EEOC Head Sets Agenda, November 30, 2001
Cari Dominguez, a former high-ranking Labor Department official tapped by President Bush to head the EEOC, has set an agenda that may seem to some as more employer- friendly than the initiatives of her predecessor, Ida Castro. Speaking to employment attorneys in Washington on November 29, Dominguez discussed a five point plan of general priorities for the Commission. She also spoke of two specific concerns: coming up with a revised definition of the term "job applicant" and identifying new racial and ethnic categories on EEO reporting forms.
The Commission's five point plan addresses:
- Prevention -- The Commission will focus on outreach, technical assistance, and voluntary compliance, with an aim to achieve broader compliance with policies already in force.
- Prompt Resolution of Charges -- As anyone who has dealt with the EEOC knows, charges sometimes take years to resolve. Here, the Commission plans to develop a data system that consolidates all charge activity, from filing through investigation. The Commission will continue its priority charge processing procedures.
- Expanded Mediation -- The Commission intents to continue to use internal staff mediators, and restore the use of external mediators.
- Strategic Litigation and Enforcement -- Concerned that the EEOC has not engaged in enough "partnering" between its compliance and litigation arms, Dominguez intends to bring Commission attorneys into the process at an earlier stage.
- Improved Internal EEO -- The Commission intends to do a better job of policing itself in the area of equal employment opportunity. It will look to incorporate at the agency the standards that it promotes to all employers, in mediation, reduction in the backlog of charges, and other areas.
The Commission is revising the all but obsolete 1978 Uniform Guidelines on Employee Selection Procedures' definition of "job applicant," as the result of a directive from OMB. The Uniform Guidelines define "applicant" as a "person who has indicated an interest in being considered for hiring, promotion, or other employment opportunities." In the world of e-commerce, this definition could be (and has been by the OFCCP) interpreted to include anyone who applies for a job over the Internet, regardless of his or her qualifications. Dominquez stated that the Commission is working closely with DOL and other stakeholders in developing a new definition.
The Commission also is reviewing the racial and ethnic categories under its various reporting forms. The new reporting system is expected to be in place by 2003, and will take the current nine categories and reduce them to five racial and two ethnic categories.
Federal Court Orders OSHA to Speed Up No-Smoking Rules for Workplace, November 28, 2001
In 1994, the Occupational Safety and Health Administration issued a proposed rule on "indoor air quality" that would have banned smoking in most workplaces. Although the agency received over 10,000 comments, no action has been taken on the proposed rule.
A federal appeals court has ordered OSHA to create a timetable for finishing the rulemaking process by December 13, 2001. While this does not mean a final rule will be issued anytime soon, it does move the country one step closer to banning smoking in most workplaces.
Maryland already has a comprehensive ban on smoking in the workplace, as do other states. Obviously, the issue has compassionate supporters on both sides, and questions like this need to be answered: "Should the ban cover employees who work in tobacco shops?"
Forklift Operator Fired After 12 Accidents in 3 Years, November 27, 2001
Despite allegations that he was fired because he suffered from post-traumatic stress disorder, Leonard E. Hewitt was lawfully terminated because he was responsible for causing more than twelve accidents in three years. Hewitt v. Alcan Aluminum Corp., No. 99-CV-1486 (N.D.N.Y., Nov. 8, 2001).
Hewitt claimed that he suffered from post-traumatic stress disorder when he did not take his medication, which substantially limited his major life activity of working under the ADA. He alleged that his employer was aware of his disorder and terminated him because of it.
The employer argued, and the court agreed, that Hewitt was not disabled under the ADA because "a plaintiff who does not avail himself of corrective medication is not a qualified individual." Tangires v. Johns Hopkins Hosp., 79 F.Supp.2d 587 (D. Md. 2000), aff'd 230 F.2d 1354 (4th Cir. 2000). The company further stated that it had a legitimate, nondiscriminatory reason for firing him. Over a period of three years, Hewitt was responsible for more than a dozen accidents which caused extensive property damage. Hewitt's last incident involved knocking over a stack of aluminum blocks and crushing a hole three feet by seven feet in a wall of the plant. He conceded that he did not take any medication or receive any treatment for his disorder for at least a year before his last accident.
"An employer is not required to wait until an employee badly injures someone or extensively damages equipment or structures to terminate an employee who exhibits work attributes that could cause an accident," the court said. The court concluded that Hewitt's dismissal for unsafe conduct was warranted.
Sexual Orientation - - Now a Protected Class in Maryland, November 26, 2001
Opponents to Maryland's legislation protecting sexual orientation have dropped their efforts to take the matter to a vote. As a result, the law became effective over the Thanksgiving weekend.
