Supreme Court Lets Stand Ruling Allowing EEOC to Issue Subpoenas After Right-To-Sue
Yesterday the U.S. Supreme Court declined to review a Ninth Circuit Court of Appeals decision that allows the Equal Employment Opportunity Commission (EEOC) to continue investigating allegations of employment discrimination, and even to issue subpoenas to employers, after issuing a right-to-sue letter to the employee who filed the initial complaint. Click here to read the Ninth Circuit decision in Federal Express Corp. v. EEOC.
In order to file a lawsuit under Title VII of the Civil Rights Act of 1964, an employee must first file a complaint of discrimination with either the EEOC or an analogous state agency, a process known as "exhausting administrative remedies." Only after the EEOC issues a "right-to-sue letter" may the employee then file a lawsuit. It is not uncommon for an employee to file a complaint with the EEOC and withdraw it almost immediately, obtain the right-to-use letter and file a lawsuit, all before the EEOC has had a chance to investigate. In Federal Express, the employee did just that in order to join a pending class action lawsuit. The employer expected the EEOC to drop its investigation, but instead EEOC continued to investigate and issued a subpoena to the employer.
The Ninth Circuit enforced the subpoena, writing: "By continuing to investigate a charge of systemic discrimination even after the charging party has filed suit, the EEOC is pursuing its obligation to serve the public interest." The Ninth Circuit's decision is in line with a decision from the Third Circuit, but contrary to decisions from the Fifth, Seventh and Tenth Circuits. The Supreme Court will often take a case like Federal Express to resolve such splits between the circuit courts, but declined to do so in this case. As a result, the EEOC's investigatory powers will continue to vary depending on where a complaint is made.
Given the Supreme Court's ruling in Federal Express, employers can no longer safely assume that the EEOC will drop its investigation once it issues a right-to-sue letter. The EEOC may choose to continue investigating charges of discrimination, especially in cases involving allegations of systemic or widespread violations of anti-discrimination law. Employers (at least those in the Ninth and Third Circuits) should be prepared to comply with EEOC investigations even after the right-to-sue letter has issued.
Tenth Circuit Affirms Dismissal of WARN Act Case
We don't need to tell you there's a recession going on, and that a recession means layoffs. But we will remind you that layoffs may implicate the Worker Adjustment and Retraining Notification (WARN) Act - the federal law that requires employers to give 60 days' notice of certain mass layoffs and plant shutdowns.
Sometimes giving 60 days' notice of a layoff just isn't possible, and the law makes exceptions in some circumstances. A recent case from the Tenth Circuit Court of Appeals illustrates one of those exceptions. In Gross v. Hale-Halsell Co., the employer successfully relied on the "unforeseeable business circumstances" exception to WARN. In that case, the employer--a grocery wholesaler and distributor--was forced to lay off over 200 employees when its largest customer suddenly dropped its account. The court held that the employer had no choice but to lay its employees off (the employer subsequently declared bankruptcy), and that it gave as much notice as was practicable under the circumstances.
Notwithstanding the outcome of Gross, courts are notoriously reluctant to apply the WARN Act exceptions; before relying on an exception to bypass giving notice of a qualifying layoff or plant closure, it is probably a good idea to consult legal counsel. There is also good, free information from our friends at the U.S. Department of Labor to help guide you through troubled times and to determine whether the WARN Act may apply to you. Just click below to download the information:
- For a basic overview of the law, here's a basic WARN Act Fact Sheet.
- For more detailed information, download the Employer's Guide to the WARN Act (a great resource and our personal favorite)
- Next, if your layoff is caused by an "act of God," you might want to download the WARN Act Natural Disaster Fact Sheet
- And finally, you can read what the DOL is telling your employees: the Workers' Guide to the WARN Act, and for Spanish-speaking employees, the Guía para el Trabajadores
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.
New Laws Aim to Prevent Employers From Banning Firearms
By now, we've all read about the Supreme Court decision holding that the Second Amendment guarantees a private right to possess firearms. But here's an interesting trend in firearms law that directly impacts employers: several states have passed or are considering laws preventing employers from prohibiting employees from keeping firearms in their cars on company property. Florida Governor Charlie Crist signed such a law, which went into effect July 1, although that law is being challenged in Federal Court. Georgia Governor Sonny Perdue signed his state's version in April, which took effect immediately. Louisiana passed its version in July, and it will go into effect August 15. Oklahoma passed such a law in 2004, but a federal district court issued an injunction blocking the law from taking effect, and that case is currently pending before the 10th Circuit Court of Appeals.
Firearm rights' groups such as the National Rifle Association were very active in passing these laws. Employer groups like the Society for Human Resource Management, the Brady Center and major employers like Disney World opposed them on the basis that they infringe upon employers' property rights, violate federal occupational safety laws and increase the risk of workplace violence.
Given the momentum it received from Supreme Court's ruling on the D.C. gun ban, we anticipate the pro-gun lobby will become even more active in seeing similar laws passed in more states. The western states, with their libertarian attitudes and high rates of gun ownership, are likely to become the gun lobby's next targets. Major employers and employer groups will likely challenge these laws, both in the state legislatures and the courts. The 10th Circuit ruling on the Oklahoma law may well decide how prevalent these laws will be. And rest assured, Ted Nugent will be involved.
