LANE POWELL SPEARS LUBERSKY LLP
LABOR AND EMPLOYMENT LAW UPDATE 2000
AMERICAN WITH DISABILITIES ACT
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The Ninth Circuit recently addressed several matters of first impression under the ADA
in Barnett v. U.S. Air, Case No. 96-16669 (9th Cir., October 4, 2000). The court held that
the definition of “qualified individual with a disability,” included individuals who can
perform the essential functions of a reassignment job, with or without accommodation,
even though they cannot perform the essential functions of their current position. The
court also placed squarely on employers the burden to initiate the interactive process of
determining accommodation. Finally, the court concluded that reassignment may be
reasonable accommodation and a private seniority system (i.e., those not collectively
bargained for) prohibiting such reassignment system is not a per se bar, but only a factor
in the undue hardship analysis.
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The Ninth Circuit ruled in Echazabal v. Chevron USA, Case No. 98-55551 (9th Cir.,
September 26, 2000) that a disabled person may not be disqualified from a job because
that person may pose a threat to the worker’s own safety or health; only if the worker’s
disability poses a direct threat to the health and safety of others (which threat cannot be
eliminated through reasonable accommodation) may the applicant be rejected.
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The Ninth Circuit okayed a pre-hire medical release requirement for a disabled employee,
but under limited circumstances. Agreeing with the lower court, the Ninth Circuit upheld
the exception to the ADA’s general rule barring pre-employment medical inquiries when
an employer could reasonably believe that an applicant’s known disability would
interfere with the performance of a job-related function. The employee had previously
worked with the employer and had requested accommodations due to his carpal tunnel
syndrome. Thus, the employer had prior knowledge of the disability and a reasonable
basis for believing that it would interfere with the essential functions of the job.
Roosevelt Harris v. Harris & Hart, 206 F.3d 838 (9th Cir. 2000).
DISABILITY DISCRIMINATION UNDER STATE LAWS
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Oregon – no cases.
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Washington - Pulcino v. Federal Express (Wash. State Supreme Court, Docket No.
68118-0, filed 9/14/2000). Washington’s Law Against Discrimination more broadly
defines “disabilities” which must be accommodated than the federal ADA or the laws of
many other states. This includes temporary short-term orthopedic problems such as a
broken foot, which would ordinarily not be considered a “disability” under the Americans
With Disabilities Act. The case also contains a helpful summary of the steps in the
analysis of reasonable accommodation:
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The employee must give the employer notice of his or her disability.
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The employee has the burden of showing that a specific reasonable
accommodation was available to the employer at the time the employee’s physical
limitation became known and that accommodation was medically necessary.
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The burden then shifts to the employer to show that the proposed “solution” is not
feasible.
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The employer does not necessarily need to honor an employee’s specific request
for an accommodation, provided that the employer affords some other
“reasonable” accommodation of the disability.
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Although reasonable accommodation and whether an undue burden would be
placed on an employer are generally questions of fact for the jury, certain types of
requests by an employee are unreasonable as a matter of law: the employee need
not be reassigned to a position that is already occupied, and the employer need not
create a new position or alter the fundamental nature of the job, nor eliminate nor
reassign essential job functions.
The case held that FedEx’s policy of not providing light-duty positions to part-time
employees would not necessarily excuse a failure to afford light duty needed by part-time
employees as an accommodation for a disability. A medical leave of absence was not
necessarily a sufficient accommodation where reassignment to a different position could
be determined to be reasonable by a jury.
DISCRIMINATION—STANDARD OF PROOF
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Pretext Only. Settling a dispute among the Federal Circuit Court of Appeals, the U.S.
