NCAA Agrees to Mediate Suit Filed by College Athletes for Concussion-Related Injuries

Whether you prefer football bowl season or March Madness, it’s a fact that many of us enjoy watching the college sports regulated by the National Collegiate Athletic Association (the “NCAA”). Unfortunately, some of the very sports we enjoy watching can have very negative impact on the over 400,000 student-athletes that play them. Serious health conditions resulting from concussions in “contact” college sports has come to the forefront of public debate recently and is now the subject matter of a recent court case. If successful, that court case could result in significant changes in NCAA regulations.

Adrian Arrington, a former Strong Safety for Eastern Illinois University (“EIU”), filed against the NCAA two years ago. During his tenure at EIU from 2006-2009, Arrington played as a starter after his first year. He served as the team’s captain in the 2009 season and ended his college career with 154 tackles. His impressive football career, however, took a toll on his health. While still on the team, Arrington sustained several serious concussions and began experiencing memory loss, migraines, and seizures. Despite the serious nature of each of his injuries, the EIU team doctor often released him after less than a day of rest.  The EIU coaching staff never taught him effective, safe tackling techniques or discussed with Arrington how to prevent concussions in the future. Now, just a few years after his football career ended, Adrian Arrington cannot sustain employment because of his seizures and must rely on the welfare system.

Though the action filed in late 2011, Arrington now argues that NCAA acted negligently by failing to warn and disclose the risks stemming from repeated concussions and fraudulently concealed facts that exposed those former and current players to harm. For those alleged failures and negligence, Arrington now seeks damages for his own medical conditions and the medical conditions of similarly-situated current and former student athletes. In addition, the Arrington suit seeks medical-monitoring relief for athletes competing in certain “contact” sports, including, but not limited to, basketball, field hockey, ice hockey, lacrosse, and soccer.

Just this month, more student-athletes stepped forward against the NCAA, including Chris Walker, former defensive end for the University of Tennessee, Ben Martin, former defensive linemen for the University of Tennessee, and Dan Ahern, former offensive guard for North Carolina State.  Like Arrington, they are using the court system seeking compensation for their concussion-related health problems and to safeguard the health of future generations of student-athletes.

The arrival of this new set of plaintiffs prompted the NCAA to agree to settlement negotiations, and on October 17th, U.S. District Court Judge Layn Phillips granted a stay in the Arrington case in anticipation of mediation. The NCAA has agreed to try alternative dispute resolution despite the NCAA’s position that the allegations are inappropriately directed against it.

The question many have is why the NCAA is coming to the table for mediation when its position is that the allegations are either unfounded or misdirected. Alternative dispute methods- such as negotiation, mediation and arbitration- are often attractive to both parties for a variety of reasons. Both parties, for example, can benefit from shorter timetables in resolving a conflict, less expensive litigation fees, or a broader spectrum of possible resolutions. Parties choosing to mediate or arbitrate often have much more control or influence over the rules and procedures governing the resolution process. Moreover, alternative dispute resolution provides both individuals and organizations an opportunity to safeguard their personal reputation or their corporate image. Lastly, the activities and eventual agreement between the parties need not be disclosed and can be kept confidential among the parties if that is their wish. These are only a few of the benefits parties who choose to use alternative dispute resolution enjoy.

While the NCAA has not given its statement on why it is considering settlement negotiations, according to its spokeswoman, Stacey Osburn, the NCAA is “willing to consider reasonable settlement options” at this point, and any or all of these factors could have influenced that decision. The outcome of the settlement negotiations with Arrington, scheduled in November, and the new set of plaintiffs, set for February, may lead to important changes in the NCAA’s regulations of contact sports. For example, a mediation agreement could result in the NCAA mandating affiliated colleges to train current student athletes on safer tackling methods, could result in a set of health guidelines or criteria that must be met before an athlete may return to play, or could lead to the establishment of a NCAA-funded medical monitoring program for both current and former student-athletes.

EMPLOYERS REQUIRED TO PROVIDE HEALTH INSURANCE EXCHANGE NOTICE BY OCTOBER 1, 2013

Under the Patient Protection and Affordable Care Act (PPACA), all employers who are subject to the Fair Labor Standards Act, regardless of whether or not they offer health care coverage, must provide their current employees with a health insurance exchange notice no later than October 1, 2013.  This notice must inform employees of the existence of the exchange, the services offered and contact information, so that employees may make informed decisions about health insurance.  The notice must also inform each employee that he or she may be eligible for a premium tax credit if a qualified health plan is purchased through the health insurance exchange.  Finally, the notice must include a statement informing the employee that if he or she purchases a qualified health plan through the health insurance exchange that the employee may lose the employer contribution, if any, towards purchase of health insurance, and that the employer contribution, if any, may be excludable from income for federal income tax purposes.

