Modern Accommodation

This is a version of an article recently published by the American Bar Association Section of Labor and Employment Law Newsletter

Employment lawyers may face daily issues regarding religious, transgender, and caregiver accommodations.  There would seem to be overlap among these topics, but there is not much.  Religious accommodations are provided for explicitly by statute.  The disputes are disputes of coverage—“religion,” types of practices to be accommodated, and notice.  Transgender cases are not true accommodation cases, but instead are generally disputes about discrimination.  Transgender cases often rely on the theory of sex stereotyping.  Caregiver cases cannot be strict accommodation cases, because aside from limited types of leave protected under FMLA, there are no federal accommodation requirements. Like transgender cases, many caregiver cases rely on sex stereotyping theories.

       I.            Religion

Title VII prohibits employers from discriminating against “all aspects of religious observance and practice, as well as belief, unless an employer demonstrates that he is unable to reasonably accommodate to an employee’s or prospective employee’s religious observance or practice without undue hardship on the conduct of the employer’s business.” 42 U.S.C. § 2000e(j).  Determining whether a practice is religious turns not on the nature of the activity, but on the employee’s motivation.  Although generally notice of a need for an accommodation is required, the Supreme Court has held in EEOC v. Abercrombie & Fitch Stores, Inc. that it is unlawful to act with the motive of avoiding accommodation even if the actor “has no more than an unsubstantiated suspicion that accommodation would be needed.”

    II.            Transgender Employees

Although Title VII of the Civil Rights Act of 1964 (Title VII) does not include sexual orientation or gender identity as protected classes on its face, the EEOC takes the unequivocal position in its Strategic Enforcement Plan and enforcement/litigation activity that Title VII protects LGBT individuals.  Based upon the Supreme Court’s decision in Price Waterhouse v. Hopkins, sex stereotyping on the basis of sexual orientation and gender identity is almost universally accepted as actionable sex discrimination.  An employer with a specific dress requirement for men that is different than that for women is at risk for a discrimination suit.  It is not an “accommodation” request for the transgender employee to dress according to the employee’s gender identity, but rather a discrimination claim not to permit the employee to do so.  The EEOC has held that Title VII provides coverage for transgender employees.  It remains to be seen whether the courts will follow suit. 

 III.            Caregivers

As the Supreme Court acknowledged,

Stereotypes about women's domestic roles are reinforced by parallel stereotypes presuming a lack of domestic responsibilities for men. Because employers continued to regard the family as the woman's domain, they often denied men similar accommodations or discouraged them from taking leave. These mutually reinforcing stereotypes created a self-fulfilling cycle of discrimination that forced women to continue to assume the role of primary family caregiver, and fostered employers' stereotypical views about women's commitment to work and their value as employees.

Nevada Dept. of Human Resources v. Hibbs (2003). 

            The federal legal protections for caregiver accommodations are insufficient.  The Family and Medical Leave Act (FMLA) provides some employees with unpaid leave for serious health conditions of very close family members (and themselves).  The Americans with Disabilities Act (ADA) and Rehabilitation Act prohibit, among other things, discrimination based on “association with” an individual with a “disability” as defined by the ADA.  42 U.S.C. § 12101 et seq; id. § 12112(b)(4); 29 U.S.C. § 794.  The prohibition on disability discrimination can be used for pregnant workers with disabling conditions.  The association provision of the ADA does not provide a right to reasonable accommodation (which is required for individuals who themselves have disabilities).  Id. § 12112(b).  The Fair Labor Standards Act (FLSA) contains a Break Time for Nursing Mothers provision.  29 U.S.C. § 207(r).  It is unsettled whether there is a private cause of action to enforce this provision. 

The heavy lifting is left to stereotyping claims.  There is not, however, an accommodation provision of Title VII.  Where the employer does not regularly accommodate other workers, the court will not require it to change its business practices simply because a decisionmaker operates pursuant to pernicious stereotypes.  If, however, the employer regularly allows employees to work from home, but denies such an accommodation to an employee because he doesn’t believe men should be caregivers, then the stereotyping claim may be viable.

The stereotypes can take many forms:  That women who get pregnant will not or should not want to return to work.  That women who return to work will not have the time to do the job right.  That men who care for children aren’t real men.  While decisions based on stereotypes might be well-meaning or well-intended, paternalistic sex discrimination is illegal.  That women were treated better than a plaintiff woman should not, however, be fatal to a stereotyping claim.  The proper analysis requires looking below the surface of the employees’ gender to determine whether the true cause is sex stereotyping; whether the decision was “because of sex.”

