Reading the #SCOTUS tea leaves: Young v. UPS and pregnancy accommodations

Yesterday, the Supreme Court heard oral argument in Young v. UPS, which will decide whether Title VII requires an employer to accommodate pregnant workers the same as non-pregnant workers similar in their inability to work.

UPS required Peggy 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’s lawsuit argued that UPS violated Title VII because the Pregnancy Discrimination Act required UPS to provide her with a “reasonable accommodation” to the same degree it accommodated a disabled employee. The 4th Circuit disagreed, finding that UPS’s policies did not treat pregnant workers less favorably, but the same as any other worker who did not meet the specific requirements for light duty under the CBA. 

The case may hinge on where the justices fall on the right comparator for UPS’s pregnant workers. Is it those employees who are ADA-disabled or otherwise injured on-the-job, whom UPS accommodates, or those non-ADA employees injured off-the-job, whom UPS does not accommodate.

As one would expect, the Justices appear to be split down ideological (maybe gender) lines, and, as is often the case, Justice Kennedy may be the key that will unlock this issue. He, however, was relatively quiet during the argument, only asking a handful of questions, which failed to shed any light on his thought process. Truth be told, it was a very curious argument, and the case, at least based on the Justice’s queries, is not easily predictable.

I am hopeful that the court will side with working parents and rule in favor of the employee in this case. A ruling for UPS would, I fear, promote the unequal treatment of pregnant workers, which is anathema to the spirit, if not the letter, of the Pregnancy Discrimination Act. No employer should be allowed to act as if it is exempt from the law.

A PDF of the compete oral argument transcript is available here.

Let’s all strive to be a little more flexible

Two weeks ago I had no choice but to take my 8-year-old daughter to a hearing. My wife was out of town for work, and Norah was home from school sick with a fever. So, we packed up her iPod and a Harry Potter book, and we drove down to the Industrial Commission. We had a great morning. We stopped for breakfast at Starbucks and talked—about school, her friends, and life in general. In the back of my mind, however, I was a bit on edge, as I had no idea how the hearing officer would react to an unplanned bring-your-daughter-to-work day.

As it turns out, my edge was for naught. The hearing officer could not have been cooler. She welcomed Norah to the hearing room with open arms, and complimented her on our way out on how well she behaved (as if there was any doubt). In fact, she was so cool that she noted “Miss Hyman” as having made an appearance for the Employer in her written opinion.

Compare my story to that of an attorney, who, having given birth, asked a Department of Justice Immigration Judge to continue a hearing. Amazingly, that judge refused. Or, consider this example from my past of a lawyer who refused to agree to a continuance while my son was in the hospital.

What’s the lesson here? Career and life don’t always get along. Yet, the meaning of “working time” in this country is changing. Technology has made it much easier for employees to work anywhere at any time. The law, however, is traditionally slow to react. Last month, the 7th Circuit held that regular attendance at work is an essential function of most jobs (even in the face of the defendant-employer’s “Work at Home” policy), and, next year, the 6th Circuit will decide the issue of telecommuting as an ADA reasonable accommodation.

Just because the law is slow to react to this paradigm shift in the definition of “work” does not mean that you should avoid flexible work policies for your employees. Employers that can adapt to the shifting needs of their employees, and their ability to work outside the four walls of the office and the traditional 9-to-5 hours, will have a leg up on attracting and retaining talent. Isn’t that the best reason to be flexible with your workers?

Oh, and in case you’re curious, Norah’s legal career is off to a rousing start. She’s 1-0. She’ll have a tough when she grows up between lawyer or rock star.

Federal court holds that Title VII does not protect the transgendered

LGBT rights continue to dominate headlines. Last month, the 6th Circuit became the first federal appellate court to uphold a state-law same-sex marriage ban, teeing up a likely showdown in the Supreme Court sometime next year. In September, the EEOC filed its first two lawsuits alleging sex discrimination on behalf of transgender employees (here and here).

Now, a federal court in Texas has expressly held that Title VII’s prohibition against sex discrimination does not extend to a transgender employee. Eure v. The Sage Corp. (W.D. Tex. 11/19/14) (h/t: Eric Meyer) involves a truck-driving instructor born a female but who presents as a male.  Eure alleged that her employer’s National Project Director, upon seeing her with a student, said, “What is that and who hired that,” adding that Sage did not hire “cross genders.”

The court, however, dismissed Eure’s sex-discrimination claim, concluding that Title VII’s prohibition against sex discrimination does not cover transgender employees.

In some cases, the plaintiffs bringing successful sex stereotyping claims are transgender people, arguing that the discrimination that they have suffered is because their coworkers perceived their behavior or appearance as not “masculine or feminine enough.” However, courts have been reluctant to extend the sex stereotyping theory to cover circumstances where the plaintiff is discriminated against because the plaintiff’s status as a transgender man or woman, without any additional evidence related to gender stereotype non-conformity…. [D]iscrimination based on transgender status is [not] per se gender stereotyping actionable under Title VII.

What lessons can we learn from this case? While many courts have extended Title VII’s protections to address sexual orientation and gender identity based on “sex stereotyping” (i.e., an employee’s failure to conform to traditional male or female gender roles), this issue is far from settled. Because the issue is not clear, we not-so-patiently wait for Congress to step in and address the issue by amending Title VII to make this coverage clear and unambiguous. In the meantime, you, as an employer, are free to decide the issue for your own workplace by drafting (and, more importantly, enforcing) policies of inclusion for LGBT employees.

Feds say you can't force high-cost employees onto Health Care Exchange

Do you have an employee with a high-cost medical condition? For example, an employee with hemophilia could incur hundreds of thousands or dollars or more in medical costs per year. That one employee could be catastrophic for the overall cost of your company’s group health plan. As a result, many employers are taking advantage of Obamacare’s health-care exchanges by paying these employees to secure their own private medical insurance.

