July 2002 Quick Clips

Who Sues To Be a Millionaire? July 31, 2002

The Americans With Disabilities Act forbids businesses who accommodate the public from "screening out" disabled people. The law applies not only to physical places like theaters but also to "off site" systems like a telephone answering system that disabled people cannot operate.

ABC-TV found this out when a group of deaf and mobility-impaired people sued the quiz show "Who Wants To Be a Millionaire?" That show uses a national toll-free telephone number to screen contestants. Unless a caller could pass the "fastest finger" test by answering recorded questions with a quick push of a button on the telephone keypad, he or she had no hope of ever becoming a contestant opposite Regis Philbin on national TV.

Because the deaf people could not hear questions over the telephone, and because the mobility-impaired people could not press the answer button quickly, they complained that ABC was violating the ADA's prohibition against screening out people with disabilities from full participation in services offered to the public. The court agreed, saying that the "fastest finger" contest impermissibly discriminated against the handicapped.

The lesson: businesses whose services can be accessed only by telephone are in danger of a lawsuit unless ADA strictures are observed. Rendon v. Valleycrest Productions Ltd., U.S. Court of Appeals, 11th Circuit, 13 AD Cases 404, June 18, 2002.

Military Service Counts Towards FMLA Leave Eligibility, July 29, 2002

On July 26, 2002, the Department of Labor released a memorandum explaining that service members returning to their civilian jobs are entitled to all the benefits of employment they would have received if they had been continuously employed. Under the Uniformed Services and Employment and Reemployment Rights Act, the months and hours that reservists would have worked if they had not been called for duty count toward FMLA eligibility, and should be combined with hours actually worked. Employees are eligible for FMLA leave after working for a covered employer for at least 12 months and at least 1,250 hours. This issue came to the DOL's attention since military personnel began returning from Afghanistan, post September 11, 2001.

Erectile Dysfunction Humor Not Sexual Harassment, July 22, 2002

Thomas Keown, a 50 year-old vice president for Richfood Holdings in Pennsylvania, was sent as many as 11 pamphlets on erectile dysfunction over 4 months by a female vice-president. Although he had a penile implant, he became so upset by the pamphlets that he brought a complaint against his employer for sexual harassment and age discrimination.

The court dismissed his sexual harassment claim stating that the pamphlets, although "seedy and in bad taste," did not rise to the level of severe or pervasive to support a sexual harassment claim. The harassment that Keown endured was age-based because the pamphlets "were directed to sexual performance problems of men over 50," the court said. However, the court continued, "there is no reason it should have interfered with his work performance or had a significant impact on his psychological well-being." The court opined that the pamphlets could be evidence of age discrimination, and denied summary judgment on that claim. Keown v. Richfood Holdings, 89 FEP Cas. (BNA) 252 (E.D. Pa. June 19, 2002).

Maryland Court of Appeals Adopts Whistleblower Exception to At-Will Employment, July 18, 2002

In a recent decision, the Maryland Court of Appeals held that an employee who reports suspected criminal activity to law enforcement authorities may not be discharged for such "whistleblowing" actions. The Court held that it is the public policy of the State of Maryland to protect witnesses who report suspected criminal activity to the appropriate law enforcement or judicial authority from being harmed for performing such an important public task. If an employee is discharged for such actions, he or she may sue the employer for wrongful discharge based on this newly-created public policy exception to the at-will employment doctrine. Wholey v. Sears Roebuck, (Md. June 19, 2002).

Significantly, the employee is protected only for reporting suspected criminal activity to law enforcement authorities. Employees who only report such activity internally, i.e., to supervisors or to others within the company, are not protected.

Criticism of Employer is Good Reason Not to Rehire, July 18, 2002

Betty Weigel is the epitome of audacity. She was a nurse at Baptist Hospital of East Tennessee with an attendance record full of unexcused absences and a reputation of not working well with others. Just when it couldn't get any worse, Weigel quit without giving notice, and then criticized the company in an exit questionnaire. A few months later, however, she asked for her job back.

For all the reasons stated above, Weigel was not selected for rehire. She sued the hospital claiming retaliation and discriminatory failure to hire in violation of the Age Discrimination in Employment Act (ADEA). After losing her case in district court, Weigel appealed. The Sixth Circuit found that Weigel failed to show any evidence of age-related animus on the part of the decision makers who did not re-hire her. The court concluded that her exit questionnaire, which criticized nearly every aspect of her employment at the hospital, "[was] certainly a legitimate reason not to ask her to return." Weigel v. Baptist Hosp. Of East Tenn., No. 00-6611 (6th Cir. July 15, 2002).

OSHA announces negotiated rulemaking for cranes, July 16, 2002

by Frank L. Kollman

In OSHA's 31-year history, it has issued only one regulation based on negotiations with the industry being regulated. That was the steel erection standard that became effective at the beginning of this year.

OSHA has announced that it will use negotiating rulemaking to develop a standard for cranes, including operator qualifications, rigging procedures, and lifts around power lines. OSHA has given the rulemaking committee an 18-month deadline

If You Can Play, You Can Work, July 11, 2002

When I was a kid, sometimes I would feign an illness to stay home from school. When I was caught playing outside one day, I remember my parents saying, "if you're well enough to play, then you're going to school," and into the car we went.

