“Regarded As” Disability Claim Does Not Require Proof of an Employer’s Subjective Belief

Under the ADA Amendments Act of 2008 (“ADAAA”), an individual meets the requirement of being “regarded as” having a disability, and thus is protected from discrimination, where his or her employer believes that he or she is substantially limited in a major life activity regardless of whether he or she actually is disabled.  Prior to the ADAAA, to prove a “regarded as” claim, a plaintiff in the Ninth Circuit was required to put forth evidence that the employer “subjectively believed” the plaintiff was disabled.  However, the U.S. Court of Appeals for the Ninth Circuit recently made clear that the ADAAA no longer requires a plaintiff to proffer such evidence.

In Nunies v. HIE Holdings, plaintiff complained of an injury and asked for less physically demanding work.  After the plaintiff’s request initially was approved, he advised one of the decision makers of his injury.  A few days later, the employer rescinded its offer to transfer plaintiff and told him that the position no longer existed because of “budget cuts.”  At that point, the employer terminated plaintiff’s employment. Possibly establishing pretext, a few days later, the employer advertised an opening for the position that it advised plaintiff no longer existed.  The Ninth Circuit reversed the lower court’s grant of summary judgment, holding that it was enough for plaintiff to put forth evidence that he advised his supervisor of his shoulder injury and that his position suddenly was eliminated without requiring evidence of his employer’s subject belief.

Employers are reminded of their obligations under the Americans with Disabilities Act that liability can be imposed where an employer considers and treats an employee as having a disability even if the employee does not in fact have one.

Improving Someone Else’s Health (by Organ Donation) Qualifies an Employee for FMLA Leave

The United States Department of Labor (“DOL”) has just issued an Opinion Letter concluding that organ-donation surgery can qualify as a “serious health condition” under the FMLA.  Specifically, the Opinion Letter affirmatively answered whether an employee may use FMLA leave for post-operative treatment where the employee donates an organ, even when the donor is in good health before the donation and chooses to donate the organ solely to improve someone else’s health.

The Opinion Letter clarified that where an employee-donor’s situation involves inpatient care and/or continuing treatment, his or her condition would qualify as a serious health condition under the FMLA. The DOL further explained that the FMLA defines a serious health condition, which would render an employee unable to perform the basic functions of a job, “as an ‘illness, injury, impairment, or physical or mental condition that involves’ either ‘inpatient care in a hospital, hospice, or residential medical care facility’ or ‘continuing treatment by a health care provider.'”

Given that the organ donor at issue in the Opinion Letter was a healthy individual, many employers might be inclined to deny FMLA leave to such individual. The Opinion Letter, therefore, serves as a reminder of the complexity of handling and responding to FMLA requests, and the need for employers to carefully assess and respond to leave requests on a case-by-case basis. Where issues are particularly unique and less than clear, employers should consult with counsel before taking action.

New York City: Today is the Day to Post and Distribute Fact Sheet on Sexual Harassment

Beginning September 6, 2018, all New York City employers must distribute and conspicuously post the New York City Commission on Human Rights fact sheet on the “Stop Sexual Harassment in NYC Act” to all new hires.  For further detail, see our related article by clicking here, where you can find links to the fact sheet and notice.

Inconsistent Explanations for Adverse Action Lead to Denial of Summary Judgment

A federal district court in Pennsylvania denied the Pittston Area School District’s motion for summary judgment, finding Plaintiff offered sufficient evidence to show the District’s stated reasons for denying Plaintiff a promotional opportunity were pretextual.  Kupetz v. Pittston Area School District.  Specifically, Plaintiff claimed that the District posted one position, then during a Board meeting changed the title, salary, duties, and reporting structure, and hired a less-qualified younger woman, in effect, preventing him from applying for the new position. The District argued that Plaintiff’s claim of age discrimination must fail because there was no adverse employment action and offered three nondiscriminatory reasons for changing the position and hiring a younger candidate: (1) to clarify the title and organizational structure; (2) the District’s lawyer instructed them to; and, (3) the woman that was hired had a prior working relationship with the Superintendent.

Plaintiff was able to establish pretext by, among other things, showing that the District offered several conflicting statements regarding the changing of the title. One explanation related to the reporting structure, another saying the change was in title only. Given these and other conflicting statements, the Court concluded that the District “fail[ed] to present a cohesive (or in many ways, coherent) reason as to why the events unfolded as they did, with nearly every person deposed offering a different reason or no reason at all for the hiring” decision. Thus, the Court found that a factfinder could reasonably believe the District’s reasons for denial of the promotional opportunity were pretextual.

