Thursday, April 28, 2016

California Breaks New Ground, Extends Disability Accommodation To Associated Employee

Using a provision of California’s Fair Employment and Housing Act (“FEHA”), a California Court of Appeal has ruled that California employers may be required to provide reasonable accommodation to individuals who are associated with a disabled person.

Here are the facts. Luis Castro-Ramirez’s son needed a kidney transplant. While waiting, he needed daily dialysis that only Mr. Ramirez was capable of providing within the family. Mr. Ramirez worked as a delivery truck driver for Dependable Highway Express (DHE). At the beginning of his employment, Mr. Ramirez let his employer know that he needed to be home in the evening to administer his son’s dialysis. This request was honored for almost three years. When he was assigned a new supervisor, his route was changed and would prevent him from being home in time to help his son. His request for another route was rejected and Mr. Ramirez refused the assignment. He was fired and sued for disability discrimination on the basis of association with a person who has a disability.

The California court of appeal granted Mr. Ramirez’ right to proceed. FEHA defined “physical disability” as including a person who was associated with a person who had disabilities. Per the court of appeal’s reasoning, associating with a person with disabilities was a disability within FEHA. Thus, the associating person considered “disabled” must also be entitled to accommodation. This ruling was the first time FEHA had been extended to include the possibility that a non-disabled person would be accommodated because of his or her association with a disabled person.

Wednesday, April 27, 2016

Fourth Circuit Breaks New Ground, Ruling Title IX Applies To Transgender Bathroom Use

A high school student was granted the right to proceed against his high school for forcing him to use the bathroom aligned with his biological sex.

The young man in question was born female but identifies as male. He requested and was granted permission to use the boys’ bathroom in his Virginia high school. This use lasted around seven weeks. After receiving some complaints about him using the boys’ bathroom, the school board passed a resolution. This new resolution required that individuals use the restrooms and locker rooms that corresponded to their biological sex. Transgender students were given the option of using private facilities.

This individual sued his school district under Title IX of the Education Amendments Act of 1972.  Title IX prohibits sex discrimination in schools. The Fourth Circuit Court of Appeals has ruled in favor of the student proceeding with his lawsuit. Title IX regulations only address the idea of male/female bathrooms. The regulations are silent on the issue of transgender individuals. However, the Office of Civil Rights, an agency responsible for enforcing Title IX, had previously issued an opinion letter. This letter stated that when students are separated by sex, transgender students should be treated in accordance with their gender identity. Without any other rulings on the issue, the OCR’s opinion was controlling.

Tuesday, April 26, 2016

Employer Who Disclosed EEOC Charge to Employees Facing Trial

An employee of Day & Zimmerman NPS, Inc. (“Day”) filed a Charge of Discrimination with the EEOC alleging that Day had failed to accommodate his disability and unlawfully terminated him. In support of its investigation into the matter, the EEOC sent a letter to Day requesting the names and contact information for the employee’s co-workers who were all electricians at the same location.

After receiving this request, Day sent out a letter to approximately 146 current employees. The letter identified the employee who filed the charge; stated that he had filed a disability charge of discrimination; identified his union; laid out his medical restrictions and described the accommodation requested. This letter also informed the employees of their right to refuse to speak to an EEOC investigator and offered to provide a Day attorney for anyone who spoke to the EEOC. The EEOC filed a lawsuit against Day based on this letter, claiming that it was a form of retaliation against the employee and was an interference with the investigation in violation of the Americans with Disabilities Act (“ADA”).

The federal trial court hearing a motion to dismiss, ruled in favor of the EEOC. In reviewing the events, the court decided that a “reasonable person” could find that disclosing details from the charge of discrimination to the employee’s co-workers was an “adverse employment action” prohibited by the ADA. The relatively short time period between the EEOC’s request and the dissemination of the letter made it seem as if the two were connected. The EEOC also prevailed on going forward with the interference claim because it was plausible that disclosing the private information from the EEOC charge would dissuade other employees from communicating with the EEOC and/or making a charge of their own.

Thursday, April 21, 2016

Employee Witnesses Protected From Retaliation Under Same Standard

An employee questioned during a company’s internal investigation into a complaint was protected under Title VII’s anti-retaliation provision; provided the employee had a “reasonable belief” that discrimination had occurred. (See EEOC v. Rite Way Service, Inc.)

A female employee complained of sexual harassment against her supervisor. The employer conducted an investigation. As part of that investigation, a co-worker was asked to provide a written report about one of the incidents. Over the five weeks that followed her submission, she began to receive written warnings and two oral warnings for poor performance. These warnings were the only ones she had ever received during her employment. The co-worker was ultimately fired at the end of the five weeks.

