Tuesday, March 14, 2017

11th Circuit Panel Parses Gender Stereotyping and Sexual Orientation Claims


Last week, a panel of the Eleventh Circuit affirmed dismissal of a plaintiff’s Title VII sexual orientation claim, but vacated the district court’s order dismissing the employee’s gender non-conformity claim, drawing both an interesting concurring opinion and a no-holds-barred, partial dissent.  See Evans v. Georgia Regional Hosp., et al., No. 15-15234 (11th Cir. March 10, 2017). 
In Evans, the initially pro se plaintiff, a lesbian hospital security officer, claimed, among other things, that she was discriminated against for failing to conform to gender stereotypes and because of her sexual orientation.  A magistrate judge recommended dismissal of the claims because Title VII was not intended to cover discrimination against homosexuals, and further because the gender non-conformity claim was “just another way to claim discrimination based on sexual orientation.”  The district court conducted a de novo review of the record and adopted, without further comment, the magistrate’s recommendations.
 
On appeal, a panel of the Eleventh Circuit, relying on the Fifth Circuit’s decision in Blum v. Gulf Oil Corp., 597 F.2d 936, 938 (5th Cir. 1979), affirmed dismissal of the sexual orientation claim because, as the Blum Court found, discharge for homosexuality is not prohibited by Title VII.  Drawing a line between sexual orientation and sex stereotyping, the Court reversed and remanded the gender non-conformity claim, finding that a gender non-conformity claim is not just another way to claim discrimination based on sexual orientation.
 
In a concurring opinion, Judge Pryor agreed with the majority’s opinion, but drew a different line between discrimination based on behavior, and discrimination based on status.  According to Judge Pryor, the former is protected, but the latter is not, because Congress has not made sexual orientation a protected class. 
In a partial dissent, Judge Rosenbaum argued that when a woman alleges that she has been discriminated against because she is a lesbian, she necessarily alleges that she has been discriminated against because she failed to conform to the employer’s image of what women should be, and it is “utter fiction” to suggest that she was not discriminated against for failing to comport with her employer’s stereotyped view of women. This, says Judge Rosenbaum, is discrimination “because of sex.” 
This decision highlights the ongoing struggles in the courts about the breadth of Title VII’s protections, and once again begs the question of which branch of government, if any, will provide a definitive answer.
 
 

Monday, March 13, 2017

Lessons from a Recent Employer Win in an ADA Accommodation Case

A Texas employer defeated multiple, disability-based claims brought by the Equal Employment Opportunity Commission (EEOC) on behalf of an employee who injured herself on the job and complained when the employer did not reassign her to a different position.  In EEOC v. Methodist Hospital of Dallas, No. 3:15-CV-3104-G, the employee, a patient care technician (PCT), injured herself on the job and obtained various medical restrictions, some of which restricted work entirely, and some permitting light duty work.  The employer accommodated the light duty until the employee's doctor released her to return to work as a PCT.  Around the time of the release, the employee approached the employer and requested a reassignment to accommodate her injury.  She also requested and received leave under the Family and Medical Leave Act (FMLA), as well as additional, personal leave. 
 
The employer did not reassign the employee to the scheduling coordinator position she desired, because at the time she made the request, she had not been released to return to work in any position.  Additionally, despite the employer's outreach, the employee repeatedly failed to contact human resources to discuss her employment.  The employer eventually separated the employee from employment, prompting a suit by the EEOC alleging that the employer violated the ADA by failing to accommodate the employee by reassigning her to the scheduling coordinator position.  The EEOC also alleged that the employer maintained an unlawful policy of requiring individuals with disabilities who require reassignment as a reasonable accommodation to compete for vacant positions.
 
Here are the highlights of what persuaded the Court to grant summary judgment for the employer on all counts:
 
1.  The employee was not qualified for the scheduling coordinator position.  When an employee requests reassignment as a reasonable accommodation, courts look to the job the employee seeks when determining whether he or she is a qualified individual with a disability.  An essential function of nearly every job is the ability to appear for work.  At the time the employee applied for the reassignment, she had not been released to return to work, and therefore, could not meet the attendance requirement.  Additionally, the Court cited with approval authority for the proposition that an employee who fails to provide a release is not a qualified individual under the ADA. 
 
2.  Documentation and timing are critical.  The EEOC failed to produce any evidence that the employee could attend work on the date she applied for the scheduling coordinator position.  The Court rejected several documents proferred by the EEOC to show otherwise.
 
3.  A policy requiring a release to return to work is not a per se violation of the ADA.  The Court agreed that a policy requiring 100% recovery to return to work may violate the ADA, but here, the EEOC failed to submit any evidence that the employer required a "full release."  In fact, the employer's accommodation of the employee's light duty requirements undercut the argument that the employer required a full release.
 
4.  If an employee cannot perform the essential function of attendance  due to FMLA leave, the employee is not a qualified individual within the meaning of the ADA.  Put another way, if an employee's inability to attend work is necessitated by FMLA leave, the employee will not meet the "qualified individual" standard necessary to prevail on a claim under the ADA.  As the Court noted, a reasonable accommodation does not require an employer to wait indefinitely for the employee's medical condition to be corrected. 
 
