Only Claims Investigated by EEOC Can Be Heard In Federal Court, December 28, 2001
An actress who alleged that she was terminated from a touring theater company because of her mental disabilities stemming from incestuous relations, may not proceed with additional ADA claims including the failure to reasonably accommodate her disability. Rohan v. Networks Presentation LLC, No. JFM-01-CV-1749 (D. Md. Dec. 3, 2001).
When Tess Rohan was terminated from her job as an actress, she filed a charge with the EEOC alleging violations of the ADA as well as sex discrimination. She subsequently received a right-to-sue letter and filed suit in the United States District Court for the District of Maryland asserting, among other things, violations of the ADA and failure to reasonably accommodate her disability - a claim that she failed to mention to the EEOC.
The Court said that Rohan failed to exhaust administrative remedies when she did not allege failure to accommodate in her EEOC charge. Ironically, even though she alleged that he employer failed to accommodate her, she later contradicted herself in a personal narrative to the court by saying that she did not need accommodation, and in fact, she "performed [her job] better than those around [her]."
Fired Male Coach at Smith College Receives $1.65 Million Verdict for Age, Sex Bias, December 26, 2001
Bruce M. Luchansky
Is it unreasonable for an all-girls' school to prefer to hire a woman, rather than a man, to coach its female sports teams? If the preference is based on the mere fact that she is a woman, then apparently so. When a male basketball and soccer coach at all-women's Smith College was fired in 1997 and replaced by a younger woman, the male coach sued the college for sex and age discrimination. A Massachusetts jury now has awarded him $1.65 million, finding that sex and age bias played a role in his 1997 termination. Babyak v. Smith College, Mass. Super. Ct., No. 99-204, jury verdict 12/17/01.
This case reinforces the most fundamental principle in employment law -- employment decisions must be based exclusively on merit. Smith College made the mistake of predetermining that it wanted to hire a young female coach and set out to find a qualified person to fill that position. Instead, Smith College should have set out first to find a qualified person of any age or gender to fill its coaching position. Interviews should honestly screen candidates based on their qualifications, and the best candidate should be chosen. This Massachusetts jury clearly wanted to send a message that prejudging a candidate's qualifications based on protected classifications will not be tolerated.
Study Shows Younger Workers Stay in Workforce Longer, December 21, 2001
A study conducted by the Labor Department's Bureau of Labor Statistics found that youths who start working in their early teenage years tend to continue working as they get older at a higher rate than their peers who lack early work experience. For example, of those who worked at age 15, 90% worked at 16, and of those who worked at age 16, 91% worked at 17, the survey found. Overall by age 17, 83% of youths worked.
The study revealed that race and Hispanic origin made a difference in the employment rate among youths. For example, it found that while 45% of 15-year-old whites were employed, only 27% of blacks and 28% of Hispanics the same age were also employed. The study also showed that black and Hispanic teens worked fewer weeks annually than their white counterparts. It found that at age 17, white youths worked 35 weeks a year, while black youths averaged 28 weeks a year and Hispanic youths averaged 30 weeks a year.
The survey consisted of a nationally representative sample of 8,984 males and females who were between the ages of 12 and 16 on December 31, 1996. The full report is available on the DOL's website at http://stats.bls.gov/news.release/nlsyth.nr0.htm.
Protected Activities Trump Nasty Language and Lying, December 20, 2001
In an unpublished decision, a federal appeals court has affirmed a decision of the NLRB that an employee who called his supervisor "a ***king liar," lied himself, and refused to wait for an answer to his question about whether leave is entitled to reinstatement and back pay. The court agreed that the employee's misconduct was not bad enough to warrant termination in light of his protected activities. What were those activities? Repeatedly asking supervisors about his leave rights under a union contract during his 120-day probationary period. Union Carbide Corp. v. NLRB, No. 00-2135 (4th Cir., December 14, 2001).
Remember, employees who complain or constantly question workplace policies may be engaged in protected concerted activity under the National Labor Relations Act. There is a fine line between insubordination and the exercise of rights under the NLRA. The employee in this case had the right to question policies, even if he knew his supervisors were getting angry, and the decision to terminate his employment based on his persistence was improper. Incredibly, his misconduct in calling his supervisor a liar and lying himself did not remove that protection.
DOL to Allow Employers to Submit Electronic LCAs for H-1B Non Immigrants, December 19, 2001
Bruce M. Luchansky
The Department of Labor's Employment and Training Administration (ETA) has issued a final rule that permits employers to submit labor condition applications (LCAs) for H-1B temporary foreign workers electronically, via web-based forms and instructions. The new rule becomes effective January 14, 2002. Currently, employers may submit LCAs only by fax or by mail.
