A report analyzing the impact of the Americans with Disabilities Act Amendments of 2008 (ADAAA) was released by the National Council on Disability (NCD) earlier this week. The report, “A Promising Start: Preliminary Analysis of Court Decisions Under the ADA Amendments Act,” grew out of NCD’s recognition of a need for review and analysis of court decisions rendered under the ADAAA to determine whether the Amendments Act was achieving its intended goals.
NCD’s report offers findings and recommendations based on analysis of the court decisions made under the ADAAA by examining decisions rendered under ADA amendments that were agreed on across both sides of the aisle in Congress. Using this measure, NCD found it clear that the ADAAA has made a significant positive difference for plaintiffs in ADA lawsuits thus far.
For example, in six of the seven Circuit Court decisions in which the provisions of the ADAAA were applied, the plaintiff prevailed on establishing a disability; and in the district court decisions analyzed plaintiffs prevailed on the showing of disability in more than three out of four decisions – a promising start and a substantial improvement over pre-ADAAA decisions under the broad scope of coverage under the ADA that Congress intended. However, many cases are still dismissed on procedural grounds before the alleged discriminatory conduct of the employer is ever addressed. In an attempt to correct this concern, NCD’s report includes recommendations on guidance and technical assistance to address some of these procedural issues.
“Thorough review of case law in the decisions rendered to date strongly affirms the positive difference the ADAAA has made for plaintiffs in discrimination cases,” said Jeff Rosen, NCD Chairperson in a July 23 statement. “While the possibility of undermining the intent of Congress when passing the ADA amendments five years ago remains, what we have seen thus far demonstrates a definite improvement over previous case law.”
NCD is an independent federal agency that advices the President, Congress and other federal agencies on disability policy. The report can be found on agency’s website.
As ENDA moves forward in the Senate, White House reiterates statements that Executive Order to ban LGBT discrimination by federal contractors is not forthcoming
Recent action in the Senate has sparked renewed inquiries into the status of a possible executive order (E.O.) banning discrimination against LGBT employees by federal contractors, yet a White House spokesman reaffirmed this month statements made earlier this year that such an E.O. will not be issued at this time. Despite reports last year that the Obama Administration has considered expanding E.O. 11246 – which currently covers race, color, sex, religion, and national origin – to include sexual orientation and gender identity, White House Press Secretary Jay Carney confirmed on July 10, 2013 that no such order is forthcoming and reiterated his earlier statements that the President prefers legislative, rather than executive, action on this front. Currently, no federal law protects against discrimination in the workplace on the basis of sexual orientation or gender identity.
Earlier that day, the Senate Committee on Heath, Education, Labor and Pensions (HELP), by a 15-7 vote, reported out to the full Senate the Employment Non-Discrimination Act of 2013 (ENDA), a bill that would bar employment discrimination based on actual or perceived sexual orientation or gender identity. The HELP Committee’s markup of the bill (S. 815) was its first action on the measure since the original bill was introduced in 2002. ENDA was introduced in the current legislative session by Senator Jeff Merkley (D-OR) on April 25, 2013. That same day in the House Representatives, Jared Polis (D-CO) introduced a companion bill (H.R. 1755) that was referred to the House Subcommittee on the Constitution and Civil Justice on June 14, 2013.
Background. In early 2012, multiple press reports indicated that the President was contemplating expanding E.O. 11246 to include sexual orientation and gender identity. The Department of Labor’s Office of Federal Contract Compliance Programs (OFCCP) enforces E.O. 11246, as well as Section 503 of the Rehabilitation Act of 1973 (Section 503) and the Vietnam Era Veterans’ Readjustment Assistance Act of 1974 (VEVRAA). E.O. 11246 also requires covered federal contractors and subcontractors to implement affirmative action programs as to race, color, religion, sex, and national origin, and Section 503 and VEVRRA require similar affirmative action programs with respect to disability and status as a protected veteran.
It was not clear whether any potential expansion of E.O. 11246 would only require non-discrimination or whether it would also require implementation of affirmative action programs on the basis of sexual orientation and gender identity. According to the reports from last year, the President has also considered, as an alternative to expanding E.O. 11246, issuing a separate, new executive order to address sexual orientation and gender identity.
Yet, the White House had been silent on this topic until April 12, 2012 when Carney confirmed press reports that the President would not, at least for the time being, sign such an executive order. “We are not approaching this at this time through executive authority, through an executive order. We are, however — in another demonstration of the President’s firm commitment to securing equal rights for the LGBT community — aggressively pursuing passage of ENDA,” Carney said.
