Employment Law Update with Amazing Predictions!

Presented by Lisa Hudson Assistant Attorney General Arizona Attorney General’s Office* * Views expressed by the presenter are not official opinions of the Arizona Attorney General

Proposed ADA Regulations from EEOC

EEOC must implement regulations consistent with the ADA Amendments Act of 2008    Proposed regulations have been issued. Comment period expired on November 23, 2009.

Examples of “major life activity” expanded, even beyond the Act.

“Interacting with others” added to the list (this was not included in the ADA Amendments Act).

 Major bodily functions as “life activities”  Expands beyond the ADA Amendments Act  Functions of the immune system, special sense organs and skin; normal cell growth; and the digestive, genitourinary, bowel, bladder, neurological, brain, respiratory, circulatory, cardiovascular, endocrine, hemic, lymphatic, musculoskeletal and reproductive functions.

 “Substantially limits”  Use a common sense standard not a medical one.

  Even impairments that last less than six months can meet the definition.

Certain impairments will “almost certainly” meet the definition of a disability:  These include deafness, blindness, intellectual disability, missing limbs, mobility impairments requiring the use of a wheelchair, autism, cancer, cerebral palsy, diabetes, epilepsy, HIV or AIDS, multiple sclerosis, muscular dystrophy.

 Also includes psychiatric disorders such as major depression, bipolar disorder, post-traumatic stress disorder, obsessive-compulsive disorder, and schizophrenia. The list is not exhaustive.

 Working as a major life activity.

  The current regulations and case law provide that the inability to work a particular job is not a disability unless the employee is unable to perform a class of jobs or a broad range of jobs in various classes.

In a significant change, the proposed regulations provide that an impairment substantially limits the major life activity of working if it substantially limits an individual's ability to perform, or to meet the qualifications for, the type of work at issue.



Rohr v. Salt River Project, 2009

555 F.3d 850 (9

th

Circuit)

Is Mr. Rohr a “qualified” individual with a “disability?”    Type-2 Diabetes —required dietary restrictions, testing of his blood, and medications that had to adjusted around his eating Due to condition, could not pass a “respirator test” required by SRP.

District Court of Arizona said “not a disability” and “not qualified individual.”

Rohr v. SRP, Cont.

 9 th Circuit reversed and said “send it to a jury”  Limitations on eating, scheduling of food, adjusting of medications could be a substantial limitation of a major life activity  Respirator test required by SRP not necessarily an “essential function”   NOT required by OSHA standards SRP did not consider other testing methods  Use of a respirator may not have been necessary for Mr. Rohr to do his job

Amazing ADAA Predictions

• Case law and employer focus will move from determining whether someone has a disability, to the issue of accommodation.

• We will see more challenges to “essential functions.” • Employers will see an increase in requests for accommodation of psychological and psychiatric disabilities.

Tips

 Update job descriptions and “essential functions.”  Carefully analyze any physical requirements or tests for positions. Are they really required to perform the essential functions?

 Review your procedures for requesting accommodation and engaging in the interactive process. Streamline and reduce delays.

FMLA- Intermittent Leave Traps –

   Carefully evaluate certifications from health care providers to make sure that you have sufficient information to grant or deny the request.

It’s OK to verify authenticity.

Once granted, don’t forget to follow up periodically.

 Is the leave being used consistently with the certification?

 Have you calendared the end date or recertification date?



Smith v. Hope School, 560 F.3d 694 (7

th

Cir. 2009)

Ms. Smith worked at a school for kids with developmental disabilities   After being assaulted twice by the kids, she became very anxious and fearful She was moved to the Dietician’s Office (no youth contact)  Leaves work from stress one day soon after transfer; gets physician certification for FMLA leave from her doctor: Smith has “severe recurrent muscle tension and neck and arm pain secondary to trauma (assaults) suffered at work”

 Smith adds to it herself below doctor’s writing: “plus serious depression.” Then submits certification to employer.

 Employer calls Dr. because handwriting doesn’t match. Dr.: “I never diagnosed depression.”  FMLA denied due to falsified certification. Smith refuses to come back to work, is terminated for absence without leave.

