with employees about anti-discrimination and anti-harassment policies to ensure employees understand the company’s policies. In addition, employers should regularly train employees with supervisory roles to make certain they understand their obligations and know how to recognize and report sexual harassment when it arises.

This is particularly important because supervisors are a company’s first line of defense. What they do (or do not do) can prevent (or create) a problem. Providing the proper training to supervisors can help shield the company from costly and time-consuming employment litigation claims. Further, employers should establish an investigative process to promptly and consistently handle all complaints of discrimination and harassment. Any allegation of sexual harassment must be treated seriously, documented, and investigated in a timely manner. Finally, employers should take appropriate corrective action, as necessary.

Although in this instance Fox News has lucked out, that is not usually the case and employers typically find themselves named as a party. Employers would be wise to take proactive, preventative steps to eliminate workplace discrimination and harassment, which in turn helps to reduce the risk of liability when faced with a sexual harassment lawsuit.

Karina L. Schrengohst Esq. specializes exclusively in management-side labor and employment law at Royal, P.C., a woman-owned, women-managed, boutique, management-side labor and employment law firm, which is certified as a women’s business enterprise with the Mass. Supplier Diversity Office, the National Assoc. of Minority and Women Owned Law Firms, and the Women’s Business Enterprise National Council; (413) 586-2288; [email protected].

Distance Learning

By Stefanie Renaud, Esq.

Telecommuting is one of the fastest-growing employment trends in the U.S., up 103% since 2005. Today, more than 3.7 million employees telecommute at least half the time. Undoubtedly, that number will continue to grow, because 85% of Millenials, who make up the largest generation in the workforce, would actually like to telecommute full-time.

Although research shows that telecommuting improves morale, increases productivity, and improves employee quality of life, there are many legal issues for employers that may complicate this popular work arrangement.

The Fair Labor Standards Act

The federal Fair Labor Standards Act (FLSA) and parallel Massachusetts law require employers to pay their employees properly. These statutes categorize employees in two ways: exempt and non-exempt. For non-exempt employees, the vast majority of the workforce, the employers must keep detailed records of hours worked and wages paid, pay the overtime rate of time and half for all hours worked over 40 per week, and pay employees minimum wage.

Exempt employees are just that: employees who are exempt from these record-keeping and overtime requirements. Thus, telecommuting for exempt employees does not implicate wage/hour law. However, employers should take great care before classifying employees as exempt. The FLSA and Massachusetts law lay out a few narrow exceptions with specific job and salary requirements. To ensure you are properly classifying your exempt workers, consult with an employment attorney before classifying employees as exempt.

Record-keeping Requirements

For non-exempt telecommuting employees, the employer must keep accurate time records and pay the employee for all work performed. How does an employer keep records for an employee it never sees?

Employers may utilize an electronic time-keeping program that requires employees to punch in and out, or rely on paper time cards. Regardless of form, the employer should provide time sheets for employees to use when recording their work hours. Employees should also ‘sign off’ on their time sheets, either electronically or in paper form.

According to the 11th Circuit Court of Appeals, the employer is responsible for providing the time sheets, but the employee is responsible for accurately keeping their time records. Thus, the telecommuting policy should emphasize that the employee is responsible for accurately recording their work hours.

Employers should also provide telecommuting employees with information to help them independently determine what working time is compensable. For non-exempt employees, compensable time is any time spent engaged in ‘principal activity.’ Commuting time may also be compensable. If employees complete principal activity at their home or office, then travel to the other workplace and complete principal activity there, then their commuting time is compensable. Consult with employment counsel to help define principal activity and to untangle the many complicated issues surrounding compensable time under wage/hour law.

Proper and Timely Payment of Wages

Regardless of the telecommuting employee’s status as exempt or non-exempt, the employer is responsible for complying with all state and federal wage laws. Employers must know where telecommuting employees will be working because state law governs many facets of the employment relationship, including meal and rest breaks and how often employees must be paid.

In Massachusetts, employees are entitled to a 30-minute meal break when working six or more consecutive hours, and wages must be paid on either a weekly or biweekly basis.

Location is also particularly important to comply with minimum-wage laws, because some states and municipalities, such as San Francisco, have higher minimum-wage rates than federal law. In Massachusetts, the minimum wage is currently set at $10 per hour, with another increase scheduled for Jan. 1, 2017. Consult with your employment counsel to ensure compliance with state and local laws.

