Working Hard For Working People

Is an extended leave of absence a reasonable accommodation under the Americans with Disabilities Act when FMLA Leave Expires?

On August 27, 2009, the EEOC filed an interesting case against United Parcel Service (UPS) setting forth a class action disability discrimination claim in the Northern District of Illinois. (EEOC v. UPS, 09-CV-5291) Specifically, the Complaint alleges that when employee Trudi Momsen was unable to return to work following the exhaustion of her 12-week FMLA leave, UPS could have reasonably accommodated the employee by extending her leave, rather than terminating her employment. The Complaint continues, noting that while UPS has a 12-month leave of absence policy, the inflexible nature of that leave fails to accommodate certain disabled employees. The full complaint is available here: Download 09-cv-05291.doc.

Several years ago, the EEOC brought a reasonable accommodation complaint against UPS in the 8th Circuit that is relevant in this particular instance. In Battle v. UPS, 438 F.3d 856, the Court noted that FMLA does not require reasonable accommodations, therefore an employee seeking reasonable accommodation due to a condition which prohibits the individual from returning to work following the exhaustion of FMLA must seek protection as a disabled individual, entitled to reasonable accommodation.  

A similar case was brought before the Seventh Circuit in 2007, alleging that a reasonable accommodation for a disabled employee who had exhausted his or her FMLA entitlement was additional leave. In an unpublished decision, the Court granted summary judgment in the Employer's favor because the employee had failed to establish a disability. See Hamm v. Exxon Mobil Corp., 223 Fed. Appx. 506 (7th Cir. 2007).

The law relevant to the EEOC's and Momsen's Complaint against UPS is anything but settled, as previous cases have failed to establish the elements of "disability." It will be interesting, however, to see whether and how this case affects FMLA entitlement and administration. 

Retaliation for Speech Not a Violation of Public Employee's First Amendment Rights

The Seventh Circuit concluded in Milwaukee Deputy Sherriff's Ass'n v. Clarke, that Sherriff Clarke did not violate the public employee's (Deputy Schuh's) First Amendment right to free speech, even though he retaliated against Schuh for speaking on a matter of purely private concern. In that case, Clarke posted a message which he alleged was "inspirational." Several deputies took offense, including Schuh, believing that the message implied the deputies were cowardly. Schuh responded by a two-sentence comment in the Association's monthly newsletter, which added some words to Clarke's posting, hinting that Clarke was cowardly. Days after the newsletter came out, Clarke created a new "assignment" which required foot-patrol of Milwaukee's most dangerous neighborhood by himself and without a patrol car, and assigned Schuh to the route, further requiring that he take the City bus to and from his daily assignment (an assignment the Court noted was one of questionable public utility). The Cour noted that the First Amendment to the US Constitution prohibits a municipal employer from retaliating against an employee engaged in protected free speech and applied the three part test to determine whether Clarke violated the employee's rights: 

(1) the employee’s speech must be constitutionally protected; 

(2) the employer’s action must be motivated by the constitutionally protected speech; and 

(3) if the action was retaliatory, we consider whether the employer has demonstrated that it would have taken the same action irrespective of the employee’s speech.

The Court then noted that Clarke's action was childish and petty, and was absolutely retaliatory, but determined that Schuh's message was not "protected speech" unless he was speaking as a citizen on a matter of public concern. Schuh was speaking as a citizen, but the content, form, and context of his posted message, as well as his motivation, determine whether the matter is one of public concern. Schuh's message failed to meet teh public concern test because matters, to the extent that even speech on a subject that would otherwise be of interest to the public, will not be protected if the expression addresses only the personal effect upon the employee, or if the only point of the speech was to further some purely private interest.

Liability for Discrimination May be Imputed to the Employer When Remedial Measures are Inadequate.

In the recent case of EEOC v. Central Wholesalers, case no. 08-1181 (4th Cir. 7/21/2009)(M0340235), the Fourth Circuit dealt with an EEOC complaint to impute liability for gender and racial discrimination upon an employer.  The discrimination in the case consisted of subjecting the plaintiff to an environment of frequent racial and gender based slurs, the presence of pornography at the office, as well as one pornographic screen saver.  The employer in the case took the employee's complaint, and took some remedial measures such as erasing the screen saver, holding meetings with co-workers, and having a supervisor walk around the work area for pornographic materials.  The gender and race based harassment continued despite the employer's attempted remedial measures.  The Fourth Circuit held that a jury question was created concerning whether liability for the harassment can be imputed to the employer mainly because the employer failed to discipline any of the employees involved in the harassment, but also because the employer was sometimes slow in responding to the plaintiff's complaints of harassment.  The case suggests that even when an employer takes remedial measures to address harassment or discimination at the workplace, it may still face liability if it doesn't discipline the employees involved, and the remedial measures prove to be ineffective.

