First, let’s talk about The Church of Body Modification and its members. The reality is that very few people have ever heard of The Church of Body Modification. This is not surprising. According to a 2010 court order, there are approximately 3500 members in the United States who are members of this Church.

According to the Church of Body Modification’s Frequently Asked Questions on its website, members of the Church are spiritual and believe in God. Its members practice body modification rituals “with [a] purpose to unify our mind, body, and soul, and to connect with our higher power.”

So, it seems that the Church of Body Modification is a non-denominational religion in which members of a subculture join to find a community of like-minded people who believe that tattooing, piercings, and other body modifications “strengthen” the connection between mind, body, and the divine.

There might be more to it, but this is really all we need to know for purposes of this article.

With that background, there was a case involving a Costco employee who was a member of the Church of Body Modification and was terminated because she refused to take off her eyebrow ring to work. Let’s briefly review this case.

In 1997, Ms. Kimberly Cloutier began working for Costco. At that time she had multiple earrings and several tattoos, but no facial piercings.

Sometime between 1998 and 2000, Ms. Cloutier got an eyebrow piercing, though this does not seem to have been motivated by a religious belief. It is not even clear if she was a member of the Church of Body Modification by this point.

In early 2001, Costco implemented a “no facial jewelry” policy to improve its professional image.

When Costco began enforcing its policy in mid-2001, Ms. Cloutier explained for the first time that she was a member of the Church of Body Modification and that her religion prohibited her from removing her eyebrow piercing.

Ms. Cloutier subsequently filed a complaint, alleging that she was discriminated against on the basis of her religion under Title VII of the Civil Rights Act of 1964 and state law. For whatever reason, Ms. Cloutier made a decision not to return to work until the complaint was resolved. Approximately two weeks after the complaint was filed, however, Costco terminated Ms. Cloutier for unexcused absences and for failing to follow the dress code.

At a mediation session, Costco offered Ms. Cloutier her job back, provided that Ms. Cloutier agreed to do one of two things: replace the eyebrow piercing with a clear plastic retainer (to prevent the hole from closing) or cover the eyebrow piercing with a bandage. (pp. 6-7) Ms. Cloutier refused either accommodation because she believed that removing or covering the eyebrow piercing violated the tenets of the Church of Body Modification.

The case went to federal court and Costco won.

On appeal in 2004, the United States Court of Appeals for the First Circuit noted that there was nothing in the tenets of the Church of Body Modification that required that “body modifications had to be visible at all times or that removing body modifications would violate a religious tenet.” (p. 5) As such, the accommodations Costco proposed would not “violate any of the established tenets” of the Church of Body Modification. (p. 9)

Ultimately, the court affirmed the lower court’s opinion, holding that Costco offered a reasonable accommodation, and that creating an exception in the no facial jewelry policy would create an undue hardship for Costco. In other words, Costco must maintain a neat, clean and professional appearance to attract and retain customers; and creating an exception for Ms. Coultier would adversely affect that image. (p. 22)

The court also noted that this case is not the only type of its kind; other courts “have long recognized the importance of personal appearance regulations, even in the face of Title VII challenges.” (pp. 20-21) For a short list of cases involving religious discrimination in the employment context, see this document.

Contrary to Wikipedia’s pithy summary, this case was not decided on First Amendment or religious freedom grounds. Moreover, the court did not even address the issue as to whether the Church of Body Modification was a valid religion.

Compare this case with the 2010 case involving a 14-year old honor roll student who was a member of the Church of Body Modification and was expelled from school. In that case, the court ordered the school to permit the student to return to school.

Fortunately, not all employers discriminate against employees who have visible tattoos and facial piercings. Surprisingly, many upscale stores like Apple and Whole Foods employ individuals who are heavily tattooed and pierced. And they are always so friendly and knowledgeable too!

Imagine you are an athletic coach. On your Facebook page is a photo of you posing with two drag queens. Should this cost you your job?

