Nolo’s Employment Law Blog

The U.S. Supreme Court has denied a request by global shipping giant FedEx to review a $100,000 punitive damages award against it for failing to provide a reasonable accommodation to a deaf package handler. Ronald Lockhart worked for FedEx at the company's Baltimore Ramp at the Baltimore-Washington International Airport. Lockhart repeatedly asked his supervisor for a sign language interpreter or written notes from daily, weekly, and monthly meetings and training sessions. Despite these repeated requests, for the first two years of his employment FedEx made no attempts to accommodate Lockhart. After Lockhart complained to the EEOC, FedEx did provide some accommodations, but sporadically. (For instance, a translator was present at some meetings but not others.)

In contesting the jury's finding of a punitive damages award, FedEx claimed that its adoption of an ADA compliance policy, as well as its internal grievance policy for handling employee complaints, established it had acted in good faith to comply with the ADA. But the court recognized, "an employer maintaining such a compliance policy must also take affirmative steps to ensure its implementation." Equal Employment Opportunity Commission v. Federal Express, 513 F.3d 360, 374 (4^th Cir. 2008) (PDF file). There was evidence to support the jury's finding that FedEx had failed in this regard, including evidence that at least 3 higher-ups, in addition to Lockhart's supervisor, knew of his request for accommodation.

The Supreme Court's decision not to hear the case means employers who fail to provide reasonable accommodations when requested may be subject to punitive damage awards. The existence of a policy, on its own, won't be adequate evidence of an employer's good faith. Policies must be implemented if they are to offer protection.

Last week, the House approved the Senate's version of the ADA Amendments Act of 2008 (known as the "ADAAA"). The ADAAA now awaits the President, who has said he will sign it (just as his father signed the original ADA). Once signed, the amendments will take effect on January 1, 2009.

The ADAAA is the product of a broad coalition of business and civil rights groups that came together to undo several Supreme Court decisions that have limited the protections of the ADA. A primary concern of the law's drafters was to clearly express Congressional intent that the term "disability" should be construed in favor of broad coverage. To accomplish this, the ADAAA includes these provisions:

• Major life activities include major bodily functions, such as the proper functioning of the immune system, cell growth, brain, and respiratory system. This language should preclude courts from finding that certain serious diseases, such as cancer, are not disabilities because they don't yet substantially limit a major life activity.
• Impairments that are episodic or in remission are disabilities if they would substantially limit a major life activity when active. This should also negate the tendency of some courts to find that some significant, even life-threatening diseases are not disabilities. 
• A transitory impairment -- which does not qualify as a disability and is not covered by the ADA -- is defined as one that lasts for six months or less. These types of impairments have always been excluded, but were not clearly defined.
• Mitigating measures -- such as medication, prosthetics, and other devices or aids used to ameliorate the effects of an impairment -- may not be considered when determining whether a person has a disability. The Supreme Court had held that these measures must be considered when determining whether a person suffers a substantial limitation to a major life activity, which resulted in many people with serious conditions being excluded from coverage.
• The corrective power of ordinary glasses and contact lenses may be considered in deciding whether a person has a disability. However, employers may not use a test or qualification standard based on an applicant's uncorrected vision unless it's job-related and consistent with business necessity.
• A person who is regarded as having a disability need not show that his or her employer believed that the impairment (whether actual or perceived) substantially limited a major life activity. The "regarded as" category of disability was intended to protect employees from stereotypes or unfounded assumptions about disabilities and impairments, but it wasn't entirely clear previously what the employer had to mistakenly believe. Also, the ADAAA makes clear that an employee who claims that he or she was regarded as having a disability is not entitled to a reasonable accommodation: no actual disability, no accommodation.

Experts agree that the ADAAA will result in more court rulings for employees (thus far, employees in ADA cases have fared pretty poorly in litigation). More employees will be found to have disabilities, and to therefore be entitled to reasonable accommodations and protection from discrimination.  

I spent quite a bit of time watching the 2008 Beijing Olympics over the last few weeks. I loved witnessing the good sportsmanship that isn't dictated by national origin, language, or competitive spirit: Dara Torres helping Sweden's Therese Alshammar fix her ripped suit so she could swim in the semifinals of the 50 free, or Usain Bolt and Asafa Powell joking with one another before competing for gold.

