The Employment Practices Alert covers significant employment law trends & developments in a summary format. Links to additional information on the Internet are included in the topic headings along with the contact information of Hinshaw & Culbertson employment law attorneys who will answer any questions you may have. If you wish to be added to or removed from our list of subscribers who receive complimentary copies of the Employment Practices Alert via email, or if you have any comments or suggestions, please contact the editors, at (312-704-3220) or at (312-704-3578).
In This Issue:
DOL Enhances Drug & Alcohol Free Workplace Web Site
The U.S. Department of Labor recently revamped its Working Partners for an Alcohol and Drug-Free Workplace Web site to better connect employers to valuable online information and tools available to help them establish drug-free workplace programs that protect worker safety and health, while improving productivity and bottom-line profits. The Working Partners initiative was developed by DOL to help raise awareness about the impact drugs and alcohol have on the workplace and provide information on how to establish drug-free workplace programs that protect worker safety and health. This resource can be especially helpful for small businesses, which may be most vulnerable to workplace substance abuse. The Working Partners Web site can be accessed at www.dol.gov/dol/workingpartners.htm.
Contact for more information: Douglass A. Marshall
Public Employee's Statements To Co-Workers Protected By First Amendment
The recent ruling by the United States Court of Appeals for the Sixth Circuit in Rodgers v. Banks has potentially significant implications for the free speech rights of public employees. While courts have generally held that the First Amendment of the U.S. Constitution protects public employees from workplace discipline for statements made in their capacity as private citizens, courts have been generally reluctant to extend that protection to statements made by public employees in their course of their employment. Courts have typically afforded public employers significant leeway to control such workplace speech, recognizing that unchecked workplace speech could undermine a public employer's ability to perform its legitimate functions. In Rodgers, however, the Court found that various workplace statements by an employee of a state mental hospital concerning matters of patient care related to "matters of political, social, or concern to the community" such that they should be protected by the First Amendment. Thus, the Court found that the employee could state a viable claim for wrongful termination based on her allegations that the hospital had terminated her for making the constitutionally protected statements.
Contact for more information: Thomas Y. Mandler
Employee Diagnosed With ADHD Not Entitled To Accommodations Under ADA
In Whitlock v. Ingersoll, the United States Court of Appeals for the First Circuit rejected the disability discrimination claim of an employee diagnosed with Attention Deficit Hyperactivity Disorder (ADHD). The employee, James Whitlock, claimed that he could not perform his job duties in the Parts and Shipping Department of Mac-Gray, Inc., unless his employer provided him with certain accommodations to help him concentrate and focus; namely, partitions around his workspace and a radio to help block background noise. While Mac-Gray initially provided these accommodations to Whitlock, it was no longer able to do so after the Parts and Shipping Department was moved to a new location in the plant where it was not feasible to erect partitions and the radio proved distracting to co-workers. While the Court noted that Whitlock had presented proof that he had been diagnosed as having ADHD, the Court found that Whitlock had presented no proof whatsoever that his condition substantially impaired his ability to do his job or required any accommodation. The ruling highlights the fact that an employer's duty to accommodate a disability does not simply depend on a diagnosis of a particular condition. Rather, there must be some evidence that the accommodation requested is necessary in light of the impairments resulting from the condition diagnosed.
Contact for more information: Jodi L. Johnson
Supervisor Accused Of Harassment Fires Accuser, Gives Rise To Retaliation Claim
In Sitar v. Indiana Dept. of Transportation (INDOT), the United States Court of Appeals for the Seventh Circuit found that an employee, Caroline Sitar, stated a viable claim for retaliation based on evidence that the supervisor who terminated her, Raymond Baker, was "visibly upset" in connection with Sitar's accusations of sexual harassment. Sitar had claimed that Baker had demoted her after she filed a charge of sexual harassment with the EEOC. Baker denied that he had engaged in retaliation and claimed that he had transferred Sitar to a new position in lieu of terminating her for poor performance. The job transfer was intended to give Sitar a chance to "see if she was salvageable as an employee." When Baker's superiors criticized Baker's handling of the situation, he became visibly upset and made the decision to terminate Sitar's employment. The Court found that a jury could conclude that Sitar's termination was retaliatory in light of the fact that Baker decided to terminate Sitar at the very meeting in which he became "visibly upset" at being criticized for transferring Sitar. The Court's ruling provides two cautionary lesson to employers facing similar situations: (1) employers should take steps to insulate supervisors that have been accused of possible discrimination or harassment from employment decisions involving the accuser; and (2) extra caution should be used when making adverse employment decisions involving employees who have recently raised allegations of harassment and discrimination.
Contact for more information: William J. Holloway
Court Rejects "Reverse Race Discrimination" Claim By White Employees
In Sutherland, et al. v. Michigan Dept. of Treasury, the United States Court of Appeals for the Sixth Circuit rejected a "reverse race discrimination" lawsuit brought by two Caucasian employees of the Michigan Treasury Department who claimed that they were denied promotions over less qualified minorities. While the plaintiffs submitted statistical evidence suggesting that minorities had been given preferential treatment over non-minorities, the Court found that the Michigan Treasury Department had presented sufficient evidence to establish that its promotion decisions had been based on legitimate non-discriminatory considerations; namely, that the plaintiffs were less qualified than the minority candidates that received the promotions. While the Court rejected the "reverse race discrimination" claims of the particular plaintiffs in Sutherland, it noted that such claims may succeed where a non-minority establishes that he or she has been denied an employment opportunity for which he or she is qualified, the opportunity is given to a member of a minority group, and there is evidence (i.e., statistical evidence), that raises a suspicion that the employer "is that unusual employer who discriminates against the majority."