Imagine you are a firefighter. On your Facebook page are comments that disrespect gays and mentally challenged individuals. Should this cost you your job?

Imagine that you work for a homeless shelter and write on your Facebook page: “Spooky is overnight, third floor, alone in a mental institution, btw I’m not a client, not yet anyway.” Do you think this might cost you your job?

Let’s take a look at three recent cases in the employment law context that have been recently litigated. The lessons we learn from these cases should be obvious.

In the Matter of the Tenured Hearing of Jennifer O’Brien

Jennifer O’Brien was a first-grade teacher at School 21 in Paterson, New Jersey. After an allegedly hard day at school in which several students were disruptive, one of whom hit her, and another stole money from her, Ms. O’Brien wrote on her Facebook page:

“I’m not a teacher — I’m a warden for future criminals!”

Ms. O’Brien had about 300+ Facebook “friends,” and the Facebook comment went viral.

An Administrative Law Judge wrote that Ms. O’Brien “demonstrated a complete lack of sensitivity to the world in which her students live. The sentiment that a 6-year old will not rise above the criminal element that surrounds him cuts right to the bone.”

Ultimately, the ALJ recommended that Ms. O’Brien not teach at School 21 again, as well as sensitivity training for O’Brien before being considered for another teaching position.

The New Jersey Education Commissioner, Christopher Cerf, adopted the ALJ’s opinion. Mr. Cerf wrote that Ms. O’Brien’s Facebook comment “showed a disturbing lack of self-control, insensitivity and unprofessionalism; was wholly inappropriate; and without question, constituted unbecoming conduct.”

Ms. O’Brien was terminated from her position. Perhaps not surprisingly, Ms. O’Brien has reportedly filed an appeal.

Matter of Rubino v. City of New York

Christine Rubino was teacher for 15 years in Brooklyn, New York. She had no disciplinary record as a teacher. Following the death of a student who fatally downed during a school field trip to the beach, Ms. Rubino wrote on her Facebook page:

“After today, I am thinking the beach sounds like a wonderful idea for my 5th graders! I HATE THEIR GUTS! They are the devils (sic) spawn!”

Later on, she commented on her Facebook page that she “would not throw a life jacket in for a million.”

Unluckily for Ms. Rubino, one of her Facebook friends notified school personnel regarding Ms. Rubino’s comments.

School personnel conducted an investigation and a hearing was convened. The hearing officer recommended that Ms. Rubino be terminated.

Ms. Rubino filed an appeal to vacate the hearing officer’s recommendations, arguing that the hearing officer’s decision was “arbitrary and capricious and that her termination is shocking.”

The court characterized Ms. Rubino’s Facebook comments as “repulsive.” However, given that Ms. Rubino had an unblemished record and since there was no reason to believe that Ms. Rubino would post inappropriate or offensive comments online again, the court decided that Ms. Rubino’s termination was much too stiff a penalty. The court vacated the termination and remanded the case back to the Department of Education to determine a more appropriate penalty.

Peer v. F5 Networks, Inc.

After F5 Networks hired Ms. Peer on a full time basis, Ms. Peer began complaining about chronic pain and requested accommodation as advised by her physician. F5 agreed to provide the accommodation — reducing Ms. Peer’s working hours from 40 hours per week to 30 hours per week. The remaining 10 hours had to be made up though various channels.

Two months later, a psychiatrist diagnosed Ms. Peer with major depression. On the following month, however, Ms. Peer obtained a medical release to return to the normal 40 hour work week.

Within a couple of weeks of returning to the 40 hour work week, Ms. Peer was assigned to an early shift — 6:00 am to 3:00 pm. Ms. Peer sent an email to her supervisor, expressing her frustration about being assigned to such an early shift and indicating that she felt depressed as a result of the shift change. The next day, Ms. Peer sent another email to her supervisor, this time through her Facebook account:

“I start crying the instant my alarm goes off in the morning and don’t stop until I finally get to sleep at night. All I do all day at work for the past week is dream up practical ways to kill myself that won’t require the people I love to clean up the mess. I’ve thought about going to the hospital, but don’t think it would do me much good since I’m allergic to most psychotropic drugs, and that’s really all they could do for me anyway. . . .”

