Professor Who Can't Think Is Not Qualified, August 29, 2008
Karl Brett Lloyd was an associate professor in the Information Technology Leadership Department of Washington & Jefferson College from July 2002 until April 5, 2004. Though the College had a policy requiring all full-time professors (such as Lloyd) to be on campus a minimum of four days a week, Lloyd worked on campus only three days a week and otherwise worked at home.
In late 2003 and January 2004, Lloyd took FMLA leave because of physical problems, such as leg pain, resulting from stress he felt working on campus under his department chair. When Lloyd returned to work in February 2004, after using up his FMLA leave, the College offered him the opportunity to work in an administrative position in the IT department, with a different supervisor, only three days a week, in order to accommodate his stress-related problems. Lloyd never responded to the offer, and when he failed to appear for work, the College accepted his apparent resignation.
Lloyd then sued for ADA discrimination, claiming he was fired because of an alleged disability. To prove that he was disabled within the meaning of the ADA, Lloyd argued that he was substantially limited in the major life activities of thinking and interacting with others. Even with this alleged limitation, however, Lloyd was able to work or teach on campus at least three days a week, to serve as a borough councilman, to participate in family and social outings, and to work during the weekends on department projects. The court found that Lloyd was not disabled as required under the ADA because his ability to serve as a public official, to work, and to participate in social events negated his claim that he was substantially limited in thinking and interacting.
Even if he had been disabled under the ADA, the court held that Lloyd would not be a qualified person with a disability entitled to protection under the statute. The court dismissed Lloyd's case, noting that "the fact that the ability to think and interact with others are prerequisites for a college professor should be self-evident." Lloyd v. Washington & Jefferson College, Case No. 07-2907 (3d Cir. June 11, 2008).
Termination Following FMLA Leave May Be Retaliation, August 18, 2008
Retaliation claims have made a comeback in 2008. The Supreme Court held earlier this year that such claims are available under Section 1981 and to federal workers under the Age Discrimination in Employment Act, even though the language of those statutes does not specifically provide for such a claim.
Does the FMLA provide for a claim of retaliatory firing, even though the language of the statute only protects individuals "opposing any practice made unlawful" by the Act? The Sixth Circuit has held that is does. Bryant v. Dollar Gen. Corp. No. 07-5006 (6th Cir. August 15, 2008). The court rejected the company’s suggested reading of the Act, stressing that it would render the FMLA a nullity. "Interpreting the [FMLA's] language . . . in a manner that would permit employers to terminate employees for taking qualifying medical leave is fundamentally inconsistent with the clear, unambiguous purpose of the FMLA," said the court.
New 2008 Bargaining Data Released By BNA , August 15, 2008
by Pat Stewart
The Bureau of National Affairs recently published a report on collective bargaining results based upon data it examined year to date ending August 11, 2008. According to BNA, the average first-year wage increase for all reported settlements was 3.6 percent, which is identical to what it was for the same period in 2007; the median first-year increase was 3.3 percent, compared with 3.2 percent in 2007; and the weighted average was 3.4 percent, compared with 2.9 percent in 2007.
Lump-sum payments provided moderate increases in those rates. According to BNA, when including lump sum payments in the calculations, the average first-year increase for all contracts this year to date was 3.9 percent, the median increase was 3.5 percent, and the weighted average was 3.6.
Complaints Of Customer Profiling Insufficient To Support Retaliation Claim, August 15, 2008
by Pat Stewart
In recent case, a U.S. District court ruled that an employee’s claim that he was terminated for making complaints that other employees were racially profiling African-American customers was insufficient to substantiate a claim for retaliation under Title VII.
The case arose when Howard Denham was fired from a Saks store after having an argument with a co-worker. He filed a lawsuit claiming that he was terminated due to his race and for having made complaints to management about other white employees racially profiling African-American customers. With respect to the latter, Saks argued that the retaliation claim could not be pursued because Denham’s complaints were not about an “unlawful employment practice” but instead about Saks’ practices towards its customers.
