Employment Law U4

Discrimination Based on Age 9-1

Title VII of the Civil Rights Act, which was discussed in the preceding chapters, prohib- its employment discrimination based on race, color, religion, gender, and national origin. In addition to Title VII, other federal legislation deals with employment discrimination because of other factors. This chapter covers the Age Discrimination in Employment Act, which prohibits employment discrimination based on age. The Age Discrimination in Employment Act Discrimination in terms or conditions of employment because of age is prohibited by the Age Discrimination in Employment Act of 1967 (ADEA). The act’s prohibitions, however, are limited to age discrimination against employees aged 40 and older. It was intended to protect older workers, who were more likely to be subjected to age discrimination in employment. (Although the ADEA’s protection is limited to older workers, state equal employment opportunity laws may provide greater protection against age discrimination. The New York Human Rights Law, for example, prohibits age discrimination in employ- ment against persons 18 and older.) 9-1a Coverage The ADEA applies to employers, labor unions, and employment agencies. Employers involved in an industry affecting commerce, with 20 or more employees, are covered by the act. U.S. firms that employ American workers in a foreign country are subject to the ADEA. Labor unions are covered if they operate a hiring hall or if they have 25 or more members and represent the employees of an employer covered by the act. The definition of employer under the ADEA includes state and local governments; the U.S. Supreme Court upheld the inclusion of state and local governments under the ADEA in EEOC v. Wyoming.1 However, in the case of Kimel v. Florida Board of Regents,2 decided in 2000, the Supreme Court held that the Eleventh Amendment of the U.S. Constitu- tion provides state governments with immunity from suits by private individuals under the ADEA.

256 Part 2 Equal Employment Opportunity Concept Summary 9.1 The Age DiscriminATion in employmenT AcT • The ADEA prohibits discrimination in employment based on age against employees aged 40 or older • ADEA coverage: + Employers with 20 or more employees + Labor unions operating a hiring hall or with 25 or more members + Employment agencies + Federal government employees 9-1b Provisions The ADEA prohibits the refusal or failure to hire, the discharge, or any discrimination in compensation, terms, conditions, or privileges of employment because of an individual’s age (40 and older). The act applies to employers, labor unions, and employment agencies. The main effect of the act is to prohibit the mandatory retirement of employees. The act does not affect voluntary retirement by employees. It does provide for some limited excep- tions and recognizes that age may be a bona fide occupational qualification (BFOQ). A plaintiff alleging a violation of the ADEA must establish a prima facie case that the employer has discriminated against the employee because of age. The plaintiff must demon- strate that age was “the determining factor” in the employer’s action. In Gross v. FBL Finan- cial Services, Inc.,3 the Supreme Court held that the language of the ADEA does not allow for “mixed motive” cases. Rather than showing that age was “a determining factor,” the plaintiff must show that age was the “but-for cause” of the employer’s action. The Court in Gross spe- cifically rejected the “mixed motive” approach used under Title VII (see Chapter 6). The process for establishing a claim under the ADEA is as follows: the plaintiff must establish a prima facie case of age discrimination; the employer-defendant must then offer a legitimate justification for the challenged action; and if the defendant offers such a jus- tification, the plaintiff can still show that the proffered justification is a pretext for age discrimination. Examples of violations of the ADEA include: • The mandatory retirement of workers over age 55 while allowing workers under 55 to transfer to another plant location or • The denial of a promotion to a qualified worker because the employee is over 50. While discrimination against older workers is prohibited by the ADEA, according to General Dynamics Land Systems, Inc. v. Cline,4 an employer that eliminated health insurance for workers under 50 but continued health insurance for the employees over 50 was held not to have violated the ADEA. What must a plaintiff alleging that he was fired because of his age show to establish a prima facie case of age discrimination? Must the employee demon- strate that the employer replaced him with a person under 40 (i.e., someone not protected by the ADEA)? The U.S. Supreme Court addressed that question in O’Connor v. Consolidated Coin Caterers Corp.,5 holding that whether the replacement was over or under 40 years of age was irrelevant. Because the ADEA prohibits discrimination on the basis of age, the fact that a replacement is substantially younger than the plaintiff is a far more reliable indicator of age discrimination than is the fact that the plaintiff was replaced by someone outside, as opposed to inside, the class protected by the ADEA (i.e., someone under 40 versus someone who hap- pens to be over 40). Subsequently, a number of lower courts have dealt with similar cases, wherein the plaintiff’s replacement was also a member of ADEA’s protected class but also was significantly younger than the plaintiff. The following case is a relatively recent example.

CASE 9.1 Harmon v. EartHgrains Baking CompaniEs, inC. 2009 WL 332705 (U.S. Ct. App. 6th Cir. 2009) Facts: Beginning in 2002, Michael Harmon managed Earthgrains’s facility in Bowling Green, Kentucky, in its West Tennessee Zone. In October 2005, Earthgrains hired 32-year-old Bradley Jordan as vice-president of the West Tennessee Zone. Jordan supervised Harmon. At the time of Jordan’s hire, Harmon’s employee file contained no negative entries. During parts of November and December 2005, Harmon missed work for health-related reasons. When Harmon returned to work in December 2005, he and Jordan toured various stores in the Bowling Green area to evalu- ate Harmon’s performance. During that review, Jordan told him: “I bet you think that your older people are your best people.... well, they’re not. They’re not your best people.” Jordan’s assessment of Harmon’s performance in December 2005 was negative. The evaluation cited numer- ous areas requiring improvement, including poor product displays, products that were outdated and out of stock, and lack of “pride.” While reviewing Earthgrains’s profit and loss statements in February 2006, Jordan learned that an Earthgrains deliv- ery truck in Bowling Green had been involved in two sepa- rate accidents, in December 2005 and January 2006. In the first accident, the truck, operated by employee Lewis Geron, struck a deer. In the second accident, the truck, operated by employee Chuck (Casper) Glass, hit a doghouse that fell from another vehicle. The employee drivers reported both accidents to mechanics in Earthgrains’s in-house repair garage in Nashville. Although the truck sustained damage after each accident, the mechanics advised the Bowling Green employees that the truck remained functional until they could make the required repairs. Accordingly, employ- ees in Bowling Green continued to drive it. On February 8, 2006, Jordan confronted Harmon about the accidents. Jordan asked Harmon why he did not complete an accident report after each collision, which would have notified Jordan of the incidents. Jordan allegedly informed him for the first time that Earthgrains’s policy required that all accidents be reported to the “zone leadership team,” including accidents that did not involve injuries or liability issues. Jordan suspended Harmon pending further investigation, documenting his concern that Harmon permitted the damaged truck to be driven by employees on both occasions without first ensuring that it was safe to drive. The next day, Danny Gaither, zone human resources manager, notified Lisa Millisor, Earthgrains’s human resources director in Atlanta, that he intended to terminate Harmon. Earthgrains did not fill the vacancy created by Harmon’s termination; rather, it assigned Mark Carter, an existingdistrict manager in Glasgow, Kentucky, who was 10 years younger than Harmon (aged 58 at the time), to manage the area previously supervised by Harmon. Carter not only absorbed permanently all of Harmon’s job responsibilities, but he also continued to serve as district manager in Glasgow, thereby increasing his workload. As part of the realignment, Earthgrains also assigned four truck routes managed previ- ously by Carter in Leitchfield, Kentucky, to another exist- ing district manager, Joe Kocher. According to the affidavit of Mitchel Cox, regional vice-president of Sara Lee’s South Region, Earthgrains decided to make these adjustments before it terminated Harmon. It also announced its restructuring plans four months before Harmon filed the present lawsuit. Issue: Given that Harmon’s replacement was also over 40 years of age, and given that he absorbed plaintiff’s duties into his current job, rather than actually taking Harmon’s job as such, did the plaintiff have a viable ADEA case? Decision: Without citing O’Connor, the court of appeals seems to have had no hesitancy to rule for the defendant on these facts. Because Harmon was not replaced by Carter, the appellate panel held that he failed to present a prima facie case of age discrimination. Nor did the judges buy the plaintiff ’s contention that the company’s so-called “reorganization” was a pretext to disguise its discriminatory termination of the plaintiff in favor of his younger counterpart, Carter. Observed the court, “Simply stated, Harmon failed to demonstrate that Earthgrains’s articulated reason for not replacing him—its plan to restructure its zones and personnel—was intended to conceal its alleged prior dis- criminatory conduct and defeat his prima facie case. Mitchel Cox, Sara Lee’s regional vice president, stated in his affidavit that Sara Lee’s decision to restructure Earthgrains’s zones and move the Bowling Green depot and two other depots from Earthgrains’s West Tennessee Zone to its Kentucky/Indiana Zone was made before Earthgrains terminated Harmon and before it became aware that Harmon intended to file a lawsuit. According to Cox, Earthgrains made a PowerPoint presenta- tion announcing its restructuring decision four months before Harmon filed suit. Cox also confirmed that Carter’s absorp- tion of Harmon’s duties were permanent and that no new dis- trict manager positions were created as a result of the vacancy left by Harmon. Carter verified in his affidavit that he did absorb Harmon’s duties, that his overall job responsibilities increased as a result, and that ‘they remain so to this day.’” Thus, the fact that the 58-year-old Harmon’s workload was picked up by the 48-year-old Carter was of no relevance one way or the other. The relevant facts were that (1) Harmon was never actually replaced (either by a younger person or anybody else, for that matter), and (2) the reorganization under which Harmon’s duties were reassigned to a current employee—some of whose existing duties likewise were reassigned—was a fait accompli before Harmon’s termination.

ThE WORKING LAW 14 Former General Mills Employees File Class Action ADEA Suit Over view 1.

This pattern or practice age discrimination action case presents the issue of whether employees can knowingly and voluntarily waive federal Age Discrimination in Employ- ment Act (ADEA) claims and their rights to a jury trial and to proceed collectively with other similarly situated persons if their former employer secured a purported waiver of those claims and rights without complying with the minimum requirements of the Older Workers Benefit Protection Act (OWBPA). 2. In June 2012, General Mills announced a mass layoff of about 850 employees. The layoffs resulted from a companywide initiative called “Project Refuel.” 3. Approximately half of those persons who lost their jobs as a result of General Mills’ Project Refuel were based in the Twin Cities. Concurrently with the terminations, General Mills was hiring and promoting younger employees to replace the Plaintiffs and other employees similarly situated whom General Mills terminated as part of Project Refuel.

The Project Refuel terminations, as discussed more fully below, adversely affected employees age 40 or over at much higher rates than younger employees. In this action, fourteen persons who were employed with General Mills in the Twin Cities as of June 1, 2012, and who were involuntarily terminated from employment later that year as part of the Project Refuel program, assert claims for intentional and disparate impact age discrimination against General Mills under the Age Discrimination in Employment Act of 1967 (“ADEA”), 29 U.S.C. § 621, et seq., both in behalf of themselves as well in behalf of other employees similarly situated. 5. General Mills informed employees terminated as part of Project Refuel that, to receive any severance pay, they were required to sign and return a “Release Agreement” form, drafted by General Mills, which was the same or essentially the same for all terminated employees. 6. In connection with its request that terminated employees execute its Release Agreement form, General Mills provided Project Refuel terminated employees who were age 40 or over with certain information about the job titles and ages of some employees termi- nated and retained as part of that program. General Mills did not, however, provide individual employees with disclosures that provided information about the full scope of the Project Refuel termination program, and instead provided each with only a portion of that information. When the partial data given to various terminated employees is aggregated, it shows that employees age 40 and over were terminated at exception- ally higher rates than younger employees, and that the risk of involuntary termination as part of Project Refuel increased dramatically with increased age. 7. The General Mills-produced data about its 2012 Project Refuel employee terminations, when combined, shows the exceptionally strong correlation between higher age and increased risk of termination. A statistical p-value calculation performed on the data to ascertain the likelihood that this correlation between age and rates of termination could have occurred if age (or a factor closely-related to age) were not used in making the termination selection decisions generates a very tiny p-value of only 0.0000000000 000000000000000000000000000000, whereas any p-value smaller than 0.05 is deemed to be statistically significant and any p-value smaller than 0.01 is deemed to be highly statistically significant by professional statisticians. 8. The “Release Agreement” form that General Mills required employees to sign as a condition of receipt of severance pay, and which was later signed by the above-named Plaintiffs, includes one paragraph that sets forth a broad release by the employee of “causes of action” and “claims” against General Mills. Another paragraph on the same page in the same agreement states that the employee agrees that “any dispute or claim arising out of or relating to the above release of claims, including, without limitation, any dispute about the validity or enforceability of the release or the assertion of any claim covered by the release,” “will be resolved exclusively through a final and binding arbi- tration on an individual basis and not in any form of class, collective or representative proceeding.” This latter paragraph thus purports to waive two important rights granted to employees under the ADEA: the right to a trial by jury on disputed issues of fact related to their claims for age discrimination and the right to proceed collectively in one action with others who are similarly situated. 9. Unlike other U.S. anti-discrimination statutes, the ADEA, through a 1990 amendment known as the Older Workers Benefit Protection Act (“OWBPA”), provides in plain language that “[a]n individual may not waive any right or claim under this chapter unless the waiver is knowing and voluntary” (emphasis added), and the ADEA sets out mandatory minimum requirements that must be satisfied for a waiver of “any right or claim” under the ADEA to “knowing and voluntary.” 29 U.S.C. § 626(f). 10. In this case, in addition to asserting claims for age discrimination under federal law as referenced above, the above-named Plaintiffs, in behalf of themselves and oth- ers similarly situated, seek declaratory relief from the Court. In particular, Plaintiffs seek a declaration that, in connection with its Project Refuel Termination Program, General Mills failed to satisfy the mandatory minimum statutory requirements for an employer to obtain from a discharged employee a “knowing and voluntary” waiver of “any right or claim” under the ADEA and that, as a result, the “Release Agreement” signed by all of the above-named Plaintiffs and by other similarly situ- ated persons was and is not “knowing and voluntary” under the ADEA and thus was and is ineffective as a matter of law to waive “any right or claim” of any such individual under the ADEA, including the rights to a jury trial and to proceed col- lectively in pursuing relief under the ADEA. 11. If there is any dispute of fact related to whether General Mills can meet its affirmative burden to prove that the “Release Agreement” forms signed by the Plaintiffs and others similarly situated are “knowing and voluntary,” and thus whether they could constitute valid waivers of any right or claim under the ADEA of the employees who signed them, Plaintiffs demand a jury trial on such issues. The right to a jury trial on issues of fact relating to the validity or lack thereof of what is alleged to be a binding agreement to arbitrate is specifically provided for in the U.S. Federal Arbitration Act, 9 U.S.C. § 1, et seq. (“FAA”). The FAA states that when a “party aggrieved by the alleged failure” of another party to arbitrate “under a written agreement for arbitration” brings a petition to compel arbitration, and when there is a dispute about the “making of the arbitration agreement,” if the party opposing arbitration demands a jury trial, “upon such demand the court shall make an order referring the issue or issues to a jury in the manner pro- vided by the Federal Rules of Civil Procedure or may specially call a jury for that pur- pose.” 9 U.S.C. § 4. The statute further provides that arbitration will not be compelled “[i]f the jury find that no agreement in writing for arbitration was made.” 12. While it may be the case for employees who signed it that the General Mills “Release Agreement” form constitutes a valid waiver of rights or claims of other types, the “Re- lease Agreements” signed by the above-named Plaintiffs and others similarly situated were not “knowing and voluntary” under the ADEA because General Mills did not satisfy the minimum “knowing and voluntary” requirements set forth in 29 U.S.C. § 626(f) and in related regulations, and were thus ineffective as a matter of law to waive or impair any right or claim under the ADEA of any such person who signed it.

some specific exemptions and defenses on which the defendant may rely. The following are not violations: • • • actions pursuant to a bona fide seniority system, retirement, pension, or benefit system, for good cause, or for a “reasonable factor other than age.” The act also recognizes that age may be a BFOQ and permits the mandatory retire- ment of certain executive employees at age 65. The ADEA was amended in 1990 to provide an additional defense for employers: Where the employer employs American workers in a foreign country and compliance with the ADEA would cause the employer to violate foreign law, the employer is excused from complying with the ADEA. In Mahoney v. RFE/RL Inc.,6 the employer’s compliance with German law requiring employees to enforce a labor contract setting retirement age at 65 was held to be a defense under the foreign law exception of the ADEA. Bona Fide Seniority or Benefit Plan The ADEA allows an employer to observe the terms of a bona fide seniority system or employee benefit plan, such as a retirement or pension plan, as long as the plan or system is not “subterfuge to evade the purpose of this Act.” The ADEA provides, however, that no seniority system or benefit plan “shall require or permit the involuntary retirement of any individual.” In Public Employees’ Retirement System of Ohio v. Betts,7 the Supreme Court held that the ADEA exception protected any age-based decisions taken pursuant to a bona fide ben- efit plan as long as the plan did not require mandatory retirement. In response to that decision, Congress passed the Older Workers Benefit Protection Act, which became law in October 1990. The law amended the ADEA to require that any differential treatment of older employees under benefit plans must be “cost-justified.” That is, the employer must demonstrate that the reduction in benefits is only to the extent required to achieve approxi- mate cost equivalence in providing benefits to older and younger employees. General claims that the cost of insuring individuals increases with age are not sufficient; the employer must show that the specific level of reductions for older workers in a particular benefit program is no greater than necessary to compensate for the higher cost of providing such benefits for older workers. Reasonable Factor Other Than Age The ADEA allows employers to differentiate between employees when the differentia- tion is based on a reasonable factor other than age. For example, an employer may use a productivity-based pay system, even if older employees earn less than younger employees because they do not produce as much as younger employees. The basis for determining pay would be the employees’ production, not their age. Similarly, when a work force reduc- tion is carried out pursuant to an objective evaluation of all employees, it does not violate the act simply because a greater number of older workers than younger workers were laid

off according to Mastie v. Great Lakes Steel Co.8 In addition, the employer is permitted to discipline or discharge employees over 40 for good cause. In Hazen Paper Co. v. Biggins,9 the Supreme Court held that discrimination directed against an employee because of his years of service is not the same as discrimination because of age; hence, the employer’s conduct in allegedly firing an employee to prevent him from becoming eligible for vesting under the pension plan was based on a factor other than age. The Supreme Court’s decision in Hazen Paper was based on the fact that the ADEA has a specific exemption for employer actions based on a factor other than age. The Court did not decide the question of whether a disparate impact claim may be brought under the ADEA. Disparate impact claims, you recall, involve challenges to apparently neu- tral employment criteria that have a disproportionate impact on a protected group of employees—in the case of the ADEA, employees 40 and older. After the Hazen Paper deci- sion, the federal courts of appeals have differed on the question of whether an age discrimi- nation claim based on the disparate impact theory is possible. In the following decision, the Supreme Court considered whether a disparate impact claim of age discrimination is available under the ADEA.