A few days later, Ms. Peer posted a comment on her Facebook page:

“work feels like a war zone. I have some serious PTSD. Walked in the building and automatically started puking this morning.”

F5 was concerned that Ms. Peer’s Facebook emails and comments regarding her suicidal ideations presented a “direct risk or threat” to herself and to others.

A series of bizarre exchanges between F5 staff and Ms. Peer followed.

F5 staff kept insisting on engaging in an “interactive process” as required by the Americans with Disabilities Act. Yet, F5 appeared uninvolved in the interaction process and repeatedly demanded that Ms. Peer provide the appropriate medical documentation. Strangely, F5 also seemed to demand that Ms. Peer’s physician submit documentation that Ms. Peer needed accommodations.

To her credit, Ms. Peer had done her best to obtain a work release and explained to F5 that her physicians did not think she needed accommodations at all.

This case survived cross-motions for summary judgment and litigation in this case will continue in court unless the parties settle.

The Take-away Lesson

If you’ve read every word in this blog post, it should be pretty obvious what the take-away lesson is: Be careful about what you say on social media. Even if a Facebook comment or photograph does not justify termination, the cost and stress of litigation can be enormous.

Since mid-May, a number of bloggers (here, there, over there, and way yonder) have commented about a federal complaint filed by the Equal Employment Opportunity Commission (“EEOC”) on behalf of a person with dwarfism against Starbucks, Inc. According to the complaint, Elsa Sallard is a person with dwarfism who was training to become a barista at Starbucks. Ms. Sallard requested “a stool or small stepladder” in order to be able to perform her job as barista. Starbucks allegedly refused to provide the requested stool or stepladder and subsequently fired Ms. Sallard.

The EEOC and Ms. Sallard allege that Starbucks violated the Americans with Disabilities Act by not providing the stool or stepladder and demand injunctive relief, money damages, and punitive damages.

The EEOC issued a press release, stating that “Employers cannot blithely ignore a request for a reasonable accommodation by a qualified individual with a disability.”

Assume that the alleged facts occurred. The legal question remains: “Is dwarfism a disability?”

Under the Americans with Disabilities Act, a disability is a “physical or mental impairment that substantially limits a major life activity.” Here, the definition of disability has three parts: (1) physical or mental impairment, (2) substantially limits, (3) major life activity. The concepts “substantially limits” and “major life activity” were recently broadened in a recent amendment to the Americans with Disabilities Act, which took effect on January 1, 2009. The EEOC implemented revised regulations which took effect on May 24, 2011. A non-exhaustive list of “physical impairment,” “mental impairment,” and “major life activity” are provided in the EEOC regulations.

A “physical impairment” could include, but is not limited to: “Any physiological disorder or condition, cosmetic  disfigurement, or anatomical loss affecting one or more body systems, such as neurological, musculoskeletal, special sense organs, respiratory (including speech organs), cardiovascular,  reproductive, digestive, genitourinary, immune, circulatory, hemic, lymphatic, skin, and endocrine.”

A “major life activity” could include, but is not limited to: “caring for oneself, performing manual tasks, seeing, hearing, eating, sleeping, walking, standing, lifting, bending, speaking, breathing, learning, reading, concentrating, thinking, communicating, and working.”

The concept “substantially limits” is broad and open to legal interpretation. The regulations provide that an impairment that “substantially” limits a “major life activity” may mean that the person’s disability “substantially limits the ability of an individual to perform a major life activity as compared to most people in the general population. An impairment need not prevent, or significantly or severely restrict, the individual from performing a major life activity in order to be considered substantially limiting.”