But according to an article by Steve DeMiglio and Jerry Potter of USA Today, it doesn't appear the Olympic spirit is dominating the women's golf establishment right now. In fact, the LPGA is requiring women golfers on its tour to pass an English proficiency exam or face suspension. The rationale for the requirement, according to the LPGA and some supporters, is that golfers need to be able to communicate in English to fulfill duties other than playing golf, such as attending press conferences. But some speculate that this is an attack aimed at South Korean golfers, who represent 45 of 121 international women on the tour and have won several important titles.

I don't doubt English proficiency is a valuable asset for anyone playing professional golf in the United States. It probably wouldn't have hurt for Michael Phelps or Nastia Luikin to learn Mandarin while attending the Olympics in Beijing, either, but somehow they managed just fine. Beyond excelling in their events, I assume they gave interviews on Chinese television, probably got some great endorsements from Chinese companies, and managed not to seriously offend any Chinese Olympic officials.

So how are LPGA golfers different? Offering them the opportunity to learn English -- great idea. Inferring that they can't do their jobs without it? That seems a little implausible. While I don't doubt that learning English is sometimes a job requirement, it's hard to understand the rationale here, especially because (as with the Salvation Army case we talked about a few months ago) it seems that until now, everyone got along playing golf in the LGPA and not speaking proficient English just fine. With the Olympics so recently showing us that athletic skill and competition are a universal language, I'm unconvinced.

Update 9/8/08: It appears the LPGA has backed off its language requirement in the face of opposition from lawmakers and sponsors, and will not impose suspensions on players who don't meet English proficiency requirements. However, fining the players is still a possibility, a spokeswoman says.

Alayna Schroeder

The Equal Employment Opportunity Commission (EEOC) recently issued a new section of its Compliance Manual on religious discrimination, along with a fact sheet of questions and answers and a best practices guide. These documents were issued partly in response to a rise in charges of religious discrimination, which have doubled in the last 15 years (although they still make up a small fraction of the total charges the EEOC receives -- 3.5%, according to the agency).

Religion is unique among the characteristics protected from discrimination. Religion isn't really a characteristic, like race or gender; it's a belief system. And unlike other protected traits, which are sometimes protected precisely because they are "immutable," religious belief is deeply personal and can change over time. A person might become more religious, convert from one religion to another, or abandon faith entirely. A person might strongly feel him- or herself to be part of a religion, yet not share all of its beliefs or follow all of its teachings. Also, unlike other protected traits, religion sometimes requires particular behavior while adherents are at work, such as prayer; observing certain holidays; wearing specified items, types of clothing, or hair styles; or professing one's faith to others.

All this adds up to potential workplace conflict, especially when you consider that atheism is also considered a "religion" for purposes of anti-discrimination law. What if an employee's religious beliefs require him or her to "spread the good news" to customers and coworkers -- who complain about it? What if an employee's religious garb creates a potential safety hazard or simply violates the company's uniform rule? What if an employee requests an accommodation for a claimed religious belief that you've never heard of, refuses to provide a Social Security number because it constitutes "the mark of the beast," or asks to be excused from a management training course featuring a New Age speaker?

The EEOC's Manual attempts to clarify some of these issues. Among other things, the new Manual provides guidance on:

What constitutes a religious belief. Once an employee goes beyond recognized religious affiliations, it can be hard for an employer to determine whether the employee's belief is actually religious. Vegetarianism, particular styles of dress or hair length, and views on appropriate gender roles, for example, could each be part of a system of religious practices or could simply be a matter of personal opinion or preference. As the Manual points out, personal beliefs are not protected by Title VII; that privilege is reserved for religious beliefs, defined as those that are sincere, meaningful, occupy a place for the believer "parallel to that filled by...God," and concern "'ultimate ideas' about 'life, purpose, and death.'"

Discrimination based on third party bias. The Manual makes clear that employment decisions based on customer preference or prejudice -- for example, against employees who are perceived as Muslim -- are discriminatory. Oddly, the Manual also says that it would be okay for employers to require Muslim applicants to undergo more extensive security or background checks if required by federal law or Executive Order, but then goes on to say that no such law or Order exists, as far as it knows.

Reasonable accommodation and undue hardship. Employers are legally required to accommodate an employee's religious belief, practice, or expression. The Manual gives extensive guidance on accommodations that might be reasonable for an employee who requests a scheduling change (to observe religious rituals or a Sabbath), an exception from usual dress or grooming requirements, or breaks at work to pray. The Manual indicates that employers would be well-advised to follow the "interactive process" required by the ADA in working with employees to come up with a suitable accommodation. Although the Manual notes that any expense beyond administrative costs is considered an undue hardship under Title VII, it also states that an employer might be expected to pay premium wages (for example, overtime pay to another employee) as a temporary accommodation for an employee who needs time off for religious reasons.

