7th Circuit: "The ADA does not require employers to reassign employees, who will lose their current positions due to disability, to a vacant position for which they are qualified."

The Court of Appeals for the Seventh Circuit recently released an opinion in an Americans with Disabilities Act Case, EEOC vs. United Airlines, Inc., Case No. 11-1774, holding that the ADA does not require employers, as a reasonable accommodation, to reassign employees, who will lose their current positions due to disability, to a vacant position for which they are qualified.  


The 7th Circuit's opinion was very short as the issue had been addressed in EEOC v. Humiston-Keeling, 227 F.3d 1024, 1029 (7th Cir. 2000), but the EEOC attempted to argue that the Supreme Court’s ruling in US Airways, Inc. v. Barnett, 535 U.S. 391 (2002), undermines Humiston-Keeling.  However, the 7th Circuit maintained that "several courts in this circuit have relied on Humiston- Keeling in post-Barnett opinions, though it appears that these courts did not conduct a detailed analysis of Humiston-Keeling’s continued vitality."


At issue was United's "Reasonable Accommodation Guidelines that address accommodating employees who, because of disability, can no longer do the essential functions of their current jobs even with reasonable accommodation. While the guidelines note that “transfer . . . [to] an equivalent or lower-level vacant position” may be a reasonable accommodation, the guidelines specify that the transfer process is competitive. Accordingly, an employee will not be automatically placed into a vacant position. Instead, employees needing accommodation will be given preference, meaning they can submit an unlimited number of transfer applications, they are guaranteed an interview and they will receive priority consideration over a similarly qualified applicant."  The EEOC filed suit alleging this policy violated the ADA asking the Court to reconsider its stance and find reassignment required by employers to reasonably accommodate disabled employees.

Should I File My Employment Discrimination Claim with the EEOC or the ERD?

A commonly misunderstood and confusing part of employment law litigation for employees who feel they have been discriminated against in Wisconsin is whether to file their claim with the Wisconsin Equal Rights Division (ERD) or the Equal Employment Opportunity Commission (EEOC).  While both entities were created to allow people to file discrimination complaints, there are very big differences between the two agencies that people ought to be aware of before filing their discrimination claims.


Equal Rights Division
The ERD is a state-level administrative agency under the Wisconsin Department of Workforce Development that processes and handles employment discrimination claims filed under the Wisconsin Fair Employment Act (WFEA).  The ERD does not deal with federal laws like the Americans with Disabilities Act (ADA or Title VII, but the WFEA covers disability and race discrimination claims, among other things.  The difference with filing a claim with the ERD is that it tends to be a faster process but the downside, now, is that claimants are limited in the damages (money) they can be awarded if they prevail.  As discussed in a previous blog post,  Wisconsin is very close to repealing the law enacted to allow prevailing claimants to be awarded punitive and compensatory damages, which are available under federal laws.  Thus, prevailing claimants who file claims with the ERD are limited to what is known as a "make-whole remedy."


The other important differences with filing a claim with the ERD is that there is no filing fee, it's easier and simpler to file a claim as they are not subject to a motion to dismiss and the ERD recently began offering a mediation service that is free of charge handled by ERD administrative law judges.  People who feel discriminated on the basis of their arrest and conviction record or sexual orientation must file their claim with the ERD as there is currently no federal law that protects against this type of discrimination.


Equal Employment Opportunity Commission
The EEOC is the federal agency that processes claims filed under federal laws like the ADA, ADEA, Title VII, EPAand GINA.  While the EEOC is an excellent agency, it often takes claims much longer to be investigated and processed and more often than not, the EEOC does not prosecute claims and issues charging parties a "Right to Sue" letter, which gives charging parties 90 days to file suit in federal court on their own with the assistance of a private attorney, if they choose and can afford one, or forever have their claim dismissed.  Once a charging party receives a Right to Sue letter, they have to pay a filing fee, serve the defendant and then follow the Federal Rules of Civil Procedure which are quite onerous.  One of the major advantages to pursuing claims under federal law is the ability to pursue compensatory and punitive damages--that is, a successful plaintiff is eligible to receive a lot more money if they prevail.  


