Tag Archives: Employment Law

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)

Seventh Circuit Rejects EEOC’s Argument That All Employee Medical Information Revealed Through “Job-Related” Inquiries Are Protected by the ADA’s Confidentiality Provisions

In EEOC v. Thrivent Financial for Lutherans (2012), a former employee alleged that his former employer revealed his medical information to prospective employers in violation of the medical record confidentiality requirements of the Americans with Disability Act (“ADA”), 42 U.S.C. § 12111 et seq.  The key issue for the Seventh Circuit was whether the medical information alleged to have been revealed by the former employer was obtained from “medical examinations and inquiries” of the former employee as set forth in 42 U.S.C. § 12112(d).  In holding that the information was not obtained from “medical examinations and inquiries,” the Court found that the former employer had no duty to treat its knowledge of such information as a confidential medical record and affirmed the district court’s granting of summary judgment in favor of the former employer.

In reaching its conclusion, the Court found that the word “inquiries” did not refer to generalized inquiries, but instead only to medical inquiries.  The Court also explained that other courts have required – at a minimum, that the employer already know something was wrong with the employee before initiating the interaction in order for that interaction to constitute a 42 U.S.C. § 12112(d)(4)(B) inquiry.  Because the former employer did not have any such knowledge in this case, its communication with the former employee was not an inquiry for purposes of 42 U.S.C. § 12112(d)(4)(B).

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.

EEOC Retaliation Claims and Security Clearances

Plaintiff, the FBI’s Legal Attaché in Saudi Arabia, filed race and national origin-based discrimination charges against his supervisors with the  United States Equal Employment Opportunity Commission(“EEOC”). After the charges were filed, one of Plaintiff’s supervisors referred him for a security investigation, maintaining that his connection with Saudi officials had put Plaintiff “inappropriately under the influence of his Saudi counterparts.”  An investigation concluded that the claims underlying his supervisor’s referral were baseless. Plaintiff filed suit under Title VII, claiming that the security referral was made in retaliation for his EEOC complaint. The government filed a motion to dismiss on the grounds that the retaliation claim was non-justiciable under Department of Navy v. Egan, 484 U.S. 518 (1988), which held that “employment actions based on denial of security clearance are not subject to judicial review, including under Title VII.”

In its initial decision, the United States Court of Appeals for the District of Columbia Circuit held that precedent “shields from review only those security decisions made by the FBI’s Security Division” and “not the actions of thousands of other FBI employees…like [Plaintiff].” The Court of Appeals remanded due to erroneous jury instructions, and particularly permitted the Title VII action against Planitff’s supervisors to go forward to the degree that the referral was premised on factually incorrect or misrepresentative information.

Upon rehearing, the Court of Appeals again held that Egan applies only to employees who routinely handle security clearances. In response to the government’s argument that allowing a Title VII action would end security reports that executive employees are required to make under Executive Order 12,968, the Court of Appeals narrowed its prior decision. The Court of Appeals held that Title VII allegations based on “knowingly false” information could advance consistent with Egan. Since some of the claims underlying the supervisor’s referral were false, the Court of Appeals remanded so that the district court could determine whether adequate evidence of knowingly false information existed to allow Plaintiff’s claims to go before a jury.

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

Employment Law and Defamation

The District of Columbia Court of Appeals ruled that The American Israel Public Affairs Committee (the “AIPAC”) did not defame its former policy director by condemning his behavior amid a federal investigation. The AIPAC suspended its former policy director and another employee in 2005 after finding out that they were entangled in an FBI investigation involving a Pentagon official.

At issue were comments that an AIPAC spokesman gave to the New York Times. In 2005, an AIPAC spokesman was quoted as saying that the former policy director was fired because he failed to meet “the standards that AIPAC expects from its employees.” A 2008 article repeated that statement, and added that an AIPAC spokesman had more recently said that the organization “still held that view of [the former policy director’s] behavior.”

The Court of Appeals agreed that the AIPAC had no written standards for employee conduct at the time the former policy director was fired. However, the AIPAC claimed that there were unwritten standards presuming employees would obey the law, and also follow the advice of AIPAC’s lawyers and correspond with the organization with “total candor.” The Court of Appeals held that the “standards” the AIPAC spokesman referred to in both instances were not “well-defined” and were open to numerous interpretations.  Established precedent, therefore, mandated that the defamation claim could not succeed where there are multiple interpretations. In sum, the AIPAC, in the view of the Court of Appeals, had not slandered its former policy director in either article.

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