Connecticut Employment Lawyer & Attorney : Daniel Schwartz : Stamford, Hartford New Haven, CT

I've returned from vacation today with hundreds of e-mails to dig through and about 3000 posts in various RSS feeds.

But one e-mail I received relating to the Connecticut Supreme Court's decision earlier this month in Curry v. Allan S. Goodman, bears some immediate discussion. The comments are from Attorney Richard Hayber, the attorney representing the employee in that matter.  He has authorized me to re-publish his comments in part here, which I'm pleased to do so and I thank Richard for taking the time to comment. 

[Y]our coverage of this case has failed to point out the most disturbing fact of the case. The employer had a policy of only permitting injured workers to return to work if they had been cleared to "full duty." When asked at a deposition how the company applied this policy, it stated that it would not return an employee to work even if the only restriction he had was to take a 60 second break during the day to stretch his back!!! The Supreme Court held this policy, which foreclosed an individualized analysis of each disabled worker's request for accommodation, to be illegal.

I greatly appreciate Richard's comments and as I've suggested before, readers should read the lengthy decision to get a full appreciation for the contested facts.  Because the case is at the summary judgment stage, however, many of the facts remain disputed.

In my defense, reading the decision again, I do not see the deposition referenced, nor do I believe that the Court placed a particular emphasis on the "full duty" clearance requirement.  In fairness to Richard, however, the Connecticut Supreme Court, in footnote 23, did say that the Court's newly imposed "interactive process" requirement  creates a parallel requirement that assessments of a disability be done on an individualized basis. 

A policy—whether express or by application—that eliminates the individualized assessment of each disabled employee for purposes of reasonable accommodations is for all the reasons articulated in this opinion necessarily illegal. ... Whether the plaintiff ultimately will prevail after an individualized assessment will depend on the interactive reasonable accommodation process.

Ultimately, I agree with Richard that with the Connecticut Supreme Court's imposition of an interactive process for small employers will require those employers to conduct an individualized assessment of an employee's capabilities and abilities.  Because each case is unique and may also have some relationship to workers compensation injuries, employers may want to seek legal assistance in these types of determinations, at least until Connecticut law becomes more settled.

Richard also notes that "most superior court judges had already interpreted our Fair Employment Practices Act to require reasonable accommodations. Employers reading your Blog should not
be as alarmed as you would have them be."  A fair enough point, though there were hardly a significant number of cases in this area to begin with and I don't believe the law was as settled as Richard suggests.  In any event, I think the Curry decision's broad application to employment law warrants the concern that I have sounded.

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Is putting a toilet training book, such as one allegedly called "The Book of Poop", on a disabled co-worker's desk sufficient to create a Hostile Work Environment?

Not according to a decision this week by Judge Dominic Squatrito in federal court in Connecticut (download here). 

Thus begins another fine chapter in American Jurisprudence.

I thought about a serious review of the case because, obvious humor aside, this case is probably very important to the parties involved. And indeed, reading the decision, you will see that there are serious issues addressed.

But my thoughts turned to the following instead: can you imagine if confirmation hearings for federal court judges, instead of asking questions about stare decisis or the First Amendment, asked judges this: Would you be comfortable deciding a case where human excrement is a focus?

How many judges would really sign up for that?

But I digress. The court, in Murphy v. Beavex, Inc. (download here) had to decide whether an employee, who had several "bowel incidents" (allegedly arising from MS - though it is unclear whether he ever informed the employer of that), had raised a claim that he had experienced a hostile work environment when his co-workers left "The Book of Poop" at his desk and where his co-workers then called him: “Mr. Sh___y,” “The Sh___meister,” and “Poopy.”  The court found that this was not enough to create a hostile work environment:

In considering the remaining alleged incidents in a light most favorable to [the Plaintiff], the court concludes that a reasonable jury could not find such conduct so severe and pervasive as to have altered his working conditions. While it was insensitive for [the Plaintiff]’s coworkers to call him names and leave a scatological children’s book near his workspace, such teasing does not rise to the level of severity and pervasiveness required to defeat a motion for summary judgment.

But aside from the legal analysis, and as a father of three, one thing about the decision has troubled me the most about the case: I have never heard of "The Book of Poop" before. Indeed, while there are such classics as "The Truth About Poop" and "Everybody Poops" (not to be confused with "The Gas We Pass"), a quick search of Amazon reveals no such book.  A similar search on Google revealed the same. 

So, on this Friday afternoon before many schools take vacation, feel free to add your recommendations on toilet-training books and if you know about "The Book of Poop", please let me know.  While toilet puns are encouraged, I only ask that the comments be as clean as possible before sending them. Purell if necessary.

UPDATE: The Wall St. Journal Law Blog was kind enough to pick up this post. If you haven't checked out Dan Slater and Company's take on the legal world, you're truly missing out.

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Reading the Connecticut Supreme Court case of Curry v. Allan S. Goodman, Inc. decided last week,  I'm struck by how many questions the decision seems to raise -- and how many are left unanswered. I've discussed the case and some questions it raises before, most recently here. 