To address the question whether dwarfism is a “disability,” the court needs to know and understand each of the three parts of the definition of “disability” under the Americans with Disabilities Act (“ADA”), as amended. Then, the court is going to have to make a determination whether dwarfism meets the legal definition of “disability” under the ADA.

If this case is not settled, the court will likely review caselaw to see how other courts have addressed anachondroplasia dwarfism in the context of disability discrimination cases, including Dexler v. Tisch, Telesca v. Long Island Housing Partnership, and Roloff v. SAP America.

Assuming, for the sake of the argument, that the court rules that dwarfism is a disability as defined under the Americans with Disabilities Act, Starbucks’ argument that a stool or stepladder is dangerous and may impair productivity would not be far fetched: In a case that predates the Americans with Disabilities Act, a court accepted the employer’s argument that providing a stool or stepladder to a person with anachondroplasia dwarfism may pose safety risks and impair productivity.

Gary Arnold pointed out that Starbucks has had two years to settle this case prior to the filing of the complaint. My guess is that Starbucks feels very strongly that providing the stool or stepladder as an accommodation may pose safety risks not only to Ms. Sallard, but to the other baristas who will be working alongside with her.

I have been to Starbucks several times and have observed that the space where baristas work is often narrow and cramped. Starbucks might feel that it is necessary to invest a significant sum of money to expand the area where the baristas work to address any potential safety risks to Ms. Sallard and her co-workers. Construction to expand the space where the baristas work may require that Starbucks close the location for a period of time. Moreover, such construction may cause the size of the sitting area for customers to shrink, which could mean less profits for Starbucks.

An interesting case indeed!

[Update: The parties settled fairly quickly. A consent decree was signed on August 16, 2011. The terms of the consent decree were straightforward: Starbucks agreed to post a Notice on the employee bulletin board (the Notice starts on page 7 in this document); Starbucks agreed to provide training with emphasis on the Americans with Disabilities Act; and Starbucks agreed to pay monetary damages in the amount of $75,000 to Ms. Sallard.]

(Note: My understanding is that “dwarves” prefer to be called “little people,” “LP,” or “person of short stature.” I mean no offense by using the word “dwarfism”–by using that term, I am referring to those who have anachondroplasia dwarfism, which affects 85% of those who are short in stature. The federal complaint that the EEOC filed repeatedly uses the word “dwarfism.”)

Fellow blogger Ann Kiernan, an employment attorney in New Jersey, recently blogged that the Equal Employment Opportunity Commission has issued its final rule interpreting the employment provisions of the Genetic Information Non-Discrimination Act (GINA), a law that provides protection against genetic discrimination. The regulations will take effect on January 10, 2011.

GINA is an important federal law that took more than 12 years to come to fruition. Signed into law by former President George W. Bush in May 2008, Senator Ted Kennedy described GINA the “first major new civil rights bill of the new century.” One purpose of GINA is to prohibit employers from making employment decisions on the basis of the adverse genetic information. Thus, under GINA, an employer cannot make hiring, firing, job placement, or promotion decisions on the basis of an employee or potential employee’s genetic information. Moreover, under GINA, employers are prohibited from retaliating against employees who allege genetic discrimination. (Note: the term ‘employees’ include ‘applicants’ and ‘former employees.’)

According to the GINA statute, “genetic information” includes:

• Genetic tests of an individual and their family (including fetuses);
• Individual or family medical history; and
• Requests for, or receipt of, genetic tests or genetic services.

Genetic tests include tests “for a genetic variant for Huntington’s Disease and carrier screenings of adults using genetic analysis to determine the risk of conditions such as cystic fibrosis, sickle cell anemia, spinal muscular atrophy, or fragile X syndrome in future offspring.”

Thus, an employer who requests or requires certain genetic information as a condition of employment has violated the GINA law. Likewise, an employer requiring that an employee undergo genetic testing in order to be eligible for health insurance benefits has likely violated the GINA law.