 Note: she is not fired for falsifying physician’s certification; just for being absent without approved leave.

  She sues under FMLA. Her point: even without her “addition” to the physician certification, it would have qualified her for FMLA.

Court: disagrees with her. “Why should employer have to figure out what is true and what is false on a physician’s cert.?” It contained false information, was invalid, and the employer was within its’ rights to deny her FMLA leave request.

Carmona v. Southwest Airlines, ___ F.3d ___, 2010 WL 1010592 (5

th

Cir. March 22, 2010).

 Carmona was a flight attendant for Southwest Airlines.

 Suffered from psoriasis and psoriatic arthritis  During flare ups that occurred 3-4 times per month and lasted 3-4 days per occurrence, Carmona had difficulty walking or moving around without great pain.

FMLA Intermittent Leave

 Carmona received intermittent leave under FMLA from 1998 until April 2005. At that point, he had not worked the requisite 1,250 hours in the previous year to qualify for FMLA.

 Carmona was terminated in June 2005 when he accrued excessive “attendance points” under Southwest’s attendance policy.

ADA Claim

 Carmona sued under the ADA and obtained a jury verdict in his favor.

 Southwest argued that Carmona was not a “qualified individual” because he could not comply with Southwest’s attendance policy. In other words, regular attendance is an essential function.

Surprising result!

  The court rejected Southwest’s argument that attendance was required, because Southwest had granted Carmona’s prior intermittent FMLA requests.

“If Southwest had denied Carmona’s request for intermittent FMLA leave, it might have had a strong argument that as a matter of law Carmona was not qualified . . .”

Question:

 On what basis could Southwest have denied the Plaintiff’s FMLA requests for intermittent leave?

 Lisa Hudson’s opinion: The court got this wrong. An employer may not deny intermittent FMLA leave based on an attendance policy or requirement.

Amazing Prediction!

• As government employers continue to struggle with budget issues, they will see an increase in requests for intermittent FMLA leave.

• Employees may feel a greater need to obtain protection for frequent absences, lest they be used to justify a termination of layoff.

FLSA Hot Issues

 “Donning and doffing”- When do preliminary and post-liminary activities constitute compensable work time?



Bamonte v. City of Mesa, ___

F.3d ___ (9 th Cir. March 25, 2010) (Police officers not entitled to compensation for the time it takes to put on and take off uniform and other required gear. They were permitted to perform these tasks at home.)

 

Allen v. McWane

, ___ F.3d ___ (5 th Cir. January 8, 2010) (Manufacturing plant workers not entitled to compensation for donning and doffing protective gear where custom and practice was not to pay under CBA.)

Foods Sepulveda v. Allen Family,

___ F.3d ___ (4 th Cir., December 29, 2009) (FLSA allows unions and employers to negotiate compensability of time it takes to change clothes. Poultry processors not entitled to compensation for donning protective gear).

Amazing Prediction

• With furloughs and layoffs, we will see an increase of claims related to “off clock” work.

FLSA Tips

 Revisit time-keeping and overtime policies.

 Make sure that you are carefully tracking and enforcing work hours for non-exempt employees, especially telecommuting employees.

 Make sure policies regarding overtime are clear, communicated, and enforced!

Social Networking Sites Employment Considerations

Employees using social networking sites:  Employees should be aware that the standards of conduct and all confidentiality rules apply.

 E.g., Twittering, blogging, or updating Facebook status with specific comments about work.

 All employees, especially supervisors, should be concerned about maintaining professional distance from co-workers, supervisors, clients, and professional colleagues.

Pietrylo v. Hillstone Restaurant Group, 2008 WL 6085437 (D. N.J. 2008).

 Group of servers established an “invitation only” MySpace page to “vent about any BS we deal with.” The page invites users to “let the s**t talking begin.”  A manager accessed the site while at the home of one of the members.

Claims

 Violations of federal and state wiretapping laws- Questions of fact as to whether managers were given access or whether it was coerced.

