Employment Discrimination Report : New York Attorneys & Lawyers for Labor Discrimination Defense : Fox Rothschild LLP

That’s right, readers – a court has actually held that an applicant for employment does not have a viable claim for disability discrimination under the ADA if the prospective employer fails to hire him because of his prior conviction for possession with intent to sell heroin and cocaine. Shocking, huh?   

We are being a little facetious, of course, since this federal appeals court decision is self-evident. However, we think that its is blogworthy nonetheless to illustrate a few points. 

First point – anyone can file a lawsuit and sue anyone about anything no matter how frivolous, especially a pro se litigant, which is someone (such as the plaintiff here) who files a lawsuit by himself without an attorney.  So don’t be alarmed if you too find yourself someday at the wrong end of a summons – the case may very well lack any merit whatsoever and be dismissed quickly.

Second point – with a pro se litigant, a court is likely to bend over backwards to make sure that his rights are protected. The court in this case did this by reviewing all possible claims that could be read into the plaintiff’s inartful complaint. The court reviewed the elements of an ADA claim, and found that the plaintiff did not allege that he had the required physical or mental impairment necessary to demonstrate a disability.  

The court next reviewed claims under Title VII, which plaintiff raised for the first time on appeal – he claimed that defendant’s alleged failure to hire him because of his criminal conviction was discrimination not only under the ADA but also under Title VII.   The court correctly ruled that “we do not consider claims presented for the first time on appeal.” However, in true “bending over backwards” fashion, the court still considered plaintiff’s allegations under the standards of Title VII. 

The court stated (again correctly) that Title VII indeed prohibits any employment practice that causes a “disparate impact” on members of a protected class, and noted that it had previously held that an employer who refuses to hire because of a prior criminal conviction may run afoul of Title VII if the employer’s policy has a disparate impact on a protected class. However, the court found that plaintiff in this case did not allege that he was, in fact, a member of a protected class.  Case dismissed.

Last point – just as anyone can file a lawsuit, no matter how frivolous, it is also true that a court can, at least in the initial stage of a lawsuit, read some potential legal claim into the allegations in the complaint that will permit a plaintiff to go forward with the case. So don’t ignore a summons, and make sure that it is dealt with professionally.    

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A significant First Amendment religious freedom case which directly implicates the employment anti-discrimination laws was decided today by the Supreme Court. The issue placed squarely before the Court dealt with the tension between government and religion, the "wall” between them, and the possible “entanglement” between church and state.

In Hosanna-Tabor Church v. Equal Employment Opportunity Commission, which we wrote about in our blog of October 6, 2011, the Court had before it a religious institution which employed a teacher who taught both secular subjects and a class in religion. She claimed to have a disability, and when she threatened to file a charge of disability when a new teacher was hired to replace her, she was fired for insubordination and because one of the tenets of the religious institution was that all disputes must be resolved internally and not in the courts.

At issue was the definition of “minister,” because” the “ministerial exception” holds, in effect, that the government should not get involved in internal church affairs involving “ministers,” and therefore courts should not become embroiled in lawsuits involving “ministers.”  As we noted earlier, at oral argument last autumn, the Supreme Court justices asked many questions trying to figure out the limits of the “ministerial exception.” Indeed, Justice Breyer stated that “This is tough and I’m stuck on this.”

Writing for a unanimous Court that upheld the rights of the religious institution as against the employee, Chief Justice Roberts held that the religious institution must be free to choose its own ministers without state involvement. He stated that  “The interest of society in the enforcement of employment discrimination statutes is undoubtedly important,” but also that “so too is the interest of religious groups in choosing who will preach their beliefs, teach their faith, and carry out their mission.”   

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The title of this blog may not be technically correct, but it is close to the truth.

The latest EEOC informal opinion letter addresses a question about whether students in Tennessee who have learning disabilities may be required to take certain tests as part of a requirement for a high school diploma.  Inexplicably, the letter veers off course and the EEOC has taken the opportunity to issue a pronouncement for employers who require applicants have high school diplomas.  This informal opinion letter is presumably meant to provide guidance but it falls woefully short of that goal. 

