Wyatt Employment Law Report


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The EEOC Weighs in on HIV-Positive Workers

By Amanda Warford Edge

The Equal Employment Opportunity Commission (EEOC) has long considered HIV infection to be a disability within the scope of the Americans with Disabilities Act (ADA). From 1997 to 2014, the EEOC received in excess of 4,000 charges alleging ADA violations based on HIV status. In 2014, the EEOC resolved 197 charges and obtained over $800,000 for individuals who filed charges based on HIV status. The EEOC has also filed several lawsuits over the past few years against employers based on claims alleging failure to hire, discrimination and failure to accommodate individuals with HIV.

On December 1, 2015, in conjunction with World AIDS Day, the EEOC posted two publications that address HIV-positive workers. Through these publications, the EEOC makes clear that employers “cannot rely on myths or stereotypes about HIV infection when deciding what [they] can safely or effectively do.”

The first publication, entitled “Living with HIV Infection: Your Legal Rights in the Workplace Under the ADA,” removes all doubt that those with HIV: (1) have workplace privacy rights; (2) are protected from discrimination because of Continue reading


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Beware the Dangers in Unemployment Compensation Hearings

By Sean G. Williamson

medical leave requestAn unemployment compensation hearing can be fraught with dangers for the unsuspecting or unprepared employer.  Many employers disregard such proceedings as low risk because any benefits will be paid from the state’s unemployment insurance fund to which all employers must contribute.  But the factual issues raised in unemployment compensation hearings closely relate to more significant sources of employer liability, such as the Family and Medical Leave Act of 1993 (“FMLA”), 29 U.S.C. § 2601 et seq., and the Americans with Disabilities Act of 1990 (“ADA”), 42 U.S.C. § 12101 et seq.  The recent decision of the Kentucky Court of Appeals in Hicks v. Kentucky Unemployment Insurance Commission, — S.W.3d —, No. 2014-CA-001061-MR, 2015 WL 7351398 (Ky. App. Nov. 20, 2015), illustrates the potential intersection between those seemingly distinct areas of law and the need for a forward-looking strategy to avoid future claims.

Tarsis Hicks worked as an interpreter for Fairview Community Health Center (“Fairview”).  She assisted Spanish-speaking patients in communicating with medical staff.  During her employment, Hicks received a diagnosis of breast cancer.  She then took leave from work under the FMLA to undergo chemotherapy treatments.  After exhausting her twelve weeks of FMLA leave, Hicks requested that Fairview allow her to work from home by Continue reading


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The EEOC’s New Proposed Rule: Long-Awaited Workplace Wellness Regulations

By Leila G. O’Carra

Last year, the EEOC sued three different employers (Honeywell, Orion and Flambeau),1 claiming that the companies’ workplace wellness programs violated the Americans with Disabilities Act. Except for the EEOC’s court papers in these cases, employers have had little guidance on the ADA’s requirements for wellness programs. On April 20, 2015, the EEOC finally revealed its position.

worksite wellnessThe EEOC’s proposed rule applies to employers with 15 or more employees that offer workplace wellness programs that include disability-related inquiries or medical exams. According to the proposed rule, covered wellness programs must be reasonably designed to promote health or prevent disease. Further, covered wellness programs must be voluntary. That is, the employer: (1) may not require employees to participate; (2) may not deny coverage under any of its group health plans for non-participation (or limit benefits except as specifically allowed in the regulation); (3) may not take adverse employment action or retaliate against employees who do not participate; and (4) if the program is part of a group health plan, must provide a detailed notice with information about the program. The notice must be reasonably likely to be understood by Continue reading


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U.S. Department of Justice’s Civil Rights Division Rules that School District Staff Must Assist Student with Handling of Service Dog

By Jason A. Lopp

On April 13, 2015, the U.S. Department of Justice’s Civil Rights Division issued a ruling stemming from an investigation of the Gates-Chili Central School District (DJ No. 204-53-128) located in Rochester, New York. A complaint was filed against the school district by the parent of a student attending elementary school in the District. According to the ruling, the complaint alleged that the District refused to permit the child’s service dog, who is trained as a seizure alert dog, in school unless the parent provided a separate, full-time, adult handler. Due to the student’s physical limitations, she required intermittent assistance in tethering and untethering the dog and with vocalizing a limited number of commands. While it appears that the District provided a 1:1 aide for the child, the aide was not authorized to assist with the service animal and was not provided for all school-related activities, such as on the bus.

The U.S. DOJ found that providing the requested assistance to the student “falls well within the range of support and assistance that school staff provides to young children day in and day out. Accordingly, the District must reasonably modify its current ‘hands off’ policy” with respect to the service dog. The full decision can be found here, and is an interesting and important read for all school districts and similarly situated entities governed by Title II of the ADA.


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U.S. Supreme Court Sets Forth Test for Evaluating Pregnancy Discrimination Claims

By Michelle High

The Pregnancy Discrimination Act, 42 U.S.C. § 2000e(k), dictates that “women affected by pregnancy, childbirth, or related medical conditions shall be treated the same” as other employees who are “similar in their ability or inability to work.”  The Act has two sections.  The first section provides that employers can’t discriminate on the basis of pregnancy because it would be sex discrimination and the second section provides that “women affected by pregnancy, childbirth, or related medical conditions shall be treated the same for all employment-related purposes . . . as other persons not so affected but similar in their ability to work.”  The second section of the law has been the source of repeated questions for employers and employees alike.

pregnancyIn Young v. United Parcel Service, Inc., a newly released 6-3 opinion, the U.S. Supreme Court has provided a test detailing when the Pregnancy Discrimination Act requires an employer that provides work accommodations to non-pregnant employees to extend such accommodations to pregnant employees who are similar in their ability or inability to work.

