Tell us something we didn't know - court holds that sex is a major life activity

"Disability" is a term of art under the ADA. To be legally "disabled" and entitled to the protections that the ADA provides, it is not enough to simply have a medical condition. That condition must substantially limit a major life activity. In Adams v. Rice (2nd Cir. 7/18/08) (decided under the Rehabilitation Act, the predecessor to the ADA, which prohibits federal agencies from engaging in employment discrimination against disabled individuals), the court was faced with an employee with stage-one breast cancer, which the court determined substantially limited her in the major life activity of sexual contact and romantic intimacy:

Beginning with the statute, we can easily conclude without resorting to the dictionary that engaging in sexual relations clearly amounts to an "activity" in any sense of that word. ... At the risk of stating the obvious, sex is unquestionably a significant human activity, one our species has been engaging in at least since the biblical injunction to "be fruitful and multiply." Genesis 1:28. As a basic physiological act practiced regularly by a vast portion of the population, a cornerstone of family and marital life, a conduit to emotional and spiritual fulfillment, and a crucial element in intimate relationships, sex easily qualifies as a "major" life activity. ...

Having decided that engaging in sexual relations qualifies as a major life activity, we next determine whether Adams has sufficiently alleged a substantial limitation on that activity. This is an individualized inquiry that focuses on Adams's own experience. ... According to Adams, her breast cancer treatment rendered her completely unable to engage in sexual relations. Due to the scarring from her mastectomy and breast reconstruction, her overall post-surgery physical appearance, lack of physical sensation, loss of libido accompanying her medication, or some combination of those factors, she claims that her "ability to enter into romantic relationships has been crippled indefinitely and perhaps permanently." ... Adams's breast cancer qualifies as a disability because it amounted to a physical impairment that substantially limited her in the major life activity of sexual relations.

The employment decision is this case just smells bad. Adams had passed both the written and oral examinations for the Foreign Service before finding out she had breast cancer. After her diagnosis and surgery, the State Department cleared her appointment, advising Adams that she had scored 7th out of the 200 applicants. The next day, Adams informed the State Department of her cancer. The State Department, in turn, withdrew her clearance. Thus, the court looked past the lack of any nexus between the employer's knowledge of the condition and the knowledge of the substantial limitation on a major life activity.

Perhaps the lesson to be learned is that when a case presents horrific facts, courts will sometimes find a way to rationalize a fair and just result. There is no doubt that Adams's cancer had no impact on her ability to do her job whatsoever, and yet it appears clear that is was entirely because of her diagnosis that the State Department pulled her foreign clearance and killer her application. In other words, if it looks like discrimination, and smells like discrimination, it probably is discrimination.

Study suggests trials too risky; are lawyers really to blame?

It is no surprise that nearly 90% of all civil cases settle before they ever get before a jury. The New York Times is reporting on a study by Randall L. Kiser, principal analyst at DecisionSet, a consulting firm that advises clients on litigation decisions, who wondered if the decision to proceed to trial and forego settlement is the correct one in the 10% of cases that are tried.

In a study to be published in the September issue of the Journal of Empirical Legal Studies, he concluded that plaintiffs are much better off taking the offer that is on the table instead of risking it all by going to trial:

That is the clear lesson of a soon-to-be-released study of civil lawsuits that has found that most of the plaintiffs who decided to pass up a settlement offer and went to trial ended up getting less money than if they had taken that offer.

"The lesson for plaintiffs is, in the vast majority of cases, they are perceiving the defendant’s offer to be half a loaf when in fact it is an entire loaf or more," said Randall L. Kiser. ...

Defendants made the wrong decision by proceeding to trial far less often, in 24 percent of cases, according to the study; plaintiffs were wrong in 61 percent of cases. In just 15 percent of cases, both sides were right to go to trial — meaning that the defendant paid less than the plaintiff had wanted but the plaintiff got more than the defendant had offered.

The article suggests that lawyers are to blame by not giving clients the proper advice. Our jobs, however, are not to make the decision for our clients whether to settle or try a case. In fact, it would be unethical to do so. Instead, our role is to provide our clients with as much relevant information as possible, lay out the risks and rewards inherent in the options, and let them make an informed decision. If we think they are making the wrong decision, our job is to try to persuade them to what we think the right decision is, until they either come around to our way of thinking, or we determine that they will not.

The article also suggests that lawyers are driven by high fees and not good results for their clients. I respectfully disagree. Clients are relationships, not cash cows that can be milked dry in every case. The best way to build such a relationship is not by draining every nickel from a client on every matter, but by being cost effective. Part of being cost effective is understanding when it is time to fish, and when it is time to cut bait.

