Court finds employer’s business judgment is BS

yeahright1The so-called “business judgment” rule is subject to the “BS” rule; if the facts show that the employer’s business judgment isn’t credible, the claims will go to trial. A recent example comes from a New York federal court in Roa v. Staples, Inc., August 9, 2017, Briccetti, V.

The issue in Roa was whether the employer fired the plaintiff because of her disability, or whether it fired her for stealing a bag of potato chips. The plaintiff was diagnosed with several medical conditions that restricted her from lifting over ten pounds, raising and reaching her arms above her shoulders, turning and twisting her neck, operating electric machinery, and performing repetitive motions. She was put on “light duty,” which under Staples’ policy was a temporary modification, not to exceed six months. Her restriction from operating machinery reduced her productivity, and her coworkers voluntarily assisted her, sometimes staying after their shifts ended.

The plaintiff’s supervisor sent an email to the HR manager asking “Do we know how long we have to accommodate [the employee]?” He also stated that he had the employee working within her restrictions but her condition was getting worse and she had only been “hitting just 40% of her individual productivity.” In March, the supervisor emailed HR to recommend the employee’s pay be reduced since she wasn’t able to do as much. HR responded that they could not do this due to “disability laws,” and noting that it was important to not make changes because “her injury cases have gone into litigation.” The email also stated: “I know it’s been a long time but I promise there will be a resolution.”

A worker later complained to loss prevention that a bag of chips was stolen from his lunch bag. The investigator testified that he did not remember exactly how he investigated but he reviewed video footage and saw the employee remove something indiscernible from the bag. He also said she had been a suspect in a prior theft of a yogurt from the refrigerator. The record reflected that this investigation was unusual because the investigator relied only on the worker’s complaint and did not interview the employee or anyone else. Also, the HR manager didn’t review the video (which was not preserved) before approving the employee’s termination for theft. The HR manager testified that an honest mistake would not constitute theft. Nonetheless, the employee was fired for theft, even though she asserted in the termination meeting that she took a bag of chips because she mistakenly thought her sister left them for her, and did not commit theft.

Denying Staples’ motion for summary judgment, the Court held there was sufficient evidence of discriminatory intent to round out the employee’s prima facie case and to raise triable issues on pretext. For example, the plaintiff testified that her supervisor, who was involved in the termination decision, often expressed dissatisfaction with her restrictions, commented on her extended light-duty status, made demeaning gestures and expressions about her disabilities, and assigned her undesirable tasks, such as cleaning. There were also the emails to HR expressing frustration at her reduced productivity because of her disabilities and suggesting her pay be cut. Also, the employee was replaced with someone who could perform functions the plaintiff could not.

The court also found it significant that the alleged theft in question was a one-time event involving a single serving of chips, rather than a pattern of thefts or theft of a valuable item. Moreover, Staples failed to preserve crucial evidence used to make the termination decision and failed to interview a crucial witness (the employee’s sister).

Employer short on direct threat defense

scholasticnews_indepth_images_minerThe district court in Pollard v. Drummond Co., Inc., No. 12-03948 N.D. Al. (Sept. 15, 105) found a fact question on whether a coal miner using methadone to control back pain was a direct threat under the ADA. A “direct threat defense must be based on a reasonable medical judgment that relies on the most current medical knowledge and/or the best available objective evidence, and upon an expressly individualized assessment of the individual’s present ability to safely perform the essential functions of the job.” Chevron, 536 U.S. at 86. An employer may reasonably rely on medical evidence to make its employment decisions, but this reliance must “be reasonably based on particularized facts.” Lowe v. Ala. Power Co., 244 F.3d 1305, 1308 (11th Cir. 2001). An employer may not rely upon the recommendation of a physician who conducts a cursory examination and bases his opinion at least in part on a general assumption that all patients with the same disability have the same limitations. Lowe, 244 F.3d at 1309 (denying summary judgment where a physician recommended restrictions for a double amputee based on a cursory examination of him and a general assumption that all double amputees have the same limitations). Furthermore, an assessment based on the known possible side effects of a medication, as opposed to an individualized inquiry into a patient’s present ability to perform his job functions, is insufficient. Haynes v. City of Montgomery, No. 2:06-CV-1093-WKW, 2008 WL 4495711, at *4-5 (M.D. Ala. Oct. 6, 2008). The employer’s doctors could only speculate about the effects and side-effects of the methadone. They did not perform an individualized assessment of the employee. Moreover, the employee had worked for many years using methadone in the mines and had no significant infractions or safety issues during that time.