Court Grants Preliminary Approval of Class Action Settlement in CREEC et al. v. Ashford Hospitality Trust, Inc.

On December 18, 2015, Magistrate Judge Donna M. Ryu of the U.S. District Court for the Northern District of California entered an order granting preliminary approval to a class action settlement in CREEC et al. v. Ashford Hospitality Trust, Inc. Ashford owns approximately 125 hotels located in 20 states. The lawsuit, brought by the Civil Rights Education and Enforcement Center and two individuals with mobility disabilities who use wheelchairs, alleges that many hotels owned by Ashford provide transportation services to guests, but fail to provide equivalent wheelchair-accessible transportation services as required by the ADA and California state law. The lawsuit seeks only declaratory and injunctive relief: an order requiring all hotels owned by Ashford to comply with the ADA’s accessible transportation requirements. It does not seek monetary damages for the named plaintiffs or the class.

As the Court noted in the preliminary approval order, the settlement “provides a comprehensive scheme for injunctive relief.” As a result of the settlement, all of the hotels owned by Ashford that provide transportation services to their guests will provide equivalent accessible services to guests who use wheelchairs or scooters. The accessible services will be equivalent in timing, notice, routes or geographic scope, fares, hours, reservations, and restrictions. The settlement provides for three years of monitoring of the hotels to ensure compliance.

A final approval hearing will be held on March 10, 2016 at 11:00 am in Oakland, California. Plaintiffs and the Settlement Class are represented by CBB, CREEC, and CCDC. For more information, please contact Tim Fox of CREEC.

For more information about the lawsuit and proposed settlement, please see:

Federal Court Gives the Green Light to Discrimination Suit Brought by Gestational Surrogate Denied Lactation Breaks

A federal judge in California has refused to dismiss a discrimination suit against the Los Angeles Airport Marriott in which a longtime employee and gestational surrogate seeks relief for being denied lactation breaks.

The first-of-its-kind ruling concludes that plaintiff Mary Gonzales, who was prevented from taking twice-daily breaks to express breast milk even as other recently pregnant employees were allowed such an accommodation, has successfully stated claims against the hotel under both federal and California law.

“This is big win not only for Mary, but for women throughout California and across the country,” said John Davisson, a Georgetown Law student attorney who is working on Gonzales’s case. “This decision makes it clear that gestational surrogates and non-traditional mothers enjoy the same legal protections against pregnancy discrimination as mothers who have infants at home. It’s not up to Marriott to pick and choose.”

Gonzales is a cashier and general accountant at Marriott with a passion for helping individuals and couples struggling with infertility to build their families. In April of 2014, she gave birth to a healthy child pursuant to a surrogacy agreement.

In June of that year, when her pregnancy disability leave ended, Gonzales returned to work at Marriott. Gonzales would express milk at work for about 30 minutes twice a day to provide milk to the child she delivered, to receive personal health benefits of lactation, and ultimately to donate to women who were unable to produce sufficient milk for their own children.

But just a few weeks after returning to her job, Gonzales’s manager gave her 30 days’ warning that she would no longer be allowed to take breaks to express milk. Unlike other recently pregnant employees at Marriott who were permitted paid lactation breaks, Gonzales was told she could only use her lunch period. Gonzales requested to meet with Marriott officials to discuss an accommodation, but Marriott denied that she had any right to the breaks and declined Ms. Gonzales’s offer to bring in a doctor’s note detailing her need for the breaks.

As a result, Gonzales was left with no option but to devote her brief lunch period to expressing milk, instead taking her lunch during her 10-minute morning break. Gonzales suffered clogged ducts, severe breast pain and soreness, blisters, and loss of sleep in order to express milk at night. She was also prevented from having lunch with her colleagues and excluded from midday company social events.

Gonzales, who is jointly represented by Georgetown University’s Institute for Public Representation and San Francisco Bay Area-based Campins Benham-Baker, LLP, filed suit in the United States District Court for the Central District of California in May alleging discrimination and failure to accommodate under federal and state laws.

Though Marriott attempted to have the suit dismissed, Judge Margaret M. Morrow denied its motion on all counts. Her ruling rejected Marriott’s argument that accommodations for pregnancy-related conditions were only required for mothers who were nursing infant children at home.

“Marriott’s dismissal of the ‘personal health benefits’ of lactation—which it compares to ‘exercising during the workday’—is unfounded,” she added.

