Atlanta Employment Lawyer Blog

The Equal Employment Opportunity Commission recently issued a new guide to help both employers and employees better understand some complicated issues under the Americans with Disabilities Act: The Americans with Disabilities Act: Applying Performance and Conduct Standards to Employees with Disabilities.

The new guide addresses an issue under the ADA that has given rise to a good deal of litigation—how far can employers go in enforcing their performance and conduct standards against employees who have disabilities that may limit their ability to comply with those standards. The EEOC’s new guide states that employees with a disability must meet the same performance standards that are applicable to all employees in the same job, and that employers need not reduce or relax those standards, even if an employee requests it as a reasonable accommodation. The EEOC also points out that employers may discipline disabled employees for violations of rules of conduct, even where the misconduct is caused by the employee’s disability. However, the EEOC does note that if a reasonable accommodation to an employee’s condition can be made which would allow the employee to meet a performance or conduct standard, then the employer must make such an accommodation.

The new guide addresses a number of other issues, including the application of dress codes to disabled employees and the applicability of the ADA to employees with substance abuse problems,

The new guide is written in a very accessible style, and it contains a number of examples that help illustrate the ADA’s sometimes complicated requirements. It’s worth a read by employers and employees alike.

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Posted In: Disability Discrimination

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In late September, President Bush signed the Americans with Disabilities Act Amendments of 2008, which will become effective January 1, 2009.

As we wrote in a prior post, although the ADA is, in theory, a wonderful law for disabled employees, in practice, it has been very difficult for employees to prevail in disability discrimination cases. The United States Supreme Court has issued several key decisions under the ADA which dramatically limited the scope of the law, and the lower courts, including the Eleventh Circuit (the federal appeals court with jurisdiction over the federal district courts of Georgia, Florida and Alabama) have uniformly interpreted the law in an employer-friendly fashion.

This may well change under the new law. The new law specifically expressly criticizes the Supreme Court’s ADA decisions and also takes aim at several EEOC regulations which have supported the anti-employee interpretation of the ADA. Although the new legislation is quite complex, and will need to be fleshed out by the courts before its full meaning becomes clear, it contains a number of employee-friendly provisions. Perhaps the most significant change is the new definition of the term “major life activity.” Under the new law, the definition of major life activity will be expanded to include a “major bodily function” so that if an individual has a serious medical condition that does not directly affect a major life activity, the individual will now be covered by the ADA. These covered bodily functions include the functions of the “immune system, normal cell growth, digestive, bowel, bladder, neurological, brain, respiratory, circulatory, endocrine, and reproductive functions.” The new law also includes a non-exhaustive list of the types of covered major life activities: “caring for oneself, performing manual tasks, seeing, hearing, eating, sleeping, walking, standing, lifting, bending, speaking, breathing, learning, reading, concentrating, thinking, communicating, and working.”

Continue reading "Amendments to Americans with Disabilities Act Promise New Day for Disability Discrimination Plaintiffs" »

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Posted In: Disability Discrimination

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The law of sexual harassment requires employees who believe they have been harassed to follow their employers’ anti-harassment procedures—which typically require employees to complain to a high company official in order to allow the company to remedy the situation—before they may file a sexual harassment lawsuit. A recent decision from the Eighth Circuit Court of Appeals, Adams v. O’Reilly Automotive, Inc., illustrates the perils of failing to file a timely internal complaint of sexual harassment.

In Adams, a female employee claimed that her supervisor had sexually harassed her for more than two and a half years. However she never reported the harassment to company officials, and when she did finally make a complaint through the company’s sexual harassment telephone hotline, her supervisor was almost immediately discharged.

The employee subsequently filed a sexual harassment lawsuit, but the employer moved for summary judgment. The company argued that the employee never filed an internal sexual harassment complaint despite the fact that the company had adopted and promulgated a zero-tolerance, multi-channel complaint procedure for sexual harassment claims, which the employee admitted she was aware of.

Continue reading "Sexual Harassment—Speak Now or Forever Lose your Claim" »

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Posted In: Sexual Harassment

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The Family and Medical Leave Act (FMLA) contains an anti-discrimination provision that prohibits employers from discriminating against employees “for opposing any practice made unlawful” under the FMLA. However, the text of the FMLA does not contain an express provision that prohibits retaliation against an employee simply for requesting or taking FMLA leave, and aggressive employers have tried to exploit this statutory gap by firing employees for requesting FMLA leave and then arguing that such retaliation is not prohibited under the FMLA.

This attempt was recently rejected by the Sixth Circuit Court of Appeals in Bryant v. Dollar General Corp. Although the Sixth Circuit does not have direct authority over the federal courts of Georgia, as the FMLA is a relatively new law and many of its details are still being fleshed out by the courts, it is important for Georgia employees to stay current with FMLA decisions in the other federal courts.

