WIRTW #257 (the “Lawsuit of the Year?” edition)

The year is young, but we already have a strong candidate for the lawsuit of 2013. Above the Law brings us the story of a teacher who claims that her school failed to accommodate her disability—a fear of children.

Above the Law, quoting the Huffington Post, provides the details:

Waltherr-Willard, 61, claims in her lawsuit against the Mariemont school district that for 35 years, she taught Spanish and French to high school students in the system. But when she helped fight the district’s decision to cut French class in favor of an online course, officials retaliated by reassigning her to younger students at a middle school in 2009, ignoring her hypertension, specific phobia and general anxiety disorder, Waltherr-Willard says, according to Cincinnati.com…

Working with younger children at the middle school “adversely affected [Waltherr-Willard's] health, due to her disability,” the lawsuit claims, according to ABC News.

What’s next? Lance Armstrong suing the International Cycling Union for failing to accommodation his fear of winning without PEDs?

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

Discrimination

• Who are YOU to tell ME that I'm not offended by sexual harassment?!? — from Eric Meyer’s The Employer Handbook Blog
• Can You Fire the “Temptress”? — from Michael Haberman’s Omega HR Solutions
• EEOC Lawsuits: “Don’t Fire Qualified Employees Based on Fears, Myths or Stereotypes” — from Employment Discrimination Report
• Vegan Hospital Worker’s Flu Vaccination Refusal May Be Protected Religious Belief — from Healthcare Employment Counsel

Social Media & Workplace Technology

• Teacher's Facebook Firing Upheld by N.J. Appellate Court — from Molly DiBianca’s Delaware Employment Law Blog
• Employees Lie, Get Busted on Facebook – But It’s Their Boss That Gets Fired — from Augmented Legality
• Ten of the Biggest Social Marketing Fails of 2012 — from Social Media Strategies Summit Blog
• Discovery of Social Media Accounts Might Be a Toss-up if Requests are Too Broad – Two Conflicting Federal Points of View — from netWORKed Lawyers
• Notre Dame, Manti Te’o, Catfishing, Online Impersonation, and the Law — from Shear on Social Media Law

HR & Employee Relations

• Bereavement Leave in Connecticut — from Dan Schwartz’s Connecticut Employment Law Blog (with condolences)
• 25 weirdest job interview questions of 2012 — from Evil HR Lady, Suzanne Lucas
• More Vacation Policies to Hate: One Week Off Every Quarter… — from The HR Capitalist, Kris Dunn
• Ignite HR 7: Why You Should Trash Your Policy Manual — from TLNT
• News You Can Use (?) – Flatulence in the Workplace — from Evil Skippy at Work
• Flatulence Warning Withdrawn — from Phil Miles’s Lawffice Space
• Employers Subject to the FCRA Must Use New Forms for Background Checks Effective January 1, 2013 — from Minnesota Employment Law Report

Wage & Hour

• Top Issues for Employers in 2013: Social Media & Independent Contractors — from Employment Matters Blog
• DOL’s Wage and Hour Division Seeks Input on Proposed Worker Classification Survey — from Washington D.C. Employment Law Update
• Unlawful Retaliation Against Nursing Mothers? — from Wage & Hour Defense Institute
• Fifth Circuit Holds Employer’s Mandatory Travel Program Does Not Constitute Compensable Travel Time — from Russell Cawyer’s Texas Employment Law Update

Labor Relations

• NLRB Continues Pro-Union Agenda — from Health Employment and Labor
• Labor and Human Relations Professionals Face More Challenges In Light of Recent NLRB Decisions — from Labor Relations Today

Say it ain’t so: court holds an employer does not have to accommodate a pregnant employee

Last year, I railed against the Pregnant Workers Fairness Act, a bill that, if passed, would require employers to make a reasonable accommodation for an employee’s pregnancy, childbirth, and related medical conditions. I argued that the law does not need alteration because Title VII, through the Pregnancy Discrimination Act, already requires employers to accommodate pregnant women at least at the same level as they accommodate any other employee with a similarly disabling short-term medical condition.

Last week, in Young v. UPS, the 4th Circuit Court of Appeals held that Title VII does not require employers to provide pregnant women a “reasonable accommodation” when, as a result of pregnancy, they are limited in their ability to perform work duties. Was my musing about the evils of the Pregnant Workers Fairness Act off-base?

The facts of Young are simple. UPS required Ms. Young to be able to lift up to 70 pounds as part of her job as a package delivery driver. After she became pregnant, her doctor limited her lifting. Ms. Young requested that UPS move her to a light duty assignment. UPS’s collective bargaining agreement allowed an employee to work a light duty assignment only because of an “on-the job” injury or when “disabled” under the ADA. Because Ms. Young did not meet either of these categories UPS denied her request.

