There has been a lot of ink spilled and kilobytes written about how the ADA Amendments Act has substantially expanded the rights of individuals with disabilities to seek and obtain reasonable workplace accommodations.  (See post, post, post, and post).  The increase in the number of applicants and employees who qualify for reasonable accommodations and the types of impairments that now qualify as disabilities has me thinking about the unintended consequences arising with such broad and encompassing changes to the ADA.  Today I read about a potential consequence I had not been able to imagine. 

Elie Mystal wrote yesterday at Above the Law about an employee in Brazil sued and won the right to watch pornography and masturbate because she suffers from "a chemical imbalance that triggers severe anxiety and hypersexuality."  This started me thinking, could the EEOC bring the same suit against a U.S. employer on behalf of an employee who wanted breaks to watch pornography and otherwise relieve his or her stress caused by severe anxiety or hypersexuality (i.e., to masturbate)?  I think the answer, despite what Congress intended, is probably "yes".

First, is hypersexuality or severe anxiety a disability?  The ADAAA regulations say that "depressive disorder, bipolar disorder, OCD, and schizophrenia" are presumptively disabling disorders.  Severe anxiety is a recognized psychological disorder listed in the current version of the DSM and hypersexuality is a proposed diagnosis for the the DSM-V.  (check) 

Second, does it substantially affect a major life activity?  The EEOC’s regulations instruct that whether a major life activity is substantially limited is not a demanding standard and should be viewed expansively.  Furthermore the Commission regulations include concentrating, thinking and the operation of the major bodily systems including the reproductive system as major life activities. Therefore, it should not be hard to imagine evidence that these disorders cause the employee difficulty with thinking, concentrating or the normal operation of the reproductive systems.  Moreover, how would an employer challenge whether these impairments and the preoccupations it causes limits the employee’s ability to think or concentrate?  (check)

Third, are reasonable break times to relieve stress reasonable?  Unless the employer can show undue hardship, probably so.  Employees are permitted reasonable break times for reasons caused by other physical impairments such as frequent restroom breaks for impairments affecting the urinary or digestive systems; and frequent meal or break times for diabetics who need to test their blood sugar and eat small meals.  Consequently, it would be up to the employer to show that the requested accommodation is not reasonable and/or it causes an undue hardship.  (check).

Having concluded that the EEOC could bring this lawsuit under the ADA on behalf of a employee or applicant, I recognize that the likelihood of it doing so is less than zero; the political fallout would be disastrous for the Commission.  Just because the EEOC would not bring the suit, however, would not prevent an employee from hiring private counsel and bringing the same claim against his or her employer.  This example demonstrates just how far the ADAAA has gone to expand what qualifies as a disability.  Did Congress go too far when it passed the ADAAA?

In a suit you don’t see filed everyday, the El Paso District Office of the EEOC recently filed a disability discrimination lawsuit against Starbucks over the termination of an employee suffering from dwarfism.  According to the EEOC’s Complaint:

Charging Part has a physical impairment, dwarfism. . . [and] is substantially limited in the major life activities of, including but not limited to, reaching, lifting, and performing manual tasks.  Charging Party was hired by the [Starbucks] as a barista, a customer service position.  The job description for the barista position stated that no prior experience was required. . .  On or about July 30, 2009, Charging Party requested the use of a stool and/or small step-ladder as a reasonable accommodation to enable her to perform the essential functions of her job.  With reasonable accommodation, [she] would have been able to perform the essential functions of her job; to operate the cash register and prepare beverages.

After the Charging Party requested a reasonable accommodation, [Starbucks] failed or refused to engage in the interactive process and failed or refused to provide the Charging Party with a reasonable accommodation.  On or about July 30, 2009, [Starbucks] terminated Charging Party’s employment, claiming that she would be a danger to customers and employees.

In my quick, and admittedly non-exhaustive research while writing this post, individuals suffering from achondroplastic previous hitdwarfism have not fared well in suits filed under the ADA.  However, with the relaxed standard for qualifying for "disabled" status under the Americans with Disabilities Amendments Act and its accompanying regulations (see post), the EEOC may have a stronger hand in this case if it can overcome Starbucks apparent "direct threat" defense.

You can review a copy of the EEOC’s complaint here.

UPDATE:  On August 16, 2011, Starbuck entered a Consent Decree with the EEOC where it agreed to pay $75,000 to settle the charges of discrimination.  You can see all of the terms of the Consent Decree here.