In Bryant, a female employee with diabetes filled out FMLA paperwork requesting a brief leave of absence. However, shortly thereafter, the employer launched disciplinary proceedings against her arising out of an alleged altercation that occurred about a month before the employee requested FMLA leave. The employee then took about a week of FMLA leave and was fired a few weeks later.

In the employee’s subsequent FMLA retaliation lawsuit, the employer argued that neither the text of the FMLA nor its regulations explicitly prohibit retaliation. According to the employer, the statutory language only prohibits discrimination against employees for opposing any practice that is unlawful under the FMLA, and the regulations only prohibit discrimination against employees who have used FMLA leave. The employer thus contended that there is no prohibition against FMLA retaliation.

Continue reading "Sixth Circuit Recognizes FMLA Retaliation Claim" »

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Posted In: FMLA

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In Landis v. Pinnacle Eye Care, LLC, the Sixth Circuit Court of Appeals recently held that an agreement to arbitrate claims is enforceable under the Uniformed Services Employment and Reemployment Rights Act of 1994 (USERRA). Although the Sixth Circuit does not have jurisdiction over the courts of Georgia, and a lower-level federal court in Georgia has held to the contrary, the Eleventh Circuit has not yet weighed in on the issue, so the case may be relevant if the issue reaches the Eleventh Circuit.

In the case, Dr. Timothy Landis signed an employment agreement in which he agreed to resolve all disputes related to the agreement through arbitration. During his employment, he was called to military duty in Afghanistan as a member of the Indiana National Guard. Although he contended that the parties had amended the employment agreement prior to his departure for Afghanistan, there was no formal amendment to the agreement. On his return from active duty, the employer refused to honor the alleged revised agreement, demoted Landis, and threatened to fire him if he had any future involvement in the military.

In response, Landis filed an employment discrimination claim under the USERRA, claiming that his employer had discriminated against him based on his military service. The lower court granted the employer’s motion to stay the case and ordered that it be arbitrated based on the arbitration clause contained in the employment agreement, holding that the USERRA did not preempt the arbitration clause.

Continue reading "Agreement to Arbitrate USERRA Discrimination Claim is Enforceable" »

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Posted In: Discrimination

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If you’ve recently lost your job, you’re not alone. Recent statistics from the Department of Labor on the level of weekly unemployment compensation claims reveal that the job market is a basket case these days, and that unemployment levels are soaring.

On August 7, the Labor Department announced that new applications for unemployment claims rose to 455,000—the highest level since March 2002. Although the number of new claims announced on August 21 fell to 432,000, claims have been above 400,000 for some time now, a level that most economists consider to be an indicator of recession.

If you’re one of the thousands of Americans who have recently lost their jobs, you don’t have to be just a statistic. Contact one of our employment attorneys to see if we can help you.

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The Americans with Disabilities Act (ADA) is a wonderful law; unfortunately, it has not proven to be easy for employees to win cases under the ADA. A recent bill introduced in the Senate to amend the ADA, if passed, may make it easier for disabled employees to prevail in disability cases.

Senate Bill 3406, entitled the ADA Amendments Act of 2008, would make it easier for an employee to claim a covered disability in a number of ways. It would expand the law’s current definition of “major life activity” to include a “major bodily function” so that if an individual has a serious medical condition that does not directly affect a major life activity, the individual would still be covered by the ADA. Additionally, the bill would make it easier to establish a “regarded as” disability. Under the proposed law, an employee claiming a regarded as disability would only need to show that he or she was regarded as having an impairment—not that the impairment was perceived to be a substantially limiting one. The proposed law would also prevent courts from taking into consideration an individual’s use of medicines and other mitigating measures in the determination of whether or not the individual is disabled.

The bill was sponsored by Senators Tom Harken (D-Iowa) and Orrin Hatch (R-Utah). Although the bill was just introduced, and President Bush opposed an earlier, similar piece of legislation that had sought to eliminate the “major life activity” requirement completely from the ADA, the bill has broad-based, bipartisan support and is being co-sponsored by 63 other senators. We’ll keep you posted.

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Posted In: Disability Discrimination

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The Equal Employment Opportunity Commission (EEOC) maintains and periodically updates a Compliance Manual, an internal guide for EEOC enforcement personnel that contains the EEOC’s interpretation of Title VII and the other discrimination laws it enforces. Although the Compliance Manual does not have the force of law, it is a very helpful resource for employees and employers as it explains the EEOC’s approach to enforcing the discrimination laws. It also contains recommendations for employees on how to identify discrimination in the workplace and address it, as well as best practices to help employers to prevent discrimination.

The EEOC recently issued an updated section of the Compliance Manual on religious discrimination. According to the EEOC’s press release accompanying the new section, it issued the new section “in response to an increase in charges of religious discrimination, increased religious diversity in the United States, and requests for guidance from stakeholders and agency personnel investigating and litigating claims of religious discrimination.”

