Court rules that employee's cancer not sufficiently limiting for ADA protection

Employers often struggle with leaves of absence. The FMLA only requires 12 weeks of unpaid leave for a serious health condition. If, however, an employee has a disability covered by the ADA, an unpaid leave of absence longer than 12 weeks might be required as a reasonable accommodation. Before one can consider whether such an accommodation is reasonable or necessary, one must first address the threshold questions of whether the employee has a legally protected disability. Slane v. MetaMateria Partners, L.L.C., decided this week by the Franklin County Court of Appeals, tries to give us some guidance.

John Slane began working for MetaMaterials in October 2004. In June 2005 he was diagnosed with cancer. (Because he worked for MetaMaterials for less than 1 year, he was not FMLA eligible). He requested a 90-day leave of absence to allow for surgery, recuperation, and radiation treatment. Company policy provided a maximum of 30 days medical leave and 30 days personal leave, for a total of 60 days leave. A letter from the company to Slane dated July 22, 2005, stated that he would need to provide a written release statement from his health care provider upon his return to work.

On July 27, 2005, Slane completed a leave of absence form indicating that he began his leave on July 21, 2005, and expected to return to work October 21, 2005. The leave form was approved for a total of only 60 days leave, and specified that Slane had to provide a health care provider's release upon his return. Under company policy, if Slane did not return to work by September 19, 2005, with a release from his physician, he would be considered to have resigned.

In mid-October 2005, Slane informed his supervisor, Michael Gagel, that he was ready to return to work. Gagel told Slane that he would have to see if there was enough production for Slane to come back. Slane called again about two days later and, at that time, Gagel said that someone would be getting in touch. The next day, Slane tried to fill a prescription and was told at the pharmacy that he had no insurance. Slane called Gagel again, and Gagel told him he was checking on it. A week later, Gagel informed Slane that he did not have a job. Two days later the company confirmed that it had terminated Slane in September 2005 when he failed to return after the expiration of his approved 60-day leave of absence.

The Court found that Slane's claim failed because he did not have a legal disability. Cancer may be a disability, but to qualify as such one must show that it substantially limits a major life activity. The Court found that Slane's temporary physical impairment, albeit serious, did not rise to the level of a legally protected "disability":

Without a doubt, Slane's cancer of the right maxillary sinus was a severe disease or condition that necessitated surgery, removal of much of his right jaw, and radiation treatment. His cancer surgery left him with an "impairment" ... In terms of the duration of his physical impairments, Slane needed approximately 90 days to recuperate from treatment. The surgery left him with some difficulty in pronouncing his "s's" as well as difficulty producing saliva. After recuperating from his treatment, Slane testified that he was able to return to work with only minor limitations. The only permanent limitations were difficulty pronouncing his "s's," the need to clean his nose more frequently, and a dry mouth necessitating the need to drink water on a regular basis. Clearly, Slane presented evidence that he has a physical impairment as that term is used in the statute.

Merely having a physical impairment does not make one disabled for purposes of Ohio's disability discrimination statutes. Slane also needed to demonstrate that his physical impairment substantially limits a major life activity. "Substantially limits," as used under the ADA suggests "considerable" or "to a large degree." ... In terms of major life activities, Slane testified that, by October 2005, he could see, hear, think, climb, grasp, lift, sit, rise, walk, eat, breathe, swallow, brush his teeth, brush his hair, and sleep without difficulty. ... Slane's own testimony belies his claim that his cancer substantially limits his ability to perform the major life activities of speaking, breathing, eating, drinking, or swallowing as he had alleged.

This case leaves a bad taste in my mouth. An employee, suffering from cancer, who had a piece of his jaw replaced with a prosthesis, should be protected as having a "disability." This case would allow a termination of female employee with breast cancer post-mastectomy. That result just doesn't sit right with me. At a minimum, this issue seems like a fact issue a jury should decide, not a legal issue for the court.

If Slane was disabled, the company could have had problems. While it had a clearly defined policy only permitting a 60-day maximum leave of absence, it probably should have held his job for the additional 30 days. The ADA does not require an indefinite leave of absence as a reasonable accommodation, but it does require some leave of absence. Six months is generally considered the outside parameters of what is reasonable. In this case, the company knew of a definite return date, but nevertheless stuck by its written policy of 60 days. That formalism could have gotten the company into trouble for failing to reasonably accommodate Slane's disability. On a jury of 8, at least 6 (if not all 8) would have someone close to them touched by cancer, a calculus that could have spelled doom for the company. The court bailed it out by finding that Slane did not have a disability in the first place.

