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Sixth Circuit decision is a road map for navigating telecommuting as a reasonable accommodation

May 14th, 2014  |  Joy Waltemath  |  Add a Comment

By Joy P. Waltemath, J.D.

In April, the Sixth Circuit reversed summary judgment for Ford Motor Co. on the EEOC’s claim that Ford had failed to reasonably accommodate its employee’s request to telecommute part-time to address flare-ups of her irritable bowel syndrome (IBS), a condition that can cause fecal incontinence (EEOC v Ford Motor Co). Ford fired the employee from her position as a resale steel buyer after she asked to telecommute for up to four days per week in an attempt to control her IBS symptoms.

Employers are particularly concerned that the Sixth Circuit walked back its earlier pronouncement that telecommuting was not a reasonable accommodation for most jobs; it found instead that “the class of cases in which an employee can fulfill all requirements of the job while working remotely has greatly expanded.” Despite some well-publicized retractions of the privilege, telecommuting is a growing phenomenon. Telecommuting reportedly has risen 79 percent between 2005 and 2012, according to the Census Bureau’s American Community Survey. Yet full-time employees who work from home at least half the time (and are not self-employed) make up only 2.6 percent of the American work force, or about 3.2 million workers. Regardless of employers’ legitimate concerns, the Sixth Circuit opinion can be read as a roadmap for how to handle telecommuting as a reasonable accommodation.

Don’t confuse attendance with physical presence

The Sixth Circuit majority found that the employee (here aided by the EEOC) had evidence that she was “otherwise qualified” for her resale steel buyer position either if “physical presence at Ford facilities” was not an essential job function or if she were provided with a telecommuting accommodation. In the majority’s view, Ford kept confusing physical presence with regular attendance, pointing out that given advances in technology and the evolving nature of work, the “workplace” is anywhere that an employee can perform her job duties.

Is face-to-face physical presence necessary? Clearly teamwork was critical, and Ford believed face-to-face interactions facilitate group problem-solving. But, in an approach that employers continue to find unsettling, the Sixth Circuit was unwilling to defer wholesale to Ford’s business judgment that her physical presence was essential. The employee had evidence that experientially seemed to ring true: She said even when she was on-site at Ford, “the vast majority of communications and interactions with both the internal and external stakeholders were done via conference call.” Plus, when she had to conduct site visits, she also was not physically present in Ford’s workplace.

Is telecommuting a reasonable accommodation?

Something the Sixth Circuit said that has caused a lot of consternation is that, since it first pronounced in 1997 that telecommuting was not a reasonable accommodation for most jobs, “the class of cases in which an employee can fulfill all requirements of the job while working remotely has greatly expanded.” Here it found the employee had enough evidence to create a genuine fact dispute over whether her job was one that could effectively be performed at least part-time from home.

Don’t confuse telecommuting with flex-time. Ford said that telecommuting could not be a reasonable accommodation because resale buyers had to “interact regularly with other team members and access information that was unavailable during non-core business hours.” But the court believed Ford was confusing flex-time with telecommuting. Here the employee had specifically requested the option to telecommute during normal business hours. Ford’s stated concerns did not depend on her physical presence in the office, but rather on her consistent availability during “core” hours. The court found that Ford lacked evidence that a telecommuting arrangement, as opposed to a flex-time arrangement, was inherently problematic.

Engage in the interactive process on telecommuting requests. Ford also argued that, given the employee’s prior absences, her request to telecommute for up to four days a week was unreasonable. To that, the court countered that it was Ford’s obligation to engage in the interactive process to explore alternative accommodations, especially where the employee indicated she would accept one or two days a week as an alternative. Plus, Ford could not use the employee’s past attendance issues as a reason to deny her an accommodation because her absences were related to her disability, flare-ups of her IBS.

Offer truly reasonable alternative accommodations. Employers are also likely to be troubled by the Sixth Circuit’s finessing of the fact that Ford offered, and the employee rejected, two alternative accommodations: moving her cubicle closer to the restroom and finding an alternative position “more suitable” to telecommuting. But the court found there was a genuine fact question as to whether those alternatives adequately accommodated the employee’s disability.

Merely moving her to a cubicle closer to the restroom did not fully accommodate her disability, stated the court, if during IBS episodes she had no control over her bowels for the time it would take to reach the restroom. Nor did the majority think it reasonable to expect an employee “to suffer the humiliation of soiling herself on a regular basis in front of her coworkers, merely because she could use Depends to contain the mess or bring a change of clothes to clean herself up after the fact,” it said, pointedly rejecting the dissent’s approach. As for Ford’s  offer to find her an alternate job that was more amenable to telecommuting, there was no guarantee that such a position would be forthcoming, the court remarked, and anyway, reassignment is only considered “when accommodation within the individual’s current position would pose an undue hardship,” and that was not the case here.