The EEOC published its final regulations interpreting the ADA Amendments Act on March 25, 2011.  Consequently, those regulations become effective on March 24, 2011.  The effect of the Act and these regulations is that large numbers of employees will qualify as disabled under the law thereby triggering an increased number of applicants and employees who may be eligible for reasonable accommodations.  Here are a summary of the regulations:

  1. Defines "major life activities" broadly to include caring for oneself, performing manual tasks, seeing, hearing, eating, sleeping, walking, standing, sitting, reaching, lifting, bending, speaking, breathing, learning, reading, concentrating, thinking, communicating, interacting with others, working and the operation of a major bodily functions such as the immune system, special sense organs and skin, normal cell growth and digestive, genitourinary, bowel, bladder, neurological, brain, respiratory, circulatory, cardiovascular, endocrine, hemic, lymphatic, musculoskeletal and reproductive systems.
  2. Clarifies that the term "substantially limits" is not to be a demanding standard; should be construed expansively; the impairment’s limitations should be viewed in their active, rather than remissive, state; mitigating measures should not be considered; and the examination should not usually require scientific, medical or statistical analysis.
  3. Identifies impairments that will almost always substantially limit a major life activity such as:  deafness, blindness, intellectual disability, cancer, cerebral palsy, diabetes, epilepsy, HIV, multiple sclerosis, depressive disorder, bipolar disorder, OCD, schizophrenia, muscular dystrophy. 
  4. Confirms that temporary or episodic conditions (including those in remission) may qualify as disabilities and that it is appropriate to consider the additional time, effort or pain the employee experiences in performing a major life activity in determining whether it is substantially limited (i.e., the conditions under which the individuals performs the activity).
  5. Confirms that individuals qualifying as "disabled" only under the "perceived as" prong are not entitled to reasonable accommodation but those who are disabled due to "actual disability" or a "record of disability" are entitled to reasonable accommodations that do not cause undue hardship.

 You can access a full copy of the regulations here.

I have written some of the disadvantages of arbitration over other procedural methods of resolving cases such as waivers of jury trial.  (See post and post).  However, in an opinion from the Supreme Court of Texas, one disadvantage of arbitration (i.e., the limited appellate review of arbitration awards that is available) can be minimized where the parties draft their agreement to apply the Texas General Arbitration Act (TAA) rather than the Federal Arbitration Act (FAA).

In Nafta Traders, Inc. v. Quinn, an arbitrator found for the plaintiff in a sex discrimination case.  The arbitration agreement contained a provision limiting the arbitrator’s authority such that he lacked "authority (i) to render a decision which contains a reversible error of state or federal law, or (ii) to apply a cause of action or remedy not expressly provided for under existing state or federal law."

The employer sought to vacate the arbitration award claiming that the arbitrator exceeded his authority by rendering a decision containing reversible error.  The issue tackled by the Supreme Court of Texas was whether the TAA precludes an agreement for judicial review of an arbitration award for reversible error, and if not, whether the FAA preempts enforcement of such an agreement.  The Court held that parties may, pursuant to the TAA agree (subject to limits) to expanded judicial review of arbitration awards and that the FAA did not preempt such a conclusion.

Consequently, parties in Texas are free to agree that arbitration awards made subject to state law may be reviewed on a more expanded basis than awards rendered under the FAA.  However, the scope of that expanded judicial review is not without limits.  As the Court stated:

arbitration parties cannot agree to a different standard of judicial review than the court would employ in a judicial proceeding involving the same subject matter.  ‘[A]n arbitration agreement providing that a ‘judge would the award by flipping a coin or studying the entrails of a deal fowl’ would be enforceable.’

Moreover, to have a meaning judicial review the Court cautioned parties that they will need to be able to submit "a sufficient record of the arbitral proceedings, and complaints must have been preserved, all as if the award were a court judgment on appeal."  Consequently, some of the perceived advantages of arbitration (i.e., reduced cost, less formal etc.) will have to give way to parties that want to preserve a right to expanded judicial review because proper objections will have to be preserved and a transcript of the proceeding made.  In any event, employers who use arbitration as a form of alternative dispute resolution made consider making those agreements subject to state law so that they can take advantage of opportunities for judicial review.  Employers should keep in mind that, unlike the FAA, the TGAA requires that agreements to arbitrate personal injury (and like tort claims) be made only after the cause of action has accrued thereby excluding some claims from arbitration that would be covered by the FAA. 

You can access a copy of the concurring opinion here.

Today the U.S. Department of Labor announced publication of a time keeping App for smart phones –the DOL -Timesheet.  Employees can download the free App through iTunes and can be used with the iPad, iPhone and iTouch.  The App is an electronic timesheet that allows employees to record their hours worked and calculate the amount of wages (including overtime) the employee may be owed by the employer.