Overtime Managed

Keeping accurate time records not only aids in tracking employee eligibility for federally mandated benefits under the Family Medical Leave Act and the Affordable Care Act, but also in the proper calculation of overtime compensation. How can an employer control overtime for employees who telecommute? The telecommuting policy should clearly prohibit overtime, unless authorized in advance.

The policy should be consistently enforced, with proper remedial action taken after each violation. However, regardless of the employer’s overtime policy, a non-exempt employee must be paid overtime compensation, at the time-and-a-half rate, for all hours worked over 40 per week.

Even so, some overtime does not have to be paid — if the activity is de minimis.  De minimis activity is an insubstantial or insignificant period of time, beyond the normal work hours, that cannot practically be precisely recorded for payroll purposes. Business realities will determine if an activity is de minimis, so consult with your employment counsel on any question about whether overtime pay is due or not.

The Best Policy

The best telecommuting policy is one that is well-thought-out and extremely clear. The policy should clearly define what it means to work, what is ‘principal activity,’ which activities are compensable, and how to request authorization for overtime. The policy should also be clear as to when employees are not expected to work, what breaks should be taken, and that the employee is responsible for accurately recording their work hours.

The best policy will not only give employees important information, but get important information in return. Because state and local laws differ, employers should obtain information about the legal obligations in the specific state where their employee will be based.

Employers may wish to test their telecommuting policy by running a pilot program. A test run can help identify potential problems and allow for proactive solutions to be incorporated into the final policy. Because of the legal complexity of this area, employers should carefully consult with employment counsel when developing and implementing a telecommuting policy and program.

Finally, as with any policy, the telecommuting policy must be clear about which employees are eligible to telecommute. The policy should be consistently followed, as inconsistent awarding of telecommuting privileges could expose the employer to liability for discrimination.

Stefanie Renaud, Esq. is an associate with the law firm Skoler, Abbott & Presser, P.C., which exclusively represents management in labor and employment matters. She is admitted to practice in Massachusetts; (413) 737-4753; [email protected]

Lessons from the ‘Blind Barber Case’

By PETER VICKERY

A mixture of sympathy and surprise best describes the tone of the news stories about the recent decision from the Mass. Commission Against Discrimination (MCAD) in what headline writers dubbed the “blind barber case.”

According to media interviews with satisfied customers, Joel Nixon is a fine young barber. But upon losing his job, he fell into debt, faced foreclosure on the family home, and had to go on food stamps, all while his wife was pregnant with their first child. This explains the sympathy. He is also legally blind, and to the extent we ever thought about the subject at all, many of us may have assumed that barbershop owners could lawfully require that their employees be sighted. Hence the surprise.

These are the basic facts of Nixon v. Tony’s Barber Shop: Nixon suffers from the degenerative eye disease retinitis pigmentosa, has a certificate of blindness from the Mass. Commission for the Blind, and had to surrender his driver’s license in 2004. In November 2011, he applied for a job at the newly opened Tony’s Barber Shop in his hometown of Norton. The owner, Caesar Antonio Morales, hired him.

Four months later (after Nixon had tripped over a customer’s legs, a chair, and a ladder), Morales fired him. Blindness is a disability, so the MCAD decided that, by firing Nixon because of his blindness, Tony’s Barber Shop had discriminated against him, thereby violating the Massachusetts anti-discrimination law (Chapter 151B). The MCAD ordered Morales to pay Nixon $100,000, of which a sizeable sum, $20,000, was to compensate Nixon for emotional distress.

At this point, readers may be wondering, at the risk of seeming insensitive, whether those in the tonsorial business are legally entitled to require that the barbers they employ can see. After all, although the term ‘blind barber’ may not trigger the same degree of trepidation as the words ‘blind brain surgeon’ or ‘blind airline pilot,’ the occupation does entail the use of sharp scissors and, from time to time, cut-throat razors.

Some potential customers, decent people with no bias against the visually impaired, might be a tad wary of a barber who has a certificate of blindness. Does the law let Morales take this possible loss of customer confidence into account, or would that constitute prejudice by proxy? And would Morales (after Nixon tripped over the legs, the chair, and the ladder) have been allowed to fire Nixon if the young man was not visually impaired, but merely clumsy? Clumsiness is not, to date, a recognized disability, so the clumsy are not a protected class.