Lessons for employers

Employers can use the Sixth Circuit opinion as a roadmap to handling telecommuting accommodation requests:

  1. Treat every request for telecommuting as an accommodation seriously. At least in this circuit, the class of jobs for which telecommuting as an accommodation is per se unreasonable just got a lot smaller.
  2. Don’t confuse “physical presence in the workplace” with regular attendance. Telecommuting employees have to come to work every workday, just as do employees who work on-site. Regular attendance is a pretty much an essential job function for both. A request to telecommute is not a request for leave or extra time off. As for face-to-face communication, be honest: to how many meetings do participants dial-in? How much business (or teamwork, or problem-solving) is conducted by phone or email vs. face-to-face?
  3. Don’t confuse telecommuting with flex-time. Again, while telecommuting may include flexible hours, it certainly does not have to. If an employee’s availability during normal business hours is an essential job function, that fact does not necessarily preclude a telecommuting arrangement. Similarly, flex-time may also be a reasonable accommodation, whether an employee is on-site or working remotely. For purposes of investigating a reasonable accommodation, a certain level of precision is important.
  4. Engage in the interactive process on the accommodation request. No matter how off-the-wall an employee’s accommodation request appears initially, employers are only going to help themselves if they engage – carefully and without making promises – in the interactive process. Have a serious, good-faith discussion; this is even more important if the employee is trying to overreach. You want the equities in your favor.
  5. Make sure your alternative accommodations are not illusory. Moving the employee’s cubicle closer the restroom may or may not have been an illusory accommodation. What is “closer” to the restroom, anyway? If incontinence could result simply from standing up, would this truly have been a reasonable accommodation? Similarly, “finding an alternative position within Ford more suitable for telecommuting” may also have been illusory; there was no actual position ever offered. As for the dissenting judge’s suggestion that “Depends” and a change of clothes could make this alternative accommodation reasonable, it’s not a bad idea to consider the reasonableness of an accommodation by first asking how you might perceive it were it to be offered to your spouse or parent, and second by considering how it might play before a jury.

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House workforce committee holds hearing on union organizing of student-athletes

May 9th, 2014  |  Lisa Milam-Perez  |  Add a Comment

By Lisa Milam-Perez, J.D.

The House Education and the Workforce Committee held a hearing on Thursday, May 8 to explore the “troubling” consequences of a National Labor Relations Board (NLRB) regional director’s ruling that student-athletes are statutory employees under Section 2(3) of the National Labor Relations Act (NLRA) for collective bargaining purposes. Committee members heard testimony from higher education officials, labor law and antitrust attorneys, and a former student-athlete, all of whom pondered the implications of student-athlete unionization on both college athletics and college athletes. Absent from the hearing was testimony representing organized labor’s perspective on the ongoing controversy.

In March, an NLRB regional director in Chicago ruled that “grant-in-aid” scholarship players on Northwestern University’s football team were employees within the meaning of the NLRA, opening the door for the athletes to join the College Athletes Players Association (CAPA), a Steelworkers-backed union. According to Rep. John Kline (R-Minn), who heads up the House labor committee, the decision “represents a radical departure from longstanding federal labor policies.” The NLRB has agreed to take up Northwestern’s challenge to the regional director’s ruling. While the Northwestern players voted as scheduled in a representation election in late April, the ballots were impounded pending a resolution on their employment status by the Board.

Too many “tough questions.” In opening statements, Kline contended there were “tough questions” to be resolved before students and university administrators should be forced to face off at the bargaining table. “What issues would a union representing college athletes raise? Would a union negotiate over the number and length of practices? Perhaps the union would seek to bargain over the number of games. If management and the union are at an impasse, would players go on strike? Would student athletes on strike attend class and have access to financial aid? How would student athletes provide financial support to the union? Would dues be deducted from scholarships before being disbursed to students? Or are students expected to pay out of pocket?”

Not a sports franchise. “Baylor University is emphatically not a professional sports franchise,” said Ken Starr, President and Chancellor of the private, Christian institution. According to Starr, the decision marked “a fundamental paradigm shift with respect to the relationship between universities and their student-athletes.” The regional director’s approach to simply compare the time spent on academics to the time spent on athletics, applying “a rigidly wooden test drawn from the common law,” fails to recognize the players’ primary status as students — “an irreducible condition precedent to the entire relationship between the university and its student-athletes,” he noted — and instead relies on factors that “range widely both by student… and by institution.”

The decision, if affirmed by the Board, would “likely leave in its wake years of litigation with respect to the appropriate scope of bargaining” and also would beg questions as to the appropriateness of the bargaining unit, Starr said. Members of a team who have no grants-in-aid “could be subjected to the full panoply of rules negotiated by the exclusive bargaining representative” even while the union would owe no fair representation duty to those adversely affected by the outcome of negotiations. Also problematic, in his view, is the lack of a community of interest between the majority of team members and the handful of star athletes who realistically aspire to a future in professional sports and have an economic interest in the use of their images (an ongoing point of contention among the student-athletes).

