Disability Discrimination Law Is a Mess in More Than Ohio
Posted
8:23 PM
by Michael Fox
Jon Hyman, at Ohio Employer's Law Blog who does a great job of keeping up with developments in the Buckeye state and beyond, has an interesting post about the differences of the definition of disability under the ADA and the Ohio state version. Because of that difference, it's hard not to agree with his conclusion, Disability discrimination law in Ohio is a mess.
While true, it raises the bigger problem with disability discrimination laws at all levels. Unlike race, age, gender, color and national origin which are immutable and known characteristics, whether one is disabled or not, is a legal determination.
Employers must make that determination, and make it correctly at the outset, when faced with dealing with an employee. The fact that it is not always clear cut needs no more evidence than all the cases that have been decided by different courts, often where an appellate court has reversed a district judge. If after full development and briefing, it remains a hard decision for judges, where's the fairness of requiring that employers get it right, or be in violation of the law?
Of course the default position is to treat every possible disability as a disability. While that is a potential solution, is it really effective? And even if it is, is the net gain to society worth the costs that go with it?
The real problem is that in an effort to ensure that people with non-obvious disabilities are protected, as well as those with a condition which no one would dispute is a disability, we have created this rather odd situation, where we toss out a complex legal definition, subject to many variables and interpretations, and require that employers who have hundreds of personnel decisions a week, get it right or else.
It is ironic that we have a much clearer means of identifying who is entitled to utilize parking spaces reserved for the disabled, you either have a government or company issued permit or you don't, than we do making the potentially costly deteremination of whether an individual is disabled under the ADA or one of the state versions.
We are not going to change (the Fox rule of employment law -- Congress does not roll back rights it has given employees) -- but it would be nice if everyone at least realized this unique aspect of this area of law. Particularly as they see how much in the way of judicial and employer resources it is going to consume over the next decade and the ones that follow.
Labels: ADA
One Prediction That Had Some Legs
Labels: discrimination
Why Employers Don't Like Statutes Creating Causes of Action
The 9th Circuit Does Their Part On Oracle Case, Extending California Labor Laws
Labels: FLSA
The Law of Unintended Consequences: Immigration and E-Verify
Labels: immigration
Missed This New Jersey MDV the First Time Around
Labels: MDV
A Timely Follow Up -- The Importance of Action Not Words
Labels: bullying, HR general
Giving Aid to the Enemy: The Healthy Workplace Act Explained
Labels: bullying
Disparate Impact and the Non-Traditional Plaintiff
Labels: discrimination
Maybe Not So Ho Hum at the Supreme Court: FLSA and Wal-Mart v. Dukes
Labels: FLSA
Posted
4:22 PM
by Michael Fox
Forecasting is an art not a science, and truth be known luck is probably the most single important factor if one gets it right, still I could not help but think back to one of my first posts of this year, 2011 --- the Year of the Non-minority? where I thought that we might see
Now a few days before year's end the 5th Circuit decides Vaughan v. Woodforest Bank (5th Cir. 12/21/11). Ms. Vaughan, a white bank manager who managed a work force that was almost all black was terminated for what was described as "inappropriate comments in the presence of employees and customers that created a perception of racial discrimination and uncomfortable environment due to lack confidentiality."more cases where what might be thought to be "non-minority" employees are claiming that they have been treated differently because of their race.
The Court reversing a summary judgment in favor of the employer discussed the three comments that were said to underlie this conclusion. Without really saying so, the Court seemed to be saying that the comments did not seem to them to set a racial tone. Although its unclear how much it influenced the decision, it did note that the manager who made the decision to terminate Vaughan had a view that any discussions of race were problematic: "we cannot talk about race in the workplace" and "if you talk about race in the workplace it's racial discrimination."
Probably pushing my luck, but I sense that this particular type of case may have more than a one year run.
Posted
12:56 PM
by Michael Fox
One of the responses by the employer community to almost any proposed statutory cause of action is not that it supports employers who engage in whatever conduct is going to be prohibited, but that by adding yet another statutory cause of action, there is yet one more way for a lawsuit to be brought.
If you accept my basic premise, when a a lawsuit has been filed, the employer has lost, and from that point on, the only question is how much, then that argument makes sense. The issue is finding the balance, and I would argue that we have plenty of such legislation and could have a "holiday" to use a phrase currently in the political discussion from any additional new statutory causes of action. Particularly since causes of action never go away.
