Proactive Employment Practices
According to the sports agent of Kyle Love, a former defensive tackle for the New England Patriots, Love was recently cut from the team. Why? Because he was diagnosed with Type 2 diabetes. Again according to his agent, Love is still fully capable of performing his duties (as are many other professional athletes with diabetes). Will Love complain to the EEOC or the Massachusetts Commission Against Discrimination (MCAD)? Time will tell. It certainly seems like a potentially viable claim to me.
April Rodriguez was a customer service representative for a waste management company. She asked for time off and workplace accommodations to deal with her panic attacks and seek psychiatric help. Her supervisor did not take her seriously, accusing her of faking her panic attacks to get more time off. When she failed to come into work for three days, she was fired.
Twenty one million dollars later, the employer has learned its lesson:
Mary Bullock, who suffers from multiple sclerosis, worked for the EEOC as an Administrative Law Judge (ALJ). She filed an internal complaint against the agency in 2006. A contract judge found against her on her discrimination claim but concluded the EEOC had retaliated against her for filing the claim. Bullock eventually filed a civil lawsuit in federal court, which was put on hold while the parties fought over whether Bullock had fulfilled her administrative prerequisites to filing suit. The Ninth Circuit Court of Appeals held last week that Bullock is free to proceed.
Alanis Morisette’s tune “Isn’t It Ironic” comes to mind. The EEOC discriminated against one of its own based on her disability? And then retaliated against her for complaining? Stay tuned.
According to a recent article in the Washington Times, the number of lawsuits filed under the ADA has nearly doubled in the past five years and has seen a sharp uptick in recent months. As us HR-types know all too well, the ADA Amendments Act of 2008 drastically broadened the definition of “disability” under the Act. The result, not surprisingly, is a “flood” of new claims, many of them baseless. Last year, for example, the EEOC determined the highest number of charges had “no reasonable cause.” According to the U.S. Chamber of Commerce Executive Director Mike Eastman, “employers are facing a barrage of frivolous cases, and each one costs $30-, $40-, $50,000.”
With these somewhat terrifying figures in mind, employers would be wise to be proactive on this one. Check your policy on reasonable accommodations. Is it good enough? Are there any potential pitfalls during the hiring process (such as requiring a high school diploma, a la an EEOC letter drafted in December)? And are managers trained on understanding these rules and at least spotting potential disability-related issues? If not, what are you waiting for?
Earlier this month, the Sixth Circuit reversed the grant of summary judgment against a former employee who was transferred during her pregnancy due to concerns the employer had about her health. In Spees v. James Marine Inc., Heather Spees was a welder who discovered she was pregnant shortly after starting her job. At her supervisor’s request, she saw her physician to ascertain her ability to continue working. He released her to work with no restrictions. Nonetheless, her supervisor continued to have concerns about potential health risks to Spees, in part due to the physically demanding nature of the work, and in part due to the fact that two years prior Spees had suffered a miscarriage. He opined that due to “common sense,” Spees should be transferred to a light-duty position. She was therefore reassigned to work in the tool room, despite her desire to continue to weld. Spees was then transferred to the night shift, where she worked until she was confined to bed rest due to complications related to the pregnancy. She quickly exhausted her leave and was thereafter terminated.
Spees sued for pregnancy and disability discrimination, due to her transfer and subsequent termination. The lower court granted the employer summary judgment on all counts. While the Sixth Circuit upheld the grant of summary judgment with respect to the termination (based on leave exhaustion), it held Spees had viable claims relating to her transfer. First, the supervisor’s statement that “common sense” trumped Spees’s medical clearance to return to work was impermissible. Further, it appeared the employer may have “regarded Spees as” disabled, due to her prior pregnancy complications.
Make sure supervisors understand the rules when it comes to working with pregnant employees. Even the benevolent employer who is trying to keep its employees safe can run afoul of the law.
So far, the courts have responded with a resounding no. Most recently, the Oregon Supreme Court held that an employer can fire a worker for using medical marijuana, even if he is legally authorized by the state to use. In Emerald Steel Fabricators v. Bureau of Labor and Industries, John Doe argued that he was disabled within the meaning of Oregon law and that Emerald Steel failed to accommodate his disability. Doe suffered from a debilitating medical condition for which marijuana was prescribed to relieve symptoms. Emerald hired Doe as a temporary worker and wanted to hire him full-time. Knowing that he would have to take a drug test for a full-time position, Doe explained his condition and medical marijuana use to his boss, and was fired shortly thereafter.
While fourteen states and the District of Columbia have passed laws legalizing the possession of marijuana for certain medical purposes, marijuana is still illegal under federal law, and courts have been hesitant to force employers to tolerate illegal behavior. Even the most liberal states are coming down on the side of employers. But beware…California is considering a ballot initiative that would prohibit employers from firing a person who tests positive for marijuana if he has a medical marijuana card. In the meantime, employers need to be aware of the issue and keep an eye on legislation and litigation. 
It is common for employers to have inflexible return-to-work policies that require employees to return to work immediately following the exhaustion of their workers’ compensation leaves, or else face termination. But common does not mean legal; just ask the EEOC. In September, the EEOC received a $62 million settlement from Sears, Roebuck and Co. for violating the Americans With Disabilities Act. Sears utilized a workers’ compensation leave exhaustion policy whereby employees who failed to return to work upon the expiration of their leaves were summarily terminated. The EEOC sued the retail giant, claiming it should have considered whether additional leave would have been a reasonable accommodation under the ADA.
According to Regional Attorney John Hendrickson of the EEOC’s Chicago District Office, “[t]he era of employers being able to inflexibly and universally apply a leave limits policy without seriously considering the reasonable accommodation requirements of the ADA are over.” This settlement represents the biggest in EEOC history regarding the ADA.
Employers would be wise to review their leave policies in light of the EEOC’s stance. If your policy is inflexible, change it now. Even if it is not, make sure those who apply it understand their ADA obligations with respect to reasonable accommodations. Manager training in this area is always a good idea.
When a manager in Loves Park, Illinois got into an argument with a subordinate over her failure to complete paperwork, the employee explained that she must not have heard the deadline correctly, as she is hearing-impaired. Frustrated, the manager asked “How can you work when you cannot hear?” The employee responded with a question of her own: “Aren’t you being discriminatory?” That was enough, according to a recent Seventh Circuit decision, to trigger Title VII’s prohibition against retaliation. When the employee was subsequently terminated, she sued for retaliation (as well as disability discrimination). While the trial court kicked the case out on summary judgment, the Seventh Circuit reversed, instead ordering the case be tried.
Employee protections against retaliation are far-reaching. They are among the most common — and most costly — types of employment-related claims. Make sure your anti-harassment and discrimination policies cover retaliation, and make sure all managers are trained on this prevalent and sometimes counterintuitive area of the law.
The Centers for Disease Control and Prevention, anticipating a wider and more serious spread of the H1N1 flu this season, has released new guidelines (available at http://www.flu.gov/plan/workplaceplanning/guidance.html) to help businesses and employers prepare now for the impact seasonal and H1N1 flu could have on employers, employees and operations.
The CDC recommends that employers take the following actions now:
The guidelines also discuss the important components of an influenza pandemic plan and recommended employer responses for the upcoming flu season. As we wrote previously, however, employers should take care not to discriminate based on the virus. (The EEOC has cautioned against national origin and disability discrimination in the face of a flu pandemic.) Warren & Hays can help create a pandemic plan and appropriate responses to help employers maintain the highest level of productivity throughout the flu season.
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