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Association Discrimination in Employment

Association Discrimination in Employment

Most employers know they can’t discriminate against employees based on the employees’ own legally protected characteristics. But they may not realize that the same laws often also prohibit “association discrimination,” or “relationship discrimination.” In other words, employers can’t discriminate based on an individual’s association with someone in a protected class.

Forms of Association Discrimination

The employment discrimination laws don’t always expressly identify what forms of association discrimination they proscribe. The courts have recognized forms of this protection by applying more general aspects of the laws.

An employee may be able to claim harassment or discrimination based on:

  • a relative’s disability;
  • open association with or marriage to someone of a different race;
  • being a parent or caregiver to children; and
  • the protected activities of a relative.

Association Discrimination Under the ADA

The Americans with Disabilities Act (ADA) is one law that contains express provisions about association discrimination. The ADA covers all employers with at least 15 employees.

The ADA provides that no employer may “discriminate against a qualified individual on the basis of disability in regard to job application procedures, the hiring, advancement, or discharge of employees, employee compensation, job training, and other terms, conditions, and privileges of employment.”

Among the forms of discrimination it expressly prohibits is “excluding or otherwise denying equal jobs or benefits to a qualified individual because of the known disability of an individual with whom the qualified individual is known to have a relationship or association.”

The ADA requires no familial relationship for an employee to receive this protection. The protection depends on whether the relationship of whatever type motivated the employer’s action.

Association discrimination does not afford all of the same protections under the ADA as it does to an employee who personally has a disability. Most notably, employers do not have to provide accommodations to employees (or applicants) based on the disability of a relative.

Association Discrimination Based on Race

Title VII of the Civil Rights Act of 1964 prohibits employers with 15+ employees from discriminating on the basis of race, color, sex, religion, and national origin. Unlike the ADA, Title VII does not contain any specific provisions about association or relationship discrimination. However, many courts have recognized such protections regarding race.

Here are some examples of actual cases where a court recognized a theory of racial association discrimination:

  • White man alleged he was fired because of his marriage to a black woman.
  • White woman alleged she lost her job because the employer disapproved or her social relationship with a black man.
  • Employee alleged that employer reacted adversely to him because his race differed from his daughter’s.

Caregiver Discrimination

Title VII doesn’t identify “caregivers” as a protected characteristic. But the EEOC and some courts have applied the law to provide employees rights to raise children.

Most of these cases have involved women claiming they were denied employment opportunities for having or wanting to have children. In a 2009 decision, the U.S. Court of Appeals for the First Circuit summarized: “In the simplest terms, these cases stand for the proposition that unlawful sex discrimination occurs when an employer takes an adverse job action on the assumption that a woman, because she is a woman, will neglect her job responsibilities in favor of her presumed childcare responsibilities.”

The EEOC has consistently taken this position, which it has described in assorted guidance documents.

Other Bases for Association Discrimination Claims

A few appellate courts have ruled that Title VII prohibits association discrimination regarding each of the law’s protected characteristics. Most recently, the U.S. Court of Appeals for the Second Circuit (which covers Connecticut, New York, and Vermont) ruled, “we now hold that the prohibition on association discrimination applies with equal force to all the classes protected by Title VII . . . .”

The Second Circuit made this pronouncement through a February 26, 2018 decision in which the court ruled that Title VII prohibits sexual orientation discrimination through its general inclusion of sex as a protected characteristic. You can learn more about that decision in an earlier post.

Retaliation by Association

In 2011 the U.S. Supreme Court ruled that an employee may sue his employer for retaliation under Title VII claiming that he had been fired because his fiancée had filed a sex discrimination charge against their employer.

Before this decision, many courts had concluded that Title VII’s retaliation protections only applied to the persons who personally engaged in protected activity. For example, the person who has filed a discrimination complaint. The Supreme Court, however, advised that “Title VII’s antiretaliation provision prohibits any employer action that well might have dissuaded a reasonable worker from making or supporting a charge of discrimination.”

On that standard the Court continued: “We think it obvious that a reasonable worker might be dissuaded from engaging in protected activity if she knew that her fiance would be fired.”

Employer Responsibilities

Many of the legal details in this area remain murky. The Supreme Court has not weighed in recently on most of these questions. It is not certain how it would rule in these cases today. Regardless, most employers don’t want to be in the position of finding out directly. Accordingly, it is best to avoid any appearance of discrimination, whether based directly on an employee’s characteristics or those of their relatives or others with whom they associate.