The narrow question is not whether current social mores favor Morales giving Nixon a fair shake, but whether state law compels him — on pain of a close encounter with the MCAD followed by a penalty of the six-figure kind — to continue employing Nixon even after the young man’s series of stumbles. A definitive answer to the question depends on this case, or one like it, making its way to the appellate courts. In the meantime, here is what we know:

Chapter 151B prohibits discrimination quite comprehensively, and Section 9 of the statute mandates that the courts construe the law liberally for the accomplishment of its purposes, which they certainly do. But it does have an out. It allows an employer to discriminate on the basis of disability if, and only if, the disability renders the employee unable to meet a bona fide occupational qualification (BFOQ).

Judges have read this statutory proviso as creating an affirmative defense, meaning the employer always bears the burden of proving it. Further, in its regulations, the MCAD interprets the BFOQ as the “narrowest of exceptions,” an interpretation the judiciary has endorsed. So, although the employee bears the burden of proving discrimination, it is for the employer to squeeze into the narrow BFOQ exception by persuading the MCAD that the discrimination was justifiable — a significant challenge.

Federal law contains a similar affirmative defense, which the delivery company UPS was able to deploy with partial success when the Equal Employment Opportunities Commission (EEOC) charged it with discriminating against would-be drivers who had failed the company’s eyesight test. UPS claimed that it was entitled to discriminate against those visually impaired people who could not meet the company’s vision protocol, pointing to the safety-of-others exception written into the federal Fair Employment and Housing Act.

Under the statute, an employer secures the protection of the safety-of-others exception if it can prove that, even with reasonable accommodations, the disability in question would prevent the employee from performing the job’s essential functions in a manner that would not endanger the health and safety of others. UPS contended that it imposed the eyesight test because — of all things — it did not want its drivers running down small children who might suddenly dart into the street.

Nevertheless, in 1997 the EEOC commenced an action in California against UPS for violating the rights of job applicants who were monocular, i.e. with sight in just one eye. Eight years later, the Court of Appeals for the Ninth Circuit held that UPS did, indeed, have the benefit of the safety-of-others defense because “peripheral vision plays an important role in avoiding accidents” and monocular drivers would have “less opportunity to see a child … darting from the impaired side.”

As a result of the case EEOC v. UPS, it is now reasonably well-established that, under federal law, peripheral vision contributes to safer driving (in California, at any rate).

So, in keeping with the spirit of the safety-of-others exception, did the MCAD consider the possibility that visual acuity might constitute a BFOQ for barbering, given the sharp scissors and cut-throat razors? No, it did not.

This brings us to perhaps the most noteworthy fact about Nixon v. Tony’s Barber Shop: the employer defaulted. At the hearing, there was nobody to advocate for Tony’s Barber Shop, and the only witness was the complainant himself, Nixon.

One piece of evidence, it turns out, was crucial to the MCAD’s ruling that Tony’s Barber Shop discriminated against Nixon on the basis of his blindness, namely Nixon’s own account of what Morales said to him in the barber shop at the time of his discharge. According to Nixon, Morales used profane comments that referred to his blindness, e.g. “you blind f___,” comments the hearing officer found to reveal “gross insensitivity” and “discriminatory animus.”

With no attorney present at the hearing to cross-examine Nixon or to elicit Morales’s (possibly different) version of the conversation, Nixon’s account stood unchallenged and unrebutted. And, without defense counsel, there was nobody to raise, let alone prove, the BFOQ affirmative defense.

The first lesson for employers? Show up. An adjudicatory hearing is an adversarial process, and if the adjudicator — here the MCAD, the same agency that investigated the complaint and found probable cause — hears from only one side, the result should surprise no one.

The second lesson? Resist the temptation to fire first and ask questions later. Upon learning that an employee has a disability and wants an accommodation of some kind, the employer has a duty to initiate an interactive dialogue to find out whether reasonable accommodations will allow the employee to perform the job.

Remember, although it is the employee’s responsibility to request an accommodation, the onus is on the employer to start the series of two-way conversations so as to determine whether an accommodation is reasonable. And when making that determination, think back to Tony’s Barber Shop and ahead to your own looming discrimination case and assess whether you will be able to prove, by a preponderance of the evidence, the affirmative defense of BFOQ.