The case appears to stand for the proposition that an employer must engage in an interactive process with a disabled employee who requests some type of reasonable accommodation.  But another question that arises is: What types of "disabilities" are within the scope of this reasonable accommodation duty under state law? 

The Americans with Disabilities Act has a plain definition of "disability" that reviews the person's condition in relation to a major life activity.  Connecticut's anti-discrimination scheme, however, is different.

In many ways, Connecticut's anti-discrimination provision of Conn. Gen. Stat. Sec. 46a-60(a)(1) is broader in scope because it includes "present or past history of mental disability, mental retardation, learning disability or physical disability, including, but not limited to, blindness." Broadening the scope even further are the definitions of these categories in Conn. Gen. Stat. Sec. 46a-51.

So what answer does the Supreme Court say about what types of "disabilities" are covered? It appears to say: All of the above (with emphasis noted below):

Because the text and legislative history illustrate that the intent of the legislature is to stamp out discrimination on the basis of physical disability and a wide range of other disabilities (mental disability, learning disability, and mental retardation), we must not interpret the statute in a way that would thwart this purpose. ....

Accordingly, we adopt the commission’s time-tested interpretation construing § 46a-60 (a) (1) to require employers to make a reasonable accommodation for an employee’s
disability.

This leads to more issues.  For example, the definition of a "mental disability" in Connecticut is essentially anything that is defined as a disorder within the Diagnostic & Statistical Manual IV, which includes diagnoses such as "Pathological Gambling" and "Exhibitionism". 

Some strange questions then arise.  Do employers now need to accommodate "Pathological Gambling" because it falls within the definition of a "mental disability" and perhaps provide an employee with a "break" to play online poker or take a visit to Foxwoods?   Or even more bizarre, does an employer need to provide a "reasonable accommodation" to someone who suffers from Exhibitionism and what would that entail?

As for providing reasonable accommodations to people with "learning disabilities", suppose an employee suffers from dyslexia.  Suppose that this employee is computer programmer, but can't read all the instruction manuals. Must the employer provide an audio version of the same manuals as a "reasonable accommodation" or how about a person who must be available to read those manuals to them? How must an employer provide a reasonable accommodation for others who suffer from similar types of learning disabilities?

While the analysis of the Curry case thus far has noted that it now applies the reasonable accommodation provisions normally found in the ADA to small employers (who were not covered by the ADA),  there is a flip side too: Employers who were covered by the ADA, might need to contemplate reasonable accommodations to disabilities that are much broader than covered by the ADA. 

Is this settled? No.  And it may be that Superior Courts reviewing this case will take a narrow approach to the decision.

But after reading the Curry case over several times, I'm convinced that the importance of this case and its potential scope cannot be understated.   Absent some legislative intervention and oversight, this case has the potential to create lots of work for employment law attorneys in the years to come.

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Like the television show, Lost, reading the Connecticut Supreme Court's decision in Curry v. Allan S. Goodman, Inc. will leave readers with more questions than answers at the end of the day.  (For more background on the case, see this prior post.)

Those unanswered and indeed, troubling questions arise from the suggestion by the Connecticut Supreme Court that an employer's duty to accommodate an employee (and engage in the interactive process) may arise even after the employer has already terminated the employee. 

For example, if the employee makes a request for reasonable accommodation after the employee has already been terminated, does the employer have to listen to this request? And more importantly, does the employer then have to reinstate the employee with the new accommodations in place?  And what if the request for accommodation comes a month after the employee has already been terminated, must the employer still consider the request? The decision appears to say "yes" to these questions.

In order to understand this, some background facts on the case are needed as described by the Court:

The plaintiff  began working as a driver for the defendant, a distributor of wines and liquors, in September, 1986. In that position, the plaintiff had to lift cases of liquor  weighing between forty and seventy pounds on and off his truck. On or about August 26, 1998, the plaintiff  injured his back during work when lifting a case of liquor. ... [He] returned to work in September, 2000, but was restricted by his physician, Charles B. Kime, to working four hours a day, lifting a maximum of fifteen pounds at a time, and avoiding prolonged periods (more than thirty minutes) of sitting or standing. ...

When the plaintiff returned to work, the defendant negotiated with the plaintiff’s union and placed him in a night shift position, working the ‘‘split line’’ in the  warehouse. Although employees normally bid on these positions every six months on the basis of their seniority, because he was injured, the plaintiff temporarily was given the split line warehouse job pursuant to the agreement between the plaintiff’s union and the defendant. ..
When the defendant first placed the plaintiff on the split line, he was required to do only light duty tasks and was not required to replace empty cases with full cases [part of the job of a night-shift position]. ...

[By] March 7, 2001, however, [Plaintiff's physician] indicated that the plaintiff had not improved as expected and that his light duty restriction— ten hours a day with no repetitive bending or lifting of objects more than twenty-five pounds—likely would be ‘‘permanent.’’ ...

Subsequently, the plaintiff placed his name on the bid list for a night shift warehouse position. Although the plaintiff attests that he was high enough on the seniority list to qualify for this position, he did not receive the position. The defendant terminated the plaintiff’s employment, informing him by letter dated April 17, 2001, that it had determined that there was no suitable position for him. Approximately two days later, the plaintiff’s attorney sent a letter to one of the defendant’s managers, Richard Conroy, advising him of the defendant’s obligation to provide reasonable accommodation under the law, asking to be provided with a cost-benefit analysis of the decision to terminate the plaintiff, and requesting that the defendant reconsider its termination decision. The record does not reveal that the defendant took further action or reconsidered its decision.

