Tag Archives: discrimination

Is Attendance An Essential Function Of The Job?

In E.E.O.C. v. Ford Motor Co., 2014 WL 1584674 (6th Cir. 2014), the Sixth Circuit Court of Appeals weighed on the issue of essential functions of a job under the American Disabilities Act.  Specifically, whether physical presence was one of these.  The Sixth Circuit remanded the summary judgment decision because it found that there is a genuine issue of whether this was the case.  The Court noted that courts should consider that while physical presence is required for some jobs, it is not required for all positions.

In this case, the plaintiff suffered of irritable bowel syndrome, which often made her unable to control her bowel. The plaintiff requested accommodations by allowing to telecommute. Since this was denied, the plaintiff had to take FMLA leave, which caused her to miss work and her work suffered.  Consequently, she was terminated.

It reasoned:

When we first developed the principle that attendance is an essential requirement of most jobs, technology was such that the workplace and an employer’s brick-and-mortar location were synonymous. However, as technology has advanced in the intervening decades, and an ever-greater number of employers and employees utilize remote work arrangements, attendance at the workplace can no longer be assumed to mean attendance at the employer’s physical location. Instead, the law must respond to the advance of technology in the employment context, as it has in other areas of modern life, and recognize that the “workplace” is anywhere that an employee can perform her job duties. Thus, the vital question in this case is not whether “attendance” was an essential job function for a resale buyer, but whether physical presence at the Ford facilities was truly essential. Determining whether physical presence is essential to a particular job is a “highly fact specific” question.

Id. at *6 (emphasis added).

The reach of the opinion is unclear.  The Court also noted:

It is important, at this juncture, to clarify that we are not rejecting the long line of precedent recognizing predictable attendance as an essential function of most jobs. Nor are we claiming that, because technology has advanced, most modern jobs are amenable to remote work arrangements. As we discussed above, many jobs continue to require physical presence because the employee must interact directly with people or objects at the worksite. See, e.g., Melange, 482 F. App’x at 84 (custodian). We are merely recognizing that, given the state of modern technology, it is no longer the case that jobs suitable for telecommuting are “extraordinary” or “unusual.” Vande Zande, 44 F.3d at 545; Smith, 129 F.3d at 867–68. When we decided Smith in 1997, we responded to the world as it then existed; however, in the intervening years, communications technology has advanced to the point that it is no longer an “unusual case where an employee can effectively perform all work-related duties from home.”

Id. at *11 (emphasis added).

This decision is interesting in many different levels.  First, the use of technology is being considered as a reasonable accommodation. Second, it adds to the trail of cases focusing on electronic communications.

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Filed under ADAAAA, civil rights, courts, Disability, discrimination, employment, federal, labor, legal decision, technology, Title VII

Discrimination for being “unmanly”

The Fifth Circuit Court of Appeals (en banc) ruled that an iron worker who was subjected to gay slurs and simulated sex because he failed to conform to the employer’s male stereotypes was discriminated against under Title VII.

In EEOC v. Boh Bros. Constr. Co., No. 11-30770 (5th Cir. Sept. 27, 2013), the  court reviewed the jury’s findings and awarded damages.  The Fifth Circuit found that taking the case as a whole, a jury could have found that the employee was harassed because he did not fall under the “manly-man stereotype.”

This case arose when a worker, Kerry Woods, was subjected to sex harassment.  Woods was often sexual derogatory terms regarding Woods’ sexuality.  In addition, the superintendent also exposed himself when Woods was going to the bathroom, and made sexual innuendo comments to Woods.  When these actions were brought to the employer, the superintendent told the general superintendent that he didn’t care for Woods because he was “different” and “didn’t fit in.”

After trial the jury found that this verbal and physical harassment occurred daily.  The jury awarded Woods $200,000 in compensatory damages and $250,000 in punitive damages.

via Harassed for being unmanly? En banc court sees Title VII violation; dissent sees clean-talk enforcer.

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Targeting Union Employees For Layoffs Violates The First Amendment

The Second Circuit Court of Appeals brings an interesting labor decision.  In State Employee Bargaining Coalitation v. Roland, ___F.3d___( 2d Cir. May 31, 2013), the court found that targeting Union employees for layoffs violates the First Amendment (freedom of association).

In this case, the employer employed around 50,000 people.  75% of these employees were members of the Union, and 25% were not.  In December 2002, the employer fired only Union employees.  No non-Union employees were fired.

It is important to note that an employer can manage the size of their work force.  However, the employer cannot target a protected group (here, employees who associated themselves with the Union).  The reason for this is because by targeting a protected group, the effect is to inhibit employees from their freedom to associate.

Under the Constitution, in order for the employer to not violate the Constitution it must show that they used the less restrictive means to accomplish their interest and must be narrowly tailored to achieve their goals.