The App allows employees to track multiple employers; input time manually or start and stop work time automatically; track meal period and other breaks and can even e-mail reports of the hours worked that are already converted into Excel format.  Finally, the App contains a glossary explaining common wage and hour terms and even a function to contact the Department of Labor.  DOL Timesheet is programmed for FLSA compliance; however, I would expect state wage and hour divisions or enterprising wage and hour class action counsel to develop similar Apps that would apply state wage and hour laws.

DOL Timesheet is another example (like the private attorney referral program –Bridge to Justice) of the Department’s attempt to make it easier for employees to pursue claims against employers for wage and hour violations.  Employers must be vigilant to ensure that they are properly paying employees for all hours worked and at appropriate rates of pay for those hours.

In today’s Supreme Court of Texas orders, the Court held that the State of Texas (including its political subdivisions such as counties) is immune from worker’s compensation retaliation suits.  You can read a full copy of the Court’s opinion in Travis Central Appraisal District v. Norman here.

The Fair Labor Standards Act is the federal law that requires most employers to pay a minimum wage and overtime.  The FLSA also includes an anti-retaliation provision that prohibits an employer from discharging any employee who has "filed a complaint" under the FLSA because of that complaint.  The issue at the high court in Kasten v. Saint-Gobain Performance Plastics Corp., was whether an oral complaint constitutes the "filing of a complaint" under the anti-retaliation provisions of the FLSA.

Kasten filed his suit after his employment ended claiming that he was retaliated against for making oral complaints about the Company’s placement of time clocks that Kasten believed had the effect of preventing workers from receiving credit for time spent for donning and doffing work-related protective gear.  In other words, Kasten alleged that he made complaints to his employer that employees were not being paid for all working time as required by the FLSA.  Kasten apparently never put his complaints in writing.  The trial court dismissed Kasten’s claim holding that Kasten failed to engage in legally protected activity under the FLSA because the Act did not cover oral complaints. 

The U.S. Supreme Court reversed the judgment against Kasten and held that the FLSA’s statutory language prohibiting retaliation for filing a complaint includes oral as well as written complaints. The Court arrived at its decision by interpreting the statutory phrase itself and by taking into account the remedial purpose of the anti-retaliation provisions.  Consequently, when an employee makes an oral complaint about an FLSA violation, he or she has filed a complaint for purposes of the FLSA’s anti-retaliation provisions and can bring a suit alleging that he or she was discharged in violation of the Act.

A full copy of the Court’s opinion in Kasten v. Saint-Gobain Performance Plastics Corp. can be accessed here.

 

In an issue of first impression, the U.S. Court of Appeals for the Fifth Circuit (the federal appellate court hearing cases from Texas), held that the Uniformed Services Employment and Reemployment Rights Act (USERRA) provides no cause of action for a hostile work environment that is created because of a service member’s military service. 

The Plaintiffs, in Carder v. Continental Airlines, Inc.,  alleged that Continental created a hostile work environment through "harassing, discriminatory, and degrading comments and conduct relating to and arising out of" their military service through a continuous pattern of harassment.  They further alleged that "Continental has . . .  chided and derided plaintiffs for their military service through the use of discriminatory conduct and derogatory comments regarding their military service and military leave obligations."  Examples cited in the suit included: 

  • placing onerous restrictions on taking military leave and arbitrarily attempting to cancel military leave;
  • making derisive and derogatory comments to pilots about their military service such as "If you guys take more than three or four days a month in military leave, you’re just taking advantage of the system.";  "I used to a guard guy, so I know the scams you guys are running."; "Your commander can wait.  You work full time for me.  Part-time for him.  I need to speak with you, in person, to discuss your responsibilities here at Continental Airlines."; Continental is your big boss, the Guard is your little boss."; "It’s getting really difficult to hire you military guys because you’re taking so much military leave."; "You need to choose between CAL and the Navy."

The Court affirmed the trial court’s dismissal of the hostile work environment claim concluding that Congress never intended to create such a claim. The Court’s rationale was premised on two important points.  First, unlike Title VII, which prohibits discrimination in the "terms, conditions or privileges of employment", USERRA merely covers "benefits of employment".  The Court reasoned that the use of different phrases expressed Congressional intent to cover a narrower set of circumstances that would give rise to a claim than Title VII afforded.  Second, the Court observed  that the Department of Labor had promulgated regulations interpreting USERRA and included no reference to harassment or hostile work environment thereby providing further support that it should not be interpreted as providing such a cause of action.