Seventh Circuit Affirms Grocery Store Employee’s Same-Sex Harassment Title VII Victory

A male employee working in the meat department of his local grocery store prevailed in his Title VII sex discrimination claim alleging an unlawful hostile environment harassment created by his male coworkers and male supervisor. Following a verdict in plaintiff’s favor at the trial court level, the employer appealed to the U.S. Court of Appeals for the Seventh Circuit.  Smith v. Rosebud Farm, Inc. The appellate court upheld the lower court’s ruling.  According to the worker, and trial testimony, the employee’s male coworkers grabbed his genitals, groped him, mimed sexually explicit acts and even reached down his pants. Despite the employee’s complaints, nothing changed. Exacerbating the conduct, and making it apparent that the employer was deemed to be aware of the misconduct, the supervisor participated once or twice in the harassment. The employee’s coworkers also vandalized his car and menacingly banged their meat cleavers as he passed.

The employer argued plaintiff had to show more than just unwanted touching; the plaintiff had to prove the harassment he faced occurred “because of his sex.” The employer contended that the employee faced “sexual horseplay” and not “sex discrimination.” However, and as the Supreme Court directed in Oncale v. Sundowner Offshore Services, Inc., the employee introduced evidence that only men, not women, experienced the same treatment as him. With the increased attention on workplace harassment, including recent laws passed in, for example, requiring training and a detailed complaint presentation and remediation process, employers must investigate and timely address claims of sexual harassment. Unlawful sexual harassment has long included both opposite-sex and same-sex behavior. A reliable complaint and reporting procedure are vital to an effective anti-harassment policy.

Ensuring Enforceability of Separation and Release Agreements

The Sixth Circuit recently allowed an Equal Pay Act and Title VII pregnancy discrimination suit to proceed despite the fact that plaintiff signed an agreement releasing all claims and, did not turn back the severance payment given in consideration for the release. In McClellan v. Midwest Machining, Inc., the Court relied upon the United States Supreme Court’s analogous decisions in Hogue v. Southern R.R. Co. and Oubre v. Entergy Operations, Inc. to hold that a plaintiff is not required to tender back consideration received before filing suit under Title VII and the EPA.

The lawsuit was allowed to proceed, and enforcement of the release denied at this early stage, because plaintiff, who was pregnant at the time of termination, “was ‘blindsided’ by an unexpected meeting” to terminate her employment and felt “bullied” into signing the agreement. Plaintiff testified that the company’s president said she “needed to sign if [she] wanted any severance.” While plaintiff and the president reviewed the agreement together, plaintiff claimed she felt “pressured” into signing without a lawyer and later explained that she did not understand that the claims she released were discrimination claims. As such, it was possible for a jury to conclude that plaintiff’s execution of the release was not knowing and voluntary.

Ensuring that an employee enters into release agreements knowingly and voluntarily is of primary concern when presenting such agreements to employees. Using the Older Workers’ Benefit Protection Act language and format surely would help to show that the release was signed knowingly and voluntarily.

New York City Issues Sexual Harassment Training Notice and Fact Sheet

In an effort to prevent sexual harassment in the workplace, New York State and New York City have enacted laws mandating educational sessions to reinforce what is (and what is not) appropriate workplace conduct.  Joining, California, Connecticut, and Maine, mandatory training will now be required in New York City and New York State.  To help guide employers, NYC has published a fact sheet—you can access from this link.  We are still awaiting guidance from New York State and will keep you posted when those are issued.  If you need assistance understanding what is required or how to fulfill it (or to do the training), please let us know.


Hospital Compliance Officer’s Opposition to Termination of Co-Worker States a Claim of FMLA Retaliation

The United States District Court for the District of Columbia recently denied a Hospital’s motion to dismiss a Family and Medical Leave Act (“FMLA”) retaliation claim by a senior officer because of the close time proximity between a protest of alleged discriminatory treatment of a co-worker and the protester’s own discharge.  Lott v. Not-For-Profit Hospital Corporation.  The Court held that plaintiff’s meeting with the Hospital’s CEO to discuss his belief that the co-worker’s termination  violated the FMLA, could be considered protected “oppositional conduct.”   In light of the close timing between the oppositional conduct and termination, the Court allowed the FMLA retaliation claim to proceed.

Employers should be mindful of potential retaliation claims when an employee engages in protected activity before taking adverse action.  To mitigate risk, the basis for any such adverse action should be well documented.