LOOKING FOR A GREAT LEGAL UPDATE (ON TOP OF THE DCI CLIENT ALERT)?

by Eric Dunleavy, Ph.D., Senior Consultant, DCI Consulting Group

I wanted to make sure that readers of our DCI client alert were aware of another great EEO/AA resource. Dr. Rich Tonowski, Chief Psychologist at EEOC, is also the legal chair of the Personnel Testing Council of Metropolitan Washington D.C. (PTC/MW), where he writes a fantastic monthly column updating the community on EEO issues. PTC/MW is the local (non-profit) Industrial-Organizational Psychology community organization in Washington D.C., and holds monthly meetings on a variety of HR/research topics.

I have had the opportunity to work with Rich on the PTC/MW board (made up entirely of volunteers) during the last two years, and am convinced that his column is one of the best free EEO resources available (along with DCI client alerts). Rich’s objectivity and expertise are obvious in his writing, and his column is exhaustive in summarizing the latest hot EEO/AA issues. These columns are available on the PTC/MW website at no cost.

The most recent column reviews some hot off the press case law, summarizes the latest in disability discrimination, discusses a fascinating affirmative action case out of New York where Italian-Americans may be the disadvantaged group, and considers some interesting compensation and adverse impact issues. Archives of this column (and a great quarterly newsletter) are available to PTC/MW members, and membership is only $30!

NAACP V. NORTH HUDSON REGIONAL FIRE & RESCUE – ROUND 3

by Art Gutman Ph.D., Professor, Florida Institute of Technology

We reported on Rounds 1 and 2 of this case on May 17, 2010. To refresh your memory, the NAACP challenged a residency requirement for firefighter candidates that excluded applicants living outside of “member municipalities.” The NAACP argued that the residency requirement adversely impacts black applicants. Prior to the Supreme Court’s ruling in Ricci v. DeStefano (2009), Senior District Court Judge Dickson R. Debevoise for the District of New Jersey issued a preliminary injunction against North Hudson (Round 1), giving the municipality the option of hiring from a tri-county list from within and beyond North Hudson. However, North Hudson responded with a hiring freeze, believing they would be in violation of a settlement reached with Hispanic applicants from North Hudson in 2009. In other words, North Hudson believed it was between a rock and a hard place --- stick with the residency requirement and one minority group sues; abandon it and another minority group sues. As noted in the prior Alert, Judge Debevoise overturned the preliminary injunction in light of Ricci (Round 2), ruling that North Hudson’s fear of losing a challenge by Hispanic applicants was job related, and therefore, was likely to prevail in its defense (see 2010 U.S. Dist. LEXIS 40067, 4/23/10).

That was then. Upon further review, Judge Debevoise changed his mind Round 3 (see 2010 U.S. Dist. LEXIS 98671, 9/21/10). The NAACP presented statistical evidence that only 2 of 323 employees in the regional fire department was black, and that if the residency requirement were expanded to Southern Hudson County and neighboring counties, black applicants who passed the statewide exam would be hired in far greater numbers. Judge Debevoise now ruled that the NAACP data was sufficient to prove adverse impact, and that North Hudson failed to prove that its residency requirement is job related and consistent with business necessity.

So what happened to the “Ricci Defense” that Judge Debevoise had previously credited in Round 2? According to the judge, North Hudson “would not be expanding the list because the residency requirement causes a disparate impact that is not justified by business necessity.” Additionally, the judge ruled that he is “not persuaded that Ricci provides [North Hudson] with a defense to the present suit.”

Bottom line, the NAACP wins a summary judgment in Round 3. It should be interesting what happens in Round 4, which I anticipate is likely to be an appeal to the 3rd Circuit Court. We will keep you informed as events transpire.

