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WIRTW #97

Thanks to the magical ability to schedule posts in advance, I am with my family in Disney World while you’re reading today’s WIRTW. Next week, I will be running a series of what I think are some of my best posts from earlier this year. Today, take a look at what I think are some of the best posts from my fellow employment law and HR bloggers from earlier this week.

The Word on Employment Law with John Phillips thinks a 38-year employee deserve more than a 10-minute termination discussion.

Mark Toth’s Manpower Employment Blawg reports on possible changes to federal labor laws under Obama’s NLRB.

Mindy Chapman’s Case in Point draws a lesson on the ADA from a case involving talk show host Montel Williams.

Molly DiBianca at the Delaware Employment Law Blog has yet another story of someone who got herself in trouble for something posted on a social networking site.

Nick Fishman at the employeescreenIQ Blog discusses Equifax’s decision to stop selling credit reports for employment purposes.

Paul Secunda at the Workplace Prof Blog thinks employers that test employees for legally prescribed drugs are “clueless.”

Carl Boland’s FMLA Blog, on whether telling the office staff about a co-worker’s miscarriage violates the FMLA.

Michael Maslanka’s Work Matters, on the art of the apology.

Patrick Smith’s Iowa Employment Law Blog discusses how to avoid discrimination liability.

Workplace Investigations asks, “What is religion?”

I’ll be back with fresh content on October 5. In the meantime, enjoy next week’s replay.

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Presented by Kohrman Jackson & Krantz, with offices in Cleveland and Columbus. For more information, contact Jon Hyman, a partner in our Labor & Employment group, at (216) 736-7226 or jth@kjk.com.

Discrimination in the air

Consider the following comments relating to the promotion of female officers within a police department:

• The chief will never have a female on the command staff.
• None of you females will ever go anywhere, and other negative statements about women in the department.
• Women do not belong in the police force.
• Accusing a female employee of “bitching” when lodging complaints.

On first blush, these comments would appear to support a claim of sex discrimination. But, consider that these comments were all made by non-decision makers, and that the Chief, who was not alleged to have taken part in any of these comments, had the sole discretion to hire, fire, and promote. If only the Chief could make personnel decisions, then only his comments should be relevant to a discrimination claim. In Risch v. Royal Oak Police Dep’t (6th Cir. 9/23/09) [PDF], the 6th Circuit disagrees with me in sending the case back to the district court for a trial on the employee’s sex discrimination claim.

In finding that there was a triable jury issue, the majority relied on the “discriminatory atmosphere” in the department:

The statements in this case evidence a discriminatory atmosphere in the Department in which male officers frequently made derogatory or discriminatory remarks about female officers. Two of the comments were made by sergeants who were members of the sixteen-person command staff, which serves as the managerial arm of the Department. Discriminatory statements made by individuals occupying managerial positions can be particularly probative of a discriminatory workplace culture….

For my money, the dissent has the better side of the argument as to whether an “atmosphere” can support a discrimination claim:

To be sure, sexist comments by other officers may have greater relevance if Risch were alleging sexual harassment, but she is not; rather, she alleges an unlawful discrete act – denial of a promotion based upon sex. To impute allegedly discriminatory comments and conduct by non-decision making employees within the Department to Chief Quisenberry and conclude that discriminatory animus may have infected his denial of Risch’s request for a promotion requires an inference upon inference – untethered to any proper evidentiary foundation.

Do comments such as those made in the Risch case belong in the workplace? Clearly, the answer is no. However, discrimination cannot exist in the air. It has to have a connection to the actual challenged decision. Without this nexus, we are opening our courts to a broad range of cases that will be decided on emotion and prejudice, not on facts bearing on the employment decision itself.

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Presented by Kohrman Jackson & Krantz, with offices in Cleveland and Columbus. For more information, contact Jon Hyman, a partner in our Labor & Employment group, at (216) 736-7226 or jth@kjk.com.

Is the sky falling? The reality of wage and hour lawsuits

There is no doubt that wage and hour litigation is “the” hot topic in employment law. Dan Schwartz at the Connecticut Employment Law Blog has taken an empirical look at the number of wage and hour lawsuits filed and thinks that all of the hoopla might be a tad overblown. The numbers, however, only tell part of the story.

Federal courts classify their civil filings by type of case. Wage and hour lawsuits fall under the umbrella of “Labor” filings. The following breaks down “Labor” filings for the past five years, both in all federal courts and in Ohio’s two federal districts (courtesy of the Federal Court Management Statistics):

All Federal Districts

	Labor Cases	Total Filings	%
2008	16,788	349,969	4.80%
2007	18,674	335,655	5.56%
2006	16,659	335,868	4.96%
2005	18,322	330,721	5.54%
2004	18,330	358,983	5.11%

Ohio’s Federal Courts

	Labor Cases	Total Filings	%
2008	566	8,225	6.88%
2007	583	8,910	6.54%
2006	614	8,285	7.41%
2005	946	12,077	7.83%
2004	765	13,908	5.50%

As you can see, the total number of cases and percentage of overall cases was was down nationwide in 2008, but steady in Ohio. Moreover, Ohio’s federal courts have a higher percentage of wage and hour cases than the national average.