On March 25, 2001, Maryland's legislature passed the Anti-discrimination Act of 2001 (HB 315/99-JUD), which prohibits discrimination based on sexual orientation with regard to public accommodations, housing and employment. The new law is added to the other classes protected under Article 49B of the Maryland Human Relations Act (race, sex, age, color, creed, national origin, marital status, and disability). Baltimore City, Montgomery, Howard, and Prince George's counties have similar anti-discrimination laws. Until now, however, no statewide coverage existed.
"Sexual Orientation" is defined in the law as the identification of an individual who is homosexual, heterosexual or bisexual. The new law specifically is not aimed at extending domestic partner benefits to homosexuals. If an employee or applicant files a charge against an employer involving discrimination with respect to his or her sexual orientation, employers are not subject to liability under this law when they respond by taking action to verify the employee's sexual orientation.
Employers should begin taking steps to incorporate this new law into the workplace. Employee handbooks and employment applications will need to be revised. Human resources representatives, hiring personnel, supervisors, and employees should receive training to ensure that all are familiar with the new law.
Employer Request that Employee Delay FMLA Leave May Have "Chilled" His Exercise of Rights, November 20, 2001
Bruce M. Luchansky
It is difficult to accept, but it is true nonetheless. Some courts simply are going to side with the employee, no matter what.
The Sands Hotel and Casino in Atlantic City, New Jersey needed extra employees to work during Memorial Day weekend. They recalled an employee from layoff. The employee accepted -- and immediately asked for one month of FMLA leave to care for his autistic son. The casino needed employees to work that weekend and asked him to delay the start of his leave until after Memorial Day weekend. When the employee's FMLA medical certification did not state that the employee required leave for Memorial Day, the casino decided that the employee did not qualify for the requested FMLA leave. Therefore, when the employee did not report for work on Memorial Day weekend, the casino fired him.
According to a court in New Jersey, the employer's request to delay the start of the employee's leave may have been the casino's undoing. In Shtab v. Greate Bay Hotel and Casino Inc., No. 00-2122 (D.N.J. 11/13/01), the court denied the employer's motion for summary judgment, even though the employer argued that it did not fire the employee for refusing to delay his leave. The court concluded that "reasonable persons" could find that request chilled his assertion of rights, "or could conclude that Shtab's decision to take leave over the Memorial Day weekend contributed to the Sands' ultimate denial of his request."
Although the court could find no source for this proposition in the FMLA statute or its regulations, employers now must be concerned about committing a "chilling" violation under the Family and Medical Leave Act.
Workplace Pornographic Pictures Warrant Discharge, November 15, 2001
Shirley Barnes made the mistake of not only taking pornographic pictures of herself while at work, but also of keeping those pictures in her desk. Barnes v. Department of Veteran Affairs, No. 01-3223 (Fed. Cir., Nov. 7, 2001). While out on a 45-day suspension, a co-worker discovered the pictures in an envelope in Barnes's desk. The pictures showed Barnes sitting at her workstation, raising her skirt and exposing herself for the camera. The pictures were turned over to a supervisor.
When Barnes returned to work, she was discharged for conduct prejudicial to the government. Specifically, Barnes was terminated for violating 5 C.F.R. §735.203, which states that "an employee shall not engage in criminal, infamous, dishonest, immoral, or notoriously disgraceful conduct, or other conduct prejudicial to the government." Despite Barnes's arguments that the photographs did not affect her job performance, the court determined that the agency was justified in discharging her.
Former McDonald's Employee Awarded $5 Million, November 14, 2001
A jury awarded $5 million in compensatory damages to a former McDonald's restaurant manager who claimed he was forced out of his job because the corporation knew he was HIV-positive. Rich v. McDonald's, No. 98368481 (Ohio Ct. C.P., Oct. 26, 2001).
Rich, a 20-year veteran of McDonald's franchises restaurants was promoted to manage a corporate store and promised swift advancement. After being hospitalized with HIV, his supervisor did not allow him to return to work until he signed an agreement allowing McDonalds to review his medical records. Upon returning to work, he was stripped of several management duties and eventually transferred to another store. At the new restaurant, he claimed that was told that he would be limited to selling hamburgers at the front counter "for the rest of his career."
He resigned three months after his promotion, and filed a lawsuit alleging state claims of wrongful discharge and violations of public policy. A jury awarded Rich $5 million in compensatory damages, but did not include punitive damages in the award. McDonalds is considering an appeal.
Court Rejects $375,000 Award To Trooper In Family Leave Case, November 14, 2001
Last week, a divided Fourth Circuit overturned a $375,000 jury award to a Maryland state trooper who was denied "nurturing leave" because he was the father, not the mother, of his newborn. Knussman v. Maryland, 4th Cir. ( No. 99-2349, 11/7/01). When Trooper Harold Knussman's wife had a difficult pregnancy in 1994 and was confined to bed rest, he requested four to eight weeks of paid leave to care for his wife and family after the birth of his child. He was told there was "no way" he could take more than two weeks off.