DC DISTRICT COURT INTERPRETS LEWIS V. CHICAGO

by Art Gutman Ph.D., Professor, Florida Institute of Technology

The case is Young v. Covington & Burling LLP [2010 U.S. Dist. LEXIS 94579, 9/9/10] in which Yolanda Young, a black female attorney, sued her former employer (a law firm) on grounds that their policy of assigning some attorneys to staff positions from which promotion to partner was not possible has an adverse impact on blacks. Young alleges that in 2006, the firm established the ban on promotion from staff positions, and that from that point, new black hires were assigned to staff positions at a rate of 7.5 times that of white attorneys. Young complained to her supervisor, she was subsequently given a poor performance evaluation, and was terminated. There were several other charges in this case, but the most important one for present purposes is the adverse impact charge.

The important point is not whether it is a strong adverse impact charge --- no opinion was rendered on that issue. The important point was whether the adverse impact charge was timely. The law firm argued that more than 300 days had passed from the time of her job assignment and her performance appraisal (and termination), and therefore, the charge was beyond the statute of limitations for filing a Title VII claim. Interpreting the Supreme Court’s ruling in Lewis v. Chicago (2010) [130 S. Ct. 2191], District Court Judge Reggie B. Walton denied the firm’s movement for summary judgment, ruling:

[T]he Court cannot dismiss the plaintiff's disparate-impact claim as untimely with respect to the job-assignment component of the claim because it is based on a theory that Covington's initial job-assignment had a disparate impact on African-Americans and that she was subjected to that policy each time her job performance was evaluated, the last evaluation having occurred within the two governing statutes of limitations periods.

Recall that in Lewis v. Chicago, a unanimous Supreme Court ruled that adverse impact is, in effect, a continuing violation. Entry-level firefighter exams were administered in July 2005, and scores were banded into “well qualified”, “qualified”, and “unqualified” groups at that time. The city then selected its first group of applicants in 1996, and the process was repeated nine times over the next six years. One of the excluded “qualified” applicants sued in March of 1997, which was more than 300 days after actual banding decisions were made. The Supreme Court ruled that adverse impact charges are timely each time hiring decisions from the bands were made. Judge Lewis’ ruling is that Yolanda Young was in a similar position each time a performance appraisal was made.

7TH CIRCUIT RULES THAT CITY OF INDIANAPOLIS MISINTERPRETED CONSENT DECREE

by Art Gutman Ph.D., Professor, Florida Institute of Technology

The case is Finch v. Peterson [2010 U.S. App. LEXIS 18954, 9/10/10] in which three white police officers sued officials in the City of Indianapolis for reverse discrimination on grounds that they were denied promotion to police captain in favor three black applicants that ranked lower on the eligibility list. The City argued that they were entitled to qualified immunity on grounds that the promotions were sanctioned by a 1978 consent decree between the City and the Justice Department to settle racial discrimination charges. The City argued that the decree required them to take race into account when making the promotions. The district court disagreed and the 7th Circuit affirmed. The 7th Circuit ruled that the decree set recruitment and hiring goals, but also provided that “promotions shall be based upon relevant standards and criteria, which will be applied without regard to race or color.” Therefore, promotion of lower ranked blacks over higher ranked whites was deemed contrary to the decree.

The City argued that it was required to take “appropriate remedial actions” in promotion of police officers to all ranks, and that consideration of race as a factor in promotions was necessary to “harmonize” key provisions of the decree. However, the 7th Circuit ruled that the City’s argument “runs headlong into the consent decree's explicit prohibition against using race in making promotion decisions” and that there are “no inconsistencies in the language of the various provisions; in fact, the framework the decree establishes is quite logical,”

The decree was dissolved in 2008, but that’s beside the point. The key is that there is an important distinction between recruitment and actual selection decisions. Although a decree may permits enhanced recruitment and outreach to bolster potential hires (and ultimately promotions) for police officers, it cannot shield actual decisions.

