Rod Satterwhite and David Greenspan are members of the Labor & Employment group at McGuireWoods LLP. Both handle employment litigation on behalf of employers, and advise companies on employment issues regularly.

ADA (RSS)

Americans with Disabilities Act

Urine Trouble Now

The United States District Court for the Middle District of Tennessee recently ruled that a plaintiff with Shy Bladder Syndrome may be able to make out a claim of disability discrimination under the Americans with Disabilities Act.  In Melman v. Metropolitan Government of Nashville and Davidson County, Case No. 3:08-cv-1205 (M. D. Tenn. 7/9/09), the plaintiff alleged that he suffered from a “shy bladder” that precluded him from providing an adequate urine sample for drug testing purposes.  Plaintiff worked for the government of Nashville as a bus driver, and pursuant to United States Department of Transportation (“DOT”) Regulations, was subject to random drug screens.

In February of 2008, when he was unable to provide a sample for a drug test, he was considered by the testing Medical Review Officer, and subsequently by the Nashville government, as refusing to take the test.  Plaintiff offered to provide a sample through any alternative means, and his doctor even offered to catheterize him for the purpose of obtaining a sample.  These offers were rejected, and he was ultimately removed from the bus driver job and transferred to a bus monitor position, which was less prestigious and did not have the opportunity to earn overtime. 

Plaintiff sued under the Americans with Disabilities Act, and the defendant moved to dismiss the case on the pleadings.  In the complaint, the plaintiff alleged that he was disabled under the ADA because he was “substantially limited in the major life function of the elimination of bodily waste.”  Since the case was at a very early stage, and the judge was only ruling based on the pleadings, all of the plaintiff’s allegations had to be treated as if they were true.  The judge stated that “determining whether the medical problem alleged in the complaint constitutes a disability . . . is not proper at the pleadings stage.”  Thus, the court denied the defendant’s motion to dismiss and allowed the plaintiff’s case to go forward.

I bring this case to your attention not because of some penchant for bathroom humor, but instead to show the beginning of a trend that employers will likely see under the recent amendments to the Americans with Disabilities Act.  As you may recall, the ADAAA added a category of major life activities to the definition of disabled:  major bodily functions.  Thus, any condition which substantially limits a major bodily function may now constitute a disability.  It is unclear whether the plaintiff’s inability to use a public restroom or provide a urine sample for a drug test would constitute a “substantial limitation,” but cases like this should put employers on alert that the definition of disability is now substantially broader than it used to be.  Employers must take this change into consideration when handling accommodation requests, such as those raised in the case above.

posted Friday, July 17, 2009 9:48 AM by Rod Satterwhite with 0 Comments

Thin Line Between Misconduct and Disability

I seem to be somewhat obsessed with sleeping in the workplace lately, and I’m not sure why.  Here’s one more.  Apparently “unacceptable and dangerous behavior” is not a good enough reason to fire an employee in Oregon any more – at least not if the behavior can be related in any way to a disability.  A federal district court judge recently denied the City of Salem’s motion for summary judgment in a case brought by a former 911 dispatcher employed by the City who was fired for sleeping on the job. (Brown v. City of Salem, No. 04-1541-HA, 2007 WL 671336 (D. Or. Feb. 27, 2007)).     

Jon Brown worked as an emergency dispatcher for the City of Salem for almost 25 years.  Brown was diagnosed with sleep apnea more than 10 years before he was terminated in 2003.  As a result of the sleep apnea, Brown suffered from “micro-sleeps” – involuntarily falling asleep for brief periods of time. (I always thought they were called naps.)  Brown acknowledged that the City was initially cooperative in attempting to reasonably accommodate his condition.  He was excused from night duty and was provided with a fan after his physician indicated that high temperatures in the workplace might trigger the micro-sleeps.  These accommodations failed to completely alleviate Brown’s symptoms, however, and he was ultimately terminated in 2003, at least in part because he fell asleep while on duty. 

Concluding that Brown had presented a prima facie case of disability discrimination under the ADA, the court rejected the City’s motion for summary judgment and ruled that Brown’s claim could proceed to trial.  At issue was whether a causal connection existed between the termination and the disability.  Brown’s managers knew he suffered from sleep apnea when they terminated him, and they recognized that his sleeping on the job might have been related to that disability.  Nevertheless, there were obvious safety concerns relating to a "micro-sleep" happening in the middle of an emergency call.  Noting that “conduct resulting from the disability is considered to be part of the disability and that termination based on that conduct is unlawful,” the court denied the City’s motion for summary judgment.  