Continue reading "EEOC Updates Compliance Manual on Religious Discrimination" »

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It seems as if the courts are giving birth to a number of important pregnancy discrimination act cases these days. In our last post, we wrote about a case from the Third Circuit Court of Appeals, in which the court held that a female employee who was fired shortly after having an abortion can assert a claim for sex discrimination under the Pregnancy Discrimination Act. In today’s post, we discuss a case from the Seventh Circuit Court of Appeals, Hall v. Nalco Co., in which the court held that an infertile female employee who was discharged as a result of taking leaves of absence to undergo infertility treatments can state a claim under the Pregnancy Discrimination Act (PDA).

In Hall, the plaintiff, a female employee who suffered from infertility, requested time off from work to undergo in vitro fertilization (IVF). The company gave her a month-long leave of absence to have the IVF. Several months after she returned from her leave, she requested an additional leave to undergo another IVF because the first procedure had been unsuccessful. Just after she requested her leave, the company, which was in the process of a reorganization, advised the plaintiff that that she was going to be laid off in connection with the reorganization. Although the company did not tell the plaintiff the specific reason for her discharge, the evidence later revealed that the decision to select her for termination was due to her excessive absenteeism related to her “infertility treatments.”

Continue reading "Female Employee Fired for Having IVF Procedure has Claim for Pregnancy Discrimination" »

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Posted In: Pregnancy Discrimination

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In a case of first impression from the Third Circuit Court of Appeals, Doe v. C.A.R.S. Protection Plus, Inc., the court held that a female employee who was fired less than a week after having an abortion has a claim for discrimination under the Pregnancy Discrimination Act.

Plaintiff worked as a graphic designer for a used car insurer. About a year after she was hired, she learned she was pregnant and told her supervisor, who was also a part-owner of the company. Due to some problems with her pregnancy, she requested time off to take some medical tests, which the company approved. Eventually, plaintiff was advised by her physician that her fetus had severe deformities, and he recommended that she terminate her pregnancy. Plaintiff contended that her husband called the company, advised it that she would be terminating her pregnancy and requested a one week vacation for her to have the procedure. Although plaintiff contended her vacation request was approved, she was discharged less than a week after she had the procedure.

In response, plaintiff filed a gender discrimination case under the Pregnancy Discrimination Act (PDA), alleging that she was discharged because of her abortion, which, she argued, constituted pregnancy discrimination under the PDA.

Continue reading "Employee Fired after Having an Abortion has Claim for Pregnancy Discrimination" »

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Posted In: Pregnancy Discrimination

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It has been a good Supreme Court term for employees. In a recent post, we wrote about the Supreme Court’s decision in CBOCS West, Inc. v. Humphries, in which the Court held that 42 U.S.C. § 1981 (Section 1981) encompasses retaliation claims even though the text of the statute contains no reference to retaliation. In today’s post, we discuss another retaliation decision by the Supreme Court, Gomez-Perez v. Potter, in which the Court held that under the Age Discrimination in Employment Act (ADEA), a federal employee who is a victim of retaliation in response to the filing of a complaint of age discrimination may assert a retaliation claim under the federal-sector provision of the ADEA.

In the case, Myrna Gomez-Perez was employed by the United States Postal Service (USPS) and was 45 years old at the time when she requested a job transfer. When her supervisor rejected her request for a transfer she filed an internal age discrimination complaint, alleging that the denial of her transfer request was based on her age and therefore discriminatory. Ms. Gomez-Perez claimed that in response to her complaint, she was retaliated against by the USPS in various ways, including groundless complaints about her work and a significant reduction in her work hours.

Continue reading "Supreme Court Wrap-Up II: Court Finds Implied Claim of Retaliation in Age Discrimination Act" »

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Posted In: Retaliation

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The blawgosphere has been buzzing about the supposed death of punitive damages in light of the Supreme Court’s decision in Exxon Shipping Co. v. Baker, in which the Court held that, as a matter of federal maritime law, the maximum amount of a defendant’s liability for punitive damages is equal to one times the amount of compensatory damages awarded.

The employment discrimination bar has been particularly concerned about Exxon’s impact in employment cases. For example, the Workplace Prof Blog notes that the 1:1 ratio “if applied to employment cases, would have devastating impact.”

We don’t believe that Exxon will have a significant impact on employment discrimination cases. First and perhaps most significant, the case is not controlling precedent in the employment discrimination context, as it was decided under federal maritime law, and the court relied heavily on state statutes in arriving at the 1:1 ratio. As neither of these sources of law has any bearing on employment discrimination law, the direct precedential effect of Exxon should be limited.

Continue reading "Punitive Damages in Employment Discrimination Cases after Exxon: The Death of Punies has been Greatly Exaggerated" »

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Posted In: Discrimination

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