Posted by marykeating on March 31, 2011 under disability discrimination | 
After years of federal courts narrowing the useability of the Americans with Disabilities Act, Congress amended the law to clarify that the ADA has broad coverage. Although the ADA Amendments Act dates from 2008, the regulations are just now final, after lots of commentary.
The amendments overturned the trend in the courts to make it difficult to establish that someone was indeed “disabled.” For awhile, a plaintiff had to walk a tightrope: disabled enough to fall under the act’s protections, but not so disabled that she could not perform the job.
The regulations may not be popular with employers, but clarity is always better than gray areas, which only lead to more litigation. The EEOC’s regulations list a host of conditions that should nearly always be considered a disability under the law. This could forestall a lot of court fights. For example, the EEOC lists cancer, cerebral palsy, HIV infection, multiple sclerosis, bipolar disorder, post-traumatic stress disorder, major depressive disorder, diabetes and epilepsy. In addition, although pregnancy is a temporary condition, a pregnancy-related impairment that substantially limits a major life activity qualifies as a disability.
The amendments also ease the proof burden for employees or applicants claiming that they were discriminated against based on their being “regarded as” having a disability. Now, a person no longer has to prove that the employer perceived him as substantially limited in the ability to perform a major life activity, or that the perceived disability itself qualifies under the ADA. The regulations use these examples:
“if an employer refused to hire an applicant because of skin graft scars, the employer has regarded the applicant as an individual with a disability. Similarly, if an employer terminates an employee because he has cancer, the employer has regarded the employee as an individual with a disability.”
These regulations are designed to protect people with disabilities from unlawful discrimination, and also make clear what actions qualify as unlawful discrimination. In that regard, they do a service to employers and employees alike.
Posted by marykeating on March 24, 2011 under Wage and hour issues, retaliation |
Employment practitioners have been waiting for a long time for the Kasten V. Saint-Gobain Performance Plastics Corporation decision. That case arose under the Fair Labor Standards Act, which governs wages and overtime issues, among other things. Kevin Kasten complained orally, several times, about his company’s practice of putting the time clocks in a place that the employees can’t reach until they have put on the protective gear required for their jobs. Under the law, the employer has to pay them for the time they spend putting on and taking off the gear, but this company did not. After Mr. Kasten’s complaints, he was fired.
The Supreme Court had to resolve the issue whether an oral complaint was enough to invoke anti-retaliation protection. Unlike the laws prohibiting race and sex discrimination, the FLSA uses the word “filed” in connection with a complaint. After reviewing different definitions of filed, the Court turned to the reason for the anti-retaliation protection. Justice Breyer wrote “Why would Congress want to limit the enforcement scheme’s effectiveness by inhibiting use of the Act’s complaint procedure by those who would find it difficult to reduce their complaints to writing, particularly illiterate, less educated, or overworked workers? President Franklin Roosevelt pointed out at the time that these were the workers most in need of the Act’s help.”
While employers worry that oral complaints present problems of whether the right people get notified, it is important to recognize the effect of a rule that everything has to be in writing. Once employees are trained that they must lodge written complaints, the workplace will get less flexible and friendly. An oral complaint to a supervisor or, as in Mr. Kasten’s case, the company’s ethics hotline, should be enough to alert the company to determine whether it needs to investigate further. Had the company here done that, and realized it had to pay employees differently, it would not have been in the Supreme Court (not to mention all the other courts where other employees may have sued it).
Posted by marykeating on March 19, 2011 under Sex-based discrimination, sexual harassment |
The Fourth Circuit just reinstated a case on behalf of worker who was routinely sexually harassed while on a customer’s premises. The trial court, together with the employer, told the employee that it was his fault. He did not provide enough details about the harassment, preventing the employer from taking corrective action.
Not so fast, according to the appeals court. Contrary to the summary disposition by the lower court, the appeals court saw plenty of evidence in the record. The employee demonstrated that he complained early and often, but he was told that the harassers were joking; that he should stop whining; and that because of his complaints his company “could lose everything.” After he complained to the EEOC, the company offered him a different shift with lower pay, which conflicted with the employee’s childcare responsibilities. He was fired for not taking the changed shift.
The Fourth Circuit held that an employer “is liable if it knew or should have known of the harassment and failed to take appropriate actions to halt it.” The unanimous response from the management was to belittle his concerns and not ask questions. It went on to repeat its rule that “claims of harassment could not be avoided through the adoption of a ‘see no evil, hear no evil’ strategy.” It also refused to require adherence to the requirement that claims be reported only to the company president, given the size of the company.
Posted by marykeating on March 16, 2011 under Collective rights |
It could be that there are not enough of them. No longer an accepted way of life for large swaths of American life, they are under attack even as workers have longer hours and lower pay. Bait and switch? We have noticed, have we not, that the income gap has increased, the stock market it up, but our unemployment rate lingers in the unacceptable zone.
