Texas Employment Law Blog : San Antonio Employment Discrimination Lawyer & Attorney : McKinney Law Firm : Sexual Harassment, Wrongful Termination : Texas

In the article, In denial: Corporate America’s blindness to gender discrimination the author, Jonathan A. Segal, makes some good points regarding the continued presence of gender discrimination in the workplace. The article points out that business risks, just like legal risks, come hand-in-hand with gender discrimination. “How can a company expect to survive, let alone thrive, if half of the talent pool is excluded from key positions?”

But the legal implications are certainly serious. Despite the fact that the Supreme Court threw out a gender bias class action suit against Wal-Mart(WMT) in 2011, discrimination class actions continue to be filed. In the wake of the Supreme Court’s decision, we are seeing more carefully worded class action complaints. We are also seeing smaller classes, where settlements may be “only” in the hundreds of millions rather than in the billions of dollars. So, it’s fair to expect more gender bias class action suits against employers. Why aren’t more employers doing more to change their practices?

The authors also points out that he believes that one of the problems with gender discrimination is that people tend to think that it is happening at someone else’s business, not theirs.

“We all know there is unconscious bias. It’s just others who have it. We all know there are Boys’ Clubs. It’s at the company next door. It’s hard for many people to believe that their organization could have a Boys’ Club. That they could be part of a Boys’ Club is inconceivable because it is inconsistent with how they see themselves.”

While it may be inconsistent with how most executives see themselves, it is completely consistent with the fact that the senior management teams of most large companies are still overwhelmingly male.

Unfortunately, discrimination is a problem that can never be fully eliminated until it is acknowledged by everyone. This holds true not just for gender discrimination, but for all types of discrimination. Businesses and their employees should strive for a diversity of people and ideas to be as successful as possible.

Read the entire article here.

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As employer wellness programs become increasingly more common, so do questions regarding their benefits and drawbacks. On May 8, 2013, the EEOC issued a press release that outlined a meeting of a panel of representatives of business, advocacy groups, and providers held that same day. You can read the full press release here.

According to the EEOC’s release, the panelists discussed potential violations of the Americans with Disabilities Act (ADA), Genetic Information Nondiscrimination Act (GINA), Title VII, and the Age Discrimination in Employment Act (ADEA) that may arise through the implementation of employer wellness programs. For example, one of the panelists pointed out that certain groups such as women or older people tend to have more health problems than other groups. Additionally, certain races tend to have more problems with health conditions such as obesity and diabetes. Therefore, employer wellness programs may have a disparate impact on these groups that tend to have more health problems.

Some panelists also had questions regarding the interaction between employer wellness programs and the ADA or employer wellness programs and HIPPA. The ADA and HIPPA both allow for certain health related information to remain confidential but the employer wellness program may ask for the same information to be disclosed.  Employers will need to be careful to ensure that wellness programs do not cross the line to impermissible medical examinations of employees.

Despite the questions that these wellness programs bring, the programs may also have a positive impact by rewarding healthy behavior by employees. Some wellness programs may provide financial incentives for those that do not smoke cigarettes or are active in monitoring their health. Whatever your personal opinion is regarding employer wellness programs, it is clear that employers will be wise to seek guidance about their interplay with federal anti-discrimination laws before implementing such a plan.

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The EEOC has released a series of helpful videos regarding various issues relating to discrimination in the workplace but they can be a little difficult to locate so we thought we would start posting them here as well.  This week EEOC Attorney, Robert Canino, discusses some important issues relating to harassment in the workplace.

The only thing that I would add to Mr. Canino's comments is this: If you believe you are being unlawfully harassed, don't hesitate to contact a board certified employment lawyer.  Even if your situation does not present a case that can be immediately filed in court, an employment lawyer can assist you evaluating your situation and advising you as to the most appropriate course of action to take to stop the unlawful harassment.

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The U.S. Supreme Court granted certiorari on March 18, 2013 in Madigan v. Levin, a case that considers whether state and local government employees can bring cases of age discrimination directly under the Equal Protection Clause and 42 U.S.C. § 1983. Generally, a person who has been subjected to age discrimination would bring an age discrimination case in federal court under the Age Discrimination in Employment Act (“ADEA”).

In the district court, the defendants in the case argued that the ADEA is the exclusive federal remedy for age discrimination claims. Therefore, They argued, Levin couldn’t bring his age discrimination claim under the Equal Protection Clause and 42 U.S.C. § 1983. Both the district court and the 7th Circuit disagreed. This is important because all of the other circuit courts that have considered this issue have decided differently from the 7th Circuit. Instead, those courts have decided that the ADEA is the exclusive federal remedy for age discrimination claims.

This case is made more important due to a case decided in 2000 called Kimel v. Florida Board of Regents. In that case, the Court held that the Eleventh Amendment barred state employees’ claims for damages under the ADEA. The Kimel decision effectively leaves state employees with no federal remedy for age discrimination claims unless the Supreme Court decides that state employees may bring a § 1983 equal protection claim for age discrimination.

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On Friday, the Supreme Court granted cert in University of Texas Southwestern Medical Center v. Nassar to address mixed motives in retaliation cases.  In Price Waterhouse v. Hopkins, 490 U.S. 228, 258, 268-69 (1989), the Supreme Court held that the discrimination provision of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e-2(a), requires a plaintiff to prove only that discrimination was "a motivating factor" for an adverse employment action. In contrast, in Gross v. FBL Financial Services, Inc., 557 U.S. 167, 179-80 (2009), the Court held that the Age Discrimination in Employment Act of 1967 (ADEA), Pub. L. 90-202, 81 Stat. 602, requires proof that age was "the but-for cause" of an adverse employment action, such that a defendant is not liable if it would have taken the same action for other, nondiscriminatory reasons.

The courts of appeals have since divided 3- 2 on the question of whether Gross or Price Waterhouse establishes the general rule for other federal employment statutes, such as Title VII’s retaliation provision, that do not specifically authorize mixed-motive claims.

The question presented in Nassar is stated by the Court as follows:

Whether the retaliation provision of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e-2(a), and similarly worded statutes require a plaintiff to prove but-for causation (i.e., that an employer would not have taken an adverse employment action but for an improper motive), or instead require only proof that the employer had a mixed motive (i.e., that an improper motive was one of multiple reasons for the employment action).

Read More: Supreme Court's Docket Page for University of Texas Southwestern Medical Center v. Nassar

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The U.S. Equal Employment Opportunity Commission (EEOC) has settled a disability discrimination lawsuit against The Scooter Store, a nationwide, Texas-based retailer, the agency announced today. The terms of the settlement require The Scooter Store to pay money damages to a disabled former employee and to make changes designed to prevent discrimination and retaliation.

According to the EEOC's lawsuit, filed in U.S. District Court for the Eastern District of New York, the EEOC alleged that The Scooter Store discriminated against James Sherman, a mobility manager, by failing to grant his request for a reasonable accommodation. Sherman suffers from psoriatic arthritis and needed a temporary leave of absence from work. The EEOC claimed that the Scooter Store denied Mr. Sherman's request and fired him, in violation of the Americans with Disabilities Act of 1990 (ADA).

By the terms of the consent decree settling the suit, The Scooter Store agreed to pay $99,000 to Mr. Sherman. Further, The Scooter Store agreed to comply with the requirements of the ADA and modify its leave policy. The decree also requires monitoring and training on anti-discrimination law. The decree will last for five years.