The “complex legal questions” posed by a decision that student-athletes are employees “will likely take years to sort out,” according to Starr, and “a number of unintended consequences will likewise arise.” Because college athletics is not a profit center for the vast majority of colleges and universities, the decision could cut sharply into the financial and academic support that schools could provide their student-athletes, he said. Moreover, it would breed “uncertainty and instability across the higher education landscape,” Starr urged. The fact that the decision would apply only to private institutions, and implicitly exclude state schools, would create structurally significant disparities between various colleges and universities that compete with one another in intercollegiate athletics.

“Profound and unworkable.” As Seyfarth Shaw’s Bradford L. Livingston testified, the NLRB traditionally has distinguished between “individuals engaged in a commercial relationship and those that — while arguably falling into the most literal definition of ‘employee’ under Section 2(3) — nevertheless fall outside the Act’s reach due to the innately non-commercial nature of the educational relationship at issue.” Such was the case here, in his view, and the consequences of a contrary finding would be “profound and unworkable.”

And while it’s true that intercollegiate sports bring in big money for some universities, Livingston argued that “[r]evenue generation should not be determinative of the NLRA’s application to any particular student-athletes.” Many college teams generate little revenue but have significant costs. Paradoxically, those student-athletes would have even more reason to unionize, Livingston speculated, because they face the prospect that their programs could be cancelled — a concern not faced by athletes in revenue-generating sports. “Under the NLRA, the economics or profitability of the employer should be irrelevant.”

Livingston echoed concerns about the inherent conflicts presented by the limited jurisdictional reach of an NLRB finding that student-athletes are statutory employees. “[B]ecause most major college football programs are part of public institutions, the NLRB has statutory jurisdiction over only 17 of the roughly 120 colleges and universities that play major college football,” he noted. “In asserting jurisdiction, the NLRB’s rules would apply to these teams in ways inapplicable to more than eighty-five percent of their intercollegiate competitors. And those remaining 100 or so public institutions are subject to, where such laws exist, a variety of conflicting state statutes as to whether or not their public universities’ student-athletes could organize and, if so, over what subjects they could bargain collectively. The resulting patchwork of laws, differing collective bargaining agreements, and uneven terms governing student athletes would be unworkable,” Livingston testified.

Citing too the NLRB’s recent Specialty Healthcare decision and the agency’s nod to smaller, separate bargaining units, Livingston asserted, “[w]ith separate offensive and defensive coordinators, position coaches, playbooks, and game plans, a college would face an uphill battle in meeting its burden of proving that the remainder of the football team share an overwhelming community of interests if a labor union seek to represent just the team’s offense or defense. Likewise, offensive linemen, defensive backs or quarterbacks each may share their own separate community of interests. And because unions petition for bargaining units where they believe they can win an NLRB election, these types of units are inevitable.”

In a footnote to his prepared testimony, Livingston pointed out the broader implications of student-athletes as employees — including their corresponding rights under Title VII, the FLSA, the ADA, ERISA, and state laws. Among the myriad legal issues that would arise under these other employment statutes: “[A]are student-athletes ‘on the clock’ and entitled to compensation if a coach requires attendance in class or at study halls? If a player is late for practice and as a penalty must spend time in an extra study hall session, is that time compensable? Under the Americans with Disabilities Act, could a player with a doctor’s note be excused from practice, but still expect to play in the game? During the break between the Spring and Fall semesters when athletes are no longer receiving their scholarships, are they entitled to unemployment compensation? Could the EEOC challenge a university’s scholarship offers and acceptances under a disparate impact analysis? Could the EEOC challenge a failing grade in a class under disparate treatment analysis? If they are considered employees, would student athletes’ scholarships be considered taxable income that is subject to withholding and income tax, and if so, would it make a college education unaffordable for many current scholarship recipients?”

A “price-fixing cartel.” Andy Schwarz, a partner at OSKR, LLC, and economist who specializes in antitrust economics, approached the issue from a different angle. Noting the panel’s focus on the “unintended consequences of unionizing college football,” he asserted that “the biggest threat to college sports from collective action is the current price-fixing cartel called the NCAA. By price-fixing, I am focused on how the 351 Schools in Division I stifle healthy economic competition through collusion to impose limits on all forms of athlete compensation.”

“College football is big business,” Schwarz said, noting that “individual [college] athletic departments regularly generate more revenue than almost all NHL and NBA teams.” Yet, he asserted, the NCAA deliberately coined the term “student-athlete” specifically “to dodge legal responsibilities for athlete safety and medical expenses. In time, that term has also served to disguise its economic collusion.” The NCAA “devotes millions to investigate suspicions of possible market compensation while denying it has any legal responsibility to protect the heads or bodies of its athletes,” Schwarz said.

He also noted that 40 to 45 percent of all college football players “come from families with low enough means that they receive Pell Grants” and that, in some cases, “athletes qualify for food stamps.” However, Schwarz continued, “[b]ecause most athletes do not go on to work in the NFL, the current system denies more than 95 percent of college football players access to the four best earnings years of their sports careers.”