Ms. Young argued that UPS violated Title VII because the Pregnancy Discrimination Act required UPS to provide her with a “reasonable accommodation” to the same degree the employer accommodated a disabled employee. The 4th Circuit rejected her argument, finding that where an employer’s policies treat pregnant workers and non-pregnant workers alike, it has complied with Title VII:

Interpreting the PDA in the manner Young and the ACLU urge would require employers to provide, for example, accommodation or light duty work to a pregnant worker whose restrictions arise from her (off-the-job) pregnancy while denying any such accommodation to an employee unable to lift as a result of an off-the-job injury or illness. Under this interpretation, a pregnant worker who, like Young, was placed under a lifting restriction by her healthcare provider and could not work could claim that the PDA requires that she receive whatever accommodation or benefits are accorded to an individual accommodated under the ADA, because the pregnant worker and the other individual are similar in their ability or inability to work—i.e., they both cannot work. By contrast, a temporary lifting restriction placed on an employee who injured his back while picking up his infant child or on an employee whose lifting limitation arose from her off-the-job work as a volunteer firefighter would be ineligible for any accommodation. Such an interpretation does not accord with Congress's intent in enacting the PDA.

Reading this decision, you might be thinking to yourself, “Hyman, you’re wrong. Title VII does need to be amended to grant accommodation rights to pregnant women.” You, however, would be jumping the gun.

As Robin Shea astutely observed at her Employment & Labor Insider, because of 2009’s ADA Amendments Act, today’s ADA is very different than the statute in effect during Ms. Young’s 2006 pregnancy:

In 2007, the “old” Americans with Disabilities Act was in effect, which had some pretty stringent definitions of who was considered “disabled.” Not only was a 20-pound lifting restriction generally not considered “disabling,” but virtually no temporary impairment, no matter how severe, was. And pregnancy is not a “disability” in itself because the ADA says so. Accordingly, Ms. Young was out of luck.

The ADAAA, of course, greatly expanded the definition of “disability,” and the interpretations of the Equal Employment Opportunity Commission indicate that a temporary condition that lasts more than six months could indeed be considered “disabling.” Ditto for a 20-pound lifting restriction.

In other words, today an employer could be required to provide a reasonable accommodation to a pregnant employee to the same extent it provides a non-pregnant disabled employee an accommodation, or face the possibility of a pregnancy discrimination lawsuit.

Handling accommodation requests by pregnant employees is a thorny area of the law. My recommendation is instead of trying to sort through these issues for yourself, you contact your employment counsel before denying an accommodation request made a pregnant employee.

---

Thanks to Justine Konicki for her help on this post.

Putting the human back in human resources, redux

As a parent of a child with some medical issues, I am very sensitive to the needs of working parents. Luckily for me, I work at business that understands these needs and has never batted an eye when my son spent 19 days in the hospital, or I want to attend an echocardiogram or some other appointment with one of his doctors. Some employees, however, are not as blessed.

Consider, for example, the case of Wegelin v. Reading Hosp. & Med. Ctr. (11/29/12). Rachel Wegelin’s daughter, Carolyn, suffers from pervasive developmental disorder, which manifests by delays in social and emotional functioning, sensory integration difficulties, and attention deficit. Carolyn attends before and after daycare at a facility to and from which she can be transported to school. When the hospital moved Wagelin’s parking space to a more distant lot, she no longer had sufficient time to pick up Carolyn from the daycare before it closed. So, she requested FMLA leave for the express purpose of finding a suitable daycare that would accommodate her new work schedule and her daughter’s medical needs. The employer refused and fired the employee when she took off the time anyway.

In defending against the inevitable FMLA lawsuit, the employer argued that the FMLA does not provide leave for a parent to locate childcare. The court, in denying the employer’s motion for summary judgment, vehemently disagreed:

Making arrangements for “changes in care” is expressly covered by the regulations. Significantly, the regulations are silent on whether the facility needs to be one that provides medical treatment. The fact that Carolyn’s daycare is not a specialized facility is not dispositive. What is relevant is that Carolyn has a chronic serious health condition resulting in an inability to perform regular daily activities and Wegelin had to make arrangements to find a suitable daycare that could care for her. Bowmansville daycare center was suitable, but no longer available. Therefore, when Reading Hospital changed Wegelin’s parking assignment, she had to make arrangements for a change in Carolyn’s care, entitling Wegelin to FMLA leave.

I’ve written before about the importance in putting the human back in human resources. I also discuss this idea in detail in my latest book, The Employer Bill of Right: A Manager’s Guide to Workplace Law. This case perfectly illustrates this principle. How hard would it have been to accommodate this employee? And, no, I’m not suggesting that the hospital should have given her back her old parking space. As someone whose first question after making partner was, “Do I get a better parking space,” I understand the turmoil that accommodation would almost certainly cause. All kidding aside, this employee did everything she could to balance her job and the unique needs of her family. All she requested was some small amount of unpaid time off to find a childcare solution to accommodation her new work schedule and her child’s serious medical needs.

