CHARNY & ASSOCIATES

Discriminating Supervisors and Employer Liability

2011-03-08T11:16:00.000-05:00

The Supreme Court just answered the question of whether an employer can be held responsible for employment discrimination based on the discriminatory animus of an employee who influenced, but did not make, the ultimate employment decision.

In Staub v. Proctor Hospital (March 1, 2011), an 8-0 decision written by Justice Scalia, the Supreme Court found that the employer will be held liable for such discrimination in the workplace if: (1) a supervisor of the worker takes a step (writing up a negative evaluation, for example) that is done for a biased reason; (2) that supervisor intends to get the worker fired, demoted or otherwise penalized; and (3) the supervisor’s step is found to be the proximate cause of the ultimate decision -- even if the executive or supervisor who actually carries out the firing or other penalty is someone else, and that person was not at all biased.

The Supreme Court posed the question as follows:

The central difficulty in this case is construing the phrase “motivating factor in the employer’s action.” When the company official who makes the decision to take an adverse employment action is personally acting out of hostility to the employee’s membership in [a protected class such as military service, race or gender], a motivating factor obviously exists. The problem we confront arises when that official has no discriminatory animus but is influenced by previous company action that is the product of a like animus in someone else.

The Court answered the question in favor of the employee, finding that the employer can be held liable for discrimination:

[I]f a supervisor performs an act motivated by [illegal] animus that is intended by the supervisor to cause an adverse employment action, and if that act is a proximate cause of the ultimate employment action, then the employer is liable under [the statute].

The Court did provide one caveat, finding that if the ultimate decision maker conducts his/her own investigation and then takes the adverse employment action "for reasons unrelated to the supervisor’s original biased action" then the employer is not liable.

If you have any questions about a workplace issue, call Charny & Associates, 845-876-7500.

New York's Requirement That You Know Your Rate of Pay

2011-02-07T20:50:00.000-05:00

New York State has always had strict laws related to the employer's responsibility to provide information to employees about their rate of pay and the basis for their paycheck. These requirements were made even stronger effective December 10, 2010, when Governor David A. Paterson signed into law the New York State Wage Theft Prevention Act (the Wage Act).

The Wage Act amends New York Labor Law (NYLL) Section 195 with respect to wage notice requirements and requires that employers provide such notices to each employee within 10 business days of hire and on or before February 1st of each subsequent year, in English as well as the employee's primary language, with the following additional information: (i) the basis of the employee's pay (e.g., hourly, weekly, salary, commission), (ii) any allowances the employer intends to claim as part of the minimum wage (e.g., tip or meal allowances), (iii) the employer's name (including d/b/a names), physical and mailing addresses and telephone number, and (iv) any other information the Commissioner of Labor deems material and necessary.

Every New York State employee's pay stub should also include a listing of gross and net wages and deductions, as well as the dates of work covered by the wage payment; rate of pay and basis of the rate of pay; any allowances claimed as part of the minimum wage; and, for overtime non-exempt employees, the regular pay rate and regular hours worked and overtime pay rate and overtime hours worked.

These changes come with increased penalties on employers if they fail to comply with the Wage Law. Employers who fail to provide employees with notices or wage statements in compliance with amended Section 195 are subject to a civil action by the affected employee with penalties of $50 per week for notice violations, up to $2,500, and $100 per week for wage statement violations, up to $2,500, together with costs, reasonable attorney's fees, and other relief, including injunctive and declaratory relief.

Another significant change in the Wage Act is the penalty for failing to pay proper wages due -- instead of 25% additional, the law now mandates 100% additional, which is the same as federal law.

These new requirements all become effective on April 9, 2011.

If you have any questions about these notice requirements, call Charny & Associates for more information.

Independent Contractor or Employee?

2011-01-28T08:25:00.002-05:00

The New York State Court of Appeals, New York's highest court, recently issued an interesting decision that provides a simple explanation of the difference between an employee and an independent contractor. In sum, the Court found that the question was how much control the employer has over the individual both as to the methods by which they do their work and the form and content of their work results.

