March 8, 2002

Supreme Court Sets Low Bar for Pleading Discrimination

Holland & Knight Alert
Howard Sokol


Ability to Interact with Others Ruled Major Life Activity Under ADA

Employee with bipolar disorder who was fired for her "confrontational and irrational behavior with her supervisor" and her "incessant conflict with her fellow employees" may proceed to trial on ADA claim that former employer perceived her to be substantially limited in her "ability to interact with others," a federal judge in New York has ruled. Denying the employer’s motion for summary judgment on the plaintiff’s "regarded-as-disabled" claim, the court held that the ability to interact with others is a "major life activity" under the ADA, thereby adding to the split among courts on the question of whether the ability to interact with others is a major life activity. The court explained that it would require evidence that an employee’s relations with others were characterized on a regular basis by severe problems like "consistently high levels of hostility, social withdrawal, or failure to communicate when necessary," in order to distinguish from a cantankerous or difficult individual. Here, the court concluded that the employer’s awareness of the employee’s bipolar disorder, and reference to her as "extremely emotional" and "irrational" and the suggestion that she see a psychiatrist created a triable issue of fact. This case highlights the importance of considering ADA implications before terminating employees for objectionable workplace behavior.


Unfair Labor Practice Strike Costs Employer

Frederick D. Braid

The Fourth Circuit’s (NC, SC, VA, WV) recent enforcement of an NLRB order reinstating unfair labor practice strikers in RGC Mineral Sands v. NLRB underscores the distinction between economic and unfair labor practice strikes. The NLRB found that the employer had made retaliatory, undesirable shift assignments when its employees refused to agree to shift schedule changes that it had proposed. Even though the assignments were not in violation of any provision in the collective bargaining agreement, they were nonetheless found to have been motivated by an intention to retaliate against the employees for their union activities. The ensuing strike was found to have been at least partially motivated by the employer’s unfair labor practice, and, consequently, the employer was precluded from hiring permanent replacements and had an obligation to reinstate any striker who offered to return to work. Failure to reinstate unfair labor practice strikers, in turn, created a back pay liability from the time of their offer to return to work to their actual reinstatement.


State University Employee Has No Expectation of Privacy

Christopher R. Nolan

The Supreme Court declined to review an Alaska Supreme Court decision that held university police did not violate an employee's Fourth Amendment rights (unreasonable search and seizure) when they installed a video camera in the ceiling above her desk without a warrant or the employee’s knowledge and consent. The cameral installation followed a tip from a co-worker that the employee was stealing money, and the university police subsequently caught the employee on videotape taking money from the university cash bag. The Court found that the employee lacked a reasonable expectation of privacy in her 20 foot by 12 foot workroom because it was accessible to co-workers, who were seen on the video steadily flowing in and out of the suspect employee's workspace. Further, the Alaska Court noted that individuals employed in high security environments do not have a reasonable basis to assume that their conduct on the job should be treated as "private."


Supreme Court Sets Low Bar for Pleading Discrimination

Howard Sokol

The Supreme Court, in Swierkiwwicz v. Sorema N.A., settled a split among the circuit courts of appeal concerning to what extent a plaintiff in an employment discrimination case must plead specific facts regarding his or her claim in the complaint in order to survive a motion to dismiss for failing to state a cause of action. In resolving the split unfavorably from the employer’s vantage, the Court held that a complaint in an employment discrimination case does not have to contain specific facts that establish a prima facie case of discrimination under McDonnell Douglas, an earlier Supreme Court case that sets the evidentiary standard, not the pleading requirements, in such a case. In this case, the plaintiff was hired at the age of 43, demoted when he was 49, and fired when he was 51. In a brief complaint the plaintiff alleged, among other things, age discrimination under the ADEA. The only fact pled in the complaint supporting the allegation that the plaintiff was discriminated against on the basis of age was one comment made by the company president regarding his intention to "energize" the company. The Court’s refusal to dismiss on such bare allegations will make it very difficult for employers to dispose of cases at the earliest stages of litigation and avoid costly and time-consuming discovery.


The Victims of Terrorism Tax Relief Act of 2001

Under the recently enacted Victims of Terrorism Tax Relief Act of 2001, death benefits paid by the employer due to the unexpected death of the employee are excluded from the recipient's gross income. For example, the exemption applies to extra-ordinary death benefits paid by an employer to families of its employees who died as a result of the destruction of the World Trade Centers, but does not apply to death benefits that would have been paid if the employee had died other than as a victim of the September 11, 2001, terrorist attack. Self-employed persons are treated as employees for purposes of the Act. A "specified terrorist victim" is defined as anyone who dies from injuries incurred during the Oklahoma City bombing in 1995, the September 11, 2001, terrorist attacks, or from anthrax contracted between September 11, 2001, and December 31, 2002. The exclusion for employer-provided death benefits is in addition to the federal income tax refund for income taxes paid (or payable) by these individuals for the year of death and the preceding year. Families of victims of the Oklahoma City bombing have until January 23, 2003, to file claims for refunds under the Act. 


Employee Awarded 18 Years of Front Pay for FMLA Violation

An award of more than $800,000 has been approved by the Louisiana Court of Appeals for a laboratory technician who was fired for violating company policy while he was on sick leave, recovering from surgery. Holding that the employer violated the employee's FMLA rights, the Court allowed back pay and liquidated damages, doubling the back pay. In addition, it approved an award of 18 years' front pay, reasoning that the technician's employment opportunities were diminished because of the manner in which he was terminated. Although the circumstances of this case are unusual, the decision highlights the importance of considering an employee's rights under the FMLA when imposing discipline on an employee who is on protected medical leave.


Broader Disability Protection in Massachusetts and Other States

A federal jury, applying Massachusetts disability law, awarded more than $1,000,000 to a former police cadet who was dismissed by the Boston Police Department in 1997 because of a hearing impairment. Plaintiff was born with a severe hearing impairment, but it was corrected to within normal limits with the use of hearing aids, which he has worn since he was three years old. Although the U.S. Supreme Court has held that the ADA does not protect employees with correctable impairments, the Massachusetts Anti-Discrimination Law does protect employees with impairments that can be corrected through the use of devices or medications. This case underscores the importance of reviewing both state and federal law before making an adverse employment decision affecting an employee with an alleged disability. Many state laws, including those of California, Massachusetts, and New York, for example, define disability more broadly than the standard set by the Supreme Court for the ADA.

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