Religious expression. The Manual cites a survey indicating that 19% of employees proselytize to coworkers. It also discusses other forms of religious expression in the workplace, from an employee who wears a button with an anti-abortion message and graphic photograph of a fetus or a patch saying "Jesus is Lord," to employees who wish to greet customers with "Have a Blessed Day," "Praise the Lord," or "in the name of Jesus of Nazareth."

The Manual doesn't do much to resolve the current legal bind of employers here: These are considered forms of religious expression entitled to accommodation. On the other hand, other employees may find these statements harassing -- and the employer itself might legitimately feel that such statements give the public the wrong idea about the company's own values and mission. There are no bright lines: Unlike racist or sexist comments, which an employer can and should stop whether or not they've reached the level of legal harassment, religious comments are not considered legally inappropriate. In fact, they are legally protected to some extent, and an employer who prohibits them absent complaints or other evidence of trouble could face a successful legal challenge.

Women are leaving the workforce in their prime earning years, according to an article in the New York Times that claims, "women are being afflicted on a large scale by the same troubles as men: downturns, layoffs, outsourcing, stagnant wages, or the discouraging prospect of an outright pay cut. And they are responding as men have, by dropping out or disappearing for a while." 

The title of the article -- "Women Are Now Equal as Victims of Poor Economy" -- may be right. But being equally subject to economic downturn does not "equal" make. According to the U.S. Census Bureau, in 2004, women in the workforce earned an average of 77 cents to every dollar a male earned.

This comparison isn't necessarily apples to apples -- it doesn't compare two individuals in the exact same job.  But another study shows that one year out of college, women make 80 cents for every dollar earned by their male counterparts, with a big pay disparity even when working in the same field. (The Equal Pay Act, passed in 1963, recognized this pay disparity and seeks to correct it. And other legislation on both the state and federal level has sought to protect women from this and other sex discrimination that is still alive and well in today's workforce [pdf].) 

So is there some justification for the disparity? According to some, men make choices that "lead to higher annual salaries," such as working in jobs that require extensive travel, hazardous assignments, or provide less "free time." That may be true, but it seems a little disingenuous. Most obviously, in childbearing couples, men and women are not created equal, and some of these salary-enhancing factors put childbearing women at a disadvantage. It may be hard for pregnant women to travel extensively or take on hazardous assignments, for example (and there are enough lawsuits to show they may face employer criticism for trying). 

Only women become pregnant, deliver babies, and breastfeed. Child-bearing women must exit the workforce for, at very least, the amount of time it takes for prenatal care, delivery, and recovery. Men, by comparison, need not take any time at all (though many do, to attend appointments, provide care, and bond with new infants).  Is it really any surprise, then, that mothers are more likely than fathers to work part time or take leave when children are born? Or that two wage earners, faced with the high cost of child care, might decide that the lower wage earner should stay home -- or perhaps not immediately seek to reenter the workforce after a layoff, when the economy is bad? 

So yes, the economy may be hitting men and women equally, but there's no question -- other factors aren't, and there's more to the story of what's driving women from the workforce. 

Alayna Schroeder

The ADA Amendments Act (the ADAAA), which would overturn several Supreme Court cases that limited the application of the Americans with Disabilities Act, passed in the House last month and is now before the Senate. The ADAAA has widespread support from employee and disability rights advocacy groups and employer advocates -- rarely do you see legislation supported by the ACLU, the Leadership Conference on Civil Rights, the NAACP, The Society for Human Resource Management, and the Chamber of Commerce. But the price of this broad coalition might be coming due now, as the Senate tries to parse the compromise language used in the ADAAA.

