It’s Now Easier to Prove Discrimination With Job Transfer or Other Change in Terms or Conditions of Employment

Jaytona Muldrow was a plainclothes sergeant in the St. Louis City Police Department’s specialized Intelligence Division. In connection with her duties in the Intelligence Division, Muldrow was deputized as a Task Force Officer with the FBI and was granted FBI credentials and an unmarked take home car. When a new captain was assigned to supervise the Intelligence Division, the Police Department transferred Muldrow from the Intelligence Division (at the new captain’s suggestion) to a uniformed position in the City’s 5^th District, supervising the day-to-day activities of neighborhood patrol officers. While Muldrow’s rank and pay remained the same, her responsibilities, perks and schedule did not. She no longer worked with high-ranking officials in the police department, lost her FBI credentials and the take-home car, and had to work weekends (while in the Intelligence Division she worked Monday through Friday).

Muldrow filed suit against the City of St. Louis under Title VII of the federal Civil Rights Act in the federal District Court for the Eastern District of Missouri, claiming she was transferred because she was a woman. The District Court granted summary judgment in favor of the City, holding that Muldrow’s transfer did not cause her a materially significant disadvantage, as it did not result in a diminution of her title, salary or benefits and had caused only a minor change in her working conditions. The Eighth Circuit Court of Appeals affirmed the decision of the District Court.

In Muldrow v. City of St. Louis, issued April 16, 2024, the U.S. Supreme Court reversed the decision, holding that it was not necessary to show that an injury resulting from an action taken by an employer because of an employee’s protected status (e.g., sex, race, religion, or national origin) resulted in significant injury. Instead, Justice Kagan, writing for a six-member majority of the Court, stated that “an employee must (only) show some harm from a forced transfer to prevail in a Title VII suit…” (emphasis added). This same standard of “some harm” will also apply to any other change in the terms and conditions of employment made as a result of the employee’s protected status. The other three justices each wrote opinions concurring in the result. Continue reading »

Your Business and the ADA: Ensuring Accessibility and Inclusion

Part 2 of 2-Part Series on Accessibility and Accommodation

It is important for small businesses to be aware of and comply with the requirements of the Americans with Disabilities Act (ADA). The ADA has two sections that can potentially impact small businesses: Title I and Title III.

Title I of the ADA applies to businesses with 15 or more employees (or 6 or more employees under the Missouri Human Rights Act) and requires employers to provide reasonable accommodations for employees with disabilities. This means making modifications or adjustments to the work environment that enable employees to perform their job duties which could include providing assistive devices, modifying work schedules, or allowing telecommuting.

Title III applies to all businesses, regardless of their size, and requires them to make their physical premises accessible to individuals with disabilities. A key aspect is the removal of architectural barriers that may hinder accessibility and ensuring that physical structures are designed and constructed in a way that accommodates individuals with disabilities. Elements such as entrances, parking spaces, ramps, doorways, hallways, and restrooms must be accessible to people with mobility impairments.

When constructing a new building or making alterations or renovations to an existing building, businesses are generally required to comply with the ADA Standards for Accessible Design adopted by the Department of Justice in 2010. However, even if a business is not engaged in construction or renovation, they still have an obligation to make alterations to their premises to provide access if it is “reasonably achievable.” The term “reasonably achievable” has not been precisely defined, but courts consider factors such as the nature and cost of barrier removal, the business’ financial resources, technical difficulties, the number of employees and visitors, safety requirements, and the impact on business operations. Continue reading »

Clicking Towards Disaster: The Cost of ADA Non-Compliant Websites

Authored by David R. Bohm with assistance from Sarah L. Ayers, contributor

Part 1 of 2-Part Series on Accessibility and Accommodation (Updated July 2023)

Business websites are an invaluable tool for businesses to reach and grow their customer base. Entire businesses now operate completely online. Interactive websites that conduct transactions with consumers must be accessible by anyone, including those with hearing or vision disabilities. Non-compliant websites violate Title III of the Americans with Disabilities Act (ADA), which prohibits discrimination in public accommodations. A business could be found liable if its website is not accessible.

