Do you know? Expanded ADA may now cover obesity discrimination

The EEOC has sued a Pennsylvania-based nonprofit, claiming that its termination of a severely obese employee violated the ADA. Traditionally, obesity, in and of itself, is not a protected disability. I've previously discussed this issue. See Is “fat” the new protected class? The ADA, however, not only protected those with actual physical or mental impairments, but also those who are “regarded as” having a physical or mental impairment. Moreover, with the ADA’s recent amendments, one can qualify under the definition of “regarded as” disabled whether or not one’s real or perceived impairment actually limits or is perceived to limit a major life activity.

This story illustrates two important points for businesses:

1. The current iteration of the EEOC is aggressively pursuing judicial expansion of the employment discrimination laws. Grooming and dress policies, criminal background and credit checks, and expansive definitions of disabilities are all on the EEOC’s hit list. HR policies and practices that tread in these dangerous waters risk drowning in a sea of EEOC enforcement actions.

2. The ADA is now so broad that a fired employee may be able to make out a claim of disability discrimination based on obesity. Indeed, I predict that five years from now, businesses will be faced with a wealth of case law recognizing a host of non-traditional disabilities under the ADA. Every physical or mental impairment that a court recognizes as an ADA-protected disability is another impairment for which businesses much provide a reasonable accommodation. I believe, though, the the broader the ADA becomes, the more watered-down its message also becomes. Expanding the ADA to cover non-traditional disabilities undermines the important policy the ADA is meant to further—leveling the employment playing field for those with with real and legitimate substantially limiting impairments.

---

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.

Off to see the Chamber, the wonderful Chamber of Commerce

Today, I am traveling to Columbus for the Ohio Chamber of Commerce’s Employment Law Committee meeting. For the uninitiated, the Ohio Chamber is our state’s voice for businesses and their policy interests. The Employment Law Committee tracks, dissects, and lobbies regarding employment-related legislation pending at the Statehouse. According to the agenda for our meeting [available as a pdf] we will discuss the following legislation:

• Protect the rights of employees to decide whether to be represented by a collective bargaining unit through a private ballot process.

• Reduce inconsistencies and duplication between state and federal employment laws.

• Push for a law that allows an employer to offer the existence of an anti-discrimination policy as an affirmative defense to a discrimination claim.

• Maintain the solvency of the state’s unemployment compensation trust fund by promoting measures that return unemployed workers to the workforce.

• Advance legislation that models the federal process for claims filed at the Ohio Civil Rights Commission.

Later this week, I’ll report specific items of interest discussed at the meeting.

---

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.

WIRTW #146 (the trendy edition)

True confession time. I never really considered myself hip. In fact, if you knew me in high school (the bastion of all things hip), you would have probably labeled me a dork. And, it was probably warranted, with the debate team, and Model U.N., and the mock trial team. It’s okay. I came to terms with it a long time ago. All in all, I’d say my life worked out just fine. I have a beautiful wife, two adorable kids in whose eyes I can do no wrong, and I am a successful attorney. Nevertheless, I was happy to see that, at least according to the Wall Street Journal Law Blog (as reported by the Chamber Post), I have finally achieved that which every 16 year old strives for—trendiness:

In one area of litigation, there’s no debate: employment discrimination claims. A lot of folks have been fired, and many of them are are claiming that they were let go because of their race, age, gender, or because of a disability. Job bias claims, to put it mildly, are through the roof… In other words, young lawyers, forget bankruptcy law. That’s so 2009. Employment litigation is where it’s at.

Here’s the rest of what I read this week:

Social Networking

• Labor Disputes Arising out of Social Media – from Seth Borden at The National Law Journal

• Unions May Turn To Facebook To Find Unfair Labor Practices – from Hunton Employment & Labor Law Perspectives™

• The Future Of Blogging Might Surprise You – from Six Pixels of Separation

• Who Owns Your Social Media Relationships? What To Do When Your “Social” Employees Move On – from Jessica Lee at Fistful of Talent

• Creepy Start-Up Or Sign Of The Times? – from Nathan Vardi at The Jungle (Forbes.com)

• Why Every Business Should Have A Social Media Policy – from Social Media Law Update

• Court: privacy on social networking sites is wishful thinking – from Evan Brown’s Internet Cases

