Employment Law Alert : Gibbons P.C.: Labor Relations, Employment Contracts, Employee Benefits, & Wrongful Discharge Lawyers & Attorneys

The EEOC’s focus on the protection of LGBT employees follows its April 2012 decision in Macy v. Holder, Appeal No. 0120120821 (April 20, 2012), about which we previously blogged, in which the EEOC determined that Title VII affords protection to these employees. The EEOC also takes the position that discrimination based on sex includes discrimination based on a failure "to conform to socially-constructed gender expectations."

Director Gigante cited the rise in pregnancy-related charges filed by older women and discussed the interplay between the Americans with Disabilities Act, the Americans with Disabilities Act Amendments Act, the Pregnancy Discrimination Act, and the Family Medical Leave Act in pregnancy-related discrimination claims. The EEOC is particularly interested in cases alleging failure to accommodate pregnant employees.

The panel also discussed disability discrimination and failure to accommodate claims, with a particular focus on no-fault attendance and fixed leave policies, both of which have been the subject of litigation by the EEOC. Employers should carefully review their attendance and leave policies to ensure that they do not run afoul of the anti-discrimination laws. Director Gigante emphasized that employers should determine the individual needs of the disabled employee in order to identify reasonable accommodation. While it is important to initiate the accommodation process to ensure compliance, Director Gigante noted that the employer need not accept the specific accommodation requested by the employee and that undue hardship to the employer remains a valid consideration.

With respect to recruitment and hiring, Director Gigante reiterated the EEOC’s continuing concern with facially-neutral pre-employment tests and requirements that have a disparate impact on employees belonging to a protected class. Moreover, employers can expect close scrutiny if they elect to use background checks and criminal history reports to screen applicants. It is critical that employers be familiar with the EEOC’s April 2012 guidance on the use of criminal background checks, including the need to perform individualized assessments, and with any state or local laws that may impose further limitations. In addition, the EEOC’s Plan specifies that it will specifically target a number of additional discriminatory recruitment and hiring practices, including exclusionary practices and policies, channeling/steering individuals into jobs due to their status in a particular group, and restrictive application processes.

For information on how employers can protect their businesses and comply with the law, or for an audit of workplace policies and practices, please feel free to contact an attorney in the Gibbons Employment & Labor Law Department.

Susan L. Nardone is a Director in the Gibbons Employment & Labor Law Department. Daniel A. Schleifstein, an Associate in the Gibbons Employment & Labor Law Department, co-authored this post.

In her suit, Young alleged, among other claims, that she was regarded as disabled and discriminated against under the ADA and further that UPS violated the PDA’s requirement that pregnant women be treated just as disabled or injured nonpregnant workers. As to the ADA claim, the Fourth Circuit concluded that Young could not demonstrate that she had a disability within the ADA’s definition, in as much as she could not prove that UPS regarded her as having an impairment that limited a major life activity. Moreover, her lifting limitation was merely temporary and the result of her pregnancy. (It is noteworthy that because the claim was filed prior to the ADA Amendments Act of 2008 (ADAAA), this aspect of Young’s case was decided under the pre-Amendments definition of disability.)

As to the PDA claim, the Fourth Circuit concluded that Young’s proposed reading of the PDA under the UPS facts would require the employer to treat pregnant employees differently than those similarly situated. Specifically, the Court found, UPS had a “pregnancy-blind policy,” that limited accommodations to those injured on the job, who were disabled under the ADA, or who had lost their Department of Transportation Certification. Simply put, the Fourth Circuit held “where a policy treats pregnant workers and nonpregnant workers alike, the employer has complied with the PDA.” Interestingly, the Court also concluded that a statement by a division manager to Young, to the effect that her pregnancy made her “too much of a liability” for the company, was not evidence of discrimination because the individual making the statement was not responsible for the decision to not allow Young the accommodation she requested.

As Young was unable to make out a case based on direct evidence of pregnancy discrimination, the court also considered her claim under the burden-shifting framework applicable to discrimination cases, and concluded that Young could not prove that she was similarly situated to employees whom UPS would accommodate under its policies. That is, she was not disabled under the ADA, had not become injured on the job, and had not lost her Department of Transportation certification. Accordingly, Young’s claim under the PDA failed under the burden-shifting analysis as well.