To be ADA compliant, the website should comply with the Web Content Accessibility Guidelines (WCAG). WCAG addresses accessibility issues such as contrasts, subtitles, and compatibility with screen reader equipment. This area of law is still developing. Federal courts are split as to whether Title III applies to businesses with no physical location. The Justice Department has not developed exact criteria for accessibility but has released various settlement agreements giving business owners some insights into ADA requirements.

When Rite Aid’s vaccine appointment portal was found to be inaccessible to individuals with disabilities, the company settled with the Justice Department. The issues were: (1) images, buttons, links, headings, and form fields that were either unlabeled or inaccurate, (2) pop-up windows and error messages that were not reported to screen readers, (3) tables that were missing information and proper mark-ups, (4) screen contrasts, and (5) navigation of the screen without a mouse. According to the settlement agreement, compliance is determined by “…whether individuals with disabilities have full and equal enjoyment of the goods, services, facilities, privileges, advantages, and accommodations offered.” Rite Aid agreed to continuously use an accessibility testing tool, address any barriers found within 15 days, provide annual training to employees on how to make its website accessible, and retain an outside website accessibility consultant. Continue reading »

Updated EEO “Know Your Rights” Poster Now Available

On October 22, 2022, the Equal Employment Opportunity Commission issued an updated EEO poster, a copy of which is attached to this blog post. This is to replace a previous EEO poster and addendum issued by the EEOC in 2019.

In many cases, employers have posted what is known as a 6-way poster, which sets forth an employee’s rights under various federal laws, including Title VII and the Americans with Disabilities Act. You may wish to acquire an updated 6-way poster, or you can simply post the October 2022 poster next to the 6-way poster, or over the section on Equal Employment Opportunity on existing 6-way posters.

Who is Required to Post this Notice?

Any employer with more than 15 employees is required to post the updated notice.

When Should I Put This Up? Continue reading »

What, Me Worry? If You Store Customers’ Personal Information on Your Computer System, You Should!

MAD Magazine’s Alfred E. Nuemann would famously say, “What, Me Worry?”  If you store personal information about your clients or customers on your computer, however, you should worry that it is properly secured.

Hackers and other malevolent individuals on the world wide web are constantly trying to compromise or steal data from your computer system to sell on the dark web.  They particularly target names combined with (1) social security numbers, (2) credit or debit card numbers or other account information, (3) security or access codes or passwords,  or (4) medical or health insurance information.

Another common form of cyberattack is to plant ransomware on a target’s computer system.  Ransomware encrypts the data on the system making it inaccessible to the system’s owner, leaving a ransom note as the only thing readable on the affected system. Continue reading »

Is the Arbitration Provision in Your Employment Contract Enforceable?

Many employers require their employees to execute employment agreements, often containing confidentiality and non-compete clauses, which contain provisions requiring arbitration of any claim which an employee might file against the employer.  However, unless these provisions are carefully drafted, the arbitration provisions may be found unenforceable.

In Caldwell v. Unifirst Corp, et al. issued on October 27, 2020, the Missouri Court of Appeals, Eastern District, upheld a decision by an arbitrator holding the arbitration clause at issue there to be unenforceable due to a lack of consideration.  The Court in Caldwell agreed with the arbitrator that the arbitration clause in the employment agreement Caldwell signed with Unifirst was invalid for lack of mutual consideration because the employer had reserved the right to seek injunctive relief in court in the event the employee violated his non-compete obligations.  Thus, while the employee was required to arbitrate all claims he might have, the employer would not be required to arbitrate its claims for breach of the non-compete clause, the type of claim most likely to be pursued by the employer against a former employee.  As a result, the arbitrator (and the Court) held that the consideration offered by the employer was illusory, such that the agreement to arbitrate was void. Continue reading »

Video Depositions – the New Normal for the Age of Social Distancing

The Circuit Courts for St. Louis City and County have both issued Administrative Orders that approve of taking of depositions by video conference.  Both of these orders require that a party opposing the taking of a deposition by video conference, for that reason alone, has the burden to prove that the deposition not go forward (i.e., that the deposition notice be quashed).

At a Town Hall videoconference on April 16, Judge Rex Burlison, the presiding judge of the St. Louis City Circuit Court, made clear that, at least in the city, a party opposing the taking of a deposition by videoconference will have a difficult time convincing the court not to permit such deposition to go forward.  For now, at least, in the age of social distancing amidst fear of the COVID-19 virus, it appears that videoconference depositions will be the new normal.

