Today is the 28th Anniversary of the Americans With Disabilities Act (ADA)

By Kathleen Jennings (kjj@wimlaw.com)

The EEOC sent out a tweet to remind us that today is the 28th Anniversary of the signing of the Americans with Disabilities Act (ADA) by President George H.W. Bush.

A case filed by a pro se plaintiff in Alabama reminds us that a person does not have to be disabled to be protected from discrimination by the ADA; the ADA also protects an employee whose employer erroneously perceives him/her to be disabled. In the case of Ruggieri v. The City of Hoover, AL, Case No.: 2:18-CV-0476-VEH (Motion to Dismiss denied July 24, 2018), the plaintiff alleged that his violated the ADA when it required him to attend psychiatric counseling. The plaintiff contended that he was the only one in his department required to do so, thereby showing it was inconsistent with job requirements and business necessity. The ADA provides that a covered employer cannot require a medical examination and cannot make inquiries of an employee as to whether such employee is an individual with a disability or as to the nature or severity of the disability, unless such examination or inquiry is shown to be job-related and consistent with business necessity.

The City moved to dismiss on a number of procedural grounds. Among the arguments made by the City was that the plaintiff’s EEOC Charge (which generally provides the factual basis of a subsequent lawsuit) was deficient because the plaintiff did not allege that he was disabled. The district court rejected this and other arguments by the City. While giving the Plaintiff some latitude because he was not represented by an attorney, the court noted that the ADA protects employees who are not disabled. Further, the section of the ADA that prohibits medical examinations unless they are job-related and consistent with business necessity is not limited only to persons who are actually disabled.

This case is in the early stages, so we don’t know all of the facts. Nevertheless, it appears that the City could have handled the situation a lot better. If an employer wants an employee to undergo a physical or mental examination, it needs to have a good job-related reason, with supporting documentation, and it should share that reason with the employee so there are no misunderstandings.

This case also reminds us that an employer cannot blithely refer an employee to “anger management counseling.” Ideally, if the employer believes that an employee has demonstrated behaviors in the workplace that warrant a referral to anger management counseling, the employer should attempt to persuade the employee to attend such counseling voluntarily. However, if the employer requires an employee to attend anger management counseling as a condition of employment, this requirement may be construed as a “medical examination” under the ADA, and the employer must have a job-related reason consistent with business necessity to support it. Consult with experienced employment counsel to make sure that your company is not violating the ADA.

Kathleen Jennings, Principal is a principal in the Atlanta office of Wimberly, Lawson, Steckel, Schneider, & Stine, P.C. She defends employers in sexual harassment and other employment litigation and provides training and counseling to employers in employment matters. She can be contacted at kjj@wimlaw.com.

©2018 Wimberly Lawson

The materials available at this blog site are for informational purposes only and not for the purpose of providing legal advice. You should contact your attorney to obtain advice with respect to any particular issue or problem. Use of and access to this Web site or any of the e-mail links contained within the site do not create an attorney-client relationship between Wimberly Lawson and the user or browser. The opinions expressed at or through this site are the opinions of the individual author and may not reflect the opinions of the firm or any individual attorney.

 

You’d Better Believe That Atheists Are Protected From Religious Discrimination

By Kathleen Jennings (kjj@wimlaw.com)

A case out of Kentucky reminds us that religious discrimination claims can be asserted by atheists who are subjected to harassment on the basis of their beliefs. In Queen v. City of Bowling Green , W.D. Ky., No. 1:16-CV-00131, (7/20/18), a firefighter sued the City of Bowling Green, Kentucky for religious discrimination. The firefighter, who is an atheist, alleged that supervisors and co-workers made hostile and demeaning remarks concerning his atheism and about non-Christians generally, and that the harassment was so severe that he was eventually forced to resign his employment. Among the remarks he alleged were a fire captain’s statement that theists “deserved to burn,” and two chiefs told him that he should join a church and “get right with Jesus.” In addition, he was forced to participate in Bible study during meals at his fire station.

The district court denied the City’s motion for summary judgment, sending the case to a jury trial. In his decision, the District Judge wrote that “[a]lthough atheism is the absence of religious beliefs, it is still a protected class for purpose of Title VII.” Other federal courts, including the U.S. Courts of Appeals for the Fifth and Seventh Circuits, have held that Title VII protects atheist employees against religious discrimination. For example, the Fifth Circuit ruled that an employer unlawfully required an atheist to attend staff meetings that including religious talk and prayer.

The takeaway: Employers should respect the religious beliefs of their employees, and in some cases, make reasonable accommodations for those beliefs.

Kathleen Jennings, Principal is a principal in the Atlanta office of Wimberly, Lawson, Steckel, Schneider, & Stine, P.C. She defends employers in sexual harassment and other employment litigation and provides training and counseling to employers in employment matters. She can be contacted at kjj@wimlaw.com.

©2018 Wimberly Lawson

The materials available at this blog site are for informational purposes only and not for the purpose of providing legal advice. You should contact your attorney to obtain advice with respect to any particular issue or problem. Use of and access to this Web site or any of the e-mail links contained within the site do not create an attorney-client relationship between Wimberly Lawson and the user or browser. The opinions expressed at or through this site are the opinions of the individual author and may not reflect the opinions of the firm or any individual attorney.

