Uptick in Discrimination Claims

Earlier this week, the Equal Employment Opportunity Commission (EEOC) published its Annual Performance Report for for the year of 2022. Reversing a multi-year trend of decreasing claims, the EEOC reports that discrimination and unlawful harassment claims exploded in 2022. Specifically, the EEOC received 73,485 new discrimination charges, which represents an increase of almost 20% when compared to 2021. The number of filed claims had decreased each year from 2015 through 2021. The increase in claims in 2022 coincides with the return of employees to the workplace (after working from home in 2020 and 2021 due to the COVID-19 pandemic). It remains to be seen whether 2022 represents a one time “blip” or whether the trend has reversed, and claims will increase over the next several years. In any event, it is important to ensure that your supervisors are well trained to respond to complaints of unlawful harassment and discrimination and to have clear policies instructing employees where to report such claims.

New Workplace Violence Protective Order Statute Passes

On average, 1.3 million people are victims of nonfatal workplace violence every year in the United States. See Indicators of Workplace Violence, 2019 (ojp.gov). A rising number of states, including our neighbors in Arizona, Colorado, and Nevada, have addressed this problem through legislation that allows an employer to seek a workplace violence protective order. This remedy has not been available for Utah employers. Salt Lake SHRM and Utah SHRM worked to change that in the 2023 legislative session by proposing House Bill 324—Workplace Violence Protective Orders Amendments. These efforts were led by our own Mark Tolman who, in addition to serving as co-chair of our employment department, volunteers as the co-director of legal affairs for Salt Lake SHRM and sits on the Utah SHRM Council. The bill was sponsored by Representative Tyler Clancy and Senator Todd Weiler. 

House Bill 324 amends an existing Utah protective order statute by allowing an employer to seek a judicial protective order against an individual who has engaged in workplace violence or threatened to do so. In short, the Bill allows a judge to enjoin an individual from threatening an employer or its employees and to keep away from the workplace. Violation of a workplace violence protective order is punishable as a Class A misdemeanor (up to a year in jail and a $2,500 fine). 

On the final day of the 2023 legislative session, the Utah Senate voted unanimously in favor of House Bill 324. That vote followed a unanimous vote of the Utah House in support of the Bill. To give the court system time to adapt, this new law becomes effective in July 2023. If you have questions about how to seek a workplace violence protective order, please contact us or your employment counsel.

Sometimes the Dogs are Not Let Out 

A recent case from Michigan Bennett v. Hurley Medical Center is a good reminder that sometimes accommodation requests under the Americans with Disabilities Act (ADA) don’t have to be granted because they constitute an undue hardship. The plaintiff, a nursing intern, brought a claim against the defendant hospital asserting that the hospital did not adequately accommodate her request to let her service dog accompany her as she made nursing rounds throughout the hospital. The service dog helped the plaintiff be aware when she was about to suffer panic attacks. 

The hospital initially granted the request, but some employees and patients suffered allergic reactions to the dog and the hospital revoked the accommodation. The hospital did offer to let the plaintiff “crate” the dog on a particular floor (where the plaintiff was not working) and to take frequent and unscheduled breaks, as necessary.

The court granted the hospital summary judgment dismissing the case on the plaintiff’s claim that the hospital failed to provide her with a reasonable accommodation under the ADA. The court found that the hospital reasonably concluded that the dog posed a safety risk to other workers and patients at the hospital. The court did not find the plaintiff’s demand that patients and hospital staff be transferred to hospital floors other than the ones plaintiff worked on as a reasonable request. The court noted that the hospital engaged in an extensive interactive process with the plaintiff and had evidence, not just speculation, that the service dog was a safety risk, as staff members and patients had allergic reactions when the dog was allowed to accompany the plaintiff on her rounds. 

Disability discrimination and failure to accommodate claims are on the rise. Smart employers take each request seriously and actively engage in the interactive process to see if a reasonable accommodation can be granted. But, as this case illustrates, there are limits to what employers are required to do to accommodate such requests.

Future Paid Leave Requirement? 

The United States is one of few industrialized countries in the world that does not require employers to provide paid family and medical leave at the national level. The Biden administration wants to change that. Last week, the administration proposed that the federal government budget $325 billion to provide 12 weeks of paid family and medical leave to workers in the United States. While the proposal has little to no hope of passing Congress, paid family leave is a high priority for employees. 

A recent survey from December 2022 found that paid family and medical leave was among the top three noninsurance benefits workers most want. Another survey found that workers prefer paid family and medical leave to other benefits, such as paid fitness or mental health benefits, vision insurance or student loan repayment assistance. Even though paid family and medical leave is a highly-sought benefit by employees, it is only offered by 33% of employers. In our competitive labor market, offering some sort of paid family and medical leave may be a way to set yourself apart as you recruit talent.