CANCER IS A DISABILITY UNDER ADAAA --- EVEN IN REMISSION

by Art Gutman Ph.D., Professor, Florida Institute of Technology

Judge Rudy Lazano of the District Court for the Northern Division of Indiana ruled that cancer is a disability under the ADA Amendments Act (ADAAA) even if it is in remission (Hoffman v. Carefirst of Fort Wayne [2010 U.S. Dist. LEXIS 90879, 8/31/10]. Hoffman, a service technician, had surgery for Stage III Renal Cancer, and was told 13 months later that he would have to begin working 65 to 70 hours a week, as were all similarly situated service technicians. However, Hoffman produced a doctor’s note limiting him to a 40-hour work week, and Carefirst responded with an accommodation permitting him to work the 40-hour week, but in a territory that was 2-3 hours from his home and prior route. Hoffman did not return to work and sued under the ADA. Carefirst argued that Hoffman did not meet the definition of disability because in his cancer was in remission, he was working regularly, and therefore, was not substantially limited with respect to a major life activity. Carefirst also argued it made a reasonable accommodation that Hoffman refused to accept. Judge Lazano denied summary judgment on both arguments.

Historically, cancer patients who were in remission and who worked regularly were precluded from the definition of disability because they could not cite a substantially limited major life activity (see for example Andrews v. Jones Truck Lines,1990 [741 F.Supp. 867]). However, interpreting the ADAAA, Judge Lazano ruled that "an impairment that is episodic or in remission is a disability if it would substantially limit a major life activity when active” On the issue of reasonable accommodation, Judge Lazano ruled that the burden is on Carefirst to prove that Hoffman’s request to work his normal route is an undue hardship.

As far as I can tell, the ruling on remission is a first under the ADAAA, and represents a major change in how courts have traditionally viewed diseases that go into remission such as cancer Tuberculosis.

SENATOR REID REINTRODUCES THE PAYCHECK FAIRNESS ACT IN THE SENATE

by Art Gutman Ph.D., Professor, Florida Institute of Technology

As reported by several sources on 9/14/10, including BNA, Senate Majority Harry Reid, along with 13 co-sponsors, reintroduced the Paycheck Fairness Act (PFA) (S. 3772), meaning the Senate could consider the bill at any point. The House had approved identical legislation Jan. 9, 2009 in a 256-163 vote (6 DLR AA-1, 1/12/09), and President Obama would undoubtedly sign this legislation into law. As reported in prior alerts, the PFA would amend the Equal Pay Act of 1963 by including new remedies for compensatory and punitive damages (as in Title VII). The PFA will also mandate training and outreach efforts through the EEOC and OFCCP. It will also contain language prohibiting retaliation, and it will place a burden of proving job-relatedness in cases in which a plaintiff proves unequal pay for equal work based on sex.

THE CENTER FOR CORPORATE EQUALITY RELEASES TAC REPORT ON ADVERSE IMPACT ANALYSIS

WASHINGTON D.C. - The Center for Corporate Equality (CCE) has released its expert Technical Advisory Report on Adverse Impact Analysis.

Overview

Although determining whether selection, promotion, and termination decisions result in adverse impact is an important topic for organizations, there is little guidance about the proper way in which these analyses should be conducted. This lack of guidance is problematic in that it is not unusual for professionals in the same organization to disagree about how these analyses should be conducted, and it is certainly not unusual for plaintiffs and defendants to disagree. To help determine if there are "best practices" in conducting adverse impact analyses, the Center for Corporate Equality (CCE) created a Technical Advisory Committee (TAC) consisting of 70 of the nation's top experts in adverse impact analyses.

TAC members consisted of a wide variety of EEO experts including industrial-organizational psychologists, labor economists, plaintiff and defense attorneys, HR practitioners, and former OFCCP and EEOC officials. The first step in the process was to administer a detailed questionnaire that asked TAC members to indicate how they would handle a variety of data, statistical, and legal interpretation issues commonly encountered in conducting adverse impact analyses. The survey results were used to identify topics where there was strong agreement as well as topics where there was strong disagreement. Results of this survey were used to structure the agenda for an in-person onsite meeting.

Forty-five of the TAC members then gathered at Georgetown University for a two-day face-to-face meeting to discuss responses to the survey and make general recommendations. These recommendations were combined with the survey results to create a best practice document that will be distributed without cost to members of the EEO community on September 15, 2010. As a courtesy to federal enforcement agencies, one week prior to the public release of the best practices document, members of CCE briefed representatives from the OFCCP, EEOC, and Department of Justice on the TAC findings.

