Fired Supervisor Has ADA Claim, May 31, 2001
A federal appeals court has held that firing a supervisor for accommodating a disability under the ADA was grounds for a lawsuit by the supervisor. The court upheld an award of compensatory and punitive damages, even though the supervisor herself was not disabled.
Inability to Drive Not a Limiting Major Life Activity, May 21, 2001
The federal appeals court for the
Eleventh Circuit has held that the inability to drive to work does not qualify
as an impairment substantially limiting a major life activity under the ADA.
Chenoweth v. Hillsborough County, 11th Cir., No. 00-10691, May
10, 2001). Charlotte Chenoweth, a nurse, suffered a seizure in 1997 and was
diagnosed with focal onset epilepsy. While her ability to perform her regular
job was not affected, she was not permitted to use a stove, bathe unattended, or
drive for six months.
Although Chenoweth argued that her inability to drive substantially limited her ability to work, she failed to produce any evidence that she was unable to perform her job or that she was regarded as disabled. The Court concluded that even though we are an automobile society and an automobile economy, it is not entirely farfetched to promote driving to a major life activity. However, because millions of Americans do not drive, the deprivation of being self-driven to work is conspicuously different in character from life activities such as walking, seeing, hearing, speaking, breathing, learning and working.
Sexual Orientation Bias Added to List in Maryland, May 17, 2001
Maryland has become the 12th state to bar discrimination based on sexual preference. Religious organizations, however, are exempt from the restriction.
Employers Must Cite Specific Reasons for Termination, May 16, 2001
The U. S. Court of Appeals for the Third Circuit recently ruled that an alcoholic's claim of discrimination under the Americans with Disabilities Act (ADA) could proceed simply because the employer failed to sufficiently explain the reason for his discharge. Smith v. Davis, 3d Cir., No. 00-3268.
The employee, Rodney Smith, was a probation officer for Luzerne County, Pennsylvania. Smith began to make excessive use of his sick leave, leave work early, and receive complaints from coworkers that he smelled of alcohol. Eventually, Smith was terminated. Luzerne County ( the "County") simply cited a violation of its drug and alcohol policy as the reason for Smith's termination. The trial court granted summary judgment because, in keeping with the prevailing interpretation of the ADA, it found that "an employee who does not come to work on a regular basis is not 'qualified,' and an employer is not obligated to accommodate absenteeism attributable to alcoholism." The Third Circuit agreed that an employee who does not come to work regularly is not qualified under the ADA, but found that summary judgment in this particular case was not warranted because some of the facts surrounding Smith's dismissal (i.e., whether he missed some days or left early from work) were in dispute. The Third Circuit reasoned that although it appeared that the County fired Smith for absenteeism, that particular reason was never specifically provided as the reason for termination. The Court reasoned that by only telling Smith he had violated the drug and alcohol policy, the County "did not tell Smith what he did to bring about his termination," and the reason as presented was not legally sufficient to entitle the County to prevail as a matter of law.
The morale of the story for employers is clear: provide specific reasons when terminating an employee. Simply citing "a violation of 'X' policy" is not enough. Give the policy the employee violated, but more importantly, provide the manner in which the policy was violated and the actions which support the decision to terminate the employee.
Depression, - Not Limiting Under the ADA, May 14, 2001
The Eighth Circuit recently held that a locomotive engineer with chronic depression was not qualified under the ADA because she was not substantially limited enough in performing the life activities of social interaction and work. Cooper v. Olin Corp., No. 00-1465 (8th Cir. May 1, 2001).
When Linda Cooper returned to work from a leave of absence attributed to depression, Olin officials refused to return her to her engineer position without more documentation. Cooper claimed that she suffered from depression for 30 years and was significantly limited in the major life activity of social interaction in comparison to the general population. She argued that her depression sometimes forced her to do the minimum necessary for survival, she cried more than the average person, and was usually fatigued. Nevertheless, the Court found Cooper not substantially limited in the major life activity of social interaction because she had been married, raised a family, maintained regular contact with family members, visited friends and talked to people in public.
Employer Cannot Establish Affirmative Defense If Cannot Demonstrate It Has Sexual Harassment Policy, May 5, 2001
A federal appeals court has held that an employer failed to establish an affirmative defense to a sexual harassment claim because it could not show what its harassment policies were or whether they were adequately disseminated. To establish an affirmative defense, the Ninth Circuit held that an employer must show that, first, it exercised reasonable care to prevent and promptly correct the harassing behavior, and second, that the employee unreasonably failed to take advantage of any preventive or corrective opportunities or to otherwise avoid them. The court explained that an employer does not always have to demonstrate that it had a formal sexual harassment policy to meet its burden, and that a formal sexual harassment policy will not automatically satisfy its burden.
Fourth Circuit Confirms Binding Arbitration Agreements Are Enforceable, May 4, 2001
In Safrit v. Cone Mills Corp., No. 99-2677 (4th Cir. 2001), the Fourth Circuit Court of Appeals reaffirmed that an agreement to arbitrate statutory claims is part of the "natural tradeoff" that a union must make in exchange for other benefits. The Court upheld, as enforceable, a collective bargaining agreement that subjected sex discrimination claims to binding arbitration where only the union, and not the employee, had the exclusive option to proceed to arbitration. Relying, in part, on the 1998 Supreme Court decision in Wright v. Universal Maritime Serv. Corp., 525 U.S. 70 (1998), the Fourth Circuit held that the contract, which stated that unresolved grievances arising under the no discrimination clause were the proper subjects for arbitration "indubitably provides . . . a clear and unmistakable waiver. Indeed, it is hard to imagine a waiver that would be more definite or absolute."
OSHA Turns 30, May 3, 2001
The Occupational Safety and Health Administration turned 30 years old last week, and the Secretary of Labor was grilled by anti-business Senators about when we can expect a new Ergonomics standard. The Clinton-era standard was rescinded shortly after George W. Bush became President. The President, in another pro-employer move, has nominated Eugene Scalia to be Solicitor of Labor. Scalia, the son of Supreme Court Justice Antonin Scalia, will be responsible for enforcement of many labor laws, including OSHA. Scalia was a vocal critic of OSHA during the Clinton Administration.
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