Friday, November 8, 2019

How to lose an ADA "regarded as" disability reasonable accommodation case

Once upon a time, waaaay back before 2008, there was a circuit split on the issue of whether the ADA required employers to reasonably accommodate an employee who was "regarded as" having a disability (but, did not meet either of the other two covered definitions of "disability" - actually having a disability, or having a record of a disability). Here in the Third Circuit, we did allow employees to proceed on a "regarded as" disability reasonable accommodation claim.

Not official use.
Then, in 2008, the ADA was amended by the ADAAA. The ADAAA makes very clear that employers “need not provide a reasonable accommodation . . . to an individual who meets the definition of disability in [Section 12102(1)(C) - the subsection defining "disability" to include an individual "regarded as" having a disability].” 42 U.S.C. § 12201(h).

Welp, that's the background for a Third Circuit opinion from earlier this year, Robinson v. First State Community Action Agency. The jury ruled in favor of the employee on her reasonable accommodation claim. The jury instructions included an instruction that the Plaintiff could prove her case by establishing only that the employer "regarded [her] as dyslexic." Well, clearly she should have lost this claim because the ADAAA does not require an employer to accommodate an employee who is merely regarded as having a disability.

The employer, however, proceeded under this theory of the case throughout litigation, trial, and post-trial briefing. The objection to the jury instruction (or this theory of the case, generally) came only on appeal to the Third Circuit. Per this opinion, that is simply too late. The issue had been waived. That's a pretty harsh outcome for a failure to object earlier - but it does serve as a strong cautionary tale.

One interesting side issue here. The employee argued that the trial court could not have erred because it relied on the Third Circuit Model Jury Instructions (or "Model Civil Jury Instructions for the District Courts of the Third Circuit"). No dice.
[W]e have never held that use of such an instruction cannot constitute error, and a model jury instruction itself is neither law nor precedential . . . . Model instructions are designed to help litigants and trial courts, not to replace their shared obligation to distill the law correctly when drafting proposed jury instructions. Thus, the existence of the antiquated model jury instruction here, which regrettably does not yet reflect the 2008 Amendments, fails to provide a second justification for our decision to not review the relevant jury instruction.
The model instructions are a great resource - but litigators still need to check them.

Tuesday, November 5, 2019

Pennsylvania employment law regarding election interference

I assume that most (all?) states have laws against threats, intimidation, and coercion to compel voting a certain way in an election. Pennsylvania has just such a law, 25 Pa. Cons. Stat. Ann. § 3547. But, did you know that it also has employer-specific provisions?

The following are misdemeanors:

  • [B]eing an employer, pays his employes the salary or wages due in “pay envelopes” upon which or in which there is written or printed any political motto, device, statement or argument containing threats, express or implied, intended or calculated to influence the political opinions or actions of such employes, or 
  • [W]ithin ninety days of any election or primary puts or otherwise exhibits in the establishment or place where his employes are engaged in labor, any handbill or placard containing any threat, notice, or information that if any particular ticket or candidate is elected or defeated work in his place or establishment will cease, in whole or in part, his establishment be closed up, or the wages of his employes reduced, or 
  • [O]ther threats, express or implied, intended or calculated to influence the political opinions or actions of his employes.
Happy election day!

Tuesday, October 29, 2019

"Pennsylvania Moving Forward with New Overtime Rules"

The new federal overtime regulations draw a lot of attention and media coverage. In Pennsylvania, however, they may be irrelevant in about a year. The PA Department of Labor and Industry (DLI) announced that it is moving forward with its own new overtime rules.

DLI submitted the final rule, which must be approved by the Independent Regulatory Review Commission before it takes effect. Like the federal rule, it raises the minimum salary level for the white collar exemptions (executive, administrative, and learned professional). The PA rule will set an even higher threshold starting in the second year:
This increase will be phased in over three steps: $684 per week, $35,568 annually (per federal rule), on January 1, 2020; $780 per week, $40,560 annually in 2021; and $875 per week, $45,500 annually in 2022.
Astute readers will notice that the PA cutoff in 2022 is slightly lower than the one initially proposed. Presumably, there will be some litigation around both the fed and PA rules - so stay tuned.

Thursday, October 24, 2019

Third Circuit: First Amendment protects public employee's report of a crime

The Third Circuit issued a precedential opinion in Javitz v. County of Luzerne.

The plaintiff was the Director of Human Resources for Luzerne County. She claims that a union representative unlawfully recorded an investigatory meeting in which she participated (a violation of Pennsylvania's wiretapping law, 18 Pa. Cons. Stat. § 5703). The plaintiff reported the alleged crime to her supervisor, and they met with the DA (who referred it to the AG).