This decision takes the protected status associated with a disability pretty far.  The court seems to suggest that any activity caused by a disability is off-limits as a basis for termination.  So if the employee has a mental disability that causes violent behavior, does that mean the employer cannot fire the employee even for workplace violence?  In Oregon, it might.  In Brown, the Court paid some lip service to the City’s “valid concerns about the risks to the public posed by the plaintiff’s continued employment,” but it still didn’t change the outcome.  There is no question the City was focused on Brown’s behavior (i.e., falling asleep), and presumably it would terminate anyone falling asleep in such an important job, regardless of whether it was caused by a disability or not.  Moreover, they tried to accommodate him, but could not.  I do not read the ADA to protect employees who cannot safely perform their essential job functions with a reasonable accommodation, and view this decision as potentially dangerous:  both for employers attempting to address such issues in the workplace, and for people calling 911 in Oregon.

Employers should be especially vigilant in defining and articulating essential job functions, and documenting the risks associated with an employee’s failure to perform such functions.

posted Friday, March 09, 2007 4:53 PM by Rod Satterwhite with 1 Comments

Good Work If You Can Get It

A federal district court recently ruled that a plaintiff who won a discrimination claim was entitled to back pay, even though he admittedly failed to mitigate his damages (Hudson v. Chertoff, No. 05 060985CV, 2007 WL 478826 (S.D. Fla. Feb. 12, 2007)). 

Ulysses Hudson was fired from his job as a research analyst at the Department of Homeland Security (“DHS”) in February 2005.  He sued, claiming that his job reassignment and ultimate termination was in retaliation for an earlier lawsuit, and that the DHS failed to reasonably accommodate his disability.  A jury returned a verdict in favor of Hudson in November 2006 and recommended an award of $220,000 in back pay, $780,000 in front pay, and $1.5 million in compensatory damages.  

The DHS filed post-trial motions seeking, among other things, to disallow or reduce the recommended back pay and front pay awards, arguing that Hudson did not diligently seek “substantially equivalent employment” after being fired and, thus, did not fulfill his obligation under Title VII to mitigate his damages.  Hudson conceded at trial that he did not seek employment after being “officially terminated” from the DHS in February 2005. 

While the court agreed that he failed to mitigate his damages after being fired, it still found that Hudson was entitled to back pay.  The court noted that a successful Title VII claimant is presumptively entitled to back pay and that, according to the U.S. Supreme Court in Albemarle Paper Co. v. Moody, 422 U.S. 405, 421 (1975), “[b]ack pay should be denied only for reasons which, if applied generally, would not frustrate the central statutory purposes of eradicating discrimination throughout the economy and making persons whole for injuries suffered through past discrimination.  The court also cited a previous district court decision, Szedlock v. Tenet, 139 F. Supp. 2d 725, 733 (2001), which it found to be factually similar.  The Szedlock court had found that the plaintiff was entitled to back pay from the date she sought medical disability retirement because her employer had failed to reasonably accommodate her disability: “In a real sense, plaintiff’s claim for lost wages is the result of discrimination, and she is thus entitled to some equitable relief in the form of back pay or front pay to place her in the position she would have enjoyed absent discrimination.” 

Similarly, the Hudson court noted that “[b]ut for the [DHS’s] unlawful conduct in its failure to provide a reasonable accommodation … [Hudson] would have received his full salary and benefits for the period of time he was on leave.”  Because the DHS’s retaliation and refusal to accommodate resulted directly in Hudson’s leave without pay, the court held that he was entitled to his full salary for the duration of the leave period and should be awarded back pay from February 2005 through the date of the judgment. 

This decision is a bit scary.  Plaintiffs have an obligation to mitigate their damages to the extent it is reasonable.  Not lifing a finger to find a job when you are capable of doing so falls a bit short of that mitigation requirement.  Moreover, the logic of the Court escapes me.  The Court’s reasoning seems to be that if the defendant causes the wage loss, then back pay should be awarded.  However, if that were universally true, then every discrimination plaintiff who suceeded on the liability phase would also be entitled to back pay, without regard to mitigation efforts, and clearly that’s not the law.  This decision gives plaintiffs no incentive whatsoever to seek a job while their case is pending, and improperly lays all the burden on the employer, even when the plaintiff could have taken reasonable steps to reduce their damages. 

Unfortunately, there’s not much employers can do proactively to avoid this risk.  If a court is going to ignore the mitigation requirement, it just is.  Best bet for employers is not to get popped in the first place, which requires the same old blocking and tackling we regularly espouse here:  consistency in decisionmaking (through HR, legal counsel, or both), and good documentation.