Obtaining DOL approval of the LCA is a precondition to submitting an H-1B Petition for a Nonimmigrant Worker to the INS. By permitting electronic filing, DOL will simplify and expedite this step of the H-1B process. The ETA estimates that in the upcoming year, it will receive 7,000 hard copies by mail, 123,000 hard copies by fax, and 130,000 LCAs electronically. Employers who wish to use the new filing procedure will be able to obtain the necessary forms and instructions on the Internet at http://www.lca.doleta.gov.
Employer Sued For Discontinuing Accommodation, December 18, 2001
A federal court in Minnesota held that a worker whose employer accommodated her bad back for over ten years by permitting her to work a part-time schedule can sue her employer for terminating her after it refused to continue the accommodation. Larson v. Seagate Tech. Inc., No. 00-2507 (D. Minn. Dec. 11, 2001).
Patricia Larson had lumbar degenerative disc disease which prevented her from working more than six hours a day. In 1988, as an accommodation, her employer permitted her to work a six-hour shift instead of an eight hour shift. Even when the employer converted the employees' schedules from eight to twelve- hour days in 1994, Larson was still permitted to continue working six hours a day.
Suddenly, however, in 1999, her employer informed her that it was no longer able to accommodate her reduced hours and placed her on a leave of absence. She was also told to produce a medical release from her doctor stating that she was able to work a full twelve-hour day, or else she would be fired. After her termination, Larson brought a complaint in federal court.
The District Court held that her employer was not entitled to summary judgment. The Court was concerned that working a full twelve-hour day may not have been an "essential function" of Larson's job since the employer permitted her to work part-time for over ten years without suffering any"undue hardship." This case will most likely be decided after a trial.
State Employment Law Does Not Cover Employee Working in Another Country, December 18, 2001
Advice to plaintiffs: make sure before bringing a suit under a state law, that you are covered by the state law. For two years, Othmar Burghard, a senior accounting manager for a Texas company, lived and worked in Chile. He requested FMLA leave, to begin when his project in Chile ended. When he started his FMLA leave, Burghard moved to California. When his leave ended, however, Burghard was told that no work was available. He sued his employer under the California Family Rights Act. Burghard v. Fluor Daniel Inc., No. G025875 (Cal. Ct. App., Dec. 11, 2001).
Because the California regulation provides that employees who avail themselves of this law must be "full or part time employee[s] working in California," the Court held that Burghard was not covered by the law. The court affirmed summary judgment for the employer, ruling that the regulation covers only employees who are working in California when the request for leave is made.
Religious Accommodation Does Not Extend to Proselytizers, December 18, 2001
A federal appeals court has dismissed the claims of two employees who were fired by a state agency for trying to convince other employees to accept their form of "born-again" Christianity. The employees claimed that their right to proselytize was protected by the First Amendment. The court, however, disagreed, finding that the efficiency of the agency would be affected by the employees' constant efforts to convert other employees and the clients of the agency. Consequently, First Amendment interests would have to take a back seat.
Of interest to private employers is the court's finding that there is no obligation under the Civil Rights Act of 1964 to accommodate activities such as this. While there is an obligation to find reasonable accommodations for religious beliefs and practices, the employees were not engaged in religious practices. Attempts to convince others to embrace a religious philosophy is not protected activity.
Drug Abuser Given Unemployment Benefits, December 14, 2001
A state appeals court in Missouri has ruled that mere drug abuse does not constitute grounds for denying a discharged employee unemployment benefits. Absent evidence that the drug abuse impaired work performance, the court ruled that the drug abuse was not job-related. Baldor Electric Co. v. Reasoner, No. ED79597 (Mo. Ct. App., December 11, 2001).
One judge dissented, stating quite correctly that violation of a reasonable substance abuse policy is misconduct that should disqualify an employee from unemployment benefits. We are hopeful that other states will not follow suit. The court's decision seems to condone drug use that does not impair job performance. That is probably not what the legislature intended when it adopted the unemployment compensation disqualification rules.
Intel Granted Injunction Against Former Employee For Unsolicited E-mails, December 14, 2001
A California Court of Appeals affirmed a permanent injunction against a disgruntled former Intel employee, prohibiting him from sending unsolicited mass e-mails to Intel employees. Intel Corp. v. Hamidi, No. C033076 (Cal. Ct. App. Dec. 10, 2001).
On six different occasions, Kourosh Kenneth Hamidi sent e-mails to approximately 29,000 Intel employees, clogging up the computer system and causing lost productivity among the workers who read and responded to the communication. Before seeking the injunction, however, Intel sent Hamidi a letter demanding that he stop sending the e-mail messages. Hamidi refused and even took steps to evade Intel security measures to send more e-mails. As a result, Intel was forced to seek a permanent injunction against him.
Intel proved that Hamidi committed "trespass to chattel," the intentional using or intermeddling with a chattel in the possession of another. The court relied on an Ohio case to grant the injunction, which determined that electronic signals generated and sent by a computer are sufficiently tangible to support a trespass case. See CompuServe Inc. v. Cyber Promotions Inc., 962 F.Supp. 1015 (S.D. Ohio 1997).
