Legal Watch - April 8, 2015
April 8, 2015
By Ira Michael Shepard, CUPA-HR general counsel and partner with Saul Ewing LLP
In a stunning reversal of the conservative-leaning U.S. Court of Appeals for the Fourth Circuit, the Supreme Court held that denial of “light duty” to pregnant employees when granted to employees “similar in their ability to work or not to work” may violate the Pregnancy Discrimination Act (Young v. United Parcel Service, Inc. (2015 BL 81886, US No. 12-1226, 3/25/25)). The Supreme Court in a 6-3 decision held that the UPS policy of granting “light duty” to employees disabled as a result of on-the-job situations but not granting it to pregnant employees may raise a disparate treatment claim. The dissent argued strenuously that the majority “badly muddles” disparate treatment and disparate impact claims.
The majority in the decision written by Justice Breyer held that a pregnant employee may raise a disparate treatment claim under the Supreme Court’s McDonald Douglas decision if the plaintiff can show that the employer’s policies placed a “significant burden” on pregnant workers, such as evidence that the employer “accommodates a large percentage of non-pregnant workers while failing to accommodate a large percentage of pregnant workers.” The Supreme Court remanded the case back to the Fourth Circuit with instructions that the plaintiff’s claims are for a jury to decide.
The Supreme Court denied a petition for review filed by a former Texas Tech University professor that the Lilly Ledbetter Fair Pay Act, which extends the limitations period for pay discrimination under Title VII to more than the flat 300-day rule, routinely applies to denial-of-tenure decisions (Niwayama v. Texas Tech University (US No. 14-955, cert denied, 3/30/15)). Under Ledbetter, a new cause of action arises with each new pay period in pay discrimination cases.
The Supreme Court left undisturbed the decision of the Fifth Circuit Court of Appeals that the plaintiff cannot pursue her Title VII sex, national origin and race discrimination claims she brought when she was denied tenure because she did not file a charge with the EEOC within 300 days of the university’s decision to deny her tenure. The plaintiff continued working after the tenure denial and argued that because the decision resulted in lower pay that was continued well after her tenure denial, she had a new cause of action under the Fair Pay Act. The plaintiff also argued that there is a split in the way the circuits handle Ledbetter and tenure decisions. The Supreme Court denied review of the claim without issuing a decision as to its reasoning.
The Supreme Court recently denied a plaintiff’s petition for review of a Ninth Circuit Court of Appeals decision vacating a favorable jury verdict granting him more than $750,000 in damages as a result of his discharge, which the jury concluded violated the ADA because of his attention deficit hyperactivity disorder (ADHD) (Weaving v. City of Hillsboro (US, No. 14-766, cert denied, 3/2/15)). The Supreme Court affirmed the Ninth Circuit decision that a jury was wrong in concluding that adult ADHD is a disability covered by the ADA or the ADA amendments.
The Supreme Court affirmed the Ninth Circuit decision that ADA was not a covered disability because it did not substantially limit the plaintiff’s major life activities of communicating, interacting with others or working. The plaintiff was hired as a police officer in 2006 and promoted to sergeant in 2009. He was placed on paid administrative leave while the department investigated another police officer’s grievance that he was mistreating fellow officers and subordinates. The plaintiff had a history of ADHD as a child and his doctor testified that his adult ADHD could explain some of his difficulties interacting with fellow officers. After an investigation which included the plaintiff being interviewed by 28 other police officers, he was fired for creating and fostering a hostile work environment.
The Ninth Circuit with Supreme Court approval upheld the police department’s discharge and found that adult ADHD is not a disability covered by the ADA.
A plaintiff’s claim of ADA discrimination as a result of her discharge after return from FMLA leave to address rude and erratic behavior at work was dismissed, as she never disclosed her bipolar condition to her employer or asked for an accommodation. When the plaintiff returned from FMLA leave to address her workplace behavior issues, she presented a doctor’s note indicating her condition had stabilized with medication but did not disclose the condition or ask for any accommodation (Walz v. American Financial Inc. (2015 BL 61812, 8th Cir., No. 14-2495, 3/9/15)).
While the plaintiff had worked for her employer for 15+ years and had received mostly positive reviews and evaluations, she began experiencing behavioral problems at work which included acting out at meetings, becoming easily agitated, talking very rapidly and sending e-mails which made no sense and on occasion were disrespectful to her supervisor.
While her behavior did become erratic, the court concluded that her bipolar disorder was not apparent to her employer. The court also pointed out that the plaintiff never disclosed her condition, nor did her doctor, and no request for accommodation was ever submitted. Therefore, the court concluded, the plaintiff “failed to establish a prima facie case of discriminatory discharge or failure to accommodate under the ADA.”