Long Hair and Religion, Quirky Question # 95
Quirky Question # 95:
I read with interest your analyses of beards and facial jewelry in the context of religious discrimination claims. Maybe I’m beating this topical horse to death, but we’ve encountered a situation where an employee is claiming that his long hair is linked to his religious beliefs. He refuses to cut his hair despite our clear “grooming policy” set forth in our Employee Handbook.
Do we have to accommodate the employee’s desire to have long hair? I feel as though our company (and every other employer) is losing control over how our employees look. Your guidance is appreciated.
Roy’s Analysis:
I would need more facts to assess whether your company needs to allow this employee to have long hair as an accommodation of his purported religious beliefs. As you referenced in your question, I’ve looked at the issue of religious accommodations in the context of various facial piercings, beards and nose rings. Now, you inquire about long hair.
As I’ve addressed in prior Quirky Questions, there are a variety of related inquiries that need to be considered when an employee presents a request for a religious accommodation of his or her appearance. But, before you reach this issues, it’s worthwhile to explore some practical questions, some of which may bear on whether you could or should accommodate your employee’s request based on his religious beliefs.
First, how long has this employee worked for you? Has he always had long hair or is his desire to wear his hair long a new request? If the latter, has he adopted new religious beliefs? Is there some reason why past compliance with your company’s grooming policy did not offend his religious sensibilities while current compliance is religiously problematic?
Second, do you enforce your grooming policy uniformly? If your employee will be able to point to other individuals working at your company who have long hair and perform similar jobs, it may be difficult for your company to advance a compelling argument that allowing this employee’s long hair would constitute an undue hardship. (Note that both with respect to religious and disability discrimination, if you have allowed other employees to behave in a way sought by the individual seeking the accommodation, your undue hardship argument will be an uphill climb.)
Third, what job does your employee perform? What is the reason your company prohibits long hair? Is your policy linked solely to your company’s desire to control its public image or are there other issues in play? For example, are there safety considerations, linked perhaps to the machinery or equipment the employee must use? Are there food safety considerations that are driving your policy? In these illustrative contexts and many others, what does your company do with respect to the hair styles of your female employees? Do these employees wear hats, hair nets, or other equipment to keep their long hair out of their way as they work?
Fourth, what are your employee’s religious beliefs? How do his religious beliefs relate to his long hair? How did your employee broach this topic with you? Did he explain his religious beliefs? Was he willing to discuss them?
Fifth, is anything else of relevance going on with this employee? For example, was he recently disciplined for performance problems? Is he on a Performance Improvement Plan? In short, are his new found religious beliefs (assuming that they are newly discovered) a set up to insulate him from a potential adverse job action? (Forgive me cynicism. Given the nature of some of the claims I’ve seen, I’ve grown somewhat skeptical.)
Exploring each of these areas should position you to analyze the fundamental issues pertinent to a request for a religious accommodation. There are three basic issues that must be explored. Are the employee’s religious beliefs sincerely held? In other words, are they bona fide religious beliefs? Next, can these religious beliefs be accommodated? Lastly, would accommodating your employee’s requests for the religious accommodation cause your firm any undue hardship?
As I’ve suggested in past analyses, the standard for establishing an “undue hardship” in the context of a request for a religious accommodation appears to be a somewhat easier test for an employer than in the parallel context of proving undue hardship in disability discrimination cases. Indeed, controlling your company’s image may well be a legitimate consideration for your company, the deviation from which would constitute an undue hardship. Of course, if this is the underlying justification, you may have to elaborate a bit on why maintaining a certain corporate image is important. Further, this rationale should be linked to the job responsibilities performed by this employee. If, for example, the employee had no interaction whatsoever with the public or your customer base, the “public image” argument may be more difficult to justify persuasively.
In short, you need to better understand the facts before you will know whether your company must accommodate your employee’s request and whether your company faces exposure if it fails to do so.
