The ADA prohibits discrimination against “qualified individuals with a disability.“ This includes those individuals with any medical, physiological, or psychiatric condition that substantially limits a major life activity. The ADA also protects certain individuals from discrimination based on an employer’s stereotypes and unfounded concerns about an individual’s medical condition and medical history.

In Wisbey v. Lincoln, Neb., the employee brought a “regarded as” claim, asserting that her employer mistakenly believed that an actual impairment – in this case her depression - substantially limited her ability to perform her essential job functions. Here, the court determined that no claim existed because the employee was terminated for a tangible reason – i.e. her psychiatrist had determined she couldn’t perform the essential work duties, including performing a public safety job requiring alertness and coolness under pressure - and she admitted that she needed leave because of her depression. As a result, the “regarded as” claim could not stand.

Conditions such as depression and other mental illnesses or are not always understood and may give rise to unfair treatment and adverse actions based on the assumption that an employee cannot handled specific job related duties or tasks.

If you are qualified for your job and suffer from any medical, physiological, or psychiatric condition that substantially limits a major life activity, and your employer discriminates against you, you may be able to file a claim under the ADA.

However, where religious employers are involved, the circuits are split.

In a recent decision involving the Roman Catholic Diocese of Tulsa, Oklahoma, the Tenth circuit determined that a woman’s duty’s as the director of the department of religious formation placed her squarely within the ministerial exception to federal employment discrimination laws. Applying the ministerial exception, as endorsed by the Tenth, Fifth, Ninth, and District of Columbia, a church employee’s hostile environment claim improperly entangles of church and federal law. As a result, these circuits have held that not only are religious employers shielded from hostile environment claims, but all forms of discrimination under Title VII, including equal pay and age discrimination.

Although the ministerial exception typically applies to ministers, the exception covers any employee shown to be important to a church’s “spiritual and pastoral mission.”

This decision is at odds with the Ninth Circuit’s holding in a previous case, Elvig v. Calvin Presbyterian Church, 375 F.3d 951 (9th Cir. 2004) that a minister’s hostile environment claims against a church may be viable “so log as the church does not claim ‘doctrinal reasons for tolerating of failing to stop the [alleged] sexual harassment.”

The interplay between church tenets and federal sexual discrimination laws continues to evolve, with differences from circuit to circuit – even amongst the courts within a circuit.

In a recent case, a 68-year-old attorney who was denied a job at a software firm filed a claim under the Age Discrimination in Employment Act (ADEA) asserting that he was “clearly better qualified” than the “substantially younger” applicant.

Similar to other anti-discrimination laws, the ADEA prohibits adverse employment actions against you on the basis of age – including decisions regarding hiring and firing – and protects you from harassment based on your age.

In Moss v. BMC Software, Inc., a company hired a substantially younger candidate explaining that although the older candidate – Moss - had more extensive legal experience, the successful candidate had greater familiarity and expertise with specific transactions that formed the majority of the job. Moss asserted that the company’s reasons for hiring the younger candidate were mere pretense and that and his age was a “motivating factor” in the company’s decision not to hire him. The U.S. Court of Appeals for the Fifth Circuit rejected these arguments and granted the company’s motion for summary judgment, noting that the “motivating factor” standard is not applicable to ADEA cases. Unlike Title VII discrimination, under the ADEA plaintiffs must prove age was a “but for” cause of an adverse employment action.

In granting the summary judgment motion, the court stated that the employee failed to show direct discrimination and would not “second-guess’’ the company’s business judgment about which job qualifications were most essential.

Although age may be a factor considered in an employer’s decision -making process, it cannot be the only one.

In Thompson v. N. Am. Stainless LP, an employee, Eric Thomson, was terminated three weeks after the company became aware of his fiancée’s sex discrimination claim against them.

Title VII prohibits retaliation as the result of a complaint about certain types of discrimination in the workplace, either directed at you or a fellow employee. Retaliation includes not only being fired, but also almost any negative action by your employer against you in response to a complaint about discrimination or acting as a witness in someone else’s case.

In Thompson, the Sixth Circuit determined that the employee’s status as the fiancé of an individual who filed a discrimination charge was not sufficient to pursue a claim of retaliation because he had not personally engaged in a protected activity.

Although the Justice Department recommended that the court deny review, the Supreme Court accepted the case and will hear oral argument when the new term begins.

In recent years, the Supreme Court has ruled favorably on retaliation claims, finding that an employer may be liable under Title VII for actions that would dissuade a reasonable employee from making or assisting with a discrimination complaint. See Burlington Northern & Santa Fe Railway Co. v. White, 548 U.S. 53 (2006).