Supreme Court in Reeves v. Sanderson Plumbing, Case No. 99-536 (U.S. S.Ct., June 12,
2000) held that to survive summary judgment and make it to a jury, plaintiffs need only
produce sufficient evidence to establish a prima facie case of discrimination and evidence
that the employer’s proffered legitimate non discriminatory reason is not credible or
otherwise unworthy of credence. Prior to the decision, some courts (including the
Washington Court of Appeals in Hill v. BCTI (Div. II, 1999)) required plaintiff’s to go
beyond showing that the employer’s reason was false and required evidence that the
employer’s reason was a pretext “for discrimination .” Reeves holds that “pretext-plus” is
no longer required because a jury may infer a discriminatory intent simply from the
conclusion that the employer has been dishonest about the reason for the adverse action.
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Adverse Employment Action. In Chuang v. University of California, Davis, Case No.
99-15036 (August 30, 2000), the Ninth Circuit clarified the meaning of the adverse
employment action requirement for employment discrimination cases. The court held
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that the Chuangs, who were professors at UC –Davis, established an adverse employment
action by showing that their laboratory space had been involuntary relocated to a less
favorable location. Such action was sufficiently adverse because it constituted a
substantial interference with work facilities important to the performance of job duties
and was therefore a material change in the terms and conditions of employment. In the
same breath, the court noted that a second action -- the university’s failure to respond to
a grievance filed by Mr. Chuang – did not constitute an adverse action because the lack
of a response did not materially affect the compensation, terms, conditions or privileges
of employment.
SEXUAL HARASSMENT
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Oregon – Harris v. Pameco Corp., Case No. CA A92496 (Oregon Ct. App., October 4,
2000). In Harris, the Oregon Court of Appeals, following the rationale of the U.S.
Supreme Court in Oncale v. Sundowner Offshore Services, Inc., 523 US 75, 118 S. Ct.
998, 140 L Ed 2d 201 (1998), recently held that same-sex sexual harassment is actionable
under the state civil rights statute at ORS §659.030. The court noted that the state statute
was modeled after Title VII and that there is nothing in the language of ORS
659.030(1)(b) that bars a claim of discrimination because the sexual harassment is aimed
at a person of the same gender.
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Washington - Sangster v. Albertson’s, Inc., 991 P.2d 674 (Div. III, Jan. 2000).
Washington adopts the affirmative defenses available under the federal statute set forth in
Burlington Industries, Inc. v. Ellerth and its companion decision, Faragher v. City of
Boca Raton. An employer with a well-publicized anti-harassment policy, and an
effective complaint procedure which was not utilized by the plaintiff, may be insulated
from responsibility for harassment of which it has not learned. If the employer takes
prompts measures to respond to complaints of sexual harassment, once it knows or
should know of the problem, liability may be avoided.
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Brown v. Scott Paper, 98 Wn. App. 349 (Div. I, Dec. 1999), held that managers may be
sued individually for sex harassment in violation of the Law Against Discrimination.
Compare Raymond v. Pacific Chemical, 98 Wn. App. 1027 (Div. I, Dec. 1999), which
held that managers cannot be held personally liable under the Law Against
Discrimination for making personnel decisions such as discharging employees. Brown
and Raymond, decided on the same day, are arguably distinguishable because one
involves the unavoidable acts of a supervisor making personnel decisions as part of the
job, the other avoidable personal acts, such as harassment. The two cases have been
consolidated for hearing by the state Supreme Court. (Lane Powell Spears Lubersky
attorney Ralph Pond represents the defendants in the Raymond case.)
FAMILY LEAVE
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Centennial School Dist v. Oregon Bureau of Labor and Industries (Oregon Ct. App.,
August 30, 2000). The definitions of "serious health condition" under the FMLA and
OFLA are sufficiently similar to trigger the "consistent" construction mandate of ORS
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659.494(2). The court held that OFLA's "definition of 'serious health condition' as one
requiring 'constant care' is similar to the FMLA's definition of 'serious health condition'
as one involving 'continuing treatment.' Consequently, in construing the OFLA, the
Commissioner did not err in referring to, and relying on, federal regulations defining
'continuing treatment' as instructive in determining the content of 'constant care' for
purposes of ORS 659.470(6) and ORS 659.476."