As the Supreme Court recognized, it is up to the employee to initiate the request for a reasonable accommodation, not the employer.  Here, the Court found that the employee's placing his name on a "bid list" for a warehouse position and the letter from the employee's attorney after the employee was terminated was sufficient to start the request for reasonable accommodation. 

In the present case, the plaintiff made an affirmative request to continue working the warehouse night shift in March, 2001. In addition, the plaintiff’s counsel, in his April 19, 2001 letter to the defendant, requested that the defendant: (1) reconsider its decision; (2) provide a cost-benefit analysis supporting its decision to terminate the plaintiff; and (3) continue to grant the plaintiff the accommodation of having another worker assist him when it became necessary to retrieve boxes that weighed more than the plaintiff’s lifting restrictions. These actions satisfy the plaintiff’s burden of initiating the interactive process.

The defendant’s response to this request was merely to reject it. Conroy, the defendant’s manager, stated during his deposition that, upon receiving the letter from the plaintiff’s counsel, he did not reconsider his decision, confer with anyone else, review any records, or conduct any investigation or cost-benefit analysis of the hardship that the proposed accommodation would cause the defendant. The record reflects no effort by Conroy or any other representative of the defendant to contact the plaintiff or his counsel to engage in any additional, meaningful discussion. We conclude that this response is clearly not the dialogue envisioned by the interactive reasonable accommodation process and the defendant’s duty of good faith compliance.

From an employer's perspective, this is a disturbing because it seems to suggest that an employer's obligations to provide a reasonable accommodation continues after an employee has already been terminated.  Moreover, it suggests that "demand letters" (in which an attorney demands that the employer take certain action, like paying severance or reinstating the employee) can also be a requests for reasonable accommodation.

In addition, this decision suggests that even though the employee may not make a reasonable accommodation while employed (and only applies to be considered for a position with the company without explanation), the employer must still consider any request by the employee made after the employee was terminated.

It is unclear whether the employer will be filing a motion for rehearing in the case to rule on this issue. But if left unchallenged, this part of the Court's decision could be the real legacy of the case and set the stage for lots of demand letters for disabled workers even after they've already been fired.

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In prior posts here and here, I've discussed an important new Connecticut Supreme Court case released this week, Curry v. Allan S. Goodman, Inc. and the effect it has on providing disabled employees with "reasonable accommodation".

However, the Supreme Court's decision goes beyond that. The Court also find that state law imposes a duty on employers to engage in an "interactive process" -- a term of art found in the Americans with Disabilities Act regulations.

What does it mean?  According to the Connecticut Supreme Court, state law now requires:

that the employer and the employee engage in an ‘‘informal, interactive process with the qualified individual with a disability in need of the accommodation . . . [to] identify the precise limitations resulting from the disability and potential reasonable accommodations that could overcome those limitations. In this effort, the employee must come forward with some suggestion of accommodation, and the employer must make a good faith effort to participate in that discussion.

The Supreme Court found in Curry that the employer -- although it provided some initial temporary accommodations -- did not followup further on such issues.  For this reason, the court said that the failure to engage in the interactive process could be "some" evidence of discrimination -- enough to defeat summary judgment.

So, for employers in Connecticut -- now of all sizes -- the Curry decision makes plain that once an employee raises an issue regarding a disability and suggests, even informally, for assistance about it, the employer has a duty to delve deeper into the issue.  Just saying "no" may not be good enough.

The EEOC has provided some guidance on this issue available here.  The Department of Labor also provides the Job Accommodation Network with additional support information available here.

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Yesterday, I provided some highlights about the important case of Curry v. Allan S. Goodman, Inc. (can we all just agree to call it Curry v. Goodman?)   The case is the first appellate decision in Connecticut that applies the reasonable accommodation provisions found in federal law, to state law. The effect is that small employers in the state (3-14 employees) will now have an obligation to provide a reasonable accommodation to physically disabled employees.

So, how did the court get there? I'll explore in detail in today's post.  It's a little technical but for employment lawyers in Connecticut, the logic is key to understanding the result. 

Before I get there, though, I urge you to review the comments of yesterday's post in which Charles Krich, who submitted an amicus brief in the case, provided some further insights into the case. Very informative and I hope to address it further shortly.

First, the Supreme Court relied in an "agency deference" doctrine, similar to the U.S. Supreme Court's Chevron deference rulings. 

[T]he question has been addressed by the commission on human rights and opportunities (commission), which, pursuant to General Statutes §§ 46a-54 and 46a- 56, is charged with effectuating the provisions of the act. We traditionally have accorded deference to the time-tested interpretation of an agency charged with enforcing the provisions of a statute, provided that ‘‘the agency’s interpretation has been formally articulated and applied for an extended period of time, and that interpretation is reasonable.