Discrimination

• Obsession with Nurse and EAP Recommendation not “Regarded As” Disability – from Philip Miles’s Lawffice Space

• The Bermuda Triangle: Age, Earnings and Productivity – from Stephanie Thomas at Compensation Cafe

• Michael Vick Rebounds: Becomes Model Employee After Conviction? – from Nick Fishman at employeescreenIQ Blog

• Beware seemingly innocent age-related comments vSindy Warren at the Warren & Hays Employment Law Blog

• How To Request Job Accommodations From Your Boss By Using the ADA – from UndercoverLawyer

• Mad Men, Madder Women: Have Roles Really Changed in the Workplace? – from Workplace Fairness

• Can America Meet the Challenge of Muslim integration? – from Abigail Esman at Pen & Sword (Forbes.com)

• Twisting and Turning towards Summary Judgment – from Workplace Prof Blog

• Wal-Mart Gets Backing From 19 Companies at U.S. Supreme Court - Bloomberg – from bloomberg.com

• In a Recession, you have a choice: (1) Hire Boomers, or (2) Get Your Squeak On – from What About Clients?

• When HR Is Harassed: What Then? – from Michael Haberman’s HR Observations

• Don’t Cry for Me Connecticut: Court Says Mere Factual Disagreements Not Necessarily Probative of Age Discrimination – from Daniel Schwartz’s Connecticut Employment Law Blog

Wage & Hour

• Where, and Where Not To Get FMLA Information from FMLA Insights

• Working Families Flexibility Act Proposed in Senate from Delaware Employment Law Blog

• FMLA: Verbal Notice Trumps Employer Policy from The Word on Employment Law with John Phillips

• Support Grows For Overhauling FLSA’s Principles from Wage and Hour Laws Blog

Non-Competes

• Top Ten Things to Consider When Drafting A Non-Compete Agreement from Trade Secrets & Non-Compete Blog

• Double Take - Tech giants agree to poach employees from Rob Radcliff’s Smooth Transitions

---

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.

Honoring National Disability Employment Awareness Month on the Proactive Employer podcast

October is National Disability Employment Awareness Month. Tomorrow, to mark its first day, I’ll be recording on a special one-hour installment of Stephanie Thomas’s Proactive Employer podcast. For this special, Stephanie has gathered an all-star panel of guests. Appearing with me will be Cari Dominguez, the Former Chair of the U.S. Equal Employment Commission, Sheridan Walker, the president of HR consulting firm HirePotential, Kevin Bradley, the Director of Diversity for McDonald’s, and James Rodriguez, the Strategic Military Talent Manager for BAE Systems, Inc. I am very much looking forward to what should be an engaging and spirited discussion about the role of the ADA for today’s workforce.

The podcast will be available sometime next week on Stephanie’s website. You can also check out all 42 prior episodes on iTunes, or via The Proactive Employer iPhone app (Stephanie, where’s the Android love?). I always enjoy being Stephanie’s guest, and I am sure tomorrow will be no exception.

---

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.

Productivity, yes; sleeping on the job, no

© Greg Hartmann

Tony Schwartz, writing at the Harvard Business Review's The Conversation Blog, thinks that employees would be more productive if they took naps everyday between 1 p.m. and 3 p.m. While I haven't studied the evidence he cites, this idea strikes me as a bad one. Even if a siesta can increase productivity and mental sharpness, think of the possible problems. Do you want to deal with the harassment complaint when you-know-who falls asleep next to oh-no-not-that-guy? Or, what about the customer relations nightmare when your largest account finds out his key contact person is sleeping at 2 p.m.? Perception often becomes reality, and the reality of that situation will be your largest customer finding a company where the employees don't nap during the work day.

Instead, let me suggest a couple of alternatives to increase employee productivity.

1. Spend an hour per day (during a non-peak time) in a technology-free zone. Turn off your phone, your PDA, and your computer. Imagine how much you could get done with no phone calls, no emails, and no Facebook.


2. Google lets its employees spend up to 20% of their time working on their own projects and ideas, a policy called Innovation Time. From this practice, Google has gotten an astounding 50% of its products (including Gmail, Google News, and AdSense). Most employers do not have the luxury of their workers spending one day per week doing whatever interests them. But, there are other things you can do to spark productivity in your workplace. For example, my firm just awarded three sets of Indians tickets to employees who submitted the best new ideas (Please, no jokes about whether going to see the Indians is a reward or a punishment). 

