Ninth Circuit Issues Split Decisions on Compensation for Travel Time and "Off-the-Clock" Work
Employees who drive company vehicles between home and work will find little to cheer about in a recent Ninth Circuit decision . . . unless they live in California. In Rutti v. Lojack Corporation, a three-judge panel refused to relax the rule that commuting time is non-compensable under the Fair Labor Standards Act (FLSA).
The employee, who installed vehicle recovery systems, contended that his travel time between home and worksites was compensable under the FLSA and California law because his employer required him to drive company vehicles and significantly restricted his activities while doing so. For example, the employer prohibited the employee from transporting passengers and engaging in personal pursuits, and required him to drive directly to and from the worksite with his cell phone turned on.
All three judges rejected that argument under the FLSA, holding that use of an employer's vehicle to commute is non-compensable even if it is a condition of employment and that the restrictions placed on the employee's activities were incidental to his principal job activities. The unanimous panel also rejected the employee's argument that his commuting time was compensable under the "continuous workday doctrine," under which an employee's workday generally lasts until he has completed all of his principal activities during the day.
Continue Reading...9th Circuit: No Compensatory or Punitive Damages in ADA Retaliation Cases
The Ninth Circuit Court of Appeals recently limited the remedies available to employees who sue for retaliation under the Americans with Disabilities Act (ADA), ruling that the statute does not provide for punitive damages, compensatory damages or a jury trial in ADA retaliation cases. Click here to read the decision in Alvarado v. Cajun Operating Co.
Mr. Alvarado worked as a cook in defendant’s restaurant. He complained after his supervisor made allegedly discriminatory remarks related to his age and disability, and shortly afterward he received several disciplinary write-ups for poor performance. After Mr. Alvarado was ultimately terminated, he sued his former employer for, among other things, retaliation under the ADA. Prior to trial, the federal district court granted defendant’s motion in limine, barring plaintiff from seeking punitive and compensatory damages, and a jury trial, on his ADA retaliation claim on the grounds that the statute provided only equitable relief for such claims.
The Ninth Circuit affirmed the district court’s ruling by holding that the plain, unambiguous language of the ADA remedy provisions specifically enumerate only those sections of the act for which compensatory and punitive damages (and a jury trial) are available, and that the ADA anti-retaliation provision is not included in that list. Somewhat surprisingly considering the laws at issue have been on the books since 1991, the Ninth Circuit appears to be only the third Circuit Court of Appeals to have been presented with the issue, after the Seventh and Fourth Circuits (which reached similar conclusions). The court also noted that several district courts in other circuits had reached the opposite conclusion (perhaps most surprising of all), by ignoring the text of the remedy provision and instead emphasizing the overall structure of the ADA and the “expansive” intent of the 1991 amendments.
For now, the law in the Ninth Circuit on this question is clear: while still entitled to compensatory or punitive damages in disability discrimination or failure to accommodate claims under the ADA, employees may not receive those damages for ADA retaliation claims.
Continue Reading...Oregon Court of Appeals Upholds Claim of Negligent Failure to Investigate
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In Steele v. Mayoral et al., the Oregon Court of Appeals ruled that a plaintiff could take to the jury her claim that her employer had failed to prevent sexual harassment by her supervisor by not investigating earlier incidents about the supervisor’s relationships with other employees.
The plaintiff, a high school guidance counselor, was dating her supervisor, the principal. She complained that the supervisor had sexually assaulted her during a date. The school district investigated the complaint and recommended the supervisor be terminated. The plaintiff sued. In addition to alleging sexual harassment and retaliation, she also alleged that the school district had been negligent by not terminating her supervisor before the incident had even occurred. She based that allegation on three earlier incidents involving the principal’s relationships with other school district employees. The juicy allegations involve (1) the principal’s affair with the wife of another principal in the same school district, (2) the principal’s complaint that another district employee was “stalking” him after he “rebuffed her advances,” and (3) yet another employee’s allegation that she was dating the principal when he slept with yet another employee. The plaintiff alleged that the school district should have investigated those incidents – and that if it had, it would have terminated her supervisor years before.