The legal issues related to pregnancy, disability, and accommodation are complex, and the Young decision, as noted above, does not contemplate Young’s status under the ADAAA, with which the courts are still grappling. For these reasons, despite the Fourth Circuit’s conclusions, employers should consider each pregnant (and nonpregnant) employee’s request for an accommodation on an individual basis. If you have questions regarding employer obligations under the PDA or ADAAA, please feel free to contact any of the attorneys in the Gibbons Employment & Labor Law Department.

Kelly Ann Bird is a Director in the Gibbons Employment & Labor Law Department.

Ms. Bird, and other panelists, will help layout a road map for employers who are navigating the complex New Jersey laws governing employee leave. The panel will provide in-depth guidance on how to comply with the numerous overlapping, and sometimes conflicting, federal and state laws.  Relevant cases as well as practical examples to ensure a sound understanding of the current leave laws and laws that may be on the horizon will also be discussed. For more information or to register for this program, please click here.

The CDC has a website dedicated to the influenza virus which provides free resources and printable materials for employers regarding flu prevention and workplace-specific guidelines. The New Jersey Department of Health and Senior Services, New York State Department of Health, Pennsylvania Department of Health and Delaware Health and Social Services, Division of Public Health also have websites with helpful information for both individuals and businesses regarding the influenza virus. Employers who remain uncertain about whether a proposed policy or practice is permissible or has risky legal implications, however, should contact their in-house or outside employment counsel.

Carla N. Dorsi is a Director in the Gibbons Employment & Labor Law Department.

In US Airways, Inc. v. Barnett, the Supreme Court held that “in the run of cases” it would be an “undue hardship” under the ADA to require an employer to forego its well established seniority system in filling a vacant position in favor of a disabled employee. The Court reasoned that seniority systems provide “important employee benefits by creating, and fulfilling, employee expectations of fair, uniform treatment. These benefits include ‘job security and an opportunity for steady and predictable advancement based on objective standards.’" But seniority systems aside, the Supreme Court ruled that an accommodation request to fill a vacant position should not be considered unreasonable merely because it provides a “preference” in the sense that it permits a disabled worker “to violate a rule that others must follow” or merely because the employer’s policy for filling vacancies is disability-neutral.

In light of Barnett, the Seventh Circuit concluded that requiring an employer to forego a policy of filling a vacant position with the best qualified candidate would not automatically constitute an undue hardship for ADA purposes. The court reasoned that such policies do not present the issues of property rights and administrative concerns presented by seniority polices. Although the court did not hold that policies such as United’s could never constitute an undue hardship, and ruled that the district courts should evaluate such policies on a case-by-case basis, the clear import of the court’s decision is that in “the run of cases” requests by disabled employees to fill vacant positions will be deemed a reasonable accommodation and employers will have a heavy burden to demonstrate undue hardship if required to forego a policy of filling vacancies with the most qualified candidates.

Conclusion

The Seventh Circuit is now the third circuit court to have concluded that an employer’s policy of filling vacant positions with the best qualified person at the expense of a disabled employee is suspect under the ADA. Only one court has held to the contrary, and in that case the Supreme Court granted certiorari only to have the case settle before the Court could decide the issue. Although in most jurisdictions there is currently no definitive ruling on the issue, a “reading of the tea leaves” strongly suggests that an employer who cannot demonstrate a significant hardship if it were to grant a disabled employee’s request to fill a vacant position runs a considerable risk that it will not fare well in any ensuing litigation. If you have any questions regarding the accommodation of disabled employees, please feel free to contact any of the attorneys in the Gibbons Employment & Labor Law Department with any questions that you may have.

Richard S. Zackin is a Director in the Gibbons Employment & Labor Law Department.

In United Airlines, the panel hearing the appeal concluded that it did not have the authority to reverse the Court’s earlier decision in Humiston-Keeling. Finding the logic of the EEOC’s position persuasive, however, the panel “strongly” recommended en banc consideration of the issue. The other circuits that have considered the precise issue are divided. The Eighth Circuit has adopted the Seventh Circuit’s position, but the Ninth and Tenth Circuits have concluded that employers must demonstrate “undue hardship” for ADA purposes when rejecting an accommodation request for a vacant position and cannot merely rely on the availability of more qualified candidates.