Pittsburgh employment lawyer Charles A. Lamberton. Representing employees in discrimination, retaliation, sexual harassment and wrongful termination cases for more than 15 years. High end representation for high end cases and clients. Contact us today.

OFCCP Rule Strengthens Disability Protections

On August 27, 2013, the U.S. Department of Labor’s Office of Federal Contract Compliance Programs announced a Final Rule that makes changes to the regulations implementing Section 503 of the Rehabilitation Act of 1973, as amended (Section 503) at 41 CFR Part 60-741. Section 503 prohibits federal contractors and subcontractors from discriminating in employment against individuals with disabilities (IWDs), and requires these employers to take affirmative action to recruit, hire, promote, and retain these individuals. The Final Rule strengthens the affirmative action provisions of the regulations to aid contractors in their efforts to recruit and hire IWDs, and improve job opportunities for individuals with disabilities. The Final Rule also makes changes to the nondiscrimination provisions of the regulations to bring them into compliance with the ADA Amendments Act of 2008.

The Final Rule was published in the Federal Register on September 24, 2013, and becomes effective on March 24, 2014. However, current contractors with a written affirmative action program (AAP) already in place on the effective date have additional time to come into compliance with the AAP requirements. The compliance structure seeks to provide contractors the opportunity to maintain their current AAP cycle.

Highlights of the Final Rule:

Utilization goal: The Final Rule establishes a nationwide 7% utilization goal for qualified IWDs. Contractors will apply the goal to each of their job groups, or to their entire workforce if the contractor has 100 or fewer employees. Contractors must conduct an annual utilization analysis and assessment of problem areas, and establish specific action-oriented programs to address any identified problems.

Data collection: The Final Rule requires that contractors document and update annually several quantitative comparisons for the number of IWDs who apply for jobs and the number of IWDs they hire. Having this data will assist contractors in measuring the effectiveness of their outreach and recruitment efforts. The data must be maintained for three years to be used to spot trends.

Invitation to Self-Identify: The Final Rule requires that contractors invite applicants to self-identify as IWDs at both the pre-offer and post-offer phases of the application process, using language prescribed by OFCCP. The Final Rule also requires that contractors invite their employees to self-identify as IWDs every five years, using the prescribed language. This language will be posted on the OFCCP website.

Incorporation of the EO Clause: The Final Rule requires that specific language be used when incorporating the equal opportunity clause into a subcontract by reference. The mandated language, though brief, will alert subcontractors to their responsibilities as Federal contractors.

Records Access: The Final Rule clarifies that contractors must allow OFCCP to review documents related to a compliance check or focused review, either on-site or off-site, at OFCCP’s option. In addition, the Final Rule requires contractors, upon request, to inform OFCCP of all formats in which it maintains its records and provide them to OFCCP in whichever of those formats OFCCP requests.

ADAAA: The Final Rule implements changes necessitated by the passage of the ADA Amendments Act (ADAAA) of 2008 by revising the definition of “disability” and certain nondiscrimination provisions of the implementing regulations.

Parity for mental health benefits

The Departments of Labor, Health and Human Services and the Treasury recently issued a final rule increasing parity between mental health/substance use disorder benefits and medical/surgical benefits in group and individual health plans. The final rule implements the Paul Wellstone and Pete Domenici Mental Health Parity and Addiction Equity Act, and ensures that health plan features like co-pays, deductibles and visits limits are generally not more restrictive f or mental health/substance abuse disorders benefits than they are for medical/surgical benefits.

The final rule also includes specific additional consumer protections, such as:

  1. Ensuring that parity applies to intermediate levels of care received in residential treatment or intensive outpatient settings;
  2. Clarifying the scope of the transparency required by health plans, including the disclosure rights of plan participants, to ensure compliance with the law;
  3. Clarifying that parity applies to all plan standards, including geographic limits, f acility-type limits and network adequacy; and
  4. Eliminating an exception to the existing parity rule that was determined to be conf using, unnecessary and open to abuse.