CASE 9.2 smitH v. City of JaCkson, mississippi 544 U.S. 228 (2005) [The City of Jackson, Mississippi adopted a pay plan in May 1999 that was intended to bring the starting salaries of police officers up to the average of other police departments in the region. The city granted raises to all police officers, but the officers with less than five years of tenure received proportionately greater raises than officers with more than five years of tenure. Most of the officers who were older than 40 years of age had more than five years tenure. A group of older officers filed suit against the city, alleging that the differential raise policy violated the Age Discrimination in Employment Act. They alleged that the city had engaged in intentional age discrimination, and also that the pay raise policy had a disparate impact against the older officers. The trial court dismissed the suit, and the U.S. Court of Appeals affirmed the dismissal. The officers then appealed to the U.S. Supreme Court.] Stevens, J. ... [This] suit raises the question whether the “disparate- impact” theory of recovery announced in Griggs v. Duke Power Co. for cases brought under Title VII of the Civil Rights Act of 1964, is ... [available] under the ADEA.... As enacted in 1967, § 4(a)(2) of the ADEA ... provided that it shall be unlawful for an employer “to limit, segregate, or classify his employees in any way which would deprive or tend to deprive any individual of employment opportuni- ties or otherwise adversely affect his status as an employee, because of such individual’s age....” Except for substitution of the word “age” for the words “race, color, religion, sex, or national origin,” the language of that provision in the ADEA is identical to that found in § 703 (a)(2) of the Civil Rights Act of 1964 (Title VII). Other provisions of the ADEA also parallel the earlier statute. Unlike Title VII, however, § 4(f)(1) of the ADEA contains language that significantly narrows its coverage by permitting any “otherwise prohib- ited” action “where the differentiation is based on reasonable factors other than age” [the RFOA provision]. In determining whether the ADEA authorizes dispa- rate-impact claims, we begin with the premise that when Congress uses the same language in two statutes having similar purposes, particularly when one is enacted shortly after the other, it is appropriate to presume that Congress intended that text to have the same meaning in both statutes.... In Griggs, a case decided four years after the enactment of the ADEA, we considered whether § 703 of Title VII prohibited an employer “from requiring a high school education or passing of a standardized general intel- ligence test as a condition of employment in or transfer to jobs when (a) neither standard is shown to be significantly related to successful job performance, (b) both requirements operate to disqualify Negroes at a substantially higher rate than white applicants, and (c) the jobs in question formerly had been filled only by white employees as part of a long- standing practice of giving preference to whites.” Accepting the Court of Appeals’ conclusion that the employer had adopted the diploma and test requirements without any intent to discriminate, we held that good faith “does not redeem employment procedures or testing mechanisms that operate as ‘built-in headwinds’ for minority groups and are unrelated to measuring job capability.” We explained that Congress had “directed the thrust of the Act to the consequences of employment practices, not simply the motivation.” ... We thus squarely held that § 703(a) (2) of Title VII did not require a showing of discriminatory intent.... While our opinion in Griggs relied primarily on the purposes of the Act, buttressed by the fact that the EEOC had endorsed the same view, we have subsequently noted that our holding represented the better reading of the statutory text as well. Neither § 703(a)(2) nor the comparable language in the ADEA simply prohibits actions that “limit, segregate, or classify” persons; rather the language prohibits such actions that “deprive any individual of employment opportunities or otherwise adversely affect his status as an employee, because of such individual’s” race or age.... Thus the text focuses on the effects of the action on the employee rather than the motivation for the action of the employer. Griggs, which interpreted the identical text at issue here, thus strongly suggests that a disparate-impact theory should be cognizable under the ADEA. Indeed, for over two decades after our decision in Griggs, the Courts of Appeal uniformly interpreted the ADEA as authorizing recovery on a “disparate-impact” theory in appropriate cases. IT WAS ONLY AFTER our decision in Hazen Paper Co. v. Biggins that some of those courts concluded that the ADEA did not authorize a disparate-impact theory of liability. Our opinion in Hazen Paper, however, did not address or comment on the issue we decide today. In that case, we held that an employee’s allegation that he was discharged shortly before his pension would have vested did not state a cause of action under a disparate-treatment theory. The motivating factor was not, we held, the employee’s age, but rather his years of service, a factor that the ADEA did not prohibit an employer from considering when terminating an employee. While we noted that disparate-treatment “captures the essence of what Congress sought to prohibit in the ADEA,” we were careful to explain that we were not deciding “whether a disparate impact theory of liability is available under the ADEA.... In sum, there is nothing in our opinion in Hazen Paper that precludes an interpretation of the ADEA that parallels our holding in Griggs. The Court of Appeals’ categorical rejection of disparate- impact liability [in this case] ... rested primarily on the RFOA provision and the majority’s analysis of legislative history. As we have already explained, we think the history of the enactment of the ADEA ... supports the pre-Hazen Paper consensus concerning disparate-impact liability. And Hazen Paper itself contains the response to the concern over the RFOA provision. The RFOA provision provides that it shall not be unlawful for an employer “to take any action otherwise prohibited under subsectio[n] (a) ... where the differentia- tion is based on reasonable factors other than age discrimina- tion....” In most disparate-treatment cases, if an employer in fact acted on a factor other than age, the action would not be prohibited under subsection (a) in the first place.... In disparate-impact cases, however, the allegedly “other- wise prohibited” activity is not based on age.... It is, accord- ingly, in cases involving disparate-impact claims that the RFOA provision plays its principal role by precluding liability if the adverse impact was attributable to a nonage factor that was “reasonable.” Rather than support an argument that disparate impact is unavailable under the ADEA, the RFOA provision actually supports the contrary conclusion. The text of the statute, as interpreted in Griggs, the RFOA provision, and the EEOC regulations all support petitioners’ view. We therefore conclude that it was error for the Court of Appeals to hold that the disparate-impact theory of liability is categorically unavailable under the ADEA. Two textual differences between the ADEA and Title VII make it clear that even though both statutes authorize recovery on a disparate-impact theory, the scope of disparate-impact liability under ADEA is narrower than under Title VII. The first is the RFOA provision, which we have already identi- fied. The second is the amendment to Title VII contained in the Civil Rights Act of 1991. One of the purposes of that amendment was to modify the Court’s holding in Wards Cove Packing Co. v. Atonio, a case in which we narrowly construed the employer’s exposure to liability on a dispa- rate-impact theory. While the relevant 1991 amendments expanded the coverage of Title VII, they did not amend the ADEA or speak to the subject of age discrimination. Hence, Wards Cove’s pre-1991 interpretation of Title VII’s identical language remains applicable to the ADEA. Congress’ decision to limit the coverage of the ADEA by including the RFOA provision is consistent with the fact that age, unlike race or other classifications protected by Title VII, not uncommonly has relevance to an individual’s capacity to engage in certain types of employment.... Turning to the case before us, we initially note that peti- tioners have done little more than point out that the pay plan at issue is relatively less generous to older workers than to younger workers. They have not identified any specific test, requirement, or practice within the pay plan that has an adverse impact on older workers. As we held in Wards Cove, it is not enough to simply allege that there is a disparate impact on workers, or point to a generalized policy that leads to such an impact. Rather, the employee is “‘responsible for isolating and identifying the specific employment practices that are allegedly responsible for any observed statistical disparities.’” Petitioners have failed to do so.... In this case not only did petitioners thus err by failing to identify the relevant practice, but it is also clear from the record that the City’s plan was based on reasonable factors other than age. The plan divided each of five basic positions—police officer, master police officer, police sergeant, police lieu- tenant, and deputy police chief—into a series of steps and half-steps. The wage for each range was based on a survey of comparable communities in the Southeast. Employees were then assigned a step (or half-step) within their position that corresponded to the lowest step that would still give the individual a 2% raise. Most of the officers were in the three lowest ranks; in each of those ranks there were officers under age 40 and officers over 40. In none did their age affect their compensation. The few officers in the two highest ranks are all over 40. Their raises, though higher in dollar amount than the raises given to junior officers, represented a smaller percentage of their salaries, which of course are higher than the salaries paid to their juniors. They are members of the class complaining of the “disparate impact” of the award. Petitioners’ evidence established two principal facts: First, almost two-thirds (66.2%) of the officers under 40 received raises of more than 10% while less than half (45.3%) of those over 40 did. Second, the average percentage increase for the entire class of officers with less than five years of tenure was somewhat higher than the percentage for those with more seniority. Because older officers tended to occupy more senior positions, on average they received smaller increases when measured as a percentage of their salary. The basic explana- tion for the differential was the City’s perceived need to raise the salaries of junior officers to make them competitive with comparable positions in the market. While there may have been other reasonable ways for the City to achieve its goals, the one selected was not unreason- able. Unlike the business necessity test, which asks whether there are other ways for the employer to achieve its goals that do not result in a disparate impact on a protected class, the reasonableness inquiry includes no such requirement. Accordingly, while we do not agree with the Court of Appeals’ holding that the disparate-impact theory of recovery is never available under the ADEA, we affirm its judgment. It is so ordered. Case Questions 1. How did the city’s pay raise plan affect older police officers? Why did the city adopt such a pay raise plan? 2. According to Justice Stevens, what provisions of the ADEA allow plaintiffs to bring a disparate impact claim of age discrimination? 3. How does a claim of disparate impact age discrimina- tion under the ADEA differ from a claim of disparate impact discrimination under Title VII of the Civil Rights Act of 1964? 4. Why did the Supreme Court dismiss the plaintiff’s disparate impact age discrimination claim fail here? Explain.

In Meacham v. Knolls Atomic Power Laboratory,10 a case decided following Smith, the Supreme Court held that an employer raising the “reasonable factor other than age” defense has to demonstrate that it relied on the “factor other than age,” and has the burden of per- suading the court that the factor was “reasonable.”

Executive Exemption Section 631(c) of the ADEA allows the mandatory retirement of executive employees who are over the age of 65. To qualify under this exemption, the employee must have been in a bona fide executive or high policy-making position for at least two years and, upon retire- ment, must be entitled to nonforfeitable retirement benefits of at least $44,000 annually. An employee who is within the executive exemption can be required to retire upon reaching age 65; mandatory retirement of such executives prior to 65 is still prohibited. State or Local Government Firefighters or Law Enforcement Officers Section 623(j) of the ADEA allows state and local governments to set, by law, retirement ages for firefighters and law enforcement officers. Where the state or local retirement age law was in effect as of March 3, 1983, the retirement age set by that law may be enforced. Where the state or local legislation setting the retirement age was enacted after September 30, 1996, the retirement age must be at least 55. This original version of this exception was inserted into the ADEA in response to the Supreme Court decision in Johnson v. Mayor and City Council of Baltimore,11 but that provision expired at the end of 1993. The current version of this exception was added to the ADEA in 1996. Bona Fide Occupational Qualification (BFOQ) The ADEA does recognize that age may be a BFOQ for some jobs. The act states that a BFOQ must be reasonably necessary to the normal operation of the employer’s business. In Hodgson v. Greyhound Lines, Inc.,12 the court held that Greyhound could refuse to hire appli- cants for bus driver positions if the candidates were over 35 years old because of passenger safety considerations. However, a test pilot could not be mandatorily retired at age 52 accord- ing to Houghton v. McDonnell Douglas Corp.13 The Supreme Court considered the question of what is required to qualify as a BFOQ under the ADEA in Western Airlines v. Criswell,14 where it affirmed the court of appeals’ decision that Western had not established the manda- tory retirement of flight engineers was a BFOQ. However, in 2014 the U.S. Court of Appeals reached a different conclusion in a case concerning mandatory retirement of corporate pilots.

CASE 9.3 E.E.o.C. v. Exxon moBilE Corporation 560 Fed. Appx. 282 (5th Cir. 2014) Facts: In 1959, the FAA adopted a rule prohibiting pilots from flying in any operations in Part 121 of the FAA’s regulations if the pilot was over the age of 60 (“Age 60 Rule”). Part 121 applied to “large commercial passenger aircraft, smaller propeller aircraft with 10 or more passenger seats, and common carriage operations of all-cargo aircraft with a payload capacity of 7,500 pounds.” The FAA supported this Age 60 Rule because: there is a progressive deterioration of certain important physiological and psychological functions with age, that significant medical defects attributable to this degenerative process occur at an increasing rate as age increases, and that sudden incapacity due to such medical defects becomes significantly more frequent in any group reaching age 60. Such incapacity, due primarily to heart attacks and strokes, cannot be predicted accurately as to any specific individual on the basis of presently available scientific tests and criteria.... Other factors, even less susceptible to precise measurement as to their effect but which must be considered in connection with safety in flight, result simply from aging alone and are, with some variations, applicable to all individuals. These relate to loss of ability to perform highly skilled tasks rapidly, to resist fatigue, to maintain physical stamina, to perform effectively in a complex and stressful environment, to apply experience, judgment and reasoning rapidly in new, changing and emergency situations, and to learn new techniques, skills and procedures. Borrowing a page from the FAA play book, Defendant Exxon adopted a similar retirement-at-60 rule for its corpo- rate pilots. The EEOC challenged this rule in court. Issue: Is Exxon’s mandatory retirement rule a valid BFOQ? Decision: The EEOC argued that genuine issues of material fact remained, precluding summary judgment based on the incongruity between the two occupations (commercial airline pilot and corporate pilot) at issue. The agency asserted that the record refuted Exxon’s contentions that, because its pilots fly in the same airspace, with the same air traffic sectors, under identical weather conditions, and in the same congested domestic international airports, the occupations are congruent. Specifically, the EEOC stated that the piloting duties, planes, and operations of an Exxon pilot were materially different from that of a commercial pilot. In response, Exxon argued that these distinctions were not material. More importantly, according to Exxon, the EEOC improperly narrowed the issue by ignoring the fact that pilots covered by Part 121 are not solely commercial pilots. Part 121 also included those flying cargo planes and smaller commuter planes. Exxon stated that its pilots must be compared to the wide range of piloting covered by Part 121, not solely large commercial aircrafts. The appellate court agreed with Exxon that the occupa- tions were substantially similar and congruent. They held that Exxon had put forth significant evidence demonstrat- ing that its pilots flew similar planes, in similar conditions, and in the same airspace and airports as commercial pilots. Additionally, aspects of Exxon’s piloting were more oner- ous than Part 121 piloting. Exxon’s pilots had to obtain some of their own pre-flight information, fly with little advance warning, allow passengers to change itineraries mid-flight, and occasionally fly into and out of unfamiliar, remote airports. Although Exxon’s pilots might face differ- ent regulations, certifications, and testing, the essence of their occupation—piloting Exxon’s corporate aircraft—was congruent to the essence of commercial piloting and other piloting covered by Part 121. The EEOC failed to address the fact that Part 121 cov- ered a wide range of operations and to distinguish Exxon’s operations. Instead, the EEOC’s evidence compared only commercial piloting to Exxon piloting or corporate pilot- ing generally. When compared to commercial pilots, the EEOC was correct that corporate pilots might fly fewer hours, operate on a varying schedule, and only fly in cer- tain weather conditions. However, these distinctions were “distinctions without difference.” Exxon’s operations func- tioned in much the same manner as commercial, com- muter, or cargo operations, all types of piloting covered by Part 121. Thus, the EEOC had not shown a genuine dis- pute of material fact that the occupations lack congruence. Summary judgment for Exxon was affirmed.

Early Retirement and Work Force Reductions The ADEA does not prohibit voluntary retirement as long as it is truly voluntary. The Older Workers Benefit Protection Act of 1990, which amended the ADEA, contained sev- eral provisions concerning work force reductions. Employers seeking to reduce their work force may offer employees early retirement incentives, such as subsidized benefits for early retirees or paying higher benefits until retirees are eligible for social security, as long as the practice is a permanent feature of a plan that is continually available to all who meet eligibil- ity requirements and participation in the early retirement program is voluntary. Severance pay made available because of an event unrelated to age (such as a plant closing or work force reduction) may be reduced by the amount of health benefits or additional benefits received by individuals eligible for an immediate pension. Waivers Under the Older Workers Benefits Protection Act (1990), employers may require employ- ees receiving special benefits upon early retirement to execute a waiver of claims under the ADEA if the waiver is knowing and voluntary and the employees receive additional com- pensation for the waiver, over and above that to which they are already entitled. The waivers must be in writing and must specifically refer to rights under the ADEA. The waivers do not operate to waive any rights of the employee that arise after the waiver is executed. The employees required to execute a waiver must be advised, in writing, to consult an attorney about the waiver and must be given at least 21 days to consider the matter before deciding whether to execute the waiver. The employees must also be allowed to revoke the waivers up to seven days after signing. If the waivers are part of a termination incentive program offered to a group or class of employees, the employer must give the employees 45 days to consider the waiver. If the early retirement and waiver are offered to a class of employees, the employer must provide employees with the following information: • A list of the class eligible for early retirement • The factors to determine eligibility for early retirement • The time limits for deciding upon early retirement • Any possible adverse action if the employee declines to accept early retirement and the date of such possible action For any waiver involving a claim that is already before the EEOC or a court, employees must be given “reasonable time” to consider the waiver. No waiver affects an employee’s right to contact the EEOC or the EEOC’s right to pursue any claim under the ADEA. In any suit involving a waiver of ADEA rights, the burden of proving that the waiver complies with ADEA requirements is on the person asserting that the waiver is valid (usually the employer). When an employee accepts an employer’s offer of severance benefits in return for sign- ing a waiver that does not comply with the waiver requirements set out in the ADEA, does the employee’s retention of those benefits operate to “ratify” the waiver and make it effec- tive? The U.S. Supreme Court addressed that question in the following case.

CASE 9.4 ouBrE v. EntErgy opErations, inC. 522 U.S. 422 (1998) Kennedy, Justice Petitioner Dolores Oubre worked as a scheduler at a power plant in Killona, Louisiana, run by her employer, respondent Entergy Operations, Inc. In 1994, she received a poor performance rating. Oubre’s supervisor met with her on January 17, 1995, and gave her the option of either improving her performance during the coming year or accepting a voluntary arrangement for her severance. She received a packet of information about the severance agreement and had 14 days to consider her options, during which she consulted with attorneys. On January 31, Oubre decided to accept. She signed a release, in which she “agree[d] to waive, settle, release, and discharge any and all claims, demands, damages, actions, or causes of action ... that I may have against Entergy....” In exchange, she received six installment payments over the next four months, totaling $6,258. The Older Workers Benefit Protection Act (OWBPA) imposes specific requirements for releases covering ADEA claims. In procuring the release, Entergy did not comply with the OWBPA in at least three respects: (1) Entergy did not give Oubre enough time to consider her options, (2) Entergy did not give Oubre seven days after she signed the release to change her mind, and (3) the release made no specific reference to claims under the ADEA. Oubre filed a charge of age discrimination with the Equal Employment Opportunity Commission, which dismissed her charge on the merits but issued a right- to-sue letter. She filed this suit against Entergy in the United States District Court for the Eastern District of Louisiana, alleging constructive discharge on the basis of her age in violation of the ADEA and state law. Oubre has not offered or tried to return the $6,258 to Entergy, nor is it clear she has the means to do so. Entergy moved for summary judgment, claiming Oubre had ratified the defective release by failing to return or offer to return the monies she had received. The District Court agreed and entered summary judgment for Entergy. The Court of Appeals affirmed.... The employer rests its case upon general principles of state contract jurisprudence. As the employer recites the rule, contracts tainted by mistake, duress, or even fraud are voidable at the option of the innocent party. The employer maintains, however, that before the innocent party can elect avoidance, she must first tender back any benefits received under the contract. If she fails to do so within a reasonable time after learning of her rights, the employer contends, she ratifies the contract and so makes it binding. The employer also invokes the doctrine of equi- table estoppel. As a rule, equitable estoppel bars a party from shirking the burdens of a voidable transaction for as long as she retains the benefits received under it. Applying these principles, the employer claims the employee ratified the ineffective release (or faces estoppel) by retaining all the sums paid in consideration of it. The employer, then, relies not upon the execution of the release but upon a later, distinct ratification of its terms.... In 1990, Congress amended the ADEA by passing the OWBPA. The OWBPA provides: “An individual may not waive any right or claim under [the ADEA] unless the waiver is knowing and voluntary.... [A] waiver may not be considered knowing and voluntary unless at a minimum” it satisfies certain enumerated requirements.... The statutory command is clear: An employee “may not waive” an ADEA claim unless the waiver or release satis- fies the OWBPA’s requirements. The policy of the Older Workers Benefit Protection Act is likewise clear from its title: It is designed to protect the rights and benefits of older workers. The OWBPA implements Congress’ policy via a strict, unqualified statutory stricture on waivers, and we are bound to take Congress at its word. Congress imposed specific duties on employers who seek releases of certain claims created by statute. Congress delineated these duties with precision and without qualification: An employee “may not waive” an ADEA claim unless the employer complies with the statute. Courts cannot with ease presume ratifica- tion of that which Congress forbids. The OWBPA sets up its own regime for assessing the effect of ADEA waivers, separate and apart from contract law. The statute creates a series of prerequisites for knowing and voluntary waivers and imposes affirmative duties of disclosure and waiting periods. The OWBPA governs the effect under federal law of waivers or releases on ADEA claims and incorporates no exceptions or qualifications. The text of the OWBPA forecloses the employer’s defense, notwithstanding how general contract principles would apply to non-ADEA claims. The rule proposed by the employer would frustrate the statute’s practical operation as well as its formal command. In many instances a discharged employee likely will have spent the monies received and will lack the means to tender their return. These realities might tempt employers to risk noncompliance with the OWBPA’s waiver provisions, knowing it will be difficult to repay the monies and relying on ratification. We ought not to open the door to an evasion of the statute by this device. Oubre’s cause of action arises under the ADEA, and the release can have no effect on her ADEA claim unless it complies with the OWBPA. In this case, both sides concede the release the employee signed did not comply with the requirements of the OWBPA. Since Oubre’s release did not comply with the OWBPA’s stringent safeguards, it is unenforceable against her insofar as it purports to waive or release her ADEA claim. As a statutory matter, the release cannot bar her ADEA suit, irrespective of the validity of the contract as to other claims.... It suffices to hold that the release cannot bar the ADEA claim because it does not conform to the statute. Nor did the employee’s mere retention of monies amount to a rati- fication equivalent to a valid release of her ADEA claims, since the retention did not comply with the OWBPA any more than the original release did. The statute governs the effect of the release on ADEA claims, and the employer cannot invoke the employee’s failure to tender back as a way of excusing its own failure to comply. We reverse the judgment of the Court of Appeals and remand for further proceedings consistent with this opinion. It is so ordered. Appendix to Opinion of the Court Older Workers Benefit Protection Act, §201, 104 Stat. 983, 29 U.S.C. §626(f) (f ) Waiver (1) An individual may not waive any right or claim under this chapter unless the waiver is knowing and voluntary. Except as provided in paragraph (2), a waiver may not be considered knowing and voluntary unless at a minimum— (A) the waiver is part of an agreement between the indi- vidual and the employer that is written in a manner calcu- lated to be understood by such individual, or by the average individual eligible to participate; (B) the waiver specifically refers to rights or claims arising under this Act; (C) the individual does not waive rights or claims that may arise after the date the waiver is executed; (D) the individual waives rights or claims only in exchange for consideration in addition to anything of value to which the individual already is entitled; (E) the individual is advised in writing to consult with an attorney prior to executing the agreement; (F) (i) the individual is given a period of at least 21 days within which to consider the agreement; or (ii) if a waiver is requested in connection with an exit incentive or other employment termination program offered to a group or class of employees, the individual is given a period of at least 45 days within which to consider the agreement; a. the agreement provides that for a period of at least 7 days following the execution of such agreement, the indi- vidual may revoke the agreement, and the agreement shall not become effective or enforceable until the revocation period has expired; b. if a waiver is requested in connection with an exit incentive or other employment termination program offered to a group or class of employees, the employer (at the commencement of the period specified in subparagraph (F)) informs the individual in writing in a manner calculated to be understood by the average individual eligible to partici- pate, as to— (i) any class, unit, or group of individuals covered by such program, any eligibility factors for such program, and any time limits applicable to such program; and (ii) the job titles and ages of all individuals eligible or selected for the program, and the ages of all individuals in the same job classification or organizational unit who are not eligible or selected for the program. (2) A waiver in settlement of a charge filed with the Equal Employment Opportunity Commission, or an action filed in court by the individual or the individual’s repre- sentative, alleging age discrimination of a kind prohibited under section 4 or 15 may not be considered knowing and voluntary unless at a minimum— (A) subparagraphs (A) through (E) of paragraph (1) have been met; and (B) the individual is given a reasonable period of time within which to consider the settlement agreement. (3) In any dispute that may arise over whether any of the requirements, conditions, and circumstances set forth in subparagraph (A), (B), (C), (D), (E), (F), (G), or (H) of paragraph (1), or subparagraph (A) or (B) of paragraph (2), have been met, the party asserting the validity of a waiver shall have the burden of proving in a court of competent jurisdiction that a waiver was knowing and voluntary pursuant to paragraph (1) or (2). (4) No waiver agreement may affect the Commission’s rights and responsibilities to enforce this Act. No waiver may be used to justify interfering with the protected right of an employee to file a charge or participate in an investigation or proceeding conducted by the Commission. Case Questions 1. Why was the waiver signed by Oubre not valid under the ADEA? Did Entergy argue that the waiver did comply with the 3. ADEA? Why did Entergy argue that the waiver should be binding on Oubre? Must Oubre return the money Entergy gave her for signing the waiver before she can sue Entergy under the ADEA? Explain your answer.

ethical DILEMMA

You are the manager of a small financial planning and consulting firm in Little Rock, Arkansas. The firm has been experiencing a slowdown in business lately, and because of the decline in business, you are forced to eliminate one of two financial planner positions. One of the financial planners is 55 and has been with the company for years. She is one of the highest paid employees. She is married and has two children in college. Because her husband has severe medical prob- lems, he is unable to work and depends on her medical benefits for his medical treatment. The other financial planner is 27. He is single and lives with his parents. You must choose which of the two financial planners to lay off. How should you make the decision? What criteria should you use in making the decision? Note that Arkansas does not have any state law prohibiting age discrimination by pri- vate sector employers, but your firm is subject to the federal Age Discrimination in Employment Act.