Conclusion

It is likely that the Supreme Court will take up this issue at some point. Indeed, the Supreme Court granted certiorari in the above-noted Eighth Circuit case, but the case settled before the Court could render a decision.

Employers should review requests to fill vacant positions as an accommodation on a case-by-case-basis. Although in most jurisdictions there is currently no definitive ruling on the issue, an employer who cannot demonstrate undue hardship when denying such a request in favor of a more qualified employee runs a not insignificant risk that it will not fare well in any ensuing litigation.

If you have any questions regarding the accommodation of disabled employees, please feel free to contact any of the attorneys in the Gibbons Employment & Labor Law Department with any questions that you may have.

Richard S. Zackin is a Director in the Gibbons Employment & Labor Law Department.

Court’s Rationale

In reaching its decision, the Third Circuit construed the definition of “employer” under various laws and interpretations including the FMLA and that of the Fair Labor Standards Act (“FLSA”) containing a similar definition, the Department of Labor’s implementing regulations, and the rationale of the Fifth and Eighth Circuits addressing individual liability claims. The Court held that “just as a real estate management company acting as an agent for building owners may be liable as an employer under the FLSA, an individual supervisor working for an employer may be liable as an employer under the FMLA.” Finally, the Court applied the “economic realities” test, which analyzes whether the purported supervisor exercised the control of an “employer” over the employee. Here, the Court found that sufficient evidence existed regarding the presence of control over the plaintiff to create an issue of fact to deny summary judgment to the individual defendant. Specifically, the Court found that even if the supervisor lacked the authority to terminate the plaintiff, he exercised substantial authority over her termination decision by preparing her termination letter and attending her termination meeting. In addition, the Court noted the individual supervisor’s control over the plaintiff’s employment conditions prior to her termination involved supervising her work, preparing her performance reviews and disciplining her, which further establishes control.

Implications for Employers

The concept of individual liability, especially for an employer which may defend the individual, is more of a tactic by a plaintiff to “personalize” the lawsuit rather than just involving a corporate defendant. Individual liability may exist even if the individual supervisor acted within the scope of his/her duties that involved discipline, termination or some other adverse consequence to the employee. It is not clear from Haybarger whether others involved in such decision-making, such as human resources and legal department personnel, could potentially be liable. However, Haybarger highlights the need for employers to follow a protocol when making decisions that adversely affect an employee’s terms and conditions of employment, to ensure that those participating in the decision-making are trained properly and that documentation concerning the decision-making process is prepared so that an individual supervisor is not left alone or unchecked to decide these matters.

Mitchell Boyarsky is a Director in the Gibbons Employment & Labor Law Department.

Significantly, CEPA, the CFA and the LAD are one-sided fee-shifting statutes that only allow an individual who brings a successful claim to recover attorneys’ fees. Companies that successfully defend such claims cannot receive a similar award. Accordingly, while businesses must weigh the risk of paying the other side’s lawyer when sued under these statutes, an individual who files a claim does not face the same risk. The company’s risk naturally is increased where there also is the potential for a fee enhancement, which, as Walker reminds us, remains as viable a consideration under New Jersey law as it has since the Court’s decision in Rendine.

Attorneys’ fee awards typically are calculated by multiplying the reasonable number of hours an attorney spent working on a case by a reasonable hourly rate. The court in Rendine (a LAD case) decided that an enhancement to this award should be available where an attorney takes a case predominantly on a contingent basis, so as to compensate the lawyer for the added risk undertaken in the representation. As announced by the court in Rendine, these contingency fee enhancers ordinarily range between five and 50 percent of the attorneys’ fee award, and most frequently fall in the 20 to 35 percent range. A 100 percent enhancement is possible, but limited to the exceptional case where there is no prospect for a large damage award and where the relief sought is primarily non-monetary and equitable in nature. Other factors that influence the size of a contingency enhancement include the strength of the claim and whether the attorney mitigated the risk of nonpayment in any way.

For additional details regarding the decision in Walker, contact an attorney in Gibbons Business and Commercial Litigation or Employment & Labor Law Departments.

James J. LaRocca is an Associate in the Gibbons Employment & Labor Law Department. This blog also appears on the Gibbons Business Litigation Alert.