The Affordable Care Act builds on the Mental Health Parity and Addiction Equity Act and requires coverage of mental health and substance use disorder services as one of ten essential health benefits categories. Under the essential health benefits rule, individual and small group health plans are required to comply with these parity regulations. The final rule represents a strong effort to expand coverage to the millions of Americans who have lacked access to affordable treatment f or mental and substance use disorders. It will increase access to mental health and substance abuse treatment, prohibit discriminatory practices and increase health plan transparency.

“This final rule breaks down barriers that stand in the way of treatment and recovery services f or millions of Americans,” said Health and Human Services Secretary Kathleen Sebelius. “Building on these rules, the
Affordable Care Act is expanding mental health and substance use disorder benefits and parity protections to 62 million Americans. This historic expansion will help make treatment more af f ordable and accessible.”
“Americans deserve access to coverage f or mental health and substance use disorders that is on par with medical and surgical care,” said Treasury Secretary Jacob J. Lew. “These rules mark an important step in ending the disparities that exist in insurance plans, and will provide families nationwide with critical coverage and protections that fulfill their health needs.”

New cases seek to clarify pregnancy discrimination laws

As reported April 1, 2013 by Anna Louie Sussman of Reuters: 

Two recent complaints filed with the U.S. Equal Employment Opportunity Commission seek to clarify the rights of pregnant women under a 2008 amendment to the Americans with Disabilities Act. Both complaints were brought by pregnant women who said they were denied reasonable accommodations for pregnancy-related disabilities.

Since 1978, the Pregnancy Discrimination Act (PDA) has prohibited employers from treating pregnant women differently from similarly situated employees. In 2008, Congress passed the Americans with Disabilities Act Amendments Act (ADAAA), expanding the definition of disability to cover pregnancy-related impairments, and the EEOC issued regulations codifying the act in March 2011.

In a complaint filed Thursday, Amy Crosby, a cleaner who makes $9.09 an hour at Tallahassee Memorial Hospital, said she suffered from carpal tunnel syndrome. Her symptoms intensified in her 23rd week of pregnancy, which she said made it impossible for her to lift heavy bags of laundry and trash. After Crosby submitted a note from a chiropractic neurologist attesting to pregnancy-related carpal tunnel syndrome, the hospital said the information needed to come from her obstetrician. Crosby’s obstetrician said she could not diagnose her and recommended a neurologist for the pains in her arm. Several supervisors refused her requests for work with limited lifting, and she was involuntarily placed on unpaid leave under the Family and Medical Leave Act.

“They just kept saying, ‘It’s policy, it’s policy,'” Crosby told Reuters.

According to the complaint, which was filed by the National Women’s Law Center, other hospital employees who had suffered injuries or were otherwise unable to complete aspects of their jobs had been accommodated.

A spokesman for the hospital said he had not seen the complaint and could not comment on it.


A separate complaint filed in January by the American Civil Liberties Union alleges that United Parcel Service Inc failed to accommodate driver Julie Desantis-Mayer when she was pregnant in the spring of 2012.

In August, the company offered her a light-duty position on the condition that it would not count toward seniority or benefits, an offer she described as “unlike, and worse than UPS’s accommodation of other, non-pregnant employees.”

A spokeswoman for UPS said the company does not discriminate against pregnant workers and that it adheres to all aspects of the law.

Typically, the EEOC attempts to mediate between the parties, and if that fails it investigates the claim. If the investigation finds that a law has been violated, the EEOC can settle, sue or, in some cases, refer the case to the Department of Justice. If no violation is found, the aggrieved party can still sue privately.

A spokesman for the EEOC declined to comment on the two cases.

But in its three-year strategic enforcement plan, released in December 2012, the agency identified accommodating pregnancy-related limitations under ADAAA and the PDA as an “emerging issue.”