An overriding goal of the legislation is to make sure that serious conditions and diseases qualify as disabilities under the law. Here are some of the changes the ADAAA would make:

• Prohibit consideration of "mitigating measures" when determining whether someone has a disability. The Supreme Court has held that medications or assistive devices a person uses to control or diminish the effects of a disease or impairment must be taken into account when determining whether that person has a disability. For example, someone whose epilepsy is controlled by medication could be determined not to have a disability. The ADAAA would reverse these holdings and require courts to look at the person's condition in its unmitigated state when deciding whether he or she has a disability.
• Include certain bodily functions as major life activities. In the past, some serious diseases (including certain types of cancer) were not considered "disabilities" under the ADA because they did not yet substantially affect a major life activity. The ADAAA provides that major bodily functions -- for example, the proper functioning of the immune system, cell growth, brain, and respiratory system -- are major life activities. 
• Include impairments that are episodic or in remission. The ADAAA provides that conditions that would be disabling when active count as disabilities, even if they do not currently substantially limit a major life activity. This provision would cover serious conditions that have disabling flare-ups, such as certain types of epilepsy or multiple sclerosis, and cancers that are in remission.
• Redefine the "substantially limits a major life activity" standard. The ADAAA says that a condition or impairment is a disability if it "materially restricts" a major life activity. This is the compromise language that is currently under discussion in the Senate.

As originally introduced, the legislation (then called the ADA Restoration Act) would have gotten rid of the "substantially limits" language altogether, and stated simply that a disability is a physical or mental impairment. The Supreme Court has interpreted "substantially limits" to require a severe restriction. The language of the ADAAA -- that the condition must "materially restrict" a major life activity -- is a compromise intended to cover those with serious conditions while excluding minor or temporary impairments.  

Senator Harkin, one of the Senate sponsors of the ADA 18 years ago, has expressed concerns about how this language will be defined by the courts. He has indicated that, although he wants the Senate to quickly pass similar legislation, the "materially restricts" language may need to be further clarified in the Senate's version of the bill.  

Lisa Guerin

Discrimination is cloaking itself in more subtle terms. As EEOC attorney Sanya Hill Maxion told Dahleen Glanton of the Chicago Tribune, "People are smart and know they cannot use blatant terms, so they get the message across in other ways." It may come out on a job description as "enthusiastic" or "progressive" -- but if it really means "young," it's discriminatory.

Maxion represented Tomeika Broussard, who won $44,000 in a racial discrimination lawsuit against her employer. Broussard's supervisor called her "reggin" -- it sounded negative to Broussard, but it didn't automatically register that it was the "N" word spelled backwards. (Check out Glanton's article to read a full account of her ordeal.)

"Smarter" discrimination means smarter deciphering is in order. No one wants to quelch inside jokes or friendly banter, or rewrite an enthusiastic job description as a dry recitation of job duties. But many times, the negative connotation of a word -- even one we may not understand -- is obvious, just as it was to Ms. Broussard.

Alayna Schroeder

The Supreme Court is busy these days, issuing its final decisions before beginning its summer recess at the end of this month. Today, the Court announced several employment law cases, including two age discrimination decisions. (The Court also invalidated a California law that prohibited employers who receive state funds from using that money to promote or discourage union organization; I'll write about that case, Chamber of Commerce v. Brown, in a future post).

One of the age discrimination cases, Meacham v. Knolls Atomic Power Laboratory, involved a reduction in force at a government contractor that designs naval nuclear reactors. Managers were asked to score employees for performance, flexibility, and critical skills, and those scores were used to determine which employees lost their jobs. All but one of the 31 employees who were let go were at least 40 years old, and most of them sued for age discrimination.

Among other things, the employees claimed that the scoring system had a disparate impact: Even though it didn't explicitly discriminate on the basis of age, the employees argued that it disproportionately screened out older workers. Knolls countered that its selection criteria for the RIF were "reasonable factors other than age" (RFOA), one of the exceptions to the Age Discrimination in Employment Act, and so were legal.

The argument in this case was over which party -- employer or employee -- ultimately has to prove the RFOA. The Court found that the RFOA is an affirmative defense, which means that the burden is on the employer to prove that its criteria were reasonable. As the Court admits, this case will make it more difficult for employers to defend against disparate impact claims in ADEA lawsuits.

In Kentucky Retirement Systems v. Equal Employment Opportunity Commission, a rare combination of five Justices (Breyer, Roberts, Stevens, Souter, and Thomas) decided that Kentucky's retirement system for employees in hazardous positions (such as firefighters and law enforcement officers) didn't violate the ADEA. This decision is tough to parse, not least because the facts of the case are a bit complicated (and there's math).

Here are those facts in a nutshell: Kentucky's system makes employees eligible to retire when (1) they have 20 years of service, or (2) they have five years of service and are at least 55 years old. Employees who suffer a disability are eligible for immediate retirement. If they haven't met one of the two criteria that usually apply, they are credited with enough additional years of service to qualify them for retirement, up to the number of years they have actually served. Retired employees were paid based on a formula that multiplies their years of service (whether actual or credited after a disability) by a factor of their annual pay when they retired.