People who feel they have been discriminated against in their employment are encouraged to discuss their case and options with a local employment law attorney prior to filing their claims, even if they feel they cannot afford an attorney.  

Wisconsin Law Allowing Compensatory and Punitive Damages Soon to be Repealed

A very short-lived law in Wisconsin that allowed winning complainants in discrimination cases in the Equal Rights Division (ERD) a chance to be awarded compensatory and punitive damages is on the verge of repeal after the state Assembly passed Senate Bill 202, which seeks reversal of the Governor Doyle-signed bill from 2009.


Governor Walker is expected to sign the bill and that will leave discriminated employees with the option of filing with the ERD and only receiving what is called a "make-whole" remedy limited to back pay, lost benefits, costs and attorney's fees or filing in federal court, which is a much more onerous and difficult route.  Attorney Aaron Graf has a good article on the Wisconsin Journal's website here on the law change.

Wisconsin Governor Scott Walker Signs Job Training Bill

Wisconsin Governor Scott Walker signed a job training bill that creates a pilot program to give people on unemployment a chance to take part-time training jobs with employers that could lead to full-time work.  Participants in the one-year program will get an additional $75 a week in unemployment benefits.  The Milwaukee Journal Sentinel has a very brief article on the signing of the bill here.

Have I Been Properly Labeled as an Exempt Manager for Overtime Purposes Under the FLSA?

As many people are aware, some employees are exempt from over time pay but don't necessarily know why.  The Fair Labor Standards Act (FLSA), the law that governs wage & hour law and overtime pay, specifically excludes--or exempts--from overtime pay, “any employee employed in a bona fide executive, administrative, or professional capacity.”  However, simply labeling an employee a "manager" or "supervisor" will not automatically exempt that employee from receiving overtime pay.  

The FLSA sets forth specifics guidelines that must be met for an employee classified in a managerial or other exempt status to be classified correctly.  To qualify for the executive exemption under the FLSA, an employee must perform office or non-manual work, and the employee’s duties must meet all of the following criteria:

• The employee must have a “primary duty” of managing the enterprise or a customarily recognized department or subdivision of the enterprise;
• The employee must customarily and regularly direct the work of at least two or more other full-time employees (or the equivalent); and
• The employee must have the authority to hire or fire other employees, or the employee’s suggestions and recommendations as to the hiring, firing, advancement, promotion, or any other change of status of other employees must be given particular weight.

An employee classified as exempt must also be an authority over a legitimate subordinate set of employees.  That is, an employee will not qualify as an exempt executive unless the employee manages a “customarily recognized department or subdivision.” The “department or subdivision” must be a recognized unit within the employer’s organization; it cannot simply be a collection of individuals. The employee must do more than merely supervise two or more employees; he or she must be in charge of and have as his or her primary duty the management of the recognized unit.

Most employers are accurate and in good faith properly classify their employees though some court cases have shed light on those who have classified improperly.  In  Goodrow v. Lane Bryant, Inc., 432 Mass. 165, 173 (2000), the court held that having "manager" in an employee's title is not enough to qualify as exempt if they merely manage a function, project, account, etc.  In  Ely v. Dolgencorp, LLC, 2011 U.S. Dist. LEXIS 140882 (E.D. Ark. 2011), the Court noted that areas of business like retail need to be careful as many employees labeled in management may spend the majority of their time performing non-exempt work as part of a multi-level management system.

In addition to the work performed by an employee in an exempt position is the compensation they receive.  The FLSA requires the exempt employee must regularly receive a pre-determined amount of compensation every pay period, regardless of the quality or quantity of the employee’s work. The minimum amount required by the FLSA is $455 per week. Some states, such as California, require higher minimum salaries. Certain deductions from the employee’s salary could cause the employee not to meet the salary basis requirement and, therefore, not qualify for the exemption.

Thus, it is not always black-and-white or so easy to determine whether an employee has been properly classified as exempt from overtime pay under the FLSA so if you believe you are improperly classified, contact a wage & hour attorney to assess your case.