Judge Morrow found that “a reasonable jury could conclude that Gonzales was subjected to the treatment she was because Marriott perceived she did not conform to stereotypical views of how women act as it relates to motherhood or child bearing.” With this decision, Judge Morrow rejected Marriott’s claim that its treatment of Ms. Gonzales did not constitute sex discrimination because the “stereotype of legitimate motherhood” is not an actionable sex-based stereotype.

“This case is about preventing employers from denying employees their rightful workplace protections on the basis of their reproductive choices,” said Connor Cory, another Georgetown University student attorney representing Gonzales. “The circumstances of a woman’s pregnancy should have no bearing on her right to be free from sex discrimination or her eligibility for a reasonable accommodation."

The case is captioned Gonzales v. Marriott International, Inc. and has the case number CV 15-03301 MMM (PJWx).  Gonzales's complaint is available here and Judge Morrow's decision can be viewed here.

Campins Benham-Baker is proud to be working on such an important case with Georgetown Law students.

Press Release: Wheelchair Users Sue Major Hotel Companies for Inaccessible Transportation

FOR IMMEDIATE RELEASE – January 15, 2015

CONTACT: Julia Campins
Campins Benham-Baker, LLP / 415-373-5376

SAN FRANCISCO – The Civil Rights Education and Enforcement Center (CREEC), along with three individuals who use wheelchairs for mobility, today filed federal class action lawsuits against three major hotel owner/operators, RLJ Lodging Trust, Hospitality Properties Trust, and Ashford Hospitality Trust, Inc. Each lawsuit alleges that the hotel owner/operator discriminates against individuals with mobility disabilities in the provision of hotel shuttle transportation. These three entities own or operate more than 500 hotels in the United States, including more than 50 in California.

Specifically, the cases challenge the hotels’ consistent failure to provide accessible options when they choose to offer transportation services to guests, and charge that this failure violates the federal Americans with Disabilities Act and California state law.

“For those of us who use wheelchairs and other mobility devices, it is difficult enough to get around most cities when we travel,” said Ruthee Goldkorn, a plaintiff in two of the cases who uses a wheelchair for mobility. “As it stands at these hotels, all other hotel guests can get shuttled around the city to events, the airport, and downtown attractions, but we just get left at the hotel. I joined this lawsuit to make hotel transportation services accessible for everyone.”

“Hotels that choose to provide transportation services to their guests must include accessible transportation options,” said Timothy P. Fox, Executive Director of the Civil Rights Education and Enforcement Center and one of the lawyers for the plaintiffs in the three cases. “This has been the law under the ADA for more than twenty years, and these three defendants have not complied with it.”

“Offering a service to nondisabled guests while excluding guests with disabilities from that service is the very definition of disability discrimination,” said Kevin Williams, Legal Program Director of the Colorado Cross-Disability Coalition and another of the plaintiff lawyers. “The law requires that hotels welcome all their guests.”

Bill Lann Lee, a lawyer for the plaintiffs and a former head of the Department of Justice’s Civil Rights Division, said, “The law requires equal access, and that is all these lawsuits request. The relief Plaintiffs seek is to have the hotels reform their conduct. They do not seek money damages.”

The cases, CREEC v. RLJ Lodging Trust, CREEC v. Hospitality Properties Trust, and CREEC v. Ashford Hospitality Trust, Inc. were filed in the U.S. District Court for the District of Northern California, San Francisco Division. The case numbers are 3:15-cv-00224, 3:15-cv-00221, and 3:15-CV-00216, respectively.

The plaintiffs are represented by CREEC and the Colorado Cross-Disability Coalition, both of Denver, Colorado; Lewis, Feinberg, Lee, Renaker & Jackson, P.C. of Oakland, California; and Campins Benham-Baker, LLP, of San Francisco, California.
The complaints are at:

Getting Sandberged: Leaning In, and Getting Pushed Down

Some of us have read Lean In.  Almost everyone has heard about it.  Most of us have an opinion.  Regardless of what you think of Sheryl Sandberg’s advice, however, CBB has noticed a growing, disturbing trend among our current and potential clients.  A young, confident, competent woman decides to try to follow Ms. Sandberg’s advice and she asks for a raise.  Maybe she puts it in explicitly gender-based terms (“I want to be paid the same as my male colleagues.”) or maybe she doesn’t (“I think I deserve $X).  The next thing this woman knows, she’s been kicked out the door.  We’re calling it “Getting Sandberged.”  She has leaned in, and she has been pushed down.  Have you seen this trend?  Have you experienced this trend?  If so, let us know.