There is a lot your business can do to promote productivity and creativity without encouraging employees to sleep on the job. It just takes a little creativity on your own part.

---

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.

Grooming and appearance policies continue to make headlines as fulcrum of religious discrimination lawsuits

Grow your dreadlocks
Don’t be afraid of the wolf-pack
A tell you, one man a walkin’
And a billion man a sparkin’
Rastaman, live up

~Bob Marley, Rastaman Live Up

The EEOC has sued a Virginia moving company that refused to hire a Rastafarian because of his dreadlocks. According to the agency:

Christopher Woodson applied for a job as a loader at Lawrence Transportation’s Waynesboro, Va., facility in May 2008. Woodson, who is Rastafarian, wears his hair in dreadlocks in accordance with his religious belief that he should refrain from cutting his hair…. Lawrence Transportation refused to hire Woodson as a mover because he would not cut his hair, even though Woodson had fourteen years of experience in the moving industry, including several years with Lawrence prior to his conversion to the Rastafarian religion. To address the company’s concerns regarding the appearance of Woodson’s hair in relation to Lawrence Transportation's grooming policy, Woodson offered to tie his hair up, wear a head wrap or wear a cap over his head. The hiring official rejected Woodson’s offers and told Woodson that the company would not hire him if he did not cut his hair.

Amanda Hess, writing at TBD.com, quotes a press statement from Lawrence Transportation, in which it defends its decision:

“Lawrence Transportation did not hire Mr. Woodson because he would not comply with our personal appearance policy,” the statement reads. According to Lawrence Transportation, employees are required to have “close personal contact” with customers, and non-standard hairstyles could affect Lawrence's ability to “provide the service expected by” these people.

“[Woodson’s] hair was down to the middle of his back and he was asked to get it cut to about shirt collar length,” the statement continues. “He refused to comply with this neutral policy.”

Personal appearance policy is a huge red flag. As I’ve discussed before, Title VII requires an employer to reasonably accommodate an employee’s sincerely held religious belief, practice, or observance that conflicts with a work requirement, unless the accommodation would create an undue hardship. The employer in this case is arguing that it does not have to accommodate Woodson because his long, dreadlocked hair will deter customers and cost it business. That argument, however, smacks of the very stereotypes Title VII protects against.

The EEOC continues to take a long, hard look at businesses that fail to accommodate religious practices that cause employees to look (or not look) a certain way. Unless your business can tie employees’ appearance to an integral part of your business (safety issues, Disney cast members, Abercrombie & Fitch’s “look”), you should think (and re-think) about any decision not to accommodate an employee’s religiously-based appearance or grooming.

[Hat tip: Overlawyered]

---

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? More on the lack of privacy in social media

There are not (yet) many cases dealing with the discovery of litigants’ social networking information. Thus, whenever a court addresses the issue, it becomes newsworthy.

Romano v. Steelcase Inc. (N.Y. 9/21/10) [pdf] is a personal injury case. The defendant claimed that information the plaintiff posted on her Facebook and MySpace pages was inconsistent with her claim regarding the nature and extent of her injuries. The court disagreed with the plaintiff’s argument that she had any expectation of privacy what she posted on social networking sites:

Thus, when Plaintiff created her Facebook and MySpace accounts, she consented to the fact that her personal information would be shared with others, notwithstanding her privacy settings. Indeed, that is the very nature and purpose of these social networking sites else they would cease to exist. Since Plaintiff knew that her information may become publicly available, she cannot now claim that she had a reasonable expectation of privacy. As recently set forth by commentators regarding privacy and social networking sites, given the millions of users, “[i]n this environment, privacy is no longer grounded in reasonable expectations, but rather in some theoretical protocol better known as wishful thinking.”

It is becoming increasingly more difficult to convince courts that individuals have any privacy expectations in social networking information. Instead, these discovery disputes turn on issues of relevancy—whether the information bears on any issue in the case. In cases involving injuries (whether physical or emotional, and including employment cases), plaintiffs will have a very hard time shielding this type of information from discovery.

[Hat tip: Delaware Employment Law Blog]

---

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.