On February 14, 2013, 37 Senators signed on to letter urging President Obama to issue an Executive Order barring federal contractors from discriminating on the basis of sexual orientation and gender identity. On March 20, 2013, a similar letter was sent to the President by 110 House members.
Recent press briefing. The progression of ENDA in the Senate on July 10, 2013, prompted renewed questioning on the issue of an LGBT executive order later in the day at a White House press briefing. “We welcome the passage by the committee of the Employment Non-Discrimination Act, the bipartisan support that it saw, the Republican senators who voted for it — Senator Kirk, who was a leader in the effort,” Carney said in response to a question about White House plans regarding ENDA. “This reflects the strategy the President has long believed is the right one when it comes to these matters, and we’ll continue to press for broader support in the Senate and then in the House on this issue,” he noted.
“Our position on the executive order hasn’t changed,” Carney stated in apparent reference to his April 2012 statements. “[O]ur position on the executive order has been coupled with our belief that the best way to do this is to pursue legislation that’s broad and comprehensive. And that’s what ENDA is,” Carney continued, indicating that the progress in the Senate earlier that day was evidence that progress on the legislative front could be achieved.
By Lorene D. Park, J.D.
While many think the doctor-patient privilege is sacrosanct, in fact, it is not absolute. Much like an attorney-client privilege is waived when the client places the attorney’s representation at issue (such as in a malpractice claim), an employee who puts his or her mental condition at issue by claiming that an employer’s actions or inaction caused emotional distress is often held to have waived the doctor-patient privilege. Basically, it’s a put-up-or-shut-up situation.
As explained by a court in a sexual harassment case, because the employee claimed the employer’s actions caused mental anguish and emotional distress, access to her medical and mental health records was warranted so the employer could evaluate, for purposes of its defense, whether the emotional distress stemmed from a pre-existing condition or other unrelated events (Seegmiller v Macey’s, Inc, DUtah June 19, 2013). Likewise, in a case where an employee sought damages for emotional pain and suffering allegedly caused by an employer’s race and gender bias, the court held that her demand for such damages waived any broad assertion of physician-patient privilege (Johnson v Federal Express Corp, MDPa April 24, 2013). However, the production of her records was subjected to a protective order in the interest of maintaining her privacy. Protective orders are common in these situations. Notably, an employee who refuses to comply by providing records risks sanctions, such as having to pay attorneys’ fees incurred by an employer in having to re-do depositions or to obtain a court order compelling the employee to comply (see, e.g., Knight v Domtar Paper Co, LLC, DSC April 17, 2013).
Compelled exams. In some cases where an employee alleges severe emotional distress as an element of damages, or asserts a separate claim for emotional distress, courts will often grant an employer’s motion to compel the employee to undergo an independent psychiatric exam under Rule 35. This usually happens when the court finds that the employee has claimed more than “garden variety” emotional distress. As explained by one court, to warrant an examination under Rule 35, the employee must affirmatively put her mental condition at issue and the employer must show good cause (Denny v Wingspan Portfolio Advisors, LLC, NDTex June 5, 2013). To the court, allegations of general emotional distress for which an employee seeks no treatment are not enough to put mental condition at issue.
In the view of many courts, an employee places her mental condition at issue when she alleges a permanent or ongoing psychiatric mental disorder or emotional distress that requires psychiatric or psychological treatment as a result of discrimination. But this issue is not limited to discrimination cases. For example, a court in Washington found that an employee, who sought compensation for wages lost during a period of disability caused by emotional distress, waived the physician-patient privilege by asserting more than a “garden-variety” claim and granted, in part, an employer’s motion to compel discovery of her medical records and information (Carrig v Kellogg USA Inc, WDWash January 30, 2013). According to the court, “emotional distress which is so severe that it eliminates a person’s ability to work and forms the basis for leave is not ‘garden variety.’”
Conversely, in one case, an employee who sought emotional distress damages, but characterized them as “garden variety” and denied receiving professional mental health treatment, was not required to undergo a Rule 35 exam, even though he supported his claims by producing the report of a psychologist identified as a “workplace bullying” expert (Montana v County of Cape May Board of Freeholders, DNJ April 22, 2013). He did not seek to produce any mental health records at trial, or to call a medical expert on his behalf. The court held that the bullying expert’s report did not put the employee’s mental health in controversy because it focused on the nature of the employer’s actions, not the employee’s mental health.
As for “good cause” for the employer’s seeking the Rule 35 exam, courts will consider whether the employee has retained an expert and whether the employer has other means of obtaining the information (i.e., whether the examination could reveal specific facts necessary to the claim or defense), among other factors.