President signs GINA - genetic information discrimination now unlawful

As expected, this afternoon President Bush signed the Genetic Information Nondiscrimination Act ("GINA") into law.

GINA adds "genetic information" to the list of classes of employees protected by the federal employment discrimination laws. It makes it unlawful for an employer to fail or refuse to hire, or to discharge, any employee, or otherwise to discriminate against any employee with respect to the compensation, terms, conditions, or privileges of employment of the employee, because of genetic information with respect to the employee. "Genetic information" means, with respect to any individual, information about such individual's genetic tests, the genetic tests of family members of such individual, and the manifestation of a disease or disorder in family members of such individual. It does not include information about an individual's age or sex, which of course are already protected classes. As is the case with Title VII, GINA only applies to companies with 15 or more employees.

GINA also makes its unlawful for an employer to request, require, or purchase genetic information about an employee or an employee’s family member except:

1. Where an employer inadvertently requests or requires a family medical history;
2. Where an employer offers health or genetic services as part of a wellness program, the employee authorizes the disclosure in writing, and protections are in place to prevent the employer from discovering individually identifiable genetic information;
3. Where an employer requests or requires family medical history from the employee to comply with the FMLA's certification provisions;
4. Were an employer purchases documents that are commercially and publicly available (including newspapers, magazines, periodicals, and books, but not including medical databases or court records) that include family medical history;
5. Were the information involved is to be used for genetic monitoring of the biological effects of toxic substances in the workplace, but only if written notice is provided to the employee, the employee authorizes the monitoring in writing, the monitoring is required by and complies with a specific law, the employee receives the results, and protections are in place to prevent the employer from discovering individually identifiable genetic information; or
6. Where the employer conducts DNA analysis for law enforcement purposes as a forensic laboratory, but only to the extent that such genetic information is used for analysis of DNA identification markers for quality control to detect sample contamination.

If an employer obtains genetic information about an employee, it must maintain the information on separate forms and in separate medical files and threat it as a confidential medical record of the employee, similar to the treatment of other medical information under the ADA. The employer is only permitted to disclose the genetic information to the employee upon a specific written request, in response to a court order, to comply with the FMLA's certification procedures, or other very limited circumstances.

Employees have the same rights and remedies for alleged violations of GINA as they do for alleged violations of Title VII.

While genetic information discrimination may not be the most rampant problem facing employees, GINA nonetheless marks the first significant statutory change to the federal discrimination laws since 1991. Any such change should be cause for all companies to take a look at their current policies and HR practices to make sure that they account for this new protected class.

Interracial Association Discrimination found unlawful

Associational discrimination has become a hot employment law topic. The ADA expressly authorizes claims based on one's association to a person with a disability. Earlier this year, the 6th Circuit recognized an associational retaliation claim based on one employee's close relation to another employee who engaged in protected activity. Now, the 2nd Circuit has joined the 6th Circuit in permitting an associational discrimination claim based on the plaintiff's interracial relationship.

In Tetro v. Elliott Popham Pontiac, the 6th Circuit permitted an employee to proceed with a Title VII race discrimination claim based on his biracial child:

A white employee who is discharged because his child is biracial is discriminated against on the basis of his race, even though the root animus for the discrimination is a prejudice against the biracial child. ... If he had been African-American, presumably the dealership would not have discriminated because his daughter would also have been African-American. Or, if his daughter had been Caucasian, the dealership would not have discriminated because Tetro himself is Caucasian. So the essence of the alleged discrimination in the present case is the contrast in races between Tetro and his daughter. This means that the dealership has been charged with reacting adversely to Tetro because of Tetro's race in relation to the race of his daughter. The net effect is that the dealership has allegedly discriminated against Tetro because of his race.

In Holcomb v. Iona College, the 2nd Circuit allowed a white assistant basketball coach to claim that he was fired because he was married to an African-American woman:

[W]here an employee is subjected to adverse action because an employer disapproves of interracial association, the employee suffers discrimination because of the employee's own race.

Unlike associational retaliation claims, this type of associational discrimination claim makes sense under the statute. The adverse action is being taken "because of" the employee's race. The genesis of the discrimination is the fact that the employee is a different race than his spouse, which is "because of" his race.

