What Employees Ought to Know About Dreadlocks in the Workplace

On September 16, 2016, the Eleventh Circuit Court of Appeals held that prohibiting an employee from wearing his or her hair in dreadlocks is not racial discrimination.  Historically, courts have found in favor of employers on this issue. The Eleventh Circuit’s decision was soundly based on prior case interpretation, but sparked the debate as to whether race discrimination laws should protect cultural characteristics.

Equal Employment Opportunity Commission v. Catastrophe Management Solutions

The suit arose when Catastrophe Management Solutions (CMS) rescinded a black women’s job offer because she refused to cut off her dreadlocks. In 2010, Chastity Jones was hired by CMS as a customer service representative. CMS’ human resources manager Chastity Jones later informed Ms. Jones that CMS would not hire her “with the dreadlocks,” because “they tend to get messy.” CMS had a policy stating that “hairstyle[s] should reflect a business/professional image.” Ms. Jones refused to cut off her dreadlocks and her job offer was rescinded.

The Equal Employment Opportunity Commission (EEOC) brought suit on behalf of Ms. Jones in federal district court alleging unlawful race discrimination. The district court dismissed the claim and the EEOC appealed to the Eleventh Circuit.

Title VII of the Civil Rights Act

In the district court, the EEOC alleged race discrimination under sections 2000e-2(a)(1) and 2000e-2(m) of Title VII of the Civil Rights Act.  Section 2000e-2(a)(1) and section 2000e-2(m) provide two separate causes of action for employment discrimination based on race, color, religion, sex and national origin.

  • Section 2000e-2(a)(1) (Disparate Treatment): Section 2000e-2(a)(1) states that it is “unlawful [for employers] to fail or refuse to hire or to discharge any individual … because of such individual’s race, color, religion, sex or national origin.” Employees must prove the employer intentionally discriminated against the employee because of an immutable characteristic.
  • Section 2000e-2(k)(1) (Disparate Impact): Section 2000e-2(k)(1) does not require proof of an employer’s discriminatory intent. Instead, the employee must prove that an employment practice has an adverse impact on a protected group.

On appeal, EEOC argued disparate treatment only under section 2000e-2(a)(1). EEOC argued that prohibiting dreadlocks was racial discrimination, “because dreadlocks are a manner of wearing the hair that is physiologically and culturally associated with people of African descent” and that “race encompasses cultural characteristics related to race or ethnicity.” The appellate court disagreed and held that the EEOC failed to prove intentional discrimination as required by the statute.

Was the Eleventh Circuit’s Decision Correct?

The decision appears consistent with standards established by prior court rulings that hairstyles are not immutable characteristics. The Eleventh Circuit distinguished court decisions protecting immutable characteristics from unprotected mutable characteristics. In Jenkins v. Blue Cross Mut. Hosp. Ins., Inc., the Seventh Circuit held against an employer for denying a promotion because the plaintiff “wore her hair in a natural Afro.”

Whereas, in Rogers v. Am. Airlines, Inc., the District Court for the Southern District of New York upheld an employment policy banning braided hairstyles because braids are a mutable characteristic. The Eleventh Circuit stated that “as far as we can tell, every court to have considered the issue has rejected the argument that Title VII protects hairstyles culturally associated with race.”

Although the Eleventh Circuit was reluctant to include cultural characteristics within the definition of race, the decision raised the debate over whether definitions should be expanded. Given the complexity of race in American society, the Eleventh Circuit stated that issues regarding race definitions in Title VII should be “resolve through the democratic process.” The Eleventh Circuit even commended Ms. Jones on her “intensely personal decision and all it entails.” Nevertheless, the court stated that it is merely tasked with interpreting Title VII, “not with grading competing doctoral theses in anthropology or sociology.”

In the diverse fabric of the United States, perhaps legal definitions of race should be expanded. The debate as to whether cultural characteristics should be accommodated in Title VII continues, but the Eleventh Circuit made clear that the fight should be taken to the legislature, not the courts.

Equal Parenting Time: Beneficial or Harmful?

There are times when children have to endure divorce and separation proceedings. The real battle though is about child custody and who should have parental control. Divorce rates have nearly tripled in the last decade or so and child custody is something that courts have to deal with all the time. One of the ongoing issues with child custody is which parent should be the rightful guardian and caregiver of the child.

There are various factors that the court looks at in making this decision. Such factors include: whether a parent has a history of violence and abuse, financial status of the parent, and intimacy of parent with child. In some instances, the court will allow for joint custody where each parent will be given a chance to be with the child under certain scheduled times. These are usually not on a 50/50 basis, but rather on a scheduled basis or percentage that works best for the child. For this kind of equal child custody, there are legal and social ramifications that need to be addressed.