C H A P T E R 10

Discrimination Based on Disability

The Americans with Disabilities Act

The ADA is a comprehensive piece of civil rights legislation for individuals with disabili- ties. Title I of the act, which applies to employment, prohibits discrimination against indi- viduals who are otherwise qualified for employment. The act became law on July 26, 1990, effective two years after that date for employers with 25 or more employees and three years from that date for employers with 15 or more employees. In 2009, the act was amended by the Americans with Disabilities Act Amendment Act (ADAAA), which broadened the definition of covered disabilities to include a wide range of life activities that previously had been declared outside the ADA by a series of Supreme Court decisions, which the ADAAA in effect overruled. 10-1a Coverage The ADA applies to both private and public sector employers with 15 or more employees but does not apply to most federal government employers, American Indian tribes, or bona fide private membership clubs. The Congressional Accountability Act of 19951 extended the coverage of the ADA and the Rehabilitation Act to the employees of the following offices: • House of Representatives • Senate

Capitol Guide Service Capitol Police Congressional Budget Office Office of the Architect of the Capitol Office of the Attending Physician Office of Technology Assessment The Presidential and Executive Office Accountability Act2 extended coverage of the ADA and the Rehabilitation Act to: • the executive office of the president; • the executive residence at the White House; and • the official residence of the vice president. U.S. employers operating abroad or controlling foreign corporations are covered with regard to the employment of U.S. citizens, unless compliance with the ADA would cause the employer to violate the law of the foreign country in which the workplace is located. In Board of Trustees of the University of Alabama v. Garrett,3 the U.S. Supreme Court, in a 5–4 decision, ruled that the Eleventh Amendment of the U.S. Constitution gave the states immunity from individual suits for damages under the ADA. The Court’s reasoning in Garrett was consistent with its earlier decision in Kimel v. Florida Board of Regents.4 10-1b Provisions The ADA prohibits covered employers from discriminating in any aspect of employment because of disability against an otherwise qualified individual with a disability. Illegal dis- crimination under the ADA includes: ... limiting, segregating, or classifying employees or applicants in a way that adversely affects employment opportunities because of disability, using standards or criteria that have the effect of discriminating on the basis of disability or perpetuating discrimination against others, excluding or denying jobs or benefits to qualified individuals because of the disability of an individual with whom a qualified individual is known to associate, failing to make reasonable accommodation to the known limitations of an otherwise qualified individual unless such accommodation would impose an undue hardship, failing to hire an individual who would require reasonable accommodation, and failing to select or administer employment tests in the most effective manner to ensure that the results reflect the skills of applicants or employees with disabilities. The ADA also prohibits retaliation against any individual because the individual has opposed any act or practice unlawful under the ADA or because the individual has filed a charge or participated in any manner in a proceeding under the ADA. The act also prohib- its coercion or intimidation of, threats against, or interference with an individual’s exercise of or enjoyment of any rights granted under the act.

10-2 Qualified Individual with a Disability

The ADA and the Rehabilitation Act impose obligations not to discriminate against an oth- erwise qualified individual with a disability. According to the Supreme Court decision in Southeastern Community College v. Davis,5 a person is a qualified individual with a disability if the person “is able to meet all ... requirements in spite of his disability.” The individual claiming to be qualified has the burden of demonstrating his or her ability to meet all physi- cal requirements legitimately necessary for the performance of duties. An employer is not required to hire a person with a disability who is not capable of performing the duties of the job. However, the regulations under the act require the employer to make “reasonable accommodation” to the disabilities of individuals. The ADA defines “qualified individual with a disability” as “an individual with a disability who, with or without reasonable accommodation, can perform the essential functions of the employment position that such individual holds or desires.” When determining the essential functions of a job, the court or the Equal Employment Opportunity Commission (EEOC), which administers and enforces the ADA, is to consider the employer’s judgment as to what is essential. If a written job description is used for advertising the position or interviewing job applicants, that description is to be considered evidence of the essential functions of the job. In Cleveland v. Policy Management Systems,6 the Supreme Court held that an individual who applies for Social Security disability benefits may still be a “qualified individual with a disability” within the meaning of the ADA. In Albertsons, Inc. v. Kirkingburg,7 the Supreme Court held that a truck driver who was not able to meet federal safety standards for commercial motor vehicle operators was not “a qualified individual with a disability” under the ADA. The employer was not required to participate in an experimental program that would have waived the safety standards.

10-3 Definition of Disability

The ADA defines “individual with a disability” very broadly. Disability means, with respect to an individual:

(b) (c) a physical or mental impairment that substantially limits one or more of the major life activities of such individual; a record of such an impairment; or being regarded as having such an impairment. 10-3a The ADA Amendments Act of 2008 The ADA was amended, effective January 1, 2009,8 to indicate that the definition of dis- ability should be construed in favor of broad coverage of individuals under the ADA. Spe-cifically, the amendments expanded the definition of “major life activities” to include, but not be limited to: • Caring for oneself • Performing manual tasks • Seeing • Hearing • Eating • Sleeping • Walking • Standing • Lifting • Bending • Speaking • Breathing • Learning • Reading • Concentrating • Thinking • Communicating • Working The amended ADA also states that “major life activity” also includes the operation of a major bodily function, including but not limited to: • Functions of the immune system • Normal cell growth • Digestion • Bowel • Bladder • Neurology • Brain • Respiratory • Circulatory • Endocrine • Reproduction Individuals can establish that they are “regarded as having such an impairment” if they show that they have been subjected to discriminatory treatment because of an actual or per- ceived physical or mental impairment, whether or not the impairment limits or is perceived to limit a major life activity. In cases decided before the 2009 ADAAA, the Supreme Court restricted the scope of the ADA’s definition of disability. In Sutton v. United Air Lines, Inc.,9 the Court held that when determining whether an individual has a disability that substantially limits one or more major life activities, a court must also consider the existence of corrective, mitigating, or remedial measures that may reduce the effect of the disability. In Toyota Motor Manu- facturing, Kentucky, Inc. v. Williams,10 the Court stated that when assessing the impact of a disability on the major life activity of performing manual tasks, the central inquiry must be whether the individual is unable to perform the variety of tasks central to most people’s daily lives, not whether the individual is unable to perform the tasks associated with her specific job. The 2009 amendments specifically overrule those two decisions and set out rules of construction for the definition of disability. The ADA now provides that “[a]n impairment that substantially limits one major life activity need not limit other major life activities in order to be considered a disability” and that “[a]n impairment that is episodic or in remis- sion is a disability if it would substantially limit a major life activity when active.” The amendments also state that when determining whether an impairment substantially limits a major life activity, the court is not to consider the ameliorative effects of mitigating mea- sures, assistive devices, or aids other than eyeglasses or contact lenses. Employees who use illegal drugs are not protected by the ADA, nor are alcoholics who use alcohol at the workplace or who are under the influence of alcohol at the work- place. Individuals who are former drug users or recovering drug users, including persons participating in a supervised rehabilitation program and individuals “erroneously regarded” as using drugs but who do not use drugs, are under the ADA’s protection.

The definition of disability under the ADA includes infectious or contagious diseases, unless the disease presents a direct threat to the health or safety of others and that threat cannot be eliminated by reasonable accommodation. Temporary or short-term nonchronic conditions, with little or no long-term or permanent impact, are usually not considered disabilities. The 2009 amendments to the ADA specifically state that the “being regarded as having an impairment” aspect of the definition of disability shall not apply to impair- ments that are transitory (defined as an impairment with an actual or expected duration of six months or less) and minor. The act’s protection does not apply to an individual who is a transvestite, nor are homosexuality, bisexuality, or sexual behavior disorders such as exhibitionism or transsexualism considered disabilities. Compulsive gambling, kleptoma- nia, pyromania, and psychoactive substance use disorders resulting from current illegal use of drugs are also not within the definition of disability.

CASE 10.1 Jacobs v. N.c. admiNistrative office of the courts --- F.3d ---, 2015 WL 1062673 (4th Cir. 2015)

courthouse in New Hanover County, North Carolina. Although she allegedly suffered from social anxiety disorder, her employer assigned her to provide customer service at the courthouse front counter. Believing that her mental illness hindered her ability to perform this inherently social task, Jacobs requested an accommodation to be assigned to a role with less direct interpersonal interaction. Her employer waited three weeks without acting on her request and then terminated her. Jacobs had suffered from mental illness since childhood. At 10, Jacobs was diagnosed with severe situational perfor- mance anxiety. At 12, she was hospitalized for several days after threatening to harm herself and others. During her hospitalization, she was diagnosed with mood disorder and selective mutism, and was prescribed antidepressants. At the age of 18, she received an additional diagnosis of social anxiety disorder for which she has been treated intermit- tently by several physicians. Social anxiety disorder is characterized by a “marked and persistent fear of ... social or performance situations in which [a] person is exposed to unfamiliar people or to pos- sible scrutiny by others.” [Am. Psychiatric Ass’n, Diagnos- tic and Statistical Manual of Mental Disorders 456 (4th ed. 2000)]. A person suffering from social anxiety disorder either “avoid[s]” the feared social or performance situations, or “endure[s them] with intense anxiety or distress.” Id. A per- son can only be diagnosed with social anxiety disorder when the “avoidance, anxious anticipation, or distress in the feared social or performance situation(s) interferes significantly with the person’s normal routine, occupational ... functioning, or social activities or relationships....” Id. The American Psy- chiatric Association (APA) notes that social anxiety disorder can create a “vicious cycle of anticipatory anxiety leading to fearful cognition and anxiety ..., which leads to actual or per- ceived poor performance ..., which leads to embarrassment and increased anticipatory anxiety....” Issue: Under the expanded definition of “disability” created by the ADAAA, is Jacobs a covered person with a qualifying disability? Holding: The Fourth Circuit panel held that the trial judge erred by concluding that Jacobs was not disabled within the meaning of the ADA. During the course of discovery both parties produced expert testimony by mental health specialists on this issue. After examining Jacobs, forensic psychologist Dr. Claudia Coleman concluded that “her mental disorders, Social Phobia and Anxiety Disorder, ... constitute a disability as defined by the [ADA].” Forensic psychiatrist Dr. George Corvin, the AOC’s expert, did not examine Jacobs. Instead, Dr. Corvin based his report on a review of her medical records, social media use, employment records, and the report of a private investigator who observed Jacobs while she was at work at a new job. Dr. Corvin concluded that it was possible that Jacobs met the diagnostic criteria for social anxiety disorder but that “her medical records alone are insufficient to establish such a diagnosis.” He also determined from the private investigator’s report that Jacobs was currently succeeding in a new customer service job, and thereby inferred that she had not experienced “any significant level of anxiety or other psychiatric impairment” while working at the AOC. The judges noted that the EEOC regulations operationalizing the ADAAA define a substantially limiting impairment as one that “substantially limits the ability of an individual to perform a major life activity as compared to most people in the general population.”11 Based on that definition, Jacobs had articulated a cov- ered disability. That being said, the parties clearly faced a material issue of fact regarding the extent of the plaintiff ’s disability. The court concluded that, therefore, the defendant was not entitled to summary judgment with regard to the plaintiff ’s claim of failure to accommodate her disability by transferring her to a less socially demanding job.

ThE WORKING LAW

The Genetic Information Nondiscrimination Act

Congress passed the Genetic Information Nondiscrimination Act (GINA) in 2008; its employment-related provisions took effect in November 2009. The legislation prohibits discrimination based on genetic information by employers with 15 or more employees, employment agencies, labor organizations, and joint labor–manage- ment committees. GINA defines genetic information as an individual’s genetic tests, the genetic tests of an individual’s family members, and the “manifestation of a disease or disorder.” Discrimination in hiring, firing, compensation, or any other terms of employ- ment based on genetic information is prohibited. Labor unions cannot exclude, expel, or otherwise discriminate against individuals based on genetic information. Employers are prohibited from inquiring about genetic information of applicants or employees and from requesting, requiring, collecting, or purchasing genetic information regarding an in- dividual or an individual’s family members. Employers must maintain the confidentiality of any genetic information. Employers may ask employees to provide genetic information as part of a voluntary wellness program, and employers that are forensic laboratories for law enforcement purposes may require employees to provide genetic information only to be used to detect sample contamination for analysis of DNA identification markers. Voluntary wellness programs may not require employee participation, nor may the employee be penalized for not participating. The employee must give written authorization describing the genetic information to be obtained, the general purposes for which it will be used, and the restrictions on disclosure of the information. Employers may conduct genetic monitoring of the biological effects of toxic substances in the workplace if the employer gives written notice of the monitoring, the employee gives written authorization, the employee is given the individual monitoring results, and the employer receives only aggregate monitoring results not identifying individuals.

CASE 10.2 chalfaNt v. titaN distributioN, iNc. 475 F.3d 982 (8th Cir. 2007

Facts: Titan Distribution had contracted with Quintak, Inc. to run its tire mounting and distribution operation. Quintak employees worked at Titan’s building using Titan’s equipment. In July 2002, Titan decided to end the contract with Quintak and run the operation itself. Titan announced it would hire some of Quintak’s employees, but they would have to apply and have a qualifying physical. Titan managers Barucic and Luthin were in charge of the application process. Robert Chalfant had worked for Quintak as a second shift supervisor. His duties included loading trucks with a forklift. Chalfant had been working for Quintak for five years. In the past, Chalfant had suffered a heart attack and had undergone carpal tunnel surgery and heart bypass surgery, and he had arthritis in his back, neck, ankle, and hands. He applied for the same position with Titan that he had had with Quintak, second shift supervisor. In his appli- cation, Chalfant stated that he was physically handicapped. The physical examination was conducted by Dr. Anthony Sciorrota, who determined that Chalfant could work in his current capacity, including driving a fork- lift. Dr. Sciorrota also wrote on the exam record that Chalf- ant would need to have a functional capacity examination if he was required to do heavy lifting. Barucic received the exam record and wrote “OK for lift driving” on the top of the record and sent it to Luthin with the application. While his application was pending, Chalfant continued working as a second shift supervisor in the tire and wheel mounting division as an employee of Labor Ready, a temporary work service used by Titan during the application period. During the first week of August 2002, Chalfant was told by a Titan manager that he was included in a list of Quin- tak employees to be retained by Titan, but on August 8, 2002, he was told that he had failed the physical and would not be hired. Within two months, Chalfant took a job with AMPCO Systems, a parking ramp management company. At AMPCO, Chalfant performed general service work. His job there involved walking up to five miles a day and lifting more than he did as a Quintak employee. Chalfant sued Titan for disability discrimination under the Americans with Disabilities Act. After a trial, the jury found for Chalfant on the disability discrimination claims and awarded $60,000 in back pay and $100,000 in puni- tive damages. The district court then awarded $18,750 in front pay. Titan appealed. Issue: Has Chalfant demonstrated sufficient evidence to establish that Titan regarded him as disabled under the ADA? Decision: Titan regarded Chalfant as disabled because it mistakenly believed that his physical ailments substantially limited his ability to work in a broad range of jobs. Chalfant wrote in his application packet that he considered himself physically handicapped because of his ailments. Titan therefore knew about the ailments. The physician who conducted the physical exam did not find that Chalfant had failed the physical and that he could operate a forklift. The doctor did recommend that Chalfant undergo a functional capacity examination if he was required to do heavy lifting. Chalfant applied for the second shift supervisor position, a position that did not require unique or strenuous lifting. Titan employees testified that there was no lifting requirement, or even a job description, for the second shift supervisor position. Chalfant also testified that he had not been required to do any heavy lifting when he was the second shift supervisor for Quintak and Labor Ready. The court of appeals held that there was sufficient evidence for a reasonable jury to conclude that Titan be- lieved Chalfant’s impairments substantially restricted his ability to work in a class of jobs or a broad range of jobs despite the fact that he was able to perform the essential functions of the second shift supervisor position. Titan accepted that Chalfant passed his physical, notified him that he would be hired, then changed the results of his physical to “failed” and notified him that he would not be hired. Titan’s inconsistent behavior could lead a reason- able jury to infer that Titan knew it might be acting in violation of federal law. There was sufficient evidence to support the submission of the issue of punitive damages to the jury. The court of appeals affirmed the trial court verdict and the award of punitive damages to Chalfont.

10- Medical Exams and Tests

The ADA limits the ability of an employer to test for or inquire into the disabilities of job applicants and employees. Employers are prohibited from asking about the existence, nature, or severity of a disability. However, an employer may ask about the individual’s ability to perform the functions and requirements of the job. Employers are likewise not permitted to require preemployment medical examinations of applicants. However, once an offer of a job has been extended to an applicant, employers can require a medical exam, provided that such an exam is required of all entering employees. Current employees are similarly protected from inquiries or exams, unless those requirements can be shown to be “job-related and consistent with business necessity.” The act does not consider a drug test to be a medical examination, and it does not prohibit an employer from administering drug tests to its employees or from making employment decisions based on the results of such tests.

10-5 Reasonable Accommodation

The definition of a “qualified individual with a disability” includes the individual who is capable of performing the essential functions of a job with reasonable accommodation on the part of the employer. The ADA and the Rehabilitation Act impose on employers the obligation to make reasonable accommodations for such individuals or employees, unless the accommodation would impose “undue hardship” on the employer. Examples of accom- modations listed in the ADA include: • Making facilities accessible to disabled individuals • Restructuring jobs • Providing part-time or modified work schedules • Acquiring or modifying equipment • Adjusting or modifying examinations, training materials, or policies • Providing qualified readers or interpreters Failure to make such reasonable accommodation (which would not impose an undue hard- ship), or failure to hire an individual because of the need to make accommodation for that individual, is included in the definition of illegal discrimination under the act. Employers are not required to create a new position for the disabled applicant or employee, nor are they required to offer the individual the most expensive means of accommodation. A number of courts have held that extending a medical leave beyond the 12-week leave available under the Family and Medical Leave Act (discussed in Chapter 7) can be a reason- able accommodation to an employee’s disability under the ADA. The courts have considered whether the extended leave would create an undue hardship for the employer, and whether the leave would permit the employee eventually to perform the essential functions of her or his job, as in Nunes v. Wal-Mart Stores12 and Cehrs v. Northeast Ohio Alzheimer’s Research.

Center.13 According to Smith v. Blue Cross/Blue Shield of Kansas, Inc.,14 an accommodation that would eliminate an essential function of the employee’s job is not reasonable, and an employer is not required to wait indefinitely for an employee to return to work. When an employee requests an accommodation that conflicts with the seniority provi- sions of a collective bargaining agreement, the employer ordinarily need only demonstrate the conflict to establish that the accommodation is unreasonable. However, according to the Supreme Court decision in U.S. Airways, Inc. v. Barnett,15 the employee may present evidence of special circumstances that would make an exception to the seniority rules rea- sonable under the particular facts. Reasonable accommodations may include the minimal realignment or assignment of job duties or the provision of certain assistance devices. For example, an employer could reassign certain filing or reception duties from the requirements of a typist posi- tion to accommodate an individual confined to a wheelchair. An employer could also be required to equip telephones with amplifiers to accommodate an employee’s hearing dis- ability. Although the extent of accommodation required must be determined case by case, drastic realignment of work assignments or the undertaking of severe financial costs by an employer would be considered “unreasonable” and would not be required. In PGA Tour, Inc. v. Martin16 (which involved the public accommodation provisions of Title III of the ADA and not the ADA’s employment-related provisions under Title I), the Court held that allowing a disabled golfer to ride in a golf cart rather than walk during a golf tournament, was a reasonable accommodation that did not fundamentally alter the nature of the event. How should an employer respond to an employee’s request for reasonable accommoda- tion? This is discussed in the following case.

