Double mastectomy, but no ADA disability

[Video]

You would think an employee would win an Americans with Disabilities Act lawsuit If she was fired two weeks after having a double mastectomy.

But here's a case where the employee actually did not have breast cancer.

She had the BRCA1 gene mutation, which makes it way much more likely to get breast cancer in the future.

This case went to a federal district court in Ohio and the court said that she's going to lose this case because she cannot show that she has a current limitation of a major life activity.

A future likelihood — Yes, but there's no present disability. So she loses her ADA case.

[I learned about this case from a blog post by  Daniel Pasternak at Squire Patton Boggs. He writes for the Employment Law Worldview. Read his interesting thought here: Genetic Mutation Is Not A Disability under the ADA, Says Ohio Federal Court (US).]

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Employer must REQUIRE 30 minute meal break

[Video] An administrative rule in Oregon says certain employers "shall provide" a 30 minute meal break for employees working between six and eight hours.

The Oregon Court of Appeals says this means that if employees work a portion of that 30 minutes, then they are entitled to be paid for the entire 30 minutes. Maza v. Waterford Operations (Oregon Ct App 11/14/2019) [PDF]

Here is what the administrative rule says:

“(1) The purpose of this rule is to prescribe minimum meal periods and rest periods for the preservation of the health of employees.

“(2)(a) Except as otherwise provided in this rule, every employer shall provide to each employee, for each work period of not less than six or more than eight hours, a meal period of not less than 30 continuous minutes during which the employee is relieved of all duties.

“(b) Except as otherwise provided in this rule, if an employee is not relieved of all duties for 30 continuous minutes during the meal period, the employer must pay the employee for the entire 30-minute meal period.”

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Paul Grossman's Employment Discrimination Law Update

Paul Grossman just sent out his 152 page Employment Discrimination Law Update. If you practice employment law, this is something you must have. It’s thorough, objective, accurate, and easy to read.

In an act of great generosity, Paul sends this out periodically during the year to those who ask for it. Simply send your full contact information to Paul's secretary Cathy Smith-Joo: cathysmithjoo@paulhastings.com.

Paul Grossman is a partner at Paul Hastings, and is based in Los Angeles. He is a management-side employment lawyer and a frequent speaker on employment law.

Paul's Employment Discrimination Law Update is a supplement to Lindemann, Grossman & Weirich, Employment Discrimination Law (5th ed. 2013), and the 2017 Supplement put out by the ABA Section of Labor and Employment Law (Debra A. Millenson, Laurie E. Leader, and Scott A. Moss, Executive Editors). It is organized by book chapters. The 2017 Supplement includes Court of Appeals decisions through 2016 and some Supreme Court cases issued during the 2016-2017 term. With a few exceptions, the current update begins with cases decided after January 1, 2016. It focuses almost exclusively on Court of Appeals and Supreme Court decisions.

Thank you, Paul.

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Is expert testimony required whenever an employee is trying to prove a disability?

[Video]

Is expert testimony required whenever an employee is trying to prove a disability?

Maybe. Maybe not.

The 10th Circuit had a case in which the trial court held that expert testimony is required in every single case. And the 10th Circuit reversed. Tesone v. Empire Marketing Strategies (10th Cir 11/08/2019) [PDF].

The court says you have to take a case-by-case look – and it depends upon the type of disability – in order to decide whether or not expert testimony is required.

This was an employee that had a chronic lower back pain.

The court said you will need to have expert testimony when “a condition would be unfamiliar to a lay jury and only an expert could diagnose that condition.”

In this case: maybe not.

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Pre-Hearing preparation - Arbitration Boot Camp

This is video #3 in a series of 6. Arbitration Boot Camp: www.RossRunkel.com/ABC

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Selecting an Arbitrator - Arbitration Boot Camp

This is video #2 in a series of 6. Arbitration Boot Camp: www.RossRunkel.com/ABC

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My First Case - Arbitration Boot Camp

This is video #1 in a series of 6. Arbitration Boot Camp: www.RossRunkel.com/ABC

This 28-second video is admittedly a bit of a puff piece. You can skip it and go to the next five videos, which I hope will be helpful for you.