Equal Child Custody and Arising Problems

Equal child custody, the idea that both parents will be given an allotted amount of time to spend with the child, can be both beneficial and harmful. On the one hand, a child might have attachments to both parents and as a result might want to maintain a relationship with both. However, if one parent is abusive or excessively controlling, then this can be harmful for the child. Family Lawyer

Each state has different laws when it comes to child custody. For example, in Arizona, regardless of the parent’s character or temperament, the parent will be able to maintain contact with the child. In other states, equal custody does not mean 50/50. Instead,  both parents will maintain contact, but not necessarily an equal amount of time with the child.

In California, it is broken up into two categories. There is 1) legal custody and 2) physical custody. Legal custody is the right to make decisions on behalf of the child. Physical custody, as it sounds, is maintaining physical contact with the child. Both of this can be arranged for if the parent qualifies. However, as mentioned, equal child custody under either legal or physical grounds can be detrimental to the child.

There are studies that indicate that a child who is equally exposed to two parents with very different lifestyles and philosophies on life could produce confusion in the child and possibly emotional trauma. Socially, the child might not be able to interact with others of his age. This back-and-forth between parents could lead to long lasting psychological harm to the child. Aside from these psychological and social consequences, there are legal ones as well.

Constitutional Violation?

Child custody has always been at discussion for the courts because at its foundation, there is a constitutional issue. Giving one parent more rights than the other could be viewed as a potential equal protection violation under the Fourteenth Amendment of the U.S. Constitution. Under the Fourteenth Amendment, if one classification of people are treated differently than others, then this could be potential grounds for discrimination and hence a constitutional violation.

However, case law has already addressed this. Through case law and statutory authority, it has been established that this kind of unequal treatment is not discriminatory as it is for a legitimate government purpose: the protection of the child. There is an exception to this of course. If the distinction is on the basis of race, gender, or religion, then equal protection rights in accordance with the U.S. Constitution and enforced by the American Civil Liberties Union will be invoked.

Child custody is a concept that can leave a lasting impact on the child in both his mental and emotional growth. Legally, it is a state-by-state issue. Every case will be different but at the heart of it, the parent’s background and history will determine if they will have visitation rights or custody rights to the child. The distinction made between the parents is not a constitutional violation. Circumstantial factors will be looked at to see what is in the child’s best interest as well as for the parents.

Obesity Under the Americans With Disabilities Act

The U.S. has the dubious honor of being the on again off again world leader in obesity throughout the 21st century.  Mexico has only recently knocked us off our top spot. Obesity has grown from 13% of people in 1962 to 19.4% in 2003 to 35.7% in 2010.  The most recent figures show a slight decrease in obesity: only 34.9%, or 78.6 million U.S. adults, are obese.

Obesity-related illnesses have led to between 100,000 and 400,000 deaths per year in the U.S., depending on the statistics you read. Approximately $147B is spent on medical expenses for obesity-related diseases every year in the US—exceeding even the health care costs associated with smoking.

Obesity is clearly a serious health epidemic. However, it is a particularly divisive one.  While countless people struggle with obesity due to an underlying medical issue, it can also be caused by lifestyle and diet choices.  These diet choices can also be essentially forced on a person through food deserts, areas with little access to fresh food, limiting the availability and affordability of healthier food options.  This dichotomy has left the courts struggling to agree on an approach to obesity under the Americans With Disabilities Act (ADA)—the act which provides federal protection against discrimination based on a disability. Is obesity a disability?  How do we approach providing legal protection to people based on something that could be the product of potentially changeable behaviors?

Defining Obesity

In order to discuss obesity, we’ll first need to define exactly what it is. The American Medical Association (AMA)  has classified obesity and morbid obesity as diseases.  The AMA defines a disease as something which incorporates 1) an impairment of the normal functioning of some aspect of the body; 2) characteristic signs or symptoms; and 3) harm or morbidity.  While this isn’t a legally binding holding, it is persuasive and underscores how dangerous widespread obesity is as an epidemic. Obesity

Obesity is distinct from being overweight. While overweight is defined as simply being over a weight that is set for your height and bone structure, obesity requires having a body mass index (a comparison of your height to your weight) greater than 30.  To put that in context, the average healthy person has a BMI of 18.5-25.  Morbid obesity is defined as either having a body mass index of 40 or more, being greater than 100 pounds over the average weight for your height, or a body mass index of 35 or higher coupled with serious obesity-related medical complications.

A Changing Approach to Obesity Over Time

Up until 2008, the ADA did not cover obesity unless there was a proven underlying medical cause.  Some courts considered morbid obesity as a disability regardless of cause, but obesity without an associated medical condition basically never got the nod.  However, new amendments to the ADA in 2008 under the particularly hard to say ADAAA have changed the analysis of obesity by requiring that the term “disability” be provided a broader reading by the courts.