One recent case involving an applicant who claimed his long hair was linked to his religious beliefs highlights a few of the issues implicated in this kind of fact pattern. In Lord Osunfarian Xodus v. The Wackenhut Corporation, No. 07 C 1431 (N.D. Ill. April 24, 2009), an applicant for a security guard position claimed that he was denied a job because he refused to cut his dreadlocks. The plaintiff asserted that his religious beliefs – Rastafarian/Hebrew Israelite – prohibited him from cutting his hair. The Defendant corporation moved for summary judgment, arguing that the plaintiff never even mentioned his religious beliefs during his job interview. The federal district court didn’t buy it.
The Court’s opinion revealed a bit of frustration with both parties. The court began its analysis of defendant’s summary judgment motion by observing, “The facts in this case are clearly in dispute.” The plaintiff claimed that he mentioned his religious “beliefs” in the interview and the defendant denied it. The judge may as well have said, “Why are you wasting judicial resources with this motion?”
Interestingly, the court noted that while the parties could not agree on precisely what was said about the plaintiff’s religion during the interview, he did state that he could not cut his hair because of his “beliefs.” The court found that this assertion was sufficient to raise an issue of religious discrimination. The judge stated, “The parties do agree that plaintiff did not specifically identify his religion at the interview, but that type of declaration is not required to prove religious discrimination.” In short, once an applicant or employee introduces a concern that he cannot engage in certain conduct because of his belief system, it will be incumbent upon the employer to explore this issue and find out why.
Finally, the court did rule for the defendant on the argument that plaintiff had failed to mitigate his damages. Plaintiff argued that he was unable to accept any subsequent employment because his rejection from the security guard position, in an abbreviated interview, exacerbated a previous mental health condition. (See why I get skeptical at times.) Fortunately, the court rejected this contention, which, incidentally, was unsupported by any medical testimony.
WARN Act Issues, Quirky Question # 94
I own a company that manufactures boats. We fabricate fiberglass hulls in one facility and install motors, carpet, seats, steering, etc. in another facility a few miles away. I employ about 200 employees between the two sites. Three weeks ago, one of my major customers cancelled a large order. I haven’t told my employees yet, but this means I may have to let go 50-75 employees within the next month.
I’ve heard of something called the “WARN Act,” that covers employers who have to lay off employees. Does that law affect me?
[Readers: Quirky Question # 94 was submitted to my partner, Ryan Mick. His analysis is set forth below. If you have any questions about Ryan's analysis, please do not hesitate to contact him. Ryan can be reached at 612.492.6613, or via email at mick.ryan@dorsey.com. Additional information regarding Ryan and his practice is available at: http://www.dorsey.com/mick_ryan/. Regards, Roy]
Ryan’s Analysis:
You are right to be thinking about the WARN Act. WARN requires an employer to give 60 days notice of termination in certain circumstances. But whether the WARN Act would actually affect you in this instance is uncertain. There are a number of threshold elements that must be satisfied before the WARN Act imposes any obligation on an employer. It is unclear whether those elements would be satisfied in this situation.
As a preliminary matter, note that even if the WARN Act applies, the only obligation it imposes on an employer is to provide proper notice of the terminations to affected employees. That can be a somewhat complicated task in itself, but employers do not have any obligation to extend employment for any amount of time or to provide placement assistance, etc. to affected employees.
To determine whether the WARN Act imposes any notice obligations requires a multi-step analysis. First, you need to evaluate whether you are a “covered” employer? Covered employers include those who (1) employ 100 or more employees, excluding part time employees; or (2) employ 100 or more employees (including part time employees) who aggregate at least 4,000 hours per week. If you meet either of these tests, looking at your workforce as a whole, the WARN Act may be applicable.
Second, if you are a “covered” employer, you must next analyze the circumstances of the planned terminations. Generally speaking, there are two types of notice triggering events under the WARN Act: “plant closings” and “mass layoffs.” It does not appear that you are closing a facility (or any distinct department or part of a facility), so the question is whether the facts described could be considered a “mass layoff.”
Generally speaking, a mass layoff means a reduction in force (such as the mass terminations contemplated here) that results in loss of employment at a single site of employment during any 30-day period, for 500 or more employees or at least 50 employees, if that number is at least 33 percent of the workforce. In this case, it appears that two factors will determine whether the potential terminations involve a “notice triggering event.” The first factor is the number of employees actually terminated. If you only terminate 50 employees, that number satisfies only part of the test for a “mass layoff” because 50 employees is only 25 percent of your workforce. You would need to terminate at least 66 employees to meet that threshold.