“Something far more valuable.” Bernard M. Muir, Stanford University’s athletic director, acknowledged that “the vast majority of our student-athletes will not go on to earn a living in professional sports careers.” But, he noted, while Stanford student-athletes do not receive salaries, “they receive something far more valuable — and that is an academic experience of the very highest quality, funded in many cases by scholarship support, that rigorously prepares them for leadership and success in the world.” Muir asserted that Stanford’s student-athletes are, first and foremost, students, and the beneficiaries of a rigorous, top-notch academic program. A number of Stanford student-athletes have gone on to earn master’s degrees, he noted.

A means to an end. “I was not an employee… nor did I want to be one,” said Patrick C. Eilers, a former student-athlete at Notre Dame and currently managing director of Madison Dearborn Partners. “I also worry about the unintended consequences of being deemed an ‘employee’ and what unionization could bring to college athletics.”

Nonetheless, he observed that the players’ impetus to join a union was “a means to an end, a vehicle if you will, to implement improvements to our collegiate athletic system.” And he supported the underlying goals that prompted their drive to seek collective bargaining — including mandated four-year scholarships, health and insurance benefits, stipends, and transfer eligibility. “I believe there is little debate about the necessary logical improvements,” Eilers said. “I believe the debate today should instead be focused on seeking the most effective vehicle to cause the implementation of these improvements.”

“Units of production.” Rep. George Miller, the House labor committee’s senior Democrat, responded to the hearing testimony from his traditionally pro-labor vantage point. “By banding together and bargaining, these athletes can win the kinds of things union workers have demanded and won across the country, including a say about avoiding serious injury on the job, medical benefits and security if something does go wrong, meaningful input into how they balance their work — in this case football — with their academic needs and other responsibilities, and the respectful treatment and care they so richly deserve,” Miller said. “Our nation’s talented college athletes have become units of production that are over-scheduled and over-worked, left without safeguards for their health and safety, and encouraged to put their education on a backburner in favor of their success on the field.”

More harm than good. “There is no question the legitimate concerns of student athletes must be addressed, but doing so at the collective bargaining table will do more harm than good,” said Kline. “Instead of treating student athletes as something they are not,” he continued, “let’s help ensure the real challenges they face are resolved… We share the concerns of players that progress is too slow, but forming a union is not the answer.”

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Employee pushes back against employer requirement that workers sign noncompetition agreements

May 1st, 2014  |  Ron Miller  |  Add a Comment

It is not an uncommon practice in today’s workplace for an employer to require employees to sign some sort of non-compete, non-disclosure, non-solicitation, or confidentiality agreement to protect its competitive position should a former employee secure employment with a competitor. However, in a recent case, Darr v Roberts Marketing Group, LLC, an employee challenged an employer’s requirement that he sign a noncompetition agreement as a condition of continued employment. More importantly, although the employee ultimately voluntarily left his employment, a Missouri Court of Appeals determined that he was still entitled to unemployment benefits because his resignation was with good cause attributable to the employer.

Noncompete agreement as condition of employment. The employee sold life insurance for his employer. Several months after he was hired, the employer announced that it would be implementing a new noncompete agreement for its employees. In addition to containing confidentiality and noncompetition provision, the new agreement required employees to pay all of the employer’s costs, expenses, and reasonable attorney’s fees required to enforce the agreement. There was also a waiver of any right to a jury trial; a severability clause; and a waiver of the application of the rule of strict construction against the drafter of the agreement. All employees were required to sign the noncompete agreement, and it was a condition of employment.

In a meeting with his direct manager and the company’s VP of sales, the employee stated that he was not inclined to sign the agreement and that he needed to speak with his attorney. In view of the employee’s hesitancy to sign the agreement, he was told that he could transfer to a marketing position as an accommodation. However, he declined because it would involve a less lucrative compensation structure. Moreover, eventually every position in the company would be required to sign the noncompete agreement. Ultimately, the employee was given a deadline in which to turn in the agreement. After the employee met with an attorney, he was advised that the agreement was unconscionable and told not to sign it.

When the employee next reported to work, he was escorted to the HR office. Fearing that he might be arrested for trespass, the employee voluntarily left the premises. He was later told that the employer regarded his leaving as job abandonment. The employee did not contact the employer or return to work.

Unemployment claim. But the employee did file a claim for unemployment benefits. Initially, a deputy determined that the employee was not disqualified from receiving benefits because he was not discharged for misconduct. Specifically, the deputy found that the employee had been discharged because he declined to sign the noncompete agreement and that his employer had changed his conditions of work. However, an appeals tribunal reversed the deputy’s determination, finding that the employee voluntarily left his employment without good cause attributable to the employer. The Labor and Industrial Relations Commission adopted the decision of the appeals tribunal. This appeal followed.

On appeal, the employee challenged the Commission’s determination that he left his employment voluntarily and subsequently disqualifying him from receiving unemployment benefits. The Missouri appellate court agreed with the employee that substantial record evidence compelled a finding that he left his employment to avoid having to sign the employer’s noncompete agreement, which, under the facts of this case, constituted good cause attributable to the employer.