The trial court dismissed the plaintiff’s negligence claim, but the Court of Appeals reversed, ruling that a jury should be able to decide whether or not the school district’s failure to investigate had caused the sexual harassment. We don’t know what a jury would say about liability in this case, but it is a sobering reminder to employers to investigate all incidents of potential misconduct involving the workplace.
Washington Court of Appeals Upholds Termination Where Medical Marijuana Use Caused Drug Test Failure
A Washington Court of Appeals has ruled that Washington’s Medical Use of Marijuana Act (“MUMA”) does not protect medical marijuana users from adverse hiring or disciplinary decisions based on an employer’s drug test policy. Click here to download a copy of the Court of Appeals Decision in Roe v. Teletech Customer Care Management.
Jane Roe (who did not use her real name because medical marijuana use remains illegal under federal law) sued Teletech for rescinding its employment offer after she failed a drug test required by Teletech’s substance abuse policy. She sought reinstatement and damages, alleging that she had been wrongfully terminated in violation of public policy since her marijuana use was legal under MUMA. The trial court granted summary judgment in favor of Teletech, and Roe appealed.
The Washington Court of Appeals, Division II affirmed the trial court’s dismissal of Roe’s case, stating, “MUMA neither grants employment rights for qualifying users nor creates civil remedies for alleged violations of the Act." Rather, the Court held that MUMA merely protects qualified patients and their physicians from state (not federal) criminal prosecution related to the prescribed use of medical marijuana. The Court further held that when Washington’s voters passed MUMA through the initiative process, they did not intend to impose a duty on employers to accommodate employee use of medical marijuana. The lawsuit and appeal, handled for the employer by Stoel Rives attorneys Jim Shore and Molly Daily, is likely to be further appealed by Roe to the Washington Supreme Court.
The workplace implications of medical marijuana continues to be a developing area. If your company has employees in any state allowing the use of medical marijuana under certain circumstances (including Washington, Oregon and California), you should review your substance abuse policies and make certain that all local human resources personnel and drug test administrators know whether the company will consider an exception for medical marijuana usage. Currently, Washington employers do not need to accommodate medical marijuana usage by making an exception to an otherwise valid substance abuse policy. However, because of court rulings in other states interpreting their states’ disability laws and advocacy groups’ continued attempts to expand medical marijuana rights, employers should continue to exercise caution when dealing with requests for disability accommodation involving medical marijuana. If such an issue arises, consider consulting with legal counsel.
The First Monday in October: Supreme Court Roundup
The first Monday in October traditionally marks the beginning of the United States Supreme Court's yearly term - and it provides an excellent opportunity to look at the cases the Court will be hearing this year. In an earlier post, the World of Work brought you detailed discussion of the Court's only Title VII case this term: Lewis v. City of Chicago. Here's a sampling of other labor and employment-related cases to watch for throughout the term:
This morning, in Mohawk Industries, Inc. v. Carpenter, the Court will consider whether an employer's attorney's investigation of an internal complaint is protected by the attorney-client privilege. The internal complaint alleged that the company was conspiring to hire individuals who were not authorized to work in the United States. The case involves a former employee's claim for witness tampering; a separate lawsuit involving the alleged conspiracy is proceeding on a separate track.
On October 7, the Court will hear a case involving the Railway Labor Act. The issue in Union Pacific Railroad Co. v. Brotherhood of Locomotive Engineers is whether the Seventh Circuit Court of Appeals had the power to overturn, on due process grounds, an arbitration award in the railroad's favor.
On October 14, in Perdue v. Kenny A., the Court will consider whether attorney fee awards under 42 USC 1988 can be enhanced when the lawyer does a particularly good job. Section 1988 is a common basis for fees in employment-related lawsuits.
On December 9, the Court will hear Stolt-Nielsen SA v. AnimalFeeds International. This case asks the Court to decide whether an employee bringing a claim under an arbitration agreement may sue, not only on his own behalf, but on behalf of a class of similarly situated employees. In this case, the arbitration agreement did not specifically allow class claims, but the arbitrators allowed those claims anyway.
Finally, on a date to be announced, the Court will hear Granite Rock Co. v. International Brotherhood of Teamsters. This case again involves questions about arbitration. Here, the issue is whether an arbitrator (not a court) may decide whether a valid collective bargaining agreement exists.
