It’s Still Flu Season and Mandatory Flu Vaccines Can Still Cost You

Remember that case we told you about last year with the flu vaccines and the EEOC suing for employees on religious discrimination grounds? To recap– in Equal Employment Opportunity Commission v. Mission Hospital a federal district court in North Carolina denied the hospital’s motion for summary judgment, letting the case move forward. That meant that three employees and the EEOC were going to trial in a case about whether their hospital-employer discriminated against them on religious grounds. Well, that case has settled to the tune of $89,000. Not a record setter but real money and a good reminder to look at your flu vaccine program to make sure it is well within the legal limits.

Quick Reminders for Mandatory Flu Shot Programs

  • When an employee’s religious belief conflicts with an employer’s mandatory flu shots, the employer must provide a way for employees to request an accommodation (which, by the way, Mission Hospital did).
  • Once an employee requests the accommodation, the employer can (1) dispute that it is a sincerely held religious belief (riskiest path), (2) provide a reasonable accommodation (path of least resistance but maybe not necessary), or (3) demonstrate that it could not reasonably accommodate the employee’s religious needs without undue hardship (somewhere in between).
  • Step back, and be sure to treat employees the same whether they want or don’t want the vaccine. If a number of employees got to opt out for non-religious reasons, make sure you can distinguish them from your religious objectors. Oh—and make sure to clearly document all of this.

Not Your Grandad’s Facebook? Targeted Social Media Ads Spur Age Discrimination LawsuitCan you target advertisements to a group based on age? The Communications Workers of America (CWA) and several individuals think not and filed suit against T-Mobile, Amazon, Cox Communications, and Cox Media Group. The complaint alleges that these companies ran afoul of the Age Discrimination in Employment Act (ADEA) by sending ads targeting Facebook users in specified age bands (based on their Facebook profiles). The ADEA makes it unlawful for an employer to fail or refuse to hire any individual because of that individual’s age. Does that mean an employer has to send ads to all ages?

The complaint includes various examples of the offending ads (including pictures). By way of example, T-Mobile posted an ad for people looking for a customer care career. According to the complaint, if you clicked on “why am I seeing this ad?” you got a message explaining that T-Mobile wants to reach people interested in customer service based on activity such as liking pages or clicking on ads. The explanation continues with other reasons, including that T-Mobile “wants to reach people ages 18 to 38 who live or were recently in the United States.” Plaintiffs claim that these major American employers violated federal, state, and local laws prohibiting age discrimination in employment advertising, recruiting, and hiring by posting these ads targeting younger individuals on Facebook. Plaintiffs propose both a plaintiff class (of older workers excluded from receiving these ads) and a defendant class (of employers and employment agencies that use Facebook’s ad platform to exclude older workers from receiving these ads).

Facebook is not named in the lawsuit and claims it is shielded from third-party liability by the Communications Decency Act.

Apparently, targeted employment ads are commonplace on Facebook, so we may see a rise of lawsuits similar to this one. Until this plays out, employers should take note. While age targeted advertising may be easy and cheap—and maybe determined to be legal—recognize that you may have to defend it in court.

University Learns a New Lesson: Transgender Discrimination Landmark Verdict in OklahomaIn a landmark case, an eight-person jury (six women and two men) awarded a transgender professor, Rachel Tudor, more than $1.1 million in her claim that her former employer discriminated against her on the basis of her sex.

The Facts

Tudor was hired by Southeastern Oklahoma State University (part of the Regional University System of Oklahoma) in 2004 as a tenure-track assistant professor in the English Department. In 2007, she began transitioning from male to female, becoming the university’s first openly transgender professor.

Tudor notified the university that she would be presenting as a woman for the 2007-2008 school year. According to Tudor, she then received a call from human resources informing her she would not be fired provided she follow certain rules, including that she not use the women’s restroom, wear short skirts, or wear makeup that would be deemed harassing to male colleagues. She testified that another individual told her that she should take safety precautions, because some people were openly hostile to transgender people.

Two years later, in October 2009, Tudor applied for tenure. The university’s tenure committee voted in favor of extending tenure to Tudor; however, university administrators rejected the recommendation, telling Tudor she should withdraw her application for tenure and take more time to strengthen her tenure portfolio. Tudor did not withdraw her application, and the university did not grant her tenure. Later, the university denied her an opportunity to reapply for tenure, and, in 2011, terminated her for failure to attain tenure prior to the end of her seventh year at the university.

The jury hearing the case found that the university and Regional University System of Oklahoma discriminated against Tudor based on her gender when they denied her both tenure and the opportunity to reapply for tenure. The jury also found that the defendants retaliated against Tudor by denying her the opportunity to reapply for tenure.

Takeaways

The case is important to the ever evolving anti-discrimination case law. It is one of the first cases in which a court has determined that transgender status is protected under Title VII. Not surprisingly, not all courts who have considered this issue agree. The Supreme Court has not considered the issue, but it will certainly be confronted with the issue sooner rather than later. It is also the first jury verdict we have heard about regarding a transgender person’s discrimination claims.

Cautious employers will handle concerns regarding transgender status like it is covered under Title VII—assuming that discrimination based on transgender status is sex discrimination. Given this verdict (and a big one at that), we are likely to start seeing more sex discrimination claims from transgender employees.