With little case law on the books since the regulations were issued in March 2011, employers are in uncharted waters, said Stacie Caraway, an employment lawyer at Miller & Martin PLC in Chattanooga, Tennessee, who is not involved in either case. For example, she said, it is difficult to tell whether the hospital’s request for additional documentation was unreasonable. “We had 25 years of case law with the ADA to tell us what was reasonable and what was not, but now we’re starting from scratch,” she said. “That’s what makes these cases kind of a crapshoot.” Employers should be “conservative” and lean toward accommodating workers where possible, Caraway said. “If the proof shows that someone has a pregnancy-related disability, then the employer does have a duty to accommodate it as with cancer or any other disability.”


The two cases highlight changes in the legal landscape since the Americans with Disabilities Amendments Act was passed. In a 2008 case filed a few months before the law came into effect, the 4th U.S. Circuit Court of Appeals ruled that the Pregnancy Discrimination Act did not require UPS to accommodate pregnant worker Peggy Young by offering her light duty, despite offering it to workers injured on the job. “The ADAAA certainly broadens the definition of disability and means that a number of conditions caused by pregnancy might be treated as disabilities now, where they wouldn’t have before,” said Samuel Bagenstos, a professor at the University of Michigan Law School and a prominent disability rights advocate. Bagenstos and other lawyers are preparing a petition on Young’s behalf at the U.S. Supreme Court.

Cara Greene, a co-chair of Outten & Golden’s Family Responsibilities and Disability Discrimination practice group in New York, said these cases highlight how the PDA and the ADAAA interact to require accommodations that the court denied to Young. “Employers are missing the fact that just because a disability results from pregnancy, it doesn’t mean they don’t have to accommodate it,” Greene said.

Legislation to codify these obligations has stalled. The Pregnant Workers Fairness Act, introduced last year in Congress, would require employers to make the same types of accommodations for pregnancy, childbirth and related medical conditions as they do for disabilities. It is due to be reintroduced this spring, according to a spokeswoman for the National Women’s Law Center. Galen Sherwin, a staff attorney with the American Civil Liberties Union’s Women’s Rights Project, said that the two laws, the PDA and the ADAAA, should already be sufficient. “If employers are now required to treat a broader category of disabled individuals with compassion by providing them the necessary job accommodations, but they are refusing those same type of job accommodations to pregnant women, that really flies in the face of Congress’s intent in passing the PDA.”

Prescription medications in the workplace

An Ohio company has been fined $50,000 by the EEOC after firing an employee who tested positive for a prescribed medication for her bipolar disorder. The agency accused the company of violating the Americans with Disabilities Act. Chassity Brady was a quality control lab technician in the Braselton, Ga. facility of Dayton Superior Corporation, a concrete and masonry construction company, according to the EEOC. After Brady had an adverse reaction at work to a drug prescribed to her to treat her bipolar disorder, Dayton Superior forced her to take a drug test. Even though the only thing she tested positive for was the bipolar drug, the employer fired her. The EEOC filed a lawsuit on Brady’s behalf in September. Under the settlement announced Jan. 4, Dayton Superior agreed to pay Brady $50,000 and to complete training, report to the EEOC, and post relevant notices.

Employers are never supposed to make hiring and firing decisions based on disabilities – including those that are only indicated by a prescription, and employers must be careful before firing someone for taking medically indicated prescription medications. In another case, the employer had an actual policy and practice of drug testing employees for not only illegal drugs but also a group of perfectly legal prescription medications. In that case, the EEOC fined a Tennessee employer $750,000. The EEOC said Dura Automotive Systems required employees who tested positive for legally prescribed medications to disclose the medical conditions for which they were taking prescription medications. Dura also said employees could only keep their jobs if they stopped taking their meds. “Dura then suspended employees until they stopped taking their prescription medications, and fired those who were unable to perform their job duties without the benefit of their prescription medications,” said the EEOC.

If your employer utilizes any such policy, talk to a lawyer or consider filing a charge with the EEOC. Making employment decisions on the basis of stereotypical assumptions about disability-based medications is one of the problems the ADA was designed to combat.