I have to admit that this informal opinion letter is old news since it was issued on November 17, 2011 and has appeared in countless blogs and new articles ever since.  When it first came out, I read it like everyone else did and planned a blog entry.  I got stuck when I tried to explain what this meant for employers.

The informal opinion letter sets forth the general requirements of any testing or standard used by employers -- is the test or standard consistent with a business necessity?  As the EEOC sets forth, an employer cannot require applicants have a diploma unless the employer can demonstrate that the skills required to obtain a diploma "accurately measures the ability to perform the job’s essential functions." 

So far, so good.  Then I got to the next part of the letter.  The EEOC went on to state that even if an employer can prove that the diploma is necessary to prove an applicant can perform the essential functions of the position, the employer may still need to make a reasonable accommodation for an applicant with a learning disability who was unable to obtain a diploma. 

Huh?

My confusion comes in because the ADA has been interpreted to state that an employer does not have to remove the essential functions of a position in order to accommodate an employee.  If an employer can demonstrate, as set forth in 29 CFR §1630.10, that having a high school diploma directly relates to whether an employee can perform the essential functions of a job, then how is the employer going to accommodate a learning-disabled applicant who cannot get a high school diploma? 

A more practical problem for employers is how will they know if an applicant does not have a diploma because of learning disability and thus may require an accommodation.  It is not as if an employer can ask that question during an interview.

Although the letter is not helpful for employers in the way the EEOC intended, it is helpful to signal a new enforcement policy that the EEOC may be applying.  It also should signal to employers that they should be very cautious before requiring any degree or diploma for a position. 

 (photo courtesy of gadgetdude)

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Although we do not currently have an office in Hawaii, and perhaps it's just because it was 16 degrees when I went to take the dog for a walk this morning, the latest news from sunny and warm Hawaii caught my eye.

  (photo courtesy of Sarah_Ackerman)

New Year's Day 2012 marked the first day that Hawaii performed civil union ceremonies under a law that was enacted in February 2011. 

Since Hawaii is already a popular honeymoon destination, the law is likely going to boost gay and lesbian tourism for same-sex couples planning destination weddings.  The law not only benefits gay and lesbian tourists and those involved in the hospitality industry, it benefits all same-sex residents of Hawaii.

The law also means that Hawaii employers will need to review benefits and leave policies to determine if revisions need to made to allow for civil union partners to have the same benefits as spouses.  Of course, certain benefits may not need to be or cannot be changed because of the federal Defense of Marriage Act.

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With the holidays here and as New Year's approaches, employees may be feeling warm and fuzzy toward their co-workers.  They may also be getting their nerve up to jump start the New Year by asking out that co-worker they've long had their eye on.  Even in companies where there is no specific fraternization policy, these co-workers may not be in the clear.

The Third Circuit case of Anastasia v. Cushman Wakefield, Citgroup, et als. demonstrates why it may not be such a good idea to ask your co-worker out on a date.  In this case, an employee of Citigroup opened up to the plaintiff one day over lunch and confessed that he was interested in her romantically.  The Plaintiff immediately set him straight that he was only a friend and mentor.

So, now you're probably thinking that this clod could not take no for an answer and kept pursuing her, which is why she finally sued, right?  Wrong.

The spurned suitor was instead immediately embarrassed and apologized several times for his comment.  He even thanked her for her understanding about his boorish behavior.  She responded by going out on leave and eventually sued for sexual harassment.

Although the Third Circuit upheld the dismissal of the suit by the District Court, as any person who has been involved in a discrimination lawsuit knows, winning can be a hollow victory.  By the time summary judgment and an appeal is filed in a case, legal fees are likely to be close to or over $100,000.  This is true even though the employee did not engage in harassing behavior.

Looking back on it now, I am sure that the defendant wishes he had never opened his mouth in the first place.  The lesson to be learned, as it often is, think before you speak.  Oh, and if your office's holiday decor includes mistletoe, you might want to take that down.

