Suits In The WorkPlace

The Older Workers Benefits and Stereotyping Act

Pick-Up Lines

Employers in a number of businesses frequently confront the issue of dealing with employees with lifting limitations. The 8th Circuit recently decided a case that merged this problem with the thorny "regarded as disabled" prohibitions of the Americans with Disabilities Act.

The employee in this case injured his back and was limited to lifting no more than 50 lbs. on an occasional basis. Although the employer initially allowed the employee to return to work with this and other restrictions, it ultimately determined he could not perform the essential elements of his position and placed him on leave with instructions to either improve his strength or get a different diagnosis reducing some of the restrictions. The employee was unsuccessful in both regards within the timeframe specified by the company.  Following his termination, he filed suit under the ADA, alleging his employer regarded him as disabled even though he could perform the essential duties of his position.

Following the district court's grant of summary judgment, the 8th Circuit provided a thoughtful analysis of the issue. First noting that a restriction on lifting alone is not a major life limitation, the court specifically determined that the employer's perception that an employee could not perform a particular job is not the equivalent of a perception that the employee is disabled. Drawing the distinction between a perception of a limitation on a single or limited type of activity and a perception of a substantial limitation in a major life activity, the court noted the evidence showed the employer simply believed the plaintiff could not perform his job, and had no particular opinion regarding plaintiff's ability to perform activities outside of work. "Regarding an employee as having a limitation that is not itself a disability cannot constitute a perception of disability” (emphasis added).  Clear, concise, and yet this particular holding frequently escapes employers and lawyers in their analysis of ADA claims.

The court also made a telling point when it found that ADA's provisions on perceived disabilities was intended to combat the effects of "archaic attitudes, erroneous perceptions, and myths" that affect an employer's perception of its employees. Given that this employer imposed restrictions on the plaintiff based on the recommendations of physicians, the court held that there was no perception of a disability because the restrictions were not based upon archaic stereotypes about the disabled. This is an extremely important holding, because frequently plaintiffs will argue that any attempt at accommodation by an employer establishes a perception that the individual is disabled. The 8th Circuit meets this issue head on by noting the original intent of the ADA was to deal with stereotypes and not to prevent employers from doing the right thing in response to physicians' reports. Even the dissent generally agreed with this particular holding, although it criticized the majority for not paying enough attention to all the doctor reports which might have indicated that the plaintiff could work in other jobs at the facility.

I recommend this case for anyone dealing with a perception of disability issue -- the analysis is particularly useful for employers in the early stages of managing an ADA claim.

Disability Discrimination -- An Example of Focusing on Conduct Rather Than Illness

A recent case out of the Massachusetts Supreme Judicial Court (Mammone v. President & Fellows of Harvard Coll., No. SJC-09609, May 12, 2006) provides a good example of how to manage an employee with a bona fide psychological disability -- focus on the conduct rather than the illness.  The case involved Harvard's termination of a museum receptionist who suffered from bi-polar disorder.  The employee worked for the facility for seven years with no problems, but began behaving oddly in August 2002.  Among other things, he engaged in loud and animated conversations with museum patrons, established a website denouncing low pay at Harvard, and began singing and dancing at his reception station.  He was hospitalized briefly, but returned to work a month later in East Indian dress and wearing necklaces, bracelets and rings.  After his return, and while on duty, he made numerous loud phone calls and refused to meet with his supervisor, apparently referring to her as "evil".  When he refused to leave the building, he was arrested, handcuffed and removed.  After a six-month delay while he received short-term disability benefits, the University terminated him.  Proving yet again that no good deed goes unpunished, Mammone then filed a charge and sued for disability discrimination.

 Looking to both Massachusetts and federal disability law, the court noted that nothing in the Massachusetts law suggested that a lower standard of conduct should apply to handicapped employees vice employees without a disability.  Examining a specific case involving drunken behavior by an alcoholic employee of an airline, the court refused to distinguish between misconduct due to alcoholism and misconduct due to mental illness.  In other words, an employer is not required to "accommodate" a disabled employee by altering the fundamental conduct standards of the workplace.  The dissent misses this key point, and opens the door to a completely unmanageable workforce, by trying to save the case noting that a "reasonable" jury could conclude that the conduct was not egregious because it was the result of mental illness.  While I have no doubt a jury might be sympathetic to the plaintiff in this case, it's ridiculous (I almost said "crazy") to require an employer to accommodate any type of behavior in the workplace because the employee has a psychiatric condition.  Such a holding would require that the employer treat psychiatrically impaired employees better than nondisabled employees, a concept that is completely incompatible with discrimination law.