Peggy Young was a driver with UPS.  When she became pregnant, her obstetrician advised her not to lift more than 20 pounds.   Generally, UPS drivers were expected to carry packages of up to 70 pounds, but the company offered accommodations to those injured on the job; those with conditions recognized as Continue reading


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Court Holds That Requiring an Employee to Undergo Psyhological Counseling May Violate ADA

By Edwin S. Hopson

On August 22, 2012, the U.S. Court of Appeals for the Sixth Circuit in Kroll v. West Lake Ambulance Authority, ___ F.3d ___, Case No. 10-2348, held that requiring an employee to undergo psychological counseling may violate the Americans with Disabilities Act.

The ADA states:

“A covered entity shall not require a medical examinationand shall not make inquiries of an employee as to whether such employee is an individual with a disability or as to the nature or severity of the disability, unless such examination or inquiry is shown to be job-related and consistent with business necessity.”

The plaintiff had had an affair with a co-worker and after an incident related to that during with which it was reported that the plaintiff had been screaming into her phone while on an emergency run, her supervisor required her to undergo psychological counseling before returning to work.  She refused and never returned to work.  A suit was filed claiming, among other things, an ADA violation. The district court granted summary judgment dismissing the case and the former employee appealed.

The appellate court in reaching its decision relied heavily on EEOC guidance.  That guidance consists of seven factors:

(1) whether the test is administered by a health care professional;

(2) whether the test is interpreted by a health care professional;

(3) whether the test is designed to reveal an impairment or physical or

mental health;

(4) whether the test is invasive;

(5) whether the test measures an employee’s performance of a task or

measures his/her physiological responses to performing the task;

(6) whether the test normally is given in a medical setting; and,

(7) whether medical equipment is used.

The court found that factors one, two and three were present, and reversed and remanded the case to allow more development of a record as to the remaining factors.


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“But-For” Causation Standard Applies To Claims Under The Americans With Disabilities Act

By Leila G. O’Carra

Since 1995, a plaintiff making an ADA claim in the Sixth Circuit could succeed only by proving that an employer based an adverse decision “solely” on the plaintiff’s disability.  That changed on May 25, 2012, with the Sixth Circuit’s opinion in Lewis v. Humboldt Acquisition Corporation, Inc., Case No. 09-6381, reducing the plaintiff’s burden from “sole factor” to “but-for” causation. 

Plaintiff Susan Lewisworked as a registered nurse for Humboldt Manor Nursing Home (“Humboldt”).  According to Lewis, about a year after Humboldt hired her, she developed a condition that affected her ability to walk and required her occasional use of a wheelchair. Humboldt fired Lewis in March 2006, because, Humboldt alleged, Lewis had an “outburst” at work, yelling and criticizing her supervisors. Lewis claimed that the real reason for the termination was her disability, and she filed suit in the United States District Court for the Western District of Tennessee.

On the plaintiff’s ADA claim, the district court instructed the jury that Lewis could recover only if her disability was the “sole reason” for her termination.  The jury found for the defendant, concluding that Humboldt considered factors other than Lewis’s disability, and Lewis appealed. 

On appeal, Lewis argued that the district court should have instructed the jury to find in her favor if she proved that her disability was a “motivating factor” in Humboldt’s decision.  Under a “motivating factor” analysis, a plaintiff may succeed at trial upon proving that her disability was one factor that the employer considered, even though the employer also had legitimate reasons for firing her.  In contrast, the “sole factor” standard used by the district court required Lewis to prove that her disability was the only reason for Humboldt’s termination decision.  A panel of the Sixth Circuit upheld the district court’s use of the “sole factor” standard, explaining that it was bound by precedent, but invited Lewis to seek rehearing en banc, strongly suggesting that the full Sixth Circuit would reverse the district court’s decision.  Lewis v. Humboldt Acquisition Corporation, Inc., 634 F.3d 879, 881 at n. 4 (6th Cir. 2011) (“Of course, after this panel issues its opinion,Lewis may still move for rehearing en banc…”).  And that is exactly what happened.

Writing for the majority, Judge Sutton explained: “The longer we have stood by [the “sole factor”] standard, the more out of touch it has become with the standards used by our sister circuits.  At this point, no other circuit imports the ‘solely’ test into the ADA.”  Upon rejecting the “sole factor” test, the Court was left with the question of what standard of proof  to apply in ADAcases.  Relying on the reasoning in the United States Supreme Court’s decision in Gross v. FBL Financial Services, 557 U.S. 167 (2009), the Sixth Circuit held that “[t]he ADEA and the ADA bar discrimination ‘because of’ an employee’s age or disability, meaning they prohibit discrimination that is a ‘but-for’ cause of the employer’s adverse decision.”

While the Court unanimously rejected the “solely” standard, seven of the sixteen judges that heard the case would have applied a “motivating factor” standard to ADA claims, rather than the more onerous “but-for” standard endorsed by the majority of the Court.  One of the proponents of the “motivating factor” standard, Judge Stranch, wrote in a footnote that “this case is about the ADA language prior to the Congressional revisions in 2008.  Thus, only the pre-2008 statute is before this Court…[and] any conclusions offered on the current ADA are dicta.” Judge Stranch’s observation may be her attempt to limit the majority’s holding and leave the door open for application of the “motivating factor” standard to the current version of the ADA. 

In Lewis’s wake, employers in the Sixth Circuit must be mindful of the new “but-for” standard of proof, and the potential for an even more plaintiff-friendly “motivating factor” standard, when making decisions regarding litigation and settlement of ADA claims. 

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