The future is now: Employer use of present-day medical information to predict future disabilities does not violate the ADA

The sci-fi film Minority Report envisions the year 2054, when the U.S. government uses predictive foreknowledge of “precogs” to apprehend criminals before their crimes are ever committed, thereby reducing future harm. More than 15 years after the popular film was made, the Seventh Circuit’s decision in Shell v. Burlington Northern Santa Fe Railway Company arrives at a similar result. The Shell court held that employers do not violate the ADA when they use current predictors of future disabilities, such as obesity, to reject candidates for employment, thereby reducing future costs. This ground-breaking opinion opens the door for employer use of predictive tools such as genetic testing and AI algorithms to discern which applicants or employees are most likely to develop future (costly) disabilities, and exclude them from the workforce before disabilities arise, and before legally protected status attaches. In other words, the opinion allows employers to exclude someone based on a status of “likely to develop a future disability,” without violating the ADA, because the individual does not currently have the status of “disabled.”

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New data security law has broad implications for New York employers

On October 23, 2019, New York state’s Stop Hacks and Improve Electronic Data Security (SHIELD) Act went into effect. The law broadens the state’s existing breach notification laws and imposes new security obligations for companies doing business in New York, including an expanded focus on how companies handle biometric data. The SHIELD Act also applies to employee information, as long as there is at least one employee in New York state, regardless of the size or location of the company. As such, the law will have a significant impact on businesses across the country that have private information about consumers and employees based in New York.

For more information about the ramifications of the SHIELD Act, visit ReedSmith.com

When do beliefs attract legal protection at work?

An employer is likely to find a wide variety of beliefs held by its employees. We’re all aware that some people hold (and perhaps we share) firm beliefs as regards climate change, and there is certainly a growing trend towards a vegan lifestyle and beliefs. Others may hold beliefs in spiritualism, life after death, and the ability of mediums to contact the dead; a belief that poppies should be worn in early November; a belief that the 9/11 and 7/7 attacks were “false flag” operations; a belief that lying is always wrong; a belief in the “higher purpose” of public service broadcasting; and beliefs about anti-fox hunting (these are all examples of beliefs that have been considered by the Employment Tribunals).

So when do beliefs attract legal protection at work?

Under the Equality Act, it is unlawful to discriminate, harass, or victimise workers or job applicants on the grounds of their religion, religious belief, or philosophical belief. “Religion or belief” is a protected characteristic under the Equality Act (like age, sex, sexual orientation, race, and disability, for example). “Religion” means any religion, and a reference to religion includes a reference to a lack of religion. “Belief” means any religious or philosophical belief, and a reference to belief includes a reference to a lack of belief.

Employers may feel fairly confident in identifying a religious belief, but it is clear from case law that a philosophical belief is much more difficult to identify, and this makes it a particularly tricky area for employers. The Equality and Human Rights Commission’s (EHRC) guide to religion or belief states “an employer should only question a belief in the most exceptional circumstances where, for example, it is very obscure, appears to be objectively unreasonable, or the sincerity of the belief of an employee is genuinely in doubt”. Employers should therefore consider very carefully how to respond to employees’ beliefs.

In 2009, an Employment Appeal Tribunal decision defined the criteria of a philosophical belief. It must:

  • be genuinely held
  • be a belief and not an opinion or viewpoint, based on the present state of information available
  • be a belief as to a weighty and substantial aspect of human life and behaviour
  • attain a certain level of cogency, seriousness, cohesion, and importance
  • be worthy of respect in a democratic society, compatible with human dignity, and not conflict with the fundamental rights of others

Discrimination against a person because of their belief may be direct (such as when an individual is treated less favourably) or indirect (such as when a policy, practice, or procedure disadvantages those who hold a belief or religion). Discrimination may also take the form of harassment or victimisation. Harassment occurs when an individual experiences unwanted conduct relating to his or her belief, and victimisation involves the unfair treatment of a worker who has made or supported a complaint about discrimination.

Employees are equally protected from discrimination because they are not part of a religion or belief system.

“Philosophical belief” for the purpose of discrimination protection has been held to include beliefs in climate change, in anti-fox hunting, in the “higher purpose” of public service broadcasting, in public service for the common good, that lying is always wrong, in spiritualism, life after death, and the ability of mediums to contact the dead, and in Scottish independence.

However, as demonstrated by a recent, perhaps surprising, decision on whether vegetarianism may be a protected belief (the Employment Tribunal held that it was not, because it concerns a lifestyle choice rather than being about human life and behaviour), it is very difficult to predict which philosophical beliefs will qualify, and employers should exercise caution in dismissing any beliefs that are not on the above list. The key to protection under the Equality Act is the philosophical belief itself – with the behaviours being the consequence of that belief. In the case about vegetarianism, the Employment Tribunal stated that not eating meat is only the consequence of being a vegetarian, not the belief system behind it. The Tribunal in that case drew a distinction with veganism, where there is a clear cogency and cohesion in vegan belief. Last week, a Tribunal was due to hear the case of an ethical vegan, Mr Casamitjiana, who claims he was dismissed by the League Against Cruel Sports for disclosing that it was investing pension funds into firms involved with testing on animals. The hearing was postponed, so we shall have to wait a little bit longer to hear the Tribunal’s decision in that case.

Employers should be mindful to respect and respond sensitively to employees’ genuinely held beliefs. Dietary choices, for example, should be catered for, and employers should ensure that any negative behaviours towards staff for holding beliefs capable of protection are dealt with under their disciplinary policy where appropriate. Employers should also ensure they regularly update their relevant policies as well as the training of managers and other relevant staff members.