 Termination in violation of public policy Termination of member employees did not violate free speech as matters discussed did not implicate matters of public concern.

 Invasion of privacy- Question of fact as to whether managers had voluntary access.

Flip side- Using social network sites to screen applicants

   Read and do not violate the “terms of use” for the site. Some forbid use for commercial purpose.

FCRA applies if third party searches these sites.

Consider that you are just as likely (if not more so) to learn things that you do NOT want to know (e.g., applicant is pregnant, has disabled children, is a member of a particular political party, etc.).

Spanierman v. Hughes, 576 F.Supp. 292 (D. Conn. 2008)

 High school teacher terminated (non renewed) based on MySpace communications with students.

 Created profile for students that contained inappropriate content and chatting.

 Court held the nonrenewal did not violate the teacher’s First Amendment rights.

Amazing Prediction!

• Social networking is just a fad. People will grow tired of it after they are contacted by all of their old high school friends, only to realize that there were good reasons for not keeping in touch in the first place.



Crawford v. Metropolitan Gov’t of Nashville

129 S.Ct. 846 (2009)

Anti-retaliation provisions of Title VII  Forbids retaliation against employees who “oppose” workplace race or gender discrimination.

   Ms. Crawford (30 year employee) was interviewed by an internal H/R employee investigating a complaint by

another

employee against the Employee Relations Manager, Dr. Hughes.

Ms. Crawford had not made a complaint herself against Mr. Hughes, and was simply answering questions when asked during the investigation: “have you witnessed Mr. Hughes engaging in sexually harassing behavior?” You better believe it:

  On one occasion: Ms. Crawford: “Hey, Dr. Hughes, what’s up?” Dr. Hughes, grabbing his crotch: “You know what’s up.” He repeatedly “put his crotch up to [her] window.”  On one occasion he entered her office and “grabbed her head and pulled it to his crotch.”

   Shortly afterward, Ms. Crawford was fired .

Metro: “it was for embezzlement.” Crawford: “it was retaliation for opposing sexual harassment.”  District Court granted summary judgment against her and 6 th Circuit upheld this:  She didn’t “oppose” sexual harassment; she was just answering questions when asked by someone investigating another person’s complaint.

 Supreme Court reversed and remanded back to lower courts   Crawford’s statement to investigator was a “disapproving account of sexually obnoxious behavior toward her by a fellow employee.” Crawford “gave no indication that Hughes’s gross clowning was anything but offensive to her.”  When an employee communicates to her employer a belief that a form of employment discrimination (such as harassment) has occurred, this virtually always constitutes “opposition to the activity.”

Ricci v. DeStefano, 129 S.Ct. 2658 (U.S. 2009)

 In 2003, New Haven (Conn.) Fire Department administered exams for promotion to 8 vacant Lieutenant and 7 vacant Captain positions  Over half of white officers passed the test. Black officers had a 32% and 38% passage rate, respectively.

 Based on top scores, all 8 Lt. positions would be filled by whites. 7 Capt. positions would be filled by whites with possible exception of 2 Hispanics.

 Concerned of a disparate impact, and possibility that tests were racially biased, City threw out the test scores.

 20 officers who would have qualified for the promotion list sued the city  District Court and Court of Appeals ruled for the City of New Haven   “Doesn’t the City have the right to reformulate its test if it has real concerns the test is discriminatory?” “The City had no good alternative as it faced a discrimination lawsuit from Black firefighters if it had upheld the test.”

 Supreme Court, in 5-4 decision, ruled for the Plaintiff firefighters and against the City  Justice Kennedy: the City engaged in “express, race based decisionmaking.”   This constituted disparate treatment of the white and Hispanic firefighters.

Disparate treatment can only be justified if it is supported by a “strong basis in evidence” that it will avoid an impermissible disparate impact. There was no strong basis of evidence that this examination would have resulted in an impermissible disparate impact.

Amazing Supreme Court Prediction!

• President Obama will nominate a replacement for Justice John Paul Stevens. The new nominee will be controversial and will not receive Republican support.