Under the FMLA, an employee is entitled to 12 weeks of leave for the birth or placement of a son or daughter, to bond with a newborn or newly placed son or daughter, or to care for a son or daughter with a serious health condition. The FMLA’s definition of “son or daughter” includes not only a biological or adopted child, but also a foster child, a step-child, a legal ward, or a child of a person standing in loco parentis.

Pursuant to the recent clarification, anyone who assumes the role of caring for a child regardless of the legal or biological relationship may be considered as acting “in loco parentis,” and entitled to leave. This includes same sex partners, unmarried partners, grandparents and extended family members.

In reaching this determination, the DOL reasoned that it was Congress’ intention to grant leave to employees who have day-to-day responsibilities caring for a child even if the employee does not have a biological or legal relationship to that child.

The DOL also relied on case law that provides a variety of factors used to determine whether an employee stands in loco parentis, including:

• Age of child
• Degree child is dependent on person claiming in loco parentis status
• Amount of financial support
• The extent duties associated with parenthood are exercised

Labor Secretary Hilda Solis stated “No one who loves and nurtures and child day-in and day-out should be unable to care for that child when he or she falls ill…No one who intends to raise a child should be denied the opportunity to be present when that child is born simply because the state or an employer fails to recognize his or her relationship with the biological parent.”

For more information, please contact Buckley & Klein, LLP, a Georgia law firm committed to employee’s rights.

In a recent sexual harassment case, Rosario v. Dep’t of Army, the U.S. Court of Appeals for the First Circuit court ruled that the lower court’s focus on whether a sexual attraction between the harasser and the employee existed was misdirected. Citing Oncale v. Sundowner Offshore Services, 523 U.S. 75 (1998), the court noted that no requirement exists that the hostile acts be overtly sex- or gender-specific in content, whether marked by language, by sex or gender stereotypes, or by sexual overtures. Rather, circumstantial evidence showing a hostile work environment is sufficient.

In Rosario, the supervisor’s actions in commenting on an employee’s body and underwear everyday, calling co-workers’ attention to her body and underwear and repeating sexually oriented jokes could create an inference that the superior’s behavior was improperly motivated by gender. As a result, the Court held that a reasonable jury could find that the employee was exposed to harassment that differed in both kind and degree from that imposed on male employees.

Here, the supervisor created a work environment that ultimately harmed a female employee’s emotional stability and health. Whether the supervisor had a crush or was attracted to the employee was irrelevant to the existence of a hostile environment.

Whether someone is considered a “qualified individual with a disability” is a legal definition and depends on whether you have a condition that substantially limits a major life activity. If you fall within this definition, then the ADA requires that your employer make an effort to “reasonably accommodate your disability.” This may be some simple such as changing your start time or providing an alternate workspace. An employer is not required to make all requested accommodations, only those that are reasonable, i.e. – they are not required to make changes that are excessive or burdensome.

Whether specific accommodations are considered reasonable is determined on a case-by-case basis.

In EEOC v. Hibbing Taconite Co., the U.S. District Court for the District of Minnesota reviewed whether a mining company was required to make reasonable accommodations so that a hearing-impaired applicant – James Edstrom - could obtain a job at an open pit mine. The mining company asserted that it failed to hire Edstrom because he could not perform the essential functions of working at the mine as a result of his hearing impairment and inability to use a workplace radio.

In response, Edstrom provided evidence of accommodations made for him at past mine jobs that allowed for adequate communication and a safe environment. These accommodations included the use of radio, hand signals, eye contact, horn use, and written contact. The court determined that a triable issue of fact existed, and denied the employer’s motion for summary judgment. The court reasoned that a jury could find that these forms of communication, along with texting, constituted “reasonable accommodations” required under the ADA.

In Sheer v. Motorola Inc., E.D. Pa., No. 09-209, an administrative assistant became friendly with an engineer at Motorola, exchanging social emails and gifts. The relationship started to decline and the engineer made increasingly sexual and threatening comments. After the administrative assistant complained to Motorola, the engineer was investigated, formally punished and had his duties diminished.
The administrative assistant claimed she was treated differently by co-workers after the complaint, and she subsequently lost her job a year later after a reduction in force. She then filed a lawsuit alleging violations of Title VII as a result of a hostile work environment and retaliation.

Here, Motorola’s response to the assistant’s claim was in question. After the administrative assistant complained, Motorola assembled a security team to investigate, told her to work from home, and provided her with safety advice.
The court concluded that rather than being discriminatory, these actions show that company took the woman’s complaint seriously and invested significant time and resources to resolving the matter quickly and effectively. The court also stated that if they found the company’s actions to assist the woman created a “hostile work environment” employers would be on a ‘razor’s edge’ for fear of liability for investigating too thoroughly or not investigating at all.