Employers are not absolved of this requirement despite the recent announcement that parts of the PPACA are being delayed.  The Department of Labor has developed two model notices, one for employers who do not offer coverage and the second for employers who offer coverage, to help employers satisfy the notice requirement.

Notice must be given to all employees, regardless of employment status or plan enrollment status.  However, notice is not required to be issued to dependents or other related individuals who are, or may become eligible, for coverage.   Furthermore, for each new employee hired after October 1, 2013, the notice must be provided “at the time of hiring,” which has been defined to mean within 14 days of an employee’s start date. 

If you have questions on this issue or any other Labor & Employment Law issues, please contact one of the attorneys in the Labor & Employment Law practice area at Bowers Harrison LLP.

Does the 2008 ADAAA Expand the Definition of Disability to Cover Pregnancy-Related Absences?

There have been two recent pregnancy related discrimination complaints filed with the Equal Employment Opportunity Commission (EEOC) seeking to receive an expanded definition of disability under the 2008 Amendment (ADAAA)to the Americans with Disabilities Act (ADA).

These pregnancy discrimination complaints were brought by pregnant women who claim they were denied reasonable accommodation for pregnancy – related disabilities that they argue were covered by the expanded definition of the term disability brought about by the 2008 amendments to the ADA.

From 1978, the Pregnancy Discrimination Act (PDA) has prohibited employers from treating pregnant women differently from similarly situated employees who are absent from work for a medical condition.

When Congress passed the Americans with Disabilities Act Amendments Act (ADAAA), expanding the definition of disability to cover pregnancy – related impairments, and the EEOC issued regulations codifying the act in March 2011.

For example, the EEOC in its Fact Sheet on Pregnancy Discrimination as of May 2, 2013 under the heading Pregnancy Discrimination and Temporary Disability states as follows:

“If a women is temporarily unable to perform her job due to a medical condition related to pregnancy or childbirth, the employer or other covered entity must treat her in the same way as it treats any other temporarily disabled employee.  For example, the employer may have to provide light duty, alternative assignments, disability leave or unpaid leave to pregnant employees if it does so for other temporarily disabled employees. 

Additionally, impairments resulting from pregnancy (for example, gestational diabetes or preeclampsia a condition characterized by pregnancy-induced hypertension and protein in the urine may be disabilities under the Americans With Disabilities Act (ADA).  An employer may have to provide a reasonable accommodation (such as leave or modifications that enable an employee to perform her job) for a disability related to pregnancy, absent undue hardship (significant difficulty or expense).

The ADA Amendments Act of 2008  makes it much easier to show that a medical condition is a covered disability.  For more information about the ADA see  http:///www.eeoc.gov/laws/types/disability.cfm.    For more information about the ADA Amendments Act, see www.eeoc.gov/laws/tyes/disbilityregulation

In a recent complaint Amy Crosby, a cleaner who makes $9.09 an hour at Tallahassee Memorial Hospital, said she suffered from carpal tunnel syndrome.  Her symptoms intensified in her 23rd week of pregnancy, which she said made it impossible for her to lift heavy bags of laundry and trash.

After Crosby gave a note from her chiropractic neurologist attesting to pregnancy related carpal tunnel syndrome, the hospital stated that such information must come from her obstetrician.  Crosby’s obstetrician said she could not diagnose her and recommended a neurologist for the pains in her arm.

However several supervisors refused her requests for work with limited lifting restrictions and she was involuntarily placed on unpaid leave pursuant to the Employee’s Family and Medical Leave Act Leave policy (FMLA policy).

Crosby’s complaint which was filed with the EEOC by the National Women’s Law Center, stated that other hospital employees who had suffered medical conditions or were otherwise unable to complete aspects of their job had been accommodated.

Another recent separate complaint filed with the EEOC by the American Civil Liberties Union complains that United Parcel Service, Inc. (UPS) failed to accommodate driver Julie Desantis-Mayer when she was pregnant in the spring of 2012.  In August, UPS attempted an accommodation by offering her a light-duty job on the condition that it would not count toward seniority or benefits, an offer she characterized as “unlike and worse than UPS’s accommodation of other non-pregnant employees.”

Although the case involving the Tallahassee Medical Center was settled through a monetary settlement to Amy Crosby, the UPS case is ongoing.

What these two recent cases demonstrate, is that the EEOC in its three-year enforcement plan, published in December 2012, the Agency identified accommodating pregnancy related medical limitations under the ADAAA and the Pregnancy Discrimination Act (PDA) as an “emerging issue.”

 


Editorial Comment:  As shown by the above, employers should be very careful with pregnancies especially those that involve long periods of restrictive limitations such as bed rest and lifting limitations.  There should be a concentrated effort toward accommodating pregnant employees who have legitimate medical restrictions and may have pregnancy related disabilities, particularly those that could last longer than six months.  Such accommodations might be leave of absence, job reassignment, light duty or job modifications unless these accommodations result in undue hardship. 