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Dynamex applies retroactively

Gonzales v. San Gabriel Transit (Cal Ct App 10/08/2019) [PDF] has held that Dynamex Operations West, Inc v. Superior Court (Calif Supreme Ct 04/30/2018) [PDF] applies retroactively to cases that were pending when Dynamex was decided. (Dynamex held that the “ABC test” is to be used to decide whether a worker is an employee or an independent contractor under California wage orders.)

The analysis took one paragraph:

“In any event, there is no reason to conclude that Dynamex departs from the usual rule of retroactive application. Judicial decisions in civil litigation almost uniformly are given retroactive effect and applied to pending litigation. (See e.g., Grafton Partners v. Superior Court (2005) 36 Cal.4th 944, 967; Newman v. Emerson Radio Corp. (1989) 48 Cal.3d 973, 978; Grobeson v. City of Los Angeles (2010) 190 Cal.App.4th 778, 796; Rose v. Hudson (2007) 153 Cal.App.4th 641, 646.) A rare exception is employed in extraordinary circumstances dictated by considerations of fairness and public policy, such as when a decision articulates a new standard or rule of law. (See Rose v. Hudson, supra, 153 Cal.App.4th at p. 653, Hoschler v. Sacramento City Unified School Dist. (2007) 149 Cal.App.4th 258, 271.) The instant litigation presents no extraordinary circumstance. Dynamex did not establish a new standard. Rather, its expressly articulated purpose was to streamline the existing complex, multifactor wage order analysis: “In our view, this interpretation of the suffer or permit to work standard is faithful to its history and to the fundamental purpose of the wage orders and will provide greater clarity and consistency, and less opportunity for manipulation, than a test or standard that invariably requires the consideration and weighing of a significant number of disparate factors on a case-by-case basis.” (Dynamex, supra, 4 Cal.5th at p. 964.)”

Meanwhile, the 9th Circuit has certified this question to the California Supreme Court in Vazquez v. Jan-Pro Franchising (9th Cir 09/24/2019) [PDF].

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Title VII, LGBT employees, and the US Supreme Court

Three upcoming LGBT-Title VII cases will test the US Supreme Court's views on original intent, stare decisis, and statutory construction. These will be among the most important cases of the 2019-2020 term of the Court.

Title VII bars discrimination "because of … sex." How does that work with gay, lesbian and transgender employees? Courts are split. Badly split.

Oral arguments on October 8 include Altitude Express Inc. v. Zarda, Bostock v. Clayton County, and R.G. & G.R. Harris Funeral Homes v. EEOC.

Zarda and Bostock claimed they were fired because they were gay. Their suits claimed violations of Title VII. The 2nd Circuit ruled that Zarda's suit could go to trial because discrimination based on sexual orientation is “is motivated, at least in part, by sex and is thus a subset of sex discrimination.” However, the 11th Circuit said Bostock could not go to trial because Title VII simply does not apply to sexual orientation discrimination.

The employees have two main arguments: (1) Men, but not women, are fired because they are sexually attracted to men. (2) Title VII forbids discriminating based on sex stereotypes – men should be sexually attracted to women and women should be attracted to men.

The employers argue that (1) Title VII prohibits treating one sex better than the other, which is not what happened here. (2) In 1964 nobody thought Title VII prohibited LGBT discrimination. (3) A change of the magnitude involved here should come from Congress rather than the courts.

The government sides with the employers.

In the Clayton County case, the employee presented and dressed as a man for years, but later announced an intent to live and work as a woman. The employer fired her. The 6th Circuit held in favor of the employee, saying "Discrimination against employees, either because of their failure to conform to sex stereotypes or their transgender and transitioning status, is illegal under Title VII." The arguments in this case parallel the arguments in the other two cases.

It's a matter of some interest that the transgender case was originally brought an won by the EEOC, but the current government is siding with the employer.

My views:

Gay discrimination is sex discrimination. This is similar to the "sex plus" cases we saw in the early days of Title VII. For example, you can't treat women with pre-school children differently than men with pre-school children. I think the analogy is apt.

Transgender discrimination is sex discrimination. My analogy is to a Catholic employee who decides to become a Baptist. That's religion discrimination, and you don't need to find another employee who is a Baptist switching to becoming a Catholic.

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Retaliation with a double twist

The allegation was that a supervisor retaliated against the plaintiff after she left the job.

