August 2006 SBH Quarterly Newsletter
PDF FormatEmployment Case Law Update
Focus on Disability discrimination.
Federal and state laws provide protections for disabled individuals,
including protections in the realm of employment. The federal law, the
Americans with Disabilities Act (ADA), 42 USC 11201 et seq. applies to most
employers, with a minimum requirement of 15 or more employees. State laws in
Oregon and Washington apply to an even broader category of employers. The
ADA and state laws require employers to make reasonable accommodations for
employees with disabilities. Litigation often involves a dispute over the
threshold question of whether an employee is disabled and thus entitled to
the protections of the law. Oregon and Washington laws have not always
agreed with the ADA on what “disability” means. The highest courts of both
states have issued recent decisions addressing this aspect of disability
laws.
Who is disabled in Washington? State court adopts federal definition.
In McClarty v. Totem, Electric, 137 P.3d 844 (Wash. 2006), the Washington
Supreme Court held that the WLAD definition of disability should be
interpreted consistent with the ADA. Likely, this holding will aid employers
by clarifying that there is one definition for disability. The nagging
question this decision raised is what impact this will have on temporary
disabilities.
The federal ADA defines a disability as "a physical or mental impairment
that substantially limits one or more of the major life activities," a
record of impairment, or being regarded as having such an impairment.
Regulations further define impairment and substantial limitations by
weighing the duration and permanence of impairment. Under Washington Law
against Discrimination (WLAD), "the presence of sensory, mental, or physical
disability" is defined as abnormal conditions. Historically, a temporary
disability--such as the disability while healing from a broken hip--also
receive protection under the WLAD.
The treatment of temporary disabilities has been one of the key differences
between Washington law and the ADA. The permanence of impairment is a
component of the definition of disability in the ADA. Although the court has
not yet weighed in on the issue, Washington’s adoption of the federal
definition could very well mean that temporary disabilities will lose their
protection under Washington law.
Who is disabled in Oregon? Medical marijuana decision.
The Oregon Supreme Court recently issued its decision in Washburn v.
Columbia Products, Inc., 340 Or 469 (2006) addressing whether an employer
had to reasonably accommodate an employee's use of medical marijuana. The
employee (a millwright) used the marijuana off-the-job for leg spasms that
impaired his ability to sleep. When he tested positive for marijuana during
a drug test, he was terminated under the employer's zero-tolerance drug
policy. The Court of Appeals held the employer had to accommodate off work
medical marijuana use under Oregon disability laws.
The Oregon Supreme Court reversed, holding the employee was not disabled
under Oregon’s disability laws. With the use of mitigating measures
(medication), the employee was not substantially limited in a major life
activity. Because the employee was not disabled, the employer had no duty to
accommodate him. Thus, the Oregon court held that under Oregon law, like
under the ADA, successful use of mitigating measures may take an employee
out of the category of disabled.
The court largely side-stepped the question the Court of Appeals raised:
Does an employer have to accommodate medical marijuana use under state
disability law? The US Supreme Court has ruled that marijuana is an illegal
substance under the Controlled Substances Act and an employer need not
accommodate its use. Oregon's Medical Marijuana Act, however, makes the
medical use of marijuana legal under state law. In his non-binding
concurrence, Judge Kistler explained that the federal law and Oregon's law
conflict when an employer is asked to accommodate marijuana. He concluded
that because the state cannot affirmatively require employers to accommodate
what federal law prohibits, employers do not have to accommodate medical
marijuana use. Although this discussion occurred in concurrence and is not
precedent, the Washburn Court of Appeals decision has been overruled,
suggesting that when asked to address the issue, the Oregon Supreme Court
will follow many other states in finding employers do not have to
accommodate medical marijuana.
Other Significant Federal Cases.
High court sides with workers in retaliation case.
Retaliation encompasses a broad scope of actions, not only the substantial
employer actions prohibited under discrimination laws.
The United States Supreme Court, in what is being called a decision with
far-reaching implications, held an employee need not show a significant
employer action to establish retaliation under Title VII of the Civil Rights
Act. In Burlington Northern v. White, 126 S. St. 2405 (2006), a rail yard
employee, who usually operated the forklifts, reported sexual harassment by
her supervisor. The supervisor was disciplined but the employee was also
shifted to a job position that did not include driving forklifts, which were
under the supervision of the accused supervisor. The new position, while in
the same job class, required more general labor than the position in which
she primarily drove a fork lift. The employer argued that the employee did
not face an adverse employment action because her wages and classification
remained the same. The Court refused to require evidence of a significant
action and found the job change, which was more physically demanding, could
be considered retaliation. The Court drew a distinction between
anti-discrimination provisions that refer to hiring, firing and the terms
and conditions of employment, and anti-retaliation provisions that broadly
prohibit “discrimination” because of a report of harassment. To effectuate
the wording and intent of the retaliation provisions, the Court held any
change could be found sufficient to plead retaliation claims. This decision
is anticipated to allow employees to establish more readily a retaliation
case against the employer.
Disability and direct threat.
Employers operating heavy equipment or commercial vehicles are faced with
tough decisions when an employee reveals a chronic condition such as
diabetes, seizure disorder, or hypertension. Safety risks to others and the
employee must be measured against protections for those with disabilities.
In Dark v. Curry County, 451 F.3d 1078 (9th Cir. 2006), the Ninth Circuit
held an employee had presented a factual claim under the ADA concerning
whether his termination was motivated by his disability.
Dark had epilepsy and one to two hours before a seizure usually experienced
an aura or nervous jerk. He worked as a maintenance and construction worker
and drove heavy equipment. One morning he experienced an aura but decided to
go to work. While driving a county truck, he experienced a seizure. Injury
was prevented by the slow speed of the vehicle and the actions of his
passenger who took control of the vehicle. After a medical examination and
Dark’s admission to having had an aura, he was terminated. Both
administrative and trial court forums dismissed his claim of disability
discrimination. The Ninth Circuit reversed, finding the county’s reason for
termination based on misconduct (driving with known safety risk) was not
legitimate because the conduct directly arose from the disability. Dark
offered evidence that the reason was pretextual, including evidence that
other maintenance workers had not been terminated in similar situations.
For employers, it is key to act before an accident or incident arises. Jobs
that could pose hazards should be analyzed and the essential skills for
those jobs should be outlined in job descriptions. Be able to articulate
each job requirement and why it is a necessary part of the job. This basic
step will assist in determining qualifications for the job, deciding whether
a disability prevents an employee from performing essential functions, and
providing an informational source for physicians performing fitness-for-duty
examinations.
Make the women wear makeup and the men shave.
A former employee at Harrah’s casino in Las Vegas brought a claim of sex
discrimination under federal law. Harrah's required her to wear makeup to
keep her job. The Ninth Circuit in Jespersen v. Harrah's Operating Co.,
Inc., 444 F.3d 1104 (9th Cir. 2006), upheld the dismissal of the lawsuit,
finding the "appearance standards" imposed burdens on both men and women and
thus were not discriminatory. Employers should be cautious in adopting new
gender-specific appearance standards in their workplaces based on this
decision. Much of the employee’s failure to prevail appears to be due to
lack of evidence. The court stated there was no evidence that the standards
put any significant burden on women over men, which might ignore the costs
of cosmetics. In addition, the employee did not allege sex stereotyping,
which may have impacted the decision. Under Oregon law, it is illegal to
discriminate against employees because of "sexual identity" and thus making
a man wear pants or a woman wear earrings might be found discriminatory
under state law without reasonable business justification for the
requirement.
<< Newsletter Page