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Changing Currents 2021 – Panel Preview: COVID-19’s Impact on Reasonable Accommodation

 

 

» “Changing Currents in Employment Law” will take place on October 26, 2021. Click here for more details and registration options.

 

(Transcribed and edited lightly by The Employment Law Group)

R. Scott Oswald: Welcome to our preview of this year’s “Changing Currents in Employment Law,” the D.C. Bar’s fall employment law CLE. I’m Scott Oswald. I am faculty chair of “Changing Currents in Employment Law,” and today, I’m joined by Alison Davis, a partner at Littler Mendelson’s D.C. office.

Hi, Alison.

Alison Davis: Hey, Scott, good to see you.

Oswald: Good to see you. Hey, let’s talk about your panel. It’s entitled “Home Equity: How COVID-19 May Change the Law of Reasonable Accommodation.” Tell us a little about your speaking partner and maybe a few things that we’ll learn from this panel.

Davis: Well, we’re going to talk a little bit about the new world that we’re entering now. Prior to [the pandemic], we all pretty well were comfortable with how to deal with requests for telework. And you know, it didn’t happen frequently, but we gave it serious consideration, and it happened occasionally. And then suddenly, COVID-19 came along, and all of us were teleworking.

Oswald: And that all changed probably overnight.

Davis: Overnight, it changed, and now, we’re at a point where we’re all talking about returning to the office. We’re going to talk about what we need to think about going forward because our old mindset about telework and offering it as an accommodation has changed because of the pandemic.

Oswald: So, a lot of businesses are considering going to a hybrid model, Alison. What kind of advice are you giving to your clients right now who are thinking about that?

Davis: The one thing that has not changed is that telework is still being treated as an accommodation, and we still need to go through the interactive process. So, we shouldn’t just assume that everybody’s going to be still entitled to telework if they request it as a form of accommodation. We need to go through each situation on a case-by-case basis like we did before. That’s the one thing that has not changed.

Oswald: And so, when an employee comes in and says, “look, you know, I have a medical condition, or I have a firmly held religious belief,” what should HR be thinking about when that employee comes knocking?

Davis: They need to have a checklist in their mind of the questions that they need to ask when an employee comes in and says, “I can’t come into the office because I haven’t been vaccinated because I am immune-compromised.” Does that mean that they should be allowed to telework? Are there adjustments that can be made once everybody comes back that would protect that individual? We just need to have the right questions ready and shouldn’t have a knee-jerk reaction when the request comes in.

Oswald: So, I know one of the things you’re going to be talking about in your panel is kind of a changed workplace for the future. When you look a couple years down the road at what the workplace will look like, what do you think? What do we see?

Davis: Pre-COVID, my crystal ball worked really well. Now all I can say is it’s going to be a day-by-day [situation], and I really can’t predict where we’re going to be.

Oswald: So even more of a reason to come to “Changing Currents in Employment Law” to your panel. Alison, thank you. And we look forward to seeing each of you at this year’s “Changing Currents in Employment Law.” It’s Tuesday, October 26th at 6:00 pm. You can find us at dcbar.org.

Davis: Looking forward to it.

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R. Scott Oswald is managing principal of The Employment Law Group, P.C. Alison Davis is a shareholder at Littler Mendelson P.C.

 

» “Changing Currents in Employment Law” will take place on October 26, 2021. Click here for more details and registration options.

 

Changing Currents 2021 – Panel Preview: Hair Discrimination Statutes

 

 

» “Changing Currents in Employment Law” will take place on October 26, 2021. Click here for more details and registration options.

 

(Transcribed and edited lightly by The Employment Law Group)

R. Scott Oswald: Welcome, everyone, to our preview of this year’s “Changing Currents in Employment Law,” the D.C. Bar’s fall employment law CLE. I’m Scott Oswald. I am faculty chair of “Changing Currents in Employment Law,” [and I’m here] with one of our speakers, Natalie Koss. She is the managing partner at Potomac Legal Group here in D.C.

Natalie, hi.

Natalie Koss: Hi, how are you, Scott?

Oswald: I’m good. Hey, let’s talk about your panel. You’re speaking on “Natural Law: The Workplace Impact of New Hair Discrimination Statutes.” Boy, this really is a cutting edge topic. Tell us just a little bit about your panel and your fellow panelist.

Koss: I am joined by Sherron McClain of the FBI, who will be providing the employer’s perspective on our panel about hair discrimination, and you’re right, Scott. It is a cutting edge topic. It’s so cutting edge that, as we speak, state legislatures are passing CROWN Act laws to prohibit some very insidious and pervasive hair discrimination that largely impacts African American women and their hairstyles [and] hair texture. The CROWN Act stands for “creating a respectful and open workplace for natural hair.”

