Age Harassment Claim Under ADEA Permitted to Proceed in Illinois, January 23, 2002
Bruce M. Luchansky
Until recently, claims of "hostile environment" discrimination have related only to claims of sexual harassment. In recent years, various federal courts have considered without deciding whether employees may file claims of age discrimination under the Age Discrimination in Employment Act (ADEA) based on allegations of a hostile working environment. Now, the United States District Court for the Northern District of Illinois has ruled that hostile environment claims based on age may be filed under the ADEA in the same way that such claims based on sex may be filed under Title VII.
In Alexander v. CIT Technology Financing Services Inc., No. 01 CV 7217 (N.D. Ill. 1/18/02), the District Court found that the purposes of Title VII and the ADEA are sufficiently similar to justify permitting claims of age harassment under the ADEA. The court further justified its decision by claiming that there was no binding precedent that rejected such a finding: "There has been no indication -- in the Seventh Circuit or elsewhere -- that such a claim is not cognizable," the court found, other than one federal district court decision in Virginia.
Office of Management and Budget to Review FMLA and Other DOL Regulations, January 17, 2002
Bruce M. Luchansky
A recently published list of federal regulations that the Office of Management and Budget believes are burdensome and should be reviewed by the Bush administration includes several key Labor Department rules opposed by the business community. Among the rules to be reviewed are the FMLA regulations that relate to recordkeeping and notification requirements. In fact, these FMLA regulations are among 23 federal rules identified on the list as "high priority regulatory policy issues."
Another regulation targeted for "high priority" review is a troublesome FLSA rule that discourages employers from offering bonuses because it requires that they be calculated into regular rates of pay.
Although the OMB emphasizes that the inclusion of a regulation on OMB's list of high priority review items does not necessarily mean the regulation will be changed by the Bush administration, it is nevertheless encouraging to see that a slate of misguided regulations will receive a second look.
Courts Continue to Reject FMLA Regulations, January 16, 2002
Bruce M. Luchansky
One of the regulations issued by the Department of Labor to implement the Family and Medical Leave Act continues to come under fire by the courts. One of those regulations states that if an employer intends to count an employee's leave as FMLA leave, the employer must declare that the leave is "FMLA Leave." According to the regulation, if the employer fails to tell the employee that his or her leave is "FMLA Leave," then the employer cannot count the time taken toward the employee's 12-week FMLA entitlement. The result is that the employee would receive both the leave that already was taken and the full 12-weeks of FMLA leave available under the statute.
Recently, a federal court in Puerto Rico joined the growing list of courts that have rejected this regulation. In Caraball v. Puerto Rico Telephone, Inc., No. 01-1003 (D.P.R. Dec. 12, 2001), the court stated that the FMLA statute allowed employees to receive only 12 weeks of unpaid leave, and that the DOL Regulation impermissibly extended that benefit. "Congress clearly did not intend to confer upon ineligible employees such a windfall as a matter of law or equity, nor did Congress intend to extinguish the employer's defense without any basis in legal principle," the court said.
Certainly, employers should continue to communicate with their employees as clearly as possible about whether their requested leave qualifies as FMLA leave, and whether the leave will be counted toward the employee's 12 week entitlement. Failure to do so, however, is not fatal, and an employer generally will be able to designate FMLA leave retroactively.
Supreme Court Does Not Waffle on Rights of EEOC, January 16, 2002
The Supreme Court has ruled that despite an agreement between the employer and a disabled employee to arbitrate disputes between them, the Equal Employment Opportunity Commission retains the right to sue the employer on behalf of the employee under the ADA. In other words, the EEOC has more rights than the employee himself. Unless the EEOC is a party to an agreement, it is not bound by agreements between employers and specific employees. EEOC v. Waffle House Inc., No. 99-1823 (USSCt. January 15, 2002). The Court's decision was 6 to 3.
Supreme Court Severely Limits Americans With Disabilities Act, January 8, 2002
In an unanimous decision, the U.S. Supreme Court has narrowly defined "disability" under the ADA. Specifically, to constitute a protected "disability," a physical impairment must prevent the employee from doing normal activities outside the workplace, not just his job. In other words, an impairment must affect ordinary activities like walking, personal grooming, fixing food, and so forth to qualify as a disability requiring accommodation by the employer.
The Court has, it believes, gone back to the true intent of Congress when it passed the ADA – protection of persons with disabilities that affect significant life functions, not just specific tasks. At the time the ADA was passed, Congress was concerned about persons who could not see, walk, and hear, not people with medical conditions that had limited impact on their lives.
Employee Has No Right To Consult Lawyer Before Signing Receipt of Performance Warning, January 4, 2002
by Thomas A. Bowden
An employee who refuses to sign a performance warning report because she wants to consult a lawyer first cannot sue her employer for wrongful discharge, a Maryland appeals court has ruled.
During a performance review, Deborah Porterfield was handed a written review stating that she would be discharged unless she showed "marked improvement" and reciting the employer's criticisms. Porterfield took the document home, concluded there were falsehoods in it, and decided to seek a lawyer's advice before signing. When she conveyed this position to her employer the next day, she was fired.
Porterfield sued for wrongful discharge, which in Maryland requires that the employer engage in "particularly reprehensible" conduct that violates a clear mandate of public policy, usually found in a statute. But in this case, the "general right to consult counsel" was not enough to form the basis for a wrongful discharge claim. The trial court dismissed the complaint, and the appeals court affirmed. Porterfield v. Mascari II, Inc., No. 379 (Md. Ct. Spec. Apps., Jan. 3, 2002).
HIV-Positive Dental Hygienist Fired; Deemed Threat To Patients, January 2, 2002
The Eleventh Circuit held that a Georgia dental practice did not violate the ADA by discharging a HIV-Positive hygienist. Waddell v. Forge Dental Assocs. Inc., No. 00-14896 (11th Cir. Dec. 21, 2001).
In 1997, Spencer Waddell tested positive for the HIV virus. His doctor notified the dental practice of Waddell's test results and he was immediately placed on leave. After consulting the Centers for Disease Control and reviewing various dental journals, the practice informed Waddell that he could not longer treat patients and offered him a clerical position.
Waddell sued in Federal Court and lost on summary judgment. On appeal, the Eleventh Circuit affirmed the ruling in favor of the employer, finding that Waddell's HIV-status made him a "direct threat" to others because there was a likelihood that Waddell could transmit his HIV to a patient. The ADA defines "direct threat" as "a significant risk to the health or safety of others that cannot be eliminated by reasonable accommodation."
The practice argued successfully that the use of sharp instruments, routine patient bleeding, the risk that a hygienist would be stuck while using an instrument, and the possibility of an inadvertent bite or other accident during cleaning posed a significant risk to others in the workplace. The court concluded that Waddell was not a qualified individual with a disability under the ADA and therefore no reasonable accommodation was available.
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