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An Alabama federal appeals court recently held that an employee in her mid-60’s who claimed age discrimination when she was demoted to a less desirable position (and called “Grandma” repeatedly),  stated a claim under the Age Discrimination in Employment Act of 1967 ("ADEA").   Although she did not receive lower pay or less benefits, her transfer “resembles a forced exile more than a lateral transfer” - her responsibilities were substantially reduced, she claimed that she was not supplied necessary equipment, and that she became a “departmental outcast.”  

The Court stated that under the McDonnell Douglas test, a plaintiff must first establish a prima facie case of age discrimination by showing that: (1) she was a member of the protected group of persons between the ages of 40 and 70; (2) she was subject to an adverse employment action; (3) she was qualified to do the job; and (4) she was replaced by a younger individual.  If the plaintiff can make this showing, the "employer must articulate a legitimate, nondiscriminatory reason for the challenged employment action,” after which the plaintiff must show that this alleged reason is a “pretext.”

The employer in this case contested only one of the McDonnell Douglas elements, contending that plaintiff suffered no “adverse employment action.” The employer also claimed that plaintiff was transferred because of performance reasons.   

On the record before it, the Court held that the employee indeed sufficiently made out an adverse employment action taken against her and therefore stated a prima facie age claim, which the employer adequately rebutted with an allegedly legitimate business reason.   

However, the court concluded that as to “pretext,” there were grounds to support an inference of age-related discrimination, which included plaintiff’s superior’s special treatment of the younger women in his department, “in combination with [his] allegedly derogatory use of the term "Grandma" on multiple occasions.

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In a recent case from Georgia, a plaintiff who had been diagnosed with Gender Identity Disorder (“GID”), was fired from her job with the state of Georgia when she made it known that she was undergoing gender transition from male to female. The stated reason for termination was that plaintiff’s “intended gender transition was inappropriate, that it would be disruptive, that some people would view it as a moral issue, and that it would make [plaintiff’s] co-workers uncomfortable.”   

Plaintiff sued alleging sex discrimination, but not under Title VII, which applies to both public and private employers, but solely under the Equal Protection Clause of the Fourteenth Amendment to the United States Constitution (which applies to public employers, not private employers). The Court wasted no time in marshalling the caselaw starting with the Supreme Court’s Price Waterhouse case in 1989 which held that discrimination based upon gender stereotype is sex-based discrimination.  

Asking the question “whether discriminating against someone on the basis of gender non-conformity is sex-based discrimination under the Fourteenth Amendment, the Court answered in the affirmative, holding that this was so whether it was described as being sex or gender based. The Court stated that the employer’s discriminatory intent was amply demonstrated by direct deposition testimony.

Although this ruling applies solely to public employers because it was filed under the Fourteenth Amendment, private employers should take note of the clear signal given by the Court that “[i]f this were a Title VII case, the analysis would end here” - after the clear direct discriminatory evidence was adduced.     

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By their statutory language, neither Title VII nor the federal Age Discrimination in Employment Act (“ADEA”) explicitly prohibit workplace harassment based upon gender, race, nationality, religion, age, or other protected class characteristics. For example, Title VII prohibits discrimination with respect to “compensation, terms, conditions, or privileges of employment,” but no mention is made of workplace harassment based upon any of these characteristics.   

Some lower courts as far back as 1971 read into Title VII the provision that “terms, conditions, or privileges of employment” includes prohibiting a discriminatorily hostile or abusive workplace environment.  For example, one court eloquently stated that Title VI should be liberally construed, and therefore the “terms, conditions, or privileges of employment:"

"evinces a Congressional intention to define discrimination in the broadest possible terms. Congress chose neither to enumerate specific discriminatory practices, not to elucidate in extensor the parameter of such nefarious activities. Rather it pursued the path of wisdom by being unconstrictive, knowing that constant change is the order of our day and that the seemingly reasonable practices of the present can easily become the injustice of the morrow."      

The Supreme Court finally recognized this principle in 1993, as it applied to sexual harassment.  Thus was eventually born the various theories of liability such as quid pro quo sexual harassment. Courts expanded Title VII’s reach to include harassment based upon characteristics other than gender and race.    