Not official use. 
Welp, she got fired. And, she claims it was in retaliation for reporting the alleged crime. Is she protected by the First Amendment? The First Amendment does protect public employees who speak as private citizens on matters of public concern. There's a big hurdle though - employee statements made pursuant to their official duties are not protected.

Here, she was complaining about an incident that occurred at work, and she reported it to her work supervisor. The Third Circuit, however, concluded that she was till protected by the First Amendment. The reason? Reporting the crime fell outside of her job duties.

Sure, she had access to high level employees to whom she reported the crime as part of her job. And, the County Ethics Code encouraged reporting of "violation[s] of the law." But, it was not "some formal job duty or responsibility" to report the crime. Her case was therefore remanded back to the trial court to allow her to proceed on her First Amendment claim
.

Second issue: She was not protected by the 14th Amendment's Due Process Clause because at will employees do not have a "property" interest in ongoing employment.

Monday, October 14, 2019

Teacher sues school after getting fired for using wrong gender pronouns

Fascinating case out of Virginia - from WaPo, A Virginia teacher was fired for refusing to use a trans student’s pronouns. Now, he’s suing his school district - and, props to WaPo for including a copy of the Complaint.

From the story:
Citing his religious beliefs, [the teacher] promised to use only the student’s name and avoid pronouns entirely . . . .  
Then, on Oct. 31, 2018, his second-year French students wore virtual-reality goggles and walked around the classroom. The transgender student seemed about to crash when the teacher told another student to help. “Don’t let her hit the wall,” Vlaming shouted. 
The student withdrew from the class, and the school board fired the teacher. In his Complaint, the teacher describes his views as:
But this case is about far more than pronouns. It is about whether the government may force Mr. Warning to express ideas about human nature, unrelated to the school's curriculum, that he believes are false. If he were to comply with Defendants' demands, he would be forced to communicate that gender identity, rather than biological reality, fundamentally shapes and defines who we truly are as humans, that our sex can change, and that a woman who identifies as a man really is a man. But if he refers to students based on their biological sex (as he has, with reasonable accommodations), he communicates the views he actually believes—that our sex shapes who we are as humans, that this sex is fixed in each person, and that it cannot be changed, regardless of our feelings or desires.
Obviously, teachers have certain rights to speech and religious beliefs. The teacher claims that using only transgender students' proper names was a reasonable accommodation to which he was entitled. Religious accommodations must not, however, impose an undue hardship on the employer.

Here, the school has certain policy interests, such as providing a welcoming and enriching environment for its students. It also may have legal obligations to address and correct a hostile education environment based on a student's gender identity (SCOTUS is wrestling with the scope of gender identity protection under Title VII's employment protections as I type).

The teacher filed his lawsuit in Virginia state court under state law and constitutional claims. It will be interesting to see how this case plays out - but I suspect these issues will spawn more and more litigation over the next few years until we get some clearer lines drawn.

Tuesday, October 8, 2019

Today is the day! SCOTUS args on sexual orientation and gender identity discrimination

SCOTUS is back for a new season, and oral arguments kicked off yesterday. We've got a great double feature lined up for today:

Bostock v. Clayton County, Georgia (SCOTUSblog page) and Altitude Express Inc. v. Zarda (SCOTUSblog page):
Whether discrimination against an employee because of sexual orientation constitutes prohibited employment discrimination “because of . . . sex” within the meaning of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e-2.

R.G. & G.R. Harris Funeral Homes Inc. v. EEOC (SCOTUSblog page):
Whether Title VII prohibits discrimination against transgender people based on (1) their status as transgender or (2) sex stereotyping under Price Waterhouse v. Hopkins.

Asking a court that leans heavy on textualism and originalism to re-imagine a 1964 sex discrimination statute to cover sexual orientation and gender identity might be a tall order. That said, the Court has issued a string of gay rights-friendly opinions lately, ranging from Lawrence v. Texas in 2003 to Obergefell v. Hodges in 2015. So, we'll see.

Do you want my entirely useless prediction? Of course you do. Chief Justice Roberts cobbles together a compromise position that reaffirms that sex stereotyping violates Title VII, but that Title VII does not cover sexual orientation per se. The four-justice liberal bloc concurs but writes separately to note that they would hold that Title VII does cover sexual orientation per se. In Harris Funeral Home, the Court holds that Title VII covers gender identity per se.

Don't take that to Vegas.

Finally, two reminders:

  • These cases only matter because Congress has not amended Title VII to expressly cover (or not) sexual orientation or gender identity - Congress can moot these cases at any time and effectively reverse them after the fact; and
  • Many state and local laws prohibit sexual orientation and gender identity discrimination - these cases do not change that.