 

If the facts show by medical certification that the employee has a pregnancy-related disability, then the employer has a duty to reasonably accommodate it as with any other disability assuming the accommodation does not result in an undue hardship to the business.

 

Written and Published By Arthur D. Rutkowski.

Rutkowski & Associates, Inc.
Employment Law Update
Bowers Harrison, LLP
25 N.W. Riverside Dr.
P.O. Box 1287
Evansville, IN 47706-1287
(812) 426-1231

 

First Circuit Holds That DOMA Denial of Federal Benefits To Same-Sex Married Couples Is Unconstitutional—U.S. Supreme Court Next Step

On May 31, 2012, the First Circuit Court of Appeals held as unconstitutional Section 3, the portion of the federal Defense of Marriage Act (DOMA) which denies federal benefits to same-sex married couples. Thus, Section 3 is not enforceable.

However, the First Circuit has not implemented its ruling which would impact Maine, New Hampshire, Massachusetts, and Rhode Island, because the Court awaits DOMA review by the U.S. Supreme Court within the next year, by noting “only the Supreme Court can finally decide this unique case.” Commonwealth of Massachusetts v. U.S. Department of Health and Human Services, 1st Cir., May 31, 2012.

Facts About DOMA

DOMA is a federal law, defining marriage as a legal union between one man and one woman, which was enacted with President Bill Clinton’s signature on September 21, 1996. Prior to DOMA, the Hawaii Supreme Court had just decided a case finding that the denial of same-sex marriages could be unconstitutional.

 


DOMA is a federal law, defining marriage as a legal union between one man and one woman, which was enacted with President Bill Clinton’s signature on September 21, 1996. DOMA was designed to deny more than 1,000 federal benefits to couples in a same-sex marriage.


DOMA is infrequently discussed in the workplace, but has been recently highlighted with the national discussions on same-sex marriages. DOMA was designed to deny more than 1,000 federal benefits to couples and surviving spouses in a same-sex marriage. Federal benefits denied to these same sex couples include:

 

  • The right to jointly file taxes;
  • Paid leaves of absence to care for a sick or injured spouse;
  • Spousal and/or surviving spouse benefits as federal civilian employees;
  • Estate and gift tax exemption; and
  • Estate tax portability

Even in states which allow same- sex couples to marry, DOMA prevents these couples from accessing the federal benefits afforded to marriages between a man and a woman. Further, other states may choose not to recognize the same-sex marriage.

DOMA is problematic to federal employees, as they are unable to provide their same-sex partner with health insurance and other medical benefits. Private sector employers may provide certain benefits voluntarily, if they choose to do so.

First Circuit DOMA Case Summary

The First Circuit heard a case, where two lawsuits were joined because they both had commonalities under DOMA. The first case, Gill v. OPM, No. 10-2207, involved seven same-sex couples married in Massachusetts that included three surviving spouses, whose issue was the denial of federal benefits available to heterogeneous marriages.

The second case was Massachusetts v. DHHS, No. 10-2204, where DOMA has an impact on Medicaid beneficiaries and veterans’ cemeteries.

For example, when the state combines the income of same-sex couples for Medicaid purposes, Massachusetts is in violation of DOMA, which gives the Centers for Medicare and Medicaid Services (CMS) the right to rescind Medicaid funding for non-complying states.

Likewise, burying a same-sex spouse in a “veteran’s cemetery” with his/her veteran removes the veteran’s burial status, and could subject the cemetery to an order from Veterans’ Affairs to return all federal funding for the cemetery.

After combining these cases, the federal district court found Section 3 of DOMA unconstitutional under the Equal Protection Clause, as well as the Spending Clause and the Tenth Amendment.

When the case reached the First Circuit, it noted that DOMA needs review because of the “discrepant impact among married couples and in part on the importance of state interests in regulating marriage.

According to the First Circuit, appellate courts cannot decide the same question that has been previously ruled on by the U.S. Supreme Court.

However, in interpreting the Tenth Amendment, the U.S. Supreme Court has taken the following stance:

“Supreme Court interpretations of the Tenth Amendment…in force today have struck down statutes only where Congress sought to commandeer state governments or otherwise directly dictate the internal operations of state governments…Whatever its spin-off effects, Section 3 governs only federal programs and funding, and does not share these two vices of commandeering or direct command.”

DOMA also complies with the condition that “federal funds must be related to federal purposes.”

However, in this case states that allow same-sex marriages run the risk of assuming new administrative burdens or losing funding for Medicaid or veterans’ cemeteries solely because of these same sex marriages. Congressional influence on state decisions for same-sex marriage may not violate the Tenth Amendment or Spending Clause, but it does affect how justifications are assessed.