The ADA now defines disability as a person who has one of three things: a physical or mental impairment which substantially limits one or more major life activities, a history or record of such an impairment, or is perceived by others as having such an impairment.  The amendments also broadened the interpretation of “substantially limits” to require less, forbad the consideration of mitigating measures that could be taken in the analysis of a disability, expanded the definition of “major life activities,” and provided a non-exhaustive list of such activities which included caring for oneself, performing manual tasks, seeing, hearing, eating, sleeping, walking, standing, lifting, bending, speaking, breathing, learning, reading, concentrating, thinking, communicating and working.

These changes have made it much more likely that obesity, regardless of cause, is a protected disability under the ADA. The fact that mitigating measures that could be taken are not considered, coupled with the fact that obesity likely substantially limits many of the enumerated major life activities.  What’s more, a discrimination claim under the ADA now only requires a showing that a person’s been subject to adverse employment action (eg. fired or refused a promotion) because their employer perceives that they have a physical or mental impairment—regardless of whether they have an actual disability covered by the ADA or whether their impairment actually limits a major life activity. However, this type of discrimination can be awfully hard to prove without a smoking gun email or letter as it mostly concerns the mental state of an employer.

The Equal Employment Opportunity Commission (EEOC) certainly has decided that the changes mean that obesity is a disability, regardless of cause. After the ADAAA, the EEOC stated that, based on their guidelines, all obesity and morbid obesity are considered disabilities which can be subject to disability discrimination.

Since the changes, case law has been relatively sparse on the issue. However, recent cases are mixed in their approach.  A number of rulings since the ADAAA, including decisions as recent as 2010, 2012 and 2014 have held that obesity can be a disability, regardless of voluntariness. This being said, earlier this very year the 8th Circuit Appeals Court held that all obesity—including morbid obesity—can only be considered a disability if there is an underlying medical issue.

While some courts still seem reticent towards broad recognition of obesity as a disability, arguing the impracticality of declaring a third of the population disabled and that the actual disability of obesity is the underlying medical cause, the trend seems to be towards recognizing all obesity as a disability under the ADA. At the very least, it has reached the point where it would behoove employers to take steps to ensure they make reasonable accommodations—any accommodation that would not cause undue burden to the employer—for their obese employees.

Employment Discrimination Based on Perceived Status

Sometimes, an employer makes adverse employment decisions based on perceived membership in a protected class. For example, a job applicant may be rejected because he is believed to be Muslim, even if he is not. Or, an employee with an altered gait may be denied a promotion because of her perceived need for job accommodation. These adverse employment actions may be illegal.

Some federal and state laws directly address perceived status. For example:

  • The Americans with Disabilities Act (ADA) prohibits discrimination due to perceived disability.
  • California law protects workers against discrimination based on perceived race, religion, color, national origin, ancestry, disability, genetic information, marital status, sex, age, sexual orientation, or military/veteran status.
  • New York State’s Human Rights Law bans discrimination based on perceived sexual orientation.
  • New York City’s Human Rights Law goes even further and prohibits perceived discrimination based on age, race, creed, color, national origin, gender, disability, marital and partnership status, caregiver status, sexual orientation, or citizenship.

Unfortunately, many federal and state laws do not directly address discrimination based on perceived status. This has led to confusion and inconsistent legal interpretations.

Perceived Disability and the Americans with Disabilities Act

The Americans with Disabilities Act (ADA) specifically prohibits discrimination against people with perceived disabilities. The statute recognizes that employers sometimes assume that an individual with a physical or mental disability requires unnecessary accommodations. The ADA states: Discrimination

An individual meets the requirement of “being regarded as having such an impairment” if the individual establishes that he or she has been subjected to an action prohibited under this chapter because of an actual or perceived physical or mental impairment whether or not the impairment limits or is perceived to limit a major life activity.

If you have been the victim of discrimination due to a perceived disability, you should contact the EEOC or an employment lawyer.

Is Employment Discrimination Illegal Based on Other Perceived Statuses Illegal?

Unlike the ADA, other federal laws do not specifically prohibit discrimination based on perceived gender, race, age, national identity, or religion. Instead, the Civil Rights Act prohibits discrimination “because of [an] individual’s race, color, religion, sex, or national origin.” The Age Discrimination in Employment Act (ADEA) similarly bans discrimination because of an individual’s age. There is absolutely no discussion of perceived status in these laws.

When a statute or law fails to clearly address an issue or protection, individual judges and courts are left to fill the gap. Typically, judges evaluate the language of the statute, legislative intent, and other factors to decide how the law should be applied. Unfortunately, this case-by-case and jurisdiction-by-jurisdiction approach may lead to inconsistency.

