An ADEA Charge Is Whatever The EEOC Says It Is, February 28, 2008
The Age Discrimination in Employment Act (ADEA) requires that an employee file with the EEOC “a charge alleging unlawful discrimination” at least 60 days before filing a lawsuit. The EEOC is then supposed to notify all persons named in the charge and attempt to eliminate any unlawful practice by informal means. On February 27, 2008, the U.S. Supreme Court ruled (7-2) that a “charge” of discrimination is any document that can reasonably be construed as a request by an employee for the EEOC to take action to vindicate his or her rights. Federal Express Corp. v. Holowecki, U.S., No. 06-1322, 2/27/08). This ruling is consistent with the EEOC’s internal directives (but not necessarily its practice) since 2002. In this case, an EEOC intake questionnaire accompanied by a six page affidavit constituted an ADEA charge, even though the EEOC never acted on the filing or even notified FedEx.
Workplace Rules v. Religious Practices, February 28, 2008
In a Title VII religious accommodation case, the U.S. Court of Appeals for the Fourth Circuit explained that a duty of reasonable accommodation “cannot be read as an invariable duty to eliminate the conflict between workplace rules and religious practice.” EEOC v. Firestone Fibers & Textiles Co., - F.3d – (4th Cir. February 11, 2008).
David Wise worked at a Firestone plant that operates a treating unit and testing laboratories for tire cord fabric. In 2001, Wise became a member of the Living Church of God. His religion prohibited him from working during the faith’s Sabbath, which takes place from sundown on Friday to sundown on Saturday. In addition, Wise could not work on 7 sets of religious holidays, which typically totaled 20 days that did not already coincide with the Sabbath.
In February 2002, pursuant to a collective bargaining agreement, Wise was bumped to a position where he was required to work 3:00 p.m. to 11:00 p.m. Monday through Friday, as well as most Saturdays. Wise sought a reasonable accommodation, because he was now regularly scheduled to work on his Sabbath. Firestone considered several special accommodations, such as changing his shift or position or leaving portions of his shift uncovered, but none of them were feasible based on the collective bargaining agreement or other legitimate reasons.
Wise was informed that he would have to use the various leave devices available under the collective bargaining agreement. Employees with Wise’s seniority were entitled to 15, 8-hour vacation days and 3 floating holidays. He could also swap shifts with coworkers 2 times every calendar quarter, and he could take up to 60 hours of unpaid leave for any reason. If Wise took less than 36 hours of unpaid leave, he also had the option of using 3 of his vacation days in half-day increments, for a total of 6 half-day vacation days. Additionally, while Firestone could not permanently change his shift, the Company allowed Wise to work a day shift on Fridays when a day shift worker in his position was absent.
By September 2002, Wise had used all of his vacation days, floating holidays, and almost all of his unpaid leave, to avoid working on his Sabbath or religious holidays. He requested an unpaid leave of absence of 11 days to observe 2 religious holidays. His request was denied. Wise was terminated when he did not report to work on the religious holidays. The Court held that Firestone provided a reasonable accommodation to Wise based on the application of existing company policies and the specific accommodations made for his particular situation.
Hold That Line! February 21, 2008
Charles Weisberg, an employee of the Riverside, New Jersey, school system, complained that because of sensitivity to sound, he needs a quiet working environment. He sued his employer for not affording him perfect silence at work. During litigation, Weisberg testified that he had spent Monday, October 29, watching football on television. He added that because of his disability, there is no way he could have gone to the game. Except, Weisberg had gone to the New York Giants game that evening and the employer had videotape of him at the stadium. When the school system moved for relief from the court, Weisberg said he had "false memory syndrome" which caused him to concoct a story then believe it. No relief was granted to the employer, because the court found that Weisberg's story was not frivolous, unreasonable, or without foundation. No word on whether Weisberg went to the Superbowl parade, or concocted a memory about it.
Sauce For The Government Goose, February 20, 2008
In a pair of cases heard on consecutive days this week the Solicitor General of the United States argued that employment discrimination statutes include an implied prohibition against retaliation, unless the employer is the United States government. At oral argument, Justice Samuel Alito found it curious "that the government's position seems to be that a general ban on discrimination includes a ban on retaliation except when the government is being sued." The Constitution contains guarantee of consistent government.
