Webinar Wednesdays Battle of Reasonable Accommodations Trisha Gibo

Webinar Wednesdays Battle of Reasonable Accommodations Trisha Gibo, Esq. March 2, 2016 envision, strategize and actualize

DISCLAIMER This presentation is provided for informational purposes only and is not intended and should not be construed to constitute legal advice. Please consult an attorney if you have specific legal issues. 2 Copyright 2016 ES&A, Inc. All Rights Reserved Confidential and Proprietary December 21, 2021

Changes in the Workforce • Push for diversity in the workplace – Initiatives and committees nationwide – Hawaii is historically diverse state • Race, National Origin, Ancestry • Clashing beliefs – Increase in LGBT employees in the workplace • Approx. 9 million LGBT individuals in U. S. * • High percentage of LGBT individuals in Hawaii. ** – Increase in religious diversity in the workplace * Williams Institute, UCLA ** Gallup Poll – LGBT by State (2012) 3 Copyright 2016 ES&A, Inc. All Rights Reserved Confidential and Proprietary December 21, 2021

Definitions • Gender Identity – One’s innermost concept of self as male, female, a blend of both or neither* – How individuals perceive themselves and how individuals refer to themselves – Gender identity can be the same or different from sex assigned at birth** * Human Rights Campaign ** American Psychological Association 4 Copyright 2016 ES&A, Inc. All Rights Reserved Confidential and Proprietary December 21, 2021

Definitions • Gender Expression – External appearance of one’s gender identity* – Includes dress, grooming, speech patterns, social interactions and interests* • 5 Equal Employment Opportunity Commission Copyright 2016 ES&A, Inc. All Rights Reserved Confidential and Proprietary December 21, 2021

Definitions • Transgender – An umbrella term for people whose gender identity and/or expression is different from cultural expectations based on the sex assigned at birth* – This is different from sexual orientation – Examples: • Biological male that perceives oneself as female • Biological female that perceives oneself as male * Office of Personnel Management 6 Copyright 2016 ES&A, Inc. All Rights Reserved Confidential and Proprietary December 21, 2021

Definitions • Bona fide religious belief – Not limited to traditional, organized religions • E. g. Buddhism, Christianity, Hinduism, Islam, Judaism – Includes “sincerely held” religious, ethical or moral beliefs – Does not need to be directly communicated to employer – Employer may inquire about whether the belief is sincerely held, but tread lightly 7 Copyright 2016 ES&A, Inc. All Rights Reserved Confidential and Proprietary December 21, 2021

Applicable Federal & State Laws • Title VII of the Civil Rights Act – Prohibits discrimination because of sex (including sexual orientation, gender identity, and gender expression) and religion • Hawaii Employer Practices Law, Hawaii Revised Statutes Chapter 378 – Prohibits discrimination because of sex, sexual orientation, gender identity, gender expression and religion • Occupational Safety and Health Act – Requires employers to provide safe working conditions for employees 8 Copyright 2016 ES&A, Inc. All Rights Reserved Confidential and Proprietary December 21, 2021

Equal Employment Opportunity Commission • Enforces Title VII of the Civil Rights Act • Top enforcement priorities are LGBT and religious discrimination cases – EEOC pushing gender bias cases in employment • Discrimination on the basis of gender includes sexual orientation or gender identity – EEOC files religious discrimination cases • EEOC v. Abercrombie & Fitch 9 Copyright 2016 ES&A, Inc. All Rights Reserved Confidential and Proprietary December 21, 2021

Hawaii Civil Rights Commission • Enforces HRS Chapter 378 • Hawaii law ahead of federal law regarding discrimination in employment • Hawaii Civil Rights Commission generally follows enforcement priorities of EEOC – Priority enforcement for LGBT and religious discrimination cases 10 Copyright 2016 ES&A, Inc. All Rights Reserved Confidential and Proprietary December 21, 2021

Discrimination • Disparate treatment discrimination – Adverse employment action based on protected status • Examples: – Unequal discipline for same violations of policy – Unequal access to benefits, items that affect terms and conditions of employment – Rescinding job offers or terminating employees – Segregating employees – Forcing employee to participate (not participate) in activity as term or condition of employment 11 Copyright 2016 ES&A, Inc. All Rights Reserved Confidential and Proprietary December 21, 2021

Harassment • Hostile Work Environment – Employee is subjected to verbal or physical conduct that is severe or pervasive with the effect of interfering with work performance • Examples: – – – 12 Epithets, inappropriate posters, gestures Inappropriate physical contact Intentional use of wrong pronouns Employer failure to intervene in harassing behavior Transfer of harassment victims instead of alleged harassers Copyright 2016 ES&A, Inc. All Rights Reserved Confidential and Proprietary December 21, 2021