The bottom line for employers - the race of your employees' spouses and children is none of your business. Supervisors and managers should not go out of their way to inquire about it. Diversity training should incorporate a component making employees aware that this type of discrimination is unlawful and will not be tolerated.

How to apply new email soliciation rules

Late last year, the NLRB issued its decision in Register-Guard, which determined that an employer can lawfully prohibit union-related use of company email systems if the employer has a consistently enforced policy prohibiting "non-job-related solicitations." If it was not clear before, after Register-Guard it is clear that an employer's email system is company property and "employees have no statutory right to use [the company's] e-mail system for Section 7 purposes." (For my prior discussion of this case, see NLRB rewrites employee solicitation rules).

To date, the NLRB has decided 5 cases under the Register-Guard standard. To help employers understand the position the NLRB will take on limitations placed on corporate email systems and other employee communications, it has summarized those 5 cases in a published memorandum, which I will further summarize for everyone.

Case #1: The employer had historically allowed the union to use the company's email system to conduct union business and to communicate with the employer about labor relation matters at the facility. Recently, the employer sent a letter to the union stating that it had knowledge that the union was inappropriately using the company's e-mail system by sending broadly distributed emails to company managers outside the facility. The letter cautioned that further similar activity could result in immediate suspension of the union's email account. The NLRB found the rule to be lawful because it concerned how the union was permitted to use the employer's email system and did not otherwise prohibit the union from engaging in protected communications outside the plant or to broad groups of managers.

Case #2: Both before and after the union's organizing campaign began, the employer maintained a no solicitation rule which, on its face, prohibited solicitation for any purpose during working time and in work areas. The employer, however, was inconsistent with its enforcement of the policy. For example, the employer warned and/or disciplined employees engaged in union solicitation activity, yet permitted non-union-related solicitations such as school fund raisers and Avon sales. Because the employer permitted direct solicitations for non-union/non-work purposes, its prohibition of union-related solicitations was discriminatory.

Case #3: The employer had a handbook provision which stated that its email system is intended for reasonable and responsible business purposes and is not intended for personal use, and that employees may not solicit during working time for any purpose. After sending an email communication about a union meeting, an employee received a written warning for using the email system for solicitation purposes in violation of handbook provision. Other employees, however, frequently sent non-work related emails while at work and during working times (such as chain letters, jokes, party invitations, and solicitations for candy sales) and were not disciplined. The NLRB concluded that the employee was unlawfully singled out because of the union-related content of his email. Case #4: An employee, who was dissatisfied with working conditions, circulated an email petition to try to drum up support to take the concerns to management. When the Board of Directors learned who was responsible for the petition, it terminated him for insubordination for participating in the "anonymous email scheme" and inappropriately using the employer's computers in violation of its policy. The NLRB concluded that the employer unlawfully discharged the employee for engaging in protected concerted activities when seeking the support to address working conditions. An employer may not rely on an employee's failure to adhere to a rule that prohibits protected activity as a basis for discipline. Further, because the employer's email policy allowed reasonable personal use of the computer and the employer permitted employees' extensive use of the Internet, email and other company equipment for their personal purposes, it disparately enforced its email policy against protected concerted activity.

Case #5: An employee union organizer led a delegation of union supporters into one of the employer's stores. The group handed the store manager a letter announcing of the formation of a union, together with a written list of demands regarding wages and working conditions. Simultaneously, other union members and supporters distributed union leaflets outside of the entrance. At the time of this event, the employer maintained two bulletin boards, one for official employer announcements and another for employee personal or general non-work-related matters. The employer had no written policy concerning the use of these bulletin boards. The next day, the main union supporter posted on the employee bulletin board the list of demands that had been given to the store manager, along with the union leaflet. The letter and leaflet were removed, yet other personal announcements remained. Thereafter, he noticed that all items that had been previously posted on the general employee bulletin board had been removed and employer materials were now posted there. The store manager informed the union organizer that employees were no longer allowed to post anything on the employee bulletin board. The NLRB concluded that the employer had an anti-union motive and that its actions were directly in response to the union activity. There was no disparate enforcement of a written company-wide policy, but an unwritten policy that was abruptly changed in response to union activities.

Conclusion: If an employer permits a union representing its employees to use the employer's email system, it can place reasonable limits on that use. If, however, an otherwise valid rule is promulgated or enforced for anti-union reasons, Register-Guard will not protect the employer's actions. The key is consistency. A neutral policy should be in place before any union activity or communication occurs. That reasonable policy should then be uniformly and consistently applied and enforced to avoid running afoul of the NLRA's protections for union and other concerted activities.