Peter Vickery practices employment law in Amherst; (413) 549-9933; www.petervickery.com

Going Concern

By MARYLOU FABBO, Esq.

Massachusetts specifically recognizes ‘gender identity’ as a protected classification, providing transgender employees with certain rights, including the right to be treated in the same manner as their co-workers in the workplace.

So, what exactly does ‘transgender’ actually mean? ‘Sex’ is a term used to describe someone’s biological assignment at birth. ‘Gender’ is the sex with which an individual identifies. Gender is an individual’s sense of being ‘male’ or ‘female’ and is often, but not always, expressed through clothing, hair, or other means.

‘Transgender’ is the term used to refer to people who do not identify with the sex they were assigned at birth or with society’s expectations about female and male gender roles. ‘Trans’ is often used when referring to a transgender individual. Trans people may be male-to-female (MTF) or female-to-male (FTM). Whether someone is transgender does not turn on whether the individual has had surgery to reflect his or her gender identity.

There have been many issues surrounding transgender employees, but perhaps the most frequent one that arises for employers is the use of workplace bathrooms. A transgender employee may feel entirely comfortable using the restroom of the gender with which he or she identifies, but the employee’s co-workers may be opposed to sharing a bathroom with the employee.

Co-workers may complain that they feel that their privacy is invaded or that transgenderism offends their religious beliefs. In some situations, trans employees may feel harassed when using the facility that corresponds with their gender identity. Employers often do not know what to do when faced with competing complaints.

In 2011, Massachusetts employment and housing laws were amended to specifically include transgender employees as a protected group, and Executive Order 526 extended Massachusetts equal-rights protections to gender identity and expression. As of Aug. 1, 2015, surgery is no longer a prerequisite to obtaining a new birth certificate in Massachusetts. Legislation has been proposed in Massachusetts that would prohibit discrimination against trans individuals in places of public accommodation, such as public bathrooms.

Similarly, federal courts and agencies such as the Equal Employment Opportunity Commission (EEOC) have held that Title VII of the Civil Rights Act’s prohibition against sex discrimination applies to those who do not act according to sex stereotypes, such as the expectation that only those whose sex is female should wear a dress. In 2015, both courts and federal agencies made their position on bathroom accessibility clear: transgender employees should be permitted to use the restroom with which they identify.

In April of this year, the EEOC ruled that a transgender employee cannot be denied access to common restrooms used by other employees of the same gender identity, regardless of whether the transgender employee has had any medical procedure or whether other employees may have negative reactions to allowing the employee to do so. In May, the Occupational Safety and Health Administration (OSHA) announced an alliance with the National Center for Transgender Equality to promote the safety and health of transgender workers, and in June, OSHA issued a four-page “Guide to Restroom Access for Transgender Workers.”

As most employers are aware, OSHA requires that employers provide employees with sanitary and available toilet facilities so that employees will not suffer adverse health effects that can result when such toilets are not available when employees need them. In its guide, OSHA has made it clear that all employees should be permitted to use the facility that corresponds with their gender identity.

Regardless of an individual’s personal beliefs regarding gender-identity issues, employers should make it clear that all employees are entitled to be treated with dignity and respect in the workplace. Employers must consider restroom modifications that provide options for transgender employees and for co-workers who are not comfortable sharing facilities. Where possible, an employer should consider offering a single-occupancy, gender-neutral bathroom in an equally convenient location. The transgender employee may not be required to use that facility, but it would remain an option for whomever is uncomfortable with the situation — whether it be the transgender employee or a co-worker.

If a single-occupancy facility is not available, employers should have multi-occupant, gender-neutral restroom facilities with lockable stalls available. Employers should also let all employees know that the presence of a transgender employee in the restroom is not per se harassment and that reports of inappropriate behavior or comments in the restroom will be addressed regardless of whether they are asserted against someone who is transgender or not.

Marylou Fabbo is a partner and head of the litigation team at Skoler, Abbott & Presser, P.C. She provides counsel to management on taking proactive steps to reduce the risk of legal liability that may be imposed as the result of illegal employment practices, and defends employers who are faced with lawsuits and administrative charges filed by current and former employees; (413) 737-4753; [email protected]