COTW #34 - Obesity is always an impairment under Washington State disability discrimination statute

Casey Taylor sued the employer under the Washington Law Against Discrimination (WLAD) for refusing to hire him due to his obesity. After the case was removed to federal district court, it granted summary judgment to the employer. On appeal to the 9th Circuit, that court certified to the state Supreme Court the question of when obesity qualifies as an impairment under WLAD. The state Supreme Court accepted certification and held that obesity always qualifies as an impairment under WLAD. Taylor v. BNSF Railway (Washington 07/11/2019) [PDF].

Worth repeating: Always qualifies as an impairment

The employer refused to hire Taylor, who had a BMI of 41, which meets the technical definition of severe obesity, because it had a policy of not hiring people with BMIs exceeding 35. The district court granted summary judgment to the employer based on federal cases holding obesity is not a disability unless it results from a separate, underlying physiological disorder.

The state Supreme Court answered the certified question by stating obesity is always an impairment under the plain language of WLAD because it is a physiological condition affecting one or more body systems. The court expressly rejected federal court treatment of obesity under the ADA on the basis WLAD is broader than the ADA and offers its own independent protections to employees.

This is Washington State. Most other places require a showing that obesity is a disability only if it results from a separate, underlying physiological disorder.

COTW #32 - Telecommuting as an ADA accommodation

Today’s Case-of-the-Week — Bilinsky v. American Airlines (7th Cir 06/26/2019) [PDF] —caught my eye because it involved the controversial question of whether telecommuting can be a reasonable accommodation under the Americans with Disabilities Act (ADA).

Well, of course, the answer always is “It depends.”

Here an employee with MS successfully telecommuted from her home in Chicago, while the on-site department was in Dallas. That worked out fine until the Dallas department began changing the nature of its work. Previously it was mainly preparing various written materials. Then it began staging live events in Dallas, and doing crisis management. So the boss began requiring the employee to be on site in Dallas.

The 7th Circuit split 2-1. The majority supported granting summary judgment for the employer on the basis that the employee could not perform the essential functions of the job (i.e., being on site).

The dissent would have let the case go to a jury to decide whether being on site really was an essential function.

Personally, I thought the majority was a little too quick to take a crucial fact-finding function away from the jury. 7th Amendment, and all that.

Ban on transgender personnel in the military will receive intermediate scrutiny; injunction against the ban is stayed.

Here’s a complicated case, raising important issues about the rights of transgender individuals, the extent of executive branch privileges, and the amount of deference courts should grant to military decisions.

In 2017 the President issued a Memorandum barring transgender individuals from serving in the military, but a federal district court issued a preliminary injunction against enforcement of the 2017 Memorandum. In 2018 the President revoked his 2017 Memorandum and authorized the Secretary of Defense to implement the policies he proposed based on a 44-page report. Defendants then requested that the district court dissolve its preliminary injunction, but the district court struck that motion. While defendants were appealing that order, the district court denied defendants' motion for a protective order of discovery and granted plaintiffs' motion to compel production of documents that defendants withheld under a claim of two executive branch privileges. Defendants then petitioned the 9th Circuit for a writ of mandamus challenging the discovery order.

In Karnoski v. Trump (9th Cir 06/14/2019) [PDF] the 9th Circuit:

(1) vacated the district court’s order striking the Defendants’ motion to dissolve the preliminary injunction and remanded to the district court to reconsider the motion. This was on the ground that the 2018 Policy was significantly different from the 2017 Memorandum. In evaluating whether the significant change warrants dissolution of the preliminary injunction, the 9th Circuit rejected the district court's strict scrutiny approach. "[T]he district court should apply a standard of review that is more than rational basis but less than strict scrutiny." In addition, the district court "must apply appropriate military deference to its evaluation of the 2018 Policy." "In applying intermediate scrutiny on remand, the district court may not substitute its 'own evaluation of evidence for a reasonable evaluation' by the military."

(2) issued a stay of the preliminary injunction (which had previously been ordered by the US Supreme Court).

(3) vacated the district court’s discovery order and directed the district court to reconsider discovery by giving careful consideration to executive branch privileges. These include the deliberative process privilege and the presidential communications privilege.

SCOTUS: EEOC exhaustion is not jurisdictional

Monday's unanimous US Supreme Court Title VII decision in favor of the employee does not give employee-plaintiffs a free pass. Exhaustion of EEOC administrative processes is still required. All the Court did was say exhaustion is not a jurisdictional question that can be raised after five years of litigation. Employers can still get cases dismissed for failure to exhaust if they raise the issue early on in the litigation.

Fort Bend County v. Davis (US Supreme Ct 06/03/2019) [PDF]

The employee filed an EEOC charge claiming sex harassment. Later she wanted to add religion. So she wrote “religion” on the intake form, but she never revised the formal EEOC charging document.

Then she sued claiming religious discrimination, and the employer — after years of litigation — raised the question that the EEOC form had not been properly filled out. So the question was: is this a jurisdictional issue that the employer can raise at any time even the years later? Or is it a claims processing rule that the employer waived by waiting so long?

The US Supreme Court says it's non-jurisdictional.