EEOC Settles Religious Discrimination Suit Over Applicant Rejected for Not Being Able to Work Saturdays

The Equal Employment Opportunity Commission (EEOC) has announced a settlement in a religious discrimination suit filed against Convergys Customer Management Group, a subsidiary of the Cincinnati-based Convergys Corp, a global provider of customer management services.  Convergys will pay $15,000 to the Plaintiff, Shannon Fantroy, who applied for a job with the Defendant but was cut off during the interview when he told the Defendant that he could not work Saturdays for religious purposes.  Specifically, Fantroy’s religious beliefs as a Hebrew Israelite require him to observe the Sabbath from sunup until sundown on Saturday. A recruiter for Convergys interviewed Fantroy and told him that he would have to work weekends. The Commission said that Fantroy informed the recruiter that he was unable to work on Saturdays due to his religious beliefs. The recruiter then told Fantroy that the interview was over unless he could work Saturdays, the EEOC asserted.


Part of the settlement agreement also included a consent decree, which will have to be approved by the court, that provides injunctive relief, including training for recruiters on religious discrimination and accommodation law, and a new procedure for recruiters that will allow applicants to request a religious accommodation once they are offered a job, and will require the interview/application process to be completed even if the applicant informs the recruiter about the need for a schedule adjustment. In addition, all applicants during the decree’s two-year term will receive written notice that they may be entitled to an accommodation.


The case is EEOC v Convergys Customer Mgmt Group, No 4:11-cv-00395-AGF

Summary of NLRB Decisions for the Week of February 13-17, 2012

Click here.

4th Circuit Holds Employee Not Disabled Under ADA Because Able to Work 40 Hour Work Week

Plaintiff sued under the Americans with Disabilities Act (ADA) alleging that he had been discriminated against after his employer failed to accommodate his impairment which disabled him from working more than eight hours per day and rotate day/night shifts.  The Defendant-employer moved for summary judgment arguing that since the plaintiff was physically able to work a normal forty hour work week and had not demonstrated that his impairments significantly restricted the class of jobs or a broad range of jobs available to him, he could not establish that he had a "substantial" limitation upon which to base a claim of disability under the ADA.  The lower court granted summary judgment in favor of the Defendant-employer and the Court of Appeals for the Fourth Circuit AFFIRMED.

In affirming the lower court, the 4th Circuit held that because the plaintiff could still work a regular 40-hour week and was only unable to work at this particular employer's job site due to their change in scheduling that he was not a qualifying individual with a disability as that term has been defined under the ADA.  In the context of the ability to work, the plaintiff must show that the impairment "significantly restricted . . . the ability to perform either a class of jobs or a broad range of jobs in various classes as compared to the average person having comparable training, skills and abilities." 29 C.F.R. § 1630.2(j)(3). Further, the "inability to perform a single, particular job does not constitute a substantial limitation in the major life activity of working."  The court further noted that an employee will not be considered disabled if they cannot perform overtime work but can work at least 40 hours per week.

The case is Boitnott v. Corning Incorporated, Case No. No. 10-1769.

IRS Offers Voluntary Program for Employers Misclassifying Employees to Come Forward and Avoid Hefty Fines and Penalties

The Internal Revenue Service (IRS) is offering an interesting program to employers who are misclassifying employees as independent contractors to come forward and avoid interest and penalties while making "minimal payments" in unpaid payroll taxes.  The program, the Voluntary Classification Settlement Program (VCSP), has some employers reluctant to come forward as they do not know if the IRS will share the information with other government agencies who may slam them for other penalties and law violations but he IRS has issued an FAQ sheet. The FAQ resolved three key fears for employers:

• The IRS states that it will not share information about VCSP applicants with the Department of Labor or state agencies;
• An employer that applies for but is not accepted into the VCSP will not automatically be subject to an IRS audit; and
• Participation in the VCSP is not an admission of liability or wrongdoing with respect to employee classification issues.

Controversial Theory of Sexual Harassment Proposes Women's Cleavage Causes Sexual Harassment

It is beyond the scope of this blog post to fully delve into this area where psychology, evolution and law intersect but given my science background I found this article interesting but given my profession as an attorney, I do not see this going anywhere legislative-wise.  


In an Australian newspaper, pop psychologist Bettina Arndt posits a theory that suggests women, who are dressing more and more 'sexually,' may be responsible for their own sexual harassment given how "beta" men are wired and programmed from an evolutionary standpoint.  A good summary of the theory is written here.