The report is featured in the BNA Daily Labor Report® for September 15.

To view the full report click on the following links:

TAC Adverse Impact Report

TAC Report Appendix A: Survey Questions and Responses

TAC Report Appendix B: Committee Member Biographies

RECENT RELIGION DISCRIMINATION RULINGS

by Art Gutman Ph.D., Professor, Florida Institute of Technology

There were four interesting religion cases in August, each of which was decided in favor of the defendants.

In Xodus v. Wackenhut [2010 U.S. App. LEXIS 17917, 8/27/10], Xodus, who was interviewed for a security guard position, was told by a manager that he would have to cut his dreadlocks to get the job. Xodus told the manager it was against his “belief”, and that he was suing another employer for that reason. The district court granted summary judgment for Wackenhut on grounds that the manager was not properly informed of that the “belief” was based on religious reasons, and the 7th Circuit affirmed. The moral of this story is that an employer cannot be blind-sided; the request for accommodation for religious reasons must be clearly stated. The same principle applies in ADA cases.

In EEOC v. GEO Group [2010 U.S. App. LEXIS 15973, 8/2/10], the GEO Group, a private operator of prisons, knew that Muslim females are required to wear head scarfs (or khimars) for religious reasons. However two prison wardens testified it would be an undue hardship to allow this because of safety reasons (e.g., khimars could conceal the identity of the wearer and could be used against prison employees in an attack.) GEO won a summary judgment and the EEOC appealed the undue hardship ruling. However, the summary judgment was upheld in a 2-1 ruling by the 3rd Circuit. The dissenting judge agreed with the EEOC, and argued that a reasonable jury could find that allowing female employees to wear Khimars is not an undue hardship. I would expect the EEOC to continue to prosecute such cases.

In Mitchell v. University Medical Center [2010 U.S. Dist. LEXIS 80194, 8/9/10]. Mitchell, an operating room nurse, calculated the day the earth would end and spread the word to her co-workers on a daily basis. The co-workers complained and Mitchell was instructed to cease her discussions of religion in the workplace. Mitchell claimed she suffered harassment and discrimination for her sincerely held religious beliefs, but District Court Judge John G. Heyburn II granted summary judgment for the hospital. Judge Heyburn ruled that the instruction to stop discussing religion in the workplace did not constitute an adverse employment action, and that it would be an undue hardship on the hospital to allow such discussion to continue because it would interfere with the terms and conditions of employment of Mitchell’s co-workers.

And in Spencer v. World Vision [2010 U.S. App. LEXIS 17602, 8/23/10], three employees were fired for allegedly denying the “Deity of Jesus Christ.” Under Title VII exemptions, churches and church-affiliated institutions are permitted to base such decisions on religious reasons. The question in this case was whether World Vision is entitled to the exemption. World Vision describes itself as a nonprofit Christian humanitarian group, but it is clearly not affiliated with any specific church. Nevertheless, the 9th Circuit supported its exemption in a 2-1 ruling in which the dissenting judge opined that majority “improperly expands the narrow Title VII” because “ Congress intended only that churches and institutions with extremely close ties to organized religion would be free to discriminate in employment based on religion.”

RECENT AGE DISCRIMINATION RULINGS

by Art Gutman Ph.D., Professor, Florida Institute of Technology

Three recent age discrimination cases caught my attention, each for different reasons. One case was decided under California State law (Reid v. Google [50 Cal. 4th 512, 8/5/10]), and the other two were ADEA cases (Aliotta v. Bair [2010 U.S. App. LEXIS 16763, 8/13/10] & Jones v. Oklahoma City Public Schools [2010 U.S. App. LEXIS 17676, 8/24/10]).