In the case, In Re Empire State Towing Association (Octoboer 2010), the Court considered an attorney who was hired by an organization as its Executive Director. The facts included:

The Executive Director did adminstrative duties such a staffing a phone, mailings, and coordinated publication of the group's journal;
He attended board meetings, maintained a bank account, and had check writing authority up to $500;
The Executive Director performed all these services from his own law office, was free to set his own schedule, and was not working exclusively for the association; and
Several years ago a part-time assistant was hired to help the Executive Director who was considered an employee of the association.

The Court applied the "control" test to decide whether the Executive Director was an employee or an independent contractor. This test looks at whether the employer (here the association) exercises control over the results produced or the means used to achieve the results.

The Court concluded that the few things the association did that could be considered "control" over the Executive Director were incidental and not indicative of employee status:

"Although the record before us extensively details O'Connell's duties, it lacks substantial evidence of any control exercised by the association over O'Connell. The requirement that the association's treasurer had to approve and co-sign on checks for over $500 does not support a finding that O'Connell was an employee. The check approval authority was a form of incidental control over results that is 'a necessarily wise business decision' (Matter of Ted Is Back Corp., 64 N.Y.2d at 725). Moreover, the fact that O'Connell had to submit periodic reports and attend meetings 'is a condition just as readily required of an independent contractor as of an employee and not conclusive as to either' (Matter of Hertz Corp., 2 NY3d at 735)."

This case was in the context of unemployment insurance compensation. While the tests are similar depending on the context (unemployment, workers compensation, pension and/or health benefits, employment discrimination), they are different and always fact specific.

Call Charny & Associates (845-876-7500) if you have questions about your workplace issue.

Retaliation and "Temporal Proximity"

2011-01-06T09:48:00.005-05:00

Here's an interesting fact pattern from a recent federal appeals court case (Walid el-Sayed v. Hilton Hotels (10-453-cv, 12/17/2010)):

Employee complains of a discriminatory work environment based on his race and national origin. Employer begins an investigation into the employee and discovers that the employee had failed to report a prior job with one of the employer's other hotels in his job application. Three weeks later the employee is discharged from employment. The employee claims it was in retaliation for complaining of the discriminatory hostile work environment. The employer claims it was because the employee had ommitted the prior-employment information from his job application.

As discussed below, the Court dismissed the case finding that mere "temporal proximity" is not sufficient to prove a case of retaliatory discharge.

Both federal and state law protect employees from being retaliated against because they file complaints of discriminatory conduct about themselves or others. The courts use a "shifting burdens" standard to determine if their are sufficient facts to allow a retaliation claim to go to a jury. This shifting burdens standard requires the employee to make out, first, a "prima facie" case which includes four components:

(1) The employee was engaged in protected activity, such as complaining of discriminatory conduct;

(2) The employer was aware of that activity;

(3) The employee suffered an adverse employment action; and

(4) There was a causal connection between the protected activity and the adverse employment action.

Once the employee makes out a prima facie case, the burden then shifts to the employer to: articulate a legitimate non-retaliatory basis for the adverse employment action. Employers often rely upon their personnel manuals for proof that their is a legitimate non-discriminatory basis for the adverse employment action.

Once the employer satisfies that burden, the burden shifts again, back to the employee to prove that the articulated reason for the adverse employment action is a lie -- that it is "pretext." If that burden is met, then the case is allowed by the courts to proceed to a jury.

In the recent Second Circuit case, the Court found that the "temporal proximity," that is the short period of time between the complaint of discrimination and the adverse employment action is sufficient to show the fourth element of the prima facie case (a causal connection between the protected activity and the adverse employment action).

The Court found also that the employer had satisfied its burden when it showed that the omission in the job application was a dischargable offense.

Once the burden returned to the employee to show pretext -- that the employer's reason is not the real reason --, the Court dismissed the case finding that temporal proximity, while enough to satisfy the prima facie case burden, was insufficient, with nothing else, to prove pretext.

The Court explains:

"The temporal proximity of events may give rise to an inference of retaliation for the purposes of establishing a prima facie case of retaliation . . ., but without more, such temporal proximity is insufficient to satisfy appellant's burden to bring forward some evidence of pretext."