Even if the you terminate 66 or more employees, however, those terminations must occur at a “single site of employment” for a “mass layoff” to occur. There is no simple analysis to determine what constitutes a “single site of employment.” Making that determination requires a detailed factual assessment of the nature of the operations at separate facilities, the extent of personnel and management overlap, etc. Federal regulations define a “single site of employment” as “either a single location or a group of contiguous locations.” Here, the question is whether the two facilities are “contiguous.” It appears they are not for purposes of the WARN Act. The federal regulations specifically note that:
“Non-contiguous sites in the same geographic area which do not share the same staff or operational purpose should not be considered a single site. For example, assembly plants which are located on opposite sides of a town and which are managed by a single employer are separate sites if they employ different workers.”
As the two facilities have been described – one for fiberglass fabrication and one for installation of interior components – they would likely have different “operational purposes” under the WARN Act. If so, and particularly if the facilities do not share employees on a regular basis, it appears that the two facilities should be analyzed separately.
As such, it matters from which facility the employees may be terminated. If 50 or more employees are terminated from one facility, the WARN Act would impose notice obligations as to the employees in that facility. If fewer than 50 employees are terminated per facility, then WARN may not be triggered. Again, a thorough assessment of several factors not spelled out in your note should be undertaken before drawing conclusions based on the number of terminations at separate facilities alone.
Third, from your note it appears that the need to downsize is the product of a customer’s unanticipated cancellation of a large order. Although this circumstance will not relieve you of the obligation to provide WARN notice, where the law applies, it may shorten the required notice period. The WARN “unforeseeable business circumstances” exception allows for less than 60 days notice if the business circumstances requiring a mass layoff or plant closure were not reasonably foreseeable at the time 60 days notice would have been required. In your case, if you had no reason to expect that the customer in question was going to cancel the order, you may be able to go ahead with the terminations without giving the full 60 days notice. This analysis itself raises numerous questions of fact – for example, why did the customer cancel the order and what insight, if any, did you have into that issue – and it will be your burden to prove that the exception applies.
Fourth, even if you can demonstrate unforeseeable business circumstances, however, you have an obligation to provide whatever notice is reasonable under the circumstances. Here, for example, it appears that you have known about the cancelled order for several weeks, and the potential implications of that cancellation, but have not provided notice under the WARN Act. While an employer does not have to give employees notice immediately upon learning of business difficulties – for example, if the employer needs time to determine whether a loss of business will actually require layoffs – the fact that you have known of the cancellation for several weeks could create significant questions as to whether you provided reasonable notice if you attempt to proceed with terminations on less than 60 days notice. Needless to say, the seemingly simple WARN Act can be very complicated in practice.
Finally, it is not just the federal WARN Act you need to consider. Many states have enacted their own, stricter versions of the WARN Act. By way of example only, “mass layoffs” are defined under Illinois and New York law to include layoffs affecting 25 or more employees (rather than 50 or more), if that number is at least 33 percent of an employer’s workforce. Any employer considering whether to terminate multiple employees should always pay attention to state law as well as federal law. In addition, there are efforts underway to strengthen WARN Act protections for employees. Most recently, a bill was introduced in Congress in April that would redefine “mass layoffs” to include employment losses from a single employer of 50 or more employees (if that number is at least 33 percent of the workforce) at more than one site of employment and double penalties for noncompliant employers. You should monitor theses developments.
Guest Article, Forensic Psychiatric Evaluations of Emotional Distress Claims
CONTRASTS IN CLAIMS:
EVALUATING EMOTIONAL DISTRESS—Part I—the “Eggshell Plaintiff”
Barbara Long, M.D., Ph.D., A.B.P.N.
Employment law Title VII claims often include allegations of significant emotional distress allegedly caused by reportedly inappropriate remarks, touches, and other behaviors in the workplace. When a supervisor, as opposed to a coworker, has been the alleged instigator of the reportedly offensive behavior, emotional distress claims are frequently enhanced because of the “power differential” between the supervisor and supervisee. Evaluating the validity of such emotional distress claims can be challenging. This paper will describe how expert psychiatric forensic consultation can assist in determining which claims may have merit and which may be false, the ultimate determination to be made by the trier-of-fact.