 

posted Wednesday, February 28, 2007 12:24 PM by Rod Satterwhite with 1 Comments

Titillating Termination at IBM

 A man sued IBM earlier this week for wrongful termination when he was fired for visiting adult chat rooms at work.  The employee seeks $5 million, asserting that his termination amounted to both disability and age discrimination.  The disability, apparently, was the result of traumatic stress from seeing a friend killed in Vietnam (38 years ago.)  James Pacenza, 58, claimed that his visits to the adult chat rooms (a few months ago) were a form of treatment for the stress, and that he "was tempting [him]self to perhaps become involved in some titillating conversation," according to his complaint.  I am not making this up.

What’s interesting about this case is the nature of his alleged disability.  Pacenza asserts that he is "a sex addict, and with the development of the Internet, an Internet addict." But remember that he also claims to suffer from post-traumatic stress resulting from his war service.

IBM, not surprisingly, is seeking summary judgment on several grounds, the most obvious of which is that sexual disorders are specifically excluded from protection under the ADA.  In fact, Section 12211 of the act specifically excludes “transvestism, transsexualism, pedophilia, exhibitionism, voyeurism, gender identity disorders not resulting from physical impairments, or other sexual behavior disorders” from the definition of disability. 

Notice, however, that this section doesn’t say anything about being “an Internet addict.”  That’s a little different from sexual disorders.  In fact, last October a Stanford University study reported on the concept of Internet addiction.  The study reported that:

Nearly 14% of respondents said they found it difficult to stay away from the internet for several days and 12% admitted that they often remain online longer than expected. More than 8% of those surveyed said they hid internet use from family, friends and employers, and the same percentage confessed to going online to flee from real-world problems. Approximately 6% also said their personal relationships had suffered as a result of excessive internet usage.

That led the lead author of the study to compare Internet use with alcoholism, since it involved hiding the behavior from others going online to cure foul moods.  "In a sense, they're using the internet to self-medicate," he said.  Sound familiar?

So, while at first glance Mr. Pacenza’s desperate need to visit an adult chat room while on break might seem to fall squarely within that ADA exclusion of sexual disorders, IBM may be in for more of a fight than it thinks. 

More importantly, given the prominence of internet use in the workplace, this decision, if adverse to IBM, could have far reaching implications for employers. 

 

posted Thursday, February 22, 2007 5:55 PM by Rod Satterwhite with 0 Comments

ADA/FMLA Plaintiff Cannot Double-Dip

An automobile mechanic for the county of Fairfax, Virginia cannot ignore his FMLA-related absences when he claimed that he could perform the essential job function of regular attendance.  Payne v. Fairfax County, 1:05cv1446 (E.D. Va. 11/1/06).

Payne, an auto mechanic, was diagnosed with panic disorder, irritable bowel syndrome, and Epstein-Barr disease.  For three straight years, he used all or nearly all of his twelve weeks of leave under the Family and Medical Leave Act.  When the county refused to grant him additional leave in the final year, he “retired” but then sued under the FMLA, ADA and local employment ordinances.

The issue of first impression for the court (and apparently undecided by any other court as well) arose under the ADA.  The court first analyzed whether Payne was a “qualified individual with a disability” under the ADA, and turned to the issue of his attendance, noting that “an employee who cannot meet the attendance requirements of his job cannot perform the essential functions of his job, and therefore, cannot be a ‘qualified individual’ under the Americans with Disabilities Act.”

As mentioned, Payne had regularly and consistently missed time from his job because of his medical conditions.  Much or all of that time, however, had been covered under the FMLA.  Payne argued, therefore, that this time should not “count against him” with respect to his ADA claim.  The court acknowledged that the FMLA did in fact protect employees from adverse actions because of the taking of protected leave:  the FMLA prohibits any discrimination or retaliation against an employee taking FMLA leave and further requires that leave taken pursuant to the FMLA "shall not result in the loss of any employment benefit accrued prior to the date on which the leave commenced." 29 U.S.C. § 2614(a)(2)-(3).

However, the court refused to carry this protection as far as Payne wanted.  Citing DOL regulations implementing the FMLA, it held that, since the FMLA was not intended to modify the ADA in any way, “the statutes should be read independently, and if an employee cannot perform the essential function of attendance, even if due to FMLA leave, then the employee is still not a ‘qualified individual’ within the meaning of the ADA. To rule otherwise would be a judicial expansion of a Plaintiff's rights under the ADA and run directly contrary to § 825.702.”