The danger posed by wage and hour lawsuits, however, isn’t in the number of cases filed. The danger is that most wage and hour cases are filed as class or collective actions, which prove to be very costly and carry with them enormous exposure for employers. You are naive if you don’t think that every plaintiffs attorney asks about wage and hour practices as part of their client intake. Additionally, the Department of Labor just announced the hiring of 250 new wage and hour investigators. Every employer is a target because no employer does wage and hour perfectly. And, even the tiniest slip can lead to a multi-million dollar claim. Do you need a better reason to get a handle on your wage and hour practices sooner rather than later?

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Presented by Kohrman Jackson & Krantz, with offices in Cleveland and Columbus. For more information, contact Jon Hyman, a partner in our Labor & Employment group, at (216) 736-7226 or jth@kjk.com.

Update on ADA Amendments Act: EEOC Proposed Regulations are Now Available

Earlier today I wrote on the EEOC’s proposed regulation implementing the ADA Amendments Act. This evening, those proposed regulations finally became available. You can download them from HRhero.com. Thanks to Dan Schwartz for pointing this out.

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Presented by Kohrman Jackson & Krantz, with offices in Cleveland and Columbus.

For more information, contact Jon Hyman, a partner in our Labor & Employment group, at (216) 736-7226 or jth@kjk.com.

Do you know? What is a “disability” under the recent ADA Amendments Act

The ADA Amendments Act, which became effective January 1, 2009, is intended “to reinstate a broad scope of protection” by expanding the definition of the term “disability.” Recently, the EEOC published its proposed regulation interpreting these amended provisions. The regulations will be published this week, and the EEOC has already published a helpful Q&A discussing the proposed ADAAA regulations.

The core three-part definition of “disability” largely remains unaltered. An ADA-protected disability is still defined as:

1. a physical or mental impairment that substantially limits a major life activity; or
2. a record of a physical or mental impairment that substantially limited a major life activity; or
3. when an employer takes an action prohibited by the ADA based on an actual or perceived impairment.

What has changed under the ADAAA is how these definitions are interpreted and applied. Indeed, according to the EEOC, “As a result of the ADAAA, it will be much easier for individuals seeking the law’s protection to demonstrate that they meet the definition of ‘disability….’”

Major Life Activities

“Major life activities” fall under one of two categories. An employee only needs one major life activity from either of the following:

• Category One includes examples such as caring for oneself, performing manual tasks, seeing, hearing, eating, sleeping, walking, standing, sitting, reaching, lifting, bending, speaking, breathing, learning, reading, concentrating, thinking, communicating, interacting with others, and working at a type of work.
• Category Two covers the operation of major bodily functions, including functions of the immune system, normal cell growth, digestive, bowel, bladder, neurological, brain, circulatory, respiratory, endocrine, hemic, lymphatic, musculoskeletal, special sense organs and skin, genitourinary, cardiovascular and reproductive functions.

Substantially Limiting

To have a disability (or to have a record of a disability) an individual must be substantially limited in performing a major life activity as compared to most people in the general population. An impairment need not prevent, or significantly or severely restrict, the individual in performing a major life activity to be considered “substantially limiting.” Determination of whether an individual is experiencing a substantial limitation in performing a major life activity is a common-sense assessment based on comparing an individual’s ability to perform a specific major life activity with that of most people in the general population.

Mitigating Measures

The positive effects from an individual’s use of one or more mitigating measures be ignored in determining if an impairment substantially limits a major life activity. In other words, an employer must ignore the fact that a mitigating measure removes or reduces an impairment in determining whether an employee is disabled. Mitigating measures include medication, medical equipment and devices, prosthetic limbs, low vision devices (devices that magnify a visual image), reasonable accommodations, and even behavioral modifications. Ordinary eyeglasses or contact lenses do not count as mitigating measures.

Exemplar Impairments

• The following are examples of impairments that consistently meet the definition of “disability”: deafness, blindness, intellectual disability (formerly known as mental retardation), partially or completely missing limbs, mobility impairments requiring use of a wheelchair (a mitigating measure), autism, cancer, cerebral palsy, diabetes, epilepsy, HIV/AIDS, multiple sclerosis, muscular dystrophy, major depression, bipolar disorder, post-traumatic stress disorder, obsessive-compulsive disorder, and schizophrenia.

• The following are examples of impairments that may be substantially limiting for some individuals but not for others: asthma, back and leg impairments, and learning disabilities.

• An impairment that is episodic or in remission meets the definition of disability if it would substantially limit a major life activity when active. Examples of such impairments include: epilepsy, hypertension, multiple sclerosis, asthma, diabetes, major depression, bipolar disorder, and schizophrenia.

• The following are examples of impairments that usually are not considered “disabilities”: the common cold, seasonal or common influenza, a sprained joint, minor and non-chronic gastrointestinal disorders, a broken bone that is expected to heal completely, appendicitis and seasonal allergies.

“Regarded as” Disabled

Under the ADAAA, an employer “regards” an individual as having a disability if it takes a prohibited action based on an individual’s impairment or on an impairment the employer believes the individual has, unless the impairment is transitory (lasting or expected to last for six months or less) and minor. No longer does one have to show that the employer believed the impairment (or perceived impairment) substantially limited performance of a major life activity. Employers have no obligation to provide reasonable accommodation to an individual who only meets the “regarded as” definition of disability.

The regulations are not final, and are subject to change after the public has had a 60-day opportunity to comment and make suggestions. I will report further on these regulations after they become final.

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Presented by Kohrman Jackson & Krantz, with offices in Cleveland and Columbus.

For more information, contact Jon Hyman, a partner in our Labor & Employment group, at (216) 736-7226 or jth@kjk.com.