EEOC explains protections for employees who experience domestic or dating violence, sexual assault or stalking

The Equal Opportunity Employment Commission (EEOC) has released a fact sheet advising how employment practices that discriminate against applicants or employees who have experienced domestic or dating violence, sexual assault, or stalking may violate Title VII. While the EEOC acknowledges that there is no federal statute directed at prohibiting such discrimination, the publication titled “Questions and Answers: The Application of Title VII and the ADA to Applicants or Employees Who Experience Domestic or Dating Violence, Sexual Assault, or Stalking,” seeks to advise people how such discrimination may violate provisions of Title VII.

In a series of questions and answers, the EEOC provides examples of situations in which discrimination based on an individual being the victim of domestic or dating violence, sexual assault, or stalking may violate the law. For example, if an employer terminated an employee after learning that she had been subjected to domestic violence based on the belief that battered women bring drama to the workplace, the employer would be violating Title VII’s proscription against disparate treatment based on sex-based stereotypes. Another example offered involves a hiring manager who does not hire a male applicant after learning that he has obtained a restraining order against a male domestic partner, based upon a belief that only women can be “real” victims of domestic violence.

The EEOC also points out that sex-based harassment may violate Title VII if it is sufficiently frequent or severe or if it results in a “tangible employment action.” For example, an employer who learns that an employee was the victim of abuse, viewed him or her as vulnerable and made advances, and then terminates the employee when the advances are rebuffed is in violation of the law.

The Americans with Disabilities Act (ADA) can also be implicated in situations that involve applicants or employees that are the victims of domestic or dating violence, sexual assault, or stalking. The ADA prohibits employers from treating people differently based on actual or perceived impairment. For example, an employer would be in violation of the law if he or she learned that an applicant is a witness for the prosecution in a rape case and is receiving counseling as treatment for depression, and chose not to hire the individual based on the belief that he or she may require time off due to depression.

In the last section, the document describes when an employer may be required to make reasonable accommodations under the ADA for employees or applicants who have been the victims of sexual assault, domestic violence, or stalking. For example, an employer may be required to provide time off for an individual who requires treatment for depression or anxiety following a sexual assault, even if the employee has no sick leave and the employer is not covered by the FMLA.

Some tips for expecting moms and new moms

Pregnancy discrimination involves treating a woman (an applicant or employee) unfavorably because of pregnancy, childbirth, or a medical condition related to pregnancy or childbirth. The Pregnancy Discrimination Act (PDA) forbids discrimination based on pregnancy when it comes to any aspect of employment, including hiring, firing, pay, job assignments, promotions, layoff, training, fringe benefits, such as leave and health insurance, and any other term or condition of employment. If a woman is temporarily unable to perform her job due to a medical condition related to pregnancy or childbirth, the employer or other covered entity must treat her in the same way as it treats any other temporarily disabled employee. For example, the employer may have to provide light duty, alternative assignments, disability leave, or unpaid leave to pregnant employees if it does so for other temporarily disabled employees. An employer may not single out pregnancy-related conditions for special procedures to determine an employee’s ability to work. However, if an employer requires its employees to submit a doctor’s statement concerning their ability to work before granting leave or paying sick benefits, the employer may require employees affected by pregnancy-related conditions to submit such statements.

Impairments resulting from pregnancy (for example, gestational diabetes or preeclampsia, a condition characterized by pregnancy-induced hypertension and protein in the urine) may be disabilities under the Americans with Disabilities Act (ADA). An employer may have to provide a reasonable accommodation (such as leave or modifications that enable an employee to perform her job) for a disability related to pregnancy, absent significant difficulty or expense. The ADA Amendments Act of 2008 makes it much easier to show that a medical condition is a covered disability.

Harassment because of pregnancy, childbirth, or a medical condition related to pregnancy or childbirth is a no-no. Harassment is illegal when it is so frequent or severe that it creates a hostile or offensive work environment or when it results in an adverse employment decision (such as the victim being fired or demoted). The harasser can be the victim’s supervisor, a supervisor in another area, a co-worker, or someone who is not an employee of the employer, such as a client or customer.

Under the Family and Medical Leave Act (FMLA) of 1993, a new parent (including foster and adoptive parents) may be eligible for 12 weeks of leave (unpaid or paid if the employee has earned or accrued it) that may be used for care of the new child. To be eligible, the employee must have worked for the employer for 12 months prior to taking the leave and the employer must have a specified number of employees.