In cases of discrimination due to perceived status, different federal courts have arrived at different decisions. For example:

While the EEOC’s Compliance Manual prohibits discrimination based on perceived membership in a protected class, courts have not always deferred to this opinion.

It may seem counterintuitive (and against public policy) to allow incorrect categorization of an employee as a defense. Unfortunately, the Civil Rights Act and the ADEA’s lack of clarity have led to this inconsistent application of the law.

Pursuing a discrimination claim against an employer is complicated because laws vary depending on where and when you file your claim. In a perceived status case, your rights may vary dramatically based on your location.

Do I Need an Attorney?

An employment lawyer will help you choose the correct law and help with the filing deadlines specific to your claim. You should also consider legal representation if you have been offered a severance package or waiver.

California Court Rejects Challenge to End of Life Option Act

For some, it seems like an unthinkable and barbaric concept, but for others, it comes as a relief. Regardless of your own personal beliefs, physician-assisted suicide or death with dignity laws are never fun topics to discuss.  Nonetheless there’s been a recent movement, albeit slow, towards passing laws that aid terminally ill patients in dying.

California recently became the 5th state to enact an aid-in-dying law.  The End of Life Option Act was signed into law by Governor Brown in October of 2015, and was to officially go into effect on June 9, 2016.  However, a group of physicians, the American Academy of Medical Ethics, and the Life Legal Defense Foundation filed suit requesting the law be immediately suspended.

A California Court rejected the temporary restraining order that was filed, but will allow the plaintiffs to proceed  with their lawsuit regarding the concerns of the lack of safeguards against abuse of the law, so this won’t be the last time we’re hearing about this issue.

Terminally Ill Patients Can Voluntarily Request an Aid-in-Dying Drug

The Act permits terminally ill adult patients with the mental capacity to make medical decisions to be prescribed an aid-in-dying medication. Certain conditions, however, must be met before the drug will be prescribed.  End of Life

In order to be eligible to even request a prescription, an individual must meet the following criteria:

  • Be an adult of at least 18 years old or older,
  • Be a California resident,
  • Have a diagnosis from a primary physician stating the patient has an incurable and irreversible disease,
  • Diagnosis must also, within reasonable medical judgment, state the patient’s disease will result in death within 6 months,
  • Be able to make medical decisions for themselves as determined by health professionals,
  • Voluntarily request a prescription for an aid-in-dying drug without influence from others, and
  • Be able to self-administer the aid-in-dying drug (must be eaten, drank, or swallowed and cannot be administered via IV from a physician).

The law states the request must be made by the patient and the patient alone. A power of attorney, advance health care directive, conservator, health care agent, surrogate, or any other legally recognized health care provider will not suffice.  A request must be solely and directly made by the patient to his/her attending physician.  This should provide some sort of solace to those against these types of aid-in-dying laws, as this provision only helps ensure the decision is actually coming from a patient.  Even so, this isn’t enough for some.

Despite Strict Guidelines, Doctors Are Concerned Law is Too Vague

The group that brought the restraining order to suspend the law argued the definition of “terminally ill” within the Act was too vague and risks abuse of the law. Their primary argument rests on concern that the law allows coercion of terminally ill patients, but their suit alleges a whole slew of other ethical and procedural issues.

Patients that are given a 6-month prognosis sometimes make it way beyond that time frame and plaintiffs argue prognosticating a patient’s future is flawed, which suggests they believe this is a standard that shouldn’t be used when prescribing an aid-in-dying drug. Further, the plaintiffs argue, the drugs are unreliable and often can cause inhumane complications that can sometimes force physicians to administer a lethal injection and become a case of euthanasia.

On top of those arguments, the Act doesn’t require patients to administer the drug in the presence of a physician and it provides both civil and criminal immunity without requiring so little as a good faith standard that must be upheld on behalf of physicians. Nor does the Act require seeking consultation with a mental-health specialist unless the physician believes there’s a pre-existing mental disorder, all of which seem to be troublesome concerns.

While it’s certainly an extremely personal decision, the plaintiffs do have some good arguments. Protective measures, like requiring a consultation with a mental health professional, would only further ensure the law isn’t being abused.

How Do We Balance the Two Needs?

In recent years, the issue of death with dignity laws broke headline after headline when a young 29-year-old woman, Brittany Maynard, was diagnosed with a brain tumor.  Maynard was a California resident where, at the time, any type of death with dignity was not an option.  Her family made the decision to uproot their life to Oregon, where death with dignity is authorized.  Despite her illness, Maynard became the face of advocacy pushing for legislative change.  Maynard has since passed away, but her message remains.

Oregon, Vermont, Washington and Montana are among the 5 states that allow physician-assisted suicide, while at least 20 other states are considering some form of death with dignity legislative change. It’s a touchy subject and probably one both sides will never see eye-to-eye on.