The court also determined that the fact that her job was eliminated nearly one year after the woman complained was not sufficient to show retaliation.

If you believe you have been subject to sexual harassment, the first thing to do is seek legal advice. Often the employer will have a policy that requires you to report the harassment to someone in authority. If you fail to do so, you risk losing your right to pursue a sexual harassment claim if the conduct persists. Here, the company responded and took actions to investigate the complaints of harassment. Often, that’s not the case. Many times when an employee complains of harassment, the employer does nothing. In situations where a company fails to respond to a complaint, you have the right to file a sexual harassment charge with the Equal Employment Opportunity Commission (EEOC), the federal agency that investigates all claims of employment discrimination. The EEOC will then investigate the charge and require your employer to investigate.

Under Title VII of the Civil Rights Act of 1964, employers are prohibited from discriminating on the basis of race. Race discrimination often occurs through facially “neutral” practices that have the effect of screening out minority applicants and employees, such as employment tests, appearance and dress codes, English-only rules.

At issue in Lewis v. City of Chicago was a written employment test administered to more than 26,000 firefighter applicants. The City of Chicago stated that everyone who scored above a 65 on the test was qualified, but would only hire those who were “well qualified” – i.e. those individuals who scored an 89 or better.

The firefighters brought a lawsuit under Title VII for race discrimination based on a disparate impact theory, i.e. that they were denied jobs as the result of a flawed employment test. In order to fall within the 300-day deadline to file a claim, the firefighters asserted that each time the fire department relied on the test to make a hiring decision a separate act of discrimination occurred, and hence constituted a “continuing violation.”

The trial court agreed and held that the score of 89 was statistically meaningless and had a “severe disparate impact against African-Americans.” The appeals court reversed.

On Monday, the U.S. Supreme Court reversed the appellate court decision. Writing for the majority, Justice Scalia stated that each use of a forbidden employment practice gave rise to a separate claim of discrimination. He distinguished between disparate impact and disparate treatment claims, noting that for disparate impact claims deliberate discrimination need not be shown within the limitations period. Although Scalia acknowledged this decision might allow suits for long-established practices, ruling otherwise would allow employers to use “an unlawful practice with impunity.”

If you believe you have been the victim of employment discrimination, please contact Buckley & Klein, LLP, a Georgia law firm dedicated to protecting individual’s rights in the workplace.

Often, discrimination occurs when one company merges with another, or goes through a reduction in force (“RIF’) and evaluates which employees to retain or terminate. If the employee’s age is used to determine whether someone should be laid off, the employee may have a claim for age discrimination.

A recent case determined that when one company buys-out another, claims based on age discrimination survive. In Phair v. New Page Corp., a 55-year-old employee – David Phair – was fired after his employer was purchased by another company. In advising the new company regarding whom to retain and whom to eliminate, the managers of the former employer raised concerns about the age of some employees and offered anecdotal evidence about who might be a good fit. Without a comprehensive review of any employee personnel files or performance reviews, Phair was offered a temporary position involving significant travel. He declined this position and was fired. An additional 4 employees, all older than 40, were terminated as well.

Several factors affected the court’s determination that Phair could maintain a cause of action against the companies. First, the District Court found that although Phair’s offered transfer was lateral, it could be considered an “adverse employment action” because it involved switching from a full time position without travel to one involving extensive travel. Further, Phair was replaced with an employee 4 years, 9 months younger than him. Because authority is split on whether this constitutes a “substantial age difference,” the court determined that an age difference close to 5 years was sufficient to raise an inference of age bias. Finally, the court held that discriminatory comments such as concern over the “aging workforce” and the fact that statistically older workers were overrepresented in the group of employees let go was sufficient to create a triable issue on whether age was a “but for” factor in Phair’s termination.

In Alonso v. Huron Valley Ambulance Co., the 6th Circuit Court of Appeals reviewed job applications signed by a married couple – Alan and Kimberly Alonso - seeking positions as paramedics with an ambulance company. Included on the forms were clauses providing that employees must submit any employment disputes to a grievance review board, including discrimination and contract issues. The forms also stated that candidates hired by the company could not commence any employment related action or legal proceeding for more than six months after the employment relationship ended and required the candidate to “waive any statute of limitation as to the contrary.”

The Alonsos signed these forms and were hired.