This is an important ruling, especially in light of the frequent intersection between FMLA and ADA issues relating to employee leaves of absence.  Employees like Payne cannot double dip by claiming that they should be able to invoke FMLA protections, while simultaneously avoiding the standards for qualifying under the ADA.  Employers should be particularly aware of all applicable statutes during leave situations, not just the obvious ones.

posted Tuesday, November 21, 2006 2:28 PM by Rod Satterwhite with 0 Comments

Alcohol Use Boosts Income

While we're on the subject of productivity, a friend sent me an article quoting a study from the Reason Foundation which suggests that people who drink alcohol make more money than those who don't.  I don't know why he sent me the article, but it's interesting in light of the continuing trend toward characterizing addictions as disabilities that impact employees at work.  Bucking that trend, the study "published in the Journal of Labor Research Thursday concluded that drinkers earn 10 to 14 percent more than teetotalers, and that men who drink socially bring home an additional seven percent in pay."  The article acknowledged that the study may have had certain political unerpinnings:  "the authors acknowledged their study, funded by the Reason Foundation, a libertarian think tank, contradicted research released in 2000 by the Harvard School of Public Health."  Nevertheless, the authors claim that their "empirical survey" supported their conclusions, suggesting that a social drinker might have a "wider range of social contacts" that open more doors from an employment and business standpoint.  Does this mean you should add the question "Alcohol User?" to your employment application?  Certainly not.  But it does raise a somewhat contrarian perspective regarding an activity that, at least in and around workplace discrimination laws, has a less than positive connotation.

 

posted Monday, September 18, 2006 1:53 PM by Rod Satterwhite with 0 Comments

Crackberry Addiction an ADA-protected disability?

The New York Sun had an article last week about an upcoming study from the Rutgers School of Business about how workers are becoming addicted to their BlackBerries.  This addiction, will, according to the article, inevitably lead to suits against employers which "could potentially cost corporate America hundreds of millions of dollars."  I say bring it on.  The article, and apparently the underlying study, both lament the fact that people get caught up in the fast-paced world of technology and are therefore unable to truly relax.  Gayle Porter, the professor who is about to publish the study, was quoted as follows:

"If companies develop a culture in which people are expected to be available 24 hours a day, then they should be prepared for the physical and psychological consequences," Mrs. Porter said. "Addicts exhibit extreme behavior and have no control over themselves. So a corporation handing someone a BlackBerry on his first day of work could be seen as enabling, even accelerating, a serious addiction to technology."

Is she serious?  Does this mean that whenever an employer provides employees with tools that increase their efficiency, coupled with setting high performance expectations, they are "enabling" or "accelerating a serious addiction to technology?"  I think not.  Workaholism predates the BlackBerry.  PDA's are just the latest in a long line of devices which, like any other tool, can be used or misused.  To blame the employer for providing that tool just doesn't hold water, especially in light of current employment law.  A disability under the ADA has to be a condition that "substantially limits one or more of [an employee's] major life activities.” 42 U.S.C.§12101(2). In turn, "major life activities" are defined as basic functions such as “caring for oneself, performing manual tasks, walking, seeing, hearing, speaking, breathing, learning and working.” The closest thing the article mentions to a major life activity seems to be the ability to relax on the beach:

These days, though, many executives on vacation carry small arsenals of mobile telephones and computers, even on the beach. From their sandy towels they keep close tabs on both the workplace and the capital markets. Friends and relatives, Mrs.Porter said, are now complaining that no one in these jobs is getting any rest or relaxation.

"Relaxation" is a far cry from a major life activity.  Courts have in fact held that the ADA does not require an employer to provide an environment free from aggravation and stress. Cannice v. Norwest Bank Iowa, N.A., 189 F.3d 723, 728 (8th Cir. 1999).

Nevertheless, it appears that is exactly what this study suggests employers should have to do, by refraining from the deadly combination of 1) providing Blackberries and 2) expecting high performance from their employees.  As an avid user of technology, I am offended at the suggestion that the tool, and not the person, is to blame.  People ought to take responsibility for balancing their own schedules and workload, and it is the refusal to do so, encouraged by studies such as this one, that leads to an environment that fosters the host of frivolous employment lawsuits choking our federal court system today.