The precedent for this intrusion of federal statutes on matters customarily reserved for state control came up in United States v. Morrison, 529 U.S. 598 (2000) and in United States v. Lopez, 514 U.S. 549 (1995). In these cases the Court did more than its usual rational basis review by invalidating the statutes under the Commerce Clause.

 


“Given that DOMA intrudes broadly into an area of traditional state regulation, a closer examination of the justifications that would prevent DOMA from violating equal protection (and thus from exceeding federal authority) is uniquely reinforced by federalism concerns.”


While no one knows how the U.S. Supreme Court will react if it grants certiorari to reviewing this case, the First Circuit opined that:

“Given that DOMA intrudes broadly into an area of traditional state regulation, a closer examination of the justifications that would prevent DOMA from violating equal protection (and thus from exceeding federal authority) is uniquely reinforced by federalism concerns.”

When DOMA was passed, the Congressional Committee report stated the purposes of DOMA as:

“The Committee briefly discusses four of the governmental interests advanced by this legislation: (1) defending and nurturing the institution of traditional heterosexual marriage; (2) defending traditional notions of morality; (3) protecting state sovereignty and democratic self-governance; and (4) preserving scarce government resources.”

The First Circuit did not consider the question of whether or not same-sex marriage should be allowed, as written in Section 2. For purposes of this case, only Section 3 is before the Court. A review of past U.S. Supreme Court rulings indicate that this specific question has not been addressed, which is:

“Under current Supreme Court authority, Congress’ denial of federal benefits to same-sex couples lawfully married in Massachusetts has not been adequately supported by any permissible federal interest.”

 


“Under current Supreme Court authority, Congress’ denial of federal benefits to same-sex couples lawfully married in Massachusetts has not been adequately supported by any permissible federal interest.”


Any injunctive judgment has been stayed pending review by the U.S. Supreme Court.

 


Editorial Comment:   Since DOMA Section 3 is unconstitutional under the equal protection constitutional guarantee, this holding effects federal income tax, social security, all federal employees and retirees and the issuance of passports.


There is little doubt that this decision of the First Circuit Court of Appeals will be appealed to the U.S. Supreme Court in the next 90 days.  The U.S. Supreme Court will in most likelihood grant certiorari to hear this case.

DOMA is one of the shortest statutes on record. It was enacted into law after only one day of hearings and has just a few paragraphs without specific language to provide clarity.

 

Written and Published By Arthur D. Rutkowski.

Rutkowski & Associates, Inc.
Employment Law Update
Bowers Harrison, LLP
25 N.W. Riverside Dr.
P.O. Box 1287
Evansville, IN 47706-1287
(812) 426-1231

Appeals Court Rules Heart Condition Was A Direct Threat to Safety and Health Under The ADA And ADAAA

After a federal district court granted summary judgment to Whirlpool, in a case where the employee filed a lawsuit under the Americans With Disabilities Act (ADA), the plaintiff appealed to the Sixth Circuit Court of Appeals in Cincinnati, OH.  The Sixth Circuit Court of Appeals recently ruled that the employee, who had unpredictable coronary artery spasms causing symptoms such as dizzy spells, was disabled, but not “qualified” for his fork lift driver and paint job because there was no “reasonable accommodation” that could remove the threat that he posed to the health and safety of himself and others in a plant by working alone close to heavy moving machinery.  Wurzel v. Whirlpool Corp., No. 10-3629, (6th Cir. April 27, 2012)

 


The Sixth Circuit Court of Appeals in Cincinnati, OH recently ruled that the employee, with unpredictable coronary artery spasms causing symptoms such as dizzy spells, was disabled, but not “qualified” for his forklift driver and paint job because there was no “reasonable accommodation” that could remove the threat that he posed to the health and safety of himself and others in a plant by working alone by moving heavy machinery.


 

Facts Of This Case

Brian Wurzel started work at Whirlpool in 1983, and began his job as a materials handler driving a forklift in 2003. The forklift driver’s job is to drive through the Clyde Division factory floor among pedestrian co-workers at about 5 to 7 miles per hour with a load of boxes in a plant with 2,500 workers, and six working assembly lines– some rapidly moving and others that are automated moving machinery. These fork lifts weigh about 10,000 pounds and move within painted lines that separate them from pedestrians. Because of the work environment, the ability to safely operate the forklift is an essential job function.

In April, 2003, Wurzel started having chest pains that resulted in an emergency room visit, and by 2007, he was diagnosed with Prinzmetal angina, a condition where spasms in the coronary arteries result in various symptoms; such as, numbness in his left arm, neck pain, shortness of breath, chest tightness, fatigue and dizzy spells. These spells occur without warning and can vary in severity. Unrelenting symptoms require emergency treatment. A side effect of taking nitroglycerin is low blood pressure (hypotension, which can also cause fatigue, dizziness and lightheadedness.