Oswald: So, when a potential client comes to you, Natalie, and says, “look, I’m having this problem
at work, I’m being asked about my hairstyle” or something similar, what kind of advice are you giving to that potential client?

Koss: Well, as an employee-side attorney, I’m regularly asked by potential clients about discrimination within the workplace, and the first place I always ask them to go — whether it’s hair discrimination or some other discrimination — is “what does it say in the employment handbook?” What does the employee handbook say about how employees should manage their hair? What are considered professional grooming standards, appropriate standards, as defined by the employer in the workplace?

Then we ask the employee, “How is the policy being enforced?” Is the policy being disproportionately enforced against African Americans, African American women, which is traditionally the case?

Oswald: And so, it’s really important for employees to dust off that manual, actually open it, and see what these policies say. It kind of guides what happens next.

Koss: Absolutely. And we’re also going to be discussing the jurisprudence as relates to hair discrimination cases nationally as well as within the District, Maryland, and Virginia.

Oswald: Natalie, thank you.

Koss: You’re welcome.

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R. Scott Oswald is managing principal of The Employment Law Group, P.C. Natalie Koss is managing partner at Potomac Legal Group PLLC.

 

» “Changing Currents in Employment Law” will take place on October 26, 2021. Click here for more details and registration options.

 

VERIFY: Yes, if you are fired for not getting a required vaccine, you can be denied unemployment benefits

 

IMPORTANT: COVID-19 guidelines are subject to change. For a reliable, up-to-date look at how the pandemic is affecting workplace laws and rules, our firm recommends that you review the “What You Should Know” page maintained by the U.S. Equal Employment Opportunity Commission.

 

WASHINGTON — Individuals across the United States are working to navigate this newest phase of the COVID-19 pandemic, in which vaccines are readily available but the rapidly spreading Delta variant is ravaging communities.

Vaccination rates are slowly increasing, but a Kaiser Family Foundation survey found there are still millions of Americans who would only get vaccinated against COVID-19 if it was required. Some companies, like Disney, Google and Walmart, have decided to lend a hand in pushing up vaccination rates by requiring certain employees to show proof of vaccination.

Some who refuse may be looking forward to the support of unemployment benefits while they look for a new job that doesn’t require vaccines. But, for many of them, that might not be an option.

[ … ]

Someone fired for breaking a company policy, big or small, can be denied benefits, employment attorney John T. Harrington explains.

“Even something as simple as a dress code that says you have to wear a tie, and that’s the company’s policy, and you say, ‘I don’t believe in wearing a tie, so I’m not going to do it.’ That’s insubordination,” Harrington said. “It’s misconduct, and it would likely disqualify you from receiving unemployment benefits.”

If a company’s vaccination policy, and the repercussions for breaking that policy, are made clear to employees, the reason for disqualification is the same as if they had broken any other company rule.

» View the full story on WUSA9

Ashley Koerner

Ashley Koerner graduated from the Sturm College of Law at the University of Denver in 2024. Before joining The Employment Law Group® law firm in July 2021, she worked in immigration compliance for higher education with the Colorado School of Mines and The George Washington University.

Ms. Koerner graduated from the University of Wisconsin-La Crosse with a bachelor’s in French and from the University of Wisconsin-Madison with a master’s in French and International Education.

She is admitted to practice law in Colorado and D.C.

Raymond Mastoloni

Raymond Mastoloni is an associate attorney at The Employment Law Group® law firm. Prior to joining the firm, he worked at Parker, Simon & Kokolis, LLC, a D.C. metro area law firm specializing in creditor representation, real estate litigation, wills and trusts, and estate planning.

Mr. Mastoloni graduated from the American University Washington College of Law in 2022. He graduated from the University of Maryland in College Park, MD, where he earned a Bachelor of Arts in Criminology and Criminal Justice.

He is admitted to practice in D.C. and Pennsylvania.

What companies can and can’t do when trying to increase diversity

As companies seek to diversity their workforces, there are a number of strategies taking hold. Some businesses are retaining recruitment firms that specialize in hiring business leaders of color. Some are writing in job postings that “women and people of color are strongly encouraged to apply.”

The Business Journals recently spoke with Barbara L. Johnson, founder of BLJohnson Law PLLC and counsel with Potter & Murdock LLC, and Tom Harrington, a principal at The Employment Law Group PC, to get answers to common questions companies may have when trying to attract a more diverse workforce.

Can a company use race as a factor for choosing which workers to hire?

Only under specific circumstances. A private employer can use race as a factor in hiring decisions if two or more candidates are deemed equally or very comparably qualified and it has completed affirmative-action research that finds it has a history of inequitable hiring. In that case, a candidate’s race can be a determining factor, Harrington said.

Can a company set a target for hiring specific demographics?