CASE 10.3 humphrey v. memorial hospitals associatioN 239 F.3d 1128 (9th Cir. 2001)

Background [Carolyn Humphrey worked for Memorial Hospitals Association (MHA) as a medical transcriptionist from 1986 until her termination in 1995. Humphrey’s transcription performance was generally evaluated as excellent. In 1989, she began to experience problems getting to work on time or at all. She began engaging in a series of obsessive rituals that prevented her from arriving at work on time. She felt compelled to wash, rinse, and brush her hair for up to three hours. She would also feel compelled to dress very slowly, to repeatedly check for papers she needed, and to pull out strands of her hair and examine them closely because she felt as though something was crawling on her scalp. MHA gave Humphrey a disciplinary warning in June 1994 because of her tardiness and absenteeism, but her obsessions and peculiar rituals grew worse after the warning, and her attendance record did not improve. In December 1994, she received a “Level III” warning, because she was tardy four days and absent one day in a two-week period. Humphrey began to suspect that her debilitating symptoms and inability to get to work on time might be related to a medical condition. In May 1995, after a diagnostic evaluation and psycho- logical testing, Dr. John Jacisin diagnosed her with obses- sive-compulsive disorder (OCD). He sent a letter explaining that diagnosis to her supervisor on May 18, 1995, telling her that Humphrey’s OCD “is directly contributing to her problems with lateness.” The letter also stated that Jacisin would like to see Humphrey continue to work, but it may be necessary for her to take some time off until her symp- toms are under better control. On June 7, 1995, Humphrey met with her supervisor to review Dr. Jacisin’s letter. What happened at this meeting is disputed: MHA claimed that Humphrey rejected the leave of absence alluded to in the doctor’s letter, but Humphrey claimed that she was never offered a leave of absence and never rejected one. Humphrey wanted to try to keep working, if possible, and the supervisor told her that she could have an “accommodation” that would allow her to do so. The supervisor suggested a flexible start time arrange- ment, and Humphrey accepted, but she continued to miss work. MHA never suggested modifying the accommodation. On September 18, 1995, Humphrey sent her supervisor an email request that she be allowed to work from her home as a new accommodation. MHA did allow some medical transcriptionists to work out of their homes, but MHA denied Humphrey’s request because of her disciplinary warnings for tardiness and absenteeism. The supervisor did not suggest an alternative accommodation or reassess its arrangements to accommodate Humphrey in light of the failure of the flexible work schedule arrangement. Sometime later Humphrey asked about working at home but was told that she would have to be free of atten- dance problems for a year before she could be considered for an at-home transcriptionist position. Humphrey was absent two more times, and was fired on October 10, 1995, because of her history of tardiness and absenteeism. Humphrey testified that after learning of her termination, she went across the hall to her supervisor’s office and asked if she might take a leave of absence instead, but her request was refused. MHA concedes that it would have granted the request if Humphrey had asked for a leave of absence prior to her termination, as MHA had a policy of permitting medical leaves of absence to employees with disabilities. Humphrey filed suit against MHA under the ADA. The district court granted MHA’s motion for summary judgment, and Humphrey appealed to the U.S. Court of Appeals for the Ninth Circuit.] Reinhardt, Circuit Judge Humphrey contends that MHA violated the ADA and the FEHA by failing to reasonably accommodate her disability and by terminating her because of that disability.... To prevail on a claim of unlawful discharge under the ADA, the plaintiff must establish that he is a qualified individual with a disability and that the employer terminated him because of his disability.... It is undisputed that Humphrey had the skills, training, and experience to transcribe medical records.... Humphrey is a “qualified individual” under the ADA so long as she is able to perform the essential functions of her job “with or without reasonable accommodation.” Either of two potential reasonable accommodations might have made it possible for Humphrey to perform the essen- tial functions of her job: granting her a leave of absence or allowing her to become a “home-based transcriptionist.” ... Working at home is a reasonable accommodation when the essential functions of the position can be performed at home and a work-at-home arrangement would not cause undue hardship for the employer. [EEOC Enforcement Guidance: Reasonable Accommodation and Undue Hardship Under the Americans with Disabilities Act, FEP (BNA) 405:7601, at 7626 (March 1, 1999).] Humphrey does not dispute that regular and predictable performance of the job is an essential part of the transcriptionist position because many of the medical records must be transcribed within twenty-four hours, and frequent and unscheduled absences would prevent the department from meeting its deadlines. However, physical attendance at the MHA offices is not an essential job duty; in fact ... MHA permits some of its medical transcriptionists to work at home. MHA denied Humphrey’s application for a work-at- home position because of her disciplinary record, which consisted of ... warnings for tardiness and absenteeism prior to her diagnosis of OCD. It would be inconsistent with the purposes of the ADA to permit an employer to deny an otherwise reasonable accommodation because of past disciplinary action taken due to the disability sought to be accommodated. Thus, Humphrey’s disciplinary record does not constitute an appropriate basis for denying her a work- at-home accommodation.... ... We conclude, as a matter of law, that ... MHA had an affirmative duty under the ADA to explore further methods of accommodation before terminating Humphrey. Once an employer becomes aware of the need for accommodation, that employer has a mandatory obligation under the ADA to engage in an interactive process with the employee to identify and implement appropriate reason- able accommodations. “An appropriate reasonable accom- modation must be effective, in enabling the employee to perform the duties of the position.” The interactive process requires communication and good-faith exploration of possible accommodations between employers and indi- vidual employees, and neither side can delay or obstruct the process. Employers, who fail to engage in the interactive process in good faith, face liability for the remedies imposed by the statute if a reasonable accommodation would have been possible. Moreover, we have held that the duty to accommodate “is a ‘continuing’ duty that is ‘not exhausted by one effort.’” ... the employer’s obligation to engage in the interactive process extends beyond the first attempt at accommoda- tion and continues when the employee asks for a different accommodation or where the employer is aware that the initial accommodation is failing and further accommodation is needed. This rule fosters the framework of cooperative problem-solving contemplated by the ADA, by encour- aging employers to seek to find accommodations that really work, and by avoiding the creation of a perverse incentive for employees to request the most drastic and burdensome accommodation possible out of fear that a lesser accommo- dation might be ineffective. ... Even if we assume that Humphrey turned down the leave of absence in June in favor of a flexible start-time arrangement, her attempt to perform her job functions by means of a less drastic accommodation does not forfeit her right to a more substantial one upon the failure of the initial effort. By the time of her annual performance review in September, it was abundantly clear to MHA that the flexible start time accommodation was not succeeding; Humphrey had accumulated six unreported absences in each of the months of August and September, and her evaluation stated that her attendance record was “unacceptable.” At this point, MHA had a duty to explore further arrangements to reason- ably accommodate Humphrey’s disability. Humphrey also realized that the accommodation was not working, and requested a work-at-home posi- tion. When it received that request, MHA could have either granted it or initiated discussions with Humphrey regarding other alternatives. Instead, MHA denied her request without suggesting any alternative solutions, or exploring with her the possibility of other accommoda- tions. Rather than fulfill its obligation to engage in a coop- erative dialogue with Humphrey, Pierson’s e-mail suggested that the matter was closed: “During our 6/7/95 meeting, you requested to be accommodated for your disability by having a flexible start-time, stating that you would have no problems staying for a full shift once you arrived. You were given this flexible start time accommodation which continues to remain in effect.” ... [A]n employer fails to engage in the interactive process as a matter of law where it rejects the employee’s proposed accommodations by letter and offers no practical alternatives. Similarly, MHA’s rejec- tion of Humphrey’s work-at-home request and its failure to explore with Humphrey the possibility of other accommo- dations, once it was aware that the initial arrangement was not effective, constitutes a violation of its duty regarding the mandatory interactive process. Given MHA’s failure to engage in the interactive process, liability is appropriate if a reasonable accommodation without undue hardship to the employer would otherwise have been possible. As we have already discussed, a leave of absence was a reasonable accommodation for Humphrey’s disability. Ordinarily, whether an accommodation would pose an undue hardship on the employer is a factual ques- tion. Here, however, MHA has conceded that granting a leave of absence would not have posed an undue hardship. MHA had a policy of granting leaves to disabled employees, and admits that it would have given Humphrey a leave had she asked for one at any time before her termination. MHA’s ultimate position, therefore, is simply that Humphrey is not entitled to a leave of absence because she failed to ask for one before she was fired. As we have explained, however, MHA was under a continuing duty to offer a reasonable accommodation. Accordingly, we hold as a matter of law ... that MHA violated the ADA’s reasonable accommodation requirement. Unlike a simple failure to accommodate claim, an unlawful discharge claim requires a showing that the employer terminated the employee because of his disability.... In this case, MHA’s stated reason for Humphrey’s termination was absenteeism and tardi- ness. For purposes of the ADA, with a few exceptions, conduct resulting from a disability is considered to be part of the disability, rather than a separate basis for termination. The link between the disability and termi- nation is particularly strong where it is the employer’s failure to reasonably accommodate a known disability that leads to discharge for performance inadequacies resulting from that disability.... Humphrey has presented sufficient evidence to create a triable issue of fact as to whether her attendance problems were caused by OCD. In sum, a jury could reasonably find the requisite causal link between a disability of OCD and Humphrey’s absen- teeism and conclude that MHA fired Humphrey because of her disability. For the foregoing reasons, the district court’s grant of summary judgment to MHA on Humphrey’s ADA and FEHA claims is hereby REVERSED and the case is REMANDED for proceedings consistent with this opinion. It is so ordered. Case Questions 1. How did Humphrey’s condition affect her ability to perform her job? Was Humphrey “an otherwise quali- fied individual with a disability” under the ADA? Explain your answers. 2. What accommodation did the employer initially offer to Humphrey? Was the accommodation effective? Explain. 3. What accommodation did Humphrey then request from her employer? How did the employer respond to her request? Why? 4. Was the employer’s decision to terminate Humphrey a violation of the ADA? Explain your answer.

A court’s consideration of what would be a reasonable accommodation to the individ- ual’s disability is to be done on a case-by-case basis. What may be a reasonable accommoda- tion in one situation may not be reasonable under differing circumstances. In Vande Zande v. State of Wisconsin Dept. of Administration,17 the court held that an employer’s refusal to allow a disabled employee to work at home was not a violation of the ADA. The court there stated: Most jobs in organizations public or private involve teamwork under supervision rather than solitary unsupervised work, and teamwork under supervision generally cannot be performed at home without a substantial reduction in the quality of the employee’s performance. This will no doubt change as communications technology advances, but is the situation today. Generally, therefore, an employer is not required to accommodate a disability by allowing the disabled worker to work, by himself, without supervision, at home.... An employer is not required to allow disabled workers to work at home, where their productivity inevitably would be greatly reduced. 10-5a Undue Hardship An employer is not required to make accommodation for an individual if that accommoda- tion would impose “undue hardship on the operation of the business of the covered entity.” The ADA provides a complex definition of what constitutes an undue hardship, including a list of factors to be considered in determining the impact of the accommodation on the employer. An accommodation imposes an undue hardship if it requires significant difficulty or expense when considered in light of the following factors: • the nature and cost of the accommodation needed under this act; • the overall financial resources of the facility or facilities involved in the provision of the reasonable accommodation; the number of persons employed at such facility; the effect on expenses and resources; or the impact otherwise of such accommodation upon the operation of the facility; • the overall financial resources of the covered entity; the overall size of the business of a covered entity with respect to the number of its employees; the number, type, and loca- tion of its facilities; and • the type of operation or operations of the covered entity, including the composition, structure, and functions of the work force of such entity; the geographic separateness, administrative, or fiscal relationship of the facility or facilities in question to the covered entity. It should be obvious that the definition of undue hardship is intended to be flexible. What would be a reasonable accommodation for Microsoft could be a significant expense or dif- ficulty for a much smaller employer.

10-6 Defenses Under the ADA

In addition to the defense of undue hardship, the ADA sets out four other possible defenses for employers. 10-6a Direct Threat to Safety or Health of Others Employers may refuse to hire or accommodate an individual if that individual’s condi- tion poses a “direct threat” to the health or safety of others in the workplace. Direct threat is defined as a “significant risk to the health or safety of others that cannot be eliminated by reasonable accommodation.” The definition of disability under the act includes infectious or contagious diseases. According to School Board of Nassau County, Florida v. Arline,18 in determining if such a disease presents a direct threat to others, the employer’s considerations must be based on objective and accepted public health guidelines, not on stereotypes or public attitudes or fears. An employer would probably not be required to hire an individual with an active case of hepatitis or tuberculosis,but could not discriminate against an individual who has been treated for cancer, has been exposed to the HIV virus (associated with AIDS), or has had a history of mental illness. According to Chevron, U.S.A. v. Echazabal,19 an employer may refuse to hire an individual when performance of the job would endanger the individual’s own health due to an existing disability. 10-6b Job-Related Criteria Employers may hire, select, or promote individuals based on tests, standards, or criteria that are job related or are consistent with business necessity. Employers could refuse to hire or promote individuals with a disability who are unable to meet such standards, tests, or crite- ria or when performance of the job cannot be accomplished by reasonable accommodation. For example, an employer would be justified in refusing to hire a blind person for a bus driver position. 10-6c Food Handler Defense An employer in the food service industry may refuse to assign or transfer to a job involv- ing food handling any individual who has an infectious or communicable disease that can be transmitted to others through the handling of food, when the risk of infection cannot be eliminated by reasonable accommodation. The ADA requires the secretary of Health and Human Services to develop a list of diseases that can be transmitted through food handling. Only the diseases on that list (which is to be updated annually) may be used as a basis for refusal under this defense. The secretary of Health and Human Services has stated that HIV infection (associated with AIDS) cannot be transmitted through food handling.20 10-6d Religious Entities Title I of the ADA does not prohibit a religious corporation, association, educational insti- tution, or society from giving preference in employment to individuals of a particular reli- gion to perform work connected with the carrying on by such corporation, association, educational institution, or society of its activities. As discussed in Chapter 8, a gymnasium operated by the Church of Jesus Christ of Latter-day Saints could discharge an employee who failed to meet the requirements for continued membership in the Mormon church. More specifically, the Court held that the religious-organization exemption in Title VII extends to the auxiliary operations of a church, and that exemption does not offend the “establishment” clause of the First Amendment. In the following case, the Supreme Court was asked to decide whether the so-called ministerial exception applies to a retaliation claim brought under the ADA.

CASE 10.4 hoasaNNa-tabor evaNgelical lutheraN church aNd school v. e.e.o.c. 132 S.Ct. 694 (2012) Facts: The Equal Employment Opportunity Commission brought this action against the member congregation of the Lutheran Church, alleging that the “called” teacher at its school had been fired in retaliation for threatening to file an Americans with Disabilities Act (ADA) lawsuit. The teacher intervened, claiming unlawful retaliation under both the ADA and state law. Perich, the called teacher, developed narcolepsy and began the 2004–2005 school year on disability leave. In January 2005, she notified the school principal that she would be able to report to work in February. The princi- pal responded that the school had already contracted with a lay teacher to fill Perich’s position for the remainder of the school year. The principal also expressed concern that Perich was not yet ready to return to the classroom. The congregation subsequently offered to pay a portion of Perich’s health insurance premiums in exchange for her resignation as a called teacher. Perich refused to resign. In February, Perich presented herself at the school and refused to leave until she received written documentation that she had reported to work. The principal later called Perich and told her that she would likely be fired. Perich responded that she had spoken with an attorney and intended to assert her legal rights. In a subsequent letter, the chairman of the school board advised Perich that the congregation would consider whether to rescind her call at its next meeting. As grounds for termination, the letter cited Perich’s “insubor- dination and disruptive behavior,” as well as the damage she had done to her “working relationship” with the school by “threatening to take legal action.” The congregation voted to rescind Perich’s call, and Hosanna-Tabor sent her a letter of termination. Issue: Is the called teacher a minister, and if so, does the ministerial exception prevent the EEOC and the teacher from pursuing a retaliation claim against the defendant under the ADA? Holding: Chief Justice Roberts wrote his opinion on behalf of a unanimous Court. In it, he held that (1) the First Amendment bars suits by ministers against their churches, claiming termination in violation of employment discrimination laws; (2) the called teacher in effect was a minister for purposes of this rule, notwithstanding that she performed many duties equivalent to what lay teachers in the church’s school also performed; and (3) this ministerial exception extends not only to the ADA but to all employment discrimination statutes. Thus, the defendant in this case enjoyed a viable affir- mative defense to the EEOC’s suit.

10-7 10-8 Part 2 Equal Employment Opportunity Enforcement of the ADA The ADA is enforced by the EEOC. The act specifically provides that the procedures and remedies under Title VII of the Civil Rights Act of 1964 shall be those used or available under the ADA. This means that an individual must first file a complaint with a state or local agency, where appropriate, and then with the EEOC. The EEOC, or the individual if the EEOC declines, may file suit against an employer. Remedies available include injunctions, a hiring or reinstatement order (with or without back pay), and attorney fees. The Civil Rights Act of 1991 amended 42 U.S.C. Section 1981A to allow suits for compensatory and puni- tive damages against parties accused of intentional discrimination in violation of the ADA. Such damages are not available where the alleged discrimination involves provision of a reasonable accommodation of an individual’s disability and the employer demonstrates that it made a good-faith effort to accommodate the individual’s disability. Punitive damages are not available against public sector employers. The ADA also directs the EEOC to develop and issue regulations to enforce the act. The Rehabilitation Act The Rehabilitation Act of 1973 protects the employment rights of individuals with a dis- ability. The act’s provisions prohibit discrimination against otherwise qualified individuals with a disability. The definition of “individual with a disability” under the Rehabilitation Act is similar to that under the ADA: any person who (a) has a physical or mental impairment, which substantially limits one or more of such person’s major life activities, (b) has a record of such an impairment, or (c) is regarded as having such an impairment. The Supreme Court decision in School Board of Nassau County, Fla. v. Arline21 held that the definition of disability under the Rehabilitation Act included contagious diseases; the employee with an infectious disease is “otherwise qualified” within the meaning of the act if the threat posed to others by the disease can be eliminated or avoided through reason- able accommodation by the employer. The Civil Rights Restoration Act of 1988, passed by Congress over President Reagan’s veto, amended the definition of “individual with a disability” under the Rehabilitation Act to exclude a person with: a currently contagious disease or infection and who, by reason of such disease or infection, would constitute a direct threat to the health or safety of other individuals or who, by reason of the currently contagious disease or infection, is unable to perform the duties of the job. 10-8a Provisions The Rehabilitation Act imposes obligations not to discriminate against otherwise quali- fied individuals with a disability. According to Southeastern Community College v. Davis, a person is “an otherwise qualified individual with a disability” under the Rehabilitation Act (as with the ADA) if the person is able to meet the requirements of the position in spite of the disability or with reasonable accommodation of the disability. The individual claim- ing to be qualified has the burden of demonstrating her or his ability to meet all physical requirements legitimately necessary for the performance of the duties of the position. An employer is not required to hire a person with a disability who is not capable of performing the duties of the position. However, the employer is required to make reasonable accommo- dation to the disability of the individual if such accommodation will allow the individual to perform the job and does not impose undue hardship on the employer. Three main provisions of the Rehabilitation Act deal with discrimination against oth- erwise qualified individuals with a disability: • • • Section 501 prohibits such discrimination by federal government employers Section 503 prohibits such discrimination by employers with federal contracts Section 504 prohibits the denial of participation in, or the benefits of, any federally funded activity to an otherwise qualified individual with a disability Section 501: Federal Government Employers Section 501 of the Rehabilitation Act prohibits discrimination on the basis of disability by federal executive agencies, departments, and instrumentalities. It also requires them to develop affirmative action plans for the hiring, placement, and advancement of individuals with dis- abilities. The plans are to be updated annually and reviewed and approved by the EEOC. Enforcement of Section 501 Section 505(a) of the act provides that Section 501 is enforced through the provisions under Title VII of the Civil Rights Act of 1964, as amended. While federal executive employees with complaints of alleged violations may bring a private suit, they must first seek review of the alleged violation with their agency’s equal employment opportunity (EEO) counselor, whose decision is subject to a formal review through the agency’s EEO complaint proce- dures. The employee can then either seek judicial review of the final decision of the agency or appeal the action to the EEOC. If the employee elects to seek judicial review, a civil action may be filed in federal court within 90 days of receipt of notice of the agency’s final decision or within 180 days of filing with the agency if there has been no decision. Employ- ees choosing to refer the complaint to the EEOC may file a civil action within 90 days of receipt of the EEOC’s notice of final action or within 180 days of filing with the EEOC if there has been no EEOC decision within that time. Remedies available include injunctions; orders directing hiring or reinstatement, with or without back pay and interest; attorney fees; and expert witness fees. In addition to the remedies under the Civil Rights Act, plaintiffs alleging intentional discrimination in viola- tion of Section 501 can bring an action seeking compensatory damages under 42 U.S.C. Section 1981A. Such damages are not available when the alleged discriminatory practice involves reasonable accommodation and the respondent showed good-faith efforts. Punitive damages under 42 U.S.C. Section 1981A are not available against public sector employers. Section 503: Federal Contractors Section 503 of the Rehabilitation Act prohibits discrimination on the basis of disability by federal contractors with annual contracts in excess of $10,000. Federal contractors with contracts of $50,000 or more are also required to develop affirmative action plans as to the hiring of otherwise qualified individuals with a disability. Enforcement of Section 503 is through the administrative procedures of the Office of Federal Contract Compliance Programs (OFCCP) under the Department of Labor. Aggrieved individuals must file a complaint with the OFCCP. There is no individual right to file suit under Section 503. Employers found in violation of Section 503 may be subject to injunctions, withholding of progress payments under the contract, termination of the contract, or debarment from future contracts. Remedies available under the administrative procedures for individuals who are victims of discrimination in violation of Section 503 include hiring or reinstate- ment, back pay, and benefits. Section 504: Federally Assisted Programs Section 504 of the Rehabilitation Act prohibits discrimination on the basis of disability against otherwise qualified individuals with a disability by persons or entities operating or administering any federally funded programs. To be covered by Section 504, the entities must be the direct recipient of federal financial assistance. According to U.S. Department of Transportation v. Paralyzed Veterans of America,22 indirect beneficiaries are not recipients within the meaning of the section. The statutory language provides that “No otherwise qualified individual with a disability ... shall ... (solely by reason of the disability) be excluded from participation in, be denied the benefits of, or be subjected to discrimina- tion under ...” any program receiving federal financial assistance. If any part of the entity receives any federal funding, the nondiscrimination requirement applies to the entire entity. There is no minimum funding amount required for coverage under Section 504. While the language of Section 504 does not specifically refer to employment, its prohibition against discrimination extends to employment discrimination, even though the primary purpose of the federal financial assistance is not providing employment, according to the Supreme Court decision in Consolidated Rail Corp. v. Darrone.23 Employers are required to make reasonable accommodation to the otherwise qualified employee’s or applicant’s condition. Any employment requirements that adversely affect disabled persons must be directly and substantially related to business necessity and safe job performance. In Southeastern Community College v. Davis, the Supreme Court upheld the college’s refusal to admit a woman with a severe hearing disability to the registered nurses training program. The woman’s disability was not correctable with a hearing aid and would create problems in carrying out her duties during the clinical portions of her training. The college was not required to redesign the program to accommodate her disability because the components of the nursing program were required by state law. Enforcement of Section 504 The regulations under Section 504 make the agencies administering the funding the pri- mary enforcement authority for complaints against the recipients of such funding. Most agencies have developed their own administrative procedures for investigating and adju- dicating claims of discrimination. The federal Department of Education coordinates and oversees enforcement of Section 504 by the other federal agencies. Unlike Section 503, there is an individual right to sue under Section 504. Persons claiming a violation of Sec- tion 504 may seek equitable relief and recover back pay, monetary damages, and legal fees; they are not required to pursue the agency’s administrative procedures before filing suit. Punitive damages are not recoverable in private suits brought under Section 504, according to Barnes v. Gorman.24

CASE 10.5 browN v. lucky stores, iNc. 246 F.3d 1182 (9th Cir. 2001)

[Karen Brown was employed by Lucky Stores. She was arrested for drunk driving, possession of methamphet- amine, and being under the influence of an illegal controlled substance. Because she could not post bail, she remained in jail from November 10 to November 15, 1996. She then appeared in court and was convicted of driving under the influence of intoxicants and possession of methamphetamine. The court conditioned suspension of her sentence on her participation in a round-the-clock 90-day drug and alcohol rehabilitation program. She attended the rehabilitation program from November 15, 1996, to February 12, 1997.

