Summer 2008 SBH Quarterly Newsletter
PDF FormatEmployment Law Update
By Aaron Bass
This past year, several U.S. Supreme Court, Ninth Circuit and Oregon State cases were decided that impact the employer/employee relationship. Although most of the significant cases were primarily procedural in nature, all have a direct or indirect effect on the way employers conduct business in Oregon and Washington.
Discrimination
Lanier v. City of Woodburn, 518 F.3d 1147 (9th Cir 2008).
Plaintiff applied for a job as a library page with the City of Woodburn. The City then rescinded the offer because Plaintiff refused to comply with the City’s policy requiring pre-employment drug testing for all applicants. The trial court dismissed the claim on the employer’s motion. The Ninth Circuit reversed the grant of summary judgment for the City and found that although the policy was not facially unconstitutional, it was unconstitutional as applied to Plaintiff because it was a “suspicionless search” in violation of the Fourth Amendment of the U.S. Constitution.
Note: The City did not provide a specific need or substantial justification for the testing. Theoretically, had it done so, the employer may have prevailed. It is important for both public and private employers to identify specific and significant reasons for requiring drug testing.
Emerald Steel Fabricators v. BOLI, 200 Or App 423 (2008).
Plaintiff, who was discharged for use of medical marijuana, brought suit for disability discrimination. He asserted that the employer failed to reasonably accommodate his disability. The employer hired temporary employees who, at the end of a 30-day trial period, would be subjected to a drug test should the employer decide to hire the worker full time. Plaintiff informed the employer of his medical marijuana card and the employer ultimately decided not to hire him. BOLI found the employer engaged in disability discrimination. In affirming BOLI’s findings, the Court of Appeals side-stepped the issue of whether an employer must provide reasonable accommodation for a medical marijuana user and determined the employer failed to preserve the issue for judicial review.
Note: Consistent with Washburn, the Oregon courts have yet to shed light on (1) whether employers have to provide reasonable accommodations for medical marijuana users and (2) whether the federal Drug-Free Workplace Act preempts the Oregon Medical Marijuana Act.
Disability Discrimination
Walton v. US Marshals Service, 476 F.3d 723, amended, 492 F.3d 998 (9th Cir. 2007).
In the Ninth Circuit, claims for disability discrimination “regarded as disabled” now have a subjective and objective test. Under the subjective test, a plaintiff must establish the employer believed the plaintiff had an impairment and provide evidence the employer believed the plaintiff was substantially limited in a major life activity. The objective test requires a plaintiff to establish that an impairment imputed to the plaintiff was, objectively, a substantially limiting impairment. The objective test allows a plaintiff to prove he was regarded as disabled when the plaintiff does not have direct evidence surrounding the employer’s subjective belief.
Note: This case serves as a reminder that even individuals without disabilities can bring suit if the employer treats them as disabled, such as not assigning the individual the same responsibilities and privileges as co-workers based on a perception that the individual cannot handle them.
Harassment
Parker v. Gen. Extrusions, Inc., 491 F.3d 596 (6th Cir. 2007).
Plaintiff submitted a complaint to her human resources manager, who investigated the claim. However, the HR manager “chuckled” at the harasser’s responses to the questions and the harasser was only reprimanded with a verbal warning for “horseplay.” In addition, the HR manager conducted the investigation in an open area where co-workers could hear. The plaintiff complained to the chairman of the company and the HR manager was forced to conduct further investigations. The HR manager did not conduct such investigations and Plaintiff became so distraught, she took sick leave and then quit. The Sixth Circuit concluded a reasonable jury could find the HR manager’s comments and actions showed “reckless disregard” for Plaintiff’s Title VII rights sufficient to support a claim for punitive damages.
Note: No matter how facially trivial, it is important to take all complaints seriously. Although the employer has the discretion to determine the appropriate reprimand and punishments for employee violations, this claim may not have reached litigation had the HR manager simply addressed the problem in confidence, establishing an appropriate mechanism for investigating and dealing with employment violations. The same caution should be taken in e-mails or text messages about a complaint.
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