The district court reviewed the anti-retaliation language in Title VII and noted that it is “an unlawful employment practice for an employer to discriminate against any of his employees...because he has opposed any practice made an unlawful employment practice”. It further noted that Section 2000e-2(a)(1) of Title VII states that it is “an unlawful employment practice for an employer...to discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual’s race, color, religion, sex, or national origin.”
The court ruled that Denham’s claim was not actionable because Title VII focuses on how an employer treats its employees, not on how an employer treats its customers. Therefore, the court held, it was not objectively reasonable for Denham to believe his complaints concerned activity protected under Title VII as his complaints focused on Saks’s sales associates’ alleged unequal treatment of Saks’s African-American customers, not on Saks’s unequal treatment of its employees.
The case is Denham v. Saks Inc. d/b/a Saks Fifth Avenue, No. 07 C 694 (N.D. Ill, July 30, 2008).
DOT’s Proposed Urination Rule Challenged, August 15, 2008
by Pat Stewart
A number of transportation unions have legally challenged a new Department of Transportation rule that is scheduled to take effect on August 25, 2008. The new rule, "Procedures for Transportation Workplace Drug and Alcohol Testing Programs”, requires transportation workers suspected of tampering with their specimen, as well as workers who previously tested positive for a prohibited drug, to produce their urine specimen while a specimen collector watches. Those subject to observation will soon be required “to raise their shirts, blouses, or dresses/skirts, as appropriate, above the waist and lower their pants and underpants to show the observer, by turning around, that they do not have a prosthetic device on their person."
The lawsuit, filed in federal court in the District of Columbia, claims that the rule is in violation of the Fourth Amendment's protection against unreasonable searches, that it is arbitrary and capricious, and that it was promulgated without regard to the notice procedures set forth in the Administrative Procedure Act.
Montgomery County Transgender Law Update, August 15, 2008
The Maryland Court of Appeals has agreed to hear a challenge to the Montgomery County referendum on transgender discrimination, which is slated to go to a vote in the County on November 4. Jane Doe, et al. v. Montgomery County Board of Elections, No. 288 (Md. 2008).
Last year, the County Council passed legislation prohibiting discrimination against transgendered individuals in employment, public accommodations, housing and cable-television and taxicab service. A petition drive by a group called Maryland Citizens for a Responsible Government, sought to place the issue on the ballot as a referendum in the November election. The transgender-rights group Equality Maryland then sought to challenge the referendum, claiming that many of the signatures on the petitions were incorrectly obtained, but Montgomery County Circuit Judge Robert A. Greenberg held that the group missed the deadline to challenge the referendum. An appeal followed, but the Court of Appeals took the case from the Court of Special Appeals had a chance to hear it.
The Court of Appeals will hear the case on September 8, and a decision is expected before Election Day.
Yes, Virginia, Overt Discrimination Is Still Out There, August 15, 2008
Fortunately, after 43 years of Title VII protections, it is now an exceptionally rare circumstance in which there is direct evidence of discrimination. Nevertheless, there are still instances in which an employer’s comments lead to the unmistakable conclusion that illegal considerations probably played some role in an employment decision. Denying the employer’s motion for summary judgment in EEOC v. Starlight LLC, No. CV-06-3075-EFS (W.D. Wash. August 4, 2008) the court held that a restaurant owner's comments about the head scarf worn by an African-American Muslim employee provided direct evidence that the owner's refusal to let the employee work as a waitress violated Title VII. When the African-American employee asked to work one of the more lucrative shifts at the restaurant, she was told that she would have to wait, while other white employees who had been there less time got the shifts. When pressed, the owner said that she preferred "hot white girls" to work during dinner and cocktail hours. The owner also had problems with the head scarf, asking "[s]o what's the deal with the thing on your head?", allegedly asking if she could "wear a fancier headdress", and saying that she did not understand "the whole Muslim thing." The owner insisted she was not a bigot, but simply did not think that "the head dress and her being Muslim. . . is what we want in the bar."
Cooperation Essential When Employees Want FMLA Leave, August 15, 2008
The FMLA was designed to provide a balance between workplace and personal health or family obligations. Part of this balance requires that both employers and employees work together to ensure that the Act’s rules are followed. When an employee refuses to cooperate in providing necessary documentation and later complains that she was denied leave, a negative reaction from the court to her claim is not surprising This happened to Janet Ridings in her claim against Riverside Medical Center. See Ridings v. Riverside Med. Ctr., No. 06-4328 (7th Cir. August 11, 2008).
