Nevada Complex Litigation

New EEOC Guidelines on Religious Discrimination Effective Today

EEOC Directives Transmittal Dated 7/22/08

SUBJECT: EEOC COMPLIANCE MANUAL

PURPOSE: This transmittal covers the issuance of Section 12 of the new Compliance Manual on “Religious Discrimination”. The section provides guidance and instructions for investigating and analyzing charges alleging discrimination based on religion.

EFFECTIVE DATE: Upon receipt

DISTRIBUTION: EEOC Compliance Manual holders

OBSOLETE DATA: This Section of the Compliance Manual replaces Section 628: Religious Accommodation, EEOC Compliance Manual, Volume II and its Appendices: Appendix A, Policy Statement on Ansonia Board of Education v. Philbrook and Religious Accommodation; Appendix B, Policy Guidance On ‘New Age’ Training Programs Which Conflict With Employees’ Religious Beliefs; and Appendix C, Religious Objections to Unionism. It also replaces the following policy documents: Religious Organizations that Pay Women Less than Men in Accordance with Religious Beliefs; Religious Organization Exemption Under Title VII of the Civil Rights Act of 1964, as amended; and Policy Statement on Goldman v. Weinberger (Accommodation of the Wearing of Religious Dress).

The Commission’s Guidelines on Discrimination Because of Religion, 29 C.F.R. Part 1605, remain in effect.

This Section of the Compliance Manual is designed to be a practical resource for employers, employees, practitioners, and EEOC enforcement staff on Title VII’s prohibition against religious discrimination.  The Section defines religious discrimination, discusses typical scenarios in which religious discrimination may arise, and provides guidance to employers on how to balance the needs of individuals in a diverse religious climate.[10]

The Section is organized by legal topic, as follows:

I - Coverage issues, including the definition of “religion” and “sincerely held,” the religious organization exception, and the ministerial exception.

II - Disparate treatment analysis of employment decisions based on religion, including recruitment, hiring, promotion, discipline, and compensation, as well as differential treatment with respect to religious expression; customer preference; security requirements; and bona fide occupational qualifications.

III - Harassment analysis, including religious belief or practice as a condition of employment or advancement, hostile work environment, and employer liability issues.

IV - Reasonable accommodation analysis, including notice of the conflict between religion and work, scope of the accommodation requirement and undue hardship defense, and common methods of accommodation.

V - Related forms of discrimination, including discrimination based on national origin, race, or color, as well as retaliation.

The transmittal also contains 14 examples of what constitutes discrimination and what does not.

Just reading through the directive would be a great refresher for employers and HR staff.

Identity Theft Leads to Million Dollar Fine for Nevada Employer

An identity theft complaint involving the use of false information by a McDonald’s employee lead to a raid of 11 McDonald’s restaurants in Northern Nevada.  The raid by U.S. Immigration and Customs Enforcement Agents resulted in 56 arrests in Reno, Sparks and Fernley.

Mack Associates Inc., the McDonald’s franchisee pleaded guilty to felony immigration offenses.

Details of the plea agreement were released by the Justice Department today.

Immigration and Customs Enforcement agents said that management of Mack Associates knowingly hired illegal alien employees at Reno area McDonald’s and provided false identification to them.

Attorneys for Mack Associates filed guilty pleas for one count of aiding and abetting an alien to remain in the U.S and one count of conspiracy to encourage and induce an alien's unlawful residence in the U.S., both are felony offenses.

Each guilty plea carries a $500,000 fine, the maximum allowed. Mack and associates will pay $300,000 immediately, the balance within 9 months and will be on probation for 1 year.

Two Mack executives were also charged with criminal counts.  Joe Gillespie, director of operations pleaded guilty to aiding and abetting an alien to remain in the U.S. and Jimmy Moore, former vice president pleaded guilty to inducing an illegal alien to remain in the U.S.  Sentencing is pending.

Luther Mack, who owns Mack Associates is a prominent Northern Nevada community leader and was not charged in the case.  From a corporate perspective, Mack Associates cooperated fully with the Department of Justice during the investigation and has offered to work to ensure compliance with employment laws.

The lesson here is to pay close attention to how your management team ensures compliance to federal and state employment laws.  

Hage v. US Decision Ends 17 Year Fight Over Nevada Ranch

Wayne and Jean Hage filed their "taking" case in 1991. The Hages claimed the U.S. Forest Service and Bureau of Land Management had denied their rights to graze their livestock on federal land and prevented them from accessing and maintaining their water rights.
 
Established in 1865, encompassing 7000 acres Pine Creek Ranch in Monitor Valley Nevada was purchased by the Hage family in 1978. Their problems with the federal government started in 1979 when the US Forest Service allowed the release of non-indigenous elk on the Hages’ Table Mountain grazing allotment.  The elk immediately started competing with the cattle for food and water.

The government then started diverting water away from the Hage ranch and fenced off other access to water.  Much of this case was about whether the Hage family owned the rights to the water the government took from the ranch.

Last month, Loren A. Smith, Senior Judge for the United States Court of Federal Claims issued his final opinion in Hage v. United States (Case No. 91-1470L).   His decision found that that the federal government in fact took the private property rights of E. Wayne and Jean Hage and awarded them deserved compensation.
 
The court ruled that the Hages owned the water rights, ditch rights of ways, and range improvements on the federal grazing allotments. The court made clear that the government has the right to authorize grazing, but does not have the right to prevent the plaintiff from accessing their water rights on federal lands.

Sadly, neither Jean or Wayne Hage were able to see this victory, both have passed away.  Thus, Judge Loren Smith awarded the estates of Wayne and Jean Hage $4.2 million in compensation for physical and regulatory takings, plus 17 years of interest and attorney's fees, which will likely amount to an additional $4.4 million.
 
Margaret Byfield, the Hages’ third daughter commented "My parents wanted resolution. They were told by the agencies that they had no property rights on the federal lands. They pursued this case so that this 60-year conflict between ranchers and agencies could be settled, and future generations of ranchers would have the security of their property rights. They succeeded."

Byfield added, "This decision is important to every American because it reaffirms our basic right to own property, whether you live in a major U.S. city or rural America."

This was the 4th and final decision in this saga.  Links to all 4 decisions can be found on this page.