Ironically, the more beleaguered unions become, the less they are able or willing to do for their workers. I hear employees complaint frequently about their union’s ineffective grievance process, or lack of attention to a workplace problem. In survival mode, the union personnel may think that they should keep their heads down, rather than protect the workers. But that is a recipe for obsolescence.
Posted by marykeating on March 15, 2011 under Court news, Sex-based discrimination |
In a charming throwback to the Donna Reed days, the love life of prominent females is fair game for scrutiny. According to Justice Sotomayor, “during the nomination process she was asked for the names of everyone she ever dated.” She does not believe, nor do I, that men are subjected to similar memory tests. What could be the relevance of such a question? The justices already recuse themselves from cases in which they are close to the case, the parties, or the lawyers. Justice Kagan has had to recuse herself from a number of matters this year, since she just came from the Solicitor General’s Office.
Female candidates for any job may be subject to questions or judgments based upon their personal life. Sometimes it’s just an annoyance, but often such focus is illegal. If an employer decides, for example, that a female employee is more likely to be absent or less likely to be willing to travel because of her family obligations, that is gender discrimination. An assumption that she will quit when she gets married again reminds us of the 1950s. And the hope that hiring an attractive woman will provide amusement for a boss looking for some love – well, that’s just jumping into a sexual harassment claim.
Posted by marykeating on March 7, 2011 under Employment benefit issues |
Something to think about in the debate over health care reform. The old model of health insurance is broken: it’s no longer being included as an automatic fringe benefit. Now, according to a Gallup Poll, only 44.6% of people received employer-sponsored health care insurance. Meanwhile those covered under government programs like Medicare and Medicaid topped 25%.
That leaves those of us able to find private individual plans, and those of us (now 16.3%) with no coverage whatsoever.
I reported a while back on the odd origin of health insurance as a typical employment fringe benefit. As group health insurance becomes scarcer, it becomes clearer that we need to reform the system. Otherwise we’ll pay in other ways.
Posted by marykeating on March 5, 2011 under Economic situation |
The New York Times reports today that the recovery is making itself felt in job gains, for the first time in many moons. The job gains are in the private sector, and economists are looking at this as the first month of a trend in gains. In fact, the paper reports that the unemployment rate may appear to rise soon. This reflects the paradoxical situation in which people who had been forgotten by the job market, so don’t figure into the unemployment statistics, enter it again when times look better.
On the public side, it’s not just wacky Wisconsin laying off government employees. The dwindling of federal stimulus funds and the decrease in tax revenues, coming from income taxes and lowered property rates, are putting states in a deficit situation. They can’t mint money, though, so they need to balance budgets or float bonds.
Overall any good news is good. There are still clouds in these silver linings, though. The average period of unemployment is almost 38 weeks, and the proportion of women in the workplace is its lowest in more than twenty years. There is still a lot of recovering to be done to get to where we were a few years ago.
Posted by marykeating on March 1, 2011 under Discrimination in employment |
Today the Supreme Court decided a critical issue in employment discrimination law. For years lawyers and judges have been arguing about whether an employer is liable for employment discrimination when the person with the bias lacked the authority to fire the complaining employee. This situation arises when a supervisor wants to get rid of an employee, but does not have the authority to discipline or fire the person. The supervisor does have the power, though, to write him up, complain about him, or lose the doctor’s note he brought in to explain an absence.
In the case Staub v. Proctor Hospital, a fired employee was tossed out of court because the two employees who discriminated against him were not the ultimate decisionmakers; the person who decided to fire Mr. Staub relied upon a falsified report that Mr. Staub had violated the terms of his disciplinary write-up. That person is referred to as the “cat’s paw,” which does the dirty work of the monkey without knowing it is being used. (These analogies come from an Aesop fable.) Mr. Staub won at trial, but the appeals court held that the employer was insulated because the person who determined to fire him did not have any discriminatory bias.
The Supreme Court unanimously concluded that the hospital does not get an automatic win in this circumstance. Instead, the Court reasoned that since corporations work through a “multitude of agents,” one of the agents could have tilted the decision in a discriminatory way. The Court stated it clearly:
“We therefore hold that if a supervisor performs an act motivated by antimilitary animus that is intended by the supervisor to cause an adverse employment action, and if that act is a proximate cause of the ultimate employment action, then the employer is liable under USERRA. “
The case arose under the law that forbids discrimination against people in the military, or returning from military duty. The opinion makes clear that the same analysis should be applied to Title VII, prohibiting discrimination based on race, sex, religion and national origin. It will probably also be extended to age and disability discrimination.