Oregon Court Of Appeals Holds Non-Disabled Employees Are Protected When Requesting Accommodations
On Thursday, in Herbert v. Altimeter, the Oregon Court of Appeals held that an employee does not need to actually be disabled in order to be protected from retaliation for requesting an accommodation under Oregon’s disability anti-discrimination law. The case serves as a useful reminder that anti-retaliation protections, like those in the Oregon disability law, can be very broadly applied and protect many types of employee requests or complaints. Employers should be careful when disciplining or terminating any employee who has recently made some kind of arguably protected request or complaint.
Sherrie Herbert was terminated from her truck-driving job with Altimeter shortly after she became ill, allegedly from exhaust fumes in the cab of her truck, and she reported those problems to her boss. She sued under various retaliation theories, including that she was terminated in retaliation for her having requested an accommodation for a disability (i.e., requesting to be reassigned to a different truck). The trial court granted a directed verdict for Altimeter at the close of Herbert’s case at trial and dismissed all claims.
The Court of Appeals reversed. Altimeter argued that it couldn’t have retaliated against plaintiff for requesting an accommodation as a matter of law, because she was not disabled and therefore not protected under the Oregon disability law's anti-retaliation provisions. The court rejected that argument, noting that while the law requires Oregon employers to provide a reasonable accommodation to a “person with a disability,” the anti-retaliation provision, ORS 659A.109, protects any “worker” who requests an accommodation. So, the court reasoned, by its plain terms the statute protects a broader class of employees (all of them) who make protected requests for accommodations, even though those employees may not be entitled to an actual accommodation.
The opinion also contained an illustrative reminder about the importance of well-drafted written responses filed with the Equal Employment Opportunity Commission (“EEOC”), the Oregon Bureau of Labor and Industries (“BOLI”), and similar agencies. Those written position statements are admissible later; if they’re not carefully drafted they could come back to bite the complainant. In Herbert, Altimeter’s BOLI position statement included several damaging admissions, the worst of which essentially stated that she was terminated because she insisted she be reassigned to another truck, i.e., requested an accommodation. Despite a general lack of other evidence of retaliation presented by Herbert at trial, the Court held that Altimeter's admission in the BOLI statement alone was enough to allow that claim to go to a jury.
Oops! While there are no easy, hard-and-fast rules about how to draft effective BOLI or EEOC position statements, generally you want to say as little as possible while still making your case, and above all, you don't want to provide the only evidence a plaintiff will need to take his or her case all the way to a jury!! Those kinds of careless statements early on can make litigating employment discrimination lawsuits very expensive for employers, because they become much harder to get dismissed before trial.
Continue Reading...Oregon Supreme Court Allows Workers' Comp Coverage for Gastric Bypass
This morning, in SAIF Corp. v. Sprague, the Oregon Supreme Court upheld the workers' compensation claim of an employee who sought coverage for gastric bypass surgery, on the grounds that the surgery was necessary to treat a decades-old on-the-job knee injury.
Sprague injured his knee on the job in 1976, filed a workers' comp claim, and sought treatment. In 1999, he reinjured his knee and filed a new workers' comp claim with a new employer. He also was successful in expanding his original claim to include a new condition, consequential arthritis in the knee. In 2000, his knee had deteriorated and his doctor recommended a knee replacement. However, plaintiff (who weighed over 300 pounds) needed to lose weight to be eligible for the knee surgery and to relieve pressure on the injured knee. His doctor recommended gastric bypass surgery, but both workers' comp insurers (for his new and old employers) refused to pay for it. The insurers argued that the gastric bypass was not covered because it was directed at Sprague's obesity, which had existed before the original 1976 injury.
The Oregon Supreme Court disagreed. The insurers did not dispute that the current knee problems were compensable, because they were related to the original on the job injuries. The only relevant issue was whether the gastric bypass surgery was "directed to" the knee injury. The court ruled that it was, because the medical evidence was undisputed that the weight loss was necessary to the success of the surgery. It was irrelevant that the Sprague would also obtain free surgery that had substantial cosmetic benefits (as Al Roker, John Popper, Roseanne Barr, Star Jones, Randy Jackson, and others can attest).