For these reasons, the Court held that USERRA affords no cause of action for discrimination or harassment based on a hostile work environment theory. You can access the full opinion in Carder v. Continental Airlines, Inc. here.

Its getting near the end of the time to sponsor bills for consideration during this Texas legislative session.  Here are the most recently enrolled bills potentially effecting Texas employers.

HB 2609 (Guillen) (relating to employment at or by certain facilities serving the elderly or persons with disabilities)

HB 2695 (Davis) (relating to acquiring Human Health and Services Agencies to give preference to certain persons and making hiring decisions)

HB 2681 (Hartnett) (relating to the protection of trade secrets)

HB 2720 (Pitts) (relating to unpaid furloughs for state employees)

HB 2755 (Fischer) (relating to unemployment compensation, eligibility and charge backs regarding certain persons through victims or whose immediate family members or victims of sexual assault and family violence)

SB 1305 (Rodriguez) (relating to a prohibition of school districts’ retaliation against an employee for filing a grievance)

HB 2579 (Davis) (relating to relief for certain employers from penalties and sanctions under the Texas Unemployment Compensation Act)

HB 2549 (Crownover) (relating to the authority of a state employee to authorize a deduction from the employees salary or wage payment for a charitable contribution to certain agencies)

HB 2463 (Reynolds) (relating to access to service records regarding unemployment discrimination claim)

HB 2454 (Zedler) (relating to prohibiting discrimination by public institutions of higher education against faculty members and students based on the conduct of research relating to intelligent design)

HB 2450 (Jackson) (relating to the creation of an offense of employing an individual not lawfully present in the US)

SB 1268 (Whitmire) (relating to right of sheriff’s departments of certain counties to maintain local control over wages, hours and other terms of conditions of employment)

SB 1254 (Carona) (relating to the creation of the offense of employing an individual not lawfully present in the US)

HB 2227 (Coleman) (relating to an offense committed against a person because of bias or prejudice on the basis of gender identity or expression)

HB 2219 (Davis, Y) (relating to a prohibition placed on an open enrollment charter school against the employment of a person determined under certain circumstances to have engaged in misconduct that presents a risk to the health, safety and/or welfare of the student or minor)

HB 2306 (Alvarado) (relating to certain health and safety matters regarding appropriate places of employment in places that are accessible to the public)

SB 1216 (Estes) (relating to the determination of the validity and enforceability of a contract obtaining an arbitration agreement)

HB 2380 (Shelton) (relating to employment by school districts of certain persons under probationary contracts)

HB 2405 (Chisum) (relating to discrimination and restraint of trade against certain persons regulated under the Occupations Code)

SB 1001 (Carona) (relating to discrimination and restraint of trade against certain persons regulated under the Occupations Code)

SB 1042 (Haggar) (relating to the eligibility of an employees convicted of certain offenses that provide services under a contract with the public school)

HB 1888 (Miller, S) (relating to requiring employers to participate in the Federal Electronic Verification Work Authorization Program)

SB 1006 (Lucio, Ellis) (relating to unemployment compensation modernization)

HB 1827 (McClendon) (relating to the ability of a non-exempt employee to participate in certain academic extracurricular developmental activities of the employee’s child)

HB 1747 (Veasey) (relating to retaliation as unlawful employment practice)

HB 1700 (Coleman) (relating to employment of physicians by certain hospitals)

HB 1659 (Davis, Y) (relating to conditions of employee for certain sheriff departments)

HB 1565 (Coleman) (relating to the unemployment of physicians by hospital districts)

HB 1513 (Dutton) (relating to hearings on certain public school employees employment decisions before the Board of Trustees of the school district)

HB 1506 (Christian) (relating to unemployment compensation eligibility and charge backs regarding certain persons who are victims who whose immediate family members are victims of sexual assault)

HB 1447 (Dukes) (relating to the right of certain municipalities to maintain local control over wages, hours and terms and conditions of employment)

SB  761 (West) (relating to employment of physicians by certain hospitals associated with non-profit fraternal organizations)

HB 1490 (Naishtat) (relating to the accumulation of payment of sick leave for employees in certain sheriff departments)

HB 1488 (Gudeaires) (relating to examinations for hiring certain municipal fire departments)

HB 1166 (Zerwas) (relating to tobacco sensation program for certain public employees and their dependants and to assessment to a fee for certain public employees who use tobacco)

SB 314 (Zaffiri) (relating to unemployment compensation and eligibility and charge back regarding certain persons who are victims or whose immediate family members are victims of sexual assault)