Blawg Review #172

In honor of the start of the Beijing Olympics, it would have perhaps made more sense for this week's 172nd edition of Blawg Review to have been hosted by the China Law Blog. Having just hosted Blawg Review #162 a mere two months ago, however, a repeat performance is not in the cards. Instead, you get me, who knows little about China. I do plan, though, to watch copious amounts of Olympic coverage over the next two weeks. Accordingly, I bring you this Olympic-themed Blawg Review.

First, a little history lesson on the Olympic Games themselves, both ancient and modern (borrowed heavily from Wikipedia).

Legend has it that Heracles created the ancient Olympic Games and built the original Olympic stadium in honor of his father, Zeus. It is believed that the first Olympics took place somewhere between 884 BC and 704 BC. Thereafter, they became very important throughout ancient Greece. During the ancient times only young men could participate. Competitors were usually nude, as the festival was meant to be a celebration of the achievements of the human body. Winners of the twenty different events became immortalized in statutes and poems, such as wrestler Milo of Croton. As the Romans gained hold in Greece, the Olympics gradually declined in significance. In 393 AD, after Emperor Theodosius I declared Christianity the official religion of the Empire and banned pagan rites, the Romans outlawed the Olympic Games as a pagan festival in 393 AD.

The modern Olympic revival can be traced to the confluence of several events. First, in 1859, Evangelos Zappas, a wealthy Greek philanthropist, sponsored the revival of the first modern international Olympic Games, held in an Athens city square in 1859. The only countries that participated were Greece and the Ottoman Empire. Zappas held Games again in 1870 and 1875.

Secondly, in the mid-19th century, German archaeologists uncovered the ruins of Olympia, the site of the ancient Olympics.

At the same time, Pierre de Coubertin, a French aristocrat, concluded that the reason the French lost the Franco-Prussian war was because they had not received proper physical education (apparently, it had nothing to do with the post-Napoleonic warfare proficiency of the French). He also believed that he could improve international relations and curb warfare by having world youth compete in sports. In 1890, he decided that the formal  revival of the Olympic Games would achieve both of his goals, and founded the International Olympic Committee. That committee decided that the first IOC Olympic Games would take place in 1896 in Athens, in the country of their birth. The Panathenian stadium that was used for Zappas's Olympic Games in 1870 and 1875 was refurbished and reused for the Olympic Games held in Athens in 1896.

The first modern Olympics in 1896 had 250 total athletes, the largest international sports event ever held until that time. Over the next two weeks, more than 11,000 athletes will compete in Beijing.

Over the next many paragraphs, dozens of the best posts from around the blawgosphere will be featured and awarded appropriate medals for their blawging excellence.

In the labor and employment law events, gold medals are awarded to the following:

That's What She Said, for its reminder that events such as Office Olympics are key to finding balance and building camaraderie in the workplace.

The Delaware Employment Law Blog, for their topical post on dress codes in Beijing during the Olympics. A silver medal also goes to their post on "Desk Rage", which is apparently becoming all the rage in our workplaces.

The Connecticut Employment Law Blog, for posting on a favorite topic of mine, workplace fairness.

The Pennsylvania Labor & Employment Blog, for blaming the legal system and sexual harassment liability for removing any semblance of humor from the modern American workplace. A silver medal goes to Michael's post on DeJohn v. Temple University, which bizarrely held that the First Amendment limits a public university's ability to enforce its sexual harassment policy.

Rush on Business, for giving us the the real reason the Packers traded Brett Favre, to avoid any potential age discrimination liability.

The Manpower Employment Blawg, for informing us that "the EEOC is not in the business of judging anyone’s musical tastes."

The Workplace Prof Blog, for its post on a employer going to jail for not securing workers comp coverage for her employees.

The Word on Employment Law, for letting us know that sometimes PR is stronger than PC. A silver medal goes to WorkplaceHorizons, for its coverage of the same topic.

The HR Capitalist, for reporting on on Walmart's foray into employee mind control.

On the issue of the California Supreme Court's 7-0 ruling that under California's Business and Professions Code section 16600, non-compete agreements are invalid even if they are written narrowly enough not to deprive persons of their right to pursue their profession, we have a five-way tie: World of Work, Trading Secrets, the Labor Employment Law Blog, The Business of Management, and What's New in Employment Law?. (Can you tell this is a very significant decision?)

The California Labor & Employment Blog, for its discussion of an employee vs. independent contractor bill pending in its home state.

George's Employment Blawg, on "blind" hiring practices.

Storm's California Employment Law, for brining a little bit of the Kosher to labor law.

Human Rights in the Workplace, for the Russian judge who ruled, "If we had no sexual harassment we would have no children." The silver medal goes to Abovethelaw for its report on the same issue.

The FMLA Blog, for its post on taking FMLA leave to care for a child with Tourette Syndrome.

In the non-labor and employment law events, gold medals are awarded to the following:

The Ohio Real Estate Blog, for proving that adverse possession really does exist outside of a law school Property exam.