On the day of her arrest, Brown called Rebecca Caldeira, her sister-in-law, and asked her to inform John Hunt, Brown’s manager at Lucky Stores, that she was in jail and could not make it to work that day. Caldeira called Hunt on November 10 and informed him of Brown’s incarceration. Brown did not report for work on November 10, 11, and 16 because she was either in jail or attending the rehabilitation program. Lucky Stores fired Brown for abandoning her job. The collec- tive bargaining agreement (CBA) governing Brown’s employ- ment authorized the discharge of an employee for “improper conduct,” and a company policy provided that an employee who misses three consecutive shifts for an unauthorized reason will be terminated from employment.

Brown filed suit against Lucky Stores and Hunt alleging discrimination based on her alcoholism under the ADA, Rehabilitation Act, FEHA, and various state tort and contract claims. The trial court granted summary judgment in

favor of Lucky Stores and Hunt on the ADA, Rehabilitation Act, and FEHA claims. The court concluded that an employer is permitted to terminate an alcoholic employee for violating a rational rule of conduct even if the misconduct was related to the employee’s alcoholism. The court further concluded Lucky Stores did not have a duty to accommodate Brown because she never requested an accommodation.]

Fisher, Circuit Judge

Karen L. Brown appeals the district court’s grant of summary judgment in favor of Lucky Stores and John Hunt on her claims that she was terminated because of her alcoholism in violation of the Americans with Disabilities Act (“ADA”), the Rehabilitation Act and California’s Fair Employment and Housing Act (“FEHA”).... This appeal requires us to address the scope of the ADA’s so-called “safe harbor” provision [42 U.S.C. § 12114(b)(2)] which extends the Act’s protections to an individual “participating in a supervised rehabilita- tion program, and ... no longer engaging in” the illegal use of drugs. We hold that the “safe harbor” provision applies only to employees who have refrained from using drugs for a significant period of time....

Although alcoholism is a protected disability under the ADA, ... Brown has not presented any evidence that she was terminated because of her status as an alcoholic, as is required to prove her ADA claim. Rather, the evidence shows that Lucky Stores terminated her pursuant to its general policy under which three consecutive unexcused absences from work warrant termination. The ADA clearly states that an employer: may hold an employee who engages in the illegal use of drugs or who is an alcoholic to the same qualification standards for employment or job performance and behavior that such entity holds other employees, even if any unsatisfactory performance or behavior is related to the drug use or alcoholism of such employee. [42 U.S.C. § 12114(c)(4)] Thus, Lucky Stores’ termination of Brown did not violate the ADA. Brown argues that her absence from work on November 16 was protected by 42 U.S.C. § 12114(b)(2). Section 12114(a) of the statute specifies that an employee or appli- cant “currently engaging in the use of illegal drugs” is not covered by the ADA, while section 12114(b) clarifies that section (a) does not apply to an individual who “has success- fully completed a supervised drug rehabilitation program and is no longer engaging in the illegal use of drugs, or has otherwise been rehabilitated successfully and is no longer engaging in such use,” [42 U.S.C. § 12114(b)(1)], nor to one who “is participating in a supervised rehabilitation program and is no longer engaging in such use” [§ 12114(b)(2)]. Mere participation in a rehabilitation program is not enough to trigger the protections of § 12114(b); “refraining from illegal use of drugs also is essential. Employers are entitled to seek reasonable assurances that no illegal use of drugs is occurring or has occurred recently enough so that continuing use is a real and ongoing problem.” Brown’s continuing use of drugs and alcohol was clearly an ongoing problem at least until November 10, as demonstrated by her incarceration for driving while intoxicated and possession of methamphet- amine. Because she had not refrained from the use of drugs and alcohol for a sufficient length of time, she was not enti- tled to the protections of the ADA’s safe-harbor provision. Brown also claims that Lucky Stores had a duty to provide a reasonable accommodation for her disability by excusing her absence from her November 16 shift in order to attend the rehabilitation program.... Neither Brown nor her sister-in-law asked for an accommodation, however. Brown testified that she never believed she needed rehabili- tation while working for Lucky Stores. That, coupled with the absence of evidence that she ever requested an accom- modation, leads us to conclude Lucky Stores was under no affirmative obligation to provide an accommodation for her. Barnett v. U.S. Air, Inc. [228 F.3d 1105 (9th Cir. 2000)] does not alter our conclusion. In Barnett, we held that the interactive process for finding a reasonable accommoda- tion may be triggered by the employer’s recognition of the need for such an accommodation, even if the employee does not specifically make the request. The exception to the general rule that an employee must make an initial request applies, however, only when the employer “(1) knows that the employee has a disability, (2) knows, or has reason to know, that the employee is experiencing workplace prob- lems because of the disability, and (3) knows, or has reason to know, that the disability prevents the employee from requesting a reasonable accommodation.” Barnett went on to explain that the employer is required to initiate the interac- tive process only when “an employee is unable to make such a request” and “the company knows of the existence of the employee’s disability.” The record does not show that Brown was unable to request a reasonable accommodation, or that Lucky Stores knew or had reason to know that Brown had a disability preventing her from making such a request. In sum, we conclude that Lucky Stores did not terminate Brown in violation of the ADA, she was not entitled to the protections of the ADA’s “safe harbor” provision and Lucky Stores had no duty to provide an accommodation for her, given that she never requested one. The Rehabilitation Act is restricted in application to “any program or activity receiving Federal financial assis- tance or under any program or activity conducted by any Executive agency or by the United States Postal Service.” [29 U.S.C. § 794(a)] Plaintiff has made no showing that Lucky Stores receives federal funds or is otherwise under executive agency control. Accordingly, her Rehabilitation Act claim fails.... We affirm the district court’s judgment as to Brown’s ADA, FEHA and Rehabilitation Act claims and its dismissal of the state law tort claims without prejudice.... Case Questions 1. What is the “safe harbor” provision of the ADA that Brown claims should apply to her case? How does the court of appeals interpret that provision—does it pro- vide protection for Brown? Explain why or why not. 2. Did Brown’s participation in a drug rehabilitation pro- gram shield her from adverse employment action by her employer? Explain. 3. Must employers treat alcoholic employees the same as employees who use illegal drugs for purposes of the ADA? Are there some reasons that might justify treat- ing alcoholic employees differently? Explain.

An employer’s policy against rehiring former employees discharged for workplace mis- conduct was a legitimate, nondiscriminatory reason for refusing to rehire a former employee who was discharged after testing positive for cocaine use and was not a violation of the ADA, according to Raytheon Co. v. Hernandez.31 Federal Drug Testing Legislation Drug testing by employers is not generally prohibited by any federal legislation. Indeed, federal laws or regulations may require that certain employees, such as those in the air- line or transportation industry, undergo periodic or random drug testing. The Drug- Free Workplace Act, passed by Congress in 1988, requires that government contractors doing more than $25,000 of business annually and recipients of federal grants of more than $25,000 establish written drug-free workplace policies and establish drug-free awareness programs. State Drug Testing Legislation A number of states have passed legislation regarding drug testing of employees. Most such laws set mandatory procedural requirements for employers who subject employees or appli- cants to drug testing. In general, these laws require that employers: • • • • • provide employees with a written statement of their drug testing policy; require confirmatory tests in the case of an initial positive test result; allow employees or applicants who have tested positive to have the sample retested at their own expense; offer employees who test positive the opportunity to enroll in a drug rehabilitation program; and allow termination of employees testing positive only when they refuse to participate in such a program, fail to complete such a program, or violate the terms of the rehabilita- tion program. Several states, including Connecticut and West Virginia, require employers to have reason- able grounds to suspect that employees are using drugs before subjecting employees (other than employees in safety-sensitive positions or subject to federal drug testing requirements) to drug tests. Drug Testing by Private Sector Employers As noted, neither the ADA nor the Rehabilitation Act prohibits drug testing by employers. Private sector employers may be subject to federal laws or regulations that require drug test- ing of certain employees and may be required by the Drug-Free Workplace Act to establish a drug-free workplace policy. In general, federal and state laws do not prohibit drug testing by private sector employers, though such testing may be subject to the procedural require- ments of any relevant state laws. Employers whose work forces are unionized are required to bargain in good faith with the union representing their employees before instituting a drug testing program for those employees. Drug Testing by Public Sector Employers In addition to the legal issues that may arise under specific drug testing laws, drug testing of employees or applicants by a public sector employer could raise questions of its legality under the Constitution. In New York City Transit Authority v. Beazer,32 a case that arose prior to the passage of the ADA, the Supreme Court upheld the constitutionality of a New York City Transit Authority rule prohibiting the employment of persons using methadone. The rule was held to serve the purposes of safety and efficiency and was a policy choice that the public sector employer was empowered to make. The constitutional challenges to public sector drug testing are based on the Fourth Amendment, which forbids unreasonable searches or seizures by the government. Drug testing is considered a search. The general requirement under the Fourth Amendment is that the government must show some reasonable cause to justify the drug testing. In Skinner v. Railway Labor Executives’ Association,33 the Supreme Court upheld the constitutionality of Federal Railroad Administration regulations that required drug tests of all railroad employ- ees involved in accidents, regardless of whether there was any reason to suspect individual employees of drug use. The Supreme Court held that the testing program served a com- pelling government interest by regulating conduct of railroad employees to ensure public safety, and that interest outweighed the privacy concerns of the employees. The fact that the employees had been involved in an accident was sufficient reason to subject them to drug testing. In National Treasury Employees Union v. Von Raab,34 the Supreme Court upheld rules of the U.S. Customs Service that required drug tests of all employees in, or applicants for, positions that involved the interdiction of drug smuggling, carrying a firearm, or access to classified materials. The government interest in public safety and in preventing law enforce- ment officials from being subjected to bribery or blackmail because of their own drug use justified the drug testing program under the Fourth Amendment. The unique mission of the Customs Service and the important government interests served by the testing justified the testing of all employees in the particular positions even without any showing of indi- vidualized suspicion that they were using drugs. Subsequent to its decisions in Skinner and Von Raab, the Supreme Court held in Chandler v. Miller35 that a Georgia law that required all candidates for state political offices to pass a drug test was unconstitutional because there was no evidence of a drug problem among elected officials, and the political offices did not involve high-risk or safety-sensitive positions or drug-interdiction efforts. A number of lower federal court decisions have also dealt with drug testing by public sector employers. In American Fed. of Govt. Employees v. Thornburgh,36 the court confined drug testing by the Immigration and Naturalization Service to the job classes specified in Von Raab: those employees involved directly in drug interdiction, carrying firearms, and with access to classified information. In AFGE v. Thornburgh (Bureau of Prisons),37 the court enjoined the Bureau of Prisons’ program of mandatory random testing of all employees, regardless of their job function, because the employer had failed to demonstrate a spe- cial need for the testing, as required by the Supreme Court decisions. NTEU v. Watkins38 upheld the Department of Energy’s drug testing of employees in “sensitive” positions: • Those with access to sensitive information • Presidential appointees • Law enforcement officers • Those whose duties pertain to law enforcement or national security or to protection of lives or property • Those occupied with public health or safety • Those positions involved with a high degree of trust The court in Watkins also held that testing employees carrying firearms was not justified unless they also had law enforcement duties, and merely holding a security clearance does not decrease one’s privacy expectation to justify testing with no other justification present. In Harmon v. Thornburgh,39 the court held that the Von Raab and Skinner public safety rationale to justify testing focuses on the immediacy of the threat posed. Therefore, the Department of Justice program of random drug testing of prosecutors, those with access to grand jury proceedings, and those with top-secret security clearances was not justified here. The court did allow the testing of employees with access to top-secret national secu- rity information. In AFGE v. Skinner,40 the Department of Transportation’s drug testing of employees in jobs with a direct impact on public health, safety, or national security, such as air traffic controllers, safety inspectors, aircraft mechanics, and motor vehicle operators, was upheld by the court of appeals. In the case of Georgia Association of Educators v. Harris,41 a federal court in Georgia issued an injunction against the enforcement of Georgia legislation requiring drug tests of all applicants for state employment. The court held that the testing requirement could not stand under the standards set out in Von Raab. Drug Testing and the NLRB A number of National Labor Relations Board (NLRB) decisions have dealt with drug test- ing. An employer’s mandatory drug testing program for all employees who suffered work- related injuries was held to be a mandatory bargaining subject in Johnson–Bateman Co.,42 requiring that employers must bargain in good faith with the union(s) representing their employees before instituting drug testing requirements. In Oil, Chemical and Atomic Work- ers Int. Union, Local 2-286 v. Amoco Oil Co.,43 the court of appeals issued an injunction to prevent an employer from unilaterally implementing a drug testing program, pending the outcome of arbitration over whether the collective agreement gave the employer the right to institute such a program. However, drug testing of job applicants is not a mandatory bar- gaining subject according to Star Tribune,44 which means that employers may unilaterally adopt drug testing for applicants for employment. Medical Marijuana Laws As of 2014, 23 states and the District of Columbia had enacted laws that (1) remove crimi- nal sanctions for the medicinal use of marijuana, (2) define eligibility for its use, and (3) enable some means of access.45 In 2009, the U.S. Attorney General issued guidelines regard- ing medical marijuana. AG Eric Holder announced in a press release, The guidelines make clear that the focus of federal resources should not be on individuals whose actions are in compliance with existing state laws, while underscoring that the Department will continue to prosecute people whose claims of compliance with state and local law conceal operations inconsistent with the terms, conditions, or purposes of those laws. “It will not be a priority to use federal resources to prosecute patients with serious illnesses or their caregivers who are complying with state laws on medical marijuana, but we will not tolerate drug traffickers who hide behind claims of compliance with state law to mask activities that are clearly illegal,” Holder said. “This balanced policy formalizes a sensible approach that the Department has been following since January: effectively focus our resources on serious drug traffickers while taking into account state and local laws.”46 In light of these developments, how should the courts deal with disability discrimina- tion cases in which medical marijuana is implicated? Here is one federal court’s answer to this tricky question.

CASE 10.6 thompsoN v. mchugh 2014 WL 5320637 (U.S. Dist. Ct., D. Ariz., 2014)

Facts: Plaintiff Reuben James Thompson was a truck driver employed by a U.S. Army in Afghanistan. While working in Afghanistan, he was cited for driving under the influence of alcohol. Subsequent to his return to the United States he was found to be in possession of marijuana and paraphernalia. He claimed to be disabled and legally in possession of the alleged contraband. The Army nonetheless proceeded with the termination, and Thompson sued. Issue: If Thompson can prove that he is disabled and that the marijuana was legitimately in his possession as a prescribed treatment for his disability, is he entitled to pursue his disability discrimination case against the Army? Holding: Since his employer was a federal agency, concluded the court, he was potentially protected by Section 504 of the Rehabilitation Act. However marijuana remains on the Controlled Substances Act’s list of illegal drugs. Notwithstanding Thompson’s possession of Arizona and California medical-marijuana authorization cards, the federal government has not yet recognized the legitimate medical use of marijuana. Citing a 2010 decision of the U.S. Court of Appeals for the Ninth Circuit47 as precedent for that conclusion, the federal judge continued that, assuming that the plaintiff was disabled within the meaning of the Rehabilitation Act, and that he could make out a prima facie case of discrimination, the Army nevertheless produced evidence that Plaintiff was terminated for a “legitimate, nondiscriminatory reason[s],” i.e., his possession of illegal narcotics and previous discipline in Afghanistan. Thompson had not carried his burden of demonstrating that the stated reason was pretextual. Consequently, the judge granted the Secretary of the Army’s motion for summary judgment.

C H A P T E R 11

Other EEO and Employment Legislation: Federal and State Laws In addition to the legislation discussed in the preceding chapters, there are other legal pro- visions that can be used to attack discrimination in employment. Those other provisions include the Civil Rights Acts of 1866 and 1870, Executive Order 11246, the Uniformed Services Employment and Reemployment Act, the National Labor Relations Act, the Constitution, and the various state EEO laws. This chapter discusses these provisions in some detail.

11-1 The Civil Rights Acts of 1866 and 1870

The Civil Rights Acts of 1866 and 1870 were passed during the Reconstruction era imme- diately following the Civil War. They were intended to ensure that the newly freed slaves were granted the full legal rights of U.S. citizens. The acts are presently codified in Sections 1981, 1983, and 1985 of Chapter 42 of the U.S. Code (referred to as 42 U.S.C. Sections 1981, 1983, 1985). 11-1a Section 1981 Section 1981 provides, in part, that: All persons within the jurisdiction of the United States shall have the same right in every State and Territory to make and enforce contracts ... as is enjoyed by white citizens ... The Supreme Court held in Jones v. Alfred H. Mayer Co.1 that the acts could be used to attack discrimination in private employment. Following Jones, Section 1981 was increas- ingly used, in addition to Title VII, to challenge employment discrimination. In Johnson v. Railway Express Agency,2 the Supreme Court held that Section 1981 provided for an inde- pendent cause of action (right to sue) against employment discrimination. A suit under Section 1981 was separate and distinct from a suit under Title VII.