Employers should also be aware of the Genetic Nondiscrimination Act (GINA), which likewise applies to employers with 15+ employees. Among other things, GINA prohibits discrimination in employment based on an individual’s family medical history. For more, read Don’t Forget GINA.


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Voluntary Separation Programs

Voluntary Separation Programs

Voluntary separation programs can be mutually beneficial devices for making workforce adjustments. Employers can use them on their own or as a precursor to an involuntary program. Each program is different, but some common elements appear regularly.

What Is a Voluntary Separation Program?

Generally, I’m talking about any circumstance where an organization provides a group of employees the opportunity to resign voluntarily and obtain specified benefits that they would not otherwise be entitled to receive.

Reasons for Voluntary Separation Programs

There are many reasons why companies decide to implement voluntary separation programs. These are probably the most common:

Reduce Headcount

Whether due to lower business volume, technological advances, or other factors, sometimes companies no longer need as many workers. The result: a reduction in force. The options? Voluntary or involuntary terminations. It’s usually not enough for a company to announce that it needs 10 fewer employees only to discover that 10 people are ready to leave anyway. Instead, they may try to offer some inducement to entice employees to move on.

Reduce Payroll

Although reducing headcount can sometimes be a cost-saving measure, it doesn’t have to be. Some companies may have reason to downsize without spending less on labor costs. Space constraints, for example might make it economical to pay fewer people to do as much or more work.

But often money is a significant factor. And reducing payroll doesn’t have to mean reducing headcount. The focus could be on parting ways with more highly compensated employees. The company may even plan to replace them very soon, but with someone who demands a lower wage or salary.

Reorganize Functions

Neither money nor numbers have to be primary considerations. An organization may simply have the wrong personnel for their business going forward. Voluntary separation programs may coincide with retraining programs, for example. The idea could be to allow those who don’t want to transition to new roles to leave the company with some form of compensation for helping the business progress.

Facilitate Retirements

Companies can’t force employees out because of their age. But there may be ways they can make it easier for an employee to retire voluntarily. Many workers of traditional retirement age who would like to retire cannot afford to do so these days. In some situations it makes sense for their employers to provide an optional retirement program that would provide monetary or other (e.g., health insurance) benefits to allow employees to wrap up their careers on their own terms.

Structuring Voluntary Separation Programs

The ideal first step is to determine the company’s goals. Is it one of the four categories above? A combination of them? Something else?

With goals in mind, the employer can then consider which employees will be eligible to participate in the program. The program shouldn’t discriminate based on any protected characteristic, but not everyone needs to be offered the chance to participate. If the goals correspond to functional or headcount issues, then the company might only offer the program to specific departments or job functions. If costs are a factor, then the offer may extend only to relatively high earners.

The next step is to determine what to offer the employees. Usually, this would include some amount of cash severance pay. Health insurance or other benefit continuation may also be appropriate. Sometimes employers also offer out-placement services, like career counseling or skills training, to individuals who will remain in the workforce rather than retire altogether.

Normally, if the employer will be giving out something of value to employees who choose to leave, they should require the employee to sign a release of claims. Otherwise, despite the “voluntary” nature of the program, employees may turn around and sue the company. They may claim wrongful termination, or the allegations may relate to other aspects of their prior employment. Most employees who choose to participate in a separation program won’t object to signing a release. Those who do were probably going to cause trouble anyway. Then at least their reluctance or refusal to sign sends a valuable signal to the employer.

(Click here more on employee releases.)

Pitfalls to Avoid

Voluntary separation programs often work out well. However, as with everything, there are traps for the unwary. Here are some.

First, some employers use these programs to get younger. This raises potential age discrimination concerns. Merely offering a voluntary program that gives more senior employees the opportunity to resign/retire usually shouldn’t be unlawful. But companies must be careful about their approach. An employer who has been outspoken about getting younger to cut costs, bring on new skill sets, etc., can expect rumblings about age discrimination (if not litigation) if it later terminates the employment of older workers, even if justifiable on factors other than age.

Second, employers should obtain releases only after employment has ended. Sometimes employees accept a voluntary severance package, sign a release, and then continue to work until a later separation date. Then if something transpires between signing the release and the formal separation from employment, the release will not stop the employee from asserting a claim.

Third, organizations must plan for multiple possible outcomes. Sometimes the voluntary program produces the desired workforce changes on its own. Other times, too many, too few, or the wrong employees elect to participate. It may be possible to structure the program to avoid some of these bad outcomes (e.g., by limiting participation to a particular number of employees). But, whatever the approach, the voluntary nature leaves the results largely in the employees’ hands. Thus, employers should plan ahead for the next steps based on different contingencies.