Keep in mind that these facts have two interesting distinctions. First, there was no question that the employee engaged in the misconduct (omitting the information on his job application) that the employer used as its justification for the discharge. Second, the employee conceded that omitting this information from his job application was a dischargable offense.

Nathaniel

The New York State Division of Human Rights: The Importance of Electing Your Remedies

2010-11-12T16:56:00.001-05:00

If you have a claim of discrimination in New York, be careful before you rush to file your charge of discrimination with the NY State Division of Human Rights. Under New York's Human Rights Law (Article 15 of the NY Executive Law), you actually have a choice of where to file your charge of discrimination, and your decision has significant ramifications.

Under the Human Rights Law, you can either: (i) file a charge of discrimination with the Division of Human Rights (the DHR), which you have to do within one year of the discriminatory conduct (Section 297(1) of the HRL); or (ii) file a lawsuit in court alleging the discriminatory conduct (Section 297(9) of the HRL), which you have to do within three years of the discriminatory conduct. You cannot do both -- and by choosing the first option (filing a charge of discrimination with the DHR) you are giving up important rights, such as the right to a jury trial and the trial to enhanced damages set by a jury, instead of an administrative law judge.

There are, on the other hand, some good reasons to stick with the DHR. First, you don't need a lawyer -- filing a charge of discrimination with the DHR is easy and quick. The DHR will investigate your charge and lead you through the process without your needing counsel to advise you along the way. Also, the DHR process is quick, well, quick as compared to litigation in state or federal court. You can expect to have the matter investigated and considered within a year or so. Finally, the DHR process is entirely free. You pay nothing to file the charge and you pay nothing for it to be processed and investigated. State or federal court litigation costs money, not just in possible attorneys fees, but also in filing fees and litigation costs such as depositions.

But, if you opt to go with the DHR charge and not the lawsuit, be aware that you have selected your remedy and you cannot also file a lawsuit. If the DHR finds that there is no probable cause for discrimination, the DHR will dismiss your charge – and you will have no remaining claims under state law. If, on the other hand, you opt to file a lawsuit, you have far greater control – you or your counsel will be able to prosecute the litigation and the Court/Jury, not the DHR will decide whether or not you've been discriminated against.

If you've already filed a charge of discrimination with the DHR, do not fret -- there are available procedures to "annul" your election of remedies.

The NY State DHR procedures are complicated and the choices you make along the way have significant ramifications on your rights. If you have any questions, give Charny & Associates a call (845-876-7500) – we will help you determine how best to proceed with your claims of discrimination.

Nathaniel

Misconduct and Eligibility for Unemployment Compensation

2010-11-04T17:50:00.000-04:00

Here's a common question: I was fired from my job because of alleged misconduct. Am I entitled to unemployment compensation? The answer is: maybe.

In New York, a discharged employee is entitled to unemployment compensation unless they either quit or engaged in misconduct. Misconduct for purposes of unemployment compensation is defined as "willful and wanton disregard of the employer's interest." (In re Wlos, 839 N.Y.S.2d 330 (NYAD 2007)). Just because you did not get along with your boss is not enough for a finding of misconduct. Even where a former employee's "personal traits provided a basis for discharge, but unless those traits rise to the level of misconduct, they are not a proper basis for the denial of unemployment insurance benefits." (Llano v. Levine, 377 N.Y.S.2d 808 (NYAD 1976)). Hence, just because the boss "didn't like your attitude and you didn't like hers," Raven v. Levine, 338 N.Y.S.2d 183 (NYAD 1972), a finding of misconduct is not warranted.

In order to find misconduct, the unemployment compensation board will look to whether or not the alleged misconduct adversely affected the employer's interest. For example, if your job is taxicab driver and you refuse to accept a fare, you will be found to have engaged in misconduct. (AB A-750-1284).

Another thing to consider is whether your conduct would "sustain a finding that the claimant should have realized that her conduct would probably provoke her discharge and there is certainly no substantial evidence to support an inference that the claimant desired to have her employment cease." (Raven, supra). This notion of engaging in conduct that "provoked" your discharge is found only when the employee knew or should have known that his/her conduct would result in dismissal and engaged in the conduct anyway.