The Court goes on to note that the Connecticut Commission on Human Rights and Opportunities (CHRO) has "consistently interpreted" Conn. Gen. Stat. 46a-60 to include a duty to provide a reasonable accommodation for 12 years.  The Court then notes that various Superior Court cases have also followed this rule.

However, the Court then adds that this does not end the inquiry. Rather, the Court must then determine if the CHRO's interpretation is "reasonable".  In doing so, the Court applied its rules of statutory construction.

Now, those who have been in Connecticut for a while, know that in 2003 the legislature passed Conn. Gen. Stat. 1-2z to make sure that the language of the statute is examined first. That statute states:

The meaning of a statute shall, in the first instance, be ascertained from the text of the statute itself and its relationship to other statutes. If, after examining such text and considering such relationship, the meaning of such text is plain and unambiguous and does not yield absurd or unworkable results, extratextual evidence of the meaning of the statute shall not be considered.

But, even though the statute contains no duty to provide reasonable accommodation, the Court does not find that to be an impediment.

When . . . a statutory provision is silent with respect to [the issue at hand], our analysis is not limited by . . . § 1-2z, which provides that the meaning of statutes shall be ascertained from only their text and their relationship to other statutes if those sources reveal an unambiguous meaning that is not absurd or unworkable. ...  In addition to the words of the statute itself, ‘we look to . . . the legislative history and circumstances surrounding its enactment, to the legislative policy it was  designed to implement, and to its relationship to existing legislation and common law principles governing the same general subject matter.

The Court also notes that federal anti-discrimination statute (and cases interpreting them) are also a proper resource for it. Although the statute "admits" that there is no reference to reasonable accommodation in the statute, the Court looks further to see if this would be an unworkable result.  The court first looks at language regarding a BFOQ.

[The statute] does include a bona fide occupational qualification (BFOQ) defense to discrimination—i.e., ‘‘except in the case of a [BFOQ] or need . . . .’’ General Statutes § 46a-60 (a) (1)... We therefore first consider the meaning of a BFOQ, namely, whether such qualification may be interpreted as either coextensive, or inconsistent, with a reasonable accommodation requirement for individuals with physical disabilities. As the court previously has recognized, a BFOQ is an all or nothing proposition that legitimately links the qualifications of the job directly to a protected traitunder the statute, thereby categorically excluding individuals in the protected class. ...

We determine then that the BFOQ defense and the duty of reasonable accommodation for employers of individuals with disabilities are neither
coextensive nor inconsistent. The statutory text does not speak to a duty of reasonable accommodation or other similar requirement. Nothing in the previous discussion, however, demonstrates that, by including a BFOQ defense, the legislature disclaimed a duty of reasonable accommodation.

Given its discounting of the BFOQ defense, the court then notes that it should look to other sources to determine the "intent" of the legislature.  The court notes some discussion in 1973 that suggests that the statute was intended to be broad and protect disabled people who are otherwise qualified for a job.  And the Court looks to other statutes passed by the legislature over the years that show its strong concern for protecting those with disabilities. 

And last, the court notes -- perhaps in an effort to justify its broad reading of the statute -- that other states have also imposed a reasonable accommodation, including some by "judicial gloss".  The Court therefore finds that the CHRO's interpretation is a reasonable one.

In upcoming posts, I'll look at the facts of the case, and the effect of this case on other disabilities. An interesting unanswered question is whether this would also apply to those with learning disabilities (which is a protected class in Connecticut).  Stay tuned.

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In a case that automatically vaults to the top of important disability discrimination cases in Connecticut, the Connecticut Supreme Court today held, in an issue of first impression, that employers have a duty to provide a reasonable accommodation to disabled workers under state law, even though the law does not explicitly say so. 

While the Americans with Disabilities Act applied this rule to employers under federal law for employers of 15 or more employees, small employers have been exempt from it, leaving workers only with the protection of a vague state law (Conn. Gen. Stat. 46a-60(a)(1)) prohibiting "physical disability" discrimination. 

The case, Curry v. Allan S. Goodman, Inc., was released earlier today, although practitioners are cautioned that it is not "officially" released until April 15, 2008. 

Although the Connecticut Commission on Human Rights and Opportunities has applied this rule for years to their view of cases, the Connecticut Supreme Court had yet to decide the issue, leaving employers (to which the Americans with Disabilities Act did not apply) with the thorny question of whether or not they had an obligation to provide a reasonable accommodation.  Certainly, some did; but others may not. 

The court's rationale is fascinating and I'll explore it more in upcoming posts.  Although the Connecticut statute was put in place almost two decades, the court said it was appropriate to still look to federal law for guidance. Since the reasonable accommodation requirement appeared in federal law, it was appropriate -- in part -- to add it here. There's more to the decision, of course, and I'll recap more later.

While the decision itself should be one that employers can follow, what's fascinating is that the Court has ignored various bills that have been proposed over the years at the legislature to add reasonable accommodation language to the statute.  After all, if the legislature "thought" such a requirement was already there and that was its "intent", why are there bills proposing adding such language?

For example, a 2004 bill would have changed the definition of "physical disability" to mirror the language.  A 2002 Senate bill called "the Preservation of Disability Rights" would have introduced language of a "qualified individual with a disability" that would have required reasonable accommodation. 