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In February 2000, the Oregon Bureau of Labor and Industries (“BOLI”) adopted new
regulations governing the Oregon Family Leave Act (“OFLA”). Of particular note is the
addition of “same-sex domestic partner” to the definition of “family member.” OAR §
839-009-0210(5). BOLI also clarified the leave stacking rules, more clearly articulating
the narrow circumstances where employees can have more than 12 work weeks off.
OAR §839–009-0240. The complete regulations are available at www.BOLI.gov.
POLICY MANUAL AND HANDBOOKS.
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McPhail v. Milwaukee Lumber Co., 165 Or. App. 596 (Feb. 2000), Plaintiff McPhail’s
employer promised that he would have a job until retirement. Two years later, the
employer issued a handbook that contained an at-will disclaimer. Appellate court ruled
that continued employment was not sufficient “consideration” – the something for
something exchanged in a deal -- to support the attempted modification of McPhail’s
employment contract via the handbook, since McPhail was already entitled to continued
employment.
WRONGFUL DISCHARGE
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Washington’s Supreme Court has recognized a common law tort action for wrongful
discharge in violation of the public policy against gender discrimination set forth in
Washington’s Law Against Discrimination. Roberts v. Dudley, No. 67365-9 (Wash.
S. Ct. Slip Op., Feb. 17, 2000). The Court ruled that an employee with no claim under
the Law Against Discrimination, because her employer had fewer than eight employees,
nevertheless could claim wrongful discharge in violation of the public policy against
gender discrimination set forth in the same statute.
RETALIATION
Several recent Ninth Circuit Court of Appeals decisions have wrestled with what tangible
“adverse employment action” must be proven to establish legally actionable retaliation.
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One case was Brooks v. City of San Mateo, 214 F.3d 1082 (9th Cir. 2000), a sexual
harassment case, in which the court ruled that ostracism by coworkers does not constitute
retaliation by the employer, who cannot force employees to socialize with each other.
The court left open the door that it might recognize an actionable retaliatory environment
based on a harasser’s friends’ affirmative acts of hostility. The court also found that a
negative evaluation was not an actionable “adverse employment action,” where the
evaluation was not final, but subject to the internal appeal process.
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Another case in which the Ninth Circuit ruled that “mere ostracism” by coworkers does
not generally amount to actionable retaliation, is Ray v. Hinderson, 2000 U.S. App.
LEXIS 15664 (9th Cir. 2000) (finding retaliation based on other tangible actions). The
Ninth Circuit’s rule emerging from these cases is that actionable retaliation occurs when
an employee is subjected to employment actions which are sufficiently serious to deter
complaining about illegal conduct.
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In Fielder v. UAL Corp., 83 FEP Cases (BNA) 493 (9th Cir. 2000), legally actionable
retaliatory work environment could be found by a jury, the Ninth Circuit ruled in
overturning dismissal of the lawsuit, where the harassment victim alleged that a final
reprimand had been given by her manager, and where the coworkers’ retaliation could
have been severe enough to amount to constructive discharge.
FROM THE NATIONAL LABOR RELATIONS BOARD
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The NLRB has ruled that Weingarten rights, long recognized in the unionized workplace,
are available to employees not represented by unions, under provisions of the National
Labor Relations Act which protect “engaging in concerted activity.” Epilepsy
Foundation of Northeast Ohio, Nos. 8-CA-28169, 8-CA-28264 (Slip. Op. 331-92,
7/10/2000). In the Epilepsy Foundation case, the NLRB reversed its former position and
now states that non-union employees have the same rights as unionized employees, to
have a representative present in a meeting with the employer that may reasonably lead to
disciplinary action.