As World of Work pointed out earlier, this doesn't mean that all gastric bypasses will now be covered by workers' comp. However, the statute that mandated this decision just doesn't strike the balance that the workers' comp system promised. The system was created as a compromise between employers and employees. Employees received a defined benefit for any on-the-job injury regardless of fault. Employers received protection from high punitive damage awards and the knowledge that their costs would be controlled. While the system often works well, decisions like this show that it doesn't always. According to some experts, gastric bypass surgery costs between $20,000-and $25,000. That's a cost that these employers might not have had to pay absent the workers' comp system.
Oregon Supreme Court Denies Employee's Wrongful Discharge Claim for Reporting Unlawful Trade Practices
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The Oregon Supreme Court has denied a car salesman's wrongful discharge claim. In Lamson v. Crater Lake Motors, Inc., the salesman, Kevin Lamson, claimed he was terminated for complaining to his employer that an outside entity managing sales on his employer's car lot was engaging in unlawful trade practices. Lamson refused to participate in special promotional events run by the outside company, because he believed company was engaging in sales tactics that were unethical and unlawful.
As the World of Work has discussed earlier, wrongful discharge is a common law remedy. One way a plaintiff may assert the claim is by arguing that the employer terminated him for fulfilling an "important societal obligation." Oregon courts determine what obligations qualify by reviewing state statutes and the state constitution.
In this case, the Oregon Supreme Court ruled that plaintiff would have had a wrongful discharge claim if he had been terminated for refusing to engage in illegal practices prohibited by Oregon's Uniform Trade Practices Act.. However, the court determined that plaintiff's evidence did not meet that burden. Plaintiff had not complained that he was being forced to act illegally; he had complained only that the outside company was acting illegally and urged his employer not to do business with that company. The court also held that plaintiff would have had a viable claim if he had been terminated for reporting the outside company's illegal practices to a government agency that could have taken legal action about the outside company. Reporting the allegedly illegal practices to his employer, the court ruled, was insufficient to trigger the common-law remedy.
Lamson does not signal an entirely new direction in the law of wrongful discharge; employers have known for some time that they may be held liable for terminating employees for performing public duties such as jury service or even arresting lawbreakers. However, Lamson is a valuable precedent for employers because it shows that Oregon courts are not willing to extend a wrongful discharge remedy for every act that a discharged employee can relate (however tangentially) to an Oregon statute. Plaintiffs asserting wrongful discharge must show how their complaint directly relates to the furtherance of a public policy
Oregon Court of Appeals Rejects Wrongful Discharge Claims for Health and Safety Retaliation
This morning the Oregon Court of Appeals rejected a plaintiff's common-law wrongful discharge claim that she was terminated for reporting a health and safety violation. The Court ruled that the state and federal statutory remedies were adequate, and that she should have filed a statutory claim instead.
Plaintiff Andrea Deatherage was an employee of Super 8 Inn when she filed a health and safety complaint against her employer with Oregon OSHA. Deatherage was terminated the next day. She sued for the common-law tort of wrongful discharge, claiming she was terminated in retaliation for filing the complaint.
In Oregon, wrongful discharge is a "gap filling" remedy that is available only when there is no adequate remedy by statute. In Walsh v. Consolidated Freightways, 278 Or 347, 563 P2d 1205 (1977), the Oregon Supreme Court ruled that the state and federal statutory remedies for health and safety complaint retaliation were sufficient to preclude a common-law remedy. Citing Walsh, the trial court dismissed plaintiff's claim.
So why the fuss at the Court of Appeals? Plaintiff claimed that a federal case issued since Walsh had cast doubt on whether the statutory remedies were actually adequate. The Court of Appeals rejected the invitation to ignore an Oregon Supreme Court case, and adhered to Walsh, agreeing with the trial court. (Oddly, the court declined to fill a gap in Oregon law by explaining exactly what remedies are available for an Oregon statutory health and safety reporting claim under ORS 654.062.)
So why is this case important? At this point, it creates a difference in how these kinds of wrongful discharge cases will be treated in state courts as opposed to federal courts. The World of Work will be watching future developments, as the Oregon Supreme Court may have an opportunity to weigh in on this issue.
