Highlights (Or Lowlights) from 2023

By Howard Jackson

Obviously too much happened in 2023 to be summarized in one short article.  Here we take a look at some of the more significant happenings that created additional burdens or risks for employers.

Accommodations Abound  There were two significant developments in the area of accommodation, one from the U.S. Supreme Court that involves religion, and the other from Congress and the EEOC by way of the Pregnant Worker Fairness Act and the EEOC’s proposed implementing regulations.  They are discussed in turn below.

In Groff v. DeJoy, a case that involved a postal carrier for the U.S. Postal Service, the Supreme Court changed the analysis for religious accommodation requests.  For years courts had held that employers were not required to incur more than de minimis cost to accommodate an employee’s religious practice.  Using the de minimis burden standard, the courts below had held that the U.S. Postal Service was not required to accommodate Groff’s request not to work on Sundays.

The Supreme Court reversed.  In so doing the Court ruled that to prove undue hardship an employer must show that the requested accommodation would impose a substantial burden in the overall context of the employer’s business.  This will require a fact specific inquiry in situations where a solution is not obvious.  What is obvious is that the bar for establishing the undue hardship defense is now higher.

The Pregnant Workers’ Fairness Act (“PWFA”) requires covered employers to provide reasonable accommodation to a qualified applicant or employee for the known limitations arising out of pregnancy, childbirth, or related medical conditions, unless there is an undue hardship.  The EEOC has issued proposed regulations implementing the provisions of the PWFA.

Under the proposed regulations, communication about the condition can come from the applicant or employee, or their representative.  An employer may create a form but cannot require that requests be made in writing.

The definition of a condition that is related to pregnancy, childbirth or related medical condition is very broad.  For example, they include fertility, infertility treatments, postpartum depression or anxiety, lactation, and issues arising out of lactation.  

The accommodation analysis is similar to that under the ADA.  The proposed regulations contain certain requirements specific to accommodation under the PWFA, however.  One provides that leave may not be the accommodation if there are other accommodations available.  Another one states that an employer must temporarily accommodate the employee’s inability to perform an essential function if the employee will be able to perform that function in the “near future”.  The regulation then says the “near future” means within forty (40) weeks.  This provision, if it remains in the final regulations, would cause a significant burden for employers.

Continuing in that vein, one of the factors listed for consideration in the undue hardship analysis is whether another employee, a temporary service or other third party can be hired to perform the essential function.  This regulation apparently contemplates that the employee who requested accommodation will continue coming to work and be excused from performing an essential function of the job, while the employer pays someone else to perform that function.  If this provision remains in the final regulations, it will place a burden on employers well beyond any required accommodation under the ADA.  Under the ADA, the purpose of an accommodation is to enable the employee to perform essential functions, not excuse performance of those functions.

DEI is not dead.  In Students for Fair Admissions, Inc. v. President and Fellows of Harvard College the U.S. Supreme Court held that colleges cannot use race as a consideration for admission.  While this is not an employment law case, it has led to questioning about DEI programs with employers.  In fact, Attorneys General for 13 states sent letters to the CEOs Fortune 100 companies reminding them of their obligation not to discriminate against anyone on the basis of race.  The letter specifically referenced employers discriminating under the umbrella of DEI programs.

Despite the uproar, DEI efforts are not dead nor is there reason to think that will be the case.  Now, as before, poorly constructed, or poorly implemented DEI programs can lead to the risk of unlawful decisions.  That has always been the case.

On the other hand, well-conceived and carried out DEI programs can lead to greater employee engagement, satisfaction, and loyalty.  They can provide tangible benefits for the organization.

DEI programs can include efforts toward creating a respectful workplace, education and events that promote inclusion, training regarding discrimination and harassment, and many other subjects.  DEI programs should avoid creating quotas related to any protected status and should be clear about promoting lawful decision-making criteria for hiring, promotion and all workplace decisions.

In short, DEI, like many other things, is risky if done wrong and can be very beneficial when done right.

NLRB changes the rules in a big way.  In Cemex Construction Materials Pacific, LLC, a decision issued in August of 2023, the National Labor Relations Board (“Board”) changed the rules regarding recognition of the union as bargaining representative in two very significant ways.  First a little background.  It has long been the case that a union can be voluntarily recognized without an election.  The union may present evidence of its majority status in an appropriate bargaining unit to an employer.  The employer may review the evidence and if it indeed evidences that most of the employees desire representation, the employer may voluntarily recognize the union.  On the other hand, before the Cemex case, the rule for many decades was that the employer could refuse to review the evidence of majority status and refuse to recognize the union.  In that case, the union could seek an election with the Board.

Cemex changes that process by holding that if an employer declines to recognize a union based on evidence of its majority status, then the employer must seek an election with the Board.  The employer must do so within two weeks.  Otherwise, the union will be considered to represent the employees and an employer who declines to recognize and bargain with the union will be committing an unfair labor practice.

The Cemex decision drastically changed the rules that apply when an election is held after a union proffered evidence of majority status to an employer who declined recognition and sought an election.  In that situation, if the union loses the election and the Board finds that the employer committed unfair labor practices that impacted the vote, then the Board will not hold another election.  Instead, the Board will rely on the pre-election evidence of majority status and order the employer to bargain with the union.  This is a tremendous change from the Board’s previous practice, which generally resulted in a second election except when the Board found that the employer had committed such numerous and damaging unfair labor practices that a fair rerun election was not possible.

Recently, the General Counsel for the Board, Jennifer Abruzzo, has commented that even one unfair labor practice committed during the election period may be enough to overturn the election and order the employer to recognize the union.  This creates a very precarious situation for employers who are in an organizing campaign.  They must be even more careful than before to craft their messages appropriately and to train their management team well to avoid committing unfair labor practices during the campaign.