The message for employees (and plaintiffs’ attorneys) is clear — if you want to claim emotional distress as more than just a general “garden variety” element of damages, be ready to back that up with medical records.
President withdraws two NLRB nominations, Bureau of Consumer Financial Protection nominee is confirmed
By Pamela Wolf, J.D.
As a result of a brokered deal to avert a potential disaster, President Obama withdrew the nominations of his two recess appointments to the NLRB, the question of whether the Senate rules should be changed to get rid of the filibuster with regard to executive nominations has been delayed, and one of the president’s nominees has been confirmed by the Senate.
At about 11:00 am (ET) July 16, 2013, the Senate, by a vote of 71-29, agreed to a cloture motion to limit the debate on President Obama’s nomination of Richard Cordray to be Director of the Bureau of Consumer Financial Protection for a term of five years. The move signaled a halt to Majority Leader Harry Reid’s (D-Nev) threat to impose the so-called “nuclear option,” under which he would move forward with a plan to change the Senate rules to eliminate filibusters with regard to executive branch nominations.
The battle between the parties over the stall on Obama’s nominations reached fever pitch this week, particularly with regard to Cordray, the five slated candidates to serve as members of the NLRB, and the pending nominee for Secretary of Labor. Without action on the NLRB nominees, the agency would be effectively shut down when the term of the only confirmed board member expires on August 27.
Good for the Senate. In floor statements leading up to the cloture vote, Senator John McCain (R-Ariz) noted that a meeting last night between 98 senators working to avoid the nuclear option was a “productive discussion” on resolving issues. Reid noted this was “not a time to flex muscles” and was appreciative of McCain’s “advocacy and persistence.” Reid concluded that compromise was “good for the Senate.” Senator Bob Corker (R-Tenn), a member of the Senate Banking Committee, noted that after moving past the cloture vote on Cordray it was time to “work constructively” on the country’s problems.
Deal to end stand-off. Under a deal forged to avoid the nuclear option, the president has withdrawn the nominations of his two recess appointments to the NLRB, members Richard Griffin and Sharon Block, and will nominate two other individuals with input from organized labor, which traditionally has been aligned with Democrats, according to media reports. In exchange, Reid agreed to delay action on the question of whether the Senate rules should be modified.
Senator Lamar Alexander (R-Tenn), the senior Republican on the Senate HELP Committee, released a statement confirming the agreement reached by Senate leadership and the White House, under which the administration will send two new nominees to the NLRB and pull the Griffin and Block nominations. The White House, Alexander said, will submit two new nominations shortly. The HELP Committee has already scheduled a hearing for 10 a.m. on July 23 on the two new nominees, he noted.
HELP Committee Chairman Senator Tom Harkin (D-Iowa) also issued a statement: “Today’s deal, while not ideal, will allow for a fully-confirmed Board for the first time in a decade, and that is a step forward for our country. It is my hope that Republicans will make good on their word to give swift consideration to these nominees, and that this could bring a new beginning for the Board, so that the dedicated public servants at the agency can do their jobs without the constant political attacks and interference that we have seen in recent years.”
“While today’s agreement on nominees leaves the necessary work of Senate rules reform still to be done,” he continued, “I am pleased that the minority appears to be willing to allow the Senate to move on a number of important executive nominations, consistent with the history of the Senate and, I believe, with the framers’ intent. In particular, I welcome the news that the Senate will act to advance the nomination of Thomas Perez to serve as Labor Secretary.”
Meanwhile, Cordray’s nomination was confirmed in the Senate by a vote of 66-34.
I’m not asking whether you agree with the Food Network, or the sponsors who responded to Paula Deen’s acknowledged prior use of the n-word by dismissing her or severing ties with her. I’m asking whether, as an employer, you would have fired one of your employees who used that particular racial slur in the workplace; whether as a law firm, you would have advised your client to fire an employee who did so. What about other discipline: Suspension? Final warning? What would you have done?
I looked at a sampling of recent (within the last six months) cases Employment Law Daily reported involving that particular racial slur to see what employers actually did. Specifically, I looked for cases where disciplinary action (or the lack thereof) for using racial epithets was discussed in the case; that was not always easy to find.
Not terminated, but was owner’s wife. The Northern District of Alabama (Sales v Five Points Temporaries, L.L.C., June 19, 2013) found ample evidence, based on the sheer number of racially charged comments, to support an African-American employee’s claim that she was discharged by a temp agency because she objected to assigning workers according to clients’ racial preferences, The temp agency owner’s wife, a manager with supervisor authority over the employee, regularly called African-Americans, including this employee, the n-word. So did the branch manager/VP of operations; so did the company owner. Perhaps this case is not a fair example, since it was the owner’s wife whose racial slurs were at issue here.