Experts say the short answer is yes, but Harrington said companies should make sure their goals are just that — goals — and not quotas, which are illegal.

What’s the difference between a goal and a quota? A quota would mean a company guarantees it will hire a certain number of workers from a particular demographic group, regardless of the qualifications of the potential employees it interviews.

A goal, on the other hand, is a company saying it aims to hire a certain number of workers from a specific group, assuming that interviewees for the roles are qualified for the position.

It’s not uncommon to see a job posting include something along the lines of “women and people of color strongly encouraged to apply.” Is that legal?

Harrington said it is legal — as long as the company also affirms a commitment to equal opportunity for all.» Read more

Federal jury awards $2.4 million in damages to fired AstraZeneca sales manager who alleged retaliation for whistleblowing

A federal jury in Portland on Tuesday awarded $2.4 million in damages to a woman who said she was fired from AstraZeneca Pharmaceuticals for complaining about alleged misleading marketing tactics.

Suzanne Ivie had worked at AstraZeneca Pharmaceuticals for 19 years, most recently in Salt Lake City as an executive district sales manager within its respiratory products division.

The jury awarded damages after finding the company violated the Oregon whistleblower protection law, finding Ivie was fired after she made a “good faith report” of alleged company misconduct.

Ivie said she complained in December 2018 that a supervisor appeared to be promoting “off-label marketing” for two prescription medicines to treat pulmonary disease, Bevespi and Daliresp.

She said she faced retaliation in response. She was removed from leadership jobs, wrongly accused of not completing a certain number of hours of coaching her sales representatives, pressured to work weekends and had her bonus reduced, she said.

Attorney Robert Scott Oswald urged the jury to serve as the “conscience of the community … to protect Ivie, to protect AstraZeneca’s current employees, to protect AstraZeneca’s future employees and to protect all of us.”

>> View full story on OregonLive (an Oregonian affiliate)

 

[ADDITIONAL COVERAGE]

Ex-AstraZeneca Employee Wins $2.4 Million in Whistleblower Suit

From Bloomberg Law (June 23, 2021)

A former AstraZeneca Pharmaceuticals, LP employee won $2.4 million in damages after being fired for raising the alarm that an executive was marketing drugs for unapproved uses.

AstraZeneca violated Oregon’s whistleblower statute, which protects employees from facing retaliation for good-faith reporting of wrongdoing, the federal court jury found. It awarded plaintiff Suzanne Ivie $510,423 in back pay and $1,872,000 for emotional distress, suffering, and reputational harm.

Ivie repeatedly tried to warn her bosses that an executive was planning to market anti-inflammatory drugs—meant to prevent severe symptoms of Chronic Obstructive Pulmonary Disease from worsening—as a preventative that could treat mild to moderate issues, according to her 2019 complaint. Such misrepresentation, also know as off-label marketing, is prohibited by federal law.

In response to her complaints, the company retaliated by denying raises and removing her from leadership, and eventually fired her, Ivie claimed.

This isn’t the first time the company has faced scrutiny for misleading marketing. It settled a lawsuit for $520 million in 2010 for off-label drug marketing of the antipsychotic Seroquel. The agreement also required the company to operate under oversight from the Department of Health and Human Services for five years.

>> View full story on Bloomberg Law

 

Ex-AstraZeneca Rep Wins $2.4M Verdict On Retaliation Claim

From Law360 (June 23, 2021)

An Oregon federal jury has awarded a former AstraZeneca sales manager $2.4 million in back pay and damages, agreeing that she was fired for reporting what she believed was illegal off-label drug promotion but rejecting her age discrimination claim.

Tuesday’s verdict wrapped up a seven-day trial in a case brought by Suzanne Ivie accusing AstraZeneca Pharmaceuticals LP, which employed her for nearly two decades, of punishing her because she complained internally about a manager who she believed was seeking to market several pharmaceutical products for off-label use.

Anita Mazumdar Chambers, a principal of The Employment Law Group and counsel for Ivie, said in a statement that her client “alerted AstraZeneca to bad behavior and, instead of fixing the problem, the company punished her.”

“Today, a jury of regular people told AstraZeneca that’s not acceptable in our society,” Chambers said. “This verdict is a comfort for Suzanne, of course, but she’d prefer never to have a lost a job in which she excelled. AstraZeneca derailed her career and forced her into a courtroom to defend her honor. They owed her better – and we’re grateful to the jury for telling them so.”

>> View full story on Law360

 

Jury awards former AstraZeneca sales manager $2.4M in whistleblower retaliation case

From Fierce Pharma (June 23, 2021)

AstraZeneca and a former sales manager have each scored partial wins in the case of Suzanne Ivie, who alleged the company fired her after she raised concerns of off-label marketing.