So this is something the employer can raise but – use it or lose it.

Physician loses Title VII case

A hospital terminated a physician's hospital privileges, and she thought she had a Title VII case. But she was not an employee of the hospital. Levitin v. Northwest Community Hosp (7th Cir 05/08/2019) [PDF].

The court applied a five-factor test: (1) the extent of the employer’s control and supervision over the worker, including directions on scheduling and performance of work; (2) the kind of occupation and nature of skill required, including whether skills are obtained in the workplace; (3) responsibility for the costs of operation, such as equipment, supplies, fees, licenses, workplace, and maintenance of operations; (4) method and form of payment and benefits; and (5) length of job commitment and/or expectations.

But let's face it. Control is the main factor. The court summarized that this way:

Levitin owned her own medical practice, billed her patients directly, and filed taxes as a self-employed physician. Northwest did not provide Levitin with employment benefits or pay her professional licensing dues. Moreover, Levitin’s work agreement with Northwest confirms her independence. She could set her own hours, subject only to operating-room availability; she could obtain practice privileges at other hospitals and redirect her patients to those locations; and she could use her own staff in surgeries. Most importantly, she made the treatment decisions for her patients.

The physician had a theory that the hospitals' peer-review committee (which recommended terminating her privileges) was exerting the kind of control that made her an employee. But the peer-review committee was reviewing her work after-the-fact. That's not the kind of control that turns her into an employee.

US Supreme Court will decide whether Title VII prohibits discrimination based on (1) sexual orientation and (2) transgender status

The United States Supreme Court is going to be deciding two big Title VII cases (1) involving sexual orientation and (2) involving transgender status. The announcement was made on April 22, 2019.

The question in both cases is whether Title VII applies to these cases because Title VII talks about discrimination “because of sex.”

In the sexual orientation case — Altitude Express v. Zarda [briefs] —  which is really a consolidation of two cases, we had two men who allege they were fired because they were gay. One of the lower courts said — Yes, that violates Title VII because sexual orientation discrimination is just a subset of sex discrimination. In the other case the court said — No, Title VII does not apply at all.

In the transgender case — R.G. & G.R. Harris Funeral Homes Inc. v. EEOC [briefs] —  we have a funeral director who was working as a male and wanted to transition to becoming a female and wear women's clothes. And the boss said — No, we're going to fire you because wearing women's clothes would violate our dress code, and it would violate God's commandments.

These two big cases will be argued in the fall of 2019 and decided sometime in 2020.

I would urge the Court to make an analogy to discrimination "because of … religion." If an employer treats a Catholic married to a Jew differently than a Catholic married to a Catholic, it seems that would be discrimination "based on religion." If an employer treats a Catholic transitioning to becoming a Jew differently from a Catholic who remains a Catholic, it seems that would be discrimination "based on religion." What am I missing?

Is obesity a disability? - Employment Law Case of the Week

Is obesity a disability? The New Jersey Appellate Division says (because a New Jersey statute says): only if it is caused by bodily injury, birth defect or illness. Dickson v. Community Bus Lines (New Jersey Ct App 04/04/2019) [PDF]. This is the Employment Law Case of the Week - Part of a series.

We have a bus driver who has been driving for 10 years, weighs between 500 and 600 pounds, and is obviously obese.

He failed his periodic medical exam which he needs for his commercial driver's license, and the doctor says he needs more tests.

He sued under the New Jersey Law Against Discrimination claiming that he was perceived as having a disability (obesity) and that there was a hostile work environment because of that.

The problem was that the New Jersey statute says that a disability has to be “caused by bodily injury, birth defect or illness.” Just being obese is not enough.

You may have a different outcome in other jurisdictions, but in New Jersey it's not enough just to be obese.

Fired for using medical marijuana - Employment Law Case of the Week

Employment Law Case of the Week: Wild v. Carriage Funeral Holdings (New Jersey Ct App 03/27/2019) [PDF].

An employee claims he was fired for off-duty marijuana use.

The employee uses medical marijuana as permitted by the New Jersey Compassionate Use Medical Marijuana Act.

He sued under the state law against employment discrimination saying he has a disability — cancer. He's legally treating his cancer with marijuana and he says he can't be fired for that.

Now the employer finds one sentence, which says “Nothing in this act shall be construed to require an employer to accommodate the medical use of marijuana in any workplace.”

So the employer is saying we can fire him for using medical marijuana according to that sentence.

But the New Jersey Court says that The Compassionate Use Act — which is where that sentence is — does not require accommodation, but the law against discrimination is a separate statute and that statute might require accommodation of his disabilities.

The employer might still be required under the law against discrimination to accommodate his medical marijuana use.

Three racial slurs over a period of six months can be "severe" or "pervasive"

Fred Gates alleges that his direct supervisor —

  • addressed him with the N-word twice

  • once threatened to write up his "black ass."

Gates sued claiming a racially hostile work environment in violation of Title VII. The trial court granted summary judgment for the employer. The 7th Circuit reversed. Gates v. Bd of Educ of Chicago (7th Cir 02/20/2019) [PDF].

The 7th Circuit scolded the trial court for requiring a "hellish" workplace before one can establish a hostile work environment.