Prowel v. Wise Business Forms, 579 F.3d 285 (3

rd

Cir. 2009)

 Which is it: sexual orientation discrimination (perfectly legal) or gender discrimination (NOT legal)?

 Mr. Prowel works at a factory in Pennsylvania where he is: openly gay and “an effeminate man”  Testified he “had a high voice and did not curse; was very well-groomed; was neat; filed his nails; crossed his legs; walked and carried himself in an effeminate manner; drove a clean car; talked about things like art, music, interior design; and pushed the buttons on his encoder machine ‘with pizzazz’!!!! (Exclamation points added by me.)

    Constantly subjected to comments: called rosebud, princess, pink feather tiara put on his desk Also subjected to other harassment: graffiti on wall of men’s room claiming he had AIDS, note on his desk saying he would burn in hell.

Eventually laid-off and sued for gender discrimination Employer argued, and District Court agreed, his suit was a claim for sexual orientation discrimination, not protected by Civil Rights laws. Case dismissed.

 Third Circuit reversed: evidence that some of his harassment was for his failure to conform to

gender stereotypes

. This is a form of sex discrimination and is protected by Title VII.

 Cited

Price Waterhouse v. Hopkins

(1989)  Female executive denied promotion because she wasn’t “feminine” enough (sexual orientation never raised as an issue in this case)  Sex stereotypes are at the heart of discriminatory treatment 

Prowell

case is trickier: where does gender stereotyping end and sexual orientation discrimination —which is legal— begin?

Gender stereotyping



Chadwick v. Wellpoint, Inc.

, 561 F.3d 38 (1 st Cir. 2009).

 Plaintiff Chadwick claimed that she was denied promotion due to stereotypes about women who are mothers of young children.

 Chadwick was up for promotion against another female candidate.

 Chadwick had more seniority, a higher evaluation score, and was already performing some of the duties.

 Chadwick also had an 11 year old and 6 year old triplets.

 Claim based on three statements:  Decision-maker learned of the triplets two months before the decision, to which she stated, “oh my- I did not know you had triplets. Bless you!”

 During an interview with one of the panelists (all female) the interviewer asked how Chadwick would responded to an employee who did not complete a project on time. Unhappy with Chadwick’s answer, she said, “Laurie, you are a mother. Would you let your kids off the hook that easy . . .”  When Chadwick asked the decision maker why she didn’t get the job, the decision maker responded . . .

 “It was nothing you did or didn’t do. It was just that you’re going to school, you have the kids and you just have a lot on your plate right now.” She also shared that the three interviewers would all feel overwhelmed if they were in her position.

 Decision maker later says that this statement was to “soften the blow,” and that the decision was based on the interview.

  “unlawful sex discrimination occurs when an employer takes an adverse job action on the assumption that a woman, because she is a woman, will neglect her job responsibilities in favor of her presumed childcare responsibilities.” “The essence of Title VII in this context is that women have the right to prove their mettle in the work arena without the burden of stereotypes regarding whether they can fulfill their responsibilities.”

Amazing Prediction!

• We will see more claims involving gender stereotyping. These will include claims by women alleging discrimination based on care-giver responsibilities. They may also include discrimination claims by gay and lesbian employees claiming discrimination because they do not fit male and female stereotypes.

EEOC Statistics FY08- FY09

Category Total Race FY 2008 95,402 33,937 Retaliation Sex Age 32,690 28,372 24,582 FY 2009 93,277 33,579 33,613 28,028 22,778 Percent Change (2%) .4% 1.7% .3% (1.4%)

Category FY 2008 FY 2009 Change Disability 19,453 National Origin Religion 10,601 3,273 Equal Pay Act 954 21,451 11,134 3,386 942 2.6% .8% .2% --

Amazing Prediction!

• You will all have a year free from EEOC charges and employment lawsuits.

• P.S. - The previous predictions may or may not be completely wrong. The presenter assumes no personal or professional liability for the accuracy of these predictions and may or may not possess actual superpowers. Participants rely on these predictions at their own risk.