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September 2009 Legal & Legislative Update |
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LITIGATION The Legal Update includes new developments and matters of interest throughout the United States. Be aware that our various federal circuit courts reach somewhat differing conclusions. So a federal court decision in another part of the country, and especially a different state’s court decision, may not quite be “the law” in your jurisdiction. Some courts lead the way; others lag behind. The Legal Update lets you see the overall trends and compare them with your jurisdiction. Wisconsin is part of the Federal Seventh Circuit (Wisconsin, Illinois and Indiana). Privacy Drug testing -- direct observation rule upheld. A federal court has upheld the Department of Transportation requirement for direct observation of drug tests for those involved in trucking, pipeline or hazardous materials work. Several unions and some employers challenged the rule as invasion of privacy and unreasonable search and seizure under the Constitution. The court found that the Department of Transportation had a “compelling interest” in public safety which overbalanced the individual interests of those being tested. BNSF Railway Co. v. U.S. Dept. of Transportation (D.C. DC, 2009). Remedies -- Preliminary Injunction Court orders university to continue employment of Russian scientist while discrimination case proceeds. A Russian biologist performed research work under an H1B visa. She was informed by her supervisor (of Korean origin) that her work would end due to a lack of funding. However, two Korean researchers were then hired to do the same work. The Russian filed a Title VII discrimination suit. Normally a plaintiff in a discharge suit suffers the termination and continues the suit after the end of employment, seeking back pay and reinstatement. However, in this instance, the scientist’s right to be in the U.S. was tied to the employment. The moment work ceased, the H1B visa became invalid and she must leave. This would in practicality also end her ability to pursue the case. The court recognized this as an “irreparable harm” situation and ordered the university to continue the employment for a period of time to allow the case to proceed. In doing so, it found the interest of a fair legal process outweighed any moderate harm to the university, and it also found a likelihood that the plaintiff would prevail in the case based on the preliminary evidence presented. Karakozova v. Univ. of Pittsburgh (W.D. Penn., 2009). This case may be significant regarding preliminary remedies for foreign nationals who file cases. Jurisdiction Section 1981 may not be filed against municipalities. The Third Circuit has joined the majority of federal courts holding that 42 U.S. Code §1981, race discrimination cases may not be filed against municipalities. It ruled that 42 U.S. Code §1983, for Constitutional Equal Protection, is the proper statute for filing race discrimination cases against these public sector employers. McGovern v. City of Philadelphia (3rd Cir., 2009). [Section 1983 still provides a powerful remedy and longer statutes of limitation than the standard Title VII discrimination case.] Discrimination Another Testing Case New York City firefighter test found to be discriminatory. On the heels of the Supreme Court’s Ricci v. DeStefano decision reinstating the City of New Haven firefighter tests, a Federal District Court has found New York’s firefighter entrance exam to have a discriminatory adverse impact and invalidity. This may set up the next major appellate case on race discrimination in testing. The New York firefighter test clearly had an adverse impact against non-White applicants. It had an over 90% failure rate of non-Whites, resulting in hiring of only 3.2% (80 of 1,390) of African Americans and 8.5% of Hispanic candidates (187 of 2,125). Of 8,998 firefighters, the City had only 303 African Americans and 605 who were Hispanic. The case was brought by the U.S. Department of Justice. The court then went beyond this initial adverse impact evidence. It cited the recent Ricci decision and claimed to have used the new Ricci standard by proceeding to assess the validity of the test before reaching a conclusion. The District Court’s conclusion was that the test was not validated. The court found an absence of evidence to show a relationship between the test questions and the tasks and abilities necessary for firefighting. The evidence “paints an extremely troubling picture of the test construction process and the content the City sought to test.” The City’s test was “riddled with serious defects, and the facts it presented patently failed to satisfy the demands of test validation.” United States v. New York City (E.D. NY, 2009). Though this case involved a detailed analysis of the test’s validity, it was initiated by a prima facie showing of disparate impact. Justice Scalia’s concurring opinion in Ricci questioned whether an adverse impact should be allowed at all. Thus, this New York City case, if appealed, may be a vehicle to challenge whether a plaintiff can bring such a case, and even reach the issue of validity. Age -- Similarly Situated Seniority must be accompanied by skill. A pharmacy employee alleged that his race (African American) and his age were the basis of his non-promotion. Though he was by far the most senior employee, he was continually passed over for promotion. All those who were promoted were either younger or of a different race than he. He filed suit under Title VII, the Age Discrimination Act and 42 U.S. Code §1981. The court found that longevity did not equate to qualification for promotion. The plaintiff’s employment record did not show superior skills, and his evaluations had “needs improvement.” Those who were promoted had documented superior skills and superior performance evaluations. They were not similarly situated. Thomas v. CVS Pharmacy (11th Cir., 2009). Similarly situated requires “apples to apples” comparison. A railroad employee was fired for excessive speed in dangerous weather while hauling cars of hazardous chemicals. He sued for discrimination on the basis of race (Caucasian), sex and age, claiming that other employees who were younger, or female, or non-White had similar discipline records but were not discharged. Prior to discharge, the employee had received discipline for falsifying records, excess speed and several moving violations. His evidence showed 24 other employees as “comparators” who had the same number of disciplinary actions but had not been fired. The court found the evidence unpersuasive. The most relevant comparators (those under the same management) had been disciplined for attendance and other non-equipment related violations. Though they may have the same number of violations, they were not as serious and were not “moving violations” and, thus, not similarly situated for discrimination purposes. Multiple attendance issues do not equate in seriousness to even one instance of excessive speed while hauling hazardous materials. The court dismissed the case. Opsatnik v. Norfolk & Southern Corp. (3rd Cir., 2009). [The