Plaintiff claimed that Defendant discriminated against her in violation of the FMLA, interfered with her rights under the FMLA and retaliated against her in violation of the Americans with Disabilities Act (“ADA”) and the New Jersey Law Against Discrimination (“LAD”) both of which protected disabled individuals from retaliation for engaging in protected activity. She also sued her supervisors individually. Nobel moved to dismiss Plaintiff’s complaint arguing that Plaintiff was not protected by the FMLA because she was terminated after her FMLA expired. Defendant similarly moved to dismiss Plaintiff’s retaliation claims.

Court’s Decision

The Court denied Defendant’s motion to dismiss the FMLA discrimination claim and the retaliation claim similarly because Nobel did not provide Plaintiff proper and timely notice of her rights under the FMLA. Although Plaintiff was terminated after she exhausted 12 weeks of leave, the Court found that had Plaintiff been given the appropriate notice and knew when her leave expired, she could have taken a shorter leave and returned immediately after 12 weeks.

With regard to the disability claim, an employer is required to engage in a dialogue known as the interactive process with an employee claiming to be disabled to consider providing the employee a reasonable accommodation. An employee’s request for an accommodation is considered “protected activity.” Both the ADA and LAD prohibit an employer from retaliating against an employee who engages in protected activity. Here, the Court found that after Plaintiff exhausted her FMLA she might have been entitled to additional leave under the ADA and the LAD as a reasonable accommodation which she was prevented from . The Court held that an allegation of firing an employee who engages in protected activity (i.e., requests a reasonable accommodation) is retaliatory and sufficient to withstand a motion to dismiss.

Practical Guidance for Employers

When an employee requests a leave of absence, an employer covered by the FMLA should carefully consider the basis for the request and timely provide required information in writing to the employee requesting leave. If an employer fails to provide the requisite notification and information or delays providing it, the omission could later taint an employment action. Attorneys in Gibbons Employment & Labor Department are available to assist employers with FMLA and disability leave management needs.

Mitchell Boyarsky is a Director in the Gibbons Employment & Labor Law Department.

Writing for the Court, Chief Justice Roberts officially recognized the ministerial exception and rejected the Sixth Circuit’s analysis, emphasizing that:

members of a religious group put their faith in the hands of their ministers. Requiring a church to accept or retain an unwanted minister, or punishing a church for failing to do so, intrudes upon more than a mere employment decision. Such action interferes with the internal governance of the church, depriving the church of control over the selection of those who will personify its beliefs. By imposing an unwanted minister, the state infringes the Free Exercise Clause, which protects a religious group’s right to shape its own faith and mission through its appointments.

Accordingly, the Court concluded that the ability of religious groups to choose who will preach their beliefs, teach their faith, and carry out their mission is paramount. The Court, however, stopped short of defining the term “minister,” and stated that it was reluctant “to adopt a rigid formula for deciding when an employee qualifies as a minister.”

As it related to Perich, the Court held that she was covered by the ministerial exception “given all the circumstances of her employment.” Among the factors weighed by the Court were: (1) the School held Perich out as a minister, (2) Perich’s title as minister reflected a significant degree of religious training followed by a formal process of commissioning, (3) Perich held herself out as minister of the Church by, amongst other things, claiming a special housing allowance on her taxes that was available only to employees earning their compensation “in exercise of the ministry,” and (4) Perich’s job duties reflected a role in conveying the Church’s message and carrying out its mission.

Despite its refusal to define “minister” in its “first case involving the ministerial exception,” the Court did provide guidance regarding the extent to which ministers perform secular duties and vice versa – the extent to which lay employees perform duties performed by ministers. Specifically, the Court found that the Sixth Circuit gave too much weight to the fact that lay teachers (who were not commissioned ministers) performed the same religious duties as called teachers. Further, the Court found that the Sixth Circuit placed too much emphasis on the fact that Perich performed secular duties. Under these facts, Perich’s religious duties consumed only 45 minutes of each workday. As Chief Justice Roberts noted, the issue of whether someone is a minister “is not one that can be resolved by a stopwatch. The amount of time an employees spends on particular activities is relevant in assessing that employee’s status, but that factor cannot be considered in isolation, without regard to the nature of the religious functions performed” as well as the other considerations discussed above. Moreover, the Court made clear that the ministerial exception is not limited to the head of a religious organization.