The latest change in the law has occurred in a case filed in Louisiana, where a federal appeals court has held for the first time that “a plaintiff’s hostile work environment claim based on age discrimination under the ADEA may be advanced in this court.”   The court set out the elements of such a claim: (1) the plaintiff is over 40; (2) (s)he was subjected to harassment based upon age; (3) the nature of the harassment was such that it created an objectively intimidating, hostile, or offensive work environment; and (4) there exists some basis for liability.    

Add this claim to the ever growing list of workplace actions which must be guarded against.

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On Wednesday, the Massachusetts passed and sent to Governor Deval Patrick, a bill--H.3810, which outlaws employment discrimination on the basis of “gender identity.”  It is expected that Governor Patrick will sign the bill which will take effect on July 1, 2012.  

The proposed legislation would insert the phrase “gender identity’’ to chapters of state law governing discrimination in employment, housing, insurance, mortgage loans, and credit. However, it does not include special considerations to transgendered individuals in public accommodations, such as bathrooms and locker rooms.

The bill defines gender identity as “a person’s gender-related identity, appearance or behavior, whether or not that gender-related identity, appearance or behavior is different from that traditionally associated with the person’s physiology or assigned sex at birth.” The legislation also provides some non-exhaustive examples of how a person can establish they are transgendered.

If this bill is signed into law, as anticipated, Massachusetts employers must ensure their decision makers are aware that taking adverse action against a transgendered person is unlawful.  Internal anti-discrimination trainings, manuals and employee handbooks should also be revised, where necessary, to reflect this change.

We will keep you posted. 

Have a great weekend.

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Harassment training? If you read the title of this blog out loud and heard groans from other people in your office, I understand. In fact, when I have done harassment training for clients, I have heard every complaint and bad joke about harassment training there is.

Harassment training is one of those dreaded exercises by employees and management alike. Indeed, harassment training has become comedy fodder for many a tv sitcom. My personal favorite is still The Office episode "Diversity Day" where a sensitivity trainer is sent out to the branch due to Michael's comments. A perfect what not to do lesson. Check it out if you want a good laugh.

But while The Office may be funny, a real harassment claim is anything but funny for employers. As we posted in our February 10, 2011 blog, employers who provide regular training on their harassment and discrimination policies may be able to assert an affirmative defense to a claim of discrimination where an employee is aware of the policy and fails to report the harassment prior to filing a lawsuit. 
 

Recently, the issue of training came up again in the New Jersey Appellate Division case Wallace v. Mercer County Youth Detention Center.  In addressing when an employer could be liable where a non-supervisory co-worker commits the harassment, the Court re-emphasized the need for employers to not only issue policies but also to provide harassment training to its employees.  The Court noted that providing harassment training, in addition to properly training those investigating the complaints on how to do a correct investigation, was critical to asserting an affirmative defense to liability. 

In short, employers must make it clear to their employees, through training, that harassment of any kind will not be tolerated.

Although it may be possible to assert the defense even in the absence of training, providing the training is an easy fix.  Generally, the cost to employers, both in terms of lost productivity while the employees are at training and any costs paid to a trainer, are minimal as compared to litigation costs.

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In our blog entry of March 29, 2011, we wrote about the logical fallacy known as “post hoc ergo propter” – believing that “temporal succession” implies a causal relation.  That is, the mere close or suspicious timing of two events does not necessarily lead to the logical conclusion that one event caused the other.   

In that entry we discussed a federal court decision, Loudermilk v. Best Pallet Co., where an employee’s firing took place just as he handed his boss a note opposing a discriminatory action. The Court stated that as a matter of law, this alone did not show causation for a viable retaliation claim, but the timing of the firing “could support an adverse inference by a reasonable trier of fact,” that is, the issue can be left to the jury, a not particularly auspicious outcome. The Court said that while suspicious timing may be merely suspicious, and no more, “[o]ccasionally, however, an adverse action [the firing] comes so close on the heels of a protected act that an inference of causation is sensible.” 

A federal court in Pennsylvania recently held, in Linhart v. Zitelli & Broadland P.C., that an employee who was fired only hours after informing the employer that he had a condition known as avascular necrosis and needed hip replacement surgery stated a viable claim under the Americans With Disabilities Act (“ADA”) since he raised “a reasonable inference of discrimination.”   

