This Littler Lightbulb highlights some of the more significant employment law developments at the U.S. Supreme Court and federal courts of appeal in the last month.

• At the Supreme Court. On December 5, 2022, the Court heard oral argument in 303 Creative v. Elenis.  Though not an employment law case, the decision may nevertheless impact employers as it pits free speech rights in the workplace against state anti-discrimination laws. At issue is whether the owner of a Colorado website design business, who opposes same-sex marriage, may post a message on the company’s website stating that she will not design websites for same-sex weddings. 

303 Creative asserted that its wedding websites are “pure speech” and, therefore, entitled to Constitutional First Amendment protection. The owner of 303 Creative argued that the Public Accommodation clause of Colorado’s Anti-discrimination Act forces “her to create and promote a message she disagrees with, violating the fundamental rule ‘that a speaker has the authority to choose the content of [her] own message.”

In opposition, Colorado argued that the Public Accommodation Clause of its Anti-Discrimination Act, “does not prohibit or compel the speech of any business,” but rather “regulates sales, and not the products or services sold.”

Although the case addresses the First Amendment rights of businesses, the decision could determine the reach of state anti-discrimination laws when they potentially clash with an individual’s religious objections.

• Exemption of Delivery Drivers from Arbitration. Whether delivery drivers are exempt from arbitration continues to be a hot issue.  In Immediato v. Postmates, Inc., No. 22-1015 (1st Cir. Nov. 29, 2022), couriers who delivered take-out meals from local restaurants as well as food and sundries from local grocery stores argued they were exempt from the Federal Arbitration Act (FAA), despite having signed a mutual arbitration provision requiring disputes to be resolved by arbitration governed by the rules of the FAA. The couriers claimed they fell within the exemption under the FAA for “workers engaged in foreign or interstate commerce.” The U.S. District Court for the District of Massachusetts held that the exemption did not apply to them and issued an order compelling arbitration. On appeal, the First Circuit affirmed the decision of the district court.  Distinguishing cases that involved the final leg of interstate movement of goods, the court held that although the items the couriers delivered may have travelled across state borders once, their interstate journey terminated when the goods arrived at the local restaurants and retailers to which they were shipped. In this case, the court held, the couriers made deliveries to fulfill local retail sales.

Less than a week later the First Circuit decided Levine v. Grubhub Holdings Inc., No. 22-1131 (1st Cir. Dec. 2, 2022), involving couriers who delivered meals and packaged goods from local restaurants to local customers.Finding the reasoning in Immediato fully applicable, the court summarily affirmed the district court’s decision that the couriers in the case were similarly not exempt from the FAA.

• Compensability of Travel Time. The U.S. Court of Appeals for the Federal Circuit addressed the question of whether travel time is compensable in Bridges v. United States, No. 2022-1140 (Fed. Cir. Nov. 29, 2022), a case involving correctional officers guarding inmates and providing security at a federal prison. The officers sought compensation for time they spent traveling when they worked voluntary overtime, following their regular shifts, at local hospitals where prison inmates were transferred for care.

The officers argued that their travel time was a principal activity during a continuous workday that required compensation under the FLSA.The United States Court of Federal Claims granted summary judgment to the employer. The Federal Circuit agreed, rejecting the appellants’ argument that their principal activities started at the prison and ended when they were relieved from duty at the hospital.The court found the officers’ principal activities were guarding prisoners and that their work at the prison and at the hospital constituted two separate blocks of work time rather than a continuous workday. Accordingly, the court held, the appellants’ travel time was commuting time under the Portal-to-Portal Act, 29 U.S.C. §254(a)(1), which excludes from compensation time spent “traveling to and from the actual place of performance of the principal activity or activities.”

The court distinguished this case from United Transp. Union Loc. 1745 v. City of Albuquerque, 178 F.3d 1109 (10th Cir. 1999), in which the 10^th Circuit held that bus drivers’ travel time between their split shifts – a morning and an afternoon shift usually separated by three to five hours – was part of a continuous work day and not commute time under the Portal-to-Portal Act.

Employers concerned about compensability of travel time during a workday may want to carefully consider these nuances as well as the circuit within which their business operates.

• The Information Required to Trigger the Rehab Act/ADA’s Duty to Accommodate. Under both the Rehabilitation Act of 1973 and the Americans with Disabilities Act (ADA), an employer is not required to provide reasonable accommodation to a disabled employee unless the employee 1) makes a specific demand for accommodation and 2) demonstrates that the accommodation requested is reasonable.  But what information must the employee provide to demonstrate that the requested accommodation is reasonable?  That is the issue the 11th Circuit Court of Appeals addressed in Owens v. State of Georgia Governor's Office of Student Achievement, No. 21-13200 (11th Cir. 2022).