What is important for religious employers to remember is that the Court’s decision in Hosanna-Tabor Evangelical Lutheran Church does not create a blanket exception from all wrongful termination lawsuits for religious group employers. Rather, the decision merely creates an exception for those employees who qualify as “ministers,” which is a case-by-case determination. Accordingly, before taking any adverse actions against employees, religious group employers should continue to evaluate their decisions and consider: (1) whether the employee qualifies as a minister, and (2) whether there is any legal risk in taking action. Attorneys in the Gibbons Employment & Labor Law Department can assist with any questions that you may have.

Peter J. Dugan is an Associate in the Gibbons Employment & Labor Law Department.

The CDC has a website dedicated to the influenza virus which provides free resources and printable materials for employers regarding flu prevention and workplace-specific guidelines. The New Jersey Department of Health and Senior Services, New York State Department of Health, Pennsylvania Department of Health and Delaware Health and Social Services, Division of Public Health also have websites with helpful information for both individuals and businesses regarding the influenza virus. Employers who remain uncertain about whether a proposed policy or practice is permissible or has risky legal implications, however, should contact their in-house or outside employment counsel.

Carla N. Dorsi is an Associate in the Gibbons Employment & Labor Law Department.

Second Circuit Opinion

On appeal, the Second Circuit, held that the district court erred in concluding that an employer had no obligation to assist in an employee’s commute, stating that “there is nothing inherently unreasonable . . . in requiring an employer to furnish an otherwise qualified disabled employee with assistance related to her ability to get to work.” As a result, the Second Circuit remanded the case to the district court to consider “whether it would have been reasonable for defendants to provide assistance related to Tinkelman’s ability to get to work.” The Court specifically focused on the fact that Plaintiff had worked for many years in a more suitable location and, as a result, the district court “should have considered whether defendants could have reasonably accommodated her needs simply by transferring her back to Queens or another closer location, allowing her to work from home, or providing a car or parking permit.”

Nonetheless, because “determining whether a particular commuting accommodation is reasonable normally involves a fact-specific inquiry,” the Second Circuit offered a non-exclusive list of factors to assist the district court’s determination of reasonableness on remand:

• The number of employees employed;
• The number and location of its offices;
• Whether other available positions existed for which the Plaintiff was qualified;
• Whether Plaintiff could have been transferred to a more convenient office without unduly burdening Defendants’ operations; and
• The reasonableness of allowing her to work without on-site supervision.

Implications for Employers

The Nixon-Tinkelman decision provides guidance to employers on how to evaluate and handle reasonable accommodation requests related to an employee’s commute. As noted above, the decision is also in line with a number of decisions from other jurisdictions determining whether an employer is required to accommodate commute-related requests. For example, in Colwell v. Rite Aid Corp, the Third Circuit Court of Appeals, covering the states of New Jersey, Pennsylvania, and Delaware, held that changing an employee’s work schedule “in order to alleviate her disability-related difficulties in getting to work is a type of accommodation that the ADA contemplates.” The plaintiff in Colwell requested she only be scheduled to work day shifts due to a vision-impairment that affected her ability to operate a vehicle at night. Similarly, the Ninth Circuit Court of Appeals, in Livingston v. Fred Meyer Stores, Inc., found that the plaintiff’s difficulties in commuting to work due to a vision-impairment required accommodation by the employer, because “seeing” was a major life activity.

The opinions discussed above create a number of issues to which employers must be sensitive. First, the cases make clear that reasonable accommodations are not simply limited to an employee’s on-site work performance, but may, under the appropriate circumstances, also include a duty to accommodate an employee’s limitations in commuting to and from their places of employment. Second, employers should remember that while it is “generally the responsibility of the individual with a disability to inform the employer that an accommodation is needed,” employers are obligated to engage in good faith in the interactive process with respect to all disability-related accommodation requests. Thus, although employers are not obligated to provide accommodations that would cause them “undue hardship,” requests for reasonable accommodations relating to commuting issues must be considered on a case-by-case basis and should not be rejected out of hand.

To discuss any of your company’s employment-related needs, contact any attorney in the Gibbons Employment & Labor Law Department.

Michael J. Riccobono is an Associate in the Gibbons Employment & Labor Law Department.