5.  Reassignment to a vacant position may be appropriate pursuant to the EEOC's Guidance, but only if it is reasonable, and is the accommodation of last resort.  Here, the Court took the employee to task for failing to explore other accommodations before insisting on reassignment. 
 
6.  The ADA does not require reassignment without competition for, or preferential treatment of, the disabled.  Although the Fifth Circuit has not yet weighed in on the issue of whether the ADA requires an employer to reassign a disabled employee as a reasonable accommodation, the district court decided, based on the weight of Fifth Circuit authority, that the ADA does not require affirmative action in the sense of requiring that disabled persons be given priority in hiring or reassignment over those who are not disabled. 
 
In short, the employer provided leave as a reasonable accommodation, accommodated the employee's light duty restrictions, and engaged in the interactive process to the extent it was able to do so.   The employee failed to engage in the interactive process and insisted on an accommodation that was not, according to the Court, an accommodation of last resort.  Finally, an employer is not generally required to give preferential treatment to a disabled employee by reassigning him or her to a position for which there are other, qualified but non-disabled candidates.

Wednesday, March 1, 2017

Will Employment Law Protections for Undocumented Immigrants Survive under the New Regime?


With the new administration’s flurry of activities related to the broader enforcement of immigration laws, one issue looms large for employment lawyers---will undocumented immigrants still be protected from unlawful employment practices under various federal laws?  The answer today is far from clear.
Title VII of the Civil Rights Act of 1964, as amended (Title VII), protects “individuals” from unlawful employment practices, and does not distinguish between documented and undocumented workers.  In its Compliance Manual, Section 2, “Threshold Issues,” the EEOC opines that, “Individuals who are employed in the United States are protected by the EEO statutes regardless of their citizenship or immigration status.”
 
At least one court within the Fifth Circuit has expressed that “illegal aliens” would be entitled to protections under Title VII.  See EEOC v. Taqueria Rodeo de Jalisco, No. 4:11-cv-03444, 2012 U.S. Dist. Lexis 179552, *7 n.1 (S.D. Tex. Dec. 19, 2012).  The Texas court’s position is clearly at odds with the Fourth Circuit’s decision in Egbuna v. Time-Life Libraries, Inc., 153 F.3d 184, 187-88 (4th Cir. 1998), wherein that Court found that the employer did not violate Title VII when it refused to hire the plaintiff, an undocumented alien, because to hold otherwise would be to “nullify IRCA [the Immigration Reform and Control Act], which declares it illegal to hire or to continue to hire unauthorized aliens.” 
The Fair Labor Standards Act of 1938, as amended (FLSA), protects “employees,” and in March 2014, the United States Supreme Court declined to review a decision by the Eight Circuit affirming a jury verdict for several undocumented workers for nearly $300,000 for FLSA violations.  See Jerusalem CafĂ©, LLC v. Lucas, 721 F.3d 927 (8th Cir. 2013), cert. denied March 10, 2014.  In its decision, the Eighth Circuit minced no words when it determined that, “The FLSA’s sweeping definitions of ‘employer’ and ‘employee’ unambiguously encompass unauthorized aliens.”
 
Fifteen years ago, the United States Supreme Court decided Hoffman Plastics Compounds, Inc. v. National Labor Relations Board, 535 U.S. 137 (2002), and held that, in connection with a finding that an employer committed an unfair labor practice under the National Labor Relations Act (NLRA), the Board could not award back pay to an undocumented worker because such an award would represent wages the individual could not legally have earned.  According to the Court’s majority, “awarding backpay in a case like this not only trivializes the immigration laws [specifically, IRCA], it also condones and encourages future violations…it would encourage the successful evasion of apprehension by immigration authorities, condone prior violations of the immigration laws, and encourage future violations.”  The Board did, however, impose other sanctions on the employer. 
Several recent developments may further impact these decisions and increase the level of uncertainty for employers.  First, in late February 2017, the Fifth Circuit reinstated H.B. 11, a Texas law which makes it a felony to encourage unauthorized immigrants to enter or remain in the country by concealing, harboring, or shielding them from detection.  See Cruz v. Abbott et al., No. 16-50519 (5th Cir. Feb. 23, 2017).  While the Court held that there is “no reasonable interpretation by which merely renting housing or providing social services to an illegal alien constitutes harboring that person from detection,” it is unclear whether and how this law applies to employers who knowingly employ and house unauthorized immigrants. 
 
Second, in January 2017, the White House issued two Executive Orders related to border security, which in turn resulted in two Memos from John Kelly, the Secretary for the U.S. Department of Homeland Security.  The Memos, in part, implement “new policies designed to stem illegal immigration and facilitate the detection, apprehension, detention, and removal of aliens who have no lawful basis to enter or remain in the United States.” 
These developments appear to contradict at least two of the Equal Employment Opportunity’s (EEOC’s) priorities in its Strategic Enforcement Plan for Fiscal Years 2017-2021 (SEP), including: (a) “protecting vulnerable workers, including immigrant workers, and underserved communities from discrimination”; and (b) “preserving access to the legal system.”  Notably, EEOC Acting Chair Victoria Lipnic recently commented that the SEP enforcement priorities would remain largely the same. 
In short, how can undocumented immigrants pursue their rights under the legal system in light of the administration’s determination to find and deport them?  And, what obligations do employers have in relation to the treatment of undocumented workers?  As with many employment issues, this one will more than likely be resolved by the courts.