Case # 1—VALID CLAIM (The case study below was fabricated for teaching purposes, although the psychiatric issues illustrated are drawn from a variety of actual cases and archival data.)
Janice was a 31 year old minority woman, who had worked as a secretary for a construction company for 10 years. Prior to that, she had held a series of short-term positions as office assistant but had left for a better job or personal reasons. In her current job, her supervisor, Jack, was a “rough-and-ready” guy, who had an excellent reputation for his ability to get the job done. A loud, boisterous man, he commanded the respect of the all-male sub-contractors by balancing a stern iron will with a seemingly endless supply of rough jokes that often had off-color, sexual, or racial overtones. He often socialized with his sub-contractors after hours, and his alcohol problem was well-known, since he kept a stash in his office and sometimes was seen to imbibe at work. Management tolerated his personality and habits because of his extraordinary ability to complete construction projects within the time and budgetary limits mandated by contracts.
His overbearing personality style created tension among office staff, who tried to avoid provoking Jack’s anger and never complained to higher management about him. However, Janice was the subordinate that most frequently received his ire, especially when contracts contained spelling, grammatical or other errors, or materials were misfiled. Despite these frequent verbal reprimands, Janice received “meets expectations” on her performance reviews, although her frequent requests for time off for medical reasons was mentioned in most of her reviews. She was always given the same raises as other employees. She tended to isolate herself at work and was considered by others to be quiet and aloof but cooperative when her help was needed.
Jack’s loud verbal confrontations of Janice could be heard throughout the office complex. Others saw her in tears following these incidents, after which Janice often either went home immediately or took the next day off. She usually went to her primary care physician complaining of intense insomnia, anxiety, and depression related to her job or other stressful life problems of various kinds. The physicians usually prescribed anxiolytic, hypnotic, or antidepressant medications, which Janice usually took briefly before discontinuing them on her own. The pattern of verbal abuse by Jack had intensified over the years and grew to include demeaning remarks about Janice’s “stupidity.”
At her performance review on the 10th anniversary of her employment, Jack again began to berate her for ongoing spelling and grammatical errors that had changed the meaning of terms of the contract and caused the client to move the business elsewhere—problems that had occurred from time to time over the course of Janice’s employment. Irate, Jack confronted Janice, called her a name involving a racial epithet, rated her performance as “below expectations,” and denied her a merit raise. She left in tears, went home, and overdosed on her anxiety and hypertension medications. Her brother, who usually visited her apartment daily, found her unconscious and took her to the ER. Coworkers complained to management about Jack’s treatment of Janice. Management investigated and terminated Jack immediately.
In the ER, Janice complained of voices that sounded like Jack’s yelling at her and repeatedly calling her names with racist and sexist content. She disclosed that for several months, the voices had awakened her at night, leaving her anxious and unable to return to sleep. She had complained to her doctors of insomnia, anxiety, depression, and, recently, paranoid ideas, but she had never mentioned the voices until this ER visit. After the current meeting with Jack, the voices had started again, leaving her highly agitated, suspicious of others, and suicidal. She overdosed in order to stop the voices. The ER doctor admitted her to the hospital and started anti-psychotic and antidepressant medication, which decreased her symptoms. However, as before, she discontinued the medications after discharge. She received a medical leave of absence and short-term disability, following which she applied for and received Social Security Disability. After being absent for a year, the company terminated her.
During the litigation process, which was very stressful for Janice, she filed bankruptcy due to inability to make ends meet on a reduced income. She continued to go the ER for situational stresses including those caused by the litigation. She remained unemployed on SSDI. The Independent Psychological Evaluation by the plaintiff’s expert concluded that Janice had PTSD caused by Jack’s verbal abuse, the hostile work environment, and management’s retention and lack of supervision of Jack. Despite a lack of training in HR or management, the expert further opined that Janice had been too intimidated by her supervisor’s “position of authority,” and that the “power differential,” along with inadequate reporting procedures within the company fostered a climate of abuse of which employees, including Janice, were reluctant to complain.
