Last Thursday a jury in Dallas, Texas awarded a former flight attendant Five Million Dollars against her former employer and union after they colluded to fire her in violation of Title VII because she shared her pro-life beliefs with her co-workers. Specifically, the plaintiff, Ms. Carter, alleged that:
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- her religious beliefs require her to share with others her pro-life stance on abortion;
- the union complained to her employer about her pro-life posts on Facebook;
- the union violated Title VII by trying to get her fired over her religious views; and
- the employer, Southwest Airlines, violated Title VII when it did fire her because of her pro-life social media content.
In July 2022, the EEOC issued another COVID-19 update. (You can find it here.) Although the update is not groundbreaking, the highlights are worth noting:
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- This is probably the most notable change contained in the update.
- Prior EEOC Guidance indicated that mandatory workplace COVID-19 testing always met the ADA “job related and consistent with business necessity” standard. The new Guidance changes that: now, an employer can require a COVID-19 viral test when deciding whether an employee or applicant is safe to be in the workplace only if the employer can show that the viral test is “job-related and consistent with business necessity.”
- Generally, viral test requirements will meet this standard if they are consistent with current guidance from the CDC, the Food and Drug Administration, or “state and local public health authorities.” Other justifications for requiring a viral test include the level of community transmission, the vaccination status of employees, the accuracy and speed of processing for different types of COVID-19 viral tests, the degree to which breakthrough infections are possible for employees who are “up to date” on vaccinations, the ease of transmissibility of the current variant(s), the possible severity of illness from the current variant, what types of contacts employees may have with others in the workplace or elsewhere that they are required to work (e.g., working with medically vulnerable individuals), and the potential impact on operations if an employee enters the workplace with COVID-19.
- As with most issues we discuss, it is going to be important that you document the process of requiring the viral test and the information (CDC, FDA, etc..) that you relied upon in doing so.