Ridings was fired after she failed to comply with her employer's repeated requests for medical documentation of her need to work a reduced schedule. Upholding the lower court’s dismissal of her claim the Seventh Circuit said that Ridings failed to show that the Medical Center’s request for further medical documentation of her need for FMLA leave after she submitted a doctor's note was either unlawful interference or retaliation for her reduced hours at work following thyroid surgery. When she returned from the surgery, Ridings began to regularly to leave work early, although she never formally requested FMLA leave. Ridings claimed that she brought work home with her so she wasn’t working a "reduced" schedule. Her employer told her, repeatedly, that she must begin working eight hours on site or submit medical documentation for FMLA "intermittent" leave. Ridings provided a doctor's note but nothing more. Following three written warnings and a three-day suspension, Ridings was fired. She never provided a FMLA medical certification. The court held that the Medical Center was within its rights to demand that Ridings either work an eight hour days or formally request FMLA leave. Because she did neither, the Medical Center's decision to terminate her did not violate the FMLA.
Court Enforces FMLA Benefits Based On Language In Handbook, August 5, 2008
by Eric Paltell
Many employers explain their Family and Medical Leave Act ("FMLA") policies in employee handbooks. In fact, the FMLA requires that employers publicize such policies in writing. However, a recent decision from the United States Court of Appeals for the Seventh Circuit highlights the dangers of describing an FMLA policy in an employee handbook.
Under the FMLA, employees are eligible to take leave only if they have worked 1,250 hours in the 12 months preceding their request for leave. Additionally, the employee must be employed at a work site which has 50 or more employees within a 75 mile radius. In the recent case of Peters v. Gilead Sciences, Inc., 7th Cir. No. 06-4290 (July 14, 2008), the employer described its FMLA policy in an employee handbook. Although it included the 1,250 hour/12 month language, it did not mention the 50 employee within a 75 mile radius limitation.
One of Gilead's employees, Steven Peters, requested FMLA leave, and he was sent a letter which incorporated the language from the employee handbook. Subsequently, Gilead decided to replace Peters with another employee. When Peters challenged the decision, alleging it was a violation of the FMLA, the employer defended on the grounds that Peters was not eligible because he did not work at a site that had 50 employees within a 75 mile radius.
The Court rejected Gilead's defense. The Court found that the company has effectively made a promise to employees that they would be eligible for FMLA leave if they met the 1,250 hour/12 month test, and made no mention of the 50/75 limitation. Therefore, because Peters legitimately relied upon the representations in the handbook and the letter, the employer was obligated under principles of contract law to give him the leave to which he would be entitled under the terms of the policy.
House Passes Paycheck Fairness Act, August 5, 2008
by Eric Paltell
On July 31, 2008, the United States House of Representatives approved the "Paycheck Fairness Act." The law amends the Equal Pay Act ("EPA") to revise remedies, increase penalties, and allow plaintiffs to seek unlimited compensatory and punitive damages. The new law would, among other things:
- facilitate class action lawsuits;
- lift the cap on compensatory and punitive damages, even in cases of unintentional pay disparities;
- prevent employers from retaliating against employees who disclose or discuss their wages with other employees; and
- prohibit certain employer defenses for pay disparities.
The Paycheck Fairness Act is a response to the Supreme Court's May 2007 decision in the Ledbetter v. Goodyear Tire & Rubber Co., which placed limits on the time frame within which individuals can file lawsuits alleging claims of unequal pay. Legislation which would have expanded the time frame within which to file such claims died in the Senate in April 2008, but is expected to be reintroduced.
A companion bill to the Paycheck Fairness Act was introduced in the U.S. Senate by Senator Clinton earlier this year. If it passes the Senate, President Bush has promised to veto the legislation. Nevertheless, with the change in the White House January and a likely change in the make up of Congress following the November elections, the Paycheck Fairness Act may very well become law within the next year..
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