Let’s say you have a worker with an obvious physical disability. The employee has not requested an accommodation. Nevertheless, you have some concern about the employee’s ability to perform the essential functions of their job. Is it okay to ask ...


Supervisor’s Questioning of Disabled Employee’s Abilities Buys Company a Jury Trial and more...

Supervisor’s Questioning of Disabled Employee’s Abilities Buys Company a Jury Trial

Let’s say you have a worker with an obvious physical disability. The employee has not requested an accommodation. Nevertheless, you have some concern about the employee’s ability to perform the essential functions of their job. Is it okay to ask that employee if they can do their job? A district court in Hawaii recently found that a question of fact existed as to whether an employer terminated a disabled worker based on similar facts.

In Crowley v. Wal-Mart Stores, Inc., the plaintiff was a store manager who had taken several FMLA leaves for surgery to repair an injured ankle. Nevertheless, he still walked with a cane and wore a boot on the affected foot. On several occasions, his supervisor allegedly asked him if he was still able to do his job. The plaintiff told the supervisor that he was going to file an internal complaint over the remarks, which the plaintiff later overheard the supervisor complaining about to a regional director.

While on another leave, preparing for a fourth surgery on his ankle, the supervisor was involved in a safety inspection of equipment in the store, resulting in him ultimately recommending plaintiff’s discharge. The plaintiff sued claiming that his supervisor’s repeated questions of whether he could do his job, combined with his recommendation for termination evidenced disability discrimination.

The district court held that plaintiff was entitled to a jury trial on the question of whether he was fired because of his disability. The court noted that “a single discriminatory comment by a plaintiff’s supervisor or decisionmaker is sufficient to preclude summary judgment for the employer.” The supervisor’s questioning of the employee’s abilities could be direct evidence of discrimination. The plaintiff will have the chance to convince a jury that the reason given for his discharge was pretextual and the actual basis for his termination was his disability.

Employers should note that while it is important to engage in the interactive process when an employee requests a reasonable accommodation, which necessarily involves discussion of the worker’s ability to perform the essential functions of their job, one should not presume that a disabled worker is unable to perform their job (with certain obvious exceptions). Asking a worker whether they can do their job simply because they have a disability can be seen as evidence of discrimination. For the most part, employers cannot assume that an employee with a disability is not capable of doing their job.

If a disabled employee is experiencing performance problems which may be related to their disability, it is acceptable to meet with the employee and ask them if there is any reason for their performance issues which they wish to discuss. That approach makes the employee responsible for raising any issues about their disability while opening the door to a discussion on reasonable accommodation.


Three Title VII Cases Seek Supreme Court Review

During its November 30th case conference, the Supreme Court may decide whether to grant the petitions for leave to appeal in one or more of the three cases seeking review of sexual orientation and transgender rights in the workplace.

In a case on which we have reported as it has wound its way through the courts, the employer in EEOC v. RG & GR Harris Funeral Homes, Inc., seeks to overturn the 6th Circuit Court of Appeals decision that it violated plaintiff/employee Aimee Stephens’ rights when it discharged her after she began presenting as a female at work although she was assigned as a male at birth and worked for a time at the funeral home as a male. Stephens sought to comply with the employer’s dress code for female employees. The funeral home’s owner objected on religious grounds to having an employee whom he regards as a man dressing as a woman.

This case joins two other cases seeking review of whether Title VII protects the rights of employees who claim discrimination based on sexual orientation. In Zarda v. Altitude Express, the 2nd Circuit Court of Appeals held that Title VII’s prohibition on gender discrimination includes sexual orientation as a form of discrimination “because of sex”. The 11th Circuit came to an opposite result in Bostock v. Clayton Construction. Last year, the 7th Circuit Court of Appeals in Chicago held that Title VII prohibits discrimination in employment on the basis of sexual orientation in Hively v. Ivy Tech Community College. Often the Supreme Court will hear an appeal when different Circuits have reached opposite decisions on the same issue.

