Tag Archives: District of Columbia

Pregnant Worker

New Act to Protect Pregnant Employees

The Council of the District of Columbia recently passed The Protecting Pregnant Workers Fairness Act of 2014. This act requires employers to provide reasonable accommodations in the workplace “for workers whose ability to perform the functions of a job are limited by pregnancy, childbirth, a related medical condition, or breastfeeding . . . .” “Reasonable accommodations,” generally, are any accommodations that do not cause undue hardship in the operation of the particular business.  “Reasonable accommodations” can include, but are not limited to, providing a private space (non-bathroom) for expressing breast milk, providing more frequent or longer breaks, providing time off to recover from childbirth, and having employees refrain from heavy lifting.

An employer is prohibited from taking adverse action against an employee who requests or uses a reasonable accommodation related to her pregnancy. An employer also is prohibited from refusing to provide reasonable accommodations for an employee.  An employer does, however, have the right to ask an employee to provide documentation from her health care provider certifying that the reasonable accommodations are necessary.

An employee injured under this law may initiate an administrative action or bring a civil action in court.  For more information or for a consultation regarding your legal issues, please contact McCollum & Associates, LLC, at (301) 864-6070, www.jmlaw.net, or jmccollum@jmlaw.net.

Disabled Worker

The Interactive Process between and Employer and Employee for Reasonable Accommodation Requests

Is an employer request’s for additional information a failure to engage in the interactive process?

According to the United States Court of Appeals for the District of Columbia, under the Americans with Disabilities Act, an employer cannot be held liable for discrimination or constructive discharge when an employee requests reasonable accommodations and voluntarily terminates the interactive process.

When an employee makes a request for a reasonable accommodation, an employer may request and require additional information and documentation regarding a disability before granting the accommodation. Once the request is made, the parties engage in an interactive process to determine the limitation(s) of the employee as a result of the disability and the accommodation that would be reasonable given the limitation(s). The interactive process is a collaborative one in which parties must not act in bad faith (purposeful delays or failing to communicate).

In Ward v. McDonald, a federal employee requested reasonable accommodations after being diagnosed with a condition that prevented her from performing daily light movements and required a three (3) hour self-administered medical maintenance procedure. As a result, the employee requested accommodations to work full-time from home. The employee submitted two (2) letters from physicians, as requested from her employer, which were followed by an additional request for more detailed information. The employer put each response to the request for accommodation in writing and outlined, with specificity, the additional information that was sought.

In response to the last request, the employee did not submit the requested documentation, but instead resigned from her position. The employee alleged the employer discriminated against her, resulting in a constructive discharge. The Court ruled that the employee ended the interactive process by resigning and “walking away,” and that the employer acted in good faith; therefore, the employer could not be held liable for discrimination or constructive discharge.

For more information or for a consultation regarding your legal issues, please contact McCollum & Associates, LLC, at (301) 864-6070www.jmlaw.net, or jmccollum@jmlaw.net.

Office Conflict

Under Title VII, Is An Employer Liable for the Harassment of A Plaintiff Employee By a Co-Worker?

The Supreme Court has indicated that an employer is liable under Title VII if there is harassment of an employee by a co-worker, but only if  the employer did not control the conditions at work.

This changes if the co-worker is a supervisor, according to a recent Supreme Court decision.

Who is a supervisor?   For purposes of Title VII, it is a person empowered by the employer to take a tangible employment action against the plaintiff employee.

In a case involving a supervisor, in order to hold an employer liable, a plaintiff employee would need to prove that the supervisor’s harassment amounted to a “tangible employment action,” i.e., a significant change such as hiring, firing, failing to promote, etc.  In such a case, the employer would be strictly liable.

In other supervisor cases under Title VII (those in which there was no “tangible employment action”), the employer may be able to establish an affirmative defense to liability if (1) the employer exercised reasonable care to prevent and correct any harassing behavior and (2) that the plaintiff employee unreasonably failed to take advantage of the preventive or corrective opportunities that the employer provided.

For more information or for a consultation regarding your legal issues, please contact McCollum & Associates, LLC, at (301) 864-6070www.jmlaw.net, or jmccollum@jmlaw.net.

(Image courtesy of Ambro/ FreeDigitalPhotos.net)

Race Discrimination and National Origin Discrimination

Plaintiff sued his employer under Section 1981, Title VII and the District of Columbia Human Rights Act (DCHRA), alleging race discrimination, national origin discrimination, and retaliation.   In dismissing Plaintiff’s race discrimination claims, the Court held that Plaintiff had failed to establish that the alleged discrimination because he was from Angola (national origin) also meant that he had been discriminated against because of his race.