Read the Full Press Release Here

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Today we express our thanks and gratitude to the veterans who have served and sacrificed so much to guarantee the freedoms that the rest of us enjoy.  

Unfortunately, many veterans who return from service have a great deal of difficulty finding employment once they are back in the States.  Often this is due to disabilities suffered by veterans as a result of their service.

The EEOC recently issued two revised publications addressing veterans with disabilities and the Americans with Disabilities Act (ADA). Both documents are available on the agency’s website at www.eeoc.gov.

The revised guides reflect changes to the law stemming from the ADA Amendments Act of 2008, which make it easier for veterans with a wide range of impairments – including those that are often not well understood -- such as traumatic brain injuries (TBI) and post-traumatic stress disorder (PTSD), to get needed reasonable accommodations that will enable them to work successfully.  [Prior to the ADA Amendments Act, the ADA’s definition of the term “disability” had been construed narrowly, significantly limiting the law’s protections.] 

The revised documents are also an outgrowth of a public meeting the EEOC held on Nov. 16, 2011 entitled “Overcoming Barriers to the Employment of Veterans with Disabilities.” In that meeting, the Commission heard testimony from a panel of experts on the unique needs of veterans with disabilities transitioning to civilian employment.  The particular challenges faced by veterans with disabilities in obtaining employment has been the subject of increased attention in recent months, as large numbers of veterans return from service in Iraq and Afghanistan.

The Guide for Employers explains how protections for veterans with service-connected disabilities differ under the Americans with Disabilities Act (ADA) and the Uniformed Services Employment and Reemployment Rights Act (USERRA), and how employers can prevent disability-based discrimination and provide reasonable accommodations.

The Guide for Wounded Veterans answers questions that veterans with service-related disabilities may have about the protections they are entitled to when they seek to return to their former jobs or look for civilian jobs. The publication also explains the kinds of accommodations that may be necessary to help veterans with disabilities obtain and successfully maintain employment.

 And again to all veterans, please accept the thanks of a grateful nation.

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 Reading a recent article authored by Kerri Lynn Stone and published by Florida International University's Legal Studies Research Paper Series.  The article discusses the growth of the so-called "stray-remarks" doctrine from a its beginning as a relatively narrow idea to its current state - a tool used too often to ignore summary judgment evidence and turn the burden of proof at the summary judgment stage of a case on its head.

Here is the abstract:

A decision maker repeatedly used the word “boy” when addressing two African-American employees, who then did not receive a promotion for which they had applied. A Puerto Rican doctor whose employer did not renew her contract proffered testimony that her employer's Director of Clinical Services said, “‘Dominican doctors were better’ than ‘the other physicians who were there, who were Puerto Rican.”’ In each case, despite the fact that a jury rendered a verdict for the plaintiff, the court held that the comments were insufficient as a matter of law to evince employment discrimination. 

Significantly, in each of these cases, the court used an increasingly amorphous and insidious doctrine called the “stray comments” or “stray remarks” doctrine to wholly or partially devalue what was alleged to be probative evidence. The United States Supreme Court looks to have unwittingly created this doctrine in a decision over twenty years ago, and it has operated since then, unchecked and hardly discussed, to aid courts in holding that a revealing or indicative comment that an employment discrimination plaintiff proffers is insufficient as a matter of law (as opposed to merely a matter of fact) to prove the discrimination alleged. Moreover, courts have interpreted the word “stray” to mean different things, including, but not limited to, too far removed in time, too out of context, and too isolated, as a matter of law, to permit a plaintiff's case to go forward or to sustain a jury verdict.

This Article traces the genesis of this misguided doctrine, its proliferation, and it’s many flaws. It explains what the doctrine has come to mean and which facets of a comment can render it “stray” as a matter of law. Part II evaluates this unwieldy and untenable doctrine and its haphazard and misguided application over the past two decades. Specifically, it was never intended to be a formal doctrine. As employed by courts, the term “stray” means too many things and is too ambiguous for the doctrine to be coherent or effective. Moreover, courts ascribe varying degrees of significance to the designation “stray,” with some courts using it to deem evidence to be circumstantial rather than direct (and thus invariably insufficient), and other courts using it to deem potentially viable evidence worthless as a matter of law.

This Article argues that the stray comments “doctrine” does more harm than good and that those courts wishing to grant a defendant summary judgment on a claim should have to do so by looking at the totality of the circumstances, rather than summarily using a single facet of a comment to dismiss it from consideration. It points out that the doctrine and its premises fail to comport with even a basic understanding of social science and how people foment, act upon, and reveal discriminatory bias. Interestingly, another judge-made doctrine built into employment discrimination law - the same actor inference - stands in stark asymmetry with the stray comments doctrine. The former presumes that attitudes evinced inhere within people for years at a time while the latter declares that no plausible nexus exists between expressed animus or other type of bias and an action taken mere days or weeks later.

This Article draws attention to a phenomenon that, used unsparingly over two decades ago, has grown unfettered into a grave problem for employment discrimination plaintiffs. It calls for a much-needed return to an adjudication of employment discrimination cases that comports with the summary judgment standard and factors in all potentially relevant evidence, construing all facts in the light most favorable to the non-movant, who usually is the plaintiff.

You can download the full text of the article here.  I commend it to your reading.

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Michael Futterman and Jaime Touchstone (HR Hero) take a close look at this case - "County hammered with $820,000 verdict for not protecting disabled employee"

Ralph Espinoza worked for the Orange County Probation Department as a deputy juvenile corrections officer. He was born without fingers on his right hand. He was able to perform most tasks but was self-conscious and often kept his hand in his pocket.  In August 2006, county corrections officers started blogging about work. An anonymous post to one of the blogs stated: “I will give anyone 100 bucks if you get a picture of the claw. Just take your hand out of your pocket already!” Further blog posts referred to the “one handed bandit” and the “rat claw,” ...

...and it goes downhill from there. According to the reports both HR and management new about the conduct but did little to nothing.  The county appealed, arguing among other things that the harassment wasn't sufficiently severe or pervasive to be actionable.  They're lucky there is no way for an appellate court to whack with another $800K just for making such an argument.

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This blog's humble author is quoted in a Law360 story today about the dubious distinction Texas has as the state responsible for more EEOC Charge filings than any other state:

"More federal workplace discrimination charges were filed in Texas than in any other state in 2011, with 10 percent of all charges nationwide lodged there, according to state-by-state data released by the U.S. Equal Employment Opportunity Commission on Monday.

The EEOC received a record 99,947 charges of discrimination during the 2011 fiscal year, which ended Sept. 30, and of those, 9,952 charges were brought in Texas, the agency said.

* * * * 

While the sheer size of Texas' population is most likely a factor in the state's position as the one with the most charges, it is not the only factor, attorneys say. Population size alone can't account for why Texas' number would trump that of another populous state like California, attorneys told Law360.

“Many states like California have a robust state-level agency that provides protections for workers, but in Texas the agency provides very little, so more of that work has to be shouldered by the federal government rather than the state,” said San Antonio-based attorney Christopher J. McKinney of The McKinney Law Firm PC, who represents employees and select employers.