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Also from the Board. The NLRB has ruled that temporary workers may join company
unions of the leasing employer, and thus be allowed to bargain with both the temp agency
and the leasing company. The case overruled a 1990 decision by the Board that
permitted temporary workers to bargain with the leasing employer only if both the temp
agency and the client company allowed them to do it.
WAGE AND HOUR DEVELOPMENTS
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In Wales v. Walt Stallcup Enterprises, d/b/a Wendy’s of Southern Oregon, 167 Or. App.
212 (May 2000), the Oregon Court of Appeals, reversing the trial court, placed the
burden to pay wages due at termination under ORS § 652.140 squarely on employers.
Under Oregon law, when an employee quits and gives at least 48 hours notice, all wages
earned and unpaid at the time of the quit are due and payable immediately upon
termination. The plaintiff Wales gave 1 week advance notice that she was terminating her
employment at Wendy’s restaurant and told her supervisor to mail her the check for
wages owed. The supervisor testified that he did not hear plaintiff’s request and her
check sat in a file for a few weeks until plaintiff finally came in to pick it up. The trial
court ruled that plaintiff failed to communicated her request effectively and entered
judgment for defendant employer. Plaintiff appealed. On appeal, the court noted that the
employer failed to (1) notify plaintiff of it’s payment in cash policy, (2) telephone
plaintiff or (3) mail the check. Such conduct, found the court, was sufficient to constitute
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a “willful failure” to pay under the statute because the burden was on employers to pay
and not on employee’s to request payment.
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Smoldt v. Henkels & McCoy (Oregon Ct App., June 28, 2000). Oregon’s final payment
on termination statute, ORS §652.140, does not apply to "employment for which a
collective bargaining agreement [CBA] otherwise provides for the payment of wages
upon termination of employment." The Oregon Court of Appeals held that this meant
that the CBA must specifically provide for the payment of wages with respect to the
individual employee’s termination. Since Smoldt had “quit” and the CBA only addressed
firings or involuntary termination, the separation was not covered by the CBA and
therefore not exempted from the final wage payment statute.
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Drinkwitz v. Alliant Tech Systems, Inc., 141 Wn.2d 291, 996 P.2d 582 (2000), is a
potentially far-reaching decision by the state Supreme Court, in which the state court
addressed when docking an employee’s pay violates the “salary basis” test for overtime
pay exemptions.
REGULATORY ACTIVITY, WORKER’S COMPENSATION, UNEMPLOYMENT
INSURANCE, AND SAFETY AND HEALTH DEVELOPMENTS
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Newly Adopted BOLI Rules (available at www.BOLI.gov)
- Discrimination
- Health and Safety Hazard
- Injured Worker and Disabled Workers
- Oregon Family Leave Act
- Whistleblowers
U.S. SUPREME COURT DOCKET
The Supreme Court has agreed to hear argument in the following employment cases this fall.
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Circuit City Stores v. Adams presents the issue of whether the Federal Arbitration
Act (under which valid arbitration agreements are enforceable) applies to
employment contracts.
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Another arbitration case, Eastern Associated Coal Corp. v. United Mine Workers,
concerns an employer’s challenge to the decision of an arbitrator under a
collective bargaining agreement to reinstate an employee who tested positive for
drugs to a safety-sensitive position. The employer’s position is that the arbitration
decision is contrary to public policy.
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University of Alabama v. Garrett, raises the issue of whether state employers can
be sued under the ADA, or are immune from suit under the Eleventh Amendment;
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Egelhoff v. Egelhoff, addresses the issue of whether ERISA preempts a state of
Washington law which automatically revokes beneficiary designation of a former
spouse as beneficiary under an employee benefit plan after divorce; and
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NLRB v. Kentucky River Community Care Inc., presents the issue of whether an
employee's application of technical judgment in directing less skilled employees
constitutes the exercise of "independent judgment" under the definition of
“supervisor” under Section 2(11) of the NLRA.
Lane Powell Spears Lubersky LLP
©2000
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