[Hat-tip: Manpower Employment Blawg]

Another take on second-hand harassment

Remember Reeves v. C.H. Robinson Worldwide from a few weeks ago. It allowed a plaintiff to proceed with a sexual harassment claim even though she was not the target of the alleged offensive conduct. The 6th Circuit has now also weighed in on this issue of second-hand harassment (sort of), in Bailey v. USF Holland, which we discussed Friday. (Please follow the link for the background of the Bailey case.)

The district court found "that a wide variety of racially motivated harassment occurred at the Nashville terminal." The district court concluded that "some of the conduct was, on its face, clearly racially motivated – such as the continued use of the terms 'boy,' 'hey boy,' 'damn it boy,' and variations thereof, in the face of the plaintiffs' requests not to be called those terms, and after the racial implications of those terms had been clearly explained at sensitivity training sessions. ..." The district court also noted that the “more overtly racially offensive behavior, such as the statement 'I can call him a low-down, dirty nigger and he won't mind' sheds light on the otherwise unclear motivations behind some of the other incidents."

Defendant argues that the effect of this overtly racial statement was minimal because it was made by an hourly employee and merely overheard by Smith. Defendant also suggests that the employee apologized to Smith and that the two of them were friends. This misses the point. The district court did not conclude that this statement itself created a hostile work environment; rather, it found that this statement "sheds light" on what could otherwise be seen as the ambiguous motivations behind some of the other examples of harassment"

In an atmosphere in which fliers depicting one of the plaintiffs as "the boy," nooses, and various other forms of "boy" graffiti were absent, the court might be inclined to believe that the plaintiffs were overreacting when their coworkers slipped the word "boy" into the conversation in more subtle ways. But in a work environment that included nooses, offensive flyers, "boy" graffiti, and other frankly racist behavior, the court concludes that, indeed, the plaintiffs were being baited by white employees in additional, more subtle ways.

Defendant is correct that "merely offensive" conduct does not establish a hostile work environment. ... But after reviewing the totality of the circumstances, the district court concluded: "[i]t is unlikely that, after Mr. Bailey and Mr. Smith had spent years complaining about the terms, a white employee could end a sentence to either plaintiff with 'damn it boy' and mean no offense."

This seems like a much more sensible treatment of second-hand harassment than what a different court did in the Reeves case. The 6th Circuit does not say that the second-hand harassment is actionable in and of itself. Instead, it takes the position that the evidence of second-hand harassment is admissible to shed light on the offensive nature of the work environment itself. In other words, while the use of the word "boy" could be innocuous, coupled with the fact that one of its utterers refers to one of the plaintiffs as "a low-down dirty nigger" strongly suggests that "boy" is anything but innocent. Thus, the "low-down dirty nigger" comment is not actionable as harassment in and of itself, but as evidence of the intent of the word "boy."

In responding to harassment complaint, prompt means prompt

In Bailey v. USF Holland, the 6th Circuit had occasion to examine whether the employer's response to two African-American employees' claims of racial harassment was sufficiently prompt to defeat liability. This case provides a good case study from which companies can learn how, and how not, to respond to an employee's internal complaint.

Bailey and Smith, both African-American, were dock workers for USF Holland. Throughout their employment, their white coworkers constantly subjected them to the word "boy." When they would complain to their coworkers that the word "boy" is offensive when directed at a black man, they would sarcastically respond, "damn it boy." The more they complained, the more serious the harassment would become. It moved from words to vandalism, including "boy" spray painted on equipment, etched into walls, used to depict black men in cartoon drawings, and even written on a calendar on MLK Day. The harassment was not limited to the use of the word "boy." Bailey discovered a noose hanging in the dock area, and Smith overheard one white coworker telling another that he liked Smith because he could call him "a low-down dirty nigger" and Smith would not do anything about it.

Two years after Bailey and Smith started complaining to management about the offensive use of the word "boy," a new terminal manager and the VP of HR decided to conduct "sensitivity training" at the terminal. During that training it was explained that "boy" was offensive to African-Americans because it was used as a racial epithet during slavery. During the training, "several white employees voiced resistance to the idea that it was wrong to refer to African-American men as 'hey boy' or 'damn it boy.'" One white employee, Fred Connor, even told the terminal manager that "boy" was a "southern thing" and he would continue to use it regardless of company policy.