Another Circuit Court Agrees: ADA Amendments Act is Not Retroactive
Congress did not intend for the ADA Amendments Act (ADAAA) to be retroactive, the Court of Appeals for the District of Columbia ruled yesterday, and applied pre-ADAAA law to dismiss an employment discrimination claim. Click here to read the court's decision in Lytes v. DC Water and Sewer Authority.
Congress passed the ADAAA in 2008 and the new law became effective January 1, 2009. The ADAAA significantly expanded the definition of "disabled" under the Americans with Disabilities Act (ADA). The Lytes court reviewed the legislative history of the ADAAA, and could not find in that history any indication that Congress intended the law to apply retroactively. The court also noted that Congress signaled its intend that the law not apply retroactively when it gave the ADAAA a specific effective date.
The DC Circuit joins the Fifth Circuit Court of Appeals, which also ruled in EEOC v. Agro Distribution, LLC that the ADAAA is not retroactive. Notably, the Department of Labor has also taken the position that the law should not apply retroactively. And, at least for now, it appears that the Equal Employment Opportunity Commission agrees.
Lytes and Agro Distribution are important cases for employers defending ADA claims; they make clear that for claims arising before January 1, 2009, pre-ADAAA standards of what constitutes a "disability" are likely to apply. For more information on the ADAAA, click here for the World of Work's ADAAA coverage.
Oregon Court of Appeals Upholds Employer's Right to Ask Potentially Disabled Employees to Take Medical Exams
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Today in Heipel v. Henderson et al., the Oregon Court of Appeals affirmed summary judgment on an Oregon disability discrimination claim in favor of an employer who asked an employee to take an independent medical exam (IME) as part of an investigation into the employee's disturbing work-related behavior. The court confirmed that such exams must be "job related and consistent with business necessity," and that the exam in this case met those criteria.
Plaintiff Barbara Heipel worked for the Oregon Employment Department. Her supervisors received an escalating string of complaints about her job performance and erratic behavior. Her actions included:
- standing in the bathroom in a "trance" pulling out paper towels into an overflowing trash can;
- leaning against a bathroom stall in a "despondent state";
- total loss of emotional control with supervisors and coworkers;
- accusing her coworkers of stealing shredded documents from a trash can and pasting them together for personal use; and
- false and contradictory complaints to customers about her employer and coworkers.
Heipel's employer asked her to take an IME to determine whether she posed a threat to herself and others and whether she could perform the essential functions of her position. Plaintiff refused, and the Employment Department terminated her for refusing. Plaintiff filed a lawsuit claiming, among other things, that her employer had unlawfully discriminated against her under Oregon employment statutes for having a disability.
ORS 659A.136(1) provides that such examinations are appropriate only where they are "job related and consistent with business necessity." The Oregon Court of Appeals, relying on federal cases in the Sixth and Eighth Circuits, ruled that, under these circumstances, the requested exam met both requirements.
This decision should not be seen as a blanket endorsement of all IMEs in the workplace. Although this exam was ruled appropriate, the Court of Appeals' inquiry was fact-specific -- and the facts here were unusual. Employers should understand the risk of requesting such exams and should carefully evaluate the individual circumstances before forging ahead.
Bus Driver's "Shy Bladder Syndrome" a Disability
A school bus driver who was demoted after his "shy bladder syndrome" left him unable to comply with his employer's drug testing procedures may proceed with claims under the Americans with Disabilites Act (ADA) according to a recent ruling from a Tennessee federal court. Click here to read the full opinion in Melman v. Metropolitan Government of Nashville.
In Melman, the plaintiff was required to submit to random drug tests. During two tests he could not provide an "adequate" urine sample, and explained that he could not because of a "shy bladder." A urologist diagnosed the plaintiff with paruresis (aka shy bladder syndrome) and offered to perform the urine sampling via catheterization. The employer declined that offer. Instead, it placed the plaintiff on unpaid leave, required him to attend a drug rehabilitation program at his own expense, and demoted him to a position as a bus monitor. (Notably, the plaintiff ultimately did provide a negative sample obtained via catheter.) The court denied the employer's motion to dismiss, holding that shy bladder syndrome substantially limited the plantiff's major life function of eliminating bodily waste.
