Even Under ADAAA, Major Life Activity of Working Still Requires a Heightened Showing

A medical assistant began suffering migraine headaches after being reassigned to a new doctor within the medical group by which she was employed. The headaches occurred several times per week and varied in severity. Shortly after submitting a letter of resignation, the assistant asked to rescind it. The request was denied. The assistant sued the medical group under the Americans with Disabilities Act (ADA), alleging that the employer failed to accommodate her disability and wrongfully terminated her employment. During discovery, it was established that the assistant had never suffered migraines prior to working for the specific doctor to whom she was reassigned, and stopped suffering headaches after her employment ended. Under the ADA, to qualify as disabled an individual must establish that he or she suffers from a physical or mental impairment that substantially limits a major life activity. Before the trial court, the assistant argued that she was substantially limited in the major life activity of working. Prior to the passage of the ADA Amendments Act of 2008 (ADAAA), establishing a substantial limitation in the ability to work required a showing that one was limited in a class of jobs or a broad range of jobs, rather than simply unable to perform a specific job or work for a specific employer. Nevertheless, the assistant argued that under the new U.S. Equal Employment Opportunity Commission (EEOC) regulations interpreting the ADAAA, she could establish a substantial limitation on her ability to work even if she was only unable to perform a single job. The U.S. Court of Appeals for the Tenth Circuit rejected this argument. While it noted that the EEOC’s amended regulations no longer specifically refer to the “class of jobs or a broad range of jobs” requirement, the agency’s interpretive guidance makes clear that this remains a required showing to establish a substantial limitation in the major life activity of working. Consequently, the assistant could not establish that she was disabled under the ADA, and summary judgment was granted to the employer. Employers should focus on specifically how an employee is limited in performing his or her job, as those facts may be crucial in determining whether the individual is disabled under the ADA.

Allen v. Southcrest Hosp., No. 11-5016 (10th Cir. Dec. 21, 2011)

Ledbetter act only Affects Limitations Period for Claims Involving Actual Discrimination in Pay

In 2003 and 2004, a school district eliminated two employees’ custodial positions. The district offered the employees lower-paying janitorial jobs along with a promise to maintain their prior pay for two years. The employees accepted and continued to receive higher custodial wages until the pay cuts took effect in 2005 and 2006. When those pay cuts went into effect, the employees filed administrative charges alleging that the school district had violated the Age Discrimination in Employment Act (ADEA) by forcing them into lower-paying positions because of their age. The district court concluded that the charges were barred because they had not been filed within 300 days of the discriminatory decisions in 2003 and 2004, as required by the ADEA. The employees appealed based upon the Lilly Ledbetter Fair Pay Act of 2009 (Act). The Act changed how the limitations period is calculated for claims under the ADEA and Title VII of the Civil Rights Act of 1964, as amended, that involve “discrimination in compensation.” Under the Act, in applicable cases, each paycheck issued to an employee is treated as a new act of discrimination, and thus each paycheck resets the 300-day limitations period. The employees argued that their charges were filed within 300 days of their most recent paychecks, and therefore were timely under the Act. The U.S. Court of Appeals for the Tenth Circuit rejected this argument, holding that the Act was intended as a narrow adjustment that only applies to claims involving actual discrimination in rates of pay (i.e., unequal pay for equal work). In this case, the employees had alleged discrimination in their demotion, not that younger employees were paid more for equal work. Accordingly, the employees’ 2005 and 2006 paychecks were not fresh acts of discrimination under the Act, and their claims were time-barred. This decision is a positive development for employers and if followed by other federal courts will limit the Act to claims involving actual pay discrimination and will not allow employees to bring stale claims involving other forms of discrimination.

Almond v. Unified Sch. Dist. #501, No. 10-3315 (10th Cir. Nov. 29, 2011).

Seventh Circuit Emphasizes "Flexible" Similarly-Situated test in Discrimination Case Involving Threats, Violence at USPS

A female African-American Postal Service employee of 35 years voluntarily entered a psychiatric clinic to be treated for depression, anxiety, and insomnia. While in treatment, she admitted having homicidal thoughts toward her supervisor. She was eventually discharged after much improvement and returned to work, but her supervisor learned of the threats after calling the clinic. She was almost immediately terminated for what the employer said was a violation of its workplace anti-violence policy.