 

 

Supreme Court Nominee Kavanaugh Has Record of Pro-Business Decisions

By Kathleen J. Jennings (kjj@wimlaw.com)

On Monday, Judge Brett Kavanaugh of the D.C. Circuit Court of Appeals was nominated to the U.S. Supreme Court. Kavanaugh is a graduate of Yale Law School who clerked for retiring Justice Kennedy (at the same time as Justice Gorsuch). He was appointed to the D.C. Circuit in 2003 by George W. Bush and was confirmed after 3 years.

If confirmed (which is probable), Kavanaugh would bring a pro-business approach to the highest court. Some of the labor and employment issues where his vote could influence the direction of the law are the following:

  • Harassment of the basis of sexual orientation. As discussed in previous blog posts, there is currently a conflict in the Circuits regarding whether Title VII covers harassment on the basis of sexual orientation. I predict that with Kavanaugh in the majority, the Supreme Court will narrowly interpret Title VII and find that it does not cover harassment on the basis of sexual orientation.
  • Joint employer test. The legal issue of whether one business is the joint employer of another business’s employees is an important one for businesses that subcontract out some work to other businesses. Under the Obama administration, the parameters of the joint employer relationship were expanded. In his writings for the D. C. Circuit, Kavanaugh has taken a narrow view of joint employer issues. Should the issue of what constitutes a joint employment relationship come to the Supreme Court, it is probable that Kavanaugh will continue to use that narrow approach.
  • Mandatory arbitration of employment disputes. In the most recent session, the Supreme Court upheld the validity of class action waivers. It is likely that the issue of mandatory arbitration agreements for individual employment disputes could come before the Supreme Court next term. If so, it is probable that the Court, including Kavanaugh, will uphold the use of mandatory arbitration agreement for individual disputes.
  • Deference to administrative agency interpretations and rulemaking. In his writings, Kavanaugh does not appear to be a big fan of administrative agencies, and he appears to be disinclined to show deference to their interpretations of their regulations.

The takeaway: The addition of Kavanaugh to the Supreme Court will result in more favorable decisions for employers and businesses.

Kathleen Jennings, Principal is a principal in the Atlanta office of Wimberly, Lawson, Steckel, Schneider, & Stine, P.C. She defends employers in sexual harassment and other employment litigation and provides training and counseling to employers in employment matters. She can be contacted at kjj@wimlaw.com.

©2018 Wimberly Lawson

The materials available at this blog site are for informational purposes only and not for the purpose of providing legal advice. You should contact your attorney to obtain advice with respect to any particular issue or problem. Use of and access to this Web site or any of the e-mail links contained within the site do not create an attorney-client relationship between Wimberly Lawson and the user or browser. The opinions expressed at or through this site are the opinions of the individual author and may not reflect the opinions of the firm or any individual attorney.

 

Certain Employers Required to Electronically Submit Form OSHA 300A By July 1

By Kathleen Jennings (kjj@wimlaw.com)

Some companies may not be aware that effective July 1, 2018, they are required to report certain information electronically to OSHA pursuant to the Improve Tracking of Workplace Injuries and Illnesses final rule.

Establishments with 250 or more employees that are required to keep injury and illness records, as well as establishments with 20-249 employees in certain high-risk industries must submit information from their 2017 Form 300A by July 1, 2018. Beginning in 2019 and every year thereafter, the information must be submitted by March 2.

Note that covered establishments with 250 or more employees are only required to provide their 2017 Form 300A summary data. OSHA is not accepting Form 300 and 301 information at this time. OSHA announced that it will issue a notice of proposed rulemaking (NPRM) to reconsider, revise, or remove provisions of the “Improve Tracking of Workplace Injuries and Illnesses” final rule, including the collection of the Forms 300/301 data. The Agency is currently drafting that NPRM and will seek comment on those provisions.

In April, OSHA announced that affected employers in state-plan states that have yet to adopt the electronic recordkeeping rule are nevertheless required to submit their 300A data by the July 1 deadline. (These states include California, Maryland, Utah, Washington, and Wyoming.) Employers in those states are required to use federal OSHA’s Injury Tracking Application (ITA) to submit their data.

Some states, such as Washington and Wyoming, have disputed federal OSHA’s authority to require establishments under state plan jurisdiction to follow the federal requirements, and OSHA has admitted that it does not have the authority to cite employers in those states that fail to submit their 300A data by the July 1 deadline. Nevertheless, employers in state-plan states are advised to submit 300A data to federal OSHA by the July 1 deadline.

Kathleen Jennings, Principal is a principal in the Atlanta office of Wimberly, Lawson, Steckel, Schneider, & Stine, P.C. She defends employers in sexual harassment and other employment litigation and provides training and counseling to employers in employment matters. She can be contacted at kjj@wimlaw.com.

©2018 Wimberly Lawson

The materials available at this blog site are for informational purposes only and not for the purpose of providing legal advice. You should contact your attorney to obtain advice with respect to any particular issue or problem. Use of and access to this Web site or any of the e-mail links contained within the site do not create an attorney-client relationship between Wimberly Lawson and the user or browser. The opinions expressed at or through this site are the opinions of the individual author and may not reflect the opinions of the firm or any individual attorney.