Employers with drug testing programs should take note: employees who are unable to comply with standard drug testing procedures may have a qualifying disability, especially given the more liberal standards under the ADA Amendments Act. Employers should not shy away (okay, bad pun) from engaging in the interactive process with the employee to find ways that the employee can comply with the procedures - such as providing a sample through catheterization. The International Paruresis Association also provides suggestions for accommodating shy bladder syndrome.
9th Circuit Orders Damages, but Not Reinstatement for Unauthorized Alien Workers
What's an employer to do when it is ordered to reinstate former employees, but those employees are not legally authorized to work in the United States? Pay liquidated damages instead, according to the Ninth Circuit's recent decision in NLRB v. C&C Roofing Supply Inc.
In C&C, the National Labor Relations Board (NLRB) alleged that the employer unlawfully fired 20 workers for engaging in union activity. The parties reached a formal settlement that called for reinstatement of the illegally fired workers and payment of specific amounts of liquidated damages to each. However, the employer then refused to reinstate the employees because many of them were unauthorized aliens and rehiring them would violate the Immigration Reform and Control Act (IRCA) and the Legal Arizona Workers Act, which both prohibit hiring unauthorized aliens.
The Ninth Circuit solved the dilemma by ordering the employer to pay the agreed-upon liquidated damages, but did not require the employer to reinstate the unauthorized employees. But how does this case square with Hoffman Plastic Compounds Inc. v. NLRB? There, the U.S. Supreme Court held 5-4 that the board may not order back pay for unauthorized aliens, despite their firing in violation of federal labor law, because doing so would violate immigration policy expressed in IRCA. In C&C, the Ninth Circuit dodged that issue by ruling that agreed-upon liquidated damages as part of a settlement do not raise the same issues as back pay ordered by the court, as the employees need not be "available to work" in order to receive liquidated damages. Don't be surprised if this one gets appealed up to the Supreme Court for a determination if it really does square with Hoffman.
Driving Not a "Major Life Activity" Under ADA
Is driving a car a major life activity under the Americans with Disabilities Act (ADA)? No, the Tenth Circuit Court of Appeals recently concluded, joining two other federal circuit courts that have held that just because a person cannot drive does not mean that person meets the legal definition of "disabled." Kellogg v. Energy Safety Services, Inc.
Kellogg, who has epilepsy, sued her employer alleging disability discrimination. Kellogg asserted that because she is not allowed to drive due to the risk of seizure, she is substantially limited in the major life activity of "driving." After Kellogg prevailed on her claim at a jury trial, The Tenth Circuit reversed. (The Tenth Circuit covers Oklahoma, Kansas, New Mexico, Colorado, Wyoming, and Utah.)
The court held that driving is merely a "means to an end," and not a major life activity in and of itself. For some plaintiffs, an inability to drive may prevent them from engaging in other major life activities (such as working), but because Kellogg presented no evidence that she was substantially impaired in any activity except driving, she failed to prove she was "disabled." The Tenth Circuit thus joins both the Second and Eleventh Circuits in holding that driving is not a major life activity.
Don't expect Kellogg to set precedent for long: this case almost certainly would have been decided differently under the ADA Amendments Act (ADAAA), which goes into effect January 1, 2009. Under the much broader definition of "disability" under the ADAAA, Kellogg's epilepsy alone almost certainly would have qualified her for the protections of the ADA. For more on the ADAAA, check out the World of Work's coverage, here.
Ninth Circuit Upholds Legal Arizona Workers' Act
This week the Ninth Circuit Court of Appeals ruled that the Legal Arizona Workers Act (LAWA) is not preempted by the federal (IRCA). Rather, the court held, LAWA falls within the scope of the “savings clause” of IRCA’s express preemption provision as a “licensing law” and is therefore enforceable. A coalition of human rights and employers' groups challenged the law on several grounds, all of which were rejected by the Ninth Circuit. To read the court's opinion, click here: Chicanos Por La Causa v. Napolitano.
LAWA allows Arizona state courts to suspend or revoke business licenses of employers who intentionally employ "unauthorized aliens," and also required Arizona employers to use the E-Verify System to check applicants' eligibility for employment. Arizona employers should review this Notice to Employers from the Arizona State Legislature for more information.