However, there are real issues that need to be addressed concerning depositions by videoconference.  Perhaps the most important has to do with the security of the videoconference platforms used by court reporting services.  In a survey of several large national court reporting services and one smaller service, they all reported using Zoom for depositions, despite recent reports by credible sources that Zoom has been hacked and is not secure.  Unless and until these security concerns are addressed, I will oppose taking of depositions over Zoom (although other services may be more secure).  The security of depositions is of particular concern when depositions involve businesses’ confidential information or otherwise will address sensitive information.

There are also questions regarding the preservation of video and audio of depositions, including how this will be done, how parties can access any recordings, and whether storage of any such video and/or audio is secure.  Again, the security of recordings of Zoom conferences has also been reported to be an issue. Continue reading »

Coronavirus Scams and the FTC

Hat tip to my friend, Harold Kirtz, who is a senior litigator with the FTC:

It is important that we, and our employees, families and friends, be vigilant for various scams playing off coronavirus fears.  For your information, click on the link below for a good summary from the FTC concerning various of these types of scams. 

More than ever, it is important that we engage in safe internet practices.

Coronavirus Scams – What the FTC is Doing

Additional Resources:

COVID-19 Business Operations for Danna McKitrick

Coronavirus/COVID-19 Resource Center

Posted by Attorney David R. Bohm. Bohm is an experienced litigator working with health care, government, and business clients on employment, intellectual property, and complex contract issues. He is also skilled in alternative dispute resolution as a means to solve disagreements without litigation.

(c) tashatuvango www.fotosearch.com

DOL Final Overtime Rule Published – Effective 1/1/20, Minimum Exemption Threshold Set at $35,568 Annually

The U.S. Department of Labor (DOL) has finally issued its long-awaited final rule updating its regulations defining exemptions for executive, administrative, and professional employees.

Some of the key take-aways from the new regulation are:

1. The “standard salary level” to qualify for the exemption has been raised from $455 per week to $684 per week ($35,568 annually). Employees paid less than this amount after January 1, 2020 will not qualify for the exemption and will have to be paid overtime for working more than 40 hours per week.
2. The total annual minimum compensation level for “highly compensated employees” (“HCE”) has been increased from $100,000 to $107,432 annually.
3. Employers may use nondiscretionary bonuses and incentive pay (including commissions) that are paid at least annually to satisfy up to 10% of the standard salary level.
4. There are special provisions for workers in U.S. territories and in the motion picture industry.

Continue reading »

Hold the Scissors – Telling Employee to Cut Hair Can Lead to Your Company Suffering a Haircut

We have all seen hairstyles that made us ask the question, “What were they thinking?” But when employees show up with such hairstyles in our place of business, do we have the right to restrict hairstyles? Does it make a difference if the hairstyle – or even a head covering – is due to the employee’s religious beliefs?

Recent federal court decisions have made it clear that an employer must tread carefully when addressing an employee’s choice of hairstyle or head dress. Otherwise, it could be the employer being subject to a “haircut,” rather than the employee.

Accommodating Religious Beliefs

Of particular concern are cases where an employee’s choice of hairstyle or head dress may have a religious basis. In such cases, an employer has a duty under Title VII of the federal civil rights act (and in most states under state law, as well) to reasonably accommodate the employee’s religious beliefs. Failure to do so could result in the employer being found liable for religious discrimination, and being required to pay actual and punitive damages, as well as the employee’s legal fees.

In one recent case, reported in an EEOC press release issued April 27, 2012, the owner of a chain of Taco Bell restaurants agreed to pay $27,000 to resolve a religious discrimination lawsuit filed by the EEOC because the owner had fired an employee who refused to cut his hair. The employee was a practicing Nazirite, who, in accordance with his religious beliefs, had not cut his hair in 15 years. After being employed at one of the owner’s restaurants for six years, the employee was told he would have to cut his hair if he wanted to retain his job. Even though he explained that his religion forbade him from cutting his hair, the employer insisted he had to do so if he wanted to keep his job. As the EEOC attorney handling the case, Lynette Barnes, explained in the press release, “No person should be forced to choose between his religion and his job when the company can provide an accommodation without suffering an undue hardship.” In addition to paying the $27,000, the employer agreed to institute a formal religious accommodation policy.

Continue reading »