The employee in the case, a web content specialist at the Governor’s Office of Student Achievement (GOSA), delivered a baby in July 2018.Following her FMLA leave she submitted a note from her physician stating she was “doing well,” and “may return to work via tele-work from her home.”GOSA allowed the employee to telework temporarily so she could make childcare arrangements. Thereafter, she provided GOSA with another doctor’s note stating that she “may return to work November 5, 2018” and “may continue to telework at home until then.” The note said nothing about her medical condition or the medical necessity of teleworking.Explaining that she needed to submit additional documentation to show her telework request was medically necessary, GOSA provided her with forms to verify her disability, the limitations caused by the disability, how they restricted her ability to perform her job functions, and workplace accommodations that would enable her to perform her job functions. GOSA also included a release to be signed by the employee authorizing GOSA to obtain the medical information from her doctor directly. There was no evidence that she ever signed the release.

When GOSA did not receive the requested documentation, they informed the employee that she either had to submit the required information or return to work by the next day.The employee still did not provide the required documentation or return to work after GOSA extended the deadline by another week, and they terminated her employment.

She filed suit alleging failure to accommodate and retaliation, in violation of §504 of the Rehabilitation Act of 1973. The U.S. District Court for the Northern District of Georgia granted summary judgment to the employer and the employee appealed to the 11th Circuit, which affirmed the district court’s decision.“[A]s part of her initial burden to establish that a requested accommodation is reasonable under the Rehabilitation Act,”¹ the 11th Circuit held, “an employee must put her employer on notice of the disability for which she seeks an accommodation and provide enough information to allow her employer to understand how the accommodation she requests would assist her.”The 11th Circuit continued that because the employee “did not identify any disability from which she suffered or give GOSA any information about how her requested accommodation—teleworking—would accommodate that disability, the district court correctly granted summary judgment.”

The case is important not only for its articulation of an employee’s obligations when seeking reasonable accommodation for a disability under the Rehabilitation Act and the ADA, but also for the guidance it provides to employers responding to such requests. In upholding summary judgment for the employer in this case, the 11th Circuit noted all the steps the employer took on behalf of the employee following her request for accommodation: (a) Following the expiration of her FMLA, GOSA allowed the employee six weeks to telework so that she could make childcare arrangements; (b) GOSA provided the employee with forms to provide the specific information the employer needed to make an informed decision about reasonable accommodation; (c) GOSA also provided her with a form to sign authorizing the release of medical information; (d) When the employee explained the difficulty of obtaining information from her doctor GOSA gave her an additional week to obtain the information; and (e) In anticipation of the employee’s return to work, GOSA outlined a proposed teleworking plan and set a date to discuss the plan with her, all of which reflected the company’s intent to engage in the interactive process if she submitted the required documentation.

While these precise steps may not apply in every situation, employers should consider engaging in these types of actions before terminating an employee for failure to substantiate the need for accommodation under the Rehabilitation Act or ADA.

• Standard for Determining a Racially Hostile Work Environment.  In Laurent-Workman v. Wormuth, No. 21-1766 (4th Cir. Nov. 29, 2022), the U.S. Court of Appeals for the Fourth Circuit discussed the standards to be used in deciding racially hostile environment and retaliation claims.  The appellant in the case is a Black woman who was a career civilian employee with the Army until she resigned following frequent alleged racially disparaging comments by a white co-worker and alleged retaliatory actions by her white supervisor.  The alleged racially offensive remarks occurred on a number of occasions, including an instance where the co-worker followed the employee to her office, continuing her aspersions, and another instance during a meeting with their supervisor when the co-worker allegedly screamed a racial slur at the employee.

The employee complained to her supervisor, but he refused to take any remedial steps. Instead, he removed a quarter of her work duties and delegated them to the co-worker who had been making the racially disparaging remarks, denied her opportunities to attend professional training, prevented her from speaking at meetings or making presentations, and altered meeting minutes to make it appear that she had made an error that was her co-worker’s.

Following her resignation, the employee filed suit for discrimination, racially hostile work environment and retaliation. The district court concluded that the complaint failed to set forth sufficient facts to support the employee’s claims. The Fourth Circuit affirmed the district court’s decision on the discrimination claim but vacated the dismissal of the race-based hostile work environment and retaliation claims. Although they do not depict daily misconduct, the court found, the allegations of “repeated invectives of an overtly racial tenor” constituted “just the sort of workplace behaviors that Title VII serves to root out.” 

As to the retaliation claims based on the supervisor’s actions, the Army argued for a narrow definition of the federal-sector provision of Title VII that requires the employee prove a materially adverse action that only affects an employee's “compensation, terms, conditions, or privileges of employment” to show retaliation. Rejecting that view, the Fourth Circuit held the federal-sector provision of Title VII is far broader noting that “any action that ‘well might have dissuaded a reasonable worker from making or supporting a charge of discrimination’ satisfies the ‘materially adverse’ standard under the anti-retaliation provision” of Title VII, as applied to both federal and private-sector employees.Thus, the court found, the actions of appellant’s supervisor could support a claim of retaliation.

We will continue to follow developments at the U.S. Supreme Court and federal courts of appeal as they grapple with significant labor and employment issues.