And what if the employer is claiming actual misconduct but it is just not true? Well, the unemployment compensation process affords you the opportunity to participate in a hearing (usually by telephone) with an administative law judge, who will take testimony from both the employee and the employer and determine whether or not the misconduct occurred.

The question of whether or not conduct in the workplace rises to the level of "misconduct" or "resignation" is a fact specific question. Give Charny & Associates a call for a free consultation (845-876-7500) and we will let you know what we think and whether you have a claim for unemployment compensation benefits.

Defamation in the Workplace

2010-11-03T10:23:00.000-04:00

Here's a common question: Can I take legal action against my employer for defamation in the workplace? The answer is: maybe.

Under New York law, the elements of a defamation claim are:

(i) a false statement; (ii) published to a third party without privilege or authorization; (iii) with fault amounting to at least negligence; (iv) that caused special harm or defamation per se.

In order to have a claim for defamation, the employee must be able to prove all four of these elements. In the employment context, the most difficult element is the second element: whether or not a special privilege applies to the communication.

New York Courts have long recognized a "common interest" privilege for otherwise defamatory statements within the employment context. (Lieberman v. Gelstein, 80 NY2d 429 (1992)). So, for example, a committee determining whether or not a college professor is going to receive tenure or the managers of a business making personnel decisions have some leeway in what they can say about the person, even if it is false. The rationale for this privilege is that "so long as the privilege is not abused, the flow of information between persons sharing a common interest should not be impeded." Constantine v. Teachers College, 116528/08 (2010).

But this leeway has limits. When the offending statements are made "with malice," which means "with spite or ill will," the privilege is waived and you may have a claim for defamation. Similarly, the privilege is waived if the statements are "made with a high degree of awareness of their probable falsity" (Liberman) and as with "malice," there will be no privilege protection and you may have a claim for defamation.

If you have a possible claim for defamation in the workplace, call Charny & Associates (845-876-7500) and let us give you a free consultation -- we'll listen to the facts and let you know what we think.

Ollie's Barbecue and the Interstate Commerce Clause

2008-10-02T13:12:00.001-04:00

If someone asked me what I considered to be one of the most important cases decided by the U.S. Supreme Court, I would answer Ollie's Barbecue. (The case's official name is Katzenbach v. McClung (1964).)

It was the year 1964 and Ollie's Barbecue had been a local landmark in Birmingham, Alabama since 1927, when it first opened; loved by locals for its signature barbecue sauce and best-of-the-south barbecue pork and beef. And, also since it opened in 1927, Ollie's Barbecue had a strict rule against serving Blacks in the dining room. At Ollie's Barbecue, it was "take out service only for Negroes."

The United States Congress passed the Civil Rights Act of 1964, which was effective on July 2, 1964, and which prohibited such disparate treatment based on race. The law states:

"[A]ll persons shall be entitled to the full and equal enjoyment of the goods and services of any place of public accommodation without discrimination or segregation on the ground of race, color, religion, or national origin." Section 201(a) of Title II.

The Civil Rights Act specifically applied to any "restaurant . . . principally engaged in selling food for consumption on the premises . . . if it serves or offers to serve interstate travelers or a substantial portion of the food which it serves . . . has moved in commerce." Sections 201 (b) (2) and (c).

Ollie's Barbecue refused to desegregate its dining room and refused to serve anyone but whites. The restaurant did not deny that it was "principally engaged in selling food for consumption on the premises." Nor did the restaurant deny that it "serves or offers to serve interstate travelers." What Ollie's Barbecue argued was that Congress exceeded its authority under the U.S. Constitution in even passing the Civil Rights Act of 1964 and attempting to have it apply to a small local restaurant like Ollie's Barbecue.

The Supreme Court disagreed and found that the Congress acted within its powers -- and Ollie's Barbecue was forced to serve non-whites in its dining room.

The basis of the Supreme Court's decision speaks to the important question of the power of congress to regulate private activities. The U.S. Constitution, written on behalf of "We the People," gives Congress certain powers and states explicitly in the 10th Amendment that the federal government enjoys only those powers expressly authorized by the U.S. Constitution and that "The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people." In other words, if "We the People" did not authorize the federal government to regulate in a certain area, such attempts at regulation are unconstitutional.