While a federal jury in Oregon found that AstraZeneca violated whistleblower statute by firing Ivie after she made a “good faith” report of alleged marketing misconduct, jurors rejected allegations of age discrimination, Oregonlive reports.

After a trial that started in mid-June, jurors reached their conclusion Tuesday and awarded Ivie $2.4 million.

During her career, Ivie worked in AZ’s respiratory division. After a new director took over in 2018, the director allegedly pushed the team to promote certain AstraZeneca drugs for use that weren’t approved by the FDA. When Ivie refused to play ball and complained to the company, a pattern of retaliation emerged, she claimed.

>> View full story on Fierce Pharma

Former AstraZeneca Sales Manager Wins $2.4 Million Verdict in Retaliation Case

Drug Giant Fired Top Performer After She Complained About Off-Label Marketing Efforts, Age Bias

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Latest Update

In May 2023, Ivie won again at the U.S. Court of Appeals for the Ninth Circuit

» See details

PORTLAND, Ore. (June 22, 2021) — A federal jury today awarded $2.4 million in damages to a former AstraZeneca Pharmaceuticals sales manager who was fired after raising concerns about the drug giant’s marketing tactics and alleged discriminatory actions.

The jury found AstraZeneca liable to Suzanne Ivie for violating Oregon’s whistleblower statute, which forbids retaliation against employees for their good-faith reports of wrongdoing. Ms. Ivie had repeatedly warned AstraZeneca that an executive was planning to market its drugs to doctors for unapproved uses.

Ms. Ivie is represented by The Employment Law Group® law firm. Before her termination she worked at AstraZeneca for 19 years, overseeing the work of sales teams in Utah, Idaho, and Oregon — and winning company-wide recognition for her strong performance in the drug maker’s respiratory products division.

In 2018 her division got a new boss, Stephanie DiNunzio, who singled out Ms. Ivie for her age rather than her achievements, according to testimony in the case. Ms. DiNunzio ridiculed Ms. Ivie in meetings as “Benatar,” for instance, referring to Pat Benatar, a rock singer whose heyday was in the early 1980s and now is almost 70, jurors heard. Ms. Ivie was about 50 at the time.

Ms. DiNunzio started pushing sales teams to promote AstraZeneca medications to doctors for uses beyond those sanctioned by the U.S. Food and Drug Administration, Ms. Ivie testified. Federal law prohibits such tactics, known as off-label marketing. In addition to endangering patients, off-label marketing previously had put AstraZeneca in legal jeopardy. As veterans such as Ms. Ivie knew, the company operated for five years under oversight from the U.S. Department of Health and Human Services following a $520 million payment in 2010 to settle accusations of an off-label scheme.

Ms. Ivie resisted the pressure to break rules. Instead, she reported her concerns about off-label marketing and age discrimination — plus her fear of retaliation — through AstraZeneca’s appointed channels. Over the following months, AstraZeneca stripped her of leadership positions, denied her a raise and bonus, disciplined her for purportedly unrelated reasons, and ultimately fired her.

Jurors heard evidence that AstraZeneca’s legal and human-resources executives failed to step in — and even participated in the discipline — despite laws against punishing employees who report what they reasonably believe to be illegal behavior.

Ms. Ivie filed a complaint in October 2019 in the U.S. District Court for the District of Oregon, claiming that AstraZeneca had engaged in retaliation and discrimination under a range of federal and state statutes. In today’s verdict, a six-person jury in Portland found AstraZeneca liable under Oregon law, awarding Ms. Ivie $510,423 in back pay and $1.872 million in compensatory damages, reflecting the harm to her quality of life.

“Suzanne alerted AstraZeneca to bad behavior and, instead of fixing the problem, the company punished her,” said Anita Mazumdar Chambers, a principal of The Employment Law Group (TELG). “Today, a jury of regular people told AstraZeneca that’s not acceptable in our society. This verdict is a comfort for Suzanne, of course, but she’d prefer never to have lost a job in which she excelled. AstraZeneca derailed her career and forced her into a courtroom to defend her honor. They owed her better — and we’re grateful to the jury for telling them so.”

Ms. Chambers represented Ms. Ivie at trial along with R. Scott Oswald, managing principal at TELG; both are based in Washington, D.C.

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Case Information

Ivie v. AstraZeneca Pharmaceuticals LP
No. 3:19-cv-1657
U.S. District Court for the District of Oregon
Original complaint filed on October 16, 2019
Amended complaint filed on June 9, 2020 (available here)
Case tried before U.S. Magistrate Judge Jolie A. Russo, June 14-22, 2021

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About The Employment Law Group
The Employment Law Group® law firm represents whistleblowers and other employees who stand up to wrongdoing in the workplace. Based in Washington, D.C., the firm takes cases nationwide.