When the spells occurred, Wurzel took nitroglycerin every 5 minutes up to three times.

After having a heart catheterization in 2007, the cardiologist released Wurzel to return to work as a forklift driver with no restrictions. By March, 2008, these coronary artery spasms again started occurring at work. Over the next twelve months, Wurzel experienced at least eleven reported episodes, which were treated in the plant’s medical emergency area. However, one spell was so serious that Wurzel was bent over and ready “to pass out.”

After the first coronary artery spasm at work, the plant physician became concerned about Wurzel’s ability to safely operate a forklift, in light of the risk of “sudden incapacitation.” Even though Wurzel’s cardiologists did not think that his angina was any greater than other types, and his driving record was good, Wurzel was reassigned to a temporary job at the plant’s gate.

By October, 2008, Wurzel accepted a permanent job in the paint department, which Whirlpool determined he could safely perform. In this position, he had to rotate functions with the other co-workers. One problematic duty was the “tooling” position, where there was a “low hanging” overhead conveyor line in constant motion. The other was where he had to work alone on the upper floor.

After Wurzel had another spell with chest pain that required him to take nitroglycerin and be driven home by his wife, the plant physician referred him to a independent cardiology medical examiner to evaluate his cardiac condition in November, 2008.  However, Wurzel apparently downplayed the extent of his cardiac spells, and this physician did not understand the nature of Whirlpool’s work environment. Consequently, Wurzel was allowed to return to the paint department the next month.

His tenure at the paint department was short-lived, because he had three more cardiac spasms in the next month. This time, the plant physician consulted the independent medical examiner, who reversed his opinion, particularly in light of the fact that Wurzel worked around heavy machinery where he was sometimes beyond the sight of other employees. In the final analysis, Wurzel was prohibited from working alone or near moving machinery. Wurzel went on sick leave.

In August, 2009, Whirlpool performed a review of Wurzel’s work restrictions with regard to his job in the paint department and concluded that he was not qualified to meet the essential elements of the job, which included the ability to work alone or work near moving machinery. In response Wurzel stayed on medical leave for a total of 26 weeks prior to reporting for work on March 1, 2010, claiming that he had not had any spasms or  episodes in the past six months.

Course of Lawsuit

In March, 2009, Wurzel filed a lawsuit against Whirlpool based on violations of several state and federal laws. The only claim surviving for appeal was the one where he claimed unlawful discrimination within the meaning of the ADA. Because the events in the case occurred both before and after the Americans with Disabilities Act Amendment Act (ADAAA), the federal district court analyzed this case under both versions of the law.

The federal district court considered the opinions of all physicians, but especially the plant physician that was most aware of Wurzel’s symptoms because he had treated him so often. The court determined that Wurzel had not made a prima facie case of discrimination, because he could not show that he had an impairment that prevented him from working in a “broad class of jobs” under the ADA. In considering the case in light of the ADAAA, the court held that Wurzel was not qualified for the job of forklift driver because he posed a direct threat to the health and safety of himself and others. Per the ADAAA,

"…actions motivated by bona fide concerns with worker safety cannot be deemed or found to be prohibited under the ADA, as amended or otherwise."

On appeal, the Sixth Circuit reviewed this case for the periods of May, 2003 through August, 2009 and applied the ADA before January 1, 2009 and the ADAAA thereafter. Because the case of Bazzi v. City of Dearborn, 658 F.3d 598, 606 (6th Cir. 2011) allows the court to affirm the lower court ruling on any ground supported by the record, the Sixth Circuit affirmed based on the proof that Wurzel was a direct threat to safety and health of himself and others. In so doing, the Sixth Circuit agreed that Wurzel was disabled but not “qualified” for the forklift driver position because he posed a direct threat to the health or safety of others.

Direct Threat Analysis

In determining whether an individual is a direct threat, the Court considered four factors:

Read more Appeals Court Rules Heart Condition Was A Direct Threat to Safety and Health Under The ADA And ADAAA

Is Discharge for Conception Out of Wedlock Pregnancy Discrimination?

In the case of Hamilton v. Southland Christian School, Inc. F.3d, (11th Cir. May 16, 2012), the Eleventh Circuit Court of Appeals held that Title VII’s religious exemption from discrimination did not make lawful the right of a Christian School to fire a teacher, who became pregnant 3 weeks before she got married.

Facts

In this recent case, Jaretta Hamilton, the plaintiff, was a fourth grade teacher who started working at Southland Christian School in St. Cloud, Florida in January, 2008.  According to Hamilton, she conceived her child with her fiancé.  In January 2009, and then got married the next month.