In Article I, Section 8 of the Constitution, "We the People" gave Congress the authority "[t]o regulate Commerce . . . among the several States" and Clause 18 of the same Article grants Congress the power "[t]o make all Laws which shall be necessary and proper for carrying into Execution the foregoing Powers . . . ."

Ollie's Barbecue argued that it was a small local restaurant that barely impacted interstate commerce. Ollie's Barbecue argued to the Supreme Court that "We the People" did not intend to give Congress the authority to regulate such a business.

Desperate to continue their segregationist ways, Ollie's Barbecue argued that even if the law may be appropriately applied to some restaurants it was unconstitutional for Congress to say it applied to all restaurants without a case-by-case analysis. The Supreme Court rejected this argument as well.

"[Ollie's Barbecue" contend[s] that Congress has arbitrarily created a conclusive presumption that all restaurants meeting the criteria set out in the Act 'affect commerce.' Stated another way, they object to the omission of a provision for a case-by-case determination - judicial or administrative - that racial discrimination in a particular restaurant affects commerce . . . . Here, [] Congress has determined for itself that refusals of service to Negroes have imposed burdens both upon the interstate flow of food and upon the movement of products generally. Of course, the mere fact that Congress has said when particular activity shall be deemed to affect commerce does not preclude further examination by this Court. But where we find that the legislators, in light of the facts and testimony before them, have a rational basis for finding a chosen regulatory scheme necessary to the protection of commerce, our investigation is at an end. The only remaining question - one answered in the affirmative by the court below - is whether the particular restaurant either serves or offers to serve interstate travelers or serves food a substantial portion of which has moved in interstate commerce."

The Supreme Court concluded with a generous declaration about the constitutionality of the Civil Rights Act of 1964:

"The power of Congress in this field is broad and sweeping; where it keeps within its sphere and violates no express constitutional limitation it has been the rule of this Court, going back almost to the founding days of the Republic, not to interfere. The Civil Rights Act of 1964, as here applied, we find to be plainly appropriate in the resolution of what the Congress found to be a national commercial problem of the first magnitude. We find it in no violation of any express limitations of the Constitution and we therefore declare it valid."

Things turned out just fine for Ollie's Barbecue, notwithstanding its contention before the Supreme Court that serving Blacks in the dining room would devastate their business. In fact, business thrived for another 35 years, until Ollie's Barbecue moved to a suburban location in 1999, and closed down two years later, in 2001.

Can you quit your job and still get unemployment compensation benefits?

2008-09-21T22:37:00.000-04:00

If an employee is facing certain discharge from employment, can s/he quit, instead of being fired and still receive unemployment compensation benefits?

The quick answer is yes:

"[A] claimant [for unemployment insurance compensation] who voluntarily leaves his or her position in the face of disciplinary charges may qualify for unemployment benefits if the actions did not amount to misconduct." (Claim of De Benedetto (NYAD 3rd Dept. 1997)).

But, it's not that simple.

There are two provisions in New York State's Unemployment Insurance Law which speak to this question. One provision states that employees are not entitled to unemployment compensation benefits after an employee's "voluntary separation without good cause from employment." (Unemployment Insurance Law § 593(1)(a)). This means that a worker cannot quit his/her job and receive unemployment compensation benefits unless he/she quit for "good cause."

Further down in the same section of the Unemployment Insurance Law, it states that an employee is not entitled to unemployment compensation benefits if they lose unemployment "through misconduct in connection with his or her employment." (Unemployment Insurance Law § 593(3)).

In many cases where an employee quit his/her job instead of being terminated for misconduct the New York courts have held the employee ineligible for unemployment compensation benefits -- because they engaged in misconduct and were, therefore, not eligible under § 593(3). For example, where an administrative coordinator for a college quit her job after being warned repeatedly about tardiness and absences, and after she is given a final warning and is facing almost certain termination, the court held that she was ineligible for benefits.

"Inasmuch as a resignation in anticipation of discharge does not constitute good cause for leaving one's employment, the Board's decision that claimant left her employment under disqualifying circumstances will not be disturbed." (In re Seiglar (NYAD 3 Dept. 2008).