• Communication: Guidance is provided on how to make effective communication available to guests with disabilities. By way of example, the regulations allow for use of video remote interpreting services as an auxiliary aid. The regulations establish performance standards for these services and required training for users of these services so that they can quickly and efficiently operate the systems.
• Service Animal: The regulations define a “service animal” as a dog that is individually trained to do work or perform tasks for the benefit of an individual with a disability. Excluded from this definition are other animals and dogs who only provide emotional support and are not trained to assist with a disability. Although not in the definition of a “service animal”, the regulations may permit the use of trained miniature horses in lieu of a dog when certain “assessment factors” are met.
• Wheelchairs and Mobility Devices: The regulations provide that wheelchairs and manually powered mobility aids must be permitted in all areas open to pedestrians. A public entity cannot ask an individual using a wheelchair or other power-driven mobility device questions about the individual’s disability but may ask the individual using such a device to provide “credible assurance” that the mobility device is required because of the person’s disability. The regulations also list various factors to be used in determining whether these mobility devices can be allowed at a facility as a reasonable modification.
• Lodging: Places of lodging must ensure that there are reserved guest rooms that are actually available for those guests with disabilities upon their arrival. The regulations also provide that places of lodging must: (1) ensure that people with disabilities are allowed to make reservations for accessible guest rooms during the same hours and in the same manner as other guests; (2) identify and describe accessible features in the hotels and guest rooms to reasonably permit disabled individuals to determine if a guest rooms meets their accessibility needs; and (3) “ensure that accessible guest rooms are held for use by individuals with disabilities until all other guest rooms of that type have been rented and the accessible room requested is the only remaining room of that type.” In addition, the regulations provide guidance about the factors to consider to determine if a facility that is not an inn, motel, or hotel does in fact qualify as a place of lodging. They further clarified that timeshare and condominium properties that operate like hotels are subject to Title III of the ADA.

While the amendments clarify certain issues, they also impose stringent requirements which public entities and private enterprises alike must be aware of and adhere to in order to avoid liability.

On the other hand, employers are not permitted to take any of the following actions, all of which could give rise to violations of the ADA or other antidiscrimination laws:

• Requiring vaccines of all employees (which may implicate either religious or disability accommodation issues);
• Asking employees about underlying medical conditions that may disclose disability information; and
• Conducting medical examinations of employees.

The CDC has a website dedicated to the influenza virus which provides free resources and printable materials for employers regarding flu prevention and workplace-specific guidelines. The New Jersey Department of Health and Senior Services, New York State Department of Health, Pennsylvania Department of Health and Delaware Health and Social Services, Division of Public Health also have websites with helpful information regarding the influenza virus. Employers who remain uncertain about whether a proposed policy or practice is permissible or has risky legal implications, however, should contact their in-house or outside employment counsel.

Carla N. Dorsi is an Associate in the Gibbons Employment Law Department.

The Court’s Decision

In denying the employer’s motion for summary judgment, the court rejected the employer’s arguments that Hoffman was not disabled because his cancer was in remission and because he had worked full time for a year without restrictions. Relying on the expanded definition of disability in the ADAAA, the court held that Hoffman did not need to show that he was substantially limited in a major life activity at the time he requested an accommodation because his cancer, although in remission, would have substantially limited a major life activity if it were active.

Also of importance is the court’s treatment of the reasonable accommodation issue. The court noted that Carefirst failed to provide any evidence that the requested accommodation (allowing Hoffman to work from home) would have created an undue burden on the company. How much would it cost? How would it affect other service technicians’ workload? Were there enough customers in Hoffman’s home area to justify Hoffman having a continuous home office there? The court’s discussion on this point suggests that had Carefirst provided such evidence, the court may have found that Carefirst had satisfied its duty under the ADA to offer a reasonable accommodation.

Conclusion

It is important for employers to be cogniznant of the ADAAA’s expanded definition of “disability.” “Disabled” employees now include those whose impairment is episodic or in remission at the time an adverse employment action is taken or a request for an accommodation is made. Moreover, the Hoffman case highlights the importance of engaging in the interactive process with employees who have requested accommodations - even when the employee’s impairment may not be immediately noticeable by the employer. Of course, should this issue arise, the employer should consult with legal counsel before taking any adverse action against the employee.

Michael J. Riccobono is an Associate in the Gibbons Employment Law Department.