German federal labor court gives further clarifications on controversial aspects with regard to vacation entitlements

Under German law, the (mostly mandatory) provisions of the German Federal Vacation Act (Bundesurlaubsgesetz – BUrlG) constitute the basic legal framework for vacation entitlements. The Federal Vacation Act itself has not been changed for years. However, there are still a number of unanswered questions and controversial debates regarding vacation claims in Germany.

In 2019, the German Federal Labor Court (Bundesarbeitsgericht – BAG) had to deal on a regular basis with questions concerning vacation entitlements. Among others, several of the court’s decisions provided important clarifications about vacation entitlements during parental leave. At least in this respect, things are now somewhat clearer for employers.

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Gov. Newsom signs bill to expand CFRA rights

On October 10, 2019, California Governor Gavin Newsom officially signed a bill expanding protected leave rights under the California Family Rights Act (CFRA) to flight crew employees. We covered this issue in more detail here. The new law will allow flight crew employees to be eligible for CFRA protected leave with certain conditions.

Maryland clamps down on non-competes

Maryland employers who wish to require their employees to sign a non-competition agreement beware. Effective October 1, 2019, non-competition agreements under Maryland law are valid only if the employee earns more than $15/hour or $31,200 annually. (See SB 328.) For employees who earn equal to or less than that, the agreement will be considered in violation of public policy and consequently, void.

The new Maryland law is not unique. In June, 2019, Maine enacted lawmaking non-competition agreements unenforceable for any employee earning less than 400% of the federal poverty line – nearly $50,000 in 2019. Similarly, in July, 2019, New Hampshire enacted the same restriction for employees that make equal or less than double the federal minimum wage ($14.50/hour).

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NYC Council amends the New York City Human Rights Law definition of covered employer

New York City’s Human Rights Law (NYCHRL) is one of the broadest anti-discrimination statutes in the country. But does it apply to all Big Apple employers, regardless of size? A recent amendment passed by the City Council clarifies precisely which entities are considered “employers” for purposes of the NYCHRL.

In its current incarnation, the NYCHRL simply states that it does not apply to any employer with fewer than four persons in its employ. This definition has been subject to debate, however, due to the statute’s broad definition of employee, which currently encompasses employees that are full- or part-time, permanent or temporary, paid on or off the books, or are paid or unpaid interns. However, the amended law expands these protections to (1) independent contractors, (2) freelancers and (3) an employer’s parent, spouse, domestic partner or child, if employed by the employer.

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Supreme Court poised to hear oral arguments in blockbuster LGBTQ+ workplace discrimination cases

On October 8, 2019, the Supreme Court will hear oral arguments in three landmark LGBTQ+ rights cases, which could broaden protections for the LGBTQ+ community by prohibiting employers from discriminating against employees based on their sexual orientation, transgender-status, or gender identity under federal law. Currently, conflicting federal cases and shifts in interpretation and policies at administrative agencies such as the Equal Employment Opportunity Commission and the Department of Justice have left employers without clear guidance on what is, or is not, protected at a federal level (separate and apart from state and local protections). In Altitude Express v. Zarda and Bostock v. Clayton County, Georgia, since consolidated, the Court will consider whether the prohibition on sex discrimination in Title VII of the Civil Rights Act of 1964 prohibits discrimination based on sexual orientation. In R.G. & G.R. Harris Funeral Homes v. EEOC, the Court will consider whether Title VII prohibits discrimination against transgender people. The cases are summarized below.

Altitude Express, Inc. v. Zarda / Bostock v. Clayton County, Georgia – factual background

Donald Zarda worked as a skydiving instructor for Altitude Express, Inc., responsible for taking clients on tandem skydives, strapped hip-to-hip and shoulder-to-shoulder to the client. In June 2010, while carrying out a tandem skydiving session with a young woman, Zarda stated he was gay in defense of a female client’s allegation that he touched her inappropriately. Altitude Express terminated Zarda’s employment on the grounds that he shared inappropriate information with clients regarding his personal life. After a three-judge panel ruled against Zarda, the Second Circuit, in an en banc decision, overturned the lower court, holding that discrimination based on sexual orientation violates Title VII.

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New York City’s Commission on Human Rights issues new guidance on immigration status and national origin discrimination

For decades, the New York City Human Rights Law (NYCHRL) has provided protections against discrimination, harassment, and retaliation on the basis of an individual’s actual or perceived immigration status or national origin. However, last week, New York City’s Commission on Human Rights (NYCCHR) issued new guidance (the Guidance) that greatly expands the basis on which an employer can be penalized under the law. The Guidance provides examples to illustrate prohibited harassment and retaliation against individuals, based on their immigration status or national origin. Below is a list of the hiring practices and employee policies which can often lead employers to inadvertently violate the NYCHRL.

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California legislature passes expansion of CFRA rights for flight crew employees

The California Legislature has recently passed a new bill to expand the California Family Rights Act (CFRA) to flight deck and cabin crew employees (pilots and flight attendants). The new bill conforms California’s CFRA to the federal Family and Medical Leave Act (FMLA) with regard to protected leave.

Currently under the CFRA, employees are eligible to take up to 12 weeks of paid or unpaid protected leave during a 12-month period for the birth or adoption of a child, to care for an immediate family member with a serious health condition, or when the employee is unable to work because of a serious health condition.

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