Under Sec. 288.050.1(1) RSMo, a claimant is disqualified from receiving unemployment benefits upon a showing that the claimant left work voluntarily without good cause attributable to the work or the claimant’s employer. A claimant leaves work voluntarily if he leaves of his own accord rather than being discharged, dismissed, or subjected to a layoff. The determinative question is whether the employer or employee committed the final act that severed the relationship.

Good cause attributable to employer. Although the appeals court found that the employee left his employment voluntarily, the question was whether he had good cause, attributable to the work or the employer, remained open. Good cause has been interpreted to mean those circumstances that would cause a reasonable person in a similar situation to leave the employment rather than to continue working. Moreover, the employee must prove that he made an effort to resolve the troublesome situation before terminating his job.
In this instance, the appeals court determined that the message communicated to the employee was that February 1, 2013, was his last day to execute the agreement if he wished to keep his job. The objective reasonableness of the employee’s decision to leave his employment must be evaluated in terms of what he knew and what he reasonably believed on the morning of February 4, 2013, when left the employer’s premises for the last time.

Moreover, the court found that the Commission’s finding dramatically understated the scope and coverage of the agreement. Here, the proposed noncompete agreement was presented to the employee with an ultimatum that it be signed within a very short period of time, affording the employee a limited opportunity to review the agreement and seek legal advice. Further, the agreement would have placed numerous additional restrictions and burdens upon the employee’s ability to find and maintain new employment after leaving the employer.
The agreement would have required the employee to abide by its terms for at least three years, with the potential for up to three additional years from the date of any violation. Moreover, by its terms the agreement would have applied throughout the country and would have applied broadly to the employee’s future endeavors. Additionally, the employee would have been potentially liable for damages in contract far exceeding the ordinary measures of damages, as well as attorney’s fees and costs.

While the court did not expressly determine that the employment was unconscionable, it made clear that it had serious reservations about its enforceability. Nevertheless, the court concluded that applying the objective standard of a reasonable person confronting the same situation, here employee was faced with “external pressures so compelling that a reasonably prudent person would be justified in terminating his employment.” Whether the agreement itself was unenforceable remains for another day in a direct challenge to its provisions. Here, the employee met his burden of establishing both the reasonableness and the good faith of his actions.

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Applying conduct rules to an employee with a disability: The case of the potato chip “thief”

April 29th, 2014  |  Kathy Kapusta  |  1 Comment

Almost every organization has rules that govern workplace behavior. Typically, consistency in the application and enforcement of work rules is an employer’s best protection against allegations of discrimination. But what happens when an employee with a disability violates a conduct standard? Can you hold that individual to the same standard that you apply to all other employees?

In an April 2014 decision, a federal district court in California found that a diabetic employee who was fired for violating Walgreens’ neutral, uniformly applied “anti-grazing” policy when she took a $1.37 bag of potato chips without paying for it — while allegedly in the midst of a hypoglycemic attack — can take her disability discrimination and failure to accommodate claims to a jury. In that case, the court observed that under Ninth Circuit law, misconduct resulting from a disability has to be considered as part of the disability.

The “theft.” Although Walgreens allowed the employee to carry candy with her in case of low blood sugar, on one occasion, she allegedly suffered a hypoglycemic attack while returning items in a shopping cart to the shelves. Because she did not have any candy with her, she opened a bag of chips from the cart and ate some of them. When she started feeling better, she purportedly attempted to pay for the chips at the cosmetic counter, where employees paid for their items, but no one was there. She then put the chips under the counter by her register, where they were later discovered by an assistant manager. She was subsequently terminated for violating the company’s policy against employee theft.

Reasonable accommodation. Walgreens, which estimated that it lost more than $350 million per year as a result of employee theft, argued that it strictly enforced its policy prohibiting employees from eating food merchandise without first paying for it. It also asserted that it was unreasonable to require an employer to accommodate employee theft. In support of its position, the company relied on Raytheon Co. v Hernandez, in which the Supreme Court addressed whether the ADA conferred preferential rehire rights on disabled employees lawfully terminated for violating workplace conduct rules. Though the Supreme Court, in that case, held that an employer’s application of its neutral no-rehire policy was, by definition, “a legitimate, nondiscriminatory” reason under the ADA, the court here observed that the decision did not directly address whether an employer under the ADA is required to make a reasonable accommodation with respect to an employee whose disability caused her to violate her employer’s workplace rule.

Consistent with business necessity. Walgreens also cited to the EEOC’s own guidance, specifically Question 35 in “EEOC Enforcement Guidance on Reasonable Accommodation and Undue Hardship 915.002,” in which the agency stated that “an employer never has to excuse a violation of a uniformly applied conduct rule that is job-related and consistent with business necessity. However, in the court’s opinion, Walgreens failed to address what was “consistent with business necessity” in the context of an employee suffering a hypoglycemic attack. Nor did it establish that she was “stealing” where she testified that she attempted to pay for the product but was unable to do so because no one was at the register.