Title VII protects individuals who oppose a practice that would be unlawful under its law. Thus, victims of discrimination or harassment are protected when they complain about that conduct. They need only show that they had an “objectively reasonable belief” that conduct they were complaining about was illegal. The Fifth Circuit Court of Appeals has extended that standard to third-party witnesses who were merely cooperating in an investigation. The EEOC argued for a lower standard to be applied to non-party witnesses but the court rejected that argument. This case will go to a jury to determine whether the employee in this case had a reasonable belief that the disclosed conduct violated Title VII.

Wednesday, April 20, 2016

Patient’s Request For No Black Employees Leads to Civil Rights Claim Against Facility

Caprice McCrary was a black woman working as a respiratory therapist at Oakwood Hospital. One of the patients told a nurse-in-training “I do not want any black people taking care of me at all.” The nurse wrote down the statement in the patient’s record. When Ms. McCrary went to the patient’s room for his breathing treatment, he twice refused her attempts to treat him and told her she must not have read his chart. Ms. McCrary complained to the Hospital. The Hospital apologized for the way this patient’s request was handled and informed the patient that it would not honor the request. The Hospital also told her that she could treat the patient or could have a different assignment if she preferred. However, when Ms. McCrary went to treat the patient, he had been moved to a different unit.

42 U.S.C. §1981 prohibits intentional race discrimination in the making and enforcing of contracts involving both public and private parties. Ms. McCrary sued the Hospital for violating that statute, asserting it was race discrimination to allow the assignment of its employees to be based on race. This statute does not require employees to show that they suffered an adverse employment action.

In reviewing the case, the federal district court rejected the Hospital’s motion for summary judgment. The court determined that a reasonable jury could find the recording of a patient’s race based preference, failing to have a policy for handling race-based requests and not training employees to reject those requests, as evidence that the Hospital intentionally allowed the assignment of its employees to be determined by their race. This case will proceed to trial.

Tuesday, April 19, 2016

Obesity Still Not An “Impairment”

The Eighth Circuit Court of Appeals recently revisited the question of whether obesity qualified as an “impairment” under the Americans with Disability Act, as amended in 2008 (“ADA”).

Melvin Morriss wanted to work as a machinist for the BNSF Railway Company. He received a job offer contingent upon a satisfactory medical review. In the course of the review, he disclosed that he was 5’10 tall, weighed 270 pounds, had been pre-diabetic, and had taken appetite-suppressant medication. Mr. Morriss did report having good overall health and no limitations on his activities. His BMI was over 40. The company refused to hire him because of its policy: no new applicants would be hired for safety positions if their BMI was over 40 as they were at high risk of developing certain medical conditions. Mr. Morriss’ job offer was revoked.

Absent an underlying medical condition, obesity was not an ADA protected impairment according to the federal court of appeals. There was no evidence that the railway “regarded” him as having an impairment other than a high BMI. Refusing to hire Mr. Morriss because they feared he might develop medical complications later was not found to be a violation of the ADA. The court expressly rejected the EEOC’s interpretation of the ADA making obesity alone an impairment for individuals around twice their normal weight.

Thursday, April 14, 2016

Demand That Employee Admit Substance Abuse Leads to Trial

Derek Izzo was a manager who rose through the ranks in a Massachusetts Lids store. About six years into his employment, his store was performing poorly. Mr. Izzo claimed that his supervisor visited the store and demanded that he admit to having a substance abuse problem or be fired. After he refused to comply with that directive, Mr. Izzo claimed he was terminated.

The supervisor denied what Mr. Izzo asserted and stated that Mr. Izzo had resigned. Out of concern for Mr. Izzo, the supervisor said he was trying to figure out if Mr. Izzo had personal problems. The supervisor reminded Mr. Izzo about the company’s program that provided treatments for drugs and alcohol and offered him a leave of absence. The supervisor documented the conversation through a phone log and notification to human resources.

Alcoholism is protected under the Americans with Disabilities Act (“ADA”), whether the employee is recovering or a current user. Individuals using illegal drugs are not protected under the ADA. However, if they are recovering addicts, there may be some protection. Employees who are “mistakenly” perceived as drug users are also protected by the ADA. The federal district court refused to dismiss Mr. Izzo’s case. While there were clearly performance issues because of his poorly performing store, it was unclear whether that was the reason he was let go. The jury must decide the factual dispute of whether the supervisor wrongly perceived him as a drug addict and whether he was fired or terminated.