Author: James Hatch

Five deaf job applicants brought a class-action suit against UPS and claimed that the company had excluded them for consideration for jobs driving trucks with a gross vehicular weight of less than 10,001 pounds. The U.S. Department of Transportation requires that drivers of vehicles weighing at least 10,001 pounds pass certain hearing standards. Drivers who drive trucks less than 10,001 pounds are not subject to the regulation.

UPS argued that to prove disability discrimination, deaf workers were required to demonstrate an ability to drive safely.

The U.S. Court of Appeals for the 9th Circuit agreed that UPS violated the Americans With Disabilities Act by using qualification standards to screen out deaf individuals. The court held that UPS did not satisfy the burden of proof to show that application of a Department of Transportation hearing standard for jobs driving smaller vehicles was job-related and consistent with business necessity. Bates v. United Parcel Serv. Inc., 9th Cir. Ct. App., No. 04-17295 (10/10/06).

Impact: Employers are advised to carefully examine any broad qualification standards for particular jobs and to individually evaluate workers’ abilities to perform their jobs.

In a class-action suit, 170,000 Wal-Mart employees took the retailer to court, alleging they were entitled to compensation because they were routinely asked by management to work through their breaks and to perform work after they were off the clock.

Wal-Mart’s policy provided for a 15-minute paid rest break during any three-hour work period for all employees, as well as two 15-minute paid rest breaks and a 30-minute unpaid meal break in a six-hour work period.

Wal-Mart argued that it should not be held liable because several employees testified that they skipped breaks or cut their breaks short by their own choice. Wal-Mart contended that it strongly discouraged this practice and employees merely chose to do this on their own. Additionally, the company argued it had improved its systems to ensure all employees receive scheduled breaks.

A Pennsylvania state court jury found that Wal-Mart had failed to pay employees for off-the-clock work. The jury found that Wal-Mart had violated state wage and rest break regulations by requiring the employees to work through their breaks while off the clock. The jury awarded the class of employees $78.47 million. Braun v. Wal-Mart Stores Inc., Pa. Ct., No. 020303127 (October 13, 2006).

Impact: Employers are cautioned to train their managers on applicable regulatory standards dealing with meal and break times.

Workforce Management, December 11, 2006, p. 16 — Subscribe

Dr. Ronald Roger Ward, while employed as a head and neck surgeon at Kaiser Foundation Hospital in San Francisco, voluntarily requested a leave of absence to seek treatment for alcohol dependency. When he completed nine weeks of treatment, Ward returned to his position, and his staff privileges were restored following an evaluation period.

Later, Ward was asked by KFH to participate in a joint on-call arrangement with another KFH facility, but that facility denied Ward staff privileges on the grounds of his history of alcohol dependency.

Ward filed a complaint against KFH in U.S. district court, alleging that the denial of staff privileges violated the Americans With Disabilities Act and the Rehabilitation Act.

The district court dismissed the action. Initially, the district court agreed that Ward had sufficiently alleged that he was excluded from his position solely because of his alcoholism, thus meeting the causation pleading requirement for a Rehabilitation Act claim. However, Ward’s claim failed, according to the district court, because he did not allege that his alcoholism substantially limited any major life activity, such as work, or that KFH regarded him as disabled. Rather, according to Ward, his alcoholism “never interfered with his medical practice.”

The district court has since given Ward the opportunity to file an amended complaint. Ronald Ward v. Kaiser Foundation Hosp., N.D. Cal., No. 3:06-cv-02645 (8/31/06).

Impact: Employers should note that in order for a protected disability to exist, the plaintiff must address the specific condition which affords protection under the ADA and is the basis for the employer’s alleged violation of that law.

James Wallace began working for the San Diego Police Department in 1975, and in 1982 he joined the Naval Reserve. In 1991, Wallace served seven months in Operation Desert Storm with the reserve. After several tours of duty, Wallace alleged he was assigned to a police department division that was far from his house, and said he was given undesirable responsibilities.

    Upon his return from tours with the Naval Reserve in 1997, Wallace received a reprimand and disciplinary transfer for improper interaction with a female officer. When Wallace returned from another duty tour, he received a “below standard” evaluation and was placed on a 90-day performance review. He later received a second below-standard evaluation. Before he left for a deployment to Bosnia, Wallace was asked to provide additional documentation related to his reserve drill training.

    While he was on deployment, the San Diego Police Department in 1999 began disciplinary action against Wallace for unauthorized teaching at the police department’s academy and for his alleged failure to provide documentation relating to his reserve drills. Another investigation focused on Wallace’s failure to notify his supervisor of his absence for reserve duty. Termination proceedings against him began, but were later rescinded. Wallace was transferred to a station near his home and received a further appraisal critical of his performance. He resigned after a citizen filed a discrimination complaint against him.

    A jury awarded Wallace $256,800 because the police department had retaliated against him for his exercise of military leave rights protected by the Uniformed Services Employment and Re-employment Rights Act. The district court overturned that verdict, and Wallace appealed to the U.S. Court of Appeals for the 9th Circuit in Pasadena, California.

    The 9th Circuit reinstated the jury’s verdict because “Wallace presented evidence of a continuing pattern of hostile and discriminatory conduct.” Wallace v. San Diego, 9th Cir., No. 03-56552 (8/25/06).

    Impact: Employers are advised to carefully evaluate employee rights under USERRA.