Or, let me put it this way for those of who are more dollars-and-cents oriented in your thinking. Employers, what do you think costs more? Accommodating a few days of unpaid time off, or defending this lawsuit?

[Hat tip: Pennsylvania Family Law Blog, c/o Employment Discrimination Report]

Can you hear me now? Employer cannot reject disabled employee without individualized inquiry of the ability to do the job

Nicholas Keith has been deaf since birth. He is also, apparently, a pretty good swimmer. He successfully completed the Oakland County, Michigan, lifeguard training course with the assistance of sign language interpreter to communicate instructions. The county rescinded its conditional job offer for a lifeguard position after Keith’s pre-employment physical. The examining doctor approved Keith’s employment as a lifeguard if his deafness was “constantly accommodated.” Without any consultation with Keith, the county unsuccessfully brainstormed possible accommodations, and, ultimately, rescinded the job offer.

In Keith v. Oakland County (1/10/13) [pdf], the 6th Circuit reversed the district court’s order dismissing Keith’s disability discrimination lawsuit. The court relied upon the ADA’s requirement for an “individualized inquiry in determining whether an [employee’s or applicant’s] disability or other condition disqualifies him from a particular position.”

In this case, the county made no individualized inquiry.

After Dr. Work entered the examination room and briefly reviewed Keith’s file, he declared, “He’s deaf; he can’t be a lifeguard.” Dr. Work made no effort to determine whether, despite his deafness, Keith could nonetheless perform the essential functions of the position, either with or without reasonable accommodation. Indeed, Dr. Work has no education, training, or experience in assessing the ability of deaf individuals to work as lifeguards. Dr. Work’s cursory medical examination is precisely the type that the ADA was designed to prohibit.

What is the takeaway for employers? If you are dealing with disabled applicants or employees, you cannot make the employment decision in a vacuum. You must act based on the actual disability and its effect on the particular individual’s ability to perform the job. You should consider:

• the individual’s personal characteristics;
• the actual medical condition; and  
• the effect, if any, the condition may have on the ability to perform the specific  job in question.

Most importantly, you should include the individual in the assessment. No one is a better judge of one’s real-world abilities and limitations than the individual himself or herself.

If you failing to engage in this individualized inquiry, it will look like you are making the employment decision based on stereotypes and generalizations, which the ADA is supposed to rid from the workplace. That perception will not bode well for your defense of an ADA lawsuit.

Be careful what you bring upon yourself when suing an ex-employee

Last week—in Quicken Loans,Inc. (1/8/13) [pdf]—an NLRB administrative law judge invalidated the confidentiality and non-disparagement provisions in an employment agreement between Quicken Loans an an ex-mortgage banker, Lydia Garza. This decision continues the NLRB’s march towards the overly broad expansion of the definition of protected concerted activity. Molly DiBianca, at her Delaware Employment Law Blog, sums up the decision thusly:

Admittedly, the ALJ's conclusion that an employer is not free to contract with its highly compensated professional employees that those individuals will not disparage their employer or steal its confidential and proprietary information is a bit depressing. But keep in mind the remedy, friends. Having found that the provisions violated the NLRA, the remedy ordered by the ALJ was that the provisions be revised. Or, if the employer didn't want to go to the trouble of reprinting new agreements for all of its highly compensated brokers, it could simply provide a single-page addendum, notifying those highly paid employees that the two provisions were rescinded.

I want to focus on another business lesson from the decision—why the employee filed the case in the first place. Here’s the ALJ’s summary of the charging party’s motivation for filing the charge with the NLRB.

Garza testified that shortly after she left the Respondent’s employ, she and five other former employees of the Respondent were sued by the Respondent for an alleged violation of the no contact/no raiding and the non-compete provisions of the Agreement.

I’m fairly certain that Garza never even thought filing a challenge to her employment agreement with the NLRB until she got sued and had to hire a lawyer, who, in turn, reviewed the agreement and saw an opening.

If you are going to sue an employee, current or former, make sure you do your diligence of your own potential liabilities. If you uncover something that can come back and bite you, make sure it is a claim with which you can live. Depending on what you unearth, leaving well enough alone with your employee may be the most prudent course of action.

WIRTW #256 (the “crystal ball” edition)

Last week, I shared the 2013 resolutions of some of my favorite blogs. This week, I’m sharing some employment law predictions for the coming year from two of the best employment law blogs out there.