Ohio Practical Business Law, for informing us on the very welcome trend of specialized commercial courts to handle business disputes.

The Ohio Family Law Blog, for bringing one for the guys.

Bob Sutton, for letting us know that it's ok to laugh at ourselves.

The Res Ipsa Blog, for giving new law students ten helpful tips on how to succeed in law school. Let me add number 11, for any soon-to-be 1Ls that might be reading -- you got to law school by being successful up to this point in your life. Just keep doing what you've been doing and you'll be fine. And, above all else, shut out what everyone else around you is doing. Don't get caught up in how much others are studying, how early in the semester people start outlining, or how confident others appear when answering questions in class. Trust me, they know as little as you and are as scared. The sooner you figure that out, the more sane you'll be.

On Point, for the best victory that is not a victory jury verdict of the week -- $1.5 million to a woman who sued a man for infecting her with a sexually transmitted disease.

Lowering the Bar, for its exposé on the ACLU's efforts to protect baggy pants and mullets.

Electronic Discovery Law, for reporting on a defendant's failure to preserve security camera footage of a slip and fall, and resulting adverse inference instruction the plaintiff received as a result of the court's conscience being shocked.

Traverse Legal, for their post explaining the treatment of works made for hire under the copyright act.

Drug and Device Law, for tying together Benjamin Franklin, Albert Einstein, and George Bush.

The MassLawBlog, for updating my urban dictionary with the term "whole paycheck."

The Irish blawg Cearta.ie, on three recent cases in which individual privacy trumped the right to a free press.

The Settle It Now Negotiation Blog, on why it's so hard to say I'm sorry.

The very long-titled Consumer Goods & Retail Industry Litigation Blog, for bringing to everyone's attention the incentives of being a whistleblower.

Susan Crawford, for being down on Comcast.

Lowering the Bar, for bringing the phrase, "Cloned-Dog-Mormon-Attack in the  lexicon.

A Stitch in Haste, for reminding us of how little privacy we really have in this country. A silver medal to Simple Justice for the same topic.

Adam Smith, for reminding that people can still whine about being paid $175,000 a year for reviewing documents.

What About Clients?, for jumping on the anti Martindale-Hubbell bandwagon.

UsefulArts, for writing one for the gamers.

The Wall Street Journal's Law Blog, for introducing me to the phrase, "defamation of religion".

IPKat, for her picture of a cat wielding a light saber.

The Electronic Frontier Foundation, for reporting on my right to skip commercials with my beloved DVR.

Finally, Sentencing Law and Policy, for reminding me that there will always be stupid people in the world. 

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Blawg Review has information about next week's host, and instructions how to get your blawg posts reviewed in upcoming issues.

Fired for Smoking

Back in April, I brought everyone the story of a German company that fired an employee for not smoking. This morning, the ABA Journal reports on the converse, an upstate New York law firm that fired a paralegal for taking a smoke break: 

A New York appeals court has upheld a Rochester law firm's decision to fire a paralegal who defied a policy that banned smoke breaks for hourly employees.

Karen Kridel had reportedly worked at the firm for more than a year and took a five-minute break in the morning and afternoon to smoke, the Associated Press reports. Kridel, who said the breaks re-energized her, claimed she often made up the time taking calls during her lunch break.

But the firm had banned smoke breaks for hourly workers, outside of the lunch hour, and in 2006 began enforcing it when five-minute breaks turned into 15 minutes, a half hour and then one employee was found sleeping in a car.

There is nothing inherently illegal about having a policy that bans smoke breaks, or terminating an employee for violating that policy. Smoke breaks cripple productivity. Those who abuse them annoy their co-workers and managers, who feel like they are left to do the smokers' work. I once had an assistant who I could never find because she was always outside smoking.

At the same time, however, companies need to be flexible in how they handle employees and their personal needs. Draconian policies (such as no smoke breaks under any circumstances) cripple morale. Moreover, such policies, if not followed to the letter, can lead to discrimination claims. For example, if the company is more permissive with a male paralegal who takes 5 minutes out of his day to run an errand, it could be subjecting itself to sex discrimination liability for treating the female smoker more harshly.

Instead of having a blanket "no smoke break" policy, consider counseling employees who are seen as taking advantage of smoke breaks by taking them excessively or without permission. Building such policies into employees' normal performance evaluations is a much better practice than an outright prohibition on an entire type of conduct.

Blawg Review reminder

Just a quick reminder that I'll be hosting Blawg Review #172 this coming Monday, August 11. If you would like me to consider one of your posts for inclusion, or if you have a post that you've come across this week that you'd like to recommend, please follow this link to Blawg Review and for the submission guidelines.

Will the Healthy Families Act prohibit fraud?

A commenter took me to task for yesterday's post, in which I argued that under the proposed Healthy Families Act employees committing fraud by taking illegitimate time off work could hide behind the law to protect their jobs. To support his/her point, the commenter relied upon Vail v. Raybestos Products Co., an FMLA decision out of the 7th Circuit.

