Holy Days and Awkward Ways

Holy Days and Awkward Ways

We’ll be honest . . . it’s not easy being a labor and employment law blogger these days. You see, we have all these great stories to talk about – like the employee who claimed harassment because his manager whispered in his ear.  We could have even kept our streak alive of somehow tying everything back to animated movies by explaining why Ariel is actually the real villain of The Little Mermaid (Ursula had a binding contract – don’t @ us – is that even still a phrase?). Alas, it feels like if an employment law blog isn’t talking about H-1Bs, nobody’s reading except our family members.

But, much like how ESPN used to air figure skating broadcasts during Monday Night Football on ABC, the show must go on . . . even if it’s just our parents reading. So here you go mom and dad, enjoy this update on handling remote work requests during religious holidays. And yes, we will share the story of the whisper that almost was. Shh – enjoy.

Thou Shalt Consider Remote Work

A major shift we’ve seen in employment law related to the Trump administration is a renewed emphasis on protecting against religious discrimination. This can be seen through major Supreme Court decisions like Groff v. DeJoy, which significantly raised the “undue hardship” standard for employers, making it more difficult to deny religious accommodation requests. A recent example of this is a memorandum issued by the DOJ clarifying that federal employees can request to telework for religious reasons. And just in time for religious holiday season!

While the DOJ’s memo specifically calls out federal employees, the points made can (and should) be applied wholecloth (yes that was an intentional pun) to the private sector. Particular in the wake of Groff, if an employer has allowed remote work in other contexts, they should think long and hard before denying a similar request for religious observance.

For example: if an employee says that they are hosting a family dinner for a religious holiday and the employee is asking to work from home because they need to cook and last year the employee’s mother-in-law made a passive aggressive comment about the food and so the employee will be damned if that food isn’t perfect this year because honestly the employee just isn’t having it this year and so they will use their lunch break to cook and log off a little early to finish . . .

Ok, fine – while the above example may not totally be on point, the overall advice remains: treat remote-work accommodation requests like any other religious accommodation request. Engage in the interactive process, ask what the employee needs and why, consider alternatives, and document the analysis. Courts are making clear that blanket refusals, especially where remote work has already been shown to work, won’t cut it.

The Whisper That (Almost) Was

And now, as promised, the whisper story.

In Nyamu v. Merck & Co., an employee claimed harassment after his manager leaned in during a meeting and whispered in his ear: “I use your voice to know where you are standing. You have a voice that is very specific to me.” The employee said the comment was, among other things, sex-based. Naturally, he sued.

Let’s back up. Title VII – the law this employee sued under – generally requires conduct that is severe or pervasive enough to create a hostile work environment. And while a single incident can be severe . . . this wasn’t it. According to the court (and probably everyone except for Mr. Nyamu and his lawyer), one whisper – however awkward – didn’t rise to the level of unlawful harassment.

(The employee also sued for retaliation – however this claim was also struck down after Merck showed that it reassigned him because he’d failed six contamination tests. Guess that kind of documentation spoke louder than his claim . . . sorry, couldn’t help ourselves – moving on.)

The takeaway here is likely that, while every uncomfortable interaction does not automatically equate to harassment, staff and especially managers should be trained and reminded that the workplace is still a professional environment. If you have managers going around whispering in people’s ears, you should probably tell those managers – and we cannot stress this enough – “please stop” (we defer to you whether you want to whisper that to them or not). And so ultimately, this case is a good reminder that even well-meaning or quirky comments can be misinterpreted and wind up as Exhibit A in a lawsuit (or the second sub-heading in a legal blog).

Hope everyone has a wonderful holiday weekend, free from managers whispering in your ear and debates over what to call Monday. And as always, if you’ve got questions, you know we’ve got answers.

~ The W + K Team