The company’s attempt to rely on additional EEOC guidance — “Applying Performance And Conduct Standards To Employees With Disabilities,” in which the agency advised that if an employee’s disability caused a violation of a conduct rule, the employer could discipline the individual if the rule was job-related and consistent with business necessity — was similarly unsuccessful. Here, the court noted that what “Walgreens fails to point out is that in that same guidance, the EEOC explains that ‘[t]he only requirement imposed by the ADA is that a conduct rule be job-related and consistent with business necessity when it is applied to an employee whose disability caused her to violate the rule.”

Critically, the court pointed out, the EEOC explained that whether an employer’s application of a conduct rule to an employee with a disability is job-related and consistent with business necessity may rest on several factors, including the manifestation or symptom of a disability affecting an employee’s conduct, the frequency of occurrences, the nature of the job, the specific conduct at issue, and the working environment. Thus, the agency qualified the concept of “business necessity” as it is applied to a particular employee. Accordingly, the court found that the guidance did not establish that accommodating the employee’s conduct here was unreasonable as a matter of law. Whether it was a business necessity to treat the employee the same as other employees who had been fired under the anti-grazing policy when she claimed that taking the chips was necessitated by her medical condition was a question of fact for the jury, the court concluded.

Disability discrimination. As to the EEOC’s disability discrimination claim, Walgreens contended that there was no connection between the employee’s disability and her termination for theft. Rejecting this argument, the court pointed out that it was “simply a reiteration of Walgreen’s position” that the employee should be considered without respect to her disability, which was contrary to Ninth Circuit precedent.

Also rejected by the court was the company’s argument that it proffered a legitimate, nondiscriminatory reason for the employee’s termination — violation of its neutral, uniformly applied anti-grazing policy. Here, the court pointed out that in the Ninth Circuit, reliance on disability-caused misconduct is by its very nature not a legitimate nondiscriminatory reason under the ADA. In this case, the alleged misconduct that formed the basis of her termination was the taking of the chips without first paying for them, an act the employee claimed was caused by her disability. Walgreens thus failed to allege any misconduct that was unrelated to her disability, the court stated.

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USSCt: Michigan’s voter-approved affirmative action ban not unconstitutional as to university admissions policies

April 23rd, 2014  |  Cynthia L. Hackerott  |  Add a Comment

In a 6-2 decision, the U.S. Supreme Court has ruled that Michigan’s voter-approved affirmative action ban is not unconstitutional as to university admissions policies, rejecting arguments that the ban violates equal protection by impermissibly burdening racial minorities. Although the case focused on the ban as it pertains to university admissions, the constitutional analysis could also be applicable to race-conscious decisions in state employment and the awarding of government contracts. Justice Kennedy wrote the plurality opinion, which was joined by Chief Justice Roberts and Justice Alito. The Chief Justice also filed a concurring opinion. Justice Scalia’s concurring opinion was joined by Justice Thomas. Justice Breyer also filed a separate concurrence. Justice Sotomayor filed a dissenting opinion, which was joined by Justice Ginsburg. Justice Kagan took no part in the consideration or decision of the case. (Schuette v Coalition to Defend Affirmative Action, April 22, 2014, to be reported at 97 EPD ¶45,054)

Initiative prompted by 2003 Supreme Court ruling. In November 2006, Michigan voters approved a ballot initiative, Proposal 2, to amend the state’s constitution to prohibit state universities, the state, and all other state entities from discriminating against or granting preferential treatment based on race, sex, color, ethnicity or national origin. The initiative impacts the state’s use of affirmative action in a number of areas, including employment, education and government contracting. The Michigan measure was largely prompted by a June 2003 decision in which the U.S. Supreme Court, in a 5-4 vote, upheld the University of Michigan’s consideration of race in its law school admissions policy (Grutter v Bollinger, 84 EPD ¶41,415). However, on that same day in a 6-3 decision, the Court held that the university’s use of race as a factor in its undergraduate admissions policy violated the U.S. Constitution (Gratz v Bollinger, 84 EPD ¶41,416). In the Grutter and Gratz cases, white students who claimed they were qualified but denied admission challenged the university’s law school and undergraduate admissions systems on equal protection grounds. The Court found that the law school’s policy was narrowly tailored to achieve the compelling state interest of a diverse student body, but that the undergraduate policy was not.

Sixth Circuit decision. The High Court’s ruling reverses an en banc Sixth Circuit decision that the voter-approved ban on government affirmative action in the state of Michigan, as it applies to race-conscious admissions policies in public colleges and universities, violated the Equal Protection Clause of the Fourteenth Amendment to the U.S. Constitution (96 EPD ¶44,674). The deeply divided Sixth Circuit ruled 8-7 that the measure violated equal protection under the political process doctrine because equal protection does not permit the kind of political restructuring that the measure affected.