Management-side attorney Ron Chapman Jr. of Ogletree Deakins Nash Smoak & Stewart PC agreed that the state agencies' activity level likely accounted for the number of charges being higher in Texas than in California. ..."

 Read the entire story at Law360.

The statistics really are quite damning for Texas. Texas accounted for a full 10% of all national EEOC charge filings, and 15% of the country’s religion and national origin charges. That's pretty deplorable. 

Followup: 

Link to the EEOC Chart of Charge Filings by State

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The U.S. Equal Employment Opportunity Commission (EEOC) today issued two revised publications addressing veterans with disabilities and the Americans with Disabilities Act (ADA). Both documents are available on the agency’s website at www.eeoc.gov.

The revised guides reflect changes to the law stemming from the ADA Amendments Act of 2008, which make it easier for veterans with a wide range of impairments – including those that are often not well understood -- such as traumatic brain injuries (TBI) and post-traumatic stress disorder (PTSD), to get needed reasonable accommodations that will enable them to work successfully.  [Prior to the ADA Amendments Act, the ADA’s definition of the term “disability” had been construed narrowly, significantly limiting the law’s protections.] 

The revised documents are also an outgrowth of a public meeting the EEOC held on Nov. 16, 2011 entitled “Overcoming Barriers to the Employment of Veterans with Disabilities.” In that meeting, the Commission heard testimony from a panel of experts on the unique needs of veterans with disabilities transitioning to civilian employment.  The particular challenges faced by veterans with disabilities in obtaining employment has been the subject of increased attention in recent months, as large numbers of veterans return from service in Iraq and Afghanistan.

The Guide for Employers explains how protections for veterans with service-connected disabilities differ under the Americans with Disabilities Act (ADA) and the Uniformed Services Employment and Reemployment Rights Act (USERRA), and how employers can prevent disability-based discrimination and provide reasonable accommodations.

The Guide for Wounded Veterans answers questions that veterans with service-related disabilities may have about the protections they are entitled to when they seek to return to their former jobs or look for civilian jobs. The publication also explains the kinds of accommodations that may be necessary to help veterans with disabilities obtain and successfully maintain employment.

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"This is not a black holiday; it is a people's holiday," -- Coretta Scott King, Nov. 2, 1983. 

A Baptist minister, King became a civil rights activist early in his career. He led the 1955 Montgomery Bus Boycott and helped found the Southern Christian Leadership Conference in 1957, serving as its first president. King's efforts led to the 1963 March on Washington, where King delivered his "I Have a Dream" speech. There, he expanded American values to include the vision of a color blind society, and established his reputation as one of the greatest orators in American history.

In 1964, King became the youngest person to receive the Nobel Peace Prize for his work to end racial segregation and racial discrimination through civil disobedience and other nonviolent means. By the time of his assassination in 1968, he had refocused his efforts on ending poverty and stopping the Vietnam War. He was posthumously awarded the Presidential Medal of Freedom in 1977 and Congressional Gold Medal in 2004.

Martin Luther King, Jr. Day was established as a U.S. federal holiday in 1986.

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Every Tuesday through Thursday, its the...

Daily Update for October 25, 2011

• EEOC Sues Scooter Store for Disability Discrimination

In an ironic twist, The Scooter Store, which serves people with limited mobility, has been sued by the U.S. Equal Employment Opportunity Commission (EEOC) for disability discrimination. According to EEOC, the Texas-based retailer refused to accommodate an employee’s request for a temporary leave due to a knee injury and then fired him from a New York store. Read the entire story here.

• Disney Mickey Mousing Employees with an “Electronic Whip”

Disneyland Hotel laundry workers answer to what they call the “electronic whip.” Laundry rooms are outfitted with large flat screen monitors that keep track of employee efficiency. Each person is listed, followed by a number representing their current speed. Everyone can see who is the quickest–and slowest–in the group. Keeping track of employees’ work is not the issue but the public nature of this tote board “whip” does have some questionable aspects to it. Employees are reportedly skipping bathroom breaks out of fear, and some also have expressed concern for pregnant and/or elderly colleagues. Read the whole story here.

 

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   According to a lawsuit filed last week by the EEOC, Josefina Hernandez, a cashier at Walgreens’ South San Francisco store, was on duty when she opened a $1.39 bag of chips because she was suffering from an attack of hypoglycemia (low blood sugar). Hernandez had worked for Walgreens for almost 18 years with no disciplinary record, and Walgreens knew of her diabetes. Nevertheless, Walgreens fired her after being informed that Hernandez had eaten the chips because her blood sugar was low, even though she paid for the chips when she came off cashier duty.

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Texas company Hill Country Farms is accused of severely abusing and discriminating against 31 mentally disabled men who worked at its Iowa turkey processing plant, in a federal lawsuit filed last Wednesday by the U.S. Equal Employment Opportunity Commission.

According to the lawsuit, No. 3:11-cv-0004 CRW-TJS , filed in U.S. District Court for the Southern District of Iowa, the company exploited workers, whose jobs involved eviscerating turkeys, because their intellectual disabilities made them particularly vulnerable and unaware of the extent to which their legal rights were being denied. 

Specifically, the complaint alleges that that the owners and staffers of the company denied the workers lawful wages, paying them only $65 a month for full-time work; subjected them to abusive verbal and physical harassment; restricted their freedom of movement; and imposed other harsh terms and conditions of employment such as requiring them to live in deplorable and sub-standard living conditions, and failing to provide adequate medical care when needed.

Verbal abuses included frequently referring to the workers as “retarded”, “dumb ass” and “stupid”. Class members reported acts of physical abuse including hitting, kicking, at least one case of handcuffing, and forcing the disabled workers to carry heavy weights as punishment.  

Such alleged conduct violates the Americans with Disabilities Act (ADA), as amended by the Americans with Disabilities Amendments Act (ADAAA), which prohibit discrimination on the basis of disability, including intellectual disabilities, in terms and conditions of employment and wages; and bars disability-based harassment. The EEOC filed suit after first attempting to resolve the matter through conciliation.

The lawsuit follows an EEOC Commission meeting held March 15, 2011, that explored the issue of discrimination on the basis of mental disabilities. On March 24, the EEOC issued its final regulations interpreting the ADAAA, which simplified the determination of who has a “disability” and made it easier for people to establish that they are protected by ADA.

In addition to the EEOC’s ADA claim of disability-based wage discrimination, the U.S. Department of Labor is pursuing a separate minimum wage and overtime suit against the company under the Fair Labor Standards Act, which is set for trial later this year.  

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Today the U.S. Equal Employment Opportunity Commission ("EEOC") issued its final regulations to the 2008 ADA Amendments Act.  You can find the new regulations here.  The ADA Amendments Act of 2008 (ADAAA) was enacted on September 25, 2008, and became effective on January 1, 2009. The law made a number of significant changes to the definition of “disability” under the Americans with Disabilities Act (ADA). It also directed the U.S. Equal Employment Opportunity Commission (EEOC) to amend its ADA regulations to reflect the changes made by the ADAAA. The EEOC issued a Notice of Proposed Rulemaking (NPRM) on September 23, 2009. The final regulations were approved by a bipartisan vote and will be published in the Federal Register on March 25, 2011.

The agency has also put together a page collecting the ADAA along with the new regulations and some helpful FAQs.  You can find it all here.