Knussman then asked for leave under the Family Medical Leave Act (FMLA) and under a (then) new law for Maryland State employees that provides for paid "nurturing leave" up to 30 days for a "primary care giver." Rejecting his leave request, Jill Mullineaux, the benefits manager, told him that only birth mothers could qualify under Maryland law because "God made women to have babies and, unless [he] could have a baby there is no way [he] could be a primary care giver." His wife, said the benefits manager, had to be "in a coma or dead" for Knussman to be the primary care giver.
Knussman sued, claiming gender discrimination in violation of 42 U.S.C. Section 1983 and a violation of the FMLA. A jury awarded him $375,000, primarily for the "significant emotional damage" suffered by Knussman.
On appeal, the Fourth Circuit affirmed the violation of law, holding that application of the leave rules adhered to a standard that was "a by product of traditional ideas about a woman's role in rearing a child, which was clearly impermissible under the Equal Protection Clause of the Fourteenth Amendment," and therefore a violation of Section 1983.
Despite agreeing that Mullineaux applied the statute on the basis of a gender stereotype, the court held that the damage award was too high. Knussman did not suffer income loss, and the award was not proportional to the emotional distress caused by the constitutional violation. The Fourth Circuit has returned the case to the trial court for reconsideration of the appropriate damages.
Supreme Court Considers "Substantially Limited" Under ADA, November 13, 2001
Last week, the U.S. Supreme Court heard it's second ADA case this term. This time, the Court considered the meaning of "substantially limited" in a case of an automobile assembly line worker. Toyota Motor Mfg. Kent. Inc. v. Williams, U.S., No. 00-1089 (oral argument 11/7/01). Ella Williams was working on the assembly line at Toyota when she was unable to perform her job and other manual tasks due to her physical limitations arising from carpal tunnel syndrome and tendinitis. Williams could still do many things unrelated to assembly line work, however, and could even do other assembly work.
The Sixth Circuit 2-1 reversed summary judgment for Toyota, holding that Williams is covered by the ADA because she is substantially limited in the major life activity of performing manual tasks. "[I]n order to be disabled [Williams] must show that her manual disability involves a 'class' of manual activities affecting the ability to perform tasks at work," the appeals court said.
Toyota argues that this test for defining "substantially limited" is wrong. In oral argument, Toyota's attorney told the Court that the appeals court should have considered whether Williams was substantially limited in performing manual tasks generally and/or whether she was unable to perform a class of jobs or a broad range of jobs in various classes. Williams' attorney argued that the Sixth Circuit properly found that Williams is substantially limited in performing manual tasks, but the court erred by requiring that the impairment involve "a 'class' of manual activities affecting the ability to perform tasks at work."
A decision from the Supreme Court is expected by June 2002.
Employees of Different Rank Disciplined Differently, November 12, 2001
A black fire department Captain failed to establish that his employer violated Title VII of the 1964 Civil Rights Act by disciplining him, but not a white subordinate, after the two men engaged in a physical altercation. Watts v. Norman, No. 00-6208 (10th Cir. Nov. 5, 2001).
After a heated exchange of words, the Captain called a firefighter into his office. While in the office, a physical alteration erupted, and the captain alleged that the firefighter "viciously head butted him" and that he responded by removing the firefighter's "head from my face with my opened right hand." The Captain reported the incident to the Assistant Fire Chief and an investigation ensued. The Assistant Fire Chief recommended that both men be fired. The firefighter was not disciplined, but ultimately, the Captain resigned, and brought a suit alleging discrimination.
The Captain argued that the city's reason for firing him was a pretext for race discrimination. To show pretext, however, the captain needed to show that his subordinate was similarly situated to him. The court held that employees are not similarly situated when one is a supervisor and the other is not. "Regardless of who hit whom, [the captain] . . . escalated a situation rife with potential for violence and in fact used his position as a supervisor to do so."
Full-time Employee Must Be Able to Work Full Time, November 7, 2001
Bruce M. Luchansky
In a recent decision, a federal appeals court has held that the Americans with Disabilities Act does not protect a full-time employee who no longer is able to work full-time. DeVito v. Chicago Park Dist., No. 00-1759 (7th Cir. 2001). Although a gradual return to work is a reasonable accommodation, the ADA does not protect an injured employee who has not been able to work full-time for 13 years.
A park laborer for the Chicago Park District hurt his back in 1979 and was unable to return to his job. In 1985, he was given a "light duty" job, answering phones at an office near his home. He was told he could leave whenever he felt pain or stress. He typically left after two or three hours, although he was paid for an eight hour day.