An individual who believes that her rights has been violated under the GINA law may file a claim against the employer. At this time, the procedural rules under GINA appears similar, if not identical, to the procedural rules under Title VII of the Civil Rights Act of 1964, which prohibits discrimination on the basis of race, sex, color, religion, and national origin. Interestingly enough, the EEOC points out that the remedies under GINA is identical to the remedies under Title VII, which includes: reinstatement, back pay, injunctive relief, as well as compensatory and punitive damages.

Over the past few months, employment attorneys, including Adria B. Martinelli, have written some interesting articles about GINA, including “Do Bald Employees Finally Have a Cause of Action Under GINA?” and “Does GINA Provide a Cause of Action for Overweight (or Overly Attractive) Employees?” In the coming months and years there will be no doubt very interesting cases that will test the scope of the GINA statute. In the meanwhile, employees and employers alike are encouraged to familiarize themselves with the GINA law. A good starting point is the GINA Q&A.

The bill, known as the New Jersey Compassionate Use Medical Marijuana Act, will take effect in July 2010. New Jersey will become the 14th state to legalize marijuana. This bill is a victory for many interest groups in New Jersey: those who believe that the criminal justice system needs to be reformed; those who believe that marijuana should be decriminalized; and those who believe that marijuana has beneficial health effects for patients with terminal illnesses. For more information about the benefits of marijuana and why marijuana should be legalized, the Marijuana Policy Project and Americans for Safe Access websites contain a wealth of information.

It is apparently well documented that the medical use of marijuana has beneficial health effects for those who suffer from serious and terminal illnesses. To that end, the stated purpose of New Jersey’s Medical Marijuana Act is to

protect from arrest, prosecution, property forfeiture, and criminal and other penalties, those patients who use marijuana to alleviate suffering from debilitating medical conditions, as well as their physicians, primary caregivers, and those who are authorized to produce marijuana for medical purposes.

Since former Governor Jon Corzine signed the bill, a number of New Jersey employer-side attorneys, including Ann Kiernan, have blogged about how employers can legally respond when they learn that an employee or potential employee has been prescribed marijuana. This is a very complex issue because there are federal and state laws against discrimination on the basis of disability. These laws include the Americans with Disabilities Act and the New Jersey Law Against Discrimination. On the other hand, employers have the right to maintain a safe environment for everyone in the workplace.

Various courts in California, Washington, Oregon, and Utah have held that employees who consume marijuana to treat their illnesses cannot sue their employer for disability discrimination. Now, every one of these cases are fact specific and state specific. For example, in California, an employee who was prescribed marijuana for medical purposes failed a pre-employment drug test could not sue for disability discrimination (Ross v. RagingWire Telecommunications). Similar facts arose in Washington state, and in that case, the court held that the employee had no right to sue her employer (Roe v. Teletech Customer Care Management).

Although out-of-state cases are not binding on the New Jersey courts, they are nonetheless persuasive. Still, it remains to be seen how the New Jersey courts will decide when presented similar facts. We simply will not know until, perhaps, the end of this year. (I have no doubt that there will be a medical marijuana case in an employment setting sometime this year.)

In any event, there are other facts involving medical marijuana in employment settings that have yet to be litigated. For example, it remains to be seen whether a New Jersey employee who has worked for a company for ten years without incident suddenly acquires a terminal illness, is prescribed marijuana, and is subsequently discharged as a result. Will the New Jersey courts favor the employee who was discharged for disability discrimination, or will the courts rule in favor of the employer?

We don’t know the answers to any of these questions until this is litigated.

In the meanwhile, employers and employees alike should familiarize themselves with New Jersey Compassionate Use Medical Marijuana Act. Employers and employees may find this interview helpful as well as these two articles: “The unintended impact of New Jersey’s new medical marijuana law on the workplace” and “When Medical Marijuana Laws Conflict with Company Policies.”