Here are the high-points of the new regulations, per the EEOC:

In enacting the ADAAA, Congress made it easier for an individual seeking protection under the ADA to establish that he or she has a disability within the meaning of the statute. Congress overturned several Supreme Court decisions that Congress believed had interpreted the definition of “disability” too narrowly, resulting in a denial of protection for many individuals with impairments such as cancer, diabetes, and epilepsy. The ADAAA states that the definition of disability should be interpreted in favor of broad coverage of individuals.

The EEOC regulations implement the ADAAA -- in particular, Congress’s mandate that the definition of disability be construed broadly. Following the ADAAA, the regulations keep the ADA’s definition of the term “disability” as a physical or mental impairment that substantially limits one or more major life activities; a record (or past history) of such an impairment; or being regarded as having a disability. But the regulations implement the significant changes that Congress made regarding how those terms should be interpreted.

The regulations implement Congress’s intent to set forth predictable, consistent, and workable standards by adopting “rules of construction” to use when determining if an individual is substantially limited in performing a major life activity.These rules of construction are derived directly from the statute and legislative history and include the following:

• The term “substantially limits” requires a lower degree of functional limitation than the standard previously applied by the courts . An impairment does not need to prevent or severely or significantly restrict a major life activity to be considered “substantially limiting.” Nonetheless, not every impairment will constitute a disability.
• The term “substantially limits” is to be construed broadly in favor of expansive coverage, to the maximum extent permitted by the terms of the ADA.
• The determination of whether an impairment substantially limits a major life activity requires an individualized assessment, as was true prior to the ADAAA.
• With one exception (“ordinary eyeglasses or contact lenses”), the determination of whether an impairment substantially limits a major life activity shall be made without regard to the ameliorative effects of mitigating measures, such as medication or hearing aids.
• An impairment that is episodic or in remission is a disability if it would substantially limit a major life activity when active.
• In keeping with Congress’s direction that the primary focus of the ADA is on whether discrimination occurred, the determination of disability should not require extensive analysis.

As required by the ADAAA, the regulations also make it easier for individuals to establish coverage under the “regarded as” part of the definition of “disability.” As a result of court interpretations, it had become difficult for individuals to establish coverage under the “regarded as” prong. Under the ADAAA, the focus for establishing coverage is on how a person has been treated because of a physical or mental impairment (that is not transitory and minor), rather than on what an employer may have believed about the nature of the person's impairment.

The regulations clarify, however, that an individual must be covered under the first prong (“actual disability”) or second prong (“record of disability”) in order to qualify for a reasonable accommodation . The regulations clarify that it is generally not necessary to proceed under the first or second prong if an individual is not challenging an employer’s failure to provide a reasonable accommodation.

The final regulations differ from the NPRM in a number of ways. The final regulations modify or remove language that groups representing employer or disability interests had found confusing or had interpreted in a manner not intended by the EEOC. For example:

• Instead of providing a list of impairments that would “consistently,” “sometimes,” or “usually not” be disabilities (as had been done in the NPRM), the final regulations provide the nine rules of construction to guide the analysis and explain that by applying those principles, there will be some impairments that virtually always constitute a disability. The regulations also provide examples of impairments that should easily be concluded to be disabilities, including epilepsy, diabetes, cancer, HIV infection, and bipolar disorder.
• Language in the NPRM describing how to demonstrate that an individual is substantially limited in “working” has been deleted from the final regulations and moved to the appendix (consistent with how other major life activities are addressed). The final regulations also retain the existing familiar language of “class or broad range of jobs” rather than introducing a new term, and they provide examples of individuals who could be considered substantially limited in working.
• The final regulations retain the concepts of “condition, manner, or duration” that the NPRM had proposed to delete and explain that while consideration of these factors may be unnecessary to determine whether an impairment substantially limits a major life activity, they may be relevant in certain cases.

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The Seventh Circuit has held that a plaintiff need not present medical testimony to raise a triable issue that he is substantially limited in a major life activity and therefore entitled to reasonable accommodation under the ADA. (EEOC v. AutoZone Inc., 7th Cir., No. 10-1353, 12/30/10).

From 1999 until 2004, John Shepherd worked as a parts sales manager at AutoZone, a vehicle services company, in Macomb, Illinois. In 2005, AutoZone terminated Shepherd's employment after keeping him on medical leave involuntarily for over a year. The Equal Employment Opportunity Commission filed this suit on Shepherd's behalf under the Americans with Disabilities Act, 42 U.S.C. §§ 12101-12213. The EEOC alleged that AutoZone violated the ADA in three ways: first, by failing to accommodate Shepherd's physical limitations from March 2003 until September 2003; second, by discriminatorily denying Shepherd the opportunity to work after September 2003; and third, by terminating him in retaliation for filing charges against the company. The district court granted summary judgment for AutoZone on the first claim, finding that the EEOC had not shown that Shepherd had a disability within the meaning of the ADA as is required to demonstrate a failure to accommodate. A jury later ruled in favor of AutoZone on the discriminatory treatment and retaliation claims.

On appeal, the employer argued that EEOC's failure to offer medical testimony regarding plaintiff’s alleged limitations precluded a finding that he was “substantially limited” under the ADA, as it was interpreted prior to the ADA Amendments Act. But the court said no language in the ADA, EEOC's implementing regulations, or relevant case law requires plaintiffs to produce such medical testimony. “Instead, the ADA requires those claiming the act's protection to prove a disability by offering evidence that the extent of the limitation caused by their impairment in terms of their own experience is substantial,” the court said, citing Toyota Motor Manufacturing, Kentucky, Inc. v. Williams, 534 U.S. 184 (2002). “That is exactly what the EEOC showed here through [plaintiff’s] testimony, corroborated by [his wife's] testimony.”

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Here are some of the most interesting employment law related articles and blog entries I came across in the last seven days. 

• ADA Amendments redefine cancer as a disability.
  
  • Ohio Employer's Law Blog - Jon Hyman writes: "I think the cancer-is-not-an-ADA-disability cases are a thing of the past. Effective January 1, 2009, Congress amended the ADA to reinstate “a broad scope of protection.” Specifically, Congress found that the United States Supreme Court had narrowed the protections intended by the ADA, and rejected the holdings of Sutton v. United Air Lines, Inc. and Toyota Motor Manufacturing, Kentucky, Inc. v. Williams. The ADAAA did not change the statutory definition of “disability,” but made significant changes in how it is interpreted. Importantly, the ADAAA clarified that the operation of “major bodily functions,” including “functions of the immune system,” constitute major life activities under the ADA. Moreover, the ADAAA provides that 'an impairment that is episodic or in remission is a disability if it would substantially limit a major life activity when active.'"
    

• Hurd, HP, and Inevitable Disclosure
  
  • Smooth Transitions Blog - Rob Radcliff writes about the recent suit filed by HP against its former CEO, Mark Hurd, asserting that he cannot go to work for competitor Oracle. HP essentially claims that it is impossible for Hurd to take the job without breaching his contract with HP and without missapropriating HP's trade secrets. Radcliff notes that "Texas Court do not recognize the inevitable disclosure doctrine but have come close – California does not appear to either."