Applying the U.S. Supreme Court’s decisions in Washington v Seattle Sch Dist No 1 (458 U.S. 457, 1982) and Hunter v Erickson (393 U.S. 385, 1969), the appeals court found that Proposal 2 unconstitutionally altered Michigan’s political structure by impermissibly burdening racial minorities. In the Sixth Circuit’s view, the Seattle and Hunter decisions clarified that equal protection of the laws is more than a guarantee of equal treatment under the law substantively. “It is also an assurance that the majority may not manipulate the channels of change in a manner that places unique burdens on issues of importance to racial minorities,” according to the Sixth Circuit. These decisions provide the benchmark for “when the majority has not only won in the political process, but also rigged the game to reproduce its success indefinitely.” They require courts to apply strict scrutiny to enactments that change the governmental decision-making process for determinations with a racial focus, the appeals court asserted.

Using a two-part analysis derived from Seattle and Hunter, the Sixth Circuit found that the Proposal 2 deprived minority groups of equal protection because it: (1) it has a racial focus, targeting a program that “inures primarily to the benefit of the minority,” and (2) it reorders the political process in Michigan in such a way as to place “special burdens” on racial minorities.

Voters may decide. However, Justice Kennedy concluded that there is no authority in the U.S. Constitution or in Supreme Court precedent for the judiciary to set aside state laws that commit to the voters the determination of whether racial prefer­ences may be considered in governmental decisions, in particular with respect to school admissions.

Prior to addressing the issue presented, Justice Kennedy noted that the principle that the consideration of race in admissions is permissible when certain conditions are met is not being challenged in this case. Rather, the issue before the court was whether, and in what manner, voters in states may choose to prohibit the consideration of such racial preferences. The decision by Michigan voters reflects the on-going national dialogue about such practices, he wrote.

Sixth Circuit misconstrued Seattle. As to that issue, the Sixth Circuit’s determination that Seattle controlled here erroneously extended Seattle’s holding to a case presenting quite different issues to reach a mistaken conclusion, Kennedy said.

Reviewing the relevant cases that preceded Seattle, specifically Hunter and Reitman v Mulkey (387 U.S. 369, 1967), the plurality opinion explained that those cases involved demonstrated injuries on the basis of race that, by reasons of state encouragement or participation, became more aggravated. In Mulkey, a voter-enacted amendment to the California Constitution prohibiting state legislative interference with an owner’s prerogative to decline to sell or rent residential property on any basis barred the challenging parties, on account of race, from invoking the protection of California’s statutes, thus preventing them from leasing residen­tial property. In Hunter, voters overturned an Akron ordinance that was enacted to address widespread racial discrimination in housing sales and rentals had forced many to live in segregated housing that was substandard and dangerous.

In Seattle, after the school board adopted a mandatory busing pro­gram to alleviate racial isolation of minority students in local schools, voters passed a state initiative that barred busing to desegregate. The High Court found that the state initiative had the practical effect of removing the authority to address a racial problem from the ex­isting decisionmaking body, in such a way as to burden minority in­terests of busing advocates then had to seek relief from the state legislature, or from the statewide electorate. According to Justice Kennedy, Seattle, like Mulkey and Hunter, is best understood as a case in which the state action had the serious risk, if not purpose, of causing specific injuries on ac­count of race.

Difficulties with Seattle rationale. Criticizing Seattle, Kennedy asserted that it went well beyond the analysis needed to resolve the case, establishing a new and far reaching rationale that where a government policy inures primarily to the benefit of the minority and minorities consider the policy to be in their interest, then any state action that places effective decisionmaking authority over that policy at a different level of government is subject to strict scrutiny.

That rationale, however, has no support in precedent, and it raises serious equal protection concerns, according to Kennedy. Citing Shaw v Reno (509 U.S. 630, 1993), he asserted that, in cautioning against impermissible racial stereotypes, the Supreme Court has rejected the assumption that all individuals of the same race think alike, but that proposition would be a necessary beginning point were the Seattle formulation to control. Other risks of adopting this formulation would include: (1) defining individuals according to race, which would impose a high risk of, inquiries and categories dependent upon demeaning stereotypes, classifications of questionable constitutionality on their own terms, and (2) determining the policy realms in which groups defined by race had a political interest, which would risk the creation of incentives for those who support or oppose certain policies to cast the debate in terms of racial advantage or disadvantage. Such analysis would have to be undertaken with no clear legal standards or accepted sources to guide the judicial decision. Moreover, adoption of the Seattle formulation could affect any number of laws or decisions, such as tax policy or housing subsidies, resulting in the validation, rather than discouragement of, racial division would be validated.

Specific injury lacking. In any event, the principal flaw in the Sixth Circuit’s decision was that in this case, there was no infliction of a specific injury of the kind at issue in Mulkey and Hunter and in the history of the Seattle schools, and there is no precedent for extending these cases to restrict the right of Michigan voters to determine that race-based preferences granted by state entities should be ended, the plurality stated. The Sixth Circuit’s ruling also calls into question other states’ “long-settled rulings” on policies similar to Michigan’s, Kennedy noted.