Similarly, where a toll collector quit after being advised that his supervisor wished to terminate his employment, the court found him ineligible for benefits.

"Substantial evidence supports the Board's decision disqualifying claimant from receiving unemployment insurance benefits because he voluntarily left his employment without good cause. The evidence is undisputed that claimant left his position as a toll collector after he was informed that his manager wished to terminate him, but prior to receiving an official notice of termination. In view of this, we find no reason to disturb the Board's decision." (Claim of Wilson (NYAD 3 Dept. 1996).

However, New York Courts allow employees to resign in lieu of termination provided that the underlying offense which formed the basis of the likely discharge is not "misconduct" under the Unemployment Compensation Law. One example is the case In re Straw (NYAD 3rd Dept. 2006) where a guidance counselor employed by a public school was suspended following several complaints about her work performance, including allegations that she had engaged in inappropriate physical contact with various students. Soon after the District's superintendent advised claimant that he intended to recommend to the Board of Education at its next meeting that she be terminated, claimant entered into a written agreement whereby she withdrew her grievance and resigned and the District expunged from her record the proposed discharge and its basis. The court in this case set out the important legal proposition that:

"[A] claimant 'who voluntarily leaves his or her position in the face of disciplinary charges may qualify for unemployment benefits if the actions did not amount to misconduct.' Here, the Board concluded that claimant agreed to surrender her right to continue the grievance process and resign pursuant to a negotiated settlement as a means of accepting the penalty of dismissal in order to protect her employment record. The Board further determined that the District failed to demonstrate that claimant's actions rose to the level of misconduct."

As a result, the court upheld the employee's entitlement to unemployment benefits.

Similarly, in the case Claim of Bateman (NYAD 3rd Dept. 1989), which was relied upon by the court in In re Strawthe claimant was employed as a correction officer in a county jail when one of the prisoners escaped from the tier to which claimant had been assigned. As a result, claimant was served with a notice of discipline alleging certain infractions and stating that claimant would be dismissed from her employment effective at the end of the work day January 10, 1986. The notice also advised claimant that she had the right to file a grievance. At the time claimant was served with the notice of discipline, the county sheriff advised claimant that instead of pursuing a grievance, she could resign for "personal reasons" to protect her employment record and that, if she resigned, he would help her find other employment within the County. Claimant elected to resign, effective January 10, 1986, and, with the Sheriff's permission, stayed out of work on January 8, 9 and 10, charging those days to her accrued leave time.

The court upheld the employee's right to unemployment benefits.

"[The] claimant . . . resign[ed] as an acceptance of the penalty of dismissal to protect her employment record. [A]lthough claimant may have been careless or negligent in the performance of her duties, she was not guilty of misconduct within the meaning of the Labor Law and, therefore, she lost her employment under nondisqualifying conditions."

It is worth noting that it is not uncommon for severance/separation agreements in the employment context to include provisions that convert a discharge to a resignation (to protect the employee's personnel record) while also stating that the employer will not challenge the employee's claim for unemployment insurance benefits. As you can see from the cases discussed above, although this may seem contradictory, it is actually consistent with New York's Unemployment Insurance Law. Once such an agreement is executed, the employer will make not challenge or submission to the unemployment insurance compensation board and, as a result, the question of "misconduct," which might otherwise have created a problem for the employee, will not be raised -- and the employee will receive unemployment compensation benefits.

If you would like assistance or counsel on negotiating such a deal, contact me by email or call my office at 845-802-3247.

Check Out My New Website

2008-09-15T12:49:00.000-04:00

H/t to Bill Ayton for putting together a great website for my law practice.

Come on over and check it out: www.charnyandassociates.com.

Diabetes and the Americans with Disabilities Act

2008-09-15T11:43:00.001-04:00

By nearly all accounts, the intent of Congress when it passed the Americans with Disabilities Act (the ADA) and when it was signed into law by the first President Bush in 1990, was to have the ADA apply to discrimination in the workplace against folks with diabetes, and other people with medical conditions that are treatable.

However, several Supreme Court decisions have taken away nearly all ADA protection for people with diabetes and other manageable disabilities. It looks like Congress is about to send to President Bush a veto-proof bill that will override these Supreme Court decisions.