• Federal Employees May Pick & Choose Which Title VII Claims to Appeal
  
  • Daily Developments in EEO Law - Paul Mollica notes the Seventh Circuit's recent decision in Payne v. Salazar, in which the court holds that federal employees who adjudicate their Title VII claims through the agency route have a choice, if they are dissatisfied with the result, between appealing to the EEOC or refiling the claims in federal district court. Mollica notes that this case becomes the first to hold that an employee with multiple Title VII claims may accept the results of a winning claim while also proceeding to federal court with the losing ones.

If you come across an article that you think should make the weekly round-up, drop me a line at chris[at]mckinneylaw.net.

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The Equal Employment Opportunity Commission is looking at getting an extra $23 million dollars to help tackle the growing backlog of cases at the at the agency. 

According to the National Law Journal, the 2010 omnibus appropriations bill, passed by the U.S. House of Representatives on Dec. 10 and by the Senate on Dec. 13, would funnel those additional millions to the EEOC to help the agency get a handle on more than 70,000 unresolved discrimination complaints. 

The article reports that the resource-starved EEOC recently saw a 35% jump in its backlog, from 54,970 cases in 2007 to 73,951 last year. The agency also saw a record number of discrimination complaints in 2008 — 95,402 — which was also a nearly 20% increase from 79,896 in 2007. Nearly two-thirds involved racial or gender discrimination. 

Meanwhile, the agency has watched staffing levels shrink 25% in recent years under the last administration, from 2,850 in 2001 to 2,150 in 2008. Currently the agency is hiring 200 new investigators. 

The EEOC has always had a chronic problem with not being adequately funded.  While this new funding won't totally rectify the situation, the move should be welcomed by both employers and employees.  Regardless of outcome, it is in everyone's best interest for EEOC investigations to be resolved in as short a time frame as possible.  

Read the story here.

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Prior to Congress' recent amendments to the ADA, few if any lawyers would have given serious consideration to using the ADA as an avenue to sue for a pregnancy-related condition instead of bringing a traditional pregnancy discrimination claim pursuant to Title VII.  The fact that the EEOC has recently filed a lawsuit seeking to do just that speaks volumes about the how much stronger the ADA is perceived to be by practitioners following the recent amendments.  

The EEOC’s lawsuit charges that D.R. Horton (NYSE:DHI) refused to accommodate a female project manager in Kirkland, Wash., when it denied her additional unpaid leave time after her doctor placed her on bed rest for over seven months as a result of pregnancy-related complications. Although the company initially provided some leave time, it finally stated it was against company policy to provide the employee any more leave time, even if it was unpaid, and then fired her.

The EEOC, filing suit on the employee's behalf, has apparently determined that it can bring a stronger case under the new and improved ADA than it could by utilizing Title VII's protections against pregnancy discrimination.  This will be an interesting case to watch.  

According to the company's website, D.R. Horton is the biggest home builder in the United States and a Fortune 500 company with operations in 28 states and headquarters in Fort Worth, Texas.

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AT&T Services, Inc., doing business as Southwestern Bell Telephone Company, L.P. (AT&T), a major telephone company, violated federal law by refusing to hire an applicant simply because he is an insulin-dependent diabetic, the U.S. Equal Employment Opportunity Commission (EEOC) charged in a lawsuit it filed last week.

According to the EEOC’s suit, AT&T violated the Americans With Disabilities Act (ADA) by failing to hire an applicant as a cable splicer technician in Austin only because of his “insulin use” for type 2 diabetes. Indeed, according to the EEOC, the applicant indisputably had the necessary experience and expertise to perform the job and had previously safely performed a similar job for AT&T for many years after he was diagnosed with diabetes.

Refusing to hire a qualified individual because of his or her disability, record of disability, or because the employer perceives a person as being disabled, violates the ADA. After the EEOC’s San Antonio Field office determined that AT&T had violated the law, it filed suit (CASE NO. A09CA700JN) in U.S. District Court for the Western District of Texas, Austin Division, after first attempting to reach a voluntary settlement. The EEOC seeks back pay, compensatory damages and punitive damages for the victim, as well as injunctive relief.

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A really interesting case out of the Fifth Circuit this past week: EEOC v. Chevron Phillips, No. 07-20661 (5th Cir. June 5, 2009).  The case is of interest for a couple of reasons.

First, any Fifth Circuit case that allows an ADA plaintiff to have a jury trial is to a degree notable for that fact alone.  In this case, the Court held that the plaintiff -- suffering from chronic fatigue syndrome ("CFS") -- presented a genuine issue of material fact about whether she was substantially limited in the major life activities of caring for herself, sleeping, and thinking.  My favorite sentence from the whole opinion is as follows:

"We conclude that sleeping and thinking are major life activities."

Whew!  Glad we cleared that up.

The Court went on in the opinion to give a bit of a tongue lashing to the magistrate judge that had awarded the Defendant summary judgment. 

"The magistrate judge, citing no authority, found that none of Netterville’s
impairments rendered her disabled because her CFS was “intermittent” and
because her impairments were “short-lived, non-permanent, and non-severe.” The magistrate judge, citing no authority, found that none of Netterville’s
impairments rendered her disabled because her CFS was “intermittent” and
because her impairments were “short-lived, non-permanent, and non-severe.”"

The Court took special note of the magistrate court having taken it upon itself to question the plaintiff under oath and grill the plaintiff regarding what it perceived to be discrepancies between deposition and affidavit testimony.

"[I]t bears noting that this procedure is unusual and arguably inappropriate at the summary judgment stage. The very fact that the magistrate judge questioned Netterville about perceived discrepancies between her deposition and affidavit tends to indicate that the magistrate judge was weighing evidence and resolving conflicts in the summary judgment evidence, and failing to give the plaintiff the benefit of all favorable inferences that could be drawn."

For those of you not familiar with summary judgment practice, this behavior by the magistrate is truly strange.  The purpose of a summary judgment is not to determine whether some evidence in the case should be believed over other evidence.  The fact that a federal magistrate thought this was a good idea and, perhaps more surprisingly, that neither side in the case apparently objected to the process is pretty surprising to say the least.  I am now very curious to learn if this type of practice is as rare as I assume it is or if it is more widespread.

More Info:

• Case Opinion

• Coverage: MMMGLawBlog

• Coverage:   Ross' Employment Law Blog

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 According to reports, President Obama has chosen Judge Sonia Sotomayor of a Federal Court of Appeals based in New York as his nominee for the Supreme Court.  If confirmed, she will become the Court's first Hispanic Justice.  

Judge Sotomayor as authored numerous opinions on civil rights and employment law issues.  Recently her opinion in Ricci v. DeStefano (2009) has been getting a great deal of attention as it is currently on appeal to the Supreme Court.  Ricci concerns white firefighters in New Haven who were denied promotions after an examination yielded no black firefighters eligible for advancement. Joining an unsigned opinion of a three-judge panel of the appeals court, Judge Sotomayor upheld the rejection of a lawsuit by white firefighters, one of them Hispanic, claiming race discrimination and, as part of the full appeals court, she declined to rehear the case. The Supreme Court is currently considering the case, and Justice Anthony M. Kennedy is the likely swing vote. Among the questions in the case is whether the law should treat diversity in the work force differently from diversity in the classroom.