By approving Proposal 2 and thereby amending their state constitution, Michigan voters exercised their privilege to enact laws as a basic exercise of their democratic power, bypassing public officials they deemed not responsive to their concerns about a policy of granting race-based preferences. While individual liberty has constitutional protection, our constitutional system also embraces the right of citizens to speak and debate and learn and then, as a matter of political will, to act through a lawful electoral process, as Michigan voters have done here, Kennedy wrote. When hurt or injury is inflicted on racial minorities by the encouragement or command of laws or other state action, the Constitution requires redress by the courts, but such circumstances — which were present in Mulkey, Hunter, and Seattle — were not present here. Instead, the issue here was whether voters may determine whether a policy of race-based preferences should be continued.

Concurring opinions. The Chief Justice’s concurring opinion took issue with certain contentions of the dissent. “People can disagree in good faith on this issue, but it similarly does more harm than good to question the openness and candor of those on either side of the debate,” he wrote.

Justice Breyer agreed that the ban is consistent with the Equal Protection Clause, but for different reasons. Among other things, he noted that the constitution permits, but does not require, the use of the kind of race-conscious programs now barred by the Michigan Constitution. He also wrote that extending the holding of Hunter and Seattle to situations where decisionmaking authority is moved from an administrative body to a political one would create significant difficulties due to the nature of the administrative process. In addition, he noted that the principle underlying Hunter and Seattle runs up against a competing principle favoring decisionmaking through the democratic process.

Justice Scalia wrote that ban likely does not pass muster under the political process doctrine, but that the cases establishing the political process doctrine should be overturned because they are “patently atextual, unadministrable,” and contrary to the High Court’s traditional equal protection jurisprudence. The question here, asserted Scalia, is the same as in every case in which neutral state action is said to deny equal protection on account of race: whether the challenged action reflects a racially discriminatory purpose. In Scalia’s view, there was no such purpose here.

Dissent. In her dissent, Justice Sotomayor wrote that the plurality’s decision fundamentally misunderstands the nature of the injustice worked by the voter-approved ban, and “eviscerates an important strand of [the Court’s] equal protection jurisprudence.”

“The Constitution does not protect racial minorities from political defeat. But neither does it give the majority free rein to erect selective barriers against racial minorities,” she wrote.

“The political-process doctrine polices the channels of change to ensure that the majority, when it wins, does so without rigging the rules of the game to ensure its success,” she stated. But the plurality decision “discards that doctrine without good reason” and permits “the majority [of the voters in Michigan] to use its numerical advantage to change the rules mid-contest and forever stack the deck against racial minorities in Michigan.”

According to Sotomayor, “experts agree and as research shows” that race-sensitive admissions policies have made a difference in achieving educational diversity, and she asserted that the elimination of such policies has been harmful to minority students in Michigan and other states that have adopted similar bans.

“Without checks, democratically approved legislation can oppress minority groups,” she maintained, adding that judges “ought not sit back and wish away, rather than confront, the racial inequality that exists in our society.”

Similar ballot measures in other states. The Michigan initiative is similar to measures passed by voters in California (1996), Washington state (1998), Nebraska (2008), Arizona (2010), and Oklahoma (2012). Colorado, in contrast, became the first state to reject an anti-affirmative action ballot measure in the November 2008 election.

Other state bans. Affirmative action by the state has been banned to varying degrees in other states by means other than ballot initiatives. A New Hampshire law, which took effect in 2012, bans affirmative action in college admissions and employment, but does not address government contracting. In Florida, Executive Order 99-281 (1999) prohibits the use of affirmative action in state schools’ admissions policies, as well as in government employment and state contracting. Nevertheless, Florida has implemented a program designed to increase diversity in higher education without taking race into account. The “Talented Twenty” program guarantees all high school students who finish in the top 20 percent of their class acceptance to one of Florida’s public colleges and universities.

Recent Fisher decision. In 1996, the Fifth Circuit held, in Hopwood v Texas, that the University of Texas School of Law violated the Fourteenth Amendment by using race as a factor in deciding which applicants to admit. The Supreme Court declined to review that case. In 1997, Texas enacted the Top Ten Percent Law which mandates that Texas high school seniors in the top ten percent of their class be automatically admitted to any Texas state university.

In 2003 after the Supreme Court issued its Grutter ruling which abrogated Hopwood, Texas added the consideration of race among many factors to fill remaining slots at public universities. This practice was challenged in Fisher v University of Texas at Austin, a case addressed by the Supreme Court in June 2013 (97 EPD ¶44,850). There, the High Court ruled that the Fifth Circuit, in applying the narrow tailoring aspect of strict scrutiny as articulated in Grutter and Regents of Univ of Cal v Bakke (17 EPD ¶8402, 1978), erred in giving deference to the University of Texas at Austin’s assertion that the university’s way of considering race in its admissions process is constitutionally permissible. In the 7-1 decision, the majority held that strict scrutiny does not permit a court to accept a school’s assertion that its admissions process uses race in a permissible way without closely examining how the process works in practice. Thus, the Court remanded the case back to the Fifth Circuit with instructions to assess whether the university has offered sufficient evidence to prove that its admissions program is narrowly tailored to obtain the educational benefits of diversity. In November 2013, the Fifth Circuit court heard oral arguments addressing the issues on remand.

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