What brought about this particular post was a decision last week by the 7th Circuit which is a true head scratcher, DeGuelle v. Camilli (7th Cir. 12/15/11) [pdf].
Among other things you had a
But I think what got me even more than the unusual legal aspect of the case was the account of the type of situation that anyone who has been doing this long enough has seen before. An irreconcilable difference of opinion develops between an employee feels who feels there is serious wrongdoing, an allegation that the company does take seriously, but disagrees with, and the inevitable bad outcome that occurs.
Because it is a review of summary judgment in favor of the employer, which was reversed, the Court had to accept all the allegations as true, and by doing so you have to assume egregious conduct including intentional tax violations and cover up.
But what is also true is that the employer had already sued the employee in state court for disclosing confidential information and obtained a judgement of $50,000 against him. To be fair, that is on appeal.
I obviously have no knowledge of who is right and who is wrong, but I do know that we have created in a relatively short period of time a very complex web of legal arguments for employees who are fired to say their termination was illegal. This decision points out how such statutes interact to create even more ways.
Whether that is good or bad is a legitimate question, but we really are reaching the point where a weighing of the good and bad is in order. Not just an automatic more is better.
Posted
5:50 PM
by Michael Fox
One of the issues that I think has the potential to cause a lot of trouble for employers is the application of one state's labor and employment laws to employee who travel to work in another state. In today's mobile world that is a lot of folks, especially employees located near state borders.
Basically, what happened is that Colorado based trainers who work for California based Oracle, brought a suit claiming that they should be paid in accordance with California wage and hour laws for the days they did training in California. The District Court rejected the claim. A 9th Circuit panel reversed. After a request for en banc hearing, the question was certified to the California Supreme Court. The Supreme Court basically gave the same answer the 9th Circuit had -- California law is applicable for the days the instructors worked more than a full day in California. See, Sullivan v. Oracle Corp. (Cal. S.Ct 6/30/11).
This week, the 9th Circuit completed the round trip (and engaged in a little mutual back patting), allowing as how, just like they did in their original opinion, the California Supreme Court got it right. They threw out some constitutional arguments on the part of Oracle and remanded the case for further proceedings. Sullivan v. Oracle Corp. (12/13/11).
How much training did they do? Not all that much. One plaintiff did 150 days in Colorado, 32 in California and 52 days in other states. The next year, 150 in Colorado, 12 days in California and 20 days in other states and the third year of the period, 150 in Colorado, 30 days in California and at least 19 days in other states. The other two plaintiffs had even less time in California.
The only thing that prevents this decison from being a total disaster is the following paragraph:
The contacts creating California interests are clearly sufficient to permit the application of California’s Labor Code in this case. The employer, Oracle, has its headquarters and principal place of business in California; the decision to classify Plaintiffs as teachers and to deny them overtime pay was made in California; and the work in question was performed in California.
Which keeps alive an argument that the case is only applicable to California based employers, although I am sure that cases are already in the works to challenge that aspect of the case.
Ultimately, I think this is an issue that the Supreme Court has to take up. From my prior experience there is precious little law on how we deal with state laws on "traveling" employees.
Talk about an impact on commerce.
Hopefully I am wrong, but I would not be surprised if this were one of the hot new things in 2012. And after enough are filed, maybe we will start to get some answers. Hopefully better ones than this weeks ruling.
: 12:35 AM
Posted
2:15 PM
by Michael Fox
A recent article in Businesweek, A Verification System for New Hires Backfires makes clear just how complex the immigration issue is.
The story of one flower grower's attempt to utilize E-Verify, the national registration system that allows an employer to check on worker's eligibility (after they are hired) has made it very difficult to staff his green houses, particularly during the spring growing season. Even accounting for some hyperbole his quote is fairly chilling: "Those who want to work fail to pass E-Verify, and those that pass fail to work."
The system, now utilized by about 5% of America's employers according to the article, would be mandatory if a bill, H.R. 2885 introduced by Representative Lamar Smith (actually my congressman) were to become law. If you want to check out the E-Verify website for yourself, go here.
The bill has been passed by the House Judiciary Committee, and is still pending in the House Education and the Workforce and Ways and Means. See here for Congressional action.
The stop in Ways and Means is not just an idle one, since according to a 2008 Congressional Budget report, a national mandate would cut federal tax revenue by more than 17 billion dollars (that's billion with a B).