Related Links:

• Live video of Pres. Obama's Announcement at 10:15 a.m. ET

• NY Times Profile of Judge Sotomayor

• Wall Street Journal Profile of Judge Sotomayor

• NY Times listing of previous decisions of Judge Sotomayor

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The Employee Rights Advocacy Institute For Law & Policy and Public Citizen have completed a National Study of Public Attitudes on Forced Arbitration.  The release is no doubt an effort to support the Arbitration Fairness Act, which is currently in Congress.

The study is based on a major national survey on mandatory arbitration of employment and consumer claims conducted by Lake Research Partners.

The survey of 800 likely voters nationwide found that:

• A solid majority of Americans (59%) opposes forced arbitration clauses in the fine print of employment and consumer contracts, including both men and women and majorities of Democrats, independents, and Republicans.
• Similarly strong majorities (59%) support the Arbitration Fairness Act. Support for the Act also crosses traditional gender and political divides.
• Even after voters hear arguments in favor of, and opposed to, forced arbitration, opposition to the practice holds firm. Just one-third of the electorate supports the practice.
• Roughly three-quarters of Americans believe they can sue an employer or company should they be seriously harmed or have a major dispute arise - even if they are bound by forced arbitration terms.
• Most Americans are unaware of the rights being taken away from them. Approximately two-thirds cannot remember seeing anything about forced arbitration in either Terms of Employment or Terms of Agreement for goods and services.

Here is a link to the study materials.

Here are more materials on the current version of the Arbitration Fairness Act.

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In a set back for unionized employees, the Supreme Court holds in a 5-4 decision ( 14 Penn Plaza LLC v. Pyett, No. 07-581 (April 1, 2009)) that where a collective bargaining agreement clearly and unmistakably assigns statutory discrimination claims to arbitration, the employee in the bargaining unit loses the right to proceed with an individual civil action and is left with arbitration as his or her only remedy.

The Plaintiffs in this case were members of the Service Employees International Union, Local 32BJ (Union). Under the National Labor Relations Act, the Union is the exclusive bargaining representative of employees within the building-services industry in New York City, which includes building cleaners, porters, and doorpersons. The Union has exclusive authority to bargain on behalf of its members over their “rates of pay, wages, hours of employment, or other conditions of employment,” 29 U. S. C. §159(a), and engages in industry-wide collective bargaining with the Realty Advisory Board on Labor Relations, Inc. (RAB), a multi-employer bargaining association for the New York City real estate industry. The agreement between the Union and the RAB is embodied in their Collective Bargaining Agreement for Contractors and Building Owners (CBA). The CBA requires union members to submit all claims of employment discrimination to binding arbitration under the CBA’s grievance and dispute resolution procedures.

The Union initially requested arbitration under the CBA, but after the initial hearing, withdrew the age discrimination claims on the ground that its consent to the new security contract precluded it from objecting to respondents’ reassignments as discriminatory. Respondents then filed a complaint with the Equal Employment Opportunity Commission (EEOC) alleging that petitioners had violated their ADEA rights, and the EEOC issued each of them a right-to-sue notice. In the ensuing lawsuit, the District Court denied petitioners’ motion to compel arbitration of respondents’ age discrimination claims. The Second Circuit affirmed, holding that Alexander v. Gardner-Denver Co., 415 U. S. 36, forbids enforcement of collective-bargaining provisions requiring arbitration of ADEA claims.

The Supreme Court held that a provision in a collective bargaining agreement that clearly and unmistakably requires union members to arbitrate ADEA claims is enforceable as a matter of federal law. With Justice Clarence Thomas writing for the majority and joined by Chief Justice John G. Roberts and Justices Anthony G. Scalia, Anthony M. Kennedy, and Samuel A. Alito, the Court reasoned that ,here, the arbitration provision was a "bargained-for exchange" in the collective bargaining agreement and thus should not be interfered with by the courts. The Court went on to state that because the ADEA itself did not mandate such interference, the arbitration provision should be enforced.

Justice John Paul Stevens wrote a separate dissenting opinion. He noted that the majority opinion was a departure from Supreme Court precedent with respect to arbitration clauses in collective bargaining agreements. He went on to state that it was it was Congress' responsibility to reassess the policy arguments favoring arbitration rather than for the Supreme Court to decide. Justice David H. Souter also wrote a separate dissenting opinion and was joined by Justices Stevens, Ruth Bader Ginsburg, and Stephen G. Breyer. He reemphasized that Supreme Court precedent did not preclude the pursuit of an ADEA claim because of an arbitration provision in a collective bargaining agreement, as in this case.

--------------------------

My take: In reality, this still leaves unionized employees in a better position than those without union representation.  Most non-union employees have absolutely no choice as to whether discrimination claims will be forced into arbitration.  In most states, a company can simply maintain an arbitration policy for its employees and force them to agree to same in order to continue employment.  At least in the case of unionized employees, workers can negotiate with the company, through their union, and either not agree to arbitration clauses or at least get some other concession or compensation in exchange for giving up the "right" to trial by jury.

More info:

• Supreme Court's Opinion

• Transcript of Oral Argument

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The Los Angeles Daily Journal is reporting that President Obama has selected Thomas Saenz to head the civil rights division at the Department of Justice.

Saenz, 42, the former vice president of litigation for the Mexican American Legal Defense and Educational Fund in Los Angeles, is currently serving as counsel to Los Angeles Mayor Antonio Villaraigosa.

As yet, this is not confirmed by anyone at DOJ. 

Hat Tip: WSJ Law Blog

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The Wall Street Journal Blog and Paper has a story this week analyzing whether job discrimination plaintiffs get a raw deal in federal court

The WSJ piece examines that question, citing recent studies that show discrimination plaintiffs lose at a higher rate in federal court than other plaintiffs and more often get tossed out of court on summary judgments.

"From 1979 through 2006, federal plaintiffs won 15% of job-discrimination cases. By comparison, plaintiffs in other cases not involving alleged job discrimination enjoyed a 51% win rate, according to this study due to be published later this month by the Harvard Law & Policy Review, the official journal of the American Constitution Society for Law and Policy."

This is certainly not news to those of us that work in the employment law trenches day in and day out.  Employment law is a different animal than most other types of cases that courts have to deal with.  Often what is at issue is not what action was taken by an employer but rather what was in the decision-maker's heart when the action was taken.  This has led to some pretty tortured legal tests and summary judgment standards across the country.  And, the simple truth of the matter is that many judges have a reflexive dislike for the subjective nature of the cases.  I think this gets reflected in judges being quicker to substitute their judgment for that of a jury in these types of cases. 

The WSJ Blog article ends with a quote from a New York lawyer lamenting that plaintiff-side employment cases have gotten so hard to win that his firm won't take them anymore.  I think this may be going overboard a bit.  Employment cases are certainly not for the faint of heart but they are winnable. 

One issue which may be contributing to this statistical anomaly is the fact that many employment cases are filed pro se or by lawyers who are not employment law specialists.  This likely leads to a great many cases that are not properly prepared to face the defendant's inevitable motion for dismissal. 

Representing a plaintiff in an employment-related lawsuit takes determination, hard work and a specialized knowledge of state and federal employment statutes and case law.  Employment cases are nothing like personal injury cases.  In my opinion, this is not an area of the law where lawyers should "dabble."  The practice is chock full of counter-intuitive legal standards and procedural traps waiting for the unwary practitioner. 

Source: WSJ Blog

Hat Tip: Ross Runkel

Coming Soon: I am working on a longer post discussing what you should keep in mind when looking for an employment law specialist to handle your case.  Watch for it.