They Shoot Horses, Don't They? February 18, 2008
While working as en employee of the business, Evelyn Benders carried on a five year sexual relationship with Joel Bellows of the Chicago law firm Bellows & Bellows. The second Bellows in the firm is Laurel Bellows, who is married to Joel. After the sexual relationship ended, Ms. Bellows apparently found the presence of Ms. Benders discomfiting. After some interim dealings that included advancement of money to Ms. Bender under the cover of working as an independent contractor, the law firm ended the employment of Ms. Benders. Benders sued, contending that the termination represented retaliation because of a complaint of age and race discrimination. One of the more interesting pieces of evidence produced by Benders was an email that referred to her as Seabiscuit, and said that she "should have been put down" long ago. Of course, the law firm asserts that Ms. Bellows had adequate non-discriminatory reason to want Benders fired. Still, the federal court that considered the matter has determined that the case should go to trial on the retaliation charge.
Former Employee Liable For Memorizing Trade Secrets, February 15, 2008
Robert Martin worked for five years as a pension analyst for Al Minor & Associates ("AMA"), a Columbus, Ohio, actuarial firm that implements retirement plans for about 500 clients. While he still worked for AMA, in 2002, Martin set up his own competing actuarial company. He quit his job at AMA a year later and solicited and obtained business from several AMA clients.
When AMA learned of Martin's misdeeds, it filed a lawsuit for injunctive relief and monetary damages, claiming that Martin had violated the Ohio Uniform Trade Secrets Act by using AMA's confidential client information to get clients for his new business. The trial court denied injunctive relief, but awarded AMA over $25,000, representing the fees AMA would have earned from the clients stolen by Martin.
Martin's argument at trial, and upon appeal, was that he never took any documents from AMA, but only used the confidential information – AMA's client list – that he had learned while working for AMA. The court disagreed, finding that just because Martin memorized AMA's client list, rather than physically removing it, did not prevent the information from being considered a trade secret. While simple information learned during the course of employment would not be protected as a trade secret, the court stated that an employee could still violate the law by memorizing trade secrets. In its ruling, the court noted that it joined a majority of states considering this issue in finding that the unauthorized taking of information by memorization is just as wrongful as taking it on paper or by electronic means. Al Minor & Assocs., Inc. v. Martin, No. 2006-2340 (Ohio Feb. 6, 2008).
Finally! DOL to Publish Changes to FMLA Regulations, February 7, 2008
Over five years ago the Supreme Court struck down an FMLA regulation in Ragsdale v. Wolverine Worldwide, Inc., joining many lower courts that had rejected some of the 1995 regulations as an overbroad interpretation of the Act. The Department of Labor immediately promised revisions to the regulations. It looks like we are on the verge of seeing hat promise kept.
The DOL has announced that it will publish proposed changes to the FMLA regulations in the Federal Register on Monday, February 11. The changes to the regulations will include revisions to the rules on what constitutes a serious health condition and use of the medical certification process
According to those who have seen the proposal, there will be more employer notice requirements regarding employee qualification for leave and designation of leave. There will also be a clarification in the rules relating to substitution of paid leave. The proposal will not change the period of time an employee can take incremental leave of less than a day, but the proposal does include a change requiring employees to comply with the employer's call-in procedures before taking unscheduled, intermittent leave.
Stay tuned for the changes, and if you want to check the Federal Register directly, go to http://www.gpoaccess.gov/fr/index.html.
Court Rejects Title VII ‘Familial Status' Discrimination Claim, February 6, 2008
The Tenth Circuit recently held that "familial status" discrimination, by itself, does not violate Title VII, rejecting a claim by a husband and wife who were fired by the same company on the same day. Adamson v. Multi Cmty. Diversified Servs. Inc., No. 05-3478 (10th Cir. February 1, 2008). The husband alleged that the employer had an "anti-male" bias, with the wife and daughter claiming an "anti-female" bias.