Reasonable Accommodations • Employer has duty to provide reasonable accommodations – Disability – Pregnancy – Domestic or Sexual Violence Victims – Religion – Transgender Status • If accommodation is requested – Employer must engage in interactive process – Employer must grant the request unless it creates undue hardship 13 Copyright 2016 ES&A, Inc. All Rights Reserved Confidential and Proprietary December 21, 2021

Occupational Safety & Health Administration • Enforces Occupational Safety and Health Act (OSHA) • Best Practices Guide on Restrooms for Transgender Workers (June 2015) – Ensure safety & health of transgender employees at work – Suggested Model Practices – Lists inappropriate responses to transgender employees 14 Copyright 2016 ES&A, Inc. All Rights Reserved Confidential and Proprietary December 21, 2021

Occupational Safety & Health Administration • Model Practices – Use existing restrooms that correspond with gender identity – Single-occupant, gender-neutral facilities for all employees – Multiple-occupant, gender-neutral facilities for all employees 15 Copyright 2016 ES&A, Inc. All Rights Reserved Confidential and Proprietary December 21, 2021

Occupational Safety & Health Administration • Prohibits Unreasonable Restrictions – May not restrict employees to restrooms that are inconsistent with gender identity – May not segregate transgender employees from other workers (i. e. only transgender employees use specific bathrooms) – May not be limited to using facilities that are an unreasonable distance or travel time from the employee’s worksite 16 Copyright 2016 ES&A, Inc. All Rights Reserved Confidential and Proprietary December 21, 2021

Reasonable Accommodation Process • Assess whether the request is related to the employee’s protected status • Determine what status, practice or belief needs to be accommodated • Work toward accommodating practice/belief • If unable to accommodate specific request – Determine whethere alternatives – Assess whether undue hardship exists • Document, document 17 Copyright 2016 ES&A, Inc. All Rights Reserved Confidential and Proprietary December 21, 2021

Reasonable Accommodations Religion • Reasonable religious accommodations must: – Allow an individual to practice bona fide religious beliefs; or – Allow an individual to refrain from engaging in prohibited practices due to their bona fide religious belief 18 Copyright 2016 ES&A, Inc. All Rights Reserved Confidential and Proprietary December 21, 2021

Reasonable Accommodations Religion and Gender Identity • Examples of reasonable accommodations: – Schedule changes – Leaves of absence – Job reassignments – Adjusting grooming/dress code policies • Gender neutral policies • Head coverings, religious dress, hairstyles/facial hair, prohibition of wearing certain clothing – Revising employment practices (bathrooms) * Equal Employment Opportunity Commission 19 Copyright 2016 ES&A, Inc. All Rights Reserved Confidential and Proprietary December 21, 2021

Best Practices: Battle of the Accommodations • Attempt to be inclusive – Try to accommodate as many beliefs as possible • Engage in ongoing interactive communication – Be open about conflicting points of view – Show the company’s willingness to discuss options • Don’t provide unreasonable accommodations – Request is unreasonable if it infringes on rights of other employees • Be firm when communicating your decisions 20 Copyright 2016 ES&A, Inc. All Rights Reserved Confidential and Proprietary December 21, 2021

Battle of the Accommodations Undue Hardship • Accommodations should not allow for or result in discrimination against others • Employers are not required to accommodate religion by allowing LGBT-based discrimination • Employers are still required to accommodate employees if it does not create undue hardship 21 Copyright 2016 ES&A, Inc. All Rights Reserved Confidential and Proprietary December 21, 2021

Battle of the Accommodations • Flanagan v. City of Richmond: Christian police officer claimed religious discrimination when terminated for making derogatory comments about LGBT employees • Peterson v. Hewlett-Packard: Fundamental Christian employee claimed religious discrimination when terminated for insubordination after continuously posting anti-LGBT scriptures and posters in the workplace • Cruzan v. Minneapolis Public School System: Female teacher claimed religious discrimination because transgender employee (male to female) was sharing restroom 22 Copyright 2016 ES&A, Inc. All Rights Reserved Confidential and Proprietary December 21, 2021

Best Practices: Accommodations • Train supervisors to be sensitive to requests and ask Human Resources for help • Carefully craft communications before you engage in the interactive process • Remember that the interactive process requires communication between employer & employee • Know that employers are not required to provide the employee’s specific accommodation • When in doubt, contact legal counsel 23 Copyright 2016 ES&A, Inc. All Rights Reserved Confidential and Proprietary December 21, 2021

ANY QUESTIONS? • If you have any follow up questions, email us at – aes@esandalaw. com – tgibo@esandalaw. com • For access to these materials, email bdasilva@esandalaw. com • Please visit our website for more resources www. esandalaw. com • Our next webinar will be on April 6, 2016 – Topic TBA • ES&A Turns 1! – Mahalo for your continued support! 24 Copyright 2016 ES&A, Inc. All Rights Reserved Confidential and Proprietary December 21, 2021