The court also emphasized that when analyzing whether workplace conduct is sufficiently severe or pervasive, one must distinguish whether a co-worker as opposed to a supervisor uttered the racially offensive language. The court said,

"We have repeatedly treated a supervisor's use of racially toxic language in the workplace as much more serious than a co-worker's." "This is particularly true when supervisors address these derogatory and humiliating remarks directly to the employees in question."

The court also said that three racial slurs in a sixth-month period of a four-year employment was not too infrequent to be pervasive.

At SCOTUS: Title VII Exhaustion: Jurisdictional? Waivable?

At SCOTUS: Title VII Exhaustion: Jurisdictional? Waivable?

Part of a series - Employment Law Case of the Week - by Ross Runkel.

The US Supreme Court has granted certiorari to decide whether Title VII’s administrative exhaustion requirement is a jurisdictional prerequisite to suit, as three Circuits have held, or a waivable claim processing rule, as eight Circuits have held. Title VII requires plaintiffs to exhaust claims of employment discrimination with the EEOC before filing suit in federal court. Fort Bend County v. Davis (US Supreme Ct cert granted 01/11/2019) [Order].

The 4th, 9th, and 11th Circuits hold that exhaustion is jurisdictional, so courts lack subject matter jurisdiction over claims that were never presented to the EEOC. The 1st, 2nd, 3rd, 5th, 6th, 7th, 10th, and DC Circuits treat failure to exhaust as a claim processing rule that is subject to waiver, forfeiture, and other equitable defenses. The Department of Justice is on record as describing Title VII’s exhaustion requirement as jurisdictional, and the EEOC has taken the position that it is not jurisdictional.

The Court will review the 5th Circuit's judgment in Davis v. Fort Bend County (5th Cir 06/20/2018) [PDF], which held that the defendant forfeited its exhaustion argument by not raising it in a timely manner before the district court.

No ministerial exception for Catholic grade school teacher

No ministerial exception for Catholic grade school teacher.

Part of a series - Employment Law Case of the Week - by Ross Runkel.

Is a fifth grade teacher at a Catholic school a “minister” for purposes of the ministerial exception? Court says “No” 2-1.

Kristen Biel was fired from her fifth grade teaching position at a Catholic school after she told her employer that she had breast cancer and would need to miss work to undergo chemotherapy. The trial court granted summary judgment to the employer on the ground that the 1st amendment's ministerial exception barred her claim under the Americans with Disabilities Act. The 9th Circuit reversed, 2-1. Biel v. St. James School (9th Cir 12/17/2018) [PDF]

The court applied the analysis in Hosanna-Tabor v. EEOC to conclude that, under the totality of the circumstances, Biel did not qualify as a "minister" for purposes of the ministerial exception.

  1. The school did not hold Biel out as a minister by suggesting to its community that she had special expertise in Church doctrine, values, or pedagogy beyond that of any practicing Catholic.

  2. Biel's title "Grade 5 Teacher" did not reflect any religious meaning. There was no religious component to her liberal studies degree or teaching credential, and the school had no religious requirements for her position.

  3. Nothing in the record indicates that Biel considered herself a minister or presented herself as one to the community. She described herself as a teacher and claimed no benefits available only to ministers.

  4. Biel taught lessons on the Catholic faith four days a week. She also incorporated religious themes and symbols into her overall classroom environment and curriculum, as the school required.

The DISSENT argued that Biel was "entrusted with teaching and conveying the tenets of the faith to the next generation." The substance reflected in her title and the important religious functions she performed outweigh her formal title and whether she held herself out as a minister.

ADEA applies to local governments regardless of size

US Supreme Court: ADEA applies to local governments regardless of size.

Part of a series - Employment Law Case of the Week - by Ross Runkel.

In a unanimous decision, the US Supreme Court holds that the Age Discrimination in Employment Act (ADEA) applies to local political subdivisions regardless of their size. This is rejection of the argument that the ADEA applies only when a political subdivisions has 20 or more employees. Mount Lemmon Fire Dist v. Guido (US Supreme Ct 11/06/2018) [PDF]

Following Congressional amendments in 1974, the ADEA has two key sentences in its definitions: (a) "The term ‘employer' means a person engaged in an industry affecting commerce who has twenty or more employees … ." (b) "The term also means (1) any agent of such a person, and (2) a State or political subdivision of a State … ."

The Court said, "We hold … that §630(b)'s two-sentence delineation, and the expression 'also means' at the start of the second sentence, combine to establish separate categories: persons engaged in an industry affecting commerce with 20 or more employees; and States or political subdivisions with no attendant numerosity limitation."

The Court stressed the use of the phrase "also means," which appears dozens of times in the US Code, and typically carries an additive – rather than clarifying – meaning. Also, the second sentence in §630(b) pairs political subdivisions with agents, a discrete category that carries no numerical limitation. Although Title VII applies to local governments only if they meet a numerosity specification, that is a consequence of the different language Congress chose to employ.

The Supreme Court decision affirmed the 9th Circuit, and rejected contrary interpretations by the 6th, 7th, 8th, and 10th Circuits.