Everyone knows that immigration is a major problem that actually needs a solution. And it seems to me to be area where the law of unintended consequences could be particularly relevant.
A hat tip to Kriss Dunn at [the hr capitalist] for his post, 99 Problems: E-Verify Ain't One ...
Posted
10:18 AM
by Michael Fox
I was in Lubbock yesterday talking to their SHRM chapter about retaliation and the dangers of those cases, along with its first cousin whistleblowing, and this headline did nothing to change my mind. Former Warren Township prosecutor awarded $1.26M for whistleblower complaint.
A city prosecutor, Michele D'Onofrio won a verdict of $1.38 earlier this year when a New Jersey jury determined she had been terminated for reporting that a municipal judge had been drunk on the bench. Today's headline was about an additional $1.26 million awarded by the court for attorneys fees and costs.
Another powerful reminder that when you lose an employment law trial, at times the attorneys fees can be just as big a hit as the underlying award.
A 2007 post at the Victim of (Judicial) Greed blog, Heating Up has much more detail about the underlying suit which appears to have been against a law firm headed by a former New Jersey governor and was for sexual harassment as well as the whistleblowing complaint.
Which underscores another point, there is often much, much more to any story than appears on the initial reading, and that is particularly true in most cases of legal reporting.
Posted
5:44 PM
by Michael Fox
Given the topic of my previous post --- the need for employers to step up and make sure they dealt with bullying behavior rather than leaving it to legislation --- it was ironic to come across Bob Sutton's post, Adopting The No Asshole Rule: Don't Bother If The Words Are Hollow.
The first part of that title is a big step for employer's solving the bullying problem; but it only works, it you follow through.
Posted
12:04 PM
by Michael Fox
David Yamada who posts at Minding the Workplace is also the author of a model bill, The Healthy Workplace Act (HWB), designed to address bullying in the workplace. A recent post, The Healthy Workplace Bill: What’s it all about?, gives a bit of the procedural history but also links to what he calls an "excellent slideshow that explains the need for, and basic provisions of the HWB," that was prepared by Deb Falzoi, a professional web designer and computer graphics expert who doubles as communications director for Massachusetts Healthy Workplace Advocate.
I concur -- it is an excellent slideshow. And if you have any interest in the issue (or just want to see a very impressive presentation) I encourage you to check it out.
Recommending that you check it out, could seem strange given my repeated opposition to the passage of the HWB. And to be clear, the "enemy" referred to in my headline is not really accurate. Bullying behavior is wrong and should be addressed and with that I am in common cause with David and the other supporters of the HWB.
Our difference, and it is a substantial one, is how best to get there. I do not believe the legal system, the HWB's preferred method, is capable of making the types of nuanced distinctions required to enforce the HWB.
As Exhibit A, I offer the presentation. When you check it out, pay careful attention to the types of behavior that can be called "bullying":
and please explain how a legal system that is stressed deciding whether an employment decision was based on race or gender, is going to distinguish between what is a reasonable and and unreasonable work demand, or appropriate, constructive criticism versus excessively harsh criticism, just to cite two of the categories.
I know that the HWB attempts to put in procedural protections to ensure that a suit can't be based on "just a bad day at the office," but as someone who is in the trenches where those battles are fought, I know it will not work. (Let me rephrase that, it could work, but at a tremendously prohibitive cost in both judicial and employer resouces. Lawyers, however, would benefit tremendously.)
Relying on trial courts to be effective gatekeepers on this issue is simply a flawed strategy. First, it ignores the basic principle that when an employer is sued they have lost. See my earlier post, Bullying As a Cause of Action: One Large Step Closer. Given the HWB to work with, any lawyer who could not craft a viable complaint on what he or she is told by any employee who is unhappy with their workplace, should turn in their bar card. Remember the standard for chucking it out at that stage, which would still cost the employer the cost of retaining counsel and making an initial pleading, generally requires the court to accept as true anything that is alleged in the complaint.
Secondly, it has not worked even when there was a much higher bar. In Texas, the Supreme Court has repeatedly lamented the failure of lower courts to serve in the gatekeeper function in cases of intentional infliction of emotional distress, where the standard is:
only where the conduct has been so outrageous in character, and so extreme in degree, so as to go beyond all possible bounds of decency, and to be regarded as atrocious, and utterly intolerable in a civilized community. Restatement (Second) of Torts, Section 46 cmt. d (1965).