Jane Doe was a 16-year-old ice cream “scooper” at the company’s store. Matt Nayman, her 25-year-old shift supervisor, regularly “hit on” Doe and other teenage girls in the ice cream parlor. Nayman groped, kissed, grabbed butts, hugged and touched the girls’ breasts. He also invited the girls to his apartment, and had sexual intercourse with two of them.

    When Doe, one of the girls who had sex, sued for sex harassment, the company argued that the alleged harassment was consensual and, hence, Doe welcomed Nayman’s sexual advances.

    Although recognizing that the age of consent is different in different states (in Illinois Nayman committed statutory rape–that is, intercourse with an underage person), the U.S. Court of Appeals for the 7th Circuit in Chicago held that consent to sexual relations with a co-worker or supervisor is not a defense in a Title VII suit for sexual harassment brought by a plaintiff who was underage.

    As the 7th Circuit recognized, the fact that Nayman was often the only supervisor in the ice cream parlor and that the workers he was supervising were mostly inexperienced teenagers created a risk of harassment by him that required his employer to take greater care. This was particularly so since other shift supervisors were aware of Nayman’s sexually aggressive behaviors with teenage ice cream scoopers. Doe v. Oberweis Dairy, 2006 U.S. App. LEXIS 18945 (7th Cir. July 28, 2006).

    Impact: Particularly where minors are employed in the workplace, employers are cautioned to take normal preventive steps, including training, to prevent sexually harassing conduct.

When hired by Elite Logistics Inc. of Kansas City, Kansas, in August 2001, Ramon Zamora presented an alien registration card, his Social Security card and a signed I-9 form. He had become a legal permanent resident in 1987. In 2002, learning that the INS might inspect its premises, Elite checked and found problems with the Social Security numbers of 35 to 40 employees, including Zamora.

    On May 10, 2002, Zamora’s supervisor gave him 10 days to provide documentation to confirm that he was authorized to work in the U.S. On May 22, Zamora was suspended. The same day, Zamora gave Elite an INS naturalization application and a Social Security Administration earnings record, but there remained a question because the Social Security number had been used by someone else. When Elite finally offered to reinstate Zamora, he demanded an apology, which the company was unwilling to give. He was then terminated.

    After Zamora filed a lawsuit, alleging that his termination violated Title VII of the Civil Rights Act, a U.S. district court dismissed his claims. On appeal, the U.S. Court of Appeals for the 10th Circuit in Denver held that Zamora’s claims could proceed to trial.

    Given that Zamora had provided the information “a mere” nine months before and had provided his naturalization certificate the day he was suspended, and that his supervisor told him, “Just get the hell out of here” when asked to apologize, “a jury considering the entire context could determine that [there] was evidence of bias.” Zamora v. Elite Logistics Inc., 10th Cir., No. 04-3205 (6/5/06).

    Impact: Employers are advised to afford employees reasonable opportunity to correct discrepancies in their employment eligibility documentation when questions arise.

Workforce Management, August 14, 2006, p. 11 —Subscribe Now!

Robert Dark began working for the Road Department of Curry County, Oregon, in 1985, operating heavy equipment and vehicles. Diagnosed with epilepsy at age 16, Dark controlled his condition with medication, but still experienced occasional seizures.

    On January 15, 2002, before reporting to work, Dark experienced an “aura,” which typically preceded an epileptic seizure by an hour or more approximately half of the time. Dark failed to tell anyone at work about the possibility of his suffering from a seizure, and he fell unconscious because of a seizure later that day while driving a truck at work. Although nobody was injured, a doctor retained by the county to examine Dark concluded that his condition imposed limitations on Dark’s ability to do his job.

    The county fired Dark, stating that he could not perform the essential functions and duties of his position, and that his continued employment posed a threat to the safety of others. Dark sued the county under the Americans With Disabilities Act.

    Reversing the federal district court’s dismissal of his claim, the U.S. Court of Appeals for the 9th Circuit in Portland found that factual issues existed as to whether the county could have reasonably accommodated his condition, such as by a temporary reassignment or medical leave. Thus, Dark was entitled to a trial on his claim. Dark v. Curry County Road Dep’t, 9th Cir., No. 04-36087 (7/6/06).

    Impact: Employers are advised to always consider reasonable accommodations that may permit the continued employment of protected disabled employees.

Workforce Management, July 31, 2006, p. 11 — Subscribe Now!

In 2004, California passed legislation mandating that supervisors of public-and private-sector employers or contractors with 50 or more employees receive sexual harassment training every two years. The California Fair Employment and Housing Commission’s latest proposed interpretative regulations of the law were released June 30, 2006.

    The proposed regulations cover part-time and temporary as well as full-time employees. “There is no requirement that the 50 employees or contractors work at the same location or all work or reside in California,” nor must the supervisors be located in California “so long as they directly supervise California employees.” Thus, employers and contractors who engage even one employee in California would be required to give direct supervisors of that employee two hours of sexual harassment training every two years.

    In the case of Web-based training or e-learning, the proposed regulations also require that the program be interactive and provide the trainees with the opportunity to have their questions answered with a direct link or directions on how to directly contact their trainers. Details of the proposed regulations for California Government Code Section 12950.1 can be reviewed online at http://www.fehc.ca.gov/pub/harassment _training.asp.

    Impact: Employers with any operations within California are advised to review this law and its regulations, and harassment training of supervisors and all other employees everywhere is always recommended.

Workforce Management, July 31, 2006, p. 11 — Subscribe Now!