In Reid v. Google, the California Supreme Court upheld a reversal of summary judgment that had favored Google. 54 year-old Reid was transferred from a director position to an in-house graduate training program by a 55 year-old Vice President (Rosing) a year after Rosing hired him. Rosing told Reid that he needed to adapt to Googles “culture”, which he characterized as having “younger contributors” and “inexperienced front-line managers”. Another executive and several co-workers were alleged to have made explicit ageist remarks. Reid was later fired by three major decision makers (the two Google co-founders and the CEO). The summary judgment was based on the “stray remarks doctrine” articulated by Justice O’Connor in Price Waterhouse v. Hopkins (1989). In Hopkins, O’Connor opined that remarks by “non-decisionmaking coworkers or ….. decisionmaking supervisors outside of the decisional process” should be insufficient to overcome summary judgment. However, the two higher courts ruled that California case law considers stray remarks “in totality with the other circumstances in the case” and has not “explicitly adopted or addressed the stray remarks doctrine.

In Aliotta v. Bair, the DC Circuit upheld summary judgment for the defendant on charges of adverse impact and disparate treatment in a reduction-in-force (RIF) at the FDIC. The adverse impact statistics were rejected because the plaintiffs combined older workers who were laid off with older workers who opted for FDIC’s voluntary early retirement plan. On the disparate treatment claim, the plaintiff’s claimed they faced a “Hobson’s Choice” between retirement and termination, but the court disagreed, ruling that employees were given months to decide, and were permitted to seek other jobs in the FDIC. The court also ruled that employers should not be discouraged from using voluntary early retirement plans that could mitigate or eliminate the need for RIFs.

In Jones v. Oklahoma City Public Schools (OKC), the 10th Circuit overturned a summary judgment for OKC. After her job was eliminated, Jones was reassigned from a higher-paying executive position to school principal. A comparable executive position was then created and filled by a substantially younger person. The district court judge ruled that Jones needed additional proof that age was a determining factor in order to survive summary judgment. The 10th Circuit called this “pretext plus” and reversed, ruling that Jones established a prima facie case under the McDonnell-Douglas disparate treatment framework, and it was OKC’s burden to articulate a nondiscriminatory reason for the re-assignment (thus permitting Jones to prove that the articulation is pretext). At issue here was Gross v. FBL (2009), where the Supreme Court ruled that ADEA disparate treatment claims require proof of but-for causation of age discrimination. OKC argued that but-for causation means “age must be the only factor”. The 10th Circuit disagreed and ruled that but-for causation permits other causal factors, as long as “age was the factor that made a difference.”

RECENT HARASSMENT RULINGS

by Art Gutman Ph.D., Professor, Florida Institute of Technology

Four interesting Title VII harassment rulings were rendered last month, two on sexual harassment, one on racial harassment, and one on same-sex harassment. Each ruling contains an important message.

In one of the sexual harassment cases (Berry v. Chicago Transit Authority [2010 U.S. App. LEXIS 17605, 8/23/10]), Berry alleged that she was sitting at a table and playing cards during a work break when Carmichael, a co-worker, demanded that she move. Carmichael grabbed Berry’s breasts and lifted her from the table, and rubbed her buttocks against the front of his body three times. Berry claimed she complained to an investigator, who told her he didn’t care what happened, and that he was going to do whatever it takes to protect the Chicago Transit Authority [CTA]. The 7th Circuit overturned a summary judgment for the CTA, ruling “a single act can create a hostile environment if it is severe enough, and instances of uninvited physical contact with intimate parts of the body are among the most severe types of sexual harassment.”

In the other sexual harassment case (Sheriff v. Midwest Health Partners [2010 U.S. App. LEXIS 18104, 8/30/10]), the 8th Circuit affirmed a jury award of $100,000 for a female physical therapist who was kissed and repeatedly embraced by a male co-worker over a two-year period. The court ruled that the employer’s response to Sheriff’s complaint was neither prompt nor adequate. Specifically, no action was taken after her first complaint, the harassment continued, and the employer did not respond to a second complaint for seven weeks (thus, not prompt). Additionally, the harasser did not consent to the employer’s remedial plan (thus, not adequate). Two of three 8th Circuit judges ruled that the “damage award was not shocking, monstrous, or plainly unjust”, but the third judge argued that the award should be reduced to $50,000 under Title VII caps for companies with less than 101 employees.