Not surprisingly, the behavior continued for several months after the training, as did Bailey's and Smith's complaints to management. At that time, USF brought in an outside lawyer who conducted a three-day investigation. He concluded that "while the environment likely is not racially hostile [huh?], it is certainly one in which more sensitive employees can feel uncomfortable." As a result, the VP of HR wrote to Bailey and Smith, telling them that the company could not discipline any employees because the use of "boy" was not racially motivated and that everyone had denied the other alleged conduct.

As the graffiti and harassment continued, USF hired a handwriting expert and terminated the offending employee, Fred Connor. He filed a union grievance and was reinstated. After his reinstatement, Connor reiterated to the terminal manager that "he would not adhere to the policy and would continue to use the word 'boy' as he saw fit."

Finally, in 2006, 4 years after Bailey's and Smith's first complaint and a year after they filed their lawsuit, USF installed 25 security cameras, which finally ended the graffiti.

At a bench trial, the district court judge awarded Bailey and Smith each $350,000 in compensatory damages.

On appeal, USF argued that it could not be liable for the harassment because it took "reasonable, prompt, and appropriate corrective action." The 6th Circuit disagreed:

Defendant cites examples of its corrective action, noting for example that it "consistently had a reasonable harassment policy," conducted employee meetings to respond to plaintiffs' complaints, and disciplined the employee responsible for the graffiti. The district court correctly rejected these actions as insufficient. A harassment policy itself means nothing without enforcement, and the persistent harassment plaintiffs received over an extended period of time caused the district court to conclude that the policy was not consistently enforced. Defendant conducted employee meetings, but plaintiffs' coworkers stated that they did not consider their use of "boy" to be offensive and insisted that they would continue to use it. Defendant discharged Connor once it discovered that he created the graffiti, but he was reinstated soon thereafter. USF Holland was unable to stop the graffiti until it installed security cameras – an act it did not take until after plaintiffs initiated this lawsuit.

Termination of the alleged harasser is not the be all and end all of corrective action. Usually courts do not second guess an employer's course of remedial action. Indeed, had the sensitivity training succeeded in ending the harassment, I doubt that Bailey and Smith would have prevailed. When, however, the offending employee tells the VP of HR during sensitive training that he will continue calling black employees "boy," and others offer similar resistance, a company cannot turn a blind eye and hope that everything will work out. By the time employees started being disciplined and security cameras were involved, it was "too little, too late."

The timeline in this case spanned nearly 4 years from the first complaint to the installation of the cameras. In a case such as this, 4 weeks might not even be quick enough of a response. The severity of the response (i.e., counseling, discipline, termination) can vary depending on the severity of the harassment, but the quickness of the response cannot. Companies that allow problems such as these to fester and continue by dragging their feet in investigating and remedying them do so at their own peril, as the $700,000 verdict in this case illustrates.

What I'm reading this week #31

In my absence last week, I completely missed my blogiversary. It's been a little over a year now since I launched the Ohio Employer's Law Blog with my first post, The Song Remains the Same -- Has Burlington Northern Really Changed the Landscape of Retaliation Claims? A quick thank you to all of my subscribers, commenters, everyone who's linked to me, provided an idea for a post, and quoted me both online and in print, and to the more than 26,000 people who've visited. Without each of you, I highly doubt I would still be writing more than a year later.

And with that, on to the best of everything else I've read this week.

In Desert Palace v. Costa, the U.S. Supreme Court held that direct evidence of discrimination is not required to obtain a "mixed-motive" jury instruction. The HR Lawyer's Blog reports on a significant case out of the 8th Circuit this week that flat out disagrees with the Supreme Court. So much for stare decisis.

As someone who cannot get a lick of work done without music playing in the background, I was keenly interested in HR World's take on personal technology such as iPods in the office.

For similar personal reasons, I was also very interested in Guerilla HR's take on bad language in the workplace. For a good laugh, be sure to click through to the Cuss Control Academy.

The Business of Management asks if you have an "office spouse"?

Dan Schwartz at the Connecticut Employment Law Blog writes on the worth of companies that sell workplace posters.

The Evil HR Lady posts on the value of exit interviews.

Finally this week, The HR Capitalist gives one scenario of what can happen to a company when it tries to regulate the use of overtime.