Teachers at Religious Schools Not Protected by Wisconsin Fair Employment Laws

In Coulee Catholic Schools v. LIRC, the Wisconsin Supreme Court held, in a 4-3 decision, that teachers at religious schools are not protected by Wisconsin's anti-discrimination laws. In this case, Wendy Ostlund, a first grade teacher in a Catholic school district, filed an age discrimination case against her employer when she was terminated from her employment as the result of a school closure within the District which led to the layoff of ten teachers. Ostulund's position was filled by a teacher 20 years her junior.  The school responded that Ostlund's position was a "ministerial" one, and that the suit was therefore barred by the First Amendment.

The Court noted that courts have universally recognized that the First Amendment protects houses of worship from state interference with the decision of who will teach and lead a congregation and that every jurisdiction to consider the question has adopted what had been called the "ministerial exception,” which prevents the government from interfering with the operations of a church because the "perpetuation of a church's existence may depend upon those whom it selects to preach its values, teach its message, and interpret its doctrines both to its own membership and to the world at large." In evaluating whether the position is a "ministerial one" the inquiry necessarily requires a court to determine whether a position is important to the spiritual and pastoral mission of the church.

 

In so concluding that the ministerial exception applied to Ostlund and other religious school teachers, the Court considered the doctrines of the Catholic church relating to Catholic education and paid very close attention to the duties of Ostlund, which included incorproating elements of Catholic theology into all subjects and lesson plans she taught her first-grade students. Additioanlly, Ostlund was responsible for planning a monthly mass with her class. The Court concluded that Ostlund's position was a ministerial one and was quintessentially linked to the organization's mission. 

 

Despite recognizing the State's interest in anti-discrimination laws, the Court concluded that both the Free Exercise Clause of the First Amendment of the United States Constitution and the Freedom of Conscience Clauses in Article I, Section 18 of the Wisconsin Constitution preclude employment discrimination claims under §§ 111.31 to 111.395 of the Wisconsin Fair Employment Act for employees whose positions are important and closely linked to the religious mission of a religious organization. 

NLRB May Soon Have Full Compliment of Members

It seems likely that the National Labor Relations Board will soon have a full compliment of five members.  The Board has been working with only two members since December 16, 2007.  This has led to a recent rash litigation on whether the Board had authority to issue decisions during the last eighteen months. 

By tradition, three of the five Board seats are filled by individuals of the same political party as the President in office.  Currently there is one Democrat and one republican on the Board.  In April, the President nominated two Democrats, Craig Becker and Mark Gaston Pearce, to fill the compliment of Democrats on the Board. On July 9th, the President Obama nominated Brian Hays to fill the Republican vacancy on the Board.  It was unlikely that the Democratic nominees would be confirmed absent a nominee for the Republican spot. Now that all the names have been submitted to the Senate, the Board may finally get back to full strength.

The absence of Board members has been particularly problematic.  In the fall of 2007, the Republican Board issued a slew of anti-labor decisions, many of which upset decades of Board precedent.  Absent a full Board it has not been possible for the Agency to reconsider or explain those decisions.  With the new Board, these decisions can be reevaluated if not overruled. 

 

Employer Cannot Apply Email Policy in Discriminatory Manner Against Union Emails

In the recent decision of Guard Publishing Co. v. NLRB, Case No. 07-1528 (7/7/2009), the District of Columbia Circuit considered a decision by the NLRB, which considered whether an employer violated the Act by disciplining an union officer for using the company email system for union business.  The Board held that the employer could not discipline the union officer for email usage that was not prohibited on the fact of the company policy.  The Board also held the employer could discipline the union officer for uses prohibited by the company policy, even though individual employees who used in a manner prohibited by the company policy was not disciplined, because the union officer's solicitation was on behalf of an organization, rather than an individual.

The Court partially reversed the Board, and held that each piece of discipline issued against the union officer was a unfair labor practice.  The Court first agreed with the Board that an employer cannot discipline an union officer for email usage that is not prohibited by the company email policy.  The Court then stated that in general an employer cannot single out the use of company email for union business for discipline, when other employees are not disciplined for personal use of email, even when the personal use is for charitable purposes.  The Court reversed the Board's reliance on the distinction between solicitation on behalf of an individual or an organization, because the company's email policy does not make the distinction, so that the distinction relied upon by the NLRB was a post hoc rationalization.

Congress Considering Laws Strengthening the WARN Act.

Several congressmen introduced legislation on June 25, 2009, that would bolster the WARN Act (Worker Adjustment Retraining and Notification Act), to lengthen the notification period while increasing the penalty for giving insufficient notice and increasing teh Act's reach. Under the Act, employers must give 60 days notice of plant closings or mass layoffs if a certain number of employees are affected, and an employee is awarded damages based on what he or she would have earned during the period to which they were entitled notice (the number of workdays he or she would have had during the 60 day period, minus the number of actual days the employee had notice). The new proposal would extend the notice period to 90 days and would trigger the notice provisions with respect to layoffs where the employer has 25 employees (as opposed to 50) of an employer's workforce of at least 75 employees (down from 100). The legislation also provides for double damages.