Defendant’s Forensic Psychiatric Analysis of Plaintiff
Counsel for the company requested an Independent Psychiatric Evaluation of her emotional distress claim. Legal, medical, and employment records were reviewed and psychological testing completed. There were coworker affidavits supporting Janice’s perception of Jack’s behavior as chronically verbally abusive. Janice’s past history included being raised in poverty by an alcoholic father who was physically and verbally abusive to all of the 10 children. Once he had called Janice racist names, after she had brought home a report card consisting of mostly Ds and Fs. She graduated from a public high school with a class rank in the lowest 10th percentile. She was a loner all of her life, had been married once, and had no children. Legal history was negative except for two prior bankruptcies during her prior marriage to an alcoholic man who, like her father, was verbally and emotionally abusive. Since her divorce, she had been able to support herself on her income from the defendant company. She had a limited social support system that consisted mainly of her Church and her original family members. Family history included a great uncle who had been institutionalized for schizophrenia. Medical history included longstanding hypertension, a problem that had worsened with age and weight, becoming increasingly difficult to control with medications. Her physician had discontinued a beta blocker due to concerns about depression. Records included over 50 ER visits over the years due to complaints of anxiety, stress, depression, or vague physical complaints that could not be explained medically. These ER visits were related to situational stresses, including work, quarrels with her ex-husband, or thoughts that others, even strangers, were against her.
The psychological testing included the MMPI-2, MCMI-III, Rorschach, SIRS, and Sentence Completion. The first four instruments are standardized tests, while the fifth is a critical items test that can alert the examiner to potential acute psychiatric disturbance possibly requiring intervention. The MMPI-2, the “gold standard” of personality testing, provides information about both Axis I (treatable psychiatric disorders) and Axis II (personality disorders that are developmental in nature, having a significant genetic component as well as potential inputs, such as sexual or physical abuse/neglect). Her MMPI-2 revealed an F scale (exaggeration of symptoms) that was at a level commonly seen in psychiatric inpatients. There was a borderline clinically significant scale on L indicating a view of herself that was more righteous and moral than the general population. Clinical scale elevations included Scales 1 (Somatization), 2 (Depression), 6 (Paranoia), 7 (Anxiety), 8 (Schizophrenia), and Scale 9 (Social Introversion). The computerized interpretive Personal Injury Report was based upon the two-point elevations of Scales 8, 6, and 2 and suggested a breakdown in thinking with significant depression and paranoia. Significant elevations on Scales 7, 9, and 1 suggested accompanying high anxiety, panic, social isolation, and somatic reactivity under stress. MMPI-2 research indicated that this was a generalized distress pattern.
The MCMI-III, a test for personality disorders, showed elevations on Schizoid, Paranoia, and Obsessive Compulsive scales. The Structured Interview of Reported Symptoms, a test for feigning or malingering of psychological symptoms, revealed no primary scales that deviated from “Honest Reporting” of symptoms. One supplementary scale that measured endorsement of everyday problems was elevated. The Sentence Completion contained responses that suggested chronic feelings of emptiness, despair, and self-worthlessness. The Rorschach, which was administered, scored, and interpreted according to the Comprehensive System of John Exner, Ph.D., revealed an individual with a Coping Deficit and thought disorder. Strong pessimistic thinking directed inward was indicated along with problems with emotional control secondary to an elevated number of situational stresses in a woman with a limited supply of emotional resources to cope. Individuals with this result are expected to have frequent “breakdowns,” in which they seek medical or psychological intervention.
The psychiatric Mental Status Examination revealed a depressed and anxious woman who was guarded. There was psychomotor retardation. Thinking revealed paranoid and somatic delusions that involved concerns that Jack or other members of management were out to get her and had been poisoning her food, resulting in physical problems and ER visits. Their voices were arguing day and night, interfering with sleep. Her style of communication revealed looseness of associations consistent with a thought disorder. She had stopped her medications, because she had thought the doctors were part of the company’s conspiracy against her. Diagnoses were Axis I: Paranoid Schizophrenia and Axis II: Personality Disorder, Not Otherwise Specified, with Schizoid and Paranoid features. The evaluation was inconsistent with PTSD.