The supervisor’s defenses were (1) I never was her employer, and (2) there was no effect on the terms and conditions of her employment.

The Oregon Supreme Court found in favor of the plaintiff. McLaughlin v. Wilson (Oregon 09/12/2019) [PDF]. First reported by LawMemo on September 12, 2019 at 11:09am.

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NLRB will rule out defining students as employees

You can forget about NLRB cases that classified graduate students as statutory employees. The handwriting is clear that the NLRB will adopt a rule saying that they are not.

The proposed rule is elegantly simple:

"Students who perform any services, including, but not limited to, teaching or research assistance, at a private college or university in connection with their undergraduate or graduate studies are not employees within the meaning of Section 2(3) of the Act."

The NLRB published a Notice of Proposed Rulemaking (NPRM) [PDF] in the Federal Register on September 23, 2019, proposing a rule regarding students. Addressing a recurring question regarding the definition of “employee” under Section 2(3) of the National Labor Relations Act (NLRA), the proposed rule would exempt from the NLRB’s jurisdiction undergraduate and graduate students who perform services for financial compensation in connection with their studies.

Through issuance of the NPRM, the Board seeks public comment on its proposed view that students who perform services – including teaching and/or research – for compensation at a private college or university in connection with their studies are not “employees” under the NLRA. The basis for this proposed rule is the Board’s preliminary position, subject to revision in light of public comment, that the relationship these students have with their school is predominately educational rather than economic.

In announcing the proposed rule, NLRB Chairman John F. Ring stated: “In the past 19 years, the Board has changed its stance on this issue three times. This rulemaking is intended to obtain maximum input on this issue from the public, and then to bring stability to this important area of federal labor law.” Chairman Ring was joined by Board Members Marvin E. Kaplan and William J. Emanuel in issuing the proposed rulemaking. Board Member Lauren McFerran dissented.

Public comments are invited on all aspects of the proposed rule and should be submitted within 60 days of the Notice’s publication in the Federal Register, either electronically to www.regulations.gov, or by mail or hand-delivery to Roxanne Rothschild, Executive Secretary, National Labor Relations Board, 1015 Half Street S.E., Washington, D.C. 20570-0001. Any person wishing to comment on any ongoing rulemaking by the National Labor Relations Board must do so in accordance with the applicable Notice of Proposed Rulemaking. Communications submitted in any other manner, including comments on this website, will not be considered by the Board. 

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Uber drivers get partial win in opposing FAA arbitration.

An important development: Singh v. Uber (3rd Cir 09/11/2019) [PDF]

Singh brought a putative class action in state court alleging that Uber misclassified its drivers as independent contractors as opposed to employees. Uber removed the case to federal court and moved to compel arbitration. Singh opposed the motion, arguing that the court did not have the authority to compel arbitration under the Federal Arbitration Act (FAA). The trial court ordered arbitration. The 3rd Circuit remanded.

FAA Section 1 provides that the FAA does not apply to

“contracts of employment of seamen, railroad employees, or any other class of workers engaged in foreign or interstate commerce.”

New Prime Inc. v. Oliveira, 139 S. Ct. 532 (2019) held that ''contracts of employment" includes any contract for the performance of work by workers, so the issue in this case becomes whether Singh was "engaged in … interstate commerce."

The 3rd Circuit rejected Uber's argument that the Section 1 exclusion applies only to workers who transport goods, and not to those who transport passengers, saying "§ 1 is not limited to transportation workers who transport goods, but may also apply to those who transport passengers, so long as they are engaged in interstate commerce or in work so closely related thereto as to be in practical effect part of it."

The 3rd Circuit remanded for the trial court to allow discovery on the issue of whether the class of transportation workers to which Singh belongs are engaged in interstate commerce or sufficiently related work.

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Will the NLRB crack down on highly offensive speech?

It's about time.

The NLRB is requesting briefs on whether the Board should reconsider its standards for profane outbursts and offensive statements of a racial or sexual nature.

The current NLRB cases really cannot be defended. If – during a strike or during picketing – an employee makes the most outrageous statements (rude, racially offensive, sexually offensive), then this is part of "protected" activity and the employer cannot fire or otherwise discipline an employee for doing that.

Of course, some rough language ought to be tolerated when a union and employer are engaged in economic warfare. But let's find a rule that no longer protects speech that is simply ugly racial and sexual slurs.