In the 1989 decision of Patterson v. McLean Credit Union,3 the Supreme Court held that Section 1981 covered only those aspects of racial discrimination in employment that related to the formation and enforcement of contracts and did not cover harassment based on race. The Civil Rights Act of 1991 amended Section 1981 and effectively overturned the Patterson decision by adding Section 1981(b), which states: For the purposes of this section, the term “make and enforce contracts” includes the making, performance, modification, and termination of contracts, and the enjoyment of all benefits, privileges, terms and conditions of the contractual relationship. The 1991 act also added Section 1981A, which gives the right to sue for compensatory and punitive damages to victims of intentional discrimination in violation of Title VII, the Americans with Disabilities Act of 1990, and the Rehabilitation Act. The wording of Section 1981 (“... as is enjoyed by white citizens ...”) seems to indi- cate a concern with racial discrimination. In Saint Francis College v. Al-Khazraji,4 a college professor alleged that he was denied tenure because he was an Arab. The college argued that Arabs are members of the Caucasian (white) race and that the professor was therefore not a victim of race discrimination subject to Section 1981. In determining whether Section 1981 applied to the professor’s claim, the Supreme Court held that: Based on the history of Section 1981, we have little trouble in concluding that Congress intended to protect from discrimination identifiable classes of persons who are subjected to intentional discrimination solely because of their ancestry or ethnic characteristics. Such discrimination is racial discrimination that Congress intended Section 1981 to forbid, whether or not it would be classified as racial in terms of modern scientific theory. The Court of Appeals was thus quite right in holding that Section 1981, “at a minimum,” reaches discrimination against an individual “because he or she is genetically part of an ethnically and physiognomically distinctive sub-grouping of homo sapiens.” It is clear from our holding, however, that a distinctive physiognomy is not essential to qualify for Section 1981 protection. If respondent on remand can prove that he was subjected to intentional discrimination based on the fact that he was born an Arab, rather than solely on the place or nation of his origin, or his religion, he will have made out a case under Section 1981. Based on Al-Khazraji, the courts now interpret “race” under Section 1981 broadly to include claims of ethnic discrimination that are racial in character, such as claiming that an individual was treated differently because he was Hispanic rather than “Anglo,” as in Lopez v. S. B. Thomas, Inc.5 Plaintiffs may bring suits under Section 1981 to challenge racial or ethnic harassment or retaliation, according to Manatt v. Bank of America, N.A.6 11-1b Section 1983 Section 1983 of 42 U.S.C. provides that: Every person who, under the color of any statute, ordinance, regulation, custom or usage, of any State or Territory, subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law equity, or other proper proceeding for redress. As with Section 1981, Section 1983 is restricted to claims of intentional discrimination. But unlike Section 1981, the prohibitions of Section 1983 extend to the deprivation of any rights guaranteed by the Constitution or by law. In Maine v. Thiboutot,7 the Supreme Court held that Section 1983 encompasses claims based on deprivation of rights granted under fed- eral statutory law. This means that claims alleging discrimination on grounds prohibited by federal law, such as gender, age, religion, national origin, and so forth, can be brought under Section 1983. But because of the wording of Section 1983 (“... under the color of any stat- ute, ... of any state”), claims under Section 1983 are restricted to cases in which the alleged discrimination is by someone acting (or claiming to act) under government authority. That means employment discrimination by public employers is subject to challenge because such employers act under specific legal authority. In general, claims against private sector employ- ers can rarely be filed under Section 1983. Any claims against private employers under Sec- tion 1983 must establish that the employer acted pursuant to some specific government authority; this is the “state action” requirement. In addition, in Brown v. GSA,8 the Supreme Court held that the only remedy available to federal government employees complaining of race discrimination in employment is provided by Section 717 of Title VII. 11-1c Section 1985(c) Section 1985(c) of 42 U.S.C. prohibits two or more persons from conspiring to deprive a person or class of persons “of the equal protection of the laws, or of equal privileges and immunities under the law.” The provision was enacted in 1871 to protect African Ameri- cans from the violent activities of the Ku Klux Klan. In Griffin v. Breckenridge,9 the Supreme Court held that a group of African Americans alleging that they were attacked and beaten by a group of whites could bring suit under Sec- tion 1985(c). It appeared that the provision could be used to attack intentional discrimina- tion in private employment when two or more persons were involved in the discrimination. But in 1979, the Supreme Court held in Great American Federal Savings & Loan Ass’n. v. Novotny10 that Section 1985(c) could not be used to sue for violation of a right created by Title VII. Relying on Novotny, lower courts have held that Section 1985(c) cannot be used to challenge violations of the Equal Pay Act or the Age Discrimination in Employment Act. 11-1d Procedure Under Sections 1981 and 1983 A suit under Section 1981 is not subject to the same procedural requirements as a suit under Title VII. There is no requirement to file a claim with any administrative agency, such as the Equal Employment Opportunity Commission (EEOC), before filing suit under Section 1981 or Section 1983. The plaintiff may file suit in federal district court and is entitled to a jury trial; a successful plaintiff may recover punitive damages in addition to compensatory damages such as back pay, benefits, and legal fees. The right to sue under Section 1981A for compensatory and punitive damages for intentional violations of Title VII and the Americans with Disabilities Act of 1990 was added by the Civil Rights Act of 1991. The act also set upper limits on the amount of damages recoverable based on the size of the employer (as discussed in Chapter 8). Puni- tive damages are not recoverable against public sector employers. For claims arising under the provisions added by the 1991 amendments, the limitations period for filing suit is four years, according to Jones v. R. R. Donnelley & Sons Co.11

11-2 Executive Order No. 11246 contract compliance program regulations which provide that all firms having federal gov- ernment contracts or subcontracts exceeding $10,000 must include a no-discrimination clause in the contract Executive Order No. 11246, originally signed by President Johnson in 1965 and amended by President Nixon in 1969, provides the basis for the federal government contract compli- ance program. Under that executive order, as amended, firms doing business with the fed- eral government must agree not to discriminate in employment on the basis of race, color, religion, national origin, or gender. 11-2a Equal Employment Requirements The contract compliance program is administered by the U.S. Secretary of Labor through the Office of Federal Contract Compliance Programs (OFCCP).12 The OFCCP has issued extensive regulations spelling out the requirements and procedures under the contract com- pliance program. The regulations provide that all firms having contracts or subcontracts exceeding $10,000 with the federal government must agree to include a no-discrimination clause in the contract. The clause, which is binding on the firm for the duration of the contract, requires the contractor to agree not to discriminate in employment on the basis of race, color, religion, gender, or national origin. The contractor also agrees to state in all employment advertisements that all qualified applicants will be considered without regard to race, color, religion, gender, or national origin and to inform each labor union represent- ing its employees of its obligations under the program. The contracting firm is also required to include the same type of no-discrimination clause in every subcontract or purchase order pursuant to the federal contract. The Secretary of Labor, through the OFCCP, may investigate any allegations of viola- tions by contracting firms. Penalties for violation include the suspension or cancellation of the firm’s government contract and the disbarment of the firm from future government contracts. 11-2b Affirmative Action Requirements In addition to requiring the no-discrimination clause, the OFCCP regulations may require that a contracting firm develop a written plan regarding its employees. Firms with contracts of services or supply for over $50,000 and having 50 or more employees are required to maintain formal written programs, called affirmative action plans, for the utilization of women and minorities in their work force. Affirmative action plans, which must be updated annually, must contain an analysis of the employer’s use of women and minorities for each job category in the work force. When job categories reveal an underutilization of women and minorities—that is, fewer women or minorities employed than would reasonably be expected based on their availability in the relevant labor market—the plan must set out spe- cific hiring goals and timetables for improving the employment of women and minorities. The firm is expected to make a good-faith effort to reach those goals; the goals set are more in the nature of targets than hard-and-fast “quotas.” The firms must submit annual reports of the results of their efforts to meet the goals set out in the affirmative action plan. Firms holding federal or federally assisted construction contracts or subcontracts over $10,000 are also subject to affirmative action requirements. The contracting firm must com- ply with the goals and timetables for employment of women and minorities set periodically by the OFCCP. Those construction industry goals are set for “covered geographic areas” of the country based on census data for the areas. The “goals and timetables” approach to affir- mative action for construction industry employees was held to be constitutional and legal under Title VII in Contractors Ass’n. of Eastern Pennsylvania v. Shultz.13 11-2c Procedure Under Executive Order No. 11246 Individuals alleging a violation of a firm’s obligations under Executive Order No. 11246 may file complaints with the OFCCP within 180 days of the alleged violation. The OFCCP may refer the complaint to the EEOC for investigation, or it may make its own investigation.

If it makes its own investigation, it must report to the director of the OFCCP within 60 days. If there is reason to believe that a violation has occurred, the firm is issued a show- cause notice directing it to show why enforcement proceedings should not be instituted; the firm has 30 days to provide such evidence. During this 30-day period, the OFCCP is also required to make efforts to resolve the violation through mediation and conciliation. If the firm fails to show cause or if the conciliation is unsuccessful, the director of the OFCCP may refer the complaint to the Secretary of Labor for administrative enforcement pro- ceedings or to the Department of Justice for judicial enforcement proceedings. The individual filing the complaint may not file suit privately against the firm alleged to be in violation, but the individual may bring suit to force the OFCCP to enforce the regulations and requirements under the executive order.14 Administrative enforcement proceedings involve a hearing before an administrative law judge (ALJ). The ALJ’s decision is subject to review by the Secretary of Labor; the secretary’s decision may be subjected to judicial review in the federal courts.15 Firms found to be in violation of the obligations under the executive order, either through the courts or the administrative proceedings, may be subject to injunctions and required to provide back pay and grant retroactive seniority to affected employees. The firm may also have its government contract suspended or canceled and may be declared ineli- gible for future government contracts. Firms declared ineligible must demonstrate compli- ance with the executive order’s requirements to be reinstated by the director of the OFCCP.

The WORKING Law

President Obama Signs a New Executive Order to Protect LGBT Workers “Many of you have worked for a long time to see this day coming.” Those were President Obama’s words to the audience in the East Room of the White House this morning, before he signed an Executive Order prohibiting fed- eral contractors from discriminating on the basis of sexual orientation or gender identity. At the signing, the President explained how, because of their “passionate advocacy and the irrefutable rightness of [their] cause, our government—government of the people, by the people, and for the people—will become just a little bit fairer.” Today’s Executive Order amends Executive Order 11246, issued by President Lyndon B. Johnson, adding sexual orientation and gender identity to the list of protected catego- ries in the existing Executive Order covering federal contractors. “It doesn’t make much sense,” President Obama said, “but today in America, millions of our fellow citizens wake up and go to work with the awareness that they could lose their job, not because of anything they do or fail to do, but because of who they are—lesbian, gay, bisexual, transgender. And that’s wrong.” The President also pointed out that workplace equality is simply good business. Noting that most of the Fortune 500 companies already have nondiscrimination policies on their books, he explained that these policies help companies attract and retain the best talent.

“Despite all that,” he said, “in too many states and in too many workplaces, simply being gay, lesbian, bisexual, or transgender can still be a fireable offense. There are people here today who’ve lost their jobs for that reason.” “I’m going to do what I can, with the authority I have, to act,” the President said. “The rest of you, of course, need to keep putting pressure on Congress to pass federal legisla- tion that resolves this problem once and for all.”

11-3 Employment Discrimination Because of Military Service: The Uniformed Services Employment and Reemployment Rights Act

During the recent U.S. military actions in Afghanistan and Iraq, many persons who were members of the National Guard or military reserves were called to active duty; in some instances, the tour of active duty lasted more than one year. What are the legal rights of employees who are called to active duty? Do they have the right to return to their job after their active duty service is over? Federal legislation protects the reemployment rights of employees who serve in the military services or who are members of the reserves and are called into active duty. 11-3a The Uniformed Services Employment and Reemployment Rights Act The Uniformed Services Employment and Reemployment Rights Act (USERRA),16 enacted in 1994, replaced the Veterans’ Reemployment Rights Act. USERRA covers both private and public sector employers, including the federal government; it prohibits employers from discriminating against employees because of their service in the military. USERRA applies only to noncareer military service—that is, to employees who are called to active duty from their civilian jobs. It does not apply to career military service, according to Woodman v. Office of Personnel Management.17 Employees who are absent from employment because they were ordered to active mili- tary service are entitled to reinstatement and employment benefits if they meet the follow- ing requirements: • • • They gave the employer notice of the period of military service They are absent for a cumulative total of less than five years They submitted an application for reemployment within the designated time period The time period for submitting the notice of reemployment to the employer depends on the length of the military service. For military service less than 31 days, the employee need only report to work on the first full work day after completion of the service and transpor- tation to the employee’s residence. For service longer than 30 days but less than 181 days, the notice must be submitted not later than 14 days after completing the period of mili- tary service. For service longer than 180 days, the notice must be submitted not later than 90 days after completion of the period of military service. Employers are not required to reinstate employees after their military service if: • the employer’s circumstances have changed so that reemployment would be unreason- able or impossible; • the reemployment would cause undue hardship in accommodation, training, or effort; or • the initial employment was for a brief, nonrecurring period. In any such case, the employer has the burden of proving that the denial of reemployment was permissible under the act. Employees reemployed after military service are entitled to the seniority, rights, and benefits they had as of the date the military service began, plus any seniority, rights, and benefits that they would have received had they remained continuously employed. Persons who are reemployed under the act after military service of more than 180 days may not be discharged without cause within one year of reemployment; persons reemployed after military service of more than 30 days but less than 180 days may not be discharged without cause within 180 days of reemployment. Persons who are affected by alleged violations of the USERRA must file written complaints with the federal Secretary of Labor; the Secretary will investigate any complaint and make reasonable attempts to settle it. If such attempts are unsuccessful, affected persons may request that the secretary refer a complaint to the U.S. Attorney General to take court action to enforce the act or may file legal action them- selves in the appropriate federal district court. Remedies available under such a suit include ordering the employer to comply with the act and compensation for lost wages, benefits, and legal fees. Liquidated damages are available where the employer’s violation was willful. According to Gummo v. Village of Depew, N.Y.,18 the employee only needs to show that the military service was a substantial or motivating factor in the employer’s decision to discharge the employee; it need not be the sole reason. An employer can escape liability by showing that the employee would have been discharged even if the employee had no military service.19 The following case involves a claim of termination of a reservist in violation of USERRA and discusses the allocation of the burden of proof under the statute.

CaSe 11.1 Crews v. City of Mt. vernon 567 F.3d 860 (7th Cir. 2009)

Background [Ryan Crews had been a member of the Army National Guard since 1988 and an officer of the Mt. Vernon Police Department since 1997. As a member of the Guard, Crews had to attend weekend training and preparedness exercises (“drill”) about once a month. The chief of police, Mendenall, has the authority to establish officers’ weekly work schedules, which consist of five eight-hour shifts and two days off. For nine years, the City of Mt. Vernon allowed police officers who missed their weekend work shifts to attend National Guard duties to work on their scheduled days off to make up the lost time. The City did not provide a comparable scheduling benefit to non-Guard employees who missed work for nonmilitary activities. Crews’s weekend drill obli- gations frequently conflicted with his work schedule. When such a conflict arose, the city would grant Crews and other Guard employees military leave to attend drill. This leave is unpaid, but Guard employees may turn in their military pay for attending drill and in exchange receive their regular City pay. Guard employees may also allocate their accrued vacation days, personal days, and compensatory time off to cover days missed for drill, thereby collecting City pay and military pay for time spent at drill. The Department also maintained a policy for several years that allowed Guard employees to reschedule work shifts that fell on drill week- ends. In a 1997 memorandum, Crews’s supervisor told him that he could use the monthly weekend drills as his days off for that week so he would not lose any pay, and he would also collect his military pay. The Department extended this sched- uling benefit to three other Guard members who joined the department between 2000 and 2003; non-Guard employees did not have a comparable opportunity to reschedule work shifts missed for outside activities. When the department hired two additional Guard members, Mendenall rescinded the work scheduling policy. The chief and the assistant chief of police, Deichman, determined that extending the policy to an increasing number of Guard employees would result in too many costly scheduling conflicts, and the cost of maintaining the policy for all current and future Guard employees was increasing. Following the rescission of the scheduling policy, Crews tried to persuade Deichman to continue allowing him to reschedule his work days missed for drill, but Deichman refused. Because of the rescission of the work scheduling policy, Crews was no longer able to collect a full week’s pay from the City when he missed a weekend shift for drill, unless he used up his limited days of paid time off. In December 2006, Crews filed a complaint against the City of Mt. Vernon, Mendenall, and Deichman, alleging that the rescission of the work scheduling policy denied him a benefit of employment based on military status, in violation of USERRA, and that Deichman retaliated against him for opposing the rescission of the policy by making negative comments toward Crews and denying him advancement opportunities.] Tinder, Circuit Judge ... The district court concluded that... the City was not required to give Crews preferential work scheduling benefits not generally available to non-Guard employees. The court also rejected Crews’s retaliation claim, concluding that... making negative comments, and noting his negative atti- tude on a quarterly evaluation were not “materially adverse” employment actions. The court accordingly denied Crews’s motion for summary judgment and granted the City’s motion for summary judgment. Crews timely appealed. A. Denial of a “Benefit of Employment”... USERRA affords broad protections to service members against employment discrimination, providing that members “shall not be denied initial employment, reemployment, retention in employment, promotion, or any benefit of employment by an employer on the basis of that member- ship....” [38 U.S.C. 4311(a)] A “benefit of employment” means “any advantage, profit, privilege, gain, status, account, or interest (other than wages or salary for work performed) that accrues by reason of an employment contract or agree- ment or an employer policy, plan, or practice and includes ... the opportunity to select work hours or location of employ- ment.” [§ 4303(2)]. Under the burden-shifting framework of [USERRA] a plaintiff makes out a prima facie case of discrimination by showing that his service membership was “a motivating factor in the employer’s action.” The employer must then “prove that the action would have been taken in the absence of such membership.”... ... Crews argues that the City violated § 4311 by rescinding an existing policy of providing Guard employees with special work scheduling benefits. According to Crews, while USERRA may not have required the City to establish that policy in the first place, having voluntarily done so, the City cannot now renege.... Crews’s interpretation of § 4311 admittedly finds some support in the statutory language of USERRA. [But] the better interpretation is that the “benefit of employment” referenced in § 4311(a) is one provided to both military and nonmilitary employees. Section 4311 is entitled “Discrimination against persons who serve in the uniformed services and acts of reprisal prohibited.” Accordingly, courts have indicated that the statute reaches only discriminatory employment actions that provide mili- tary employees with fewer benefits.... Given the anti-discriminatory purpose of § 4311, the Department’s decision in this case to provide equal work scheduling benefits to all employees does not violate USERRA. The preferential work scheduling policy that the Department previously extended to Guard employees was not a “benefit of employment” within the meaning of § 4311(a), as this benefit was not one generally available to all employees. It follows that the Department’s rescis- sion of that policy could not be a “denial” of any “benefit of employment” actionable under § 4311(a). ... The Department’s recent decision to revoke those preferences and return to the “floor” requirements, while understandably disappointing to Crews, does not violate USERRA. We add that, if Guard employees like Crews want legal protection against their employer’s discretion to unilaterally revoke special benefits, they can negotiate to make those benefits part of a “contract” or “agreement.” Here, however, the Department’s work scheduling policy for Guard employees was strictly voluntary, and Crews has not claimed that any contract or other provision of law required the defendants to maintain the policy.... B. Retaliation Under USERRA We turn to Crews’s claim that the defendants retaliated against him for voicing his opposition to the rescission of the work scheduling policy. In addition to protecting against discrimi- nation on the basis of service membership, § 4311 prohibits an employer from taking “any adverse employment action against any person because such person ... has taken an action to enforce a protection” provided by USERRA. Although we have not previously discussed the statute’s “adverse employ- ment action” requirement in the specific context of a USERRA retaliation claim, our case law on other civil rights statutes describes those employment actions that are suffi- ciently “adverse” to be actionable retaliation. “An adverse employment action must be materially adverse, not merely an inconvenience or a change in job responsibilities.” “An adverse employment action is one that significantly alters the terms and conditions of the employee’s job.” Materially adverse actions include termination, demotion accompanied by a decrease in pay, or a material loss of benefits or responsibili- ties, but do not include “everything that makes an employee unhappy.” There is no reason to understand “adverse employ- ment action” differently in the USERRA context. Echoing an argument made in support of his denial- of-benefit claim, Crews argues that applying the “materi- ally adverse” standard from other civil rights statutes to his USERRA retaliation claim fails to appreciate the different purposes of USERRA and conventional civil rights laws.... Requiring material adversity for both types of claims is consistent with the Supreme Court’s decision in Burlington Northern & Santa Fe Railway Co. v. White, 548 U.S. 53, 126 S.Ct. 2405, 165 L.Ed.2d 345 (2006), in which the Court established the standard for retaliation claims under Title VII. The Court concluded that, although the retaliatory actions prohibited by Title VII are not limited to harms that are employment-related or that occur in the workplace, the action must nonetheless be “materially adverse,” such that it “well might have dissuaded a reasonable worker from making or supporting a charge of discrimination.” Requiring “material adversity” is important, the Court continued, to discourage civil rights litigation over “trivial harms.” In line with Burlington, we do not think that the protec- tions of USERRA are so sweeping as to provide a remedy for mere “trivial harms.” ... Applying the “materially adverse” stan- dard to Crews’s claim, it is clear that Crews suffered no action- able retaliation. Crews first points to disparaging comments that Chief Mendenall made to the press about Crews’s USERRA lawsuit. However, negative employer comments will support a retaliation claim only if they are “severe and pervasive.” The plaintiff must show more than “petty slights or minor annoyances that often take place at work and that all employees experience.” Here, the purportedly “disparaging” comments cited by Crews are nothing more than Mendenall’s statements to the media that Crews’s USERRA lawsuit “had no merit” and that his allegations were “simply untrue.” These isolated comments, which occurred outside the workplace and had no impact on Crews’s conditions of employment, are not severe enough to be actionable retaliation.... Accordingly, Crews has failed to establish a materially adverse employment action, and the district court properly granted summary judgment for the defendants on Crews’s retaliation claim. Conclusion For the foregoing reasons, we AFFIRM the district court’s grant of summary judgment in favor of the defendants. Case Questions 1. According to Crews, what actions of the Police Department violated his rights under USERRA? 2. Does USERRA require an employer to provide benefits to employees with military obligations that are not made available to other employees? Does USERRA prohibit an employer from doing so? Explain. 3. What actions are prohibited by the antiretaliation provisions of USERRA? What actions did Crews claim constituted retaliation against him? Did the court agree? Why?

11-3b Military Family Rights Under the FMLA In 2013, the U.S. Department of Labor (DOL) issued new regulations operationalizing expanded Family and Medical Leave Act rights for members of the armed forces and their families. The DOL’s final rule springs from the 2010 Defense Authorization Act and affords significantly expanded leave rights for injured servicemen and women, as well as new intermittent-leave rights for spouses and other family members. The DOL’s detailed Q&A publication regarding these new and expanded rights is reproduced in Chapter 7. Note in particular in reviewing this Q&A that caregiver rights under the new regulations extend to situations in which the medical condition arises after the injured, ill, or disabled veteran has separated from the service.