One of the Supreme Court cases which limited the application of the ADA is Sutton v. United Airlines (1999) where several severely myopic job applicants claimed that the United Airlines vision requirements discriminated against them under the ADA. As part of their claim, they proved that their vision could be corrected to perfect vision and, hence, did not interfere with their ability to do the job of airline pilot. By refusing to hire them per the United Airlines vision policy, they argued, they were being discriminated against in violation of the ADA.

The Supreme Court flipped this on its head, and relying on the fact that they had perfect vision once the disability was corrected found that they were not covered by the ADA. The Court explained:

"[W]e hold that the determination of whether an individual is disabled should be made with reference to measures that mitigate the individual's impairment, including, in this instance, eyeglasses and contact lenses."

So what does this have to do with diabetes?

Relying on the Sutton case, in 2004 the federal circuit court in Nebraska threw out a case brought by an insulin-dependent diabetic against Wal-Mart after he was fired for needing to break up his lunch period into 10-minute breaks so that he could maintain his insulin regiment. When a new supervisor came on board he announced his intention to enforce Wal-Mart's rules which prohibited this arrangement and the worker was ultimately fired. He brought suit under the ADA.

The Court in this case (Orr v. Wal-Mart Stores, Inc. (8th Cir. 2002)), threw the case out, relying on Sutton. The Court stated:

"The Supreme Court in Sutton expressly ruled that '[a] ‘disability’ exists only where an impairment ‘substantially limits' a major life activity, not where it ‘ might,’ ‘ could,’ or ‘ would ’ be substantially limiting if mitigating measures were not taken.' Sutton, 527 U.S. at 482, 119 S.Ct. 2139 (emphasis added). Therefore, neither the district court nor we can consider what would or could occur if Orr failed to treat his diabetes or how his diabetes might develop in the future. Rather, Sutton requires that we examine Orr's present condition with reference to the mitigating measures taken, i.e., insulin injections and diet, and the actual consequences which followed. See id."

The 8th Circuit never got to the question of Wal-Mart's refusal to accommodate Mr. Orr's disability because they determined he was not covered by the ADA. The matter was appealed to the Supreme Court by Mr. Orr, and the Supreme Court refused to hear the case.

All of this may be on the brink of changing, and returning the law to its intended coverage. On September 11, 2008, the Senate passed a bill to expand workplace protections for people with disabilities. The bill’s chief sponsor, Sen. Tom Harkin, D-Iowa, explained the purpose of the bill:

“The erosions of rights created by these court cases have created a bizarre Catch 22 where people with serious conditions like epilepsy or diabetes could be forced to choose between treating their conditions and forfeiting their protections under the ADA, or not treating their conditions and being protected.”

The legislation is similar to a bill passed in June by the House of Representatives. Minor differences between the two bills are expected to be ironed out quickly so a final version can be sent to President Bush.

The bill, S. 3406, provides that a person may be disabled even though measures such as medication, prosthetics and assistive technology are used to mitigate the disability.

Stay tuned.

Nathaniel

Mandatory Arbitration of Discrimination Claims?

2008-08-14T17:46:00.000-04:00

The Supreme Court is set to resolve a percolating dispute among the Circuit Courts: Does a mandatory arbitration clause in a union collective bargaining agreement mean that the employee has no right to sue for discrimination and must, instead, bring their claims of discrimination to arbitration.

In this case -- 14 Penn Plaza LLC v. Pyett (07-581) -- the arbitration clause in the collective bargaining agreement stated that "All such claims [of age discrimination] shall be subject to the grievance and arbitration procedure [in the collective bargaining agreement] as the sole and exclusive remedy for violations."

The Second Circuit, which includes New York State, ruled that the employee retains the right to bring his own claim under federal law for age discrimination, and that the union cannot waive that right through collective bargaining.

The 2nd Circuit held that "arbitration provisions contained in a [collective bargaining agreement], which purport to waive employees' rights to a federal forum with respect to statutory claims, are unenforceable."

Oral argument in front of the Supreme Court wil occur next term, October 2008. Stay tuned.