The following are the pivotal facts of this case.  The employer’s interest was to manage their economical situation.  However, the laying off those Union employees had a minimal effect on their budget.  In fact, these Union-only lay offs were not included in the Balanced Budget Plan.  Further, the facts showed that because both Union and non-Union employees had the same health care and pension benefits there was no reason why only the Union employees were targeted.

via Adjunct Law Prof Blog: Targeting Union Employees For Layoffs Violates The First Amendment.

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AMA declares obesity a disease

The American Medical Association (AMA) declared that obesity is a disease and not a condition.  AMA board member Patrice Harris stated in a statement,

Recognizing obesity as a disease will help change the way the medical community tackles this complex issue.

As background, the U.S. has been consistently rated as No. 1 in obesity.  Recently, Mexico took the No. 1 spot and the U.S. moved to No. 2.  See Huffington article, Mexico Obesity Rate Surpasses The United States (July 9, 2013).  Mexico was reported to have 32.8% obesity rate while the U.S. has a rate of 31.8%.

This new definition may have an unknown impact in disability claims.  The ABA Journal reports:

Although the AMA’s action was intended to affect medical treatment for the obese, “there’s a high probability it will make it easier for an obese employee to argue that he or she is disabled,” said partner Myra Creighton of Fisher & Phillips.

“It may be easier for employees to prove disability discrimination,” Creighton, who represents employers, told the newspaper. “And, if classified as a disease, it will be difficult for employers to argue that any level of obesity is not an impairment.”

The EmploymentEmployment Opportunity Commission (EEOC) has previously defined a “morbid” obese individual as disabled.  Seee.g.JD Supra, Morbid Obesity as a Covered Disability under the ADA (July 30, 2012)EEOC Press Release (July 24, 2012); EEOC Press Release (Apr. 10, 2012), EEOC Press Release (Sept. 27, 2011).

It would be interesting to see if the EEOC will change its definition of obesity as a disability.

via Obesity is a disease, AMA says, aiding weight-related disability claims – ABA Journal.

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EEOC’s First GINA Suit Settlement

The first settlement between the EEOC and an employer over GINA is important because it brings attention to this relatively new law.  EEOC charges alleging GINA violations have increased each year.  Consequently, it is important for employers to ensure their policies and procedures are compliant with GINA procedures.

The Genetic Information Nondiscrimination Act (GINA) went into effect in 2009.  Some of GINA’s regulations are as follows.

  • It is illegal for employers to discriminate against employees or applicants based on their genetic information.
  • Employers cannot request or obtain genetic information, which includes any information about an employee or an applicant’s family history.
  • GINA also applies to third parties.  So, employers cannot request or obtain family medical history, even through a third-party medical provider or examiner.
  • There are exceptions for voluntary health risk assessments.  However, if the employee is receiving an incentive for completion of the Health Risk Assessment, the employer must make clear that an employee need not answer any of the questions about family medical history in order to obtain the incentive.

On May 7, 2013, the U.S. Equal Employment Opportunity Commission (“EEOC”) reached a milestone of sorts as it filed – and then settled – its first complaint ever alleging genetic discrimination under the Genetic Information Nondiscrimination Act of 2008 (“GINA”).

The EEOC filed suit in Oklahoma federal court against Fabricut Inc., one of the world’s largest distributors of decorative fabrics, alleging that Fabricut violated GINA and the Americans With Disabilities Act (“ADA”) by unlawfully asking a job applicant for her family medical history in a pre-employment, post-job offer medical examination, and allegedly rescinding her job offer based on the belief that she had carpal tunnel syndrome.

The EEOC and Fabricut reached a settlement, which is the first settlement in a GINA case.  In the consent decree, Fabricut agreed to pay $50,000 but did not admit to violating GINA or the ADA.

via EEOC’s First GINA Suit Serves As Reminder of Pre-Employment Exam Pitfall | Proskauer Rose LLP – JDSupra.

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EEOC wins over $1.5 million in sexual harassment case

The EEOC has issued a press release announcing a big victory for sexual harassment cases.  These cases are often dismissed.  For instance, according to EEOC 2011 statistics, the EEOC received 11,364 sexual harassment complaints.  Of these, 53% were found to have no reasonable cause.  This is an increase from 2010, where the percentage was of 50.1%.  Since 1997, the percentage of cases dismissed has been in an upwards trend.

In the EEOC case against New Breed Logistics (Civil Action No. 2:10-cv-02696-STA-tmp), the jury awarded $177,094 in back pay, $486,000 in compensatory damages, and $850,000 in punitive damages.

Following the 7-day trial, the jury found that the warehouse supervisor subjected 3 temporary workers to unwelcome sexual touching and lewd, obscene and vulgar  sexual remarks at the company’s Avaya Memphis area warehouse facility.  Further, the jury found that a supervisor fired the three temp workers because they complained about the harassment.

 

via Jury Awards More Than $1.5 Million in EEOC Sexual Harassment and Retaliation Suit against New Breed Logistics | U.S. Equal Employment Opportunity Commission (EEOC) – JDSupra.

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Wisconsin Act 10 (Budget bill) Upheld

Do you remember the Governor Walker’s Wisconsin anti-union bill?  Well, the 7th Circuit Court of Appeals just upheld it.

