Denial of ADA claim affirmed based on employee's failure to negotiate

In a 2-1 decision, the First Circuit Court of Appeals affirmed the decision of a federal judge in Maine to dismiss a claim of disability discrimination brought by a diabetic department store employee because the employee quit in the middle of negotiating a reasonable accommodation. The decision sparked a strong dissent by Judge William Kayatta, who asserted that the decision demanded "too much resilience and persistence" by a disabled employee and improperly took away the fact-finding responsibility from the jury. For an understanding of the decision and the basis of the dissent, a brief description of the facts is required.

The employee, Pamela Manning,  was a Type I diabetic employed at Kohl's department store. To treat her diabetics and prevent complications, she needed to self-administer five insulin injections each day timed with her food intake. Prior to requesting her accommodation, she had been required to work an unpredictable schedule as other employees were. This required some night shifts, some day shifts, and sometimes required her to close the store the night before working an early morning shift -- a so-called "swing shift." She obtained a note from her doctor stating that the unpredictable schedule made it difficult for her to monitor her blood sugar and that a predictable schedule would allow her to smooth her blood sugar levels and prevent serious complications. Manning brought the note to her supervisor, who spoke with human resources and was then told that the company could not promise a predictable work schedule, but it could promise no more "swing shifts." The supervisor then met with Manning and told her that the store could not provide her requested accommodation because it would need to offer the same flexibility to all employees. Manning then left the meeting and said she had no choice but to quit. Her supervisor chased after her and asked her not to quite and to keep talking, but did not offer any specific accommodation.

The Court affirmed the decision of the District of Maine, which granted summary judgment to Kohl's on the failure to accommodate claim and a related claim of constructive discharge. The Court, in an opinion written by Judge Juan Torruella, found that Manning was at fault for quitting in the middle of the negotiation regarding her requested accommodation, and that no reasonable jury could find that Kohl's failed to engage in a good faith interactive process to determine a reasonable accommodation for Manning, as required by the American with Disabilities Act. (Perhaps surprisingly, Judge O. Rogeriee Thompson, an Obama appointee, joined the Reagan appointee's decision). Judge Kayatta's dissent argued that the evidence could easily allow a jury to conclude that Kohl's negotiated in bad faith, as evidenced by its failure to offer any accommodation at all even though its human resources department had authorized the supervisor to offer Manning the accommodation of no "swing shifts".

In unusually strong terms, Kayatta closed his dissent by stating: "As far as I can tell, this is the first time that any circuit court has held that an employer can reject an accommodation request backed up by a doctor's note, refuse to offer an accommodation that it has determined in can make, falsely claim that any accommodation must be offered to all workers whether disabled or not, and then declare the employee's ADA rights forfeited when she gives up." If Judge Kayatta is correct, then the Manning decision is a troubling development in the area of ADA case law. The only saving grace is that the majority decision expressly stated that its holding was limited to the unique facts of the case, although such a sentiment is often expressed in controversial decisions. Only future courts can determine whether the limitation holds true.

"Get naked" comment not enough for sexual harassment

It is never easy to predict what conduct a court will consider serious enough to constitute sexual harassment, but telling a subordinate to "get naked" is apparently not enough. A judge of the United States District Court in Boston decided last week that a single comment by a supervisor for a subordinate to "get naked" when he was about to tell her bad news did not rise to the level of sexual harassment. The court explained that while a single incident or comment can sometimes create a sexually hostile work environment, this particular comment was not sufficiently egregious considering the context. The plaintiff continued to speak with the supervisor after the comment was made in a supportive manner.

 While it is usually a jury question - and not appropriate for a court to decide prior to trial - whether conduct amounts to sexual harassment, this decision illustrates that there will always be instances when allegations simply are not serious enough. As I tell all of my clients, no one is guaranteed a hassle-free, sanitized workplace. For harassment to be illegal, it must 1) be based on a protected status (gender/sexual, race, ethnicity, etc.), 2) be serious or pervasive, and 3) alter the conditions of employment. A single comment can make a case, but it has to be something outrageous. The outcome of this case does not surprise me at all. (A retaliation claim brought by the same plaintiff in this case was not dismissed.)