standard for “similarly situated” is interpreted differently by the various federal courts. The 3rd, 6th, 8th and 11th Circuits impose a strict interpretation requiring almost identical circumstances and the same supervisor. The 2nd, 4th, 5th, 7th and 10th Circuits, in contrast, require “reasonably similar” circumstances, and reject an “overly rigid formulation” of the standard. Recently the U.S. Supreme Court declined to hear the case of Harvey v. County of Koochiching (appealed from the 8th Circuit), thus continuing this split in standards.] Sex -- Harassment “Say whatever you want -- if you don’t touch” was not correct legal standard. A restaurant employee was subjected to ongoing sexually suggestive remarks by her manager. She told him he had “crossed the line” and was harassing her. He replied that he knew the law and that it was, “you can say whatever you want to say, but you can’t touch!” Based on this legal interpretation, he continued his comments. He also engaged in retaliation after the employee complained to higher management. The court found the manager’s legal interpretation to be in error and granted trial for sexual harassment and retaliation. Donaldson v. CDB, Inc. d/b/a Popeye’s (5th Cir., 2009). Reasonable employee standard -- don’t bottle up your upset. An employee claimed she was subjected to sexually harassing comments by her supervisor for six months, but did not raise any concerns. When she did eventually complain, the company took prompt, effective action to stop the alleged behaviors. She sued, seeking damages for the months she had been subject to the harassment. The court dismissed the case, finding “a reasonable employee would report if she knows a complaint procedure has been established for that purpose.” The court found the company had a complaint policy and procedure, and the plaintiff clearly knew of it. So, she could not hold the company liable for her own decision to remain silent or “intimidated” month after month. Taylor v. Solis (D.C. Cir., 2009). Race Baltimore pays $4.5 million to settle police discrimination case. The City of Baltimore has settled a case by a class of African American police officers which alleged racial discrimination in discipline, harassment and retaliation against those who complained. The suit was brought under Title VII, 42 U.S. Code §1981 and 42 U.S. Code §1983 (First and Fourteenth Amendment Constitutional claims). In addition to monetary relief, the settlement includes implementing training courses for sergeants and lieutenants, and an outside consultant to monitor the police department practices and training and report to the court for up to five years. Hopson v. Baltimore (D. Md., 2009). Disability Employer should not have snubbed request for non-skid floor for service animal. A state employee with a leg/walking impairment had a specially trained dog which assisted her in getting around the workplace. However, the slick linoleum flooring caused the dog to slip and fall. The employee tried dog booties, which resulted in paw infections. She requested that the employer accommodate by getting non-skid floor coverings for areas she needed to traverse. The employer sat on the request month after month, with no action or response. In the meantime, the service animal fell several more times, requiring veterinary treatment. The agency providing the service animal then decided to withdraw the dog, due to repeated injury and safety concerns. The employee sued for failure to engage in the interactive process and failure to accommodate under the federal ADA and the Montana Human Rights Act (MHRA). The employer defended the case by claiming that the ADA and MHRA require accommodation of people with disabilities, but do not require accommodation of a service animal. Allowing the service animal into the job site is the accommodation, and one is not required to then further accommodate the accommodation. The court disagreed. A service animal, in this case, is no different than any other mobility device such as a wheelchair. Allowing an employee to bring a wheelchair into the building but failing to provide internal ramps, etc., for its use would nullify the accommodation. 28 C.F.R. §36.304 of the ADA specifically mentions modifying floor surfaces for wheelchairs as part of the accommodation requirements. There should be no difference for other sorts of mobility aids, such as a service animal. The failure to consider and implement the floor coverings was a failure to accommodate the employee, not the mobility device. The court upheld an award of $30,000 plus attorneys fees (plus the employer had to spend significant legal fees and costs to defend the case). (Half of the damage award was for vet bills and replacement of the service animal which had to be retired because of the repeated injuries.) The non-skid floor covering would have cost $1,500. McDonald v. Mont. Dept. of Environmental Quality (Montana Sup.Ct., 2009). Work from home accommodation validly stopped due to performance record. A company validly denied a disabled employee’s accommodation request to continue telecommuting. The evidence showed she repeatedly missed deadlines and produced significantly less work than others, and less than her prior at-work level. This justified discontinuation of the accommodation. Robinson v. Dept. of Energy (9th Cir., 2009). Retaliation Four million dollar retaliation verdict for honest witness. A religious radio station lost a retaliation case filed under 42 U.S. Code §1981. The case started when one of the White employees at the African American-owned station complained of verbal racial harassment directed at her by the nephew of the station owner. She was fired, and filed a case of her own with the EEOC. Then Ms. Blount, an African American co-worker, informed management that she had witnessed the racial harassment of the White employee and would tell the truth when questioned in the case. The station owner replied that he could not understand “how a black person could side with a white person against a black person.” Blount was confronted by a series of angry, profane and threatening comments, including being called an “ignorant N----” for siding with a white person, and comments by the station owner that he was connected with powerful people and could make her “cease to exist.” Blount continued her insistence that she would not lie. She was fired. She then sued for retaliation. The $4 million-plus award covered $257,350 in back pay, $1,182,832 in attorney fees, and the remainder in compensatory/punitive damages. Blount v. Stroud (Ill. App. Ct., 2009). Sarbanes-Oxley Act (SOX) -- Whistleblowing Too Many Comparators. In Harp v. Charter Communications, Inc. (7th Cir., 2009), an employee alleged that she was selected for layoff and terminated in retaliation because she had reported financial fraud under SOX. The court granted summary judgment in favor of the employer. The company eliminated the entire department. She was treated the same as all others in the department. The court found it improbable that the company would have eliminated over 50 employees just to retaliate against a single person. |
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