Friday, October 25, 2013

"Indefinite Leave" Declared a Reasonable Accomodation!

New York's highest court has ruled this month in Romanello v. Intesa San Paolo, S.p.a. that under the New York City Human Rights Law, an indefinite leave of absence for a disability is not in and of itself an unreasonable accommodation. Instead, says the court, it is up to the employer to prove that such an accommodation would be an undue hardship.

This new ruling stands in stark contrast to the New York State and federal disability discrimination statutes. The courts interpreting those statutes have consistently held that an indefinite leave of absence as the result of a disability is not a reasonable accommodation.

The Court's ruling is significant to employers who must now meet an additional pleading requirement, that is, that the indefinite leave will result in an undue hardship, to satisfy their burden under the New York City law.

Wednesday, July 3, 2013

Supreme Court Defines the Term "Supervisor" Under Title VII

Last October 2012, I wrote about the case of Vance v. Ball State University, a Seventh Circuit federal appeals court case that addressed the question of who a "supervisor" is for purposes of employer harassment claims alleged under Title VII.

The question is important because under federal law, when the alleged harasser is a co-worker, the employer will only be liable for the harasser's actions if the employee proves that the employer was negligent.  But when the employee is a supervisor who creates a hostile work environment, the employer is liable unless it can prove a defense, for instance, that it had an anti-harassment policy and that the employee who was the victim of the harassment failed to take advantage of such a policy.

The Seventh Circuit in Vance adopted a narrow definition of the term and ruled that a supervisor is  someone who has the authority to make tangible decisions about an employee's work conditions, including hiring, firing, demoting, promoting, transferring and disciplining.  To contrast this definition, the Second Circuit federal court in New York, defines a supervisor less restrictively as anyone who simply has authority to direct the employee's daily work activities.

Vance was appealed to the United States Supreme Court and the Supreme Court's decision was handed down this past June 24, 2013.  In a 5-4 majority opinion the Supreme Court has sided with the Seventh Circuit and ruled that a "supervisor" is someone with the authority to effect significant change in an employee's employment status or has the ability to cause a significant change in benefits.  If such a person is responsible for the harassment, then the employer may be liable, but the harasser's mere ability to direct or supervise another employee's work is not enough to hold the employer vicariously liable.

The Supreme Court's decision, at the same time, explicitly rejects the EEOC's broad definition of the term supervisor.

No doubt the decision will have a significant impact on employee harassment lawsuits going forward; giving employers a decided advantage in this area.

Thursday, June 6, 2013

An Employer's Job Description of "Essential Job Functions" Carries Great Weight

What constitutes an "essential job function" under the Americans with Disabilities Act?  It is a question that the courts grapple with everyday because it is a critical element of any disability discrimination claim.  Well, the federal court for the Eighth Circuit Court of Appeals has recently answered the question and has decided that an employer's judgment carries great weight in making the determination. The court held that the job description by the employer, not the employee's specific experience on the job, is what counts most.


 In Knutson v. Schwan's Home Service Inc. (April 2013) an employee was terminated after two years on the job on the ground that the employer claimed that the employee was no longer able to meet the physical standards described in his job description. The employee sued under the ADA alleging discrimination. He claimed that he rarely drove a commercial vehicle as part of his normal job duties, and so, when he suffered a serious eye injury and could not obtain Department of Transportation certification to drive a commercial vehicle (a requirement in his job description), he could nevertheless perform "the essential job functions" of his work. His termination, he claimed, therefore violated the ADA.  The employer, however, proved that the employee's ability to drive a commercial vehicle was essential to the job no matter how infrequently this ability was used, and that it was listed in the job description as a qualification for the position.


 The Eighth Circuit agreed with the employer and held that the job description is what counts when determining whether an employee can perform the essential functions of the job.


Whether or not state or federal courts in New York presently agree with the Eighth Circuit, the decision underscores the importance of clear, complete and up-to-date job descriptions, and documented business-related reasons for decisions affecting employees.  Being able to document a consistent application of job requirements and the necessity of those requirements will bring employer's one step closer to successfully defending against a disability discrimination claim under the ADA.