Meanwhile, the agencies that enforce Title VII continue to shift their position on gender identity and sexual orientation protections in the workplace. The Office of Civil Rights under the Department of Health and Human Services, is circulating a memo urging adoption of a regulation defining “sex” in terms of genitals and chromosomes. The EEOC, which under the Obama Administration supported expansive employee protections, may undergo a shift to the right if Trump successfully appoints conservative Republicans to Commission vacancies. And a decidedly more conservative Supreme Court could dismantle Hively, Zarda and the funeral home decisions.

It could prove to be a very interesting year for gender identity and sexual orientation rights. We will keep you posted.

Don’t Expect the Election to Have Much Impact on Federal Labor and Employment Laws

While last Tuesday’s election shifted the balance of power in Congress away from Republicans, I don’t see it having much impact on labor and employment law over the next two years. Because the Democrats now control the House and the Republicans have a pretty sizable majority in the Senate, I would expect no major labor and employment legislation to get passed. In fact, I don’t see much legislation of any kind getting passed over the next two years.

I don’t see this deviating much from what would have happened had Republicans maintained control of the House. After passing tax-reform last year, the Republicans did not have a very ambitious legislative agenda. No Republicans were talking about major legislative changes to labor and employment law.

As for changes to the agencies overseeing labor and employment law like the EEOC and the NLRB, the people serving on those agencies are appointed by the President and confirmed by the Senate, so there are not going to be any changes in the ideological bent of those agencies. As we have discussed, this is good for employers, as these agencies have taken a much less aggressive stance towards businesses.

As for regulatory policy over the next few years, I would expect a change in the overtime rules sometime in 2019. I predict that the income level for employees who are eligible for overtime will increase modestly, probably considerably less than the amount proposed by the Obama Administration. The EEOC will also probably attempt to clarify how Title VII should be interpreted by setting forth its position that it does not protect against discrimination based on sexual orientation or gender identity.

What do you think? Do you see major changes in federal labor and employment law? Send me your thoughts at: mdicianni@ancelglink.com.

Age Discrimination Law Applies to State and Local Governments Regardless of Number of Employees

The following is a re-post of an article from The Municipal Minute, an Ancel Glink local government blog edited by Julie Tappendorf ...

The U.S. Supreme Court weighed in on the application of the federal Age Discrimination in Employment Act (ADEA) to small state and local government employers in the recent decision Mt. Lemmon Fire District v. Guido.

The Court ruled 8-0 that the ADEA applies to state and local governments regardless of the number of employees employed by the unit of government. The ADEA defines “employer” as a “person engaged in an industry affecting commerce who has 20 or more employees” or “(1) any agent of such a person, and (2) a State or political subdivision of a State.” Some government agencies had interpreted the definition to mean that the law only applied to government employers with 20 or more employees. In an opinion written by Justice Ginsburg, the U.S. Supreme Court disagreed, holding that the definition of “employer” separated private employers with 20 or more employees from state and local government employers with any number of employees.

The lawsuit involved a challenge against the District when it laid off two employees who claimed they were terminated because of their age in violation of the ADEA. The District argued that the ADEA did not apply because the District employs fewer than 20 people. The Ninth Circuit disagreed, and the case was appealed to the U.S. Supreme Court which upheld the Ninth Circuit’s ruling in favor of the two employees.

This is a significant ruling for small units of government that may have taken the position that they were not subject to the ADEA because they employed less than 20 people.

GovLove Podcast Discussing Major Changes to Union Dues

Check out the latest episode of the GovLove podcast where I discuss major changes to the law governing the way unions operate in the wake of the Supreme Court’s landmark decision in Janus v. American Federation of State, County, and Municipal Employees, Council 31, et al. You can listen to the podcast by clicking on the link below:

Engaging Local Government Leaders (ELGL) GovLove Podcast

Let me know what you think about the podcast!