The district court found it 'peculiar' for a husband and wife to be arguing simultaneously that their respective terminations by a single employer were the result of anti-male discriminatory animus on the one hand and anti-female discriminatory animus on the other. But, as is sometimes the case, the court presumed both plaintiffs had made out a prima facie case of sex-discrimination and ruled against them on the issue of pretext.
The Tenth Circuit agreed that the case was properly dismissed, but found that the district court should have addressed the prima facie case issue directly, suggesting that its decision not to do so was an ill-applied approach in the context of reverse discrimination claims, "where heightened standards are necessary." And, said the court, the Adamsons' claims failed under Title VII because "'[f]amilial status' is not a classification based on sex any more than is being a 'sibling' or ‘relative' generally."
Aren’t Unions Supposed to Bring People Together?, February 6, 2008
Richard Lott, a UAW shop steward at the Daimler Chrysler plant in Toledo had a romantic relationship with a co-worker, Mee Sanders, for two years. When she ended the relationship, Lott harassed Sanders and arranged for her to lose her job temporarily and delayed her return to work for six months. Sanders sued, and a federal court has ruled that the UAW Local violated not only Title VII and Ohio law but it’s NLRA duty of fair representation to Sanders for permitting Lott to engage in this behavior. Sanders v. United Auto Workers Local 12, No. 3:04-CV-7751 (N.D. Ohio January 24, 2008). Sanders's separate sexual harassment suit against the company is pending.
N.Y. Giant Fan Escapes Attorney’s Fees Award For Lawsuit, February 1, 2008
by Pat Stewart
Charles Weisberg, an employee of the Riverside Township Board of Education, sustained a head and shoulder injury when a wooden speaker weighing approximately four pounds fell on his head and shoulders. Thereafter, Weisberg claimed to have a “post-concussion syndrome,” which caused him extreme fatigue, difficulty focusing, headaches, and sensitivity to loud noises. Weisberg asked Riverside for a number of accommodations that included placing all directives in writing, limiting his workday to a maximum of eight hours, and providing a quiet, distraction-free working environment. Because of his sensitivity to loud noises, Weisberg also claimed that he could no longer chaperone other school events, such as basketball games and school dances. Conflict with Riverside over these and other “accommodations” ultimately prompted Weisberg to file a lawsuit under the Americans with Disabilities Act (“ADA”), alleging that due to his condition, he was disabled under the Act.
At Weisberg’s deposition, Riverside asked him questions regarding his whereabouts on the Monday night prior to the deposition, when the New York Giants hosted the Philadelphia Eagles. In response, Weisberg testified that he had watched the Giants game at home alone. Weisberg went on to state that because of his “disability” he could not have attended the game; and had he done so, he would have been so fatigued afterwards that he would have been forced to take the next day off from work, which he did not do. Contrary to his testimony, a private investigator had videotaped Weisberg that night, meeting with a group of fans, driving to Giants Stadium, tailgating in the parking lot, entering the stadium, attending the full game, exiting after midnight and returning home shortly before 2:00 a.m. When confronted with this discrepancy, Weisberg attributed his erroneous testimony to “false memory syndrome,” a condition for which individuals with brain injuries sometimes “concoct” stories that they sincerely believe to be true when placed under stressful conditions.
The District Court ultimately found that Weisberg had produced insufficient evidence that he was “disabled” under the ADA, and dismissed the case. Riverside then filed a request for the Court to find that Weisberg’s lawsuit was “frivolous, unreasonable or without foundation” so as to require Weisberg to pay for its attorneys’ fees which may be awarded to a “prevailing party” in civil rights cases. The District Court found that although Weisberg had not presented evidence of a disability sufficient to pursue his claim, he had presented “some evidence” that he was impaired by “post-concussion syndrome,” and therefore his claim could not be found to be frivolous, unreasonable, or without foundation.
The case is Weisberg v. Riverside Twp. Bd. of Educ., No. Civ. 01-758 (RBK), 2005 WL 2000182, at *1 (D.N.J. Aug. 18, 2005) (unreported), aff’d, No. 05-4190 (3rd Cir. Jan. 18, 2008).
The Eagles beat the Giants that night; the final score was 10-9.
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