In the racial harassment case (Armstrong v. Whirlpool), the District Court from the Middle District of Tennessee granted summary judgment to Whirlpool in 2007 [2007 U.S. Dist. LEXIS 14635] and the 7th reversed and remanded [2010 U.S. App. LEXIS 1647]. As reported by BNA, the district court ruled on 8/16/10 that a “reasonable jury could find that [Whirlpool’s] policies were not sufficient to end the problem.” The problem, as claimed by the plaintiffs, was that white co-workers engaged in racially offensive conduct, including racial epithets and bathroom graffiti. The court ruled that Whirlpool’s attempt to clean the bathrooms was not sufficiently prompt or corrective, and that a “serial harasser” was given a few oral warnings, but was never fully investigated.

In the same-sex harassment case (Cherry v. Shaw Coastal [2010 U.S. Dist. LEXIS 78187, 8/3/10], Cherry alleged that he was harassed by a male co-worker (Reasoner), claiming there were sexual proposals, suggestive text messages, and unwanted touching. What’s interesting here, is that the trial judge found the abuses sufficient a jury to infer battery under Louisiana law, but was insufficient under the Supreme Court standard in Oncale v. Sundowner (1998) [523 U.S. 75) for a same-sex harassment claim because Cherry had to prove that Reasoner is gay, and that the basis for the harassment was sexual in nature, as opposed to being “horseplay.” The judge ruled “Title VII is not ….. a general civility code and simply because Cherry did not like Reasoner's conduct does not make it severe or pervasive.” This type of behavior would be outlawed if Congress passes the impending Employment Non-Discrimination Act (ENDA).

RECENT ADA RULINGS

by Art Gutman Ph.D., Professor, Florida Institute of Technology

Three recent ADA rulings have implications for the ADA Amendments Act (ADAAA). They are Schneider v. Giant of Md. [2010 U.S. App. LEXIS 15546, 7/26/10], Nyrop v. Independent School District [2010 U.S. App. LEXIS 16114, 8/4/10)] and Kirkeberg v. Canadian Pacific Railway [2010 U.S. App. LEXIS 17909, 8/27/10]. Each case was decided under pre-ADAAA rules, and that’s what makes them interesting.

In Schneider v. Giant, the 4th Circuit ruled that a diabetic pharmacist was not disabled within the meaning of the ADA. The court ruled that Diabetes “is not per se a disability under the ADA because a ‘person whose physical or mental impairment is corrected by medication or other measures does not have an impairment that presently “substantially limits” a major life activity' ”. Similar rulings were rendered in Nyrop v. Independent School District for a teacher suffering from multiple sclerosis and in Kirkeberg v. Canadian Pacific for an EAP program administer. In Nyrop, the 8th Circuit ruled that the plaintiff was not substantially limited because “she continued teaching without significant interruption, her symptoms were intermittent and short in duration” and her early symptoms were ameliorated with various accommodations provided by the employer. In Kierkeberg, the 8th Circuit ruled that the plaintiff was able to use monocular cues to self-accommodate for loss of binocular vision.

In each case, the court ruled that the ADAAA, which took effect on January 1, 2009, could not be applied retroactively. Prior to the ADAAA, Supreme Court precedents in 1999 (Sutton v. United Airlines, Murphy v. UPS & Albertson’s v. Kirkingburg) dictated that impairments must be assessed in their mitigated states. For example, a person with Diabetes would not be substantially limited while taking insulin, unless the individual could prove there were substantial side effects of the insulin, or limiting effects persist despite the insulin. The ADAAA dictates that impairments must be evaluated in the non-mitigated states (or irrespective of the ameliorative effects of medication or self-adaptation). Therefore, it is likely that each plaintiff could satisfy the substantial limitation test under post-ADAAA rules.