As background, Governor Walker signed Act 10 which made its strongest impact on collective bargaining, compensation, retiring, health insurance, and sick leave of public sector employees.

The most-talked about change was to collective bargaining rights.  The bill limited collective bargaining to wages.  As you may know, unions often bargain on a plethora of topics – such as sick leave, vacation, pension, health insurance, funeral leave, discipline, training, retirement, lay offs, and so on.  Further, the bill out-right prohibited employers from collecting union dues and bargaining units would not be required to pay union dues.  However, some units were exempted: local law enforcement, state troopers, and inspectors.

In Wisconsin Educational Council v. Walker, ____F.3d___ (7th Cir. Jan. 18, 2013), the main challenge was based on equal protection.  The bill basically created 2 classifications of public employees: (1) public safety employees, and (2) general employees.  According to the bill, as stated previously, the limitations of collective bargaining rights were applied only to the general employees.

In the 74-page decision, the 7th Circuit Court held that the bill was constitutional.  The court held that the bill did not create view-point discrimination. The court explained that the different treatment was justified on the greater consequences of public safety worker strikes.

 

via Adjunct Law Prof Blog: Breaking News! 7th Upholds The Constitutionality of Wisconsin Budget Repair Bill.

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Wal-Mart Class Action: class not narrowed

I bring to you this legal decision in a sex discrimination class action against Wal-Mart because it provides an example of a class that was not narrowed by the Court.  This is the Dukes case that went up to the Supreme Court to discuss the issue of commonality.  This decision can be found here.

In a 2001 federal complaint led by Betty Dukes, a putative class claimed that Wal-Mart Stores received paid women less and offered them fewer promotions than it offered men in comparable positions.

Though a San Francisco federal judge initially certified a class that would cover estimated 1.5 million women, making it the largest civil rights case in U.S. history, the Supreme Court disbanded that class in 2011 on the basis of lacking commonality. On remand, the plaintiffs filed a fourth amended complaint that seeks to certify a narrower class than that rejected by the high court.

The Bentonville, Ark.-based company responded with a motion to strike the class allegations. It claims that the statute of limitations bars the claims, and that the newly proposed class still fails to meet the commonality requirement.

Denying that motion, the Northern District of California set a deadline of Jan. 11, 2013, for the class-certification motion.  Undeterred, Wal-Mart sought leave to file an interim appeal with the 9th Circuit.

Wal-Mart argued that the Dukes Supreme Court decision should be interpreted as a total rejection of plaintiffs’ theories.  The District Court disagreed.  The District Court held that the Dukes Supreme Court decision rested on plaintiffs’ “inadequacy of their proof.”

The District Court explained:

The Supreme Court’s decision foreclosed claims that delegated discretion -alone- is sufficient to state a common question for purposes of Rule 23.  It does not follow that any time a plaintiff alleges that a company has a policy involving some amount of delegated discretion, the plaintiff is precluded from showing a classwide pattern or practice of discrimination or a common mode of exercising delegate discretion susceptible to classwide relief.  That is why the Supreme Court reached the question whether the plaintiffs had evidence on those points sufficient to establish a common question under Rule 23.

In his conclusion, Judge Breyer denied the interlocutory appeal “on the grounds that (1) immediate appeal would not, at this time, materially advance the ultimate termination of the litigation in light of the impending certification motion, and (2) no substantial grounds for difference of opinion exist regarding the commonality issue.”

via Courthouse News Service.

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EEOC Guidance on Title VII, the ADA, and Domestic Violence, Sexual Assault, Stalking

The EEOC has issued a new fact sheet explaining how employment decisions related to employees who are victims of domestic violence, sexual violence, or stalking might violate Title VII or the ADA. From the fact sheet:

Because [Title VII and the ADA] do not prohibit discrimination against applicants or employees who experience domestic or dating violence, sexual assault, or stalking as such, potential employment discrimination and retaliation against these individuals may be overlooked.  The examples provided in this publication illustrate how Title VII and the ADA may apply to employment situations involving applicants and employees who experience domestic or dating violence, sexual assault, or stalking.

The examples cover ways that treating victims in a particular way might constitute either disparate treatment, disparate impact, or retaliation. It’s a good summary.

via Workplace Prof Blog: EEOC Guidance on Title VII, the ADA, and Domestic Violence, Sexual Assault, Stalking.

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Cat’s Paw and Personal Liability

The Proactive Employer ran an interesting blog post on July 17, 2012 which reported on a case where a supervisor had personal liability under a Cat Paw type of case.

As you will recall, the Supremes in Staub v. Proctor Hospital, held that employers can be liable for discrimination based on the bias of an employee’s supervisors, even though the supervisor in question did not make the actual decision to terminate the employee.

Combine that holding with a 1981 case which permits personal liability and you get a case involving the Cat’s Paw and personal liability.  The case is Smith v. Brady from the 7th Circuit.

via Adjunct Law Prof Blog: Cat’s Paw and Personal Liability.

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