The EEOC sued, claiming that the system discriminated against older workers because it allowed younger employees to receive higher payments than older employees with the same length of service. Because employees who were at least 55 only needed five years of service to retire, some younger employees who became disabled had to be credited with more years of service to be eligible for retirement -- which translates into more money. For example, an employee who suffered a disability at the age of 35 after ten years of service would receive credit for an additional ten years of service; an employee who suffered a disability at the age of 50 after ten years of service would receive credit for only an additional five years of service; and an employee who suffered a disability at the age of 55 after ten years of service would be credited with no extra years.

The Court decided in favor of Kentucky and upheld the system. The Court found that Kentucky wasn't motivated by age discrimination, but by a desire to allow those disabled on the job to receive compensation. Because the state's rules were based on pension eligibility rather than on age, the Court found that they should be upheld.

The dissent seems to have the better side of the argument on this one. They point out that the state's pension calculations are explicitly based on age. The state may be able to justify its rules using the equal cost defense, which allows employers to reduce certain benefits to older workers as long as it spends an equal amount on benefits for older and younger workers. But to say, as the majority opinion here does, that the state's system is not age-based seems incorrect. And even if the state has good intentions, as appears to be the case, it doesn't have to disadvantage older workers to achieve its goal of compensating employees who suffer disabilities.

Lisa Guerin

Firing an employee for having an abortion is a form of pregnancy discrimination, the Third Circuit Court of Appeal found in Doe v. C.A.R.S. Protection Plus, Inc. The facts of this case are particularly sad: Doe (a pseudonym) learned there might be problems with her pregnancy in August 2000, several months after she found out she was pregnant and told her employer. After tests showed severe deformities, Doe had an abortion, on her doctor's recommendation. On the day of the funeral ceremony, Doe was fired.

Her employer argued that she was fired for failing to comply with the company's procedures for being absent from work. However, Doe presented evidence that her husband had called in to arrange the time off, and that other employees were not required to follow the same rules. Another employee also stated that Doe's supervisor (who fired her) stated that Doe "didn't want to take responsibility," possibly in reference to her abortion. And, Doe was fired only three working days after the abortion. Taken together, the Court found that this evidence was enough to defeat the employer's motion for summary judgment.

At least one other federal Court of Appeals (the Sixth) has found that employers may not discriminate against employees who have had abortions, the same position the EEOC has taken. This precise issue hasn't come up much in court decisions, perhaps because many women keep quiet about having an abortion. Doe's employer knew about her abortion precisely because of the sad facts of the case: that it was a medically recommended termination of an apparently wanted pregnancy.

The term "abortion" does come up with some frequency in pregnancy discrimination cases, but not because the employee alleging discrimination had or even considered one. Instead, the employee sometimes claims that her manager brought up the possibility of an abortion (as in, "why don't you have one"), one piece of evidence that the manager was hostile toward the employee's pregnancy.

Thanks to the Law Memo's Employment Law Blog for alerting me to the case.

Lisa Guerin

The Supreme Court issued two decisions in employment cases yesterday, finding in each that an employee could bring a claim of retaliation. In CBOCS West, Inc. v. Humphries, the Court found that an employee could bring a retaliation claim under a Civil War-era statute, 42 U.S.C. 1981, that doesn't expressly prohibit retaliation. (My previous post describes the case and the reasons why Section 1981 is such an important remedy for employees.) And, in Gomez-Perez v. Potter, the Court found that a U.S. Postal Service employee could sue for retaliation under the part of the Age Discrimination in Employment Act that covers federal employees -- again, despite explicit mention of retaliation in the law itself.

Big wins for employees? Yes and no. These two decisions affirm what many people thought was already the law, especially in the CBOCS West case, so employees haven't really gained any ground. On the other hand, employees haven't lost any ground either, which looks a lot like victory in front of this Supreme Court.

Often, the Supreme Court takes a case to resolve a disagreement among the Courts of Appeal. When it takes a case like CBOCS West, in an area where the law seems settled, advocates usually start worrying that the Court is going to shake things up and change the rules. That the Court didn't do so in either of these cases -- and invoked "stare decisis," the legal principle that the Court shouldn't overturn its previous decisions absent exceptional circumstances -- is the real storyline here, and a welcome one for employees and their advocates.

Lisa Guerin