11-4 11-5 Part 2 Equal Employment Opportunity The National Labor Relations Act The unfair labor practice prohibitions of the National Labor Relations Act (NLRA) may be used to attack discrimination in employment in some instances. In United Packinghouse Workers Union v. NLRB,20 the court held that racial discrimination by an employer was an unfair labor practice in violation of Section 8(a)(1) of the NLRA. Retaliation against employees who filed charges with the EEOC, by refusing to recall them from layoff, was held to violate Section 8(a)(1) in Frank Briscoe Inc. v. NLRB.21 Unions that discriminate against African Americans in membership or in conditions of employment are in violation of Section 8(b)(1)(A) and their duty of fair representation of all employees in the bargaining unit according to the Supreme Court decision of Syres v. Oil Workers.22 (See the Steele v. Louisville & Nashville R.R. case in Chapter 18.) In Hughes Tool Co.23 the NLRB held that a union’s refusal to represent African American workers violated Section 8(b)(1)(A) and was grounds to rescind the union’s certification as bargaining agent. Discrimination against female employees by a union also violates Section 8(b)(1)(A) as held in NLRB v. Glass Bottle Blowers Local 106.24 (See Chapter 18 for a discussion of the duty of fair representation.) Employers and unions that negotiate, or attempt to negotiate, discriminatory provisions in seniority systems, pay scales, or promotion policies may commit unfair labor practices in violation of Section 8(a)(5) or Section 8(b)(3) by refusing to bargain in good faith. Constitutional Prohibitions Against Discrimination Certain provisions of the U.S. Constitution may be used by public sector employees to challenge discrimination in their employment. The Constitution regulates the relationship between the government and individuals; therefore, the Constitution’s prohibitions against discrimination apply only to government employers and to private employers acting under government support or compulsion (state action). 11-5a Due Process and Equal Protection The primary constitutional provisions used to attack discrimination are the guarantees of due process of law and equal protection found in the Fifth and Fourteenth Amend- ments. The Fifth Amendment applies to the federal government, and the Fourteenth Amendment applies to state and local governments. In addition, specific enactments such as the First Amendment guarantee of freedom of religion may be used to challenge discrimination. In Brown v. GSA,25 the Supreme Court held that the only remedy avail- able to persons complaining of racial discrimination in federal government employment is provided by Section 717 of Title VII. However, not all federal employees are covered by Title VII. For example, members of the armed forces or the personal staff members of elected officials, who are not covered by Title VII, could file constitutional challenges to alleged discrimination. In the case of Davis v. Passman,26 the Supreme Court held that a member of a con- gressman’s staff, who was not covered by Title VII, could bring a suit under the Fifth Amendment against her employer for discharging her because of intentional gender discrimination. Challenges to employment discrimination under the due process and equal protection guarantees involve claims that the discriminatory practices deny the victims of the discrimi- nation rights equal, or treatment equal, to those who are not targets of the discrimina- tion. Blanket prohibitions on employment of females, or of members of a minority group, deny those employees due process of law by presuming that all women, or members of the minority group, are unable to perform the requirements of a particular job. In Washington v. Davis,27 the Supreme Court held that the constitutional prohibitions applied only to invidious, or intentional, discrimination; claims alleging disparate impact could not be brought under the constitutional provisions. Not all intentional discrimination on the basis of race, gender, and so on is uncon- stitutional, however. In considering claims of discrimination under the Constitution, the court will first consider the basis of discrimination. Some bases of discrimination, or “clas- sifications” by government action, will be considered suspect classes. That is, there is little justification for treating persons differently because they fall within a particular class. For example, racial discrimination involves classifying employees, and treating them differently, by race. Such conduct can rarely be justified. The court will strictly scrutinize any offered justification for such conduct. The government must show that such classification, or treat- ment, is required because of a compelling government interest, and no less discriminatory alternatives exist. For example, classifying employees by race, while discriminatory, may be justified if the reason is to compensate employees who had been victims of prior racial discrimination.

11-5b Affirmative Action and the Constitution Affirmative action has become an extremely controversial issue in recent years (see the dis- cussion in Chapter 6). The courts have been growing more skeptical about the legality of affirmative action requirements imposed by government entities. The U.S. Supreme Court, in the 1995 decision Adarand Constructors, Inc. v. Pena,28 held that federal government affirmative action programs giving preferential treatment based on race or color must be justified under the strict scrutiny test. This test requires the government to demonstrate that the affirmative action program was necessary to achieve a compelling government purpose and that the program was “narrowly tailored” to achieve the compelling purpose. It must also show that it did not unduly harm those who were not given the preferential treatment. A majority of the Supreme Court upheld the use of affirmative action in admissions by a public university, the University of Michigan, in two cases, Grutter v. Bollinger29 and Gratz v. Bollinger.30 In these cases, which did not deal with employment, the Supreme Court held that achieving the educational benefits of a diverse student body was a compel- ling governmental interest. However, in a more recent case dealing with public schools, Parents Involved in Community Schools v. Seattle School Dist. No. 1,31 the Supreme Court held that diversity in education was not a sufficient justification for the schools’ use of racial classifications in assigning students to particular schools. Extending the rationale of these cases to employment would indicate that achieving the benefits of a diverse work force may be a sufficiently compelling governmental interest to justify the use of affirmative action programs for hiring or promotion decisions by public sector employers. However, an affirmative action program must also be narrowly tailored to achieve the compelling governmental purpose. The courts have held that affirmative action programs that give a relative preference rather than an absolute one—race or gender is used as a “plus factor” rather than as the determinative factor—are narrowly tailored. Programs that are temporary and that will cease when the employer achieves a more diverse work force have also been held to be narrowly tailored. Wygant v. Jackson Board of Education32 involved an affirmative action program that was not narrowly tailored. In this case, the collective bargaining agreement between a public school board and the teachers’ union contained an affirmative action program in the event that layoffs of teachers were necessary. Layoffs would be based on seniority (“last hired, first fired”) unless the effect of the seniority-based layoffs would reduce the percentage of minor- ity teachers at a given school below the percentage of minority students in that school. If that were the case, the affirmative action program would require the layoff of senior non- minority teachers ahead of minority teachers with less seniority. The purpose of the plan was to ensure the presence of minority teachers in the schools so that the minority teachers could serve as role models for minority students and encourage them to get an education. Wygant, a white teacher who lost her job under the affirmative action plan, brought suit, arguing that the plan calling for race-based layoffs was in violation of the Equal Protection Clause of the Fourteenth Amendment. The Supreme Court held that although providing role models for minority students might be a compelling governmental purpose, a plan requiring the layoff of teachers because of their race was “not sufficiently narrowly tailored” to the achievement of that purpose. The Court stated “the ... selection of layoffs as the means to accomplish even a valid purpose cannot satisfy the demands of the Equal Protec- tion Clause.”

Remedial affirmative action programs—that is, programs adopted to remedy illegal discrimination—have generally been held to be constitutional. In Local 28, Sheet Metal Workers Int. Ass’n. v. EEOC,33 the U.S. Supreme Court held that courts may impose affir- mative action programs to remedy “persistent or egregious discrimination,” even if the affirmative action plan had the effect of benefiting individuals who were not themselves victims of discrimination. The Court emphasized that affirmative action programs should be imposed by a court only as a last resort and such programs should be “tailor[ed] ... to fit the nature of the violation” the court seeks to remedy. In Local 93, Int. Ass’n. of Firefighters v. Cleveland,34 the Supreme Court held that the parties in an employment discrimination suit may enter into a settlement agreement (known as a consent decree) requiring an affirmative action program where the employer has been found guilty of discrimination. The consent decree’s affirmative action program may benefit minority employees who were not person- ally victims of illegal employment discrimination. In U.S. v. Paradise,35 the Supreme Court upheld a court-ordered affirmative action plan that required the Alabama Public Safety Department to promote to corporal one African American state trooper for every white trooper promoted, until either African Americans occupied 25 percent of the corporal positions or until the department instituted a promo- tion policy that did not have an adverse impact on African American troopers. The major- ity held that the order was necessary to remedy past “pervasive, systematic and obstinate” discrimination by the department. 11-5c Other Constitutional Issues Some forms of discrimination involve classifications that may be more neutral than racial classifications. The courts refer to such classifications as non-suspect classes. When dis- crimination is based on non-suspect classes, the court will consider whether the discrimina- tory classification bears a reasonable relationship to a valid state interest. For example, in Personnel Administrator of Massachusetts v. Feeney,36 the Supreme Court upheld a Massachu- setts law that required all veterans to be given preference for state civil service positions over nonveterans, even though the law had the effect of discriminating against women because veterans were overwhelmingly male. The classification of applicants on the basis of veteran status was reasonably necessary for the valid government objective of rewarding veterans for the sacrifices of military service. In Cleveland Board of Education v. LaFleur,37 the Supreme Court struck down a rule imposing a mandatory maternity leave on teachers reaching the fifth month of pregnancy on grounds that it violated the due process rights of the teachers. The rule denied the teach- ers the freedom of personal choice over matters of family life, and it was not shown to be sufficiently related to the school-board interests of administrative scheduling and protecting the health of teachers. The rule had the effect of classifying every teacher reaching the fifth month of pregnancy as being physically incapable of performing the duties of the job, when such a teacher’s ability or inability to perform during pregnancy is an individual matter. Personal grooming requirements and restrictions on hair length and facial hair for police officers were upheld by the Supreme Court in Kelley v. Johnson38 because they were reasonably related to the maintenance of discipline among members of the police force. In Goldman v. Weinberger,39 the Supreme Court dismissed a challenge under the First Amend- ment to an Air Force uniform regulation that prevented an Orthodox Jew from wearing his yarmulke while on duty. Despite the fact that the yarmulke was unobtrusive, the regulations were justified by the Air Force interest in maintaining morale and discipline, which were held to be legitimate military ends. The courts consistently upheld the constitutionality of the military’s “don’t ask, don’t tell” policy barring persons from serving in the military if they engage in homosexual conduct or demonstrate a propensity to engage in such conduct, as in Phillips v. Perry40 and Homasson v. Perry.41 Nevertheless, in December 2011, President Obama signed the Don’t Ask, Don’t Tell Repeal Act.

The WORKING Law

President Obama and the LGBT Community earlier today, I had the opportunity to meet with a small group of openly gay and lesbian servicemembers, together with several of their partners and spouses. We cel- ebrated the one year anniversary of the repeal of “Don’t Ask, Don’t Tell.” The servicemembers represented a range of ranks and services. All of them agreed that the most remarkable aspect about their post-repeal service is that, after just one year, serving in the military without DADT feels unremarkable because the transition has been so smooth. It should come as no surprise to any of us that the men and women of our armed forces have handled the repeal of DADT with the professionalism and class that we have come to expect from the finest fighting force in the world. As a consequence, our national security has been strengthened. As the President said in a statement issued today, “Gay and lesbian Americans now no longer need to hide who they love in order to serve the country they love. It is a testament to the professionalism of our men and women in uniform that this change was implemented in an orderly manner, preserving unit cohesion, recruitment, retention and military effectiveness.” Earlier this year, I had the opportunity to address the Servicemembers Legal Defense Network National Dinner, and I spoke about the kind of change repeal of DADT has brought: Thanks to the work we’ve done together, if anyone ever asks you what change is all about, you can tell them that change is finally being able to put a family photo on your desk. Change is being able to tell your coworkers what you and your loved one did over the weekend, or what you have planned for your family vacation. Change is being able to share stories about your family with fellow servicemembers while you’re away from home, and living with the fear that you may never see them again. Change is knowing that if you make that ultimate sacrifice for your country, someone will be able to notify your loved ones. That’s change. On behalf of President Obama, I want to thank all of the servicemembers, veterans, and military families who fought for the repeal of DADT and who honor us with their ser- vice and sacrifice. We will never forget what you’ve done for America, and we are com- mitted to making sure that we serve you as well as you have served us. Source: Valerie Jarrett, “Marking One Year Since the Repeal of Don’t Ask, Don’t Tell,” The White House, September 20, 2012, available at https://www.whitehouse.gov/blog/2012/09/20/ marking-one-year-repeal-don-t-ask-don-t-tell.

11-6 State EEO and Employment Laws The discussion of EEO law in this and preceding chapters has focused mainly on federal legislation. In addition to the various federal laws, most states also have their own equal employment opportunity legislation or regulations. State laws figure into the enforcement of federal laws. Recall that under Title VII, persons complaining of employment discrimi- nation must file with the appropriate state or local EEO agency before taking their com- plaint to the federal Equal Employment Opportunity Commission. Such state or local EEO laws may provide greater protection than the federal legislation does. For example, the Michigan Civil Rights Act specifically prohibits discrimination based on height or weight, and the District of Columbia Human Rights Law prohibits discrimination based on per- sonal appearance or political affiliation. The New York State Human Rights Law prohibits age discrimination in employment against employees aged 18 or older (unless age is a bona fide occupational qualification [BFOQ]).

11-6a Gender Discrimination All state EEO laws prohibit gender discrimination in terms or conditions of employment, except in those instances where sex may be a BFOQ. Most state laws interpret gender discrimination as including sexual harassment, but some state laws, such as Minnesota’s Human Rights Act, specifically prohibit sexual harassment in addi- tion to the general prohibition on gender discrimination. Maine law requires employ- ers to post a notice in the workplace informing employees that sexual harassment is illegal and describing how to file a complaint of sexual harassment with the Maine Human Rights Commission. 11-6b Sexual Orientation Discrimination Although federal law does not prohibit discrimination because of sexual orientation or sexual preference, a number of states have legislation prohibiting such discrimination. California, Colorado, Connecticut, Delaware, Hawaii, Illinois, Iowa, Maine, Mary- land, Massachusetts, Minnesota, Nevada, New Hampshire, New Jersey, New Mexico, New York, Oregon, Rhode Island, Vermont, Washington, Wisconsin, and the District of Columbia prohibit employment discrimination based on sexual orientation or sexual preference by public and private sector employers. Several other states, including Loui- siana, Michigan, Ohio, and Pennsylvania, prohibit public sector employers from dis- criminating because of sexual orientation or sexual preference through executive orders issued by the governor. In some large cities, including New York City and San Fran- cisco, local ordinances prohibit employment discrimination because of sexual orienta- tion or sexual preference. By way of contrast, on March 12, 2015, Utah Governor Gary Herbert signed into law Senate Bill 296, known as the Antidiscrimination and Religious Freedom Amendments to the state’s statute banning discrimination in employment and housing. The statute, one of a number of state laws enacted here and there across the country in reaction to the Supreme Court’s decision that the Defense of Marriage Act was unconstitutional and its negative impact on state DOMAs, reads as follows: 34A-5-102. Definitions—Unincorporated entities (i)(ii) “Employer” does not include: (A) a religious organization, a religious corporation sole, a religious association, a religious society, a religious educational institution, or a religious leader, when that individual is acting in the capacity of a religious leader; (B) any corporation or association constituting an affiliate, a wholly owned subsidiary, or an agency of any religious organization, religious corporation sole, religious association, or religious society; or (C) the Boy Scouts of America or its councils, chapters, or subsidiaries ... 34A-5-111. Application to the freedom of expressive association and the free exercise of religion. This chapter may not be interpreted to infringe upon the freedom of expressive asso- ciation or the free exercise of religion protected by the First Amendment of the United States Constitution and Article I, Sections 1, 4, and 15 of the Utah Constitution. …

34A-5-112. Religious liberty protections—Expressing beliefs and commitments in workplace—Prohibition on employment actions against certain employee speech. (1) An employee may express the employee’s religious or moral beliefs and commitments in the workplace in a reasonable, non-disruptive, and non- harassing way on equal terms with similar types of expression of beliefs or commitments allowed by the employer in the workplace, unless the expression is in direct conflict with the essential business-related interests of the employer. (2) An employer may not discharge, demote, terminate, or refuse to hire any person, or retaliate against, harass, or discriminate in matters of compensation or in terms, privileges, and conditions of employment against any person otherwise qualified, for lawful expression or expressive activity outside of the workplace regarding the person’s religious, political, or personal convictions, including convictions about marriage, family, or sexuality, unless the expression or expressive activity is in direct conflict with the essential business- related interests of the employer. ... 57-21-3. Exemptions—Sale by private individuals—Nonprofit organizations— Noncommercial transactions. ... (2) This chapter does not apply to a dwelling or a temporary or permanent residence facility if: (a) the discrimination is by sex, sexual orientation, gender identity, or familial status for reasons of personal modesty or privacy, or in the furtherance of a religious institution’s free exercise of religious rights under the First Amendment of the United States Constitution or the Utah Constitution; and (b) the dwelling or the temporary or permanent residence facility is: (i) operated by a nonprofit or charitable organization; (ii) owned by, operated by, or under contract with a religious organization, a religious association, a religious educational institution, or a religious society; (iii) owned by, operated by, or under contract with an affiliate of an entity described in Subsection (2)(b)(ii); or (iv) owned by or operated by a person under contract with an entity described in Subsection (2)(b)(ii). ... (4)(a)(i) Unless membership in a religion is restricted by race, color, sex, or national origin, this chapter does not prohibit an entity described in Subsection (4)(a) (ii) from: (A) limiting the sale, rental, or occupancy of a dwelling or temporary or permanent residence facility the entity owns or operates for primarily noncommercial purposes to persons of the same religion; or (B) giving preference to persons of the same religion when selling, renting, or selecting occupants for a dwelling, or a temporary or permanent residence facility, the entity owns or operates for primarily noncommercial purposes.

The following entities are entitled to the exemptions described in Subsection (4)(a)(i): a religious organization, association, or society; or a nonprofit institution or organization operated, supervised, or controlled by or in conjunction with a religious organization, association, or society. 11-6c

. (7) This chapter does not prohibit a nonprofit educational institution from:

(a) requiring its single students to live in a dwelling, or a temporary or permanent residence facility, that is owned by, operated by, or under contract with the nonprofit educational institution; (b) segregating a dwelling, or a temporary or permanent residence facility, that is owned by, operated by, or under contract with the nonprofit educational institution on the basis of sex or familial status or both: (i) for reasons of personal modesty or privacy; or (ii) in the furtherance of a religious institution’s free exercise of religious rights under the First Amendment of the United States Constitution or the Utah Constitution….

Family Friendly Legislation (ii) (A) (B) ..

A number of states have legislation similar to the federal Family and Medical Leave Act, which allows employees to take unpaid leave for childbirth, adoption, or serious illness of a child, parent, or spouse. California’s Fair Employment and Housing Act requires that an employer reinstate an employee returning from pregnancy leave to her previ- ous job, unless that job was unavailable because of business necessity. In that case, an employer is required to make a reasonable, good-faith effort to provide a similar position for the employee. New Jersey law allows employees to take up to six weeks of paid medi- cal or family care leave under the state’s disability insurance program. The District of Columbia requires employers to provide paid medical or family care leave; the amount of leave that employees accrue depends upon the size of the employer and the number of hours worked by the employees. New York law protects the right of a mother to breast-feed her child in any public or private place where she is authorized to be, and allows employees who are nursing mothers to take reasonable unpaid break time to express breast milk; employers are to make reasonable efforts to provide a room where an employee may express breast milk in privacy. Several states require that employers allow employees time off (without pay) to attend their children’s school meetings or conferences if held during normal working hours. The number of hours allowed per year varies by state, and Nevada simply prohib- its an employer from discharging an employee for absences due to school conferences or meetings. In each case, the employee is required to give appropriate advance notice to the employer. New York requires employers with 20 or more employees to allow employees leave time to donate blood; such employees may take up to three hours’ leave in any 12-month period.