After four years of this "light duty" arrangement, the employer saw the employee on a videotape twisting, bending, and climbing in and out of trucks. The district fired him. At an internal hearing, the employee claimed that his injury had not improved and that he could not return to any position beyond the "light duty" job. When the district refused to reinstate him, the employee sued under the ADA.
In this case, the employer prevailed. The employee was held to be bound by his contention that he could not work full-time, and he therefore was not protected by the ADA. Indeed, the Court lambasted the employee, refusing to allow him to "whipsaw his employer by first obtaining benefits or concessions upon a representation of total disability to work full time," and then seeking damages, claiming that the employer did not accommodate the disability, which the employee now says was not total after all. Although the employer in this case was compelled to spend substantial time and expense to defend against a baseless claim, at least the employer derived the satisfaction of seeing a manipulative employee being hoisted on his own petard.
Calling Employee an Independent Contractor Ruled Big Mistake, November 6, 2001
It's theoretically cheaper to call a person an independent contractor than an employee. The employer does not have to mess with taxes, overtime, workers' compensation, health insurance, and all those other pesky employee things.
On the other hand, I regularly advise my clients not to have independent contractors do the work of employees unless it is absolutely clear that the individuals are, in fact, independent. In most cases, they are not. Unfortunately, the cost of guessing incorrectly can be disastrous. Theory and practice are clearly different.
A phone company in New York just found out that an "independent contractor" it "hired" to drive executives around town in style was an employee for purposes of the Fair Labor Standards Act, the federal law dealing with wages and hours. A federal trial court found that the independent contractor acted much more like an employee, and all the legal tricks the phone company tried to use to make him look independent (like incorporating) were a sham. Gustafson v. Bell Atlantic Corp., 98 Civ. 8115 (SDNY 10/26/01). Apparently, the driver "walked like an employee, quacked like an employee, and looked like an employee," and therefore was clearly an employee duck.
The little mistake cost the company overtime, plus an equal amount in liquidated damages. Be careful when designating individuals independent contractors. In many cases, a court will have no difficulty finding them to be employees.
Employee Right to Have Coworker Present During Interview Upheld, November 6, 2001
Employees represented by a union have the right to have a shop steward present, upon request, during any interview that could result in discipline. This right, created by the NLRB and upheld by the Supreme Court, is called an employee's Weingarten right.
The NLRB, which has recently been dominated by Clinton-era appointees, extended that right to nonunion employees. Nonunion employees, according to the Board, have the right to have a coworker present during such interviews. While an employer can terminate the interview, if the employer continues, he must grant the request.
A federal appeals court in Washington has upheld the NLRB. Epilepsy Foundation of NE Ohio v. NLRB, No. 00-1332 (DC Cir. 11/2/01). The court states: "The presence of a coworker gives an employee a potential witness, advisor, and advocate in an adversarial situation, and, ideally, militates against the imposition of unjust discipline by the employer."
While this Weingarten right makes some sense in a union setting, I fail to see the benefit to anyone of complicating the disciplinary process in a nonunion setting. Nonetheless, it appears to be the law – for now – and employers are encouraged to comply.
Court Reinstates Claim for Sexual Harassment After Double Homicide, November 5, 2001
Virginia Rich killed and was killed by a co-worker while on duty as a security officer at the Michigan Capital Building in Lansing. Prior to her death, Rich complained to her supervisors of sexual harassment by Canute Findsen, a male security officer who also worked in her building. Rich complained that Findsen made derogatory and offensive comments motivated by Rich's gender, weight, and abilities. According to Rich's personal representative, those complaints were not investigated or responded to adequately by her supervisor.
One night while Rich and Findsen were on duty together, a disagreement escalated and they shot and killed each other. The personal representative of Rich's estate sued Rich's two supervisors for failing to take appropriate steps to correct or end Findsen's harassment. These suits were dismissed because the supervisors were not alleged to have engaged in the harassing conduct. The court stated, "A supervisor who is not alleged to have engaged in any harassing conduct may not be held personally liable under the [Michigan] Civil Rights Act for an alleged failure to adequately investigate or respond to a harassment complaint." Instead, in an unpublished opinion, the court determined that Rich's personal representative could proceed with a state law sexual harassment claim against the Michigan Department of State Police. Haynie v. Michigan, No. 221535 (Mich. Ct. App. Sept. 28, 2001).
Evacuation Advice From the EEOC, November 1, 2001
In light of the September 11, 2001 events, the EEOC posted on its website yesterday guidance regarding assistance to disabled employees in emergency evacuation situations. The guidance is intended to provide answers to questions employers may have in developing a comprehensive emergency plan. The guidance suggests that, for example, employers may ask employees whether the employee will require assistance due to a disability or medical condition in the event of an evacuation. The EEOC also advises that the information be kept confidential. For more information on the EEOC's advice, visit their website at www.eeoc.gov.
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