At an orientation meeting over a month later, the Alonsos received company manuals detailing an elaborate grievance procedure, including a provision that any dispute “arising out of or in connection with” employment, including civil rights, tort and contract claims “shall be exclusively subject to review by the Grievance Review Board” and any decision reached by the board would be binding.

In 2007, Alan joined the Army National Guard. Shortly thereafter Alan was fired for allegedly making false claims of being absent from work due to military duty and testing positive for a prescribed medication. Alan protested his firing, but the grievance board upheld the termination. Alan then sued in federal court claiming retaliation, as well as being terminated in violation of USERRA.

Kimberly joined the action as well, with allegations of sexual harassment, discrimination and retaliation.

On appeal, the 6th Circuit Court disagreed with the District Court – holding that it was error to dismiss the claims. A unanimous Circuit Court panel determined that the Alonso’s had not knowingly or voluntarily waived their right to sue the company in court and reasoned that the Alonsos were not properly informed about the grievance process when they initially signed the job forms, and no evidence existed that they understood the remedies they were foregoing. As a result, the court reinstated the Alonso’s underlying claims.

Employment applications and handbooks often contain confusing language and provisions, which can limit your right to recovery or affect the available judicial remedies. Although a court may find these provisions are not enforceable if you do not “knowingly or voluntarily” sign them, the best course of action is to have an attorney review any employment related documents at the outset. If you have questions concerning employment applications and contracts, please contact Buckley & Klein, LLP, a Georgia law firm dedicated to protecting individual’s employment rights.

Although arbitration may have many advantages, such as being quicker and less expensive than traditional litigation, the mandatory arbitration clauses often found in employment agreements or employee handbooks can be unfair and contain unfavorable provisions.

In Rent-A-Center West Inc. v. Jackson, U.S., No. 09-587, oral argument 4/26/10), an African American account manager – Antonio Jackson - challenged who should determine if the mandatory arbitration clause he signed as a condition of employment was unconscionable and unenforceable – an arbitrator or the federal court.

The arbitration issue arose out of Jackson’s race discrimination case against Rent-a-Center, for the alleged failure of Rent-A-Center to promote him and its promoting of non-African American employees with less seniority. After complaining to his superiors, the Jackson was transferred and eventually fired.

The company then filed a motion to compel arbitration in order to resolve Jackson’s discrimination claims. Jackson objected, asserting that the arbitration agreement was “unconscionable and unenforceable” in part because it limited discovery and that he was told it was non-negotiable when he was hired by Rent-A-Center.

A decision is expected in June, however much of the questioning focused on whether the issues raised in this case deal with the formation – or “making of the agreement” – in which case the Court must decide if the agreement is valid or "post-formation” issues which the arbitrator would decide.

If you have any questions about mandatory arbitration clauses or employment agreements, contact Buckley & Klein, LLP, a Georgia law firm committed to protecting employees rights.

Not all illnesses or injuries are covered by the ADA. The ADA only protects “qualified individuals.” Qualified individuals are those with any medical, physiological, or psychiatric condition that substantially limits a major life activity.

In Horgan, the Illinois District Court evaluated whether HIV constitutes a covered disability. Writing for the court, Judge Ruben Castillo held that it is, reasoning that HIV falls within the category of being an “episodic or in remission” that “substantially limits a major life activity when active.” The court further noted that the operation of ‘major bodily functions,’ including an individual’s immune system are considered “major life activities” for the purpose of defining an actual disability under the ADA.

In addition to determining whether HIV was a covered disability, the court also reviewed whether facts exists showing that the president of the company improperly inquired into Horgan’s medical status after he told Horgan he was “really worried about him” and needed to know if “there was something medical going on.”
After persistent questioning, Horgan revealed his prognosis, but indicated that it did not affect his ability to work and be productive. However, the company president continued to ask questions about his condition. Horgan was told that he “should go on vacation” and “leave the plant immediately.” The president also sent out an email stating effective immediately Horgan was no longer a member of the company.

As a result, the court determined that the plaintiff easily cleared the procedural hurdles in order to withstand a motion to dismiss – he gave the company adequate notice of the claims and the grounds on which they rest and the allegations suggest Horgan has a right to relief.

When you’re injured or suffer from a major illness or disability, some employers may assume you are unfit to perform a task or have biases against your work abilities. In some cases, their actions may be considered discriminatory and in violation of the ADA. Other state and federal laws may be involved as well, including short or long term disability, the Family and Medical Leave Act, and Georgia Workers’ Compensation. If you have a serious injury or disability and have questions concerning your employment rights, please contact Buckley & Klein, LLP, a Georgia employment law firm dedicated to protecting employee's rights.