I'm not suggesting that its bad policy to add this; that's up to the legislature and/or the courts. But it seems a stretch to add a "reasonable accommodation" requirement to state law, when legislature never thought it important enough to do so itself. 

The Court then applies federal reasonable accommodation provisions (such as the interactive process) to the case at hand.  It also addresses the issue regarding light duty accommodation and what an undue hardship is.  I'll explore these provisions in future posts as well.

Until then, the case should be required reading for small employers in the state and their attorneys. 

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The Equal Employment Opportunity Commission (EEOC) issued guidance today for employers and veterans on workplace issues affecting veterans with service-connected disabilities.   You can download the guide for the employer here, and the guide for veterans here.

According to the EEOC press release:

The new guide for employers explains how protections for veterans with service-connected disabilities differ under the Americans with Disabilities Act (ADA) and the Uniformed Services Employment and Reemployment Rights Act (USERRA). The document further describes how the ADA in particular applies to recruiting, hiring, and accommodating veterans with service-connected disabilities. The EEOC enforces Title I of the ADA, which prohibits employment discrimination against people with disabilities in the private sector and state and local governments. The U.S. Department of Labor enforces USERRA, which applies to the reemployment of veterans with and without service-connected disabilities.

The guides contain a list of resources on USERRA and the ADA as well as information on organizations that can assist employers who want to recruit and hire veterans. 

I previously posted about USERRA and the protections it offers to veterans last Veteran's Day. 

 

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A few years ago, there was lots of debate among attorneys about whether summary judgment was still a disfavored remedy in employment discrimination cases in federal court.  (For those readers unclear what "summary judgment" is, the Wikipedia entry is a pretty good start and George's Employment Blawg has a nice post about how to best prepare a motion for summary judgment.) 

If the latest in a series of recent decisions by Judge Vanessa Bryant is any indication (see prior posts here, here and here), summary judgment is still alive and well. 

In Grunberg v. Quest Diagnostics, Inc., Judge Bryant was faced with a multi-count complaint alleging claims under the Americans with Disabilities Act (“ADA”), 42 U.S.C. § 12101 et seq., the Family and Medical Leave Act (“FMLA”), 29 U.S.C. § 2601 et seq., the Connecticut Fair Employment Practices Act (“CFEPA”), Conn. Gen. Stat. § 46a-60 et seq., and Connecticut common law.  The court granted Quest's request for summary judgment on each and every count. 

The decision itself is fairly routine in its analysis of the issues. Among the notable points:

• Employees cannot rely on generalized statements of progressive discipline in an employee handbook to create a "contract" claim, particularly if the employer has set forth adequate disclaimers.
• An employee cannot prevail on an FMLA claim, where the employer can show that it had already made a decision to remove the employee from his/her position prior to the exercise of FMLA rights.  This is important for employers to understand; the employee need not be notified of the decision in order to invoke this protection, but the decision must have already been made in one fashion or another.

So, does this decision signal a trend of granting summary judgment in Connecticut?  No, at least not generally. Certainly, Judge Bryant has shown that she is not afraid to use this procedural device to dispose of cases.  But each federal district court judge in Connecticut has their own style of handling cases.  Indeed, in a prior post, I noted that two federal court judges even outlined their summary judgment philosophies in their chambers practices.

For example, Judge Thompson believes that "dispositive motions are overused. In discrimination cases, he rarely grants motions for summary judgment that dispose of the entire case." ...  Judge Droney, however, states that, "in employment cases, for example, many summary judgment motions and motions to dismiss are being filed. He believes that most of these motions have merit and need to be considered by the court."

Thus, when employees and employers are in federal court, the best way to evaluate a case may not be to merely look at the merits of the case, but to also understand the judge's philosophy and history as well.  An employer who may have a shot at summary judgment (thereby avoiding the cost of a trial) may value a case entirely differently than a party who knows that the case is going to trial regardless of what the parties uncover during discovery. 

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Several months ago, I posted on legislation pending before Congress called the ADA Restoration Act of 2007.  Today seems a particularly apt time for an update.

The U.S. House's Committee on Education and Labor is holding a hearing today on H.R. 3195.  The hearing is being webcast on its website here.  Several witnesses are slated to testify. 

Both SHRM and the American Association of People with Disabilities are portraying this time period as critical for consideration of the bill.  A vote on the bill could come up to the house, according to these advocates, sometime in February.  Whether the bill will pass appears up in the air as the bill lacks a sufficient number of co-sponsors to assure its passage in both houses.

George Lenard of the Employment Blawg shared his view on the Act as well.  It's worth checking out in full.  Here's a portion:

There have been some cases in which the definition of “disability” has been construed too narrowly, preventing individuals with quite substantial impairments from having their day in court.

But the definition as it now stands is a sound one, and the Supreme Court cases were correctly decided under this definition.

The problem has largely been one of bad lawyering. It has taken too long for lawyers representing plaintiffs in disability cases to learn that the threshold issue of meeting the definition of “disability” is absolutely critical, and requires extensive factual development, often with multiple expert witnesses.