Contact for more information: Aimee Delaney
"Last Chance" Agreement With Chemical Dependent Employee Valid Under ADA
In Longen v. Waterous Co., the plaintiff sued his employer, alleging that the terms of his "last chance" agreement violated the Americans with Disabilities Act (ADA) and the Minnesota Human Rights Act (MHRA). Plaintiff had recurring substance abuse battles and was in chemical dependency treatment five times during the course of his employment with defendant. As a result, a "last chance" agreement was signed by the parties, providing that the "future use of any mood-altering chemicals" would result in plaintiff's termination. Subsequently, plaintiff was arrested for a DUI and was terminated. He claimed the "last chance" agreement violated the ADA because it subjected plaintiff to different employment conditions than other employees. Additionally, he claimed the agreement subjected him to termination for substance use outside of the workplace, which is not allowed under the ADA. The Eighth Circuit Court of Appeals held that all return-to-work agreements, by their nature, impose employment conditions different from those of other employees. Furthermore, plaintiff placed separate constraints on his own conduct when he signed the agreement, which is permitted under the ADA. Accordingly, the agreement was valid, and plaintiff failed to show that defendant's reason for dismissing him was pretextual.
Contact for more information: Paul J. Cherner
Jobless Claims Drop in Mid-October
The number of Americans making new jobless claims fell slightly in mid-October, suggesting the labor market is slowly stabilizing. First-time claims for state unemployment insurance benefits dropped by 4,000 for the week ending October 18. The general trend has been going down, and claims have fallen 15,000 since mid-September. According to economists, the drop in continuing claims could be a sign that the unemployment rate could start drifting downward.
Jury Finds "One Person Reorganization" Violated FMLA Prohibition On Retaliation
Pharmedica Communications LLC has been ordered to pay former employee, Rene Palma, twice the amount of her lost pay after a Connecticut jury concluded that Pharmedica terminated Palma for exploring her rights under the Family Medical Leave Act (FMLA). In imposing the "double damages," Magistrate Holly B. Fitzsimmons rejected Pharmedica's contention that it had made a good faith mistake in terminating Palma after Palma requested permission to work half days for two weeks following gall bladder surgery. In fact, the jury concluded that Pharmedica had not acted in good faith, finding that Pharmedica terminated Palma for calling the U.S. Department of Labor to ask whether the FMLA gave employees the right to work half-days. Significantly, Palma had received favorable performance reviews in her eight years of employment with the company and the jury was not convinced by the company's explanation that Palma was terminated as a result of a "reorganization" that resulted in the elimination of Palma's position. Palma successfully argued that the one person "reorganization" was nothing more than an excuse to terminate Palma.
Contact for more information: Tom H. Luetkemeyer
Employee Who Took Leave Before Completing 12 Months Of Service Prevails Under FMLA
In Babcock v. BellSouth, the Fourth Circuit Court of Appeals upheld a jury's finding that BellSouth violated the FMLA when it terminated Kimberly Babcock for repeated "unexcused absences." Babcock, who had been diagnosed with cancer, had been absent from work for several weeks when BellSouth decided to terminated her employment. BellSouth argued that because Babcock's absence began before she had completed 12 months of employment with the company, she was not protected by the Family Medical Leave Act (FMLA). The FMLA applies to employees with at least 12 months and 1250 hours of service. BellSouth conceded that Babcock had 1250 hours of service and would otherwise have been entitled to take a leave of absence because of her cancer if she had completed 12 months of service. Babcock countered that at the time of her termination, she had been employed by BellSouth for at least 12 months. The jury and Appellate Court sided with Babcock, finding that BellSouth could not terminate Babcock for taking unpaid medical leave once she had been employed by the company for 12 months. The Court found that it was the date of termination, and not the date on which the leave began, which determined Babcock's eligibility under the FMLA. The Court further emphasized the strong social interest that lead to the enactment of the FMLA; namely, that Congress was concerned about "inadequate job security for employees who have serious health conditions that prevent them from working for temporary periods." The case demonstrates the importance of employers erring on the side of caution in determining when employees are and are not eligible for FMLA leave: in cases involving a close question of eligibility, courts and juries are more likely to side with an employee with a serious health condition than the employer.
Contact for more information: Andrew B. Cripe
EEOC Releases Employer Guidelines On Dealing With Diabetes In The Workplace
Recent court rulings have done little to help employers understand their obligations under the Americans With Disabilities Act in accommodating employees suffering from diabetes. To help clarify any confusion resulting from the many recent rulings on this issue, the U.S. Equal Employment Opportunity Commission (EEOC) has released a fact sheet on how the ADA applies to diabetes in the workplace. This publication, available at www.eeoc.gov, is designed to assist employers, as well as applicants and employees with diabetes, in understanding their rights and responsibilities. "While there is a considerable amount of general information available about the Americans with Disabilities Act, employers and employees alike often ask questions about how the ADA applies in employment situations involving certain illnesses and conditions," said Commission Chair Cari M. Dominguez. "This new fact sheet focusing on people with diabetes is intended to be the first in a series to address specific types of disabilities." The fact sheet covers such topics as: when diabetes is considered to be a disability under the ADA; when an employer is permitted to ask an applicant or employee questions about his or her diabetes; types of reasonable accommodations employees with diabetes may need on the job; and how an employer should handle safety concerns about people with diabetes in the workplace. According to the American Diabetes Association, approximately 17 million people living in the United States have diabetes, and incidence of the disease is on the rise.
This newsletter has been prepared by Hinshaw & Culbertson LLP to provide information on recent legal developments of interest to our readers. It is not intended to provide legal advice for a specific situation or to create an attorney-client relationship.
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