Hamilton talked with Southland’s administrators about her pregnancy in April, 2009 and asked about taking maternity leave. In the course of this discussion, Hamilton told Southland’s administrator and assistant minister, John and Julie Ennis, about conceiving her child three weeks before her February wedding.

As a result, she was discharged four days later. Hamilton sued for pregnancy discrimination under Title VII of the Civil Rights Act of 1964. A lower court dismissed the claim, and Hamilton appealed her case to the Eleventh Circuit Court of Appeals.

In its ruling, a three-judge appellate panel said,

“[The issue was whether the lower court erred in its conclusion Southland was entitled to summary judgment] on the ground that Hamilton had not established a prima facie case that she was fired because of her pregnancy instead of her premarital sex”.


“[The issue was whether the lower court erred in its conclusion that Southland was entitled to summary judgment] on the ground that Hamilton had not established a prima facie case that she was fired because of her pregnancy instead of her premarital sex”.


Apparently, the church argued that she “had sinned by engaging in premarital sex…and there are consequences for disobeying the word of God.”

However, Hamilton presented sufficient evidence to establish she may have been terminated because of her pregnancy, and not the premarital sex, says an appellate court.

According to the unanimous opinion of the three-judge appellate panel,

"Hamilton presented evidence that, in making the decision to fire her, Southland was more concerned about her pregnancy and her request to take maternity leave than about her admission that she had premarital sex."                       

This distinction between being discharged from employment because of premarital sex versus pregnacy is important because:

"The reason the difference matters is that Title VII does not protect any right to engage in premarital sex, but as amended by the Pregnancy Discrimination Act of 1978, Title VII does," said the court.

In its arguments, the school relied on the religious exemption as protection against a claim of religious discrimination under Title VII, as it was acting on the religious belief that “there are consequences for disobeying the word of God.”


“…Title VII does not protect any right to engage in premarital sex, but as amended by the Pregnancy Discrimination Act of 1978, Title VII does”…[ the school relied on the religious exemption as protection against a claim of religious discrimination under Title VII, as it was acting on the religious belief that] “there are consequences for disobeying the word of God.”


Hamilton filed a charge against the school claiming liability under Title VII’s protected category of pregnancy charging that she was terminated for merely being pregnant, without regard to the fact that the pregnancy was out of wedlock.

Court Proceedings

The Eleventh Circuit overturned a federal district court summary judgment ruling, where the lower court found that Hamilton failed to establish that she was fired for her pregnancy rather the moral concern over her premarital sex.

In overturning the federal district court’s granting of summary judgment to the school, the Eleventh Circuit, sitting in Atlanta Georgia, pointed out the evidence that the school was more concerned about Hamilton’s request for maternity leave than her admission to having premarital sex. The School Administration, in fact, expressed concern over not having a replacement teacher in answer to Hamilton’s request.

Thus, the Eleventh Circuit stated,

“Hamilton has established a genuine issue of material fact about the reason that Southland fired her. The ultimate issue is one for a jury to decide.”

At a later stage of the appeal proceedings, Southland tried to argue that the separation between church and state prevents courts from applying discrimination laws to a church’s employment decisions. The school pointed to a recent U.S. Supreme Court ruling in Hosanna Tabor Evangelical Lutheran Church and School v. Equal Employment Opportunity Commission (EEOC), which upheld a religious group’s right to choose their ministerial employees without governmental interference.

However, the Eleventh Circuit dismissed this argument based on the recent Supreme Court ruling on the grounds that the school waited too long to raise that argument and even had admitted in a court filing that it did not consider Hamilton a “minister” with religious duties.


Editorial Comments: This case is a red flag for religious institutions, who may make employment decisions based on religious beliefs. When there are religious considerations in employment decisions, they must be based on clear religious belief. It is important for the religious institution to be very careful when dealing with lay individuals, who do not have any ministerial duties.


It is critical to clearly state what moral guidelines all employees must follow to stay employed and to accomplish a Christian school’s mission.

 

Written and Published By Arthur D. Rutkowski.

Rutkowski & Associates, Inc.
Employment Law Update
Bowers Harrison, LLP
25 N.W. Riverside Dr.
P.O. Box 1287
Evansville, IN 47706-1287
(812) 426-1231

SEED SAVING CAN BE HAZARDOUS TO YOUR POCKETBOOK: A Review of Bowman vs. Monsanto

In a 9-0 decision, the United States Supreme Court sided with agribusiness Monsanto on Monday holding  that an Indiana farmer violated Monsanto’s patents on Roundup Ready soybeans when he replanted his own crop year after year using Monsanto’s patented seeds that he picked out of a grain elevator years before, without compensating Monsanto.  The Court held that patent exhaustion does not permit a farmer to reproduce patent seeds through planning and harvesting without the patent holder’s permission.