Now that the Arizona law has been upheld (and assuming the U.S. Supreme Court does not hear further challenges), the World of Work expects anti-immigration groups to push for similar laws in other states.
Failure to Accommodate Disabled Employee May Result in Constructive Discharge
According to a recent Americans with Disabilities Act case from the U.S. Sixth Circuit Court of Appeals, a failure to accommodate an employee's disability may result in a constructive discharge and expose the employer to the same kind of liability it would face had it terminated an employee because of a disability.
In Talley v. Family Dollar Stores of Ohio Inc., Talley, a former store cashier with severe arthritis, could not stand more than 15 minutes without extreme pain. She requested a stool to sit on while working, but the employer refused the request because employees complained of "favoritism" and wanted stools of their own. After the employer refused her request for an accommodation, Talley quit her job and sued for disability discrimination under the ADA, claiming that her employer's refusal to accommodate her forced her to quit.
The Sixth Circuit agreed that Talley proved a claim for constructive discharge--in other words, the employer made her working conditions so intolerable that a reasonable person would feel compelled to resign. If Talley proves her case to a jury, her former employer can be liable for several years' of backpay damages, as well as attorney's fees and possibly even punitive damages.
This case underscores employers' obligation to provide reasonable accommodations for disabled employees. While most anti-discrimination laws do not allow "favoritism," the ADA is different: an employer does have an obligation to provide disabled employees with accommodations (such as giving a disabled cashier a stool) that non-disabled employees do not receive. Perceived favoritism is simply not a defense. For technical assistance in complying with the ADA, check out the U.S. Department of Justice's ADA Page.
Calling Store Manager "Grandma" Evidence of Age Bias
Here's a shocker out of Illinois: a federal district court held that a retail chain's store manager calling a department head "Grandma" was evidence of age discrimination. In McDonald v. Best Buy Co., the plaintiff alleged she was demoted and forced out of her job because of her age in violation of the Age Discrimination in Employment Act (ADEA). The defendant argued she was demoted because of her inability to effectively manage her subordinates.
The case hinged to a large degree on the fact that the plaintiff's supervisor often referred to her as "Grandma," which the plaintiff argued was evidence of age discrimination. The defendant countered that because it is technically possible for a person under age 40 (and not protected by the ADEA) to be a grandmother, "Grandma" is not an age-related nickname. The court noted that while calling someone "Grandma" does not by itself violate the ADEA, it is certainly an age-related comment and does provide evidence of an ageist motive.
Here's the lesson for employers: be careful of "cute" nicknames that could be discriminatory. There are endless cases where nicknames like "Grandma," "Honey," "Baby" and the like supported claims of discrimination. Calling an employee "Grandma" might sound endearing at the time, but in the context of a lawsuit, it will likely sound discriminatory.
Ninth Circuit Affirms "Emotional Distress Damages" Caused by Denial of FMLA Leave
Oregon Court of Appeals Upholds Employment Discrimination Statute
Continue Reading...
Supreme Court: No "Class of One" Claims
In Engquist v. Oregon Department of Agriculture, the plaintiff alleged that she was fired not because she was a member of a protected class (such as race, sex, age, disability, national origin, etc), but simply for "arbitrary, vindictive, and malicious reasons." In other words, she was a "class of one" and her employer fired her because it simply didn't like her, and she claimed that termination violated her constitutional due process rights.
While other Supreme Court decisions had upheld the "class of one" theory outside of the employment context, in this case the Court concluded that extending the class-of-one theory to public employees would lead to undue judicial interference in state employment practices and invalidate public at-will employment.
For public employers, this is good news: had the court upheld the "class of one" theory, it would have effectively provided for lifetime employment for public employees (of course, it seems like they have that already).
For private employers, this case is purely academic and a reminder of how good you have it: there has never been a "class of one" theory in the private workplace (no matter how much some employees seem to think there is).
Supreme Court Expands Plaintiffs' Relief in Race and Age Discrimination Cases
While Gomez-Perez applies only to federal employees, Humphries will impact private-sector employers in two ways: first, unlike Title VII, Section 1981 has no damage caps and for a plaintiff, the sky is the limit; second, while Title VII does not apply to employers with under 15 employees, Section 1981 applies to all employers regardless of size.