Contrast this case with the earlier-referenced 9th Circuit case out of California ("Who's That Knocking On My Door?"), where the employer focused on the psychiatric condition as a basis for its employment decision and paid for it . 

A Geographic Approach for Intermittent Leave

     The Family Medical Leave Act, one of my favorite topics, provides time off from work for an employee to deal with a serious medical condition.  A recent 5th Circuit decision points out that the FMLA provides for time off from work, and does not apply when an employee simply requests time off at work. 

     An employee being treated for diabetes developed a medical condition requiring frequent and unscheduled trips of varying duration to the bathroom while at work.  He creatively argued that his employer's failure to give him FMLA time for these bathroom breaks was a violation of the statute.  The 5th Circuit flushed this argument, finding first that the employee did not have a serious medical condition because he was not "incapacitated" for work, but instead was able to go to work on a regular basis.  In addition, the court did not accept the claim that the employee was asking for intermittent leave away from his place of work, but merely periodic time away from a desk during the work day.  As the court put it, the employee, "is asking for unfettered permission, while at work, to take necessary restroom breaks."  The court held that this did not constitute intermittent leave as defined or contemplated by the FMLA.  I wonder how this decision changes if the employee had gone out to use a bathroom in another building.

     The employee also hurt his case by refusing to cooperate with his employer when it asked for additional medical information in order to validate his request for bathroom time.  The court held that the FMLA as a statute requires cooperation from both employer and employee and a failure by the employee to cooperate with the employer's legitimate request prevents the employee from challenging the employer's refusal to certify absences as FMLA qualifying.

     Why this case was not brought as an Americans With Disabilities Act ("ADA") case, I don't know.  It seems to me that a medical condition requiring someone to make frequent and lengthy visits to the local water closet would at least arguably qualify as a disabling condition that could be accommodated.  In any event, the 5th Circuit's logic seems solid in holding that intermittent FMLA leaves are for absences away from the workplace.  How far away will be a matter for another appeal.

Blogging in the Workplace

ABC News has an interesting article about employers in Australia banning employees from blogging about their employer.  We are seeing more and more instances of blogs in the workplace either resulting in problems for the employer, such as the disclosure of confidential information or trade secrets, or resulting in employees being disciplined (even terminated) for what they write in their blogs.  By a show of hands (or better yet, comments), how many of you have policies in the workplace that address employee blogging?  Do you condone it for business purposes, or do you prohibit it altogether?  If this topic generates sufficient interest, we'll discuss it further, with specific examples of problems that can arise and some pointers to include in your policies if you don't already have one.

Remember, you can post a comment without identifying your name or company if confidentiality is a concern.

Dangerous Liaisons, Part I

    Some people just can't avoid taking risks in their professional lives.  This works well if you're a trapeze artist, professional bungee jumper, or Bill Clinton, but not if you're an at-will employee engaging in sexually provocative acts with your boss in front of his wife.  Such were the facts in a case decided by the 8th Circuit recently.

     The female plaintiff in this case, who rose from secretary to the highest-paid employee in the company (and we can only wonder about the basis for that quick ascent) admitted pinching the company owner on the bottom and getting pinched, in front of the owner's wife, who also worked for the company.  Not content with twisting the tiger’s tail, so to speak, the plaintiff also admitted leaving sexually suggestive notes for her boss around the office, even though she knew the aggrieved spouse was, well, aggrieved with her and might have the power to fire her.  Mrs. Owner actually found one of the notes by searching through a dumpster and pieced it together.  It was sufficiently inflammatory that she fired the plaintiff, but the owner reinstated her, only to fire her several months later.  At her termination, the owner told the plaintiff that his wife was making him choose between his “best employee or her and the kids."