SHRM’s position is excessively alarmist — although I agree the proposed law is unnecessary and I oppose it without qualification.

As I stated before, I'm not sure I agree with the use of the term "restoration".  Indeed, it's a dangerous road to go down by attempting look back to where we were 17 years ago in employment law and say the law isn't what we intended it to be.  The law -- as with all laws -- has evolved over time as "real-life" cases get interpreted. For example, does someone with MRSA qualify as a disability? Since MRSA wasn't even an issue 15 years ago, the law has to be interpreted to address this question. 

I would rather the backers of the bill engage in an intellectually honest debate of whether amendments to the ADA should be made rather than claim that they are merely "restoring" it.  The use of that type of loaded terminology (see, for example, "No Child Left Behind") does not add to the debate of whether the proposed amendments are a good or bad idea.

Indeed, an interesting article by The New York Times last week also asked whether some disabled people might actually be worse off with the passage of the ADA.  

Lastly, for those who are interested in more on the subject, the ReunifyGally Blog has been constant in its updates.

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There's been a lot of good material this week and there just isn't time for full-fledged posts on each of them. But check these other posts for some additional information or background on various employment-law topics that may have an impact in Connecticut.

• The Word on Employment Law has a good alternative take on the Tribune Company's new employee handbook that I posted on yesterday.  Ultimately, I don't think John and I differ that much -- keeping handbooks readable to employees (and avoiding unnecessary legalese such as "whereas" or "notwithstanding the foregoing") is an important goal in any drafting exercise.  But making sure that your handbook doesn't confuse your employees or send your employees mixed messages is just as important as well.  The Ohio Employer's Blog has also added some insight too. 
  
• Overlawyered refers to a New York Times article over the weekend about the unintended consequences of the Americans with Disabilities Act.
• Ross' Employment Law Blog  talks about the decision late last week by U.S. Supreme Court' to take on three new employment law and ERISA cases this term.  The cases will address issues such as: "Is cooperating with internal investigation protected activity" and "Which party has burden of persuasion in establishing 'reasonable factors other than age.' under the ADEA."  It will also address the ERISA question of what standard of review should apply where a plan administrator both decides claims and pays claims.  Ohio Employer's Blog also chimes in on the subject as does the Workplace Prof. 
  
• Workplace Horizons reports on a potential new Microsoft program that would take employee monitoring to a whole new level.  A patent application by Microsoft describes a system of components that would use various "physiological or environmental sensors to detect at least one of heart rate, galvanic skin response, EMG, brain signals, respiration rate, body temperature, movement, facial movements, facial expressions, and blood pressure.”
• And finally, there was this amusing article from the BBC which asks the question: Why Do U.S. Pickets Walk in Circles? (H/T Workplace Prof.)  Apparently, union workers strike differently over the big pond.
  

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Last month, I reported that the U.S. Supreme Court had agreed to hear the case of Huber v. Wal-Mart, to decide whether disabled employees must be reassigned to a vacant position for which they are qualified or merely be permitted to apply for such a position.

Yesterday, however, the U.S. Supreme Court agreed to dismiss the matter because the parties had reached a settlement. 

Multiple blogs have commented on it including the Ohio Employer's Law Blog, and SCOTUS Blog.  A few news articles also have provided coverage, including this blurb from Bloomberg, which indicated that the case settled on Friday for undisclosed and confidential terms.   

It's unfortunate that we won't have any guidance from the Supreme Court on this subject but I would expect the Court to find a case with similar facts to take up in the upcoming months.  (I would also expect other attorneys with similar cases to file their petitions with the court shortly.)  In the meantime, employers will be left to struggle with the question and risk second-guessing before we receive further guidance from the court.

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It has been a pretty light week in Connecticut as far as noteworthy developments in employment law is entailed.  The legislature is out of session and the courts unusually light in issuing anything new (much less noteworthy).

So, I thought I would recommend a few posts that have caught my eye over the last week or so that are both topical and informative:

• Michael Moore, over at Pennsylvania Employment Law Blog, as a post about the limits of customer preferences in employment decisions.  The post discussions a recent appeals court decision.  Ultimately, Michael concludes:
  

The presumption underlying “customer preferences” is that people prefer to interact with those of the same race, gender, religion, or other characteristic. Employment decisions are justified by appealing to a target demographic group. Courts have universally rejected customer preference as a basis for employment decisions except in the narrow case where it is a Bona Fide Occupational Qualification (BFOQ).

• The Workplace Prof blog (as well as the Ohio Employer's Law Blog) has a post about this week's U.S. Supreme Court argument in Kentucky Retirement Systems v. EEOC.  The case is at the intersection of age discrimination law and public pension plans.  I was thinking about writing it myself, but the subject matter is a bit dry -- even for my tastes. Nevertheless, I don't think I could say it better than WorkPlace Prof, so take a look for yourself.
  
• The ABA Journal had a short post about a Massachusetts secretary who had claimed that she had a disability and was fired for it.  Except she didn't. At least that's what an investigator found. Indeed, she :

claimed she had a disabling spinal condition, but the detective videotaped her “working in her yard, repeatedly bending over, carrying heavy bundles, walking up and down stairs without difficulty, and walking without a limp or a cane,” the Massachusetts Appeals Court wrote Monday in an opinion.... "She was also physically able to drive 40 minutes each way to a casino in Lincoln, R.I., and to sit playing slot machines for three hours, while claiming that her back problems would not permit her to sit at her desk and type,” the opinion said.