Lehman Brothers Pension Plan Taken Over by PBGC

A bankruptcy court has agreed to the PBGC taking over the Lehman Brothers Pension Plan.  The PBGC had to step in to become the sponsor of the plan because the firm's assets have been liquidated and none of the buyers took on responsibility for the pension plan.  The pension plan covers 22,000 workers and retirees of Lehman Brothers.

The Lehman Brothers Pension Plan was short $115 million when the plan ended on December 12, 2008.  According to the Pension Protection Act of 2006, the maximum guaranteed pension PBGC can pay is determined by the legal limits in effect on the date of the plan sponsor's bankruptcy or September 15, 2008.

More information regarding the takeover of the Lehman Brothers Pension Plan can be found at www.pbgc.gov

 

NLRB May Delegate Authority to Seek 10(j) Relief to the Office of the General Counsel

Under Section 10(j) of the National Labor Relations Act, 29 U.S.C. 160(j), the authority to decide whether to seek injunctive relief ordinarliy belongs to the National Labor Relations Board.  When the Board's membership was reduced to two members, it delegated the authority to seek 10(j) relief to the Office of the General Counsel.  In Muffley v. Spartan Mining Co., #08-1973 (7/1/2009), the employer raised before the Fourth Circuit the argument that the request for 10(j) relief was inappropriate, because the Board could not delegate the decision to seek 10(j) relief to the General Counsel.

The Fourth Circuit rejected the employer's argument.  The Court acknowledged that there is a distinction between a duty of the Board and a fundamental power of the Board, and that a fundamental power of the Board (such as the power to decide administrative adjudications) cannot be delegated.  However, the court also ruled that the decision to seek 10(j) relief is a duty rather than a fundamental power since the decision is one of exercising prosecutorial discretion, with the District Court the ultimate decision maker on whether 10(j) relief should be granted.   Therefore, under the language of 29 U.S.C. 153(d) that the general counsel shall have such other duties as the Board may prescribe, the power to decide whether to seek 10(j) relief may be delegated to the Office of the General Counsel.

Supreme Court Finds that Avoiding Disparate Treatment Discrmination May Itself Form Basis of Discrimination

Yesterday, the Supreme Court issued an eagerly anticipated decision in Ricci v. DeStefano, 557 U.S. ____ (June 29, 2009).  The case is notable for both its subject matter, and due to the fact that Supreme Court Nominee Sonya Sotomayor participated in the underlying, appellate decision.  The case involved examinations to qualify from promotion in the fire department of New Haven, Connecticut.  After 118 firefighters took the exam, it was shown that white candidates had outperformed minority candidates.  There were some substantial doubts about whether or not the tests themselves were discriminatory.  Some minority applicants threatened to sue based on the statistical racial disparity in test results.  As a result of such concerns, the City threw out the test and refused to promote anyone.  A group of white and Hispanic firefighters sued.

Title VII of the Civil Rights Act of 1964, prohibits employment discrimination on the basis of race, color, religion, sex, or national origin. Title VII prohibits both intentional discrimination (known as “disparate treatment”) as well as practices that are not intended to discriminate but in fact have a disproportionately adverse effect on minorities (known as “disparate impact”).  At issue in Ricci, was whether the City could be held liable under Title VII where it invalidated the promotional test results (disparately treating white applicants) based on a belief that the examination itself had a disparate impact on minority applicants.

The court found that avoiding unintentional discrimination cannot justify intentional discrimination.  Because Title VII bars employers from taking adverse action “because of race”, it bars employers from taking good faith actions to avoid disparate impact discrimination.  “Allowing employees to violate the disparate-treatment prohibition based on a mere good-faith fear of disparate impact liability would encourage race-based action at the slightest hint of disparate impact.”  Id. at 22.  The Court found that an employer cannot escape liability unless it shows “a strong basis in evidence of disparate impact liability.”  Id. at 24.  “Examinations like those administered by the City create legitimate expectations on the part of those who took the tests.” Id. “Restricting an employer’s ability to discard test results (and thereby discriminate against qualified candidates on the basis of their race) also is in keeping with Title VII’s expression protection of bona fide promotional examinations.”  Id.   Because the court found that the City did not have an “objective, strong basis in evidence to find the tests inadequate,”  it could not act out of a fear of disparate treatment liability.

The Court’s decision raises some serious issues about what to do when problems of race discrimination are raised by employees.  If an employer’s action has a disparate impact on minority employees, the employees will not be able to simply address the issue with their employer or get the employer to retract the discriminatory action.  The Court’s decision makes it more difficult for employees and employers to resolve such discrimination short of litigation.  In the guise of preventing discrimination, the decision makes it more difficult to resolve discrimination once it occurs.