• Reading the Tea Leaves for Employment Law in 2013 (Harry Potter Edition) — from Dan Schwartz’s Connecticut Employment Law Blog
• And The Crystal Ball Says: My Predictions for 2013 Employment Law — from Donna Ballman’s Screw You Guys, I’m Going Home

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

Discrimination

• How to Avoid Employment Litigation — from Heather Bussing at HR Examiner
• Surprise! Pay Equity a Top Priority for EEOC — from Stephanie Thomas at Compensation Cafe
• Could Your Sexual Harassment Policy Land You in Court? — from i-Sight Investigation Software Blog
• Representing an Overweight Female Defendant? Male Jurors May Be Biased, Study Says — from ABA Journal Daily News
• Following the rules does pay off — from EmployerLINC
• You’re Damned if You Turn a Blind Eye to a Disabled Employee’s Ability to Perform the Essential Functions of the Job — from damnedif
• Three Take-Aways from the EEOC's Strategic Enforcement Plan by Commissioner Chai Feldblum — from Workplace Fairness

Social Media & Workplace Technology

• This is my new go-to social-media-discovery judicial opinion — from Eric Meyer’s The Employer Handbook Blog
• LinkedIn now has more than 200 million users in more than 200 countries — from The Verge

HR & Employee Relations

• When Work Sucks: How to Terminate Your Employee — from Jessica Miller-Merrells’ Blogging4Jobs
• Dealing With Workplace Bullies As A Temporary Worker — from Workplace Diva
• Should Employers “Ban the Box”? — from Mike Haberman’s Omega HR Solutions
• Here Comes the Test Of Your Sick Time Policy — from Workplace Diva
• Trying to reason during the flu season — from John Holmquist’s Michigan Employment Law Connection

Wage & Hour

• An Employee Requests and is Denied Vacation Leave but Later Takes FMLA Leave for the Same Time Period. What Recourse Does an Employer Have? — from Jeff Nowak’s FMLA Insights
• Internship Class Action Settles for $250,000 — from San Antonio Employment Law Blog
• Tough Questions For The Interviewer: Charlie Rose Settles Class Action Intern Lawsuit Alleging Employee Status — from Wage & Hour - Development & Highlights
• DOL Regulatory Agenda: More Aggressive Activity Expected — from Wage and Hour Law Update

Trade Secrets & Competition

• What Can the NHL Lockout Teach Us About Mediating Non-Compete and Trade Secret Disputes? — from Trade Secrets & Non-Compete Blog
• Call Me, Maybe. Discovery of Employee Identities — from Molly DiBianca’s Delaware Employment Law Blog
• Trade Secret and Noncompete Survey – National Case Graph 2013 — from Fair Competition Law
• Restrictive Covenants in Employment Agreements: Guarding the Family Jewels, Conclusion — from The Emplawyerologist

Labor Relations

• Obama NLRB Presents Employers With Several Lumps Of Coal — from Stoel Rives World of Employment
• Investigation alert: The NLRB takes aim again at confidentiality — from Warren & Associates Blog
• When Does an Employer Have to Hand Over Witness Statements to a Union? — from Labor & Employment Law Perspectives
• NLRB Finds Employees’ Facebook Posts Venting about Coworker Are Protected — from netWORKed Lawyers
• New Media and Old Precedent under the National Labor Relations Act — from Employer’s Law Blog

Internet-Use Disorder: The Newest Disability?

The DSM-5, the official psychiatrist’s diagnostic manual, has accepted Internet Use Disorder for inclusion, albeit in a section devoted to conditions that require further research.

This “disease” has its roots in a 1995 satirical hoax by Dr. Ivan Goldberg. Despite its dubious origins, over the past decade its acceptance as a legitimate clinical disorder has grown, culminating in its upcoming inclusion in the DSM-IV.

What does this mean for your workplace? If Internet addiction is a psychiatric disorder, then employees who suffer from it may be protected by the ADA. This development has potentially significant implications for your workplace.

• Do you have employees who seem to spend an inordinate amount of time online? Is it affecting their performance and inhibiting their ability to perform the essential functions of their jobs? If so, might you have to engage those employees in the interactive process to determine if there exists a reasonable accommodation that enables them to perform those essential functions? For example, could you deny computer access to employees who do not need to use a computer for their jobs, and require that such employees leave their cell phones outside the work area? 
• Do you have a policy that prohibits non-work-related Internet use? If so, such a policy might run afoul of the ADA, just like hard-capped leave absence of policies. It’s not that employers cannot place reasonable limits on workplace computer use. By instituting a ban, however, employers are avoiding their obligations to engage in the interactive process, thereby violating the ADA.

The inclusion of Internet-Use Disorder in the DSM-IV raises many more questions than answers for employers. Businesses need to be aware of the possibility that a cyber-surfing employee will raise this issue, and must prepare to address this problem a way that will not walk the employer into the trap of a costly ADA lawsuit.

This post originally appeared on The Legal Workplace Blog.