The Board seeks public input on whether to adhere to, modify, or overrule the standard applied in previous cases in which extremely profane or racially offensive language was judged not to lose the protection of the National Labor Relations Act (NLRA). Specifically, the notice seeks comments relating to the following cases: Plaza Auto Center, 360 NLRB 972 (2014), Pier Sixty, LLC, 362 NLRB 505 (2015), and Cooper Tire, 363 NLRB No. 194 (2016).

About the invitation for briefing, Chairman John F. Ring stated: “The Board’s request for briefing on this important topic reflects its long-standing practice of seeking input from interested parties when the Board believes it can benefit from such briefing. We look forward to considering the views of all interested parties.”

Chairman John F. Ring was joined by Members Marvin E. Kaplan and William J. Emanuel in inviting the filing of briefs. Member Lauren McFerran dissented.

Amicus briefs not to exceed 25 pages in length shall be filed with the Board in Washington, D.C. on or before November 4, 2019. The parties are permitted to file responsive briefs not to exceed 15 pages in length on or before November 19, 2019.

The case is General Motors LLC, 14-CA-197985 and 14-CA-208242. Click here to read the notice and invitation to file briefs.

Sexual orientation harassment at the porn store

It can happen anywhere – this time at a pornographic video store.

Wilford Bearden, an openly gay man, was a clerk in a pornographic video store. In graphic detail, the Oregon Court of Appeals described harassment at the hands of other clerks. This included sexually offensive comments written on copies of a magazine (over a period of three months) plus an extraordinarily raunchy cartoon drawn by a clerk. The manager terminated Bearden soon after the cartoon incident.

Bearden won a judgment after a bench trial on his claim of discrimination on the basis of his sex and sexual orientation and his claim of retaliation for complaining about sexual harassment. The trial court denied the employer's motion for a directed verdict. The Oregon Court of Appeals affirmed the verdict, and remanded for reconsideration of the attorney fee award. Bearden v. N. W. E. Inc (Oregon Ct App 08/07/2019) [PDF].

On the retaliation claim, the court found sufficient evidence that Bearden complained to a clerk, who passed that information on to the manager, so the manager knew of Bearden's complaint when she terminated him.

On the discrimination claim, there was evidence that the harassment was because of Bearden's sexual orientation (in spite of the perpetrators' testimony that they did not intend their comments to be sexual) and evidence that the materials were objectively offensive to a gay man.

The court found that the harassment was severe or pervasive enough to alter the conditions of employment and create an abusive working environment; it lasted three months and culminated in the raunchy cartoon. Management was aware of the situation "enough to require an investigation, which would quickly have yielded the information that plaintiff's complaint was legitimate."

The court remanded for a re-determination of attorney fees. The trail court had categorically denied fees incurred during BOLI proceedings, but must now evaluate how much was reasonably incurred to achieve Bearden's success in the litigation. The trial court must also provide a more complete explanation of why it awarded less than the full amount of fees Bearden requested in connection with his motion for summary judgment, which was denied.

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NLRB proposes rulemaking on employee free choice

The NLRB will publish a Notice of Proposed Rulemaking [Federal Register] on August 12, 2019, proposing three amendments to its Rules and Regulations that "would better protect employees’ statutory right of free choice on questions concerning representation."

Blocking Charge Policy: Replace the current blocking charge policy with a vote-and-impound procedure. Elections would no longer be blocked by pending unfair labor practice charges, but the ballots would be impounded until the charges are resolved.

Voluntary Recognition Bar: Return to the rule of Dana Corp., 351 NLRB 434 (2007). For voluntary recognition under Section 9(a) of the Act to bar a subsequent representation petition—and for a post-recognition collective-bargaining agreement to have contract-bar effect—unit employees must receive notice that voluntary recognition has been granted and a 45-day open period within which to file an election petition.

Section 9(a) Recognition in the Construction Industry: In the construction industry, where bargaining relationships established under Section 8(f) cannot bar petitions for a Board election, proof of a Section 9(a) relationship will require positive evidence of majority employee support and cannot be based on contract language alone, overruling Staunton Fuel, 335 NLRB 717 (2001).

Public comments are invited on all aspects of the proposed rule and should be submitted within 60 days of the Notice’s publication in the Federal Register.