*As the Loudermilk Court said it, “an employer who advances a fishy reason takes the risk that disbelief of the reason will support an inference that it is a pretext for discrimination.” 

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It is now officially flu season. One may be unlucky enough to contract a simple seasonal flu (jnfluenza A), or really unlucky enough to contract a more serious flu such as the swine flu (from the H1N1 virus).

But is “the flu” a disabling condition under the ADA?

One federal court in Florida found that having the flu is not a disability. In Lewis v. Florida Default Law Group, the plaintiff employee was diagnosed with a seasonal flu but believed she had the H1N1 virus and so informed her employer. When she was terminated for excessive absences, she sued claiming that the real reason for her termination was that she had an “actual disability” and/or that she was regarded by her employer as having a disability.     

The Court rejected both claims and looked to the ADA and its amendments for the answer. The Court held that “the flu,” whether it was seasonal or swine, was not an actual disability since it is of short duration, and that although short duration conditions can be a disability if severe enough, the flu is nonetheless not of the severity described in the amendments. Nor, the court found, is it permanent but  “episodic,” such as cancer or epilepsy.

As to whether the employee was “regarded” by her employer as having a disability, the court similarly held that the employee’s objectively transitory and minor condition fell within an exception under the amendments, and therefore could not be “regarded as” an impairment.                      

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Where's the beef?  Or in this case, the defense to a charge of discriminatory hiring.  Caviness Beef Packers Ltd. is likely asking itself that very question.

A mere month after announcing a $2 million dollar settlement was reached between the Office of Federal Contract Compliance Programs (OFCCP) and Tyson Foods, the OFCCP announces a $600,000 settlement with Caviness Beef. 

The OFCCP alleged that Caviness Beef discriminated against nearly 750 applicants based upon race and gender.  Like in the Tyson Foods case, the complaint appears to have been initiated not because of an individual complaint, but because of a statistical analysis that showed males and Hispanics were hired in greater proportions to females and other races.

The similarities to the Tyson Foods case do not stop there.  In a statement, Caviness Beef admitted that it had no records to show why applicants were not selected.  As we noted in our September 21, 2011 blog, the failure to have such records also likely caused Tyson Foods to agree to its $2 million settlement.

The OFCCP is not the only governmental agency that has been increasing enforcement efforts.  Employers may certainly see an increase in similar complaints from the Equal Employment Opportunities Commission.  Just another reminder to document, document, document.

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    Several weeks ago, I saw an article on Gawker.com that a woman had accidentally got her colleagues high on pot brownies.  Apparently, her son had left them in the freezer and she was unaware that the secret ingredient was not extra chocolate chips. 

I keep thinking about this article, mostly because it makes me laugh to think about what that office must have been like that day and what my office would be like if something like that happened here. 

But that article also brings up an issue for employers -- does having a prescription for marijuana due to a disability trump an employer's anti-drug policies?  The answer is dependent on each state's medical marijuana laws.

As of this date, 16 states and Washington D.C. have medical marijuana laws.   New Jersey's law, which became effective in July 2011, has a specific provision that states that the law does not require an employer "to accommodate the medical use of marijuana in any workplace."

Delaware's law, on the other hand, affirmatively prohibits employers from discriminating against a registered qualifying patient "unless a failure to do so would cause the employer to lose a monetary or licensing-related benefit under federal law or federal regulations." 

What is especially problematic for Delaware employers is that an employer may not terminate an employee who is a registered qualifying patient and who tests positive for marijuana components or metabolites, unless the patient used, possessed, or was impaired by marijuana on the premises of the place of employment or during the hours of employment. 

Although the law gives employers an out if the employee is under the influence at work, practically speaking, this puts the employer in a tough spot in a wrongful termination suit.  In order to prevail in such a suit, an employer would have to introduce expert medical testimony regarding how marijuana metabolizes in the system to prove the employee was high at work and not four hours before reporting to work.  Let's face it -- that type of evidence can be very boring and complicated for a jury to understand.

As more and more states enact medical marijuana laws, employers would be wise to make sure they understand their obligations under the law before terminating an employee with a positive drug test due to the use of medical marijuana.

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