Final warning given, but was retaliation for union activity. Here’s one where the NLRB found (Ozburn-Hessey Logistics, LLC, May 2, 2013) that an employer’s final warning to an employee for allegedly calling a co-worker the n-word during a confrontation was actually retaliation for her pro-union activity. Although the warning supposedly was for violating the employer’s anti-harassment and non-discrimination policy, there was evidence that the employer did not believe that the use of racial slurs merited discipline, since it overlooked similar offensive statements made by a high-level supervisor to subordinate employees.
Not terminated, but complaining employee was. The Northern District of North Carolina found a jury question in whether an African-American employee who was involved in a fracas with a white coworker was terminated unfairly while the other employee was retained. Amidst a backdrop of racially derogatory comments by coworkers and management, including use of the n-word by the white employee who was not terminated, plus threats of physical harm, management’s response was “indifference.” The African-American employee’s complaints were disregarded, and the physical threats characterized as “horseplay.” (Billips v Benco Steel, Inc, April 30, 2013).
Terminated three months later. In April, the D.C. Circuit revived an employee’s race discrimination, hostile work environment, and retaliation claims (on which the lower court had granted summary judgment), one of which involved a vice-president calling him the n-word during a meeting to discuss the employee’s concerns. Here, the vice-president was terminated. Although the employer argued that it promptly corrected the vice president’s behavior by firing him three months after the incident, the court noted that a reasonable jury could find that the three-month delay was not “prompt” (Ayissi-Etoh v Fannie Mae, April 5, 2013).
Final warning given. This case involved a coworker’s use of the n-word that was overheard and not directed at the complaining employee, which was reported immediately; Walmart investigated the same day. The coworker admitted the slur and apologized; Walmart gave the coworker a final warning, coached her, and cautioned her that the next disciplinary level would be termination. Unhappy that her coworker was not fired, the employee called the Walmart hotline to complain. Walmart reopened the investigation but stood by its earlier decision. The Southern District of Alabama found (Denham v Wal-Mart Stores East, LP, March 26, 2013) that any employee’s use of the n-word was “patently offensive,” but an “isolated utterance on a single occasion,” not directed at anyone in the workplace, was a stray remark that failed to meet the legal threshold for a cognizable Title VII claim.
No apparent discipline. Two of a trucking company’s employees were racially harassed and one was fired because of race and in retaliation for complaining about racial harassment (EEOC v A.C. Widenhouse, February 22, 2013). The African-American truck drivers were repeatedly subjected to unwelcome derogatory racial comments and slurs, including the n-word, by the general manager (who was also the supervisor) and other white employees. There was no record in the Middle District of North Carolina’s decision of any discipline against the manager or employees who used the racial slurs.
No discipline. Within the context of a foreman calling the African-American employee “boy” over 200 times within an eight-month period and other harassing conduct, that foreman’s failure to discipline a white coworker for using the n-word was evidence of a racially hostile work environment, the Southern District of Alabama ruled (Jackson v Dunn Construction Company Inc, February 21, 2013).
No discipline. After a welder reported a barrage of racial slurs including the n-word to his supervisor, he was told not to worry about his coworkers because they were “from the mountains. They’re not used to being around black people.” (Nooses were also founding hanging from welding booms at the worksite). The Eastern District of Pennsylvania found this evidence of a racially hostile work environment (Francis v Atlas Machining & Welding, Inc, February 14, 2013).
Ineffective discipline. The sole African-American employee in the processing area of a steel plant was subjected to egregious racial harassment by coworkers and supervisors, including liberal use of the n-word and other slurs, KKK and King Kong graffiti, stuffed monkeys hanging on nooses, and a death threat (Turley v ISG Lackawanna, Inc, January 11, 2013). With respect to any disciplinary action taken by management against employees using racial slurs, the Western District of New York found that the manager of labor relations, manager of HR, and the area manager dismissed the misconduct as trivial, conducted half-hearted investigations, and administered “slaps on the wrist” rather than genuine discipline. The jury awarded $24M in punitive damages, which the court reduced to $5M, but it let stand $1.32M in compensatory damages.
My conclusion from this admittedly unscientific survey? Despite the ugliness in the case law I found, which primarily (but not exclusively) reflected late, ineffective, or no discipline at all, it seems that employers that do discipline and/or terminate individuals who use egregious and inexcusable racial language in the workplace—well, they’re not the ones getting sued.