After the investigation found that she was a fraud, the employer terminated her employment. The court upheld the dismissal. 

• I may get around to posting on it myself, but Michael Fox and others have picked up on whether "maternal profiling" is the new "buzz" discrimination claim. What is it? Essentially, claims against women who have children or may have children.  Will this be a hot claim in 2008? Mike's guess is as good as mine (which I gave a few days ago.)
  
  
• Finally, Frank Roche at KnowHR, has a little post about the Dunning-Krueger Effect and HR.  What is it? The Dunning-Kruger effect is the phenomenon wherein people who have little knowledge think that they know more than others who have much more knowledge.  Frank notes that he views the Dunning-Kruger Effect as “'Everyone with a pen thinks he’s a communicator,' or, 'Everyone is a compensation professional.' In HR we face this a lot — people who think they know more than they do."  Worth checking out. Of course, whether that will ever displace The Peter Principle, remains to be seen.

Of course, now that I've posted this, I'm sure the courts will be opening the flood gates of noteworthy opinions.  Perhaps even something from the Supreme Court? We'll wait and see.

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Like countless others today, I'm back from vacation  -- and looking to dig out from the mail and e-mails that have built up, and the unread blog posts over the last 10 days.

Avoiding the temptation to just "delete all", here are a few of the blog posts I've starred (you ARE using Google Reader, right?) that are worth reading to figure out what you've been missing over the holidays.

• Jon Hyman, at Ohio Employer's Law Blog, has a good post on some new rules by the EEOC regarding retiree health benefit packages.

Pursuant to a new Rule published yesterday by the EEOC, employers can take Medicare into account when structuring retiree health benefit packages without violating the age discrimination laws. The rule clarifies the long standing practice of most companies that provide retiree health benefits, by which they reduce their health insurance expenses for retired workers once they turn 65 and qualify for Medicare. In other words, employers can lawfully spend more on retirees under the age of 65 years than those over 65 without running afoul of age discrimination laws.

• What's New in Employment Law has an interesting post about a 9th Circuit case about an employer that used hearing tests for certain truck drivers it employed.  The case discusses whether hearing is an essential function.  But more importantly, it appears to carve out a new defense under the ADA that seems to be a "business necessity" defense. 
  
• Evil HR Lady has a simple and straightforward post about diversity training and the pitfalls that such a training may lead to.  She then has some advice on how to treat employees.  Point 1? "People are Different." Point 2? "We should be polite to people--even those who look/talk/dress/act differently than we do."  Forget legal jargon; this is a good reminder that the best advice is often told in plain English.
  
• Workplace Horizons, has a noteworthy post about how the NLRB will be operating with only two members and how it plans to do so for the foreseeable future.  Workplace Prof had a simliar post with further thoughs on the subject too.
  
• Mark Toth, over at the always amusing Manpower Employment Law Blog has his thoughts on the Top 10 Cases of 2007.
  
• John Phillips, at The Word on Employment Law has a notable post about what employers should think about if they discovery child pornography on workplace computers. 
  
• Kris Dunn at the HR Captialist, spotted a year-end list of the some 20 HR articles of 2007.

As you can see, plenty of folks worked through the holidays to keep up on things. 

Now, if only everyday were a "Zero E-mail Friday".  

Best wishes in 2008.

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The U.S. Supreme Court this afternoon granted certiorari to an important question under the Americans with Disabilities Act, namely whether disabled employees must be reassigned to a vacant position for which they are qualified or merely be permitted to apply for such a position.

In Huber v. Walmart, the Eighth Circuit held for the employer in concluding that:

the ADA is not an affirmative action statute and does not require an employer to reassign a qualified disabled employee to a vacant position when such a reassignment would violate a legitimate nondiscriminatory policy of the employer to hire the most qualified candidate. ... Thus, the ADA does not require Wal-Mart to turn away a superior applicant for the router position in order to give the position to Huber. To conclude otherwise is “affirmative action with a vengeance. That is giving a job to someone solely on the basis of his status as a member of a statutorily protected group.” [citation omitted]

Here, Wal-Mart did not violate its duty, under the ADA, to provide a reasonable accommodation to Huber. Wal-Mart reasonably accommodated Huber’s disability by placing Huber in a maintenance associate position. The maintenance position may not have been a perfect substitute job, or the employee’s most preferred alternative job, but an employer is not required to provide a disabled employee with an accommodation that is ideal from the employee’s perspective, only an accommodation that is reasonable.

The SCOTUSBlog, as usual, has the particulars including the opinion below, the petition for certiorari and the brief in opposition. Expect more analysis to come.

UPDATE: Oral argument is likely to be held in March 2007, with a decision by the end of the term in June 2007.

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In one of my first  posts, I highlighted an article regarding the legality of personality tests.  In it, I noted that the EEOC had held a fact-finding session and was likely going to issue some further guidance.  Well, that day has arrived.