This practice, however, may be changing, and it’s not for the better. According to TLNT, the Departments of Labor, Health and Human Services, and the Treasury have jointly warned employers not to dump high-cost employees from group health plans:

As employers try to minimize expenses under the health law, the Obama Administration has warned them against paying high-cost workers to leave the company medical plan and buy coverage elsewhere. Such a move would unlawfully discriminate against employees based on their health status….

The Affordable Care Act requires exchange plans to accept all applicants at pre-established prices, regardless of existing illness. Because most large employers are self-insured, moving even one high-cost worker out of the company plan could save a company hundreds of thousands of dollars a year. That’s far more than the $10,000 or so it might give an employee to pay for an exchange plan’s premiums….

The Affordable Care Act itself doesn’t block companies from paying sick workers to find coverage elsewhere…. But other laws do, including the Health Insurance Portability and Accountability Act and the Public Health Service Act, according to three federal agencies. Specifically, paying a sick worker to leave the company plan violates those statutes’ restrictions on discriminating against employees based on medical status, the departments said in their bulletin.

I understand how dropping an ill employee from health coverage because of a medical condition would violate a variety of laws, including the ADA. But, in these cases, employers are not “dropping” employees. Instead, they are merely shifting coverage from an employer-sponsored plan to a government-sponsored plan. The cost to the employee, and the coverage available to the employee, should not change. If the cost and coverage does not change, this practice should not violate any laws.

An employee must ask for ADA accommodation to receive it

By now, hopefully everyone reading this blog knows that the expiration of an employee’s 12 weeks of annual FMLA leave is not necessarily the end of that employee’s unpaid leave of absence for his or her own medical issues. Under the ADA, an employer must consider granting unpaid leave the exceeds the FMLA as a reasonable accommodation, provided that the employee actually requests the accommodation. As Judge v. Landscape Forms (6th Cir. 11/24/14) [pdf] makes clear, an employer is not required to offer a reasonable accommodation that an employee does not first request.

The facts of the case are relatively simply. Mark Judge took an FMLA leave to heal his shoulder after surgery from a non-work injury. At the time of his FMLA leave, he advised the company that his recovery time was 4-6 months. When his 12 weeks of FMLA leave expired, however, he did not advise of an expected return to work date, or otherwise ask for any additional unpaid time off as an accommodation.

Under those circumstances, the court concluded that the company had no obligation to provide any unpaid leave in excess of Judge’s 12 weeks of FMLA:

The EEOC regulations interpreting the ADA place the initial burden of requesting an accommodation on the employee. Once that request is made, the employer has a duty to engage in an interactive process to identify the precise limitations resulting from the disability and potential reasonable accommodations that could overcome those limitations. But if the employee never requests an accommodation, the employer’s duty to engage in the interactive process is never triggered…. 

Judge argues that Landscape Forms should have granted him a leave of absence until mid-November 2011, when he ultimately was released to work without restrictions. However, Judge fails to identify any statement he made before he was fired that could be construed as a request for leave until then….

Leaves of absence and reasonable accommodations are two of the trickier workplace issues facing employers. When those two issues converge with one employee, the complexities increase exponentially. As Judge v. Landscape Forms illustrates, unpaid leaves of absence are not a guaranteed entitlement, and employees must ask for for accommodation before being able to sue over its denial.

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Happy Thanksgiving. I am extraordinarily thankful that you take the time to read my thoughts every day. I’ll see everyone back on Monday after a much needed long weekend.

It’s five in a row for the ABA Journal’s Blawg 100

For the fifth year in a row, I am honored that the ABA Journal has chosen the Ohio Employer’s Law Blog for the Blawg 100, its list of the 100 best legal blogs.

Last night on Twitter, another of the honorees affectionately called me an “employment law nerd” because of my selection. It is a title I wear as a badge of honor. As has been the case for the four prior years, I am thrilled to be on a list of blogs of such high quality written by lawyers who are my friends.

Now comes the shameless part. If you are so inclined, the ABA Journal is asking you to weigh in and vote on your favorites. Go to www.abajournal.com/blawg100 to register and vote. Voting ends at close of business on Dec. 19, 2014.

Thank you to all my readers.

There is no easy fix for the overtime-pay problem

Those of you who are long time readers know they I’ve long rallied for changes to the Fair Labor Standards Act. The law is overly complex, anachronistic, and nearly impossible for compliance by employers.

Last week, I read an article on politico.com arguing that the FLSA’s exemptions need to be rewritten to make it easier for employees to qualify for overtime pay. This is not the right solution to this country’s wage-hour problems. You don’t fix one problem by creating another, i.e., punishing small and midsize employers by requiring them to start paying groups of employees overtime en masse. What will be their solution to this newly created problem? Reverse engineering. They will look at each employee’s W-2 wages for the past years, and calculate the appropriate lower hourly wage (or salary) to play each newly overtimed employee that will result in the same annual W-2 figure with the time-and-a-half rolled in.

This is not a solution. It’s an administrative burden that will not put more money in workers’ pockets. The solution is to make FLSA compliance easier for employers by simplifying decades-old regulations.

There is one wage-hour change I can support. Pending in the Ohio legislature is a bill that would require retail employers to pay triple-time to employees who work on Thanksgiving. Dear readers, please do not shop on Thanksgiving. Retailers require employees to give up their holiday because we show up for sales like lemmings to the 25% off sticker. I understand why safety forces and medical workers need to give up their holidays. But the cashier at Target? He or she deserves the day of add much as I you and I do. So if we need a law to disincentive employment on these days, then so be it.