If the trial courts can't screen out cases where the test is "outrageous conduct" we can't possibly expect them to do so where they are being asked to make subtle distinctions involving the kinds of conduct listed above. In fact, it would require what courts from the Supreme Court on down have frequently insisted they are not interested (or capable) of being, "super personnel departments" as the 1st Circuit described it.
The key to regulating inappropriate conduct lies in employer action. And in the presentation, there is a section on how such conduct is harmful to business. That is the case that needs to be made.
Let's just make it in the C-Suite, not the courthouse.
: 10:28 PM
Posted
3:47 PM
by Michael Fox
At the start of the year, I noted that one thing that seemed to be a "trend" was litigation by non-minority plaintiffs. See, 2011 -- the Year of the Non-Minority?
Throughout the year I have noted other cases. And now Molly DiBianca who is always on top of things at the Delaware Employment Law Blog has picked up yet another case recently decided by the 3rd Circuit, Disparate Impact of Newark, NJ’s Residency Requirement .
In Meditz v. City of Newark, (9.28.11) [pdf] a white male analyst job applicant was rejected by the City of Newark because he did not live within the city limits. The Court summarized the case in perfect disparate impact terms:
Meditz alleges that the residency requirement adopted by Newark for its non-uniformed work force has a disparate impact on white, non-Hispanics because Newark‟s population does not reflect the racial make-up of the relevant labor market in the surrounding area. As a result, white, non-Hispanics are under-represented in Newark‟s non-uniformed work force.
Although there were a number of statistical comparisons, one was between the City of Newark and Essex County, the county had 42.96 % white, non-Hispanic employees in the non-uniformed ranks compared to Newark's 9.24%.
The decision has a good discussion not only about the statistical basis for finding disparate impact, but how to determine the relevant job market and the correct standard for the business necessity defense.
About the only thing that this case does not stand for is that lawyers are being more receptive to bringing claims on behalf of non-minority plaintiffs. Mr. Meditz represented himself, including at oral argument.
Posted
10:35 AM
by Michael Fox
In addition to denying cert on the USERRA hostile environment case (see yesterday's post), the Supreme Court yesterday also reversed an FLSA case from the 9th Circuit:
10-1202 CHINESE DAILY NEWS, INC. V. WANG, LYNN, ET AL.
The use of Wal-Mart Stores, Inc. v. Dukes in an FLSA case is a key link for those who are advocating for greater control by the courts of FLSA collective actions. Unfortunately, as the 9th Circuit opinion shows, while the case is an FLSA case it is also a Rule 23 case on the state law claims. So, the linkage is not as definitive as one would like.
The petition for a writ of certiorari is granted. The judgment is vacated, and the case is remanded to the United States Court of Appeals for the Ninth Circuit for further consideration in light of Wal-Mart Stores, Inc. v. Dukes, 564 U.S. ___ (2011). Justice Breyer took no part in the consideration or decision of this petition.
And according to the Employment Law 360 story ($) Citing Dukes, Supreme Court Vacates $7.7M FLSA Award, which tipped me off to the case, the argument that got the Supreme Court's attention was in fact the 9-0 portion of Wal-Mart v. Dukes:
In its petition, the Chinese Daily News leaned heavily on the decision, in which the Supreme Court unanimously ruled that claims for injunctions or declaratory rulings in class actions typically don’t allow for monetary payments.
For a more aggressive attempt to use the Dukes decision in a pure FLSA context check out the mandamus action recently filed in the 6th Circuit, In Re HCR ManorCare ($). The employer which had been ordered to send notice under the two-step Lusardi standard had challenged the court's continued use of such standard in light of Dukes. Unfortunately, last week, the Court denied the petition.
However, if (like me) you are looking for glimmers of hope, the Court did note "Moreover, “because mandamus is a discretionary remedy, a Court may decline to issue the writ if it finds that it would not be ‘appropriate under the circumstances’ even if the petitioner has shown he is ‘clear[ly ] and indisputabl[y]’ entitled to it.”
To be fair, the Court did not find that the employer was entitled to the writ. However, with these cases and others, it does appear that small chinks in what heretofore has been a fairly impermeable wall protecting easy passage to conditional certification for FLSA collective actions are beginning to occur.
Although it would be disruptive to the financial income of lawyers who practice on both sides of the FLSA docket, I can't think of a single trend in employment law that could be more important.
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