Besides, in the end, the system is self-correcting.  In other words, if you see me on a beach typing on a BlackBerry, you have permission to kick the crap out of me.

posted Tuesday, September 12, 2006 2:27 PM by Rod Satterwhite with 2 Comments

No Good Deed Goes Unpunished

Check out this proof of the first law of employment litigation -- "No good deed goes unpunished". Plaintiff's job was to interview applicants for state health benefits, but due to agoraphobia and panic disorder could not meet with people face to face. The agency accommodated him by assigning him cases that could be handled entirely by phone, doing so for fifteen years. Plaintiff then applied for a promotion and was told that due to the absence of in-person interviewing experience he was not eligible, but if he were willing to undertake such duties he would be considered. This, needless to say, caused the hypersensitive plaintiff to go into a tail spin and leave work remaining on "stress leave" continuously since sometime in 2004. The jury of his peers awarded him over $6,000,000, proving the second law of employment litigation -- things in California are just different. The judge being "rational" and concerned about evident jury misconduct, reduced the award to $2,500,000. Plaintiff's counsel then asked the court to award $1,300,000 in fees by applying a multiplier, apparently for his extraordinarily good luck, thus proving the third law of employment litigation -- a Plaintiff's lawyer knows no shame. The court, being rational again, reduced the multiplier to a factor of 2 and awarded almost $900,000. Thus, the taxpayers of Sonoma county get to fund a $3.4 million dollar lottery payment to a guy who, unable to interview people, felt he was the perfect candidate for a job that involved, well, interviewing people.  The entire matter thus proves the fourth and ultimate rule of employment litigation, first enunciated by a distinguished but anonymous jurist -- This ain't about justice, it's only about the money.  Alberigi v. Sonoma County, Cal. Super. Ct., No. SCV-233788, 6/20/06.

Special thanks to our cynical but accurate partner Bob Zielinski for providing this entry.

 

posted Tuesday, July 18, 2006 2:38 PM by Rod Satterwhite with 2 Comments

Blind Patrons Sue over Website Accessibility

An advocacy group for the blind has sued retailer Target over their web site, alleging that the site is not sufficiently usable by blind patrons.  Read the full story here.  While the suit is not an employment matter, it highlights an issue we've been thumping our chest about for years:  if you recruit applicants via your web site, you should consider an audit to make sure it's sufficiently accessible to web surfers with disabilities.  The Target suit, for example, alleges that certain functions cannot be performed without a mouse, which is difficult if not impossible to emulate with the computer equipment used by blind patrons.  Another example is the allged failure of Target to make us of the "Alt-Text" option available in web programming, which substitutes a text description of graphics when the graphic itself isn't visible.  So again I say:  if you use your external web site for recruiting or accepting employment applications (or for any other HR function for that matter), you should to at a minimum assess the accessibility of the site to the disabled, or provide a reasaonable alternative for the application process.  Just a little food for thought . . .

posted Monday, February 13, 2006 3:11 PM by Rod Satterwhite with 1 Comments

Drink Up - It's Time for Work!

Do you ever wonder what prompts people to do completely absurd things at work?  I always assumed it was because I work in a building full of lawyers, but apparently there is another explanation.

A recent study funded by the National Institute on Alcohol Abuse and Alcoholism reports that 15 percent of the U.S. workforce has either been hung over, been drinking shortly before showing up at work, or been drinking or impaired at work at least once during the previous year.

To place this in perspective, that figure translates into roughly 19.2 million workers! The study asked 2,085 adults (and lawyers) in the contiguous 48 states and the District of Columbia how often during the previous year they drank alcohol within two hours of reporting to work, how often they drank during the work day, how often they worked under the influence (for those who could remember), or how often they worked with a hangover. Researchers interviewed respondents from January 2002 to June 2003 and according to the institute, the sample was chosen to reflect a microcosm of the U.S. workforce (and lawyers).

Surprisingly, the study reports that young, unmarried men (and lawyers) are the most likely to show up at work drunk or hung over. The study data also suggests that workers with certain job types and certain work hours report higher percentages of on-the-job impairment. The highest rates were found in management occupations, law, sales, arts/entertainment/sports/media occupations, law, food preparation and serving occupations and building and grounds maintenance jobs (and law). In addition, the study indicated that evening and night-shift workers and those working nonstandard shifts involving irregular or flexible hours were more likely to report drinking before or during work than day-shift workers.

And don't forget, the survey only reflects those people who admitted being mildly toasted before, during or after punching the clock.  The real number is likely much higher.

In all seriousness, this is a huge issue for employers.  Although you can generally discipline employees for behavior induced by alcohol consumption (like dancing on tables in the lunch room or other real life examples too numerous to list), recovering alcoholics can be protected under the Americans with Disabilities Act.  Employers should review their policies and practices to insure they strike a proper balance between discipline and accommodation, and should consult with their counsel if they have questions.  But not on Mondays or Fridays.

posted Thursday, January 19, 2006 11:41 AM by Rod Satterwhite with 1 Comments