11-7 Other Employment Legislation

11-7a Whistleblower Laws A number of federal and state laws provide some protection for whistleblowers—employees who report employer wrongdoing or actions threatening public health or safety. The federal Civil Service Reform Act42 provides general protection for civil service workers from any discipline or retaliation because they have disclosed a violation of laws or regulations, gross mismanagement or a gross waste of funds, or a substantial and specific danger to the public health or safety. The federal Office of Special Counsel is responsible for investigating and pursuing claims of whistleblowers. A number of specific federal laws provide protection from retaliation for employees who report violations of those laws. Examples include the Safe Drinking Water Act, which protects employees who report illegal pollution of water, and the Federal Mine Health and Safety Act, which protects employees reporting mine safety violations. The Sarbanes-Oxley Act of 2002,43 which was passed in response to the corporate scan- dals involving Enron and WorldCom, imposes both civil and criminal penalties for employ- ers who take adverse employment actions against whistleblowers. The legislation applies to corporations whose shares are publicly traded in the U.S. The criminal provisions make it a federal crime to knowingly retaliate against persons who provide information to law enforcement officials relating to the possible commission of any federal offense. Penalties include fines of up to $250,000 and imprisonment of up to 10 years for individual violators and fines of up to $500,000 for corporations. The civil provisions allow suits by employees allegedly retaliated against by their employers for providing information or cooperating in investigations related to violations of specified securities laws, SEC rules or regulations, or any other provision of federal law relating to shareholder fraud.44 The civil whistleblower provisions are administered by the Department of Labor and provide for remedies including • • • • Reinstatement Back pay Legal fees and costs Compensatory damages The whistleblower provisions of Sarbanes-Oxley do not apply to foreign citizens working abroad for foreign subsidiaries of U.S. corporations.45 All 50 states and the District of Columbia have some form of whistleblower laws. Some state laws, such as those of Connecticut, Florida, Hawaii, and Maine, cover both private and public sector employees; most such laws, however, cover only public sector workers. In California, Louisiana, and New Jersey, both public and private sector employees who rea- sonably believe that an employer is acting illegally are protected if they report such actions to the authorities. New York has separate legislation for public and private employers. In New York, public sector employees who reasonably believe that their employer has vio- lated the law, and that the violation poses a “substantial and specific danger” to public health or safety, are protected. However, according to Green v. Saratoga A.R.C,46 the pri- vate sector whistleblower law requires that the conduct employees report must be an actual violation of a law, rule, or regulation; a reasonable belief that the conduct was illegal is not sufficient to state a claim under the law. The following case involves the question of whether testimony in a civil suit is pro- tected activity under the Michigan Whistleblower Protection Act

CaSe 11.2 Henry v. City of Detroit 234 Mich.app. 405, 594 N.w.2d 107 (Mich. Ct. app. 1999), appeal denied, 461 Mich. 937, 606 N.w.2d 24 (Mich. 1999)

Facts: Henry was a commander in the Detroit Police Department. After the death of a suspect (Green) in police custody, the department formed a board of review to investigate the death and to recommend whether any officers should be criminally charged. Henry was the chairman of the board of review. McKinnon, the police chief, gave orders that effectively precluded the board of review from performing its obligations. As a result, some innocent officers were falsely accused and disciplined by the police department. One of those officers, Lessnau, was acquitted of killing Green and then filed a civil suit against the police depart- ment. During the trial of Lessnau’s suit, Henry was called as a witness and testified that the department rules concerning the board of review were violated and the board of review was not allowed to perform its duties. Henry also testified before the Michigan Employment Relations Commission (MERC) in an unrelated matter. Less than four months after plaintiff ’s testimony in the civil suit and less than one month following his testimony before the MERC, Henry was given the choice of taking an early retirement or a demotion. He claimed the forced retirement was in retaliation for his testimony in the civil suit and before the MERC. The city claimed that he was being demoted because of poor job performance and for being out of his precinct during the middle of several work days. Henry filed suit under Michigan’s Whistleblower’s Protection Act [MWPA, MCL 15.362; MSA 17.428(2)]. After a trial, the jury found that defendants city of Detroit and Police Chief McKinnon retaliated against plaintiff for his testimony in the civil suit and awarded him $1.08 million in damages. The defendants appealed to the Michigan Court of Appeals. Issue: Has Henry established a prima facie case of retaliation because of his whistleblowing? Decision: To establish a prima facie violation of the WPA, a plaintiff must show (1) that the plaintiff was engaged in a protected activity as defined by the WPA, (2) that the plaintiff was discharged, and (3) a causal connection existed between the protected activity and the discharge. The plain language of the statute provides protection for two types of “whistleblowers”: (1) those who report, or are about to report, violations of law, regulation, or rule to a public body; and (2) those who are requested by a public body to participate in an investigation held by that public body or in a court action. “Type 1” whistleblowers are persons who takes it upon themselves to communicate the employer’s wrongful conduct to a public body in an attempt to bring the violation to light to remedy the situation or harm done by the violation. “Type 2” are those who participate in a previously initiated investigation or hearing at the behest of a public body. If the plaintiff falls under either category, then that plaintiff has engaged in “protected activity” for purposes of presenting a prima facie case under the MWPA.

Henry testified that the internal procedures governing the board of review were not followed here. Because the board of police commissioners, pursuant to the city char- ter, drafted the police manual that set forth the proce- dures governing the board of review, the board of review was a public body within the meaning of the MWPA. The court held that Henry presented a prima facie case of a violation of the MWPA as a Type 2 whistleblower. By giving a deposition in a civil case, Henry clearly par- ticipated in a “court action.” The court held that Henry’s testimony was activity protected by the MWPA—his at- tendance and testimony were compelled under state law, and “compelled” is a higher standard than the “requested” language of the MWPA. There was also evidence to support the claim that Henry’s testimony was causally connected to his demotion or forced retirement: (1) he was a veteran of the Detroit Police Department and had received several honors and citations; (2) prior to his tes- timony, he had never been reprimanded or subject to any disciplinary action; and (3) less than four months after his testimony, he was forced to choose between a demo- tion or retirement. A reasonable jury could conclude that Henry was sub- jected to such action because he testified in the Lessnau case. The court therefore held that Henry had presented a prima facie violation of the MWPA for consideration by the jury. The court affirmed the trial court’s award of dam- ages to Henry.

11-7b Criminal Record Federal EEO laws do not specifically prohibit employment discrimination based on crimi- nal record. However, refusing to hire applicants because of their arrest records (as opposed to convictions) may constitute disparate impact discrimination in violation of Title VII.47 Some states have specific prohibitions on discrimination because of criminal records. The New York State Human Rights Law prohibits employment discrimination because of prior criminal convictions, unless such convictions have a direct and specific relationship to the job being sought or when granting employment to the individual would involve an unrea- sonable risk to the property or safety of others or the general public. The New York Human Rights Law also specifically prohibits employers from seeking information about arrests that did not result in a conviction; this restriction does not apply to applicants for employ- ment as law enforcement officers or to governmental bodies that grant licenses for guns or firearms. Some states require that employers conduct criminal record background checks on applicants for certain positions: • Tennessee law requires applicants for jobs with public schools to disclose any prior convictions • Texas law allows institutions of higher education to obtain background checks on appli- cants for security-sensitive positions • Vermont requires persons employed as private security officers, armed guards or couriers, guard dog handlers, and applicants for private detective licenses to undergo background checks for prior convictions • Missouri requires criminal background checks for persons working as home care providers, youth service workers, school bus drivers, and nursing home workers • North Carolina requires a background check for applicants and employees in nuclear power plantsIndiana law requires criminal background checks for employees of the state Lottery Commission A growing number of states, including Delaware, Florida, Hawaii, Indiana, Missouri, Nebraska, New York, and Virginia, require criminal background checks for employees involved in child care or day care. 11-7c Polygraph Testing The federal Employee Polygraph Protection Act of 1988 (EPPA)48 severely restricts the right of private employers to require employees to take polygraph, or “lie detector,” tests; many states have similar laws. The EPPA does not apply to public sector employers; it pro- hibits private sector employers, unless they fall under one of four exceptions, from requir- ing employees or applicants to submit to polygraph tests as a condition of employment. Employers are also prohibited from disciplining or discharging any employees because they refused to submit to a polygraph test. The exceptions under the EPPA allow polygraph test- ing under the following circumstances: • Private employees who are working as consultants to, or employees of, firms that are contractors to federal national security intelligence operations • Employers engaged in the provision of private security services, armored car services, or the installation and maintenance of security alarm systems may require polygraph testing of certain prospective employees • Employers whose business involves the manufacture, sale, or distribution of controlled substances (drugs) are authorized to test employees who have direct access to the controlled substances • Employers who have a reasonable basis to suspect that employees may have been involved in an incident that resulted in economic loss to the employer may request that those employees take polygraph tests The EPPA requires that any polygraph test must be administered by a validly licensed examiner. An employer that requests employees to submit to a polygraph test under the fourth exception (ongoing investigation into an economic loss) must meet specific proce- dural requirements: • The employer must provide the employees with a written statement describing the in- cident being investigated, specifically identifying the economic loss and the reason for testing the particular employees. • The employees must be given a written notice of the date, time, and location of the test. • The employees must read, and sign, a written notice that they cannot be required to submit to the test as a condition of employment. • The employees have the right to review all questions that will be asked during the test and are informed that they have the right to terminate the test at any time. The EPPA specifically forbids the polygraph operator from asking any questions relating to religious beliefs, beliefs or opinions on racial matters, political beliefs or affiliations, any questions relating to sexual behavior, and any questions relating to beliefs, affiliations, or lawful activities of labor unions. After the test has been administered, the employer must furnish the employees with a written copy of the examiner’s conclusions regarding their test, a copy of ques- tions asked, and their charted responses. The polygraph examiner may only disclose information acquired through the test to the employer requesting the test and to the employees subjected to the test; the employer may only disclose information to the employees involved. Even when an employer may legally administer a polygraph test under the EPPA, and the employer has complied with the procedural requirements, the employer may not discharge, discipline, or otherwise deny employment to an individual solely on the basis of the polygraph test results. The employer must have additional evidence to support any employment action taken against the tested employees. The EPPA is enforced by the federal Secretary of Labor, who may assess civil penalties of up to $10,000 against violators. In addition, individual employees or applicants who allege violations of the EPPA may bring a civil suit for damages, reinstatement, back pay, benefits, and legal fees. The time limit for bringing such suits is three years from the alleged violation. Rubin v. Tourneau, Inc.49 held that the company performing the poly- graph test may be sued, along with the employer, by an employee alleging violations of the EPPA. Failure to comply with the EPPA’s procedural requirements is a violation subject to civil suit according to Mennen v. Easter Stores50 and Long v. Mango’s Tropical Cafe, Inc.51 The following case addresses the question of whether the employer’s actions fall under the exceptions of the EPPA.

CaSe 11.3 CuMMings v. wasHington Mutual 650 F.3d 1386 (11th Cir. 2011

Facts: In February 2007, the manager of the Piedmont Commons branch of Washington Mutual Bank conducted a cash audit and discovered a shortage of approximately $58,000. The entire amount was missing from two teller cash dispenser machines that Cummings, the previous branch manager, had access to during his employment at the branch. The manager hired two fraud investigators to look into the shortage. They reviewed surveillance camera still images that they believed showed Cummings and his employees repeatedly violating the defendant’s dual control policy, which requires two persons to be present when cash is handled or certain secure areas are accessed. Several current and former employees at the branch told the investigators that Cummings had repeatedly violated the policy during his tenure as branch manager. The investigators also interviewed Cummings and then asked him to take a polygraph test; he declined to do so. On March 19, 2007, Cummings’s employment was terminated; he was told by his supervisor that he was being terminated because of his violations of the dual control policy and not because he refused to take a polygraph test. After his termination, Cummings filed a complaint against Washington Mutual with the Department of Labor, alleging that Washington Mutual had violated the Employee Polygraph Protection Act (EPPA). After the Department of Labor informed him that his claims could not be substantiated, Cummings filed suit against Washington Mutual alleging, among other claims, that the bank violated the EPPA. The district court granted summary judgment for the bank on all counts. Cummings appealed. Issue: Did the request by Washington Mutual that Cummings take a polygraph test violate the EPPA? Decision: Under the EPPA, employers generally cannot “require, request, suggest, or cause any employee ... to take or submit to any lie detector test.” But employers can request that an employee take a polygraph test on four conditions: (1) the test is administered in connection with an ongoing investigation involving economic loss or injury to the employer’s business ...; (2) the employee had access to the property that is the subject of the investigation; (3) the employer has a reasonable suspicion that the employee was involved in the incident or activity under investigation; and (4) the employer executes a statement, provided to the examinee before the test, that is signed and that describes with particularity the employee’s alleged misconduct and the basis for the employer’s reasonable suspicion. Cummings did not dispute that the second and fourth conditions were satisfied in this case, but he challenged the trial court’s conclusions that an “ongoing investiga- tion” existed and that the employer had a “reasonable suspicion” of Cummings. Under the regulations under the EPPA, the existence of an inventory shortage by itself is not a sufficient basis for administering a poly- graph test, but such testing in response to a shortage is permitted where the employer obtains additional evidence through a subsequent investigation of specific items missing and a reasonable suspicion exists that the employee to be polygraphed was involved in the incident under investigation. Here, the employer was investigat- ing a specific incident: the disappearance of $58,000 from the Piedmont Commons branch during the time that the plaintiff managed that branch. The regula- tions do not require employers to have conclusive evi- dence of a violation before requesting or administering a polygraph test; they only require “additional evidence” suggesting that the employee in question was involved in the incident. Here the employer had obtained evi- dence—surveillance images and testimony from other employees—of repeated violations of the dual control policy by Cummings and by the employees he managed. Therefore, the request for polygraph testing was made “in connection with an ongoing investigation.” The regulations under the EPPA also define “reasonable suspicion,” which is “an observable, articulable basis in fact which indicates that a particular employee was involved in, or responsible for, an economic loss.” Under the total- ity of the circumstances in this case, the employer had a reasonable suspicion that Cummings was involved in the cash shortage. Only four other employees had access to the areas from which the money was taken, and Cummings, the branch manager, was responsible for all four of those employees. The investigators viewed photographic evidence that they believed showed Cummings and his employees accessing money and secure areas in violation of the dual control policy. Cummings’s coworkers corroborated that evidence, telling the investigators that Cummings repeat- edly violated the policy. These facts gave the employer rea- son to believe that Cummings was actually capitalizing on that opportunity. The employer therefore had a “reasonable suspicion” about Cummings’s involvement in the shortage. Because the employer requested Cummings to submit to a polygraph test in connection with an “ongoing investi- gation” of a specific incident in which the employer had a “reasonable suspicion” that Cummings was involved, the court of appeals affirmed the trial court’s dismissal of Cummings’s EPPA claim.

11-7d Honesty Testing Because federal and state legislation generally prohibits employers from requiring employees to take polygraph tests, some employers have turned to other honesty tests in an attempt to evaluate employees or applicants. These are usually “paper-and-pencil” tests and may include psychological profile testing. (Most psychological profile tests are generally not intended to be used as an employment screening device, but employers may choose to use them as part of the hiring process.) The honesty tests seek to measure various workplace behaviors such as • • • • Truthfulness Perceptions about the pervasiveness of employee theft Illegal drug use Admissions of theft There is some controversy over the validity of honesty tests: A 1990 study by the fed- eral Office of Technology and Assessment found research on the effectiveness of such tests inconclusive, but a 1991 study by the American Psychological Association was much more positive and favorable. The federal EPPA does not prohibit honesty testing, and neither does most state leg- islation. However, Massachusetts specifically prohibits employers from using honesty tests; Rhode Island bars using honesty tests as the primary basis of employment decisions, and Wisconsin also limits the use of honesty tests by employers. The use of psychological profile tests as an employee selection device could possibly raise issues under the Americans with Disabilities Act or state antidiscrimination legislation (see Chapter 10). Employers desiring to use psychological profile tests should have a legitimate, work-related rationale for the testing.

11-7e Off-Duty Conduct A number of states protect employees from employment discrimination because of their lawful, off-the-job conduct. This legislation is mainly designed to protect smokers or tobacco users from employment discrimination as long as their tobacco use is off duty. Tennessee law protects the off-duty use of “agricultural products not regulated by the alco- holic beverage commission.” New York and Minnesota protect the “legal use of consumable products” off duty, covering alcohol as well as tobacco. States such as Illinois, Minnesota, Montana, New York, North Carolina, South Dakota, West Virginia, Wisconsin, and Wyoming protect off-duty smokers from employment discrimination but do allow employ- ers to differentiate between smokers and nonsmokers in the costs of insurance and medical benefits, as long as the cost differential reflects the actual difference in the cost of cover- age. In states such as Michigan that do not have such protective legislation, it is legal for employers to fire or refuse to hire smokers

ethical DILEMMA

An AddiTionAl ChARge foR smokeRs?

As the Employee Benefits Manager at Immense Multinational Business (IMB), you are responsible for trying to hold down the cost of employee medical insurance while still providing comprehensive quality medical care to IMB employees. Lately, you have noticed that some employees, usually those who smoke, have signifi- cantly higher medical claims than nonsmokers. Studies indicate that employees who smoke a pack of cigarettes a day have claims that are 18 percent higher than those of nonsmokers; smokers are 29 percent more likely than nonsmokers to have annual medical claims over $5,000. Estimates by the American Lung As- sociation indicate that the medical benefits for smokers cost at least $1,000 more per year than for nonsmokers. Based on such information, you are considering whether IMB should impose an additional annual charge of $500 for medical benefits and insurance coverage on employees who are smokers. Would such an additional charge for smokers be legal? What arguments can you make for imposing the additional charge on smokers? What arguments can you make for not imposing the additional charge? Should IMB impose the additional charge? Explain your answers.

Section 201-d of the New York State Labor Law probably goes the furthest in protecting off-the-job activities. It prohibits employers from discriminating against employees because of their legal off-duty recreational or political activities. On the question of whether an employee’s affair with a coworker was protected “recreational activity” under the legislation, a split developed among various courts. A state appel- late court, in the case of NYS v. Wal-Mart Stores,52 held that dating a coworker was not protected under the legislation, while the Federal District Court for the Southern District of New York in two separate cases, Pasch v. Katz Media Corp.53 and Aquilone v. Republic Nat’l Bank of New York,54 held that dating and cohabitation with a coworker were protected. In the following case, the U.S. Court of Appeals for the Second Circuit resolved the split.

CaSe 11.4 MCCavitt v. swiss reinsuranCe aMeriCa Corporation 237 F.3d 166 (2d Cir. 2001) (per curiam)

Facts: McCavitt was employed as an executive by Swiss Reinsurance America Corporation (Swiss Re). He had been involved in a personal relationship with Diane Butler, who was also an executive with Swiss Re. Swiss Re had no formal antifraternization policy, but McCavitt claimed that he was initially denied a promotion and ultimately discharged by Swiss Re because he was dating Butler. McCavitt filed suit against Swiss Re, alleging that his discharge was in violation of New York Labor Law Section 201-d. The trial court dismissed McCavitt’s complaint for failure to state a legal claim. McCavitt appealed to the U.S. Court of Appeals for the Second Circuit. Issue: Is McCavitt protected under New York Labor Law § 201-d from being discharged for dating a co-worker? Decision: The provisions of § 201-d of New York Labor Law that relate to the issue here state: 2. Unless otherwise provided by law, it shall be unlawful for any employer or employment agency to refuse to hire, employ or license, or to discharge from employment or otherwise discriminate against an individual in compensation, promotion or terms, conditions or privileges of employment because of:...c. an individual’s legal recreational activities outside work hours, off of the employer’s premises and without use of the employer’s equipment or other property. The statute defines “recreational activities” as: any lawful, leisure-time activity, for which the employee receives no compensation and which is generally engaged in for recreational purposes, including but not limited to sports, games, hobbies, exercise, reading and the viewing of television, movies and similar material. While the New York Court of Appeals has not ruled on the question of whether dating was a “recreational activity” protected by § 201-d, several lower courts have. The Appellate Division of the New York Supreme Court held that dating was not a protected activity in State v. Wal- Mart Stores, Inc. In Carey v. de Souza, the Appellate Divi- sion assumed that dating is a protected recreational activity for purposes of the decision but did not consider the issue on its merits. A Nassau County New York Supreme Court in Bilquin v. Roman Catholic Church, Diocese of Rockville Centre determined that “recreational activities” did not include “personal relationships.” However, the U.S. District Court for the Southern Dis- trict of New York has taken the opposite position in two cases. In Pasch v. Katz Media Corp., it held that the New York Court of Appeals would deem cohabitation to be a protected recreational activity under § 201-d; and in Aquilone v. Repub- lic Nat’l Bank of New York, it held that an employee’s friend- ship with another person, where contacts between them took place off the employer’s premises and not on the employer’s time, was protected recreational activity under § 201-d. The district court here held that it was bound to fol- low the Third Department’s decision in Wal-Mart. With regard to interpreting and applying New York state law, the federal courts are bound to apply New York law as interpreted by New York’s intermediate appellate courts, unless there is persuasive evidence that the New York Court of Appeals, which has not ruled on this issue, would reach a different conclusion. The court of appeals therefore held that dating a coworker was not protected “recreational activity” under § 201-d. The court over- ruled the Pasch and Aquilone cases, and affirmed the trial court’s dismissal of McCavitt’s suit.

because she was dating an employee of a competitor. But in Barbee v. Household Automotive Finance Corporation,56 the court held that a supervisor discharged for dating a subordinate did not have a claim for invasion of privacy because he had been repeatedly warned against such conduct and therefore had no reasonable expectation of privacy regarding such conduct. 11-7f Guns at Work Laws In Hansen v. America Online, Inc.,57 the Utah Supreme Court rejected a wrongful termina- tion suit brought by several employees who were discharged for violating an employer’s policy prohibiting possession of a firearm on the employer’s property. The court held that the discharge of the employees was not in violation of public policy and that the private property rights of the employer allowed the employer to ban firearms from its property. In response to the Hansen decision, the National Rifle Association began a lobbying cam- paign at the state legislature level. As a result of that campaign, a number of states have passed laws that allow employees to bring firearms onto their employer’s property, as long as the weap- ons are kept locked in the employee’s vehicle.58 Oklahoma passed such a law59 in 2005, making it a criminal offense for any “person, property owner, tenant, employer, or business entity” to prohibit any person, except a convicted felon, from transporting and storing firearms locked in a motor vehicle on “any property set aside for any motor vehicle.” The law also provides that property owners who attempt to bar guns from their property are subject to a civil suit to enforce the law and are liable for court costs and legal fees. The law was challenged by a number of employers on the grounds that requiring employers to allow guns on their property would violate the employers’ general duty under the federal Occupational Safety and Health Act (OSHA) to provide a safe workplace. The U.S. District Court for the Northern District of Oklahoma agreed with the employers and granted an injunction against enforcement of the law,60 but on appeal, the U.S. Court of Appeals for the Tenth Circuit reversed the trial court and held that the Oklahoma law was valid and was not in conflict with federal law.61 On March 19, 2015, the Texas Senate passed Senate Bill 11, which aims to expand the state’s concealed-handgun license to allow holders to carry their weapons into specified buildings on the Lone Star State’s public colleges and universities.62 According to the Law Center to Prevent Gun Violence,63 as of 2015 approximately half of the 50 states now have laws permitting individuals to be licensed to carry their guns where they will, including in many such statutes into their workplaces.