Union Strike Victory?
December 12, 2001
The United Steelworkers had good news for its members at the Titan Tire plant in Natchez, Mississippi - their three year strike was over just in time for Christmas. They received an immediate $.80 per hour raise, and $2.80 over five years. There is only one glitch – the plant has been closed since April. The strikers can apply for unemployment benefits, but they have not worked for three years, so that may be a fruitless exercise. Maybe they can wrap a copy of the contract settlement and put it under the tree for their loved ones to enjoy.
New England Salesman Required to Arbitrate Claims in California, December 10, 2001
Kenneth Klinedinst worked as a salesman for Tiger Drylac, a company headquartered in California. After Klinedinst was terminated, he filed a complaint for age and national origin discrimination with the New Hampshire Commission for Human Relations, received a right-to-sue letter, and then sued his employer in a New Hampshire federal court. Klinedinst v. Tiger Drylac, U.S.A., Inc., No. CV-01-040-M (D. N.H., Nov. 28, 2001).
Soon thereafter, Tiger Drylac filed a motion to compel arbitration based on an employment agreement that Klinedinst executed approximately ten years earlier. The agreement stated that all disputes arising from the employment relationship would be submitted to binding arbitration and that any proceedings undertaken to enforce the contract would occur in California.
The United States District Court for the District of New Hampshire granted the employer's motion to compel arbitration and ordered Klinedinst to arbitrate his discrimination claims in California, despite Klinedinst's argument that doing so would cause him financial hardship. The court reasoned, simply, that Klinedinst understood that arbitration would have to take place in California when he signed the agreement.
Competitor Can Be Sued for Racketeering, December 4, 2001
A federal appeal's court has reinstated a lawsuit filed by one cleaning company against the other for racketeering under the same law that is used against organized crime. The company being sued had hired numerous illegal aliens in violation of immigration laws, and used the illegal labor to underbid contracts. The cleaning company that lost those contracts sued under the racketeering statute.
The federal appeals court for the Second Circuit is allowing the lawsuit to go forward. Commercial Cleaning Services, LLC v. Colin Service System Inc., No. 00-7571 (2d Cir., November 15, 2001). This case gives competitors another reason to sue when disappointed over losing a contract.
By Continuing to Work, Employee Agreed to Binding Arbitration, December 4, 2001
Eddie Hightower was a restaurant manager for the Olive Garden restaurant in North Carolina. During his employment, he attended a meeting where employees were informed that a new dispute resolution program (DRP), ending in binding arbitration, would be implemented to handle employee complaints, including discrimination claims. Hightower signed an attendance sheet for the meeting, acknowledging that he attended and received materials about the program.
Hightower continued to work as a manager for three more months before he was terminated. Shortly later, Hightower brought a claim for race and religious discrimination. At first, he complied with the DRP by voluntarily submitting his claims to the mediation process. When no settlement was reached, however, Hightower declined to proceed to arbitration. Instead, he filed discrimination charges with the EEOC, and later sued the Olive Garden's parent company in federal court.
When the Federal District Court Judge declined to compel arbitration on the grounds that Hightower assented to the DRP process, the company pursued an interlocutory appeal to the Fourth Circuit. The Fourth Circuit held that because "[Hightower] had actual notice of the DRP and knew that his assent to the DRP was a condition of continued employment with [the company]," he was bound by its terms. Hightower v. GMRI Inc., No. 01-1302 (4th Cir. Nov. 14, 2001). The Court also found it telling that he initially submitted his discrimination claims to mediation under the DRP. The Fourth Circuit concluded by ordering the district court to stay its proceedings and compel arbitration of Hightower's discrimination claims.
Supreme Court to Decide Whether Age Act Allows Disparate Impact Claims, December 4, 2001
There are two major ways of proving discrimination under the Civil Rights Act of 1964 – disparate impact and disparate treatment. Disparate treatment cases usually involve evidence that an employee in a protected class (race, sex, etc.) was treated differently than an employee in an unprotected class. For example, there is evidence that a black employee was fired for 4 absences while a white employee with 5 absences remains, without any nondiscriminatory explanation.
Disparate impact cases, however, involve otherwise neutral job requirements that have a disproportionate impact on a protected group. Height requirements may exclude Asians and women, educational requirements may exclude African Americans, and so on and so forth. If such a requirement has a disparate impact, the employer must demonstrate that the requirement is a business necessity. Otherwise, discrimination is proven.
The Supreme Court has agreed to decide whether otherwise neutral selection criteria can be challenged because they adversely affect older workers. Adams v. Florida Power Corp., No. 01-584, cert. granted, (Dec. 3, 2001). Currently, four circuit courts have rejected disparate impact under the ADEA, while three have allowed employees to maintain such cases.
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