The expert concluded that although the history suggested a latent schizophrenic process caused by a genetically determined (rather than work-related) Coping Deficit, low-normal IQ, and a predisposition to schizophrenia, a history of physical and emotional abuse by her father and ex-husband, and poor social and overall life adjustment, she had been able to cope by restricting her life to work, Church, family, and medical interventions. This strategy succeeded until the final incident with Jack. Despite the emotional parallels between Jack and her father and ex-husband, parallels that had intensified her emotional responses to Jack’s behavior, the final confrontation had “tipped the scales,” breached her psychological defensive structure, and resulted in a florid psychotic breakdown. Her current ongoing psychotic state and Schizophrenia diagnosis was judged to carry some degree of permanency, although part of the permanency had resulted from her non-compliance with medications and follow up. The expert opined that although there were no guarantees, if she complied with medications and received ongoing psychiatric care, it was more likely than not that her emotional condition would improve. However, it was unlikely that she could ever return to a secretarial position. No opinions were rendered about policies, as this was outside the realm of the expert’s training. The case was settled out of Court.
Case Lessons
This case illustrates the psychiatric equivalent of the legal term, “Eggshell Plaintiff.” It illustrates the importance of a comprehensive psychiatric evaluation in order to determine diagnosis and causality in work-related legal claims of emotional distress. Only through a review of records, psychological testing, and a comprehensive psychiatric evaluation could the complicated and interrelated biological, social, and psychological forces be understood sufficiently, so that the question of psychological injury could be fairly assessed.
Also discussed with counsel was the other evidence bolstering the validity of her claim. This included overwhelming coworker support through affidavits, lack of evidence of feigning on the psychological test instruments and in the interview, absence of personal complicating factors (e.g., substance abuse, a prior history of similar claims against prior employers, antisocial behavior, etc.), and evidence that coworkers and management alike knew of her supervisor’s alcoholism and poor control of anger but did not confront him. These factors had to be weighed against her limited IQ, which raised the question of why her poor performance had been consistently rated as “meets expectations,” when it had clearly been poor, increasing Jack’s frustration over time and jeopardizing the company’s relationships with customers.
Terminating Bankrupt Employee, Quirky Question # 93
I am the Chief Financial Officer of a public company. I recently learned that the Controller of our company has filed for personal bankruptcy. I don’t think that we should have someone in that position who has obviously been unable to handle her own finances – not only because she has access to the company’s finances, but also because as word of this spreads, I don’t think that others in management will trust her judgment any longer. Is there any reason that we cannot terminate her employment?
[Readers: Quirky Question # 93 was posed to my partner, David Lauth. David's analysis is set forth below. If you would like more information about this issue, do not hesitate to contact David directly at 612.343.7940, or via email at lauth.david@dorsey.com. For more information on David, check out http://www.dorsey.com/lauth_david/. Regards, Roy]
David’s Analysis:
You ask whether there is any reason why your company could not terminate your Company’s Controller, given the fact that she has declared personal bankruptcy. There is.
It is a completely understandable and appropriate impulse to have the concerns you expressed. There are very good reasons to worry that someone in this situation may be more tempted than usual to cross the line into dishonest or unethical behavior, and good reasons to worry that other people in the company are going to lose faith in her abilities and her judgment.
The obstacle to terminating her employment is the United States Bankruptcy Code. Part of the goal of a bankruptcy filing, of course, is to help a debtor get a fresh start. To that end, a provision in the Bankruptcy Code directly addresses this situation and protects the employee.
11 U.S.C. 525 (b) provides as follows:
“No private employer may terminate the employment of, or discriminate with respect to employment against, an individual who is or has been a debtor under this title, a debtor or bankrupt under the Bankruptcy Act, or an individual associated with such debtor or bankrupt, solely because such debtor or bankrupt—
Act . . .”
It is clear under the statute, however, that an employer cannot terminate an employee simply because the employee has filed for bankruptcy, even if the employer has a reasonable fear that others will react negatively to news of the filing. In re Hopkins, 66 B.R. 828 (W.D. Ark. 1986). In your situation, a termination of this employee will likely lead to a claim that the statute has been violated.
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