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Barack Obama has nominated California Democratic Rep. Hilda Solis as his labor secretary.  Solis, the daughter of two Hispanic immigrants, has been in Congress since 2000.  She has never served on the House Education and Labor Committee. She currently serves on the Select Committee on Energy Independence and Global Warming.

Solis received her degrees from California State Polytechnic University, Pomona and the University of Southern California and worked for two federal agencies in Washington, D.C. She was elected to the California State Assembly in 1992 and to the California State Senate in 1994. She was the first Hispanic woman to serve in the State Senate, and was re-elected there in 1998. She became known for her work toward environmental justice and was the recipient of the John F. Kennedy Profile in Courage Award in 2000.

Solis is well-liked by labor.  Service Employee International Union ("SEIU") President Andy Stern hailed the nomination of Solis: 

"As someone who has pounded the pavement knocking on doors for Hilda Solis in her first upset campaign in California, I can tell you firsthand that this woman is about opening doors for millions of Americans who get up and go to work each day.

From the streets of Los Angeles where she marched with the janitors who were fighting for jobs with dignity that can support a family through SEIU's Justice for Janitors campaigns, to the halls of Congress where she has been an outspoken supporter of healthcare rights for all, a livable minimum wage, and workers' right to come together for a voice on the job, Hilda Solis has never backed down from the good fight to make the American Dream available to all."

You can find Congresswoman Solis' Homepage here.  It has links to her statements and bills that she is attached to. 

The Associated Press quoted Randy Johnson, vice president for labor issues at the U.S. Chamber of Commerce, with regard to what the response of business groups would be to her nomination: "There’s a new sheriff in town, but they’ll still have to deal with the business community, and they know it.  We would hope she will continue to support programs that help educate employers about voluntary compliance with the law rather than pursue heavy-handed enforcement.”

Sources: AP, Wikipedia, SEIU Press Release

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Workplace Prof Blog as a good initial analysis of the Supreme Court's oral argument in Crawford v. Metropolitan Government of Nashville last week. 

The issue in the case is whether and to what extent Title VII’s anti-retaliation provision protects employees from being fired for cooperating with an employer’s internal sexual harassment investigation.

The appeal arose out of a case between Vicky Crawford and her longtime employer, the Metropolitan Government of Nashville and Davidson County, Tenn. ("Metro"). In late 2001, Metro hired Gene Hughes to oversee employment relations for the area school district, a job requiring him to investigate all claims of discrimination and harassment. In the ensuing months, however, Hughes himself became the subject of sexual harassment complaints from numerous female employees.  During a subsequent internal investigation, Metro officials asked Crawford - who worked under Hughes but had not previously reported any offensive conduct on his part - whether she had observed Hughes engaging in any inappropriate behavior. Crawford replied that Hughes had repeatedly grabbed his crotch in front of her and asked to see her breasts, and on one occasion forcefully pulled her head toward his groin.  The investigation resulted in no disciplinary action against Hughes. But upon its conclusion, according to Crawford, she and other female employees who testified to Hughes’ conduct were fired on other grounds. Crawford, who had worked as a payroll coordinator for more than 30 years, filed a complaint with the Equal Employment Opportunity Commission and, after receiving notice of her right to sue, accused Metro of violating the anti-retaliation provisions of Title VII of the Civil Rights Act of 1964.  [Synopsis Source: ScotusWiki]

As noted by Workplace Prof, the oral argument in the case did not give an absolutely clear indication as to how this case will come out.  This is a classic policy case in which either the interests of employees who participate in internal investigations and/or oppose illegal harassment will be penalized by a limitation on the protection provided to them by the statute or employers will find themselves in a perceived Catch-22 in which they are required to investigate claims of harassment by previous Court decisions but in doing so they potentially create an entire class of potential future retaliation plaintiffs against them.

I also agree with Workplace Prof that Justice Scalia's disdainful comments regarding attorneys that represent employees in such disputes.  Here is the exchange in question.  

CHIEF JUSTICE ROBERTS: My point is simply that the incentive system is skewed because if you lose you pay not only your attorneys' fees but the complainants'. If you win, you have to incur yours. . . . I'm not saying it shouldn't be. But in terms of the pressures towards settlement, it is a very strong incentive.

JUSTICE STEVENS: Is bringing frivolous cases cost-free for the plaintiffs? There are certain costs.

MR. YOUNG: Well, Your Honor, many of these types of cases are taken on a contingent fee basis except for hard costs.

JUSTICE BREYER: It is a mix. I mean, you know, a lot of plaintiffs might be afraid to bring these cases because they'll be accused of doing all kinds of bad things. They don't want their reputations ruined. They have lawyers who take contingent fees because they have to pay for it. Oh the other hand, you have problems with your costs and you have problems dismissing people who should be dismissed. Everybody has problems in this area. That's why we have law and lawyers. They try to minimize it. This doesn't seem fruitful to me.

JUSTICE SCALIA: Isn't it true that financially it is always cost-free for the plaintiff because she has an attorney who is taking it on a contingent basis? Now, you could say it's not cost-free to the lawyer; but even that's not always true because if the lawyer has nothing else to do he may as well be doing this, you know, whatever the odds are.

MR. YOUNG: I agree with that, Your Honor.

Justice Scalia's obvious disdain for employees and the lawyers that would represent them is truly reprehensible.  As an attorney that represents both employees and employers in such matters, it has always been my experience that very few employment-related lawsuits are frivolous.  Does this mean that the plaintiff is always right or always has a good case?  Of course not.  But the disputes are almost always legitimate and deserve to be treated by both attorneys and judges with the same respect that would be shown to any other litigants who come to the judicial system to resolve a dispute.

In the meantime, the best thing that we can say about Justice Scalia is that his name appears on so few majority opinions.

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As promised, here is additional information regarding what each of the presidential candidates plans to do with regard to workplace and HR issues.  This information is taken directly from the candidates' respective campaign websites without any editing or alteration whatsoever.

John McCain

Barack Obama

Obama will strengthen the ability of workers to organize unions. He will fight for passage of the Employee Free Choice Act. Obama will ensure that his labor appointees support workers' rights and will work to ban the permanent replacement of striking workers. Obama will also increase the minimum wage and index it to inflation to ensure it rises every year.