     The plaintiff sued for gender discrimination and sued the wife for tortious interference with a business relationship.  She lost on both counts at the district court, and the 8th Circuit affirmed.  The court first noted that this was not a sexual harassment case, but rather a case claiming discrimination on the basis of an employee's admitted, consensual sexual conduct with a supervisor.  Noting that even the EEOC has not found Title VII applicable to cases involving sexual "favoritism" or so-called "disfavoritism", the 8th Circuit joined a number of other courts holding that an employer may terminate an employee for consensual sexual conduct that the employer (or his spouse) disapproves of.             

     For some reason, the court carefully distinguished this case from the situation where the employee did not engage in sexually suggestive conduct, but the manager’s spouse still perceived her as a threat to her marriage -- presumably the court felt this might move the case into a sexual stereotyping analysis.  In any event, absent a showing that men had engaged in similar conduct but had not been terminated, or that in office romance cases the employer had consistently fired the female involved, there was no evidence of gender discrimination sufficient to raise an issue of material fact.  The court also made short work of the tortious interference claim by noting that the motivation for the owner's wife to have plaintiff fired was not to damage the plaintiff in a business relationship, but to preserve the owner’s marriage.

     A nice general rule out of this case -- don't engage in sexually provocative behavior with your boss (or any other coworker) unless you're real good friends with the spouse involved.  I suppose that includes your own spouse, but, quite frankly, I'd advise against pushing those buttons under any circumstances. 

Send Lawyers, Guns and Money - Get Me Out of This

Here's one that'll blow you away:

Employer is a chemical manufacturer, producing, among other things, ammonium nitrate (Yes, that's Timothy McVeigh's fertilizer of choice, for those of you who thought that sounded familiar).

Union employee Anthony Bennett has a history of less than stellar behavior, cracking double-digits in the workplace warning column and earning the bad behavior seal of disapproval by allegedly beating women on the job and bringing his gun to work. Then, said noncompliant employee racks up an indictment for allegedly shooting his common law wife in front of their daughter. Newspapers later reported that police found his trusty sidearm in the employer's trash compactor.  Shockingly, co-employees and managers expressed their fear of the employee.

Grounds for concern? Maybe worthy of heightened security at the office? How about a dismissal? Or at least a suspension? Yeah, the employer thought so, too, and sent him a letter placing him on suspension until the charges were cleared. The union filed a grievance. Amazingly, the arbitration panel sided with the union and ordered reinstatement and back pay, but cited no authority or rationale for doing so.

The employer appropriately sought redress from the federal court. The court, in reviewing the arbitration decision, stated:

In the present case, not only did the arbitration panel not provide any reasons for its decision, but it also found that the only provision of the CBA cited, Article 44, was not violated.  The court is thus left to speculate and infer from the facts of the case what possible CBA provision the arbitration panel may have found violated.

And speculate it did.  Allow me to translate the above quote:  "since the arbitration panel failed to provide any good reason for its decision, the court will dig through the collective bargaining agreement until it finds a good after-the-fact justification for that decision."  And sure enough, this is what the employees of Independent Chemical can think about when coming to work in the morning:  "Because of the deference that must be accorded to the arbitration panel, the award cannot be vacated on the basis that the panel exceeded its authority."  Stating further that it was bound by the arbitration panel's decision, and that the reinstatement was not a violation of public policy, the U.S. District Court for the Eastern District of New York confirmed the arbitration award.  Indep. Chem. Corp. v. Local Union 807, Int'l Bhd. of Teamsters, E.D.N.Y., No. 1:05-cv-01987-DLI-JMA, 4/21/06). Here is a link to the decision, but you need a Lexis subscription to get it.

While some of the employee's criminal charges were ultimately dropped, sentencing for those that remain is scheduled for this month. So for the moment, alleged gun-toting, wife-shooting, explosive-handling Mr. Bennett is back at work.  His co-employees (who are also presumably dues-paying members of the same union that pursued the grievance), can, however, take a little comfort in this parting shot from the court:  "In reaching the decision that the arbitration panel's award, reinstating Bennett with back pay, does not violate public policy, the court does not condone Bennett's alleged violent and aggressive behavior."  Whew.  I feel better. 

We don't know about you, but something about this case makes us feel a little uneasy. And we're not just talking about arbitration or judicial process, either....