The patent exhaustion doctrine states that the initial authorized sale of a patented item terminates all patent rights to that item.  Thus, a purchaser or a subsequent owner has the right to use or sell the item as he or she sees fit.  The doctrine, however, reserves the right of the patentee to prevent a buyer from making new copies of the patented item, which is how Bowman, the Indiana farmer,  violated the patent exhaustion doctrine.  Bowman made additional copies of Monsanto’s Roundup Ready genetically modified soybeans and, by planting and harvesting, year after year, these seeds, which were copies of the initial seeds purchased from Monsanto, Bowman violated the patent exhaustion doctrine and infringed on Monsanto’s patent. 

In writing the majority opinion, Justice Elena Kagan wrote,

[I]f simply copying were a protected use, a patent would plummet in value after the first sale of the first item containing the invention.  The undiluted patent monopoly, it might be said, would extend not for 20 years (as the Patent Act promises), but for only one transaction. And that would result in less incentive for innovation than Congress wanted.”   In the present case, for example, after Monsanto sold its first seed, other seed companies could produce the patented seeds competing with Monsanto and farmers would only have to buy the seeds once.

Kagan’s opinion is limited to the facts of the Monsanto case, but with the still pending case on whether human genes can be patented (Oral Arguments were held on that case in April), the ruling will surely affect inventors seeking biotech patents in the future and particularly help inventors seeking patents on self-replicated products. The opinion also hints that consumers will continue to pay high prices for food as the cost to plant crops such as soybeans continues to rise.

Our intellectual property department will continue to monitor this case and its effects.  If you have questions on this issue or any other intellectual property issue, please contact us at (812) 426-1231.  

Compensatory Time for Private Employers: Is It Legal?

Under the Fair Labor Standards Act, (FLSA), private employers must be wary of how they manage compensatory time or "comp time."  Comp time is a concept that employers use to allow employees who work overtime in a workweek to take time off as a compensation in some other work week.  This concept is legal for certain public employers, but is only legal for private employers if the comp time is used in the same work week that the overtime has occurred.  In other words if a private employee has incurred overtime in a work week, compensatory time must be used by that employee during work week where overtime occurred, or comp time is not allowed as an option to paying overtime for the private employer.

On May 8, 2013 the House of Representatives enacted a bill that would allow private sector employers to allow hourly workers the option of taking “comp time” in lieu of paid overtime.  The bill would amend the FLSA to allow private employers to offer comp time at a rate of 1.5 hours per hour of overtime worked instead of paying cash wages at time and one-half the employee’s regular rate of pay for all hours worked over 40 hours in a workweek.

The bill would require the comp time arrangement to be agreed to in writing by both the employer and the employee.  Any unused comp time would be paid out at the end of each year, and employees would be allowed, upon request, to “cash out” any accrued comp time during the year.

There is no current companion bill in the Senate, but the Republican backers have praised the bill as a practical approach to the 21st century as it would provide flexibility to allow employees to balance family as well as work obligations.

It remains to be seen if this legislation picks up support in the Senate.  However at this time, this bill is not law and unless you have the employee use comp time in the same workweek that overtime occurred, a private sector employer must pay all non-exempt employees 1.5 times their regular rate of pay for all overtime hours worked in that workweek.

 

Written and Published By Arthur D. Rutkowski.

Rutkowski & Associates, Inc.
Employment Law Update
Bowers Harrison, LLP
25 N.W. Riverside Dr.
P.O. Box 1287
Evansville, IN 47706-1287
(812) 426-1231

Chemical Sensitivity: How Far Must an Employer Go For Reasonable Accommodation?

A U.S. Federal District Court, in Ikemoto v. American Red Cross, Nashville Chapter, (U.S.D.C. Md Tenn) (March 3, 2013), decided that a part-time accounting associate, who suffered chemical sensitivity resulting from a prior brain injury, was not denied a reasonable accommodation when her employer denied her request to telecommute.

Facts Of This Case

Plaintiff, Mariko Ikemoto, filed a discrimination action under the American’s with Disabilities Act (ADA) against the American Red Cross (ARC) on the grounds that her employer, ARC, failed to provide reasonable accommodation for her disability.

During the course of Ikemoto’s employment, she had requested and had been granted numerous accommodations for a “chemical sensitivity” caused by a reported prior brain injury.  ARC repeatedly accommodated Ikemoto, which included changing the location of her office at least six (6) times.  ARC also reimbursed her for the costs of customized potpourri and an air purifier core filter for her office.  However, when the ARC office was repainted and new carpet was installed, Ikemoto e-mailed ARC stating that she was having a reaction to the new workplace environment, in that the “new and different smells make me nauseated and feeling confused.”