The employee sued the Postal Service, alleging that she had actually been terminated based upon her race and sex in violation of Title VII of the Civil Rights Act of 1964, as amended. As part of her case, she showed that, shortly before her threats became known, two white male workers who had “jokingly” held down a black worker and pulled a knife on him had only been suspended for 7 days. She argued that this was evidence that the anti-violence policy was a pretext for the actual discriminatory reasons for her termination. The district court granted summary judgment for the Postal Service, reasoning that the male workers, who worked in different positions than the employee and committed a different violation, had not been “similarly situated” to the employee and so could not be used to prove her case.

On appeal, the U.S. Court of Appeals for the Seventh Circuit reversed. The Seventh Circuit held that the district court’s analysis of the “similarly situated” question had been far too demanding. Because the male workers had been terminated by the same decisionmaker, were subject to the same anti-violence policy, and had committed a violation of at least equivalent — and possibly greater — seriousness, they were sufficiently “similarly situated,” and could be used to show that the employer had terminated the female employee for discriminatory reasons rather than violation of the anti-violence policy. The Seventh Circuit emphasized that it is concerned about “the tendency of judges in employment discrimination cases to require closer and closer comparability between the plaintiff and members of the comparison group,” because “[d]emanding nearly identical comparators can transform this evidentiary ‘boost’ into an insurmountable hurdle.”

In light of the Seventh Circuit's statements regarding the flexibility of the "similarly situated" test, employers should ensure that all disciplinary policies are evenly enforced among all employees. Any discrepancy in enforcement can later be used as comparative evidence to support a discrimination claim.

White House Announces plan to fill Three Vacancies on the NLRB through Recess Appointments

On January 4, 2012, President Obama announced his intent to recess appoint three individuals to serve as Members of the National Labor Relations Board. These appointments will return the Board to a full five-member slate for the first time since August of 2010. Time will tell whether these appointments will have a significant impact on future NLRB decisions. However, it is possible that future Board actions may face legal challenges as a result of these recess appointments. The Republican controlled Senate has taken the position that it is not currently in recess and that the White House, therefore, cannot legally make recess appointments.

The NLRB press release provided the following biographies:

Sharon Block, Deputy Assistant Secretary for Congressional Affairs at the U.S. Department of Labor. Between 2006 and 2009, Ms. Block was Senior Labor and Employment Counsel for the Senate HELP Committee, where she worked for Senator Edward M. Kennedy. Ms. Block previously served at the National Labor Relations Board as senior attorney to Chairman Robert Battista from 2003 to 2006 and as an attorney in the appellate court branch from 1996 to 2003. From 1994 to 1996, she was Assistant General Counsel at the National Endowment for the Humanities, and from 1991 to 1993, she was an associate at Steptoe & Johnson. She received a B.A. in History from Columbia University and a J.D. from Georgetown University Law Center where she received the John F. Kennedy Labor Law Award.

Terence F. Flynn, currently detailed to serve as Chief Counsel to NLRB Board Member Brian Hayes. Mr. Flynn was previously Chief Counsel to former NLRB Board Member Peter Schaumber, where he oversaw a variety of legal and policy issues in cases arising under the National Labor Relations Act. From 1996 to 2003, Mr. Flynn was Counsel in the Labor and Employment Group of Crowell & Moring, LLP, where he handled a wide range of labor and employment issues, including collective bargaining negotiations, litigation of unfair labor practices, defense of ERISA claims, and wage and hour disputes, among other matters. From 1992 to 1995, he was a litigation associate at the law firm David, Hager, Kuney & Krupin, where he counseled clients on federal, state, and local employment and wage hour laws, NLRB arbitrations, and other labor relations disputes. Mr. Flynn started his law career at the firm Reid & Priest, handling labor and immigration matters from 1990 to 1992. He holds a B.A. degree from University of Maryland, College Park and a J.D. from Washington & Lee University School of Law.

Richard Griffin, General Counsel for International Union of Operating Engineers (IUOE). He also serves on the board of directors for the AFL-CIO Lawyers Coordinating Committee, a position he has held since 1994. Since 1983, he has held a number of leadership positions with IUOE from Assistant House Counsel to Associate General Counsel. From 1985 to 1994, Mr. Griffin served as a member of the board of trustees of the IUOE’s central pension fund. From 1981 to 1983, he served as a Counsel to NLRB Board Members. Mr. Griffin holds a B.A. from Yale University and a J.D. from Northeastern University School of Law.

New Workplace laws for California Employers

If you have employees in California, you may wish to scroll through this list of legislation passed in 2011, all of which became effective January 1, 2012. The legislation includes new rules about using consumer credit reports as a part of background checks, E-verify, leaves of absence for organ donors, and various other employment and wage and hour provisions.