The Court reasoned that race and national origin are “ideologically distinct categories” of employment discrimination law.  Race discrimination, according to the Court, has to do with an employee’s “ancestry or ethnic characteristics.”  Conversely, national origin discrimination, according to the Court, relates to where an individual was born. For example, there are a number of people of Caucasian origin residing in South Africa. Therefore,  simply stating that one is “South African” does not define the race of an individual in question.  Furthermore, a Caucasian South African could not claim that other people of Caucasian decent from other nations discriminated him against on the basis of his race.

The Court highlighted that Plaintiff never classified himself as a “Black Angolan.” Furthermore, Plaintiff did not explain why labeling himself as “Angolan” should be considered a “very distinct” ancestral or ethnic characteristic.  The Court also found it relevant that Plaintiff did not identify the race of those who allegedly discriminated against him or the race of employees who were treated more favorably.

For more information or for a consultation regarding your legal issues, please contact McCollum & Associates, LLC, at (301) 864-6070 or jmccollum@jmlaw.net.

District of Columbia Whistleblowers Protection Act

Plaintiffs brought their complaint in the Superior Court against Defendants based on alleged violations of the District of Columbia Whistleblowers Protection Act (“WPA”). This lawsuit arose out of events surrounding the Metropolitan Police Department’s (hereinafter “MPD”) discontinuation of its use of “Intoxilyzer” devices to measure the blood-alcohol level of suspected drunk drivers. Plaintiffs were MPD officers who had been involved in hundreds of drunk driving arrests that involved the Intoxilyzer devices.  In February of 2010, the MPD removed Intoxilyzer devices from use.

After learning of the issues surrounding usage of the Intoxilyzer devices, Plaintiffs asserted that they “were instructed by attorneys working for the District of Columbia to limit their testimony regarding the problems with the Intoxilyzer devices and told not to answer questions about when they became aware of the problems with the devices.  However, according to Plaintiffs, they  “refused to alter their testimony” and made their second alleged protected disclosure when they “informed attorneys of the District of Columbia that they would testify truthfully regarding their knowledge of the Intoxilyzer and Intoximeter devices.”

Later, a District of Columbia government attorney sent a memorandum to the MPD Internal Affairs Division alleging that Plaintiffs had acted improperly during a certain arrest. Plaintiffs alleged, also, that this memorandum was retaliatory in nature.

Still later, Plaintiffs were informed that they had been selected to attend a training in preparation for taking over MPD’s enforcement program for driving under the influence (hereinafter “DUI”) offenses. However, when attorneys for the District of Columbia were informed that Plaintiffs were to be in charge of the DUI enforcement program, they objected and claimed that Plaintiffs were under investigation.  Plaintiffs alleged that the loss of the promotion and training opportunities constituted retaliation for their alleged disclosures.

Plaintiffs also alleged that an Internal Affairs investigation was retaliatory in nature.  Last, Plaintiffs alleged that investigatory actions, the filing of the Motion to Correct the Record, and their placement on the Lewis list constituted further retaliation.

According to the Complaint,  Plaintiffs were later cleared of all charges of
misconduct.

The WPA provides that “[a] supervisor shall not take, or threaten to take, a prohibited personnel action or otherwise retaliate against an employee because of the employee’s protected disclosure or because of an employee’s refusal to comply with an illegal order.”

The WPA further defines “retaliating” as including “conducting or causing to be conducted an investigation of an employee or applicant for employment because of a protected disclosure made by the employee or applicant who is a whistleblower.” Under this paragraph, “‘[i]nvestigation’ includes an examination of fitness for duty and excludes any ministerial or non-discretionary fact finding activity necessary to perform the agency’s mission.”

In sum, these provisions of the WPA contemplate retaliation as taking the form of an adverse action by a supervisor that is motivated by retaliatory intent.  Retaliatory investigations are explicitly prohibited by the WPA.

WPA specifically prohibits two categories of actions:

“(a) A supervisor shall not take, or threaten to take, a prohibited personnel action or otherwise retaliate against an employee because of the employee’s protected disclosure or because of an employee’s refusal to comply with an illegal order.

(b) Except in cases where the communication would be unlawful, a person shall not interfere with or deny the right of employees, individually or collectively, to furnish information to the council, a Council committee, or a Councilmember.”