The Social Security Administration found Ikemoto to be “totally disabled” as of June 18, 2010.  On June 25, 2010, Ikemoto left work after a few hours and did not return to work at ARC’s Nashville office.

On July 2, 2010, Ikemoto e-mailed ARC and stated that her primary care physician suggested that she consult with a neurologist.  Ikemoto, at this time also requested to work either from home or from the Williamson County office.

On July 8, 2010, Ikemoto e-mailed ARC with another request to work from home, explaining that she was unable to see her primary care physician, due to the smell in her doctor’s lobby.

Then on July 27, 2010, Ikemoto e-mailed ARC to explain that she had been to Dallas for a doctor’s appointment and again offered to work from her home or the Williamson County office.  On July 28, 2010, ARC terminated Ikemoto’s employment and Ikemoto filed a lawsuit under the ADA.

ARC argued in summary judgment proceedings that:

(1)   Ikemoto cannot establish under the ADA that she was a qualified individual with a disability; and

(2)   Assuming Ikemoto was a qualified individual with a disability, her request for accommodation was unreasonable as a matter of law.

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American Red Cross argued in summary judgment proceedings that: (1) Ikemoto cannot establish under the ADA that she was a qualified individual with a disability; and (2) Assuming Ikemoto was a qualified individual with a disability, her request for accommodation was unreasonable as a matter of law.

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The Court reviewed the record and found that Ikemoto had been evaluated by Dr. William Rea of the Environmental Health Center in Dallas, who found that:

“It is my medical opinion that the patient is totally disabled by her sensitivities.  She is unable to engage in any type of   sustained work or work-like activities at this time or in theforeseeable future.” 

Given Ikemoto’s impaired functions, she was found by another physician to be “substantially limited in at least one of her major life activities, namely work”.  Based on these evaluations by Ikemoto’s doctors, the Court concluded that she had a disability under the ADA.

Concerning ARC’s argument that Ikemoto cannot be a qualified individual with a disability under the ADA standards because the Social Security Administration determined that Ikemoto is “totally disabled,” the Court pointed to different definitions of disability under the Social Security Act and the ADA and concluded that Ikemoto’s ADA claim could still stand as ARC had not contested that Ikemoto was “otherwise qualified” to perform the essential functions of her job.

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The Court pointed to different definitions of disability under the Social Security Act and the ADA and concluded that Ikemoto’s  ADA claim could still stand as ARC had not contested that Ikemoto was “otherwise qualified” to perform the essential functions of her job.

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The Issue of Reasonable Accommodation

First, the Court noted that reasonable accommodation may include:

 “Making existing facilities used by employees readily accessible to and usable by individuals with disabilities; and job restructuring,  part-time or modified work schedules, reassignment to a vacant position, acquisition or modification of equipment or devices, appropriate adjustment or modification of examinations, training materials or policies, the provisions of qualified readers or interpreters, and other similar accommodations for individuals with disabilities.” [Citing 42 U.S.C. § 12111 (9)(A) and (B)].

The Court discussed Ikemoto’s request to telecommute, in opining:

“The majority of Plaintiff’s ‘essential functions’ at ARC required her to physically be at the office to process checks, receipts and mail as well as interact with her supervisor and co-workers in processing receipts and attending meetings.” 

As a result of this analysis, the Court held that Plaintiff’s request to work from home was not a “reasonable accommodation” under the ADA. 

Additionally, the Court found that the record reflected:

“That even if Ikemoto were allowed such an accommodation, the specialists she consulted on her disability concluded that she is unable to work entirely, with or without accommodations.”

Sample Policy Language

The City of Detroit adopted the following policy on perfume and chemical sensitivities, because of the ADA discrimination claim involving Susan McBride, which resulted in a $100,000.00 settlement.

Subsequently, the City added a section to its City of Detroit Employee Handbook which said:

“Our goal is to be sensitive to employees with perfume and chemical sensitivities. In order to accommodate employees who are medically sensitive to the chemicals in scented products, the City of Detroit requests that you refrain from wearing scented products, including but not limited to colognes, after-shave lotions, perfumes, deodorants, body/face lotions, hair sprays or similar products.

The City of Detroit also asks you to refrain from the use of scented candles, perfume samples from magazines, spray or solid air fresheners, room deodorizers, plug-in wall air fresheners, cleaning compounds or similar products.

Our employees with medical chemical sensitivities thank you for your cooperation.”

 

Editorial Comment: Because so many people have allergies and sinus problems, many employers have put a policy in place to limit body scents and other perfumed products in the workplace. Even for those without sensitivities, removing noxious odors is a good idea.

Written and Published By Arthur D. Rutkowski.

Rutkowski & Associates, Inc.
Employment Law Update
Bowers Harrison, LLP
25 N.W. Riverside Dr.
P.O. Box 1287
Evansville, IN 47706-1287
(812) 426-1231