Supreme Court to decide pregnancy discrimination rule

The Supreme Court of the United States is set to hear arguments on December 3 on whether employers must treatment pregnancy-related disabilities on par with non-pregnancy related disabilities under federal law. While the issue may seem significant only to legal scholars , it has far-reaching practical effects. The plaintiff, Peggy Young, needed a break from heavy lifting at her UPS job due to her pregnancy, according to her doctor. In response, UPS placed Young on unpaid leave, rather than give her light duty, which is an accommodation it gave to workers who suffered on-the-job injuries. The issue now before the Supreme Court is whether UPS violated the law by treating Young's need for accommodation differently than it would have had she needed the accommodation due to an on-the-job injury. The Pregnancy Discrimination Act of 1978 requires employers to treat employee with work limitations due to pregnancy the same as similarly-abled employees with limitations due to other reasons.

Many employers, including UPS, have revised their internal policies to require equal treatment of pregnancy-related requests for accommodations. But the issue is one that is likely to recur for many pregnant women and the case should result in a uniform rule. The Supreme Court should decide the case by June.

MCAD Gets Flak For Massive Backlog

The Massachusetts Commission Against Discrimination is overwhelmed with cases. While that fact has long been known to lawyers who practice at the Commission, it was only recently publicized in a WBZ-TV news story. As part of the news segment, WVZ interviewed Commissioner Jamie Williamson, who chairs the Commission, and even she acknowledged that the workload does not allow the Commission to fulfill its mission.

In this writer's opinion, the truth is much worse than what the story reported. While WBZ noted that cases can take three to four years to reach completion,  cases that proceed to a full hearing ake  much longer. I have had cases where the MCAD took over three years just to issue a probable cause finding. This delay results in egregious injustice when the decision is a lack of probable cause, because Chapter 151B -- the state anti-discrimination statute -- has a three year statute of limitations, which means that after three years from date of the discriminatory action, the employee can no longer file a lawsuit. This is true even if the employee has already filed at the MCAD. A lack of probable cause issued three years later means the employee is prevented from going to court by a decision written often by a legal intern.

Transgender federal employee subjected to discrimination

Last Thursday, the U.S. Office of Special Counsel determined that the Army discriminated against a male to female transgender employee by consistently referring to her with male pronouns, restricting her bathroom use, and refusing to give her work. The Washington Post reports that Tamara Lusardi, a veteran and civilian Army software specialist, was reportedly called "he" and "it" after she transitioned from male to female in 2010 and . Regarding the restriction on her use of the bathroom, the Army contended that other female employees felt uncomfortable with her presence in the bathroom. The Office of Special Counsel responded that co-worker preference cannot alone justify workplace discrimination.

The decision is another example of how transgender persons are finding increasing protection in employment anti-discrimination laws.  The decision is also remarkable for another reason: Army officials appear to have at least attempted to treat Ms. Lusardi's transition respectfully. According to the report, one official told her to mindful that some employees did not understand what she had gone through and why she used female restrooms; this same official, while expressing concern for the comfort of co-workers, consistently expressed a desire for Ms. Lusardi to be treated with fairness and respect. As this case shows, the good intentions of an employer are not enough. Discrimination does not require evil intent; it simply requires treating an employee differently on the basis of a protected characteristic. Even when employers do this for benign reasons, they still violate the law.

Harvard professor alleging retaliation for supporting students

A professor at Harvard University has filed a charge of discrimination with the Massachusetts Commission Against Discrimination alleging that the university retaliated against her for supporting female students who had complained about Harvard's response to sexual assaults on campus. Kimberly Theidon, an associate professor of anthropology, alleges that she was denied tenure, despite being previously described as a strong candidate, after she posted comments in March 2013 in response to a Harvard Crimson article about sexual assaults. In the comments, Theidon defended the anonymous victims of sexual assault who were quoted in The Crimson, and argued against self-identified “men’s rights” activists commenting on the story.

The complaint was filed in late March 2014. Typically investigations into charges of discrimination at the Commission take anywhere from nine months to two years until a finding of probable cause or lack of probable cause is made.