• Ensure Freedom to Unionize: Obama believes that workers should have the freedom to choose whether to join a union without harassment or intimidation from their employers. Obama cosponsored and is strong advocate for the Employee Free Choice Act, a bipartisan effort to assure that workers can exercise their right to organize. He will continue to fight for EFCA's passage and sign it into law.
• Fight Attacks on Workers' Right to Organize: Obama has fought the Bush National Labor Relations Board (NLRB) efforts to strip workers of their right to organize. He is a cosponsor of legislation to overturn the NLRB's "Kentucky River" decisions classifying hundreds of thousands of nurses, construction, and professional workers as "supervisors" who are not protected by federal labor laws.
• Protect Striking Workers: Obama supports the right of workers to bargain collectively and strike if necessary. He will work to ban the permanent replacement of striking workers, so workers can stand up for themselves without worrying about losing their livelihoods.
• Raise the Minimum Wage: Barack Obama will raise the minimum wage, index it to inflation and increase the Earned Income Tax Credit to make sure that full-time workers earn a living wage that allows them to raise their families and pay for basic needs.
• Create New Job Training Programs for Clean Technologies: The Obama plan will increase funding for federal workforce training programs and direct these programs to incorporate green technologies training, such as advanced manufacturing and weatherization training, into their efforts to help Americans find and retain stable, high-paying jobs. Obama will also create an energy-focused youth jobs program to invest in disconnected and disadvantaged youth.
• Improve Transition Assistance: To help all workers adapt to a rapidly changing economy, Obama would update the existing system of Trade Adjustment Assistance by extending it to service industries, creating flexible education accounts to help workers retrain, and providing retraining assistance for workers in sectors of the economy vulnerable to dislocation before they lose their jobs.
• End Tax Breaks for Companies that Send Jobs Overseas: Barack Obama believes that companies should not get billions of dollars in tax deductions for moving their operations overseas. Obama will also fight to ensure that public contracts are awarded to companies that are committed to American workers.
• Reward Companies that Support American Workers: Barack Obama introduced the Patriot Employer Act of 2007 with Senators Richard Durbin (D-IL) and Sherrod Brown (D-OH) to reward companies that create good jobs with good benefits for American workers. The legislation would provide a tax credit to companies that maintain or increase the number of full-time workers in America relative to those outside the US; maintain their corporate headquarters in America if it has ever been in America; pay decent wages; prepare workers for retirement; provide health insurance; and support employees who serve in the military.
• Expand the Family and Medical Leave Act: The FMLA covers only certain employees of employers with 50 or more employees. Obama will expand it to cover businesses with 25 or more employees. He will expand the FMLA to cover more purposes as well, including allowing workers to take leave for elder care needs; allowing parents up to 24 hours of leave each year to participate in their children's academic activities; and expanding FMLA to cover leave for employees to address domestic violence.
• Encourage States to Adopt Paid Leave: As president, Obama will initiate a strategy to encourage all 50 states to adopt paid-leave systems. Obama will provide a $1.5 billion fund to assist states with start-up costs and to help states offset the costs for employees and employers.
• Expand High-Quality Afterschool Opportunities: Obama will double funding for the main federal support for afterschool programs, the 21st Century Learning Centers program, to serve a million more children. Obama will include measures to maximize performance and effectiveness across grantees nationwide.
• Expand the Child and Dependent Care Tax Credit: The Child and Dependent Care Tax Credit provides too little relief to families that struggle to afford child care expenses. Obama will reform the Child and Dependent Care Tax Credit by making it refundable and allowing low-income families to receive up to a 50 percent credit for their child care expenses.
• Protect Against Caregiver Discrimination: Workers with family obligations often are discriminated against in the workplace. Obama will enforce the recently-enacted Equal Employment Opportunity Commission guidelines on caregiver discrimination.
• Expand Flexible Work Arrangements: Obama will create a program to inform businesses about the benefits of flexible work schedules; help businesses create flexible work opportunities; and increase federal incentives for telecommuting. Obama will also make the federal government a model employer in terms of adopting flexible work schedules and permitting employees to request flexible arrangements.

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Barack Obama recently spoke at some length regarding his views regarding labor and workplace issues.  The video of his remarks is included below.  Leave a comment and tell us what you think.

P.S. I am looking for video of McCain addressing work-related issues and will post it up as soon as I find it.   

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House Leaders are working on H.R. 3195, the ADA Restoration Act, a bill that had prompted a lot of concern with the business associations.

Disability activists and business representatives have come together to agree on language that helps clarify the Americans with Disabilities Act, protects and strengthens the protections for the disabled — covering people who should be covered – while seeking to avoid the more onerous and expensive rules that employers fear.

According to Shopfloor.org, a coalition of groups who have worked on the issue sent a letter to the Hill yesterday outlining the compromise. A copy of the letter is available here. Key provisions it cites.

• Coverage under the ADA - The proposal clarifies that Congress intended the ADA’s coverage to be broad, to cover anyone who faces unfair discrimination because of a disability.
• Definition of Disability - The proposal retains the requirement that an individual’s impairment substantially limits a major life activity in order to be considered a disability and an individual must demonstrate that he or she is qualified for the job. 
• Protection for Mitigating Measures - The proposal would overturn several court decisions to provide that people with disabilities not lose their coverage under the ADA simply because their condition is treatable with medication or can be addressed with the help of assistive technology.
• Regarded As - The proposal includes a “regarded as” prong as part of the definition of disability which covers situations where an employee is discriminated against because of his or her actual or perceived impairment.  Moreover, the proposal makes it clear that accommodations do not need to be made to someone who is disabled solely because he or she is “regarded as” disabled.

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This week the Eight Circuit Court of Appeals issued a decision in Gross v. FBL Financial Services, No. 07-1490 (8th Cir. May 14, 2008), ignoring the Supreme Court's opinion in Desert Palace, Inc. v. Costa, 539 U.S. 90 (2003).

The issue has to do with the question of whether so-called "direct evidence" is still required in order to obtain a "mixed-motive" jury instruction.  The direct evidence standard was formulated by Justice O'Connor in her Price Waterhouse v. Hopkins, 490 U.S. 228 (1989) concurring opinion.  Following Price Waterhouse, many circuits adopted this stricter standard of proof. 

In 1991, Congress amended Title VII to specifically provide for a mixed-motive rule.  In Desert Palace, the Court, including Justice O'Connor, clearly indicated that the distinction between requiring direct evidence (rather than circumstantial evidence) of discrimination prior to allowing a mixed-motive jury instruction was nonsensical.  The Court stated:

"The reason for treating circumstantial and direct evidence alike is both clear and deep rooted: 'Circumstantial evidence is not only sufficient, but may also be more certain, satisfying and persuasive than direct evidence'"

Inexplicably, the Eighth Circuit goes out of its way to parse words with the Supreme Court and ignore the obvious intent of Desert Palace:

"The Court in Desert Palace declined to address which opinion in Price Waterhouse was controlling, 539 U.S. at 98, or to revisit Price Waterhouse's interpretation of a statute, unadorned by § 2000e-2m, that prohibits discrimination "because of" an enumerated factor. Even if some of the analysis in Desert Palace may seem inconsistent with the controlling rule from Price Waterhouse, the Court did not speak directly to the vitality of this previous decision, and it continues to be controlling where applicable."

The Eight Circuit is militantly wrong on this one.  This decision creates a clear split in the circuits (See Rachid v. Jack in the Box, Inc., 376 F.3d 305 (5th Cir. 2004)) so perhaps the Supreme Court will take the opportunity to make this point even more clearly than they did in Desert Palace.  (Hard to see what they could do in this regard short of issuing an opinion in picture form.)

Update: Supreme Court Takes Me Out for a Walk.

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"[u]nder a plain reading of the statute, and in accord with the position of other circuits, we conclude that the "sole causation" standard is not the appropriate standard for ADA claims. We hold that under a straightforward reading of the statute, the "motivating factor" test should be applied to ADA claims."

While the court's ultimate opinion is not surprising, it is nice to have it set forth in black and white. As the case itself illustrated, trial judges were still forcing litigants to go to trial with what was clearly the wrong standard and defense lawyers felt the need to argue it in every case as long as there was any question at all remaining in the circuit's jurisprudence.

Technorati Tags: ADA

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