In that case, Diana Vail was terminated while out on FMLA leave. Vail claimed to suffer from migraine headaches, that would come upon her shortly before her scheduled shift at Raybestos. Between May and September 2005, she took more than 33 days of approved leave. Her supervisor became suspicious, hired an off-duty cop to tail her, discovered that she was helping her husband's lawn mowing business while on FMLA leave, and terminated her. The Court correctly rejected her FMLA interference claim:

An employer can defeat an interference claim by showing, among other things, that the employee did not take leave "for the intended purpose." ... We have interpreted this to mean that an employer has not violated the FMLA if it refused to reinstate the employee based on an "honest suspicion" that the she was abusing her leave. ...

Though the use of an off-duty police officer to follow an employee on leave may not be preferred employer behavior, employers have certainly gone further than Raybestos. ... In any event, the information gleaned from Sergeant Largent's reconnaissance was sufficient to give Raybestos an "honest suspicion" that Vail was not using her leave "for the intended purpose." Vail had taken medical leave for her October 6, 2005 evening shift. The next morning, the off-duty police officer saw Vail working for her husband's lawn-mowing business. Raybestos received this information after it already suspected that Vail was gaming her leave in order to work for her husband's business. So when it heard information consistent with what they suspected she was doing while on leave, Raybestos decided to terminate her. ... Raybestos did not violate Vail’s rights under the FMLA.

The Vail case, however, is vastly different than the example I discussed yesterday, which focused on systematic audits by employers of employees' use of sick time. No one would reasonably argue that an employer cannot legitimately investigate a specific employee that in good faith it suspects of committing fraud. However, the Healthy Families Act very well might prohibit more general investigations that may catch crooked employees in its dragnet.

Section 4114.10(B) of the proposed Health Families Act states: "No employer shall interfere with, restrain, or deny the exercise of or the attempted exercise of any right provided in this Act." It will be up to the courts to interpret what this section means, but employee advocates will certainly argue that blanket investigations of employees' use of sick time could interfere with or restrain employees' use of sick time. If an employee thinks that he or she could be terminated if an employer investigation determines that a sick day was improvidently taken, that employee might be less likely to use sick days at all. Thus, one could conclude that generalized investigations violate section 4114.10(B).

Any statute that could be construed to inhibit an employer's ability to investigate and catch employee fraud is a poorly conceived and drafted statute. This is yet another reason why the Healthy Families Act is bad for Ohio businesses.

Healthy Families Act appears headed to November ballot

The Cleveland Plain Dealer is reporting that Ohioans for Healthy Families has submitted to the Secretary of State double the number of signatures needs to place the Healthy Families Act on the November ballot. The battle lines are being drawn between supporters of the ballot initiative and Ohioans to Protect Jobs and Fair Benefits, a coalition of businesses that opposes the initiative as bad for Ohio businesses. Governor Strickland continues to seek a compromise to keep this job-killing measure off the ballot. Ohioans to Protect Jobs and Fair Benefits, however, rightly believes that a compromise is impossible: "The premise of this proposal - to require a costly state-imposed employee benefit that no other state now requires - is unacceptable on its face."

Meanwhile, another story in this morning's Plain Dealer illustrates one of the key problems with the Healthy Families Act. It seems that Cleveland has been spot-checking its safety employees' use of sick time:

For the past 18 months, EMS and firefighter supervisors haven't just been rushing to fires or medical emergencies, they've also been checking up on employees who called in sick.

The checks are done when more than five call off on any day or when people use sick days around holidays and vacations. Employees who don't answer the door when supervisors knock must produce a note or other proof that they visited the doctor or pharmacy or face discipline.

Last week, EMS began pre-discipline hearings for 36 paramedics over sick-time use. Firefighters have already been disciplined.

Employees who call off sick force the city to pay overtime to maintain minimum staffing levels, costing hundreds of thousands of dollars a year. If the city didn't pay the overtime, fire trucks and ambulances would sit idle, said Safety Director Martin Flask.

"Sick time has a detrimental impact on safety services," he said. "Rules have to be followed."

If the Healthy Families Act becomes law, this practice might become illegal. Section 4114.10(C)(2) of the proposed law states: "No employer shall discharge or in any manner discriminate against any employee for opposing any practice made unlawful by this Act, including ... Using paid sick leave taken pursuant to this Act as a negative factor in an employment action, such as hiring, promotion, or a disciplinary action." Checking whether an employee's use of sick leave is legitimate could be construed as violating this provision. In other words, as the law is written, employees committing fraud by taking illegitimate time off work could hide behind the law to protect their jobs.

For more information on how you can help defeat the Healthy Families Act, visit www.saveourjobsandbenefits.com.