The WPA defines a “supervisor” as:

“An individual employed by the District government who meets the definition of a ‘supervisor’ in [D.C. Code] § 1-617.01(d) or who has the authority to effectively recommend or take remedial or corrective action for the violation of a law, rule, regulation or contract term, or the misuse of government resources that an employee may allege or report pursuant to this section, including without limitation an agency head, department director, or manager.”

In addition, D.C. Code §1-615.53(b) provides that “a person shall not interfere with or deny the right of employees, individually or collectively, to furnish information to the Council, a Council committee, or a Councilmember.”

Last, a “protected disclosure” is defined as:

“Any disclosure of information, not specifically prohibited by statute, without restriction to time, place, form, motive, context, forum, or prior disclosure made to any person by an employee or applicant, including a disclosure made in the ordinary course of an employee’s duties, by an employee to a supervisor or a public body that the employee reasonably believes evidences

(A) Gross mismanagement;

(B) Gross misuse or waste of public resources or funds;

(C) Abuse of authority in connection with the administration of a public program or the execution of a public contract;

(D) A violation of a federal, state, or local law, rule or regulation, or of a term of a contract between the District government and a District government contractor which is not of a merely technical or minimal nature; or

(E) A substantial and specific danger to the public health and safety.”

As set forth above, Plaintiffs alleged certain protected disclosures under the WPA.  Therefore, the Superior Court, upon largely denying Defendants’ Motion to Dismiss concluded that the Plaintiffs’ complaint sufficiently asserted claims under the WPA.

For more information or for a consultation regarding your legal issues, please contact McCollum & Associates, LLC, at (301) 864-6070 or jmccollum@jmlaw.net.

District of Columbia Reduction in Force

The District of Columbia Court of Appeals recently issued an opinion that applies to employees of the District of Columbia who have been released due to a reduction in force.  First, the Court of Appeals held that certain issues in the case could not be decided by reviewing the documents alone and that, therefore, an evidentiary hearing was required.  Second, as to cases involving the effect of voluntary retirements on RIF procedures, the Court of Appeals determined that more information was needed from the District of Columbia Office of Personnel as to whether it was its official position that positions vacated by retiring employees — after a RIF has been announced, but before a RIF is implemented — should be counted among the positions abolished by the RIF.  Third, the Court of Appeals remanded the case back to the Office of Employee Appeals for a determination as to whether the former employee’s prior rather than current year’s performance ratings were incorrectly applied in violation of law.

For more information or for a consultation regarding your legal issues, please contact McCollum & Associates, LLC, at (301) 864-6070 or jmccollum@jmlaw.net.

Title VII Retaliation Claims

A recent decision from the United States District of Columbia addressed a number of legal related to Title VII of the Civil Rights Act of the Civil Rights Act of 1964.  Retaliation was among the matters discussed.  The court noted that Title VII prohibits two types of statutorily protected activity:  (1) opposition activity:  opposing any practice that Title VII makes an “unlawful employment practice” and (2) participation activity:  making a charge of discrimination, testifying, assisting, or participating in any manner in an investigation, proceeding, or hearing under Title VII.

For more information or for a consultation regarding your legal issues, please contact McCollum & Associates, LLC, at
(301) 864-6070 or jmccollum@jmlaw.net.

 

Family and Medical Leave Inclusion Act

On June 28, 2011, Senator Dick Durbin (D -IL) and others introduced the Family and Medical Leave Inclusion Act (“FMLIA”). The FMLIA proposes to allow employees to take unpaid leave to care for a same-sex spouse or partner, parent-in-law, adult child, sibling, grandchild, or grandparent. The FMLIA is intended to expand the scope of the Family and Medical Leave Act of 1993, which allows employees to take up to twelve (12) weeks of unpaid leave to care for a newborn, spouse, child under age 18, or parent who has a serious health condition.

Employees in the District of Columbia may also be covered under the D.C. Family and Medical Leave Act (“DCFMLA”). The DCFMLA provides a more expansive definition of “family member” than current federal law. Under the DCFMLA, a “family member” is a person related by “blood, legal custody or marriage.” If an employee “assumes and discharges parental responsibility” for a child who lives with him or her, the child is considered a family member under the statute. In addition, a person is considered a family member if the employee lives or has lived with the person in the past year and “maintains a committed relationship” with the person.

For more information or for a consultation regarding your legal issues, please contact McCollum & Associates, LLC, at
(301) 864-6070 or jmccollum@jmlaw.net.