The EEOC issued a fact sheet on employment testing today, announced in this press release.  The fact sheet, which can be accessed here, contains all sorts of helpful information for employers, including a best practices approach and a primer on the applicable federal laws.  Suffice to say that some of the suggestions are fairly obvious, but here they are:

• Employers should administer tests and other selection procedures without regard to race, color, national origin, sex, religion, age (40 or older), or disability.
• Employers should ensure that employment tests and other selection procedures are properly validated for the positions and purposes for which they are used. The test or selection procedure must be job-related and its results appropriate for the employer’s purpose. While a test vendor’s documentation supporting the validity of a test may be helpful, the employer is still responsible for ensuring that its tests are valid under [applicable procedures].
• If a selection procedure screens out a protected group, the employer should determine whether there is an equally effective alternative selection procedure that has less adverse impact and, if so, adopt the alternative procedure. For example, if the selection procedure is a test, the employer should determine whether another test would predict job performance but not disproportionately exclude the protected group.
• To ensure that a test or selection procedure remains predictive of success in a job, employers should keep abreast of changes in job requirements and should update the test specifications or selection procedures accordingly.
• Employers should ensure that tests and selection procedures are not adopted casually by managers who know little about these processes. A test or selection procedure can be an effective management tool, but no test or selection procedure should be implemented without an understanding of its effectiveness and limitations for the organization, its appropriateness for a specific job, and whether it can be appropriately administered and scored.
  

As I noted previously, Connecticut does not have any major caselaw on this topic. Moreover, courts here will typically mimic federal law anyways, so it is certainly a good idea to familiarize yourself with the topic and implement the best practices recommended by the EEOC for these types of tests. As the year comes to a close, it's a good idea anyways to audit your personnel policies and procedures to ensure that they are compliant with current law.

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For over 15 years, the Americans with Disabilities Act has been the subject of lots of hand-wringing inside human resources departments across the country. Phrases such as "reasonable accommodation" and "undue hardship" took on new meanings.  And of course, the Act spawned lots of litigation to determine the parameters of the act.

Now, a Senate Committee is looking into making tweaks to the ADA or, depending on your views, wholesale changes through a new bill making the rounds. The bill, entitled in Orwellian doublespeak as "Americans with Disabilities Act Restoration Act of 2007", would amend the Americans with Disabilities Act of 1990 to add definitions and rules of construction permitting greater opportunities for recovery than exist under current judicial interpretations allow. The Committee heard testimony last week from several individuals.

The Workplace Horizons blog has a good summary of the exact changes and has been tracking this bill as it makes its way through Congress. 

The Bill was introduced over the summer by Senator Tom Harkin who, in his internet saavy skills, posted this video to YouTube describing the bill.

Among those who testified was Dick Thornburgh, currently counsel to the national law firm of Kirkpatrick & Lockhart Preston Gates Ellis LLP, resident in their Washington, D.C. office. He is the former Attorney General of the United States and the former governor of Pennsylvania.  He actually spoke on the subject many months ago at a visit to a university -- which posted excerpts from his speech there. 

So, where does this bill go from here? On a bus tour, naturally.  Indeed, the bus visited Connecticut several weeks ago in an event attended by leaders of both political parties. But the bill still has a ways to go.

There are many blogs and posts tracking or commenting on this bill, including the American Association of People with Disabilities and Reunify Gally. 

For employers, we often track court cases without realizing that legislation can have just as dramatic an impact.  Will this bill a "hot topic" next year? It hasn't taken off yet, but with the election cycle in full swing, it remains to be seen whether this bill will catch on.

(Note: Links have been updated per comments.)

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The Connecticut Lawyer has an interesting article in the last month on the Legality of Personality Tests under the ADA. The article, written by Connecticut Bar Association member Joshua Hawks-Ladds, "explores the ADA's impact on personality testing in the workplace, and discusses what type of assessment tools will withstand ADA scrutiny and when these tools can lawfully be implemented." As Joshua notes, the ADA prohibits employers from "using tests or questionnaires that are meant to, or that incidentally, result in discrimination against disabled individuals."

What remains unanswered from the article (and outside its scope) is how prevalent testing really is, particularly in Connecticut. The article does not cite any Connecticut cases or Second Circuit cases.

An EEOC meeting on May 16, 2007, shows however that this is a topic of increasing interest. As noted in their press release:

The U.S. Equal Employment Opportunity Commission (EEOC) today held a public meeting to gather information and address emerging trends in workplace testing and selection procedures, as employers seek lawful and efficient ways to screen large numbers of applicants. Discriminatory employment tests and selection procedures violate EEOC-enforced federal laws, including Title VII of the Civil Rights Act, the Americans with Disabilities Act, and the Age Discrimination in Employment Act.

“Today employers commonly use a range of employment tests and other screening tools to make hiring, promotion, termination or other employment decisions,” said EEOC Chair Naomi C. Earp. “With the growth of technology, buttressed by post-9/11 security concerns, it is important that employers review their applicant selection procedures to ensure they are non-discriminatory.”

If employees and employers are looking for topics that have yet to be fully litigated or explored, the use of personality tests seems ripe for consideration.

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