Fourth, business needs can change quickly. And it takes time to design and implement a voluntary separation program. It is often best to keep a tight timeline for the program, so it wraps up before business conditions change significantly.

Final Thoughts

Implementing a voluntary separation program requires considerable planning. For most companies this planning should involve a team who can both provide the necessary background information/skills and keep the program confidential until launch. Team members ideally should include upper management, supervisors, human resources, and legal counsel experienced with group termination programs.

Accommodating Religious Beliefs in the Workplace

Accommodating Religious Beliefs in the Workplace

Most U.S. employers are legally prohibited from discriminating in employment based on individuals’ religious beliefs. Unlike most other employment discrimination protections, this aspect of employment discrimination law further requires employers to accommodate employees’ sincerely held religious beliefs.

Applicable Laws

Title VII of the Civil Rights Act of 1964 is a federal law that prohibits employment discrimination because of race, color, religion, sex, or national origin. Under Title VII, employers generally may not take adverse employment action against applicants or employees based on these characteristics. The law disallows both intentional and unintentional discrimination, but does not require affirmative action. However, it does compel employers to provide reasonable accommodations based on employees’ religious beliefs.

Title VII does not apply to religious organizations regarding the employment of individuals of a particular religion. Courts have limited this exception only to organizations whose “purpose and character are primarily religious.” Even where this exemption applies, it only affects hiring and firing decisions. Once a religious organization hires employees of different religions, they cannot discriminate against them regarding pay, benefits, and other similar conditions of employment.

Title VII only applies to employees with at least 15 employees. Many states have laws encompassing religious discrimination and accommodations that apply to smaller employers. For example, the New York State Human Rights Law applies to employees with as few as four employees.

This article focuses on Title VII’s religious accommodations requirements. Similar state laws often have comparable rules. But some will vary in ways that may be relevant to any particular situation.

Sincerely Held Religious Beliefs

Title VII defines religion to include “all aspects of religious observance and practice, as well as belief, unless an employer demonstrates that he is unable to reasonably accommodate to an employee’s or prospective employee’s religious observance or practice without undue hardship on the conduct of the employer’s business.”

A religion does not have to be well-recognized or observed by many people to qualify an employee for Title VII protection. EEOC compliance guidance states that “religion” includes “religious beliefs that are new, uncommon, not part of a formal church or sect, only subscribed to by a small number of people, or that seem illogical or unreasonable to others.” Religious beliefs can even include non-theistic beliefs.

No single rule determines whether an individual sincerely holds a religious belief. Some factors that might undermine asserted sincerity include whether the:

  • employee has behaved markedly inconsistent with the professed belief;
  • requested accommodation sought is a particularly desirable benefit that is likely to be sought for secular reasons;
  • timing of the request is suspect; and
  • employer otherwise has reason to believe the accommodation is not sought for religious reasons.

The requirement that a religious belief be “sincerely held” only applies regarding religious accommodations.

Religious Accommodations

Accommodations may include any adjustment to the work environment that will allow the employee to comply with their religious beliefs. Requests often relate to work schedules, dress and grooming rules, or religious expression or practice while at work.

The employee must initiate a request for accommodation by notifying the employer of the need for adjustment of work conditions due to a conflict with their religious beliefs. The employee must also explain the religious belief to the employer. The employer may seek additional information. But it cannot go so far as to discriminate against the employee by overly burdening them based on the request.

As with requests for accommodations based on disabilities, employees are only entitled to “reasonable accommodations” that do not impose “undue hardship” on their employer.

To show undue hardship in this context, the employer must identify more than “de minimis” costs of providing the accommodation. The EEOC’s website suggests: “An accommodation may cause undue hardship if it is costly, compromises workplace safety, decreases workplace efficiency, infringes on the rights of other employees, or requires other employees to do more than their share of potentially hazardous or burdensome work.”

Both reasonableness and undue hardship are measured on a case-by-case basis.

Handling Religious Accommodation Requests

Employers (through their managers) must be conscientious upon receiving a request for a change in work conditions related to religious beliefs. Ideally, there should be a procedure in place for receiving and processing these requests. Any sign of hostility toward a request may alone risk a claim of harassment or discrimination, even if no accommodation is due.

At the same time, employers need not automatically grant every request by an employee tied to a religious belief. Some may be unreasonable. Others may not be premised on a sincerely held religious belief. Still others may create an undue hardship. But all requests should be handled carefully so these criteria can be considered and weighed properly.