In Kansas, Audeana Connel suffered a similar fate. After telling her employer that she needed FMLA leave because she was experiencing severe tension headaches and cervical spasms, a company official spotted her attending a county fair. When she was confronted about being seen, she denied she was there. Upon contacting her doctor, the company was told that if she was well enough to attend the fair, then she was well enough to go to work.

Connel was terminated because the employer honestly believed that she was not using FMLA leave for its intended purpose. The U.S. District Court for the District of Kansas upheld Connel's termination, finding that even if the employer was mistaken in its belief, Connel's termination was proper because it honestly believed that if Connel was healthy enough to attend the fair, then she was healthy enough to attend work. See Connel v. Hallmark Cards, Inc., No. 01-2060-CM (D. Kan. June 19, 2002).

Wisconsin Understands At-Will Employment, July 9, 2002

by Frank L. Kollman

A split Wisconsin Supreme Court rules that – now follow this closely – a woman who was (a) fired because (b) her policeman husband (c) arrested her bosses wife for drunk driving does not have a right to sue for wrongful discharge. Bammert v. Don's Super Valu Inc., No. 00-2473 (Wis. S. Ct. July 3, 2002). While some members of the court would find the termination illegal because it "interferes with law enforcement," a more rational majority finds that at-will employment means that she can be fired for bad, even reprehensible reasons, as long as they do not violate a statute or overwhelming public policy.

Doctor Cannot be Sued Under ADA, July 8, 2002

by Frank L. Kollman

A federal appeals court has ruled that an employee cannot sue a medical provider under the ADA for giving his employer a medical opinion that he was unfit to work. The employer had relied on that medical opinion to terminate the individual's employment. The employee sued, claiming the doctor was bound by the Americans with Disabilities Act. Absent evidence that the doctor actually exercised control over the employer's decision, the court said the ADA did not apply. Satterfield v. Tennessee, No. 00-5860 (6th Cir., July 3, 2002).

Employer Can Dictate Hairstyles - - No Dreadlocks Allowed, July 2, 2002

Jonathan Booth, a Rastafarian, has been employed as a correctional officer at the Baltimore Central Booking and Intake Center (BCBIC) for seven years. Booth wears dreadlocks in his hair, but keeps then braided, short and tucked against his scalp. Despite several requests by the warden to cut his hair, Booth refused, claiming that he wore the dreadlocks for religious reasons and the warden's demands that he cut his hair were discriminatory. As a result, Booth's supervisors disciplined him. Booth responded by filing a suit for discrimination in federal court.

In rejecting Booth's claims, the court held that Booth was unable to state religious and race bias claims because the BCBIC grooming policy was rationally related to safety and discipline. In particular, BCBIC's policy mandated traditional military and law enforcement haircuts in the interest of safety. The judge pointed out that guards "with dreadlocks might be confused with prisoners during an uprising or attempted breakout." Booth v. Maryland, No. JFM-02-160 (D. Md. June 3, 2002).

Drinking, Stripping and Driving in Texas, July 2, 2002

by Frank L. Kollman

The Texas Supreme Court has ruled that strippers working for the Treasures night club can sue the club for injuries they sustained while driving home drunk. Treasures required its exotic dances to drink the alcohol purchased for them by customers. By doing so, the court reasoned that the club owed a duty to the dancers not to let them drive while intoxicated. The court, which found the strippers to be independent contractors of the night club, also suggested that it would apply its reasoning to employees required to drink alcohol as part of the job. D. Houston Inc., d/b/a Treasures, No. 00-1192 (Tex. Sup. Ct., June 27, 2002). Beer tasters take note.

Court Allows Non-Applicant to Pursue Promotion Claim, July 2, 2002

by Frank L. Kollman

A divided federal appeals court has allowed a professor who did not apply for a promotion to sue his employer for race discrimination because the university used a "seemingly random and subjective" process in the selection procedure. Lockridge v. University of Arkansas, No. 01- 1472 (8th Cir. June 24, 2002). In other words, if applying for the job was pointless, an application will not be required to file a lawsuit. Incredible.

So, another court has made it more difficult for employers to work without written employment policies and procedures. Further, it has made every employee in the company a potential plaintiff, even if the employee did not seek the promotion. Employers beware.

EEOC Still Plans to Protect Illegal Aliens, July 1, 2002

by Frank L. Kollman

In March, the Supreme Court held that illegal aliens (undocumented workers) are not entitled to reinstatement and back pay if they are the victims of discrimination under the National Labor Relations Act. The Equal Employment Opportunity Commission has announced that despite the decision, it will still investigate and prosecute cases of discrimination against undocumented workers. In fact, it says that it plans to look into other remedies for discrimination other than back pay and reinstatement. EEOC Enforcement Guidance on Undocumented Workers, No. 915.002 (June 27, 2002).

So, while the United States is trying to fight terrorism, another agency of the government is trying to protect illegal aliens from discrimination. Will the last person leaving this country please turn out the lights, especially at the EEOC.

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