Suits In The WorkPlace

The Mixed-Motive Minefield of Employment Discrimination

    A recent case out of the 6th Circuit starkly demonstrates the problems for an employer where the plaintiff alleges a mixed-motive discrimination case.  In laying out how these kinds of claims are going to be handled in the 6th Circuit, the court sets up an extremely difficult standard for an employer and virtually guarantees that these cases will go to trial.

     The plaintiff was an employee at Baxter Healthcare and received a bad evaluation following several good years of performance.  The bad evaluation limited the employee's raise and he brought suit alleging race discrimination. 

     Of particular interest is the fact that the employee claimed that the decision to downgrade his performance evaluation was motivated "at least in part" by his race.  The court found that the employee was raising a mixed-motive claim under 42 U.S.C. § 2000e-2(m), which permits a plaintiff to show that the employer used a protected factor (in this case, race) as a "motivating factor" for the adverse employment action, although other factors also motivated the decision.

     Mixed-motive cases are a semantic tangle that confuse employers, lawyers and courts alike.  The Supreme Court cleared up some of the problem in 2003 in a case called Desert Palace, but the issue the 6th Circuit was confronting, namely what proof framework to use, did not arise in the Supreme Court case. 

     In this case, the 6th Circuit decided that it would not use the venerable McDonnell Douglas framework to assess a mixed-motive case.  Instead, the court took an employee-friendly position, holding that all a plaintiff had to do to defeat summary judgment was to show that race (or any other protected factor) "was a motivating factor", among several others, in the employment decision.  In other words, the ultimate question for the court is "whether there are any relevant issues of material fact concerning the defendant's motivation for its adverse employment decision".  This standard is extremely low for a plaintiff because inquiries regarding what typically motivates an employer's decision are very fact intensive and are difficult to resolve at the summary judgment phase.  As a result, the vast majority of mixed-motive cases will not end at summary judgment and will go to a jury. 

     That's exactly what happened in this case, where there was at least some anecdotal evidence that the supervisor responsible for writing the evaluation made some racially insensitive remarks. 

     I can imagine that most plaintiffs would try to bring their cases under a mixed-motive standard if possible.  Such an analysis almost guarantees the employer will face the expense of trial and would be a powerful settlement bargaining tool.  Several other circuits have followed this type of reasoning, at least, in part.  I wouldn't be surprised to see a lot more of these cases popping up given this type of analysis from the bench.

Sleeping Is a Major Life Activity

    The heading is probably not news to most of us--sleeping has always figured prominently in my overall daily schedule.  And not being able to sleep creates a real problem for most people.

    The court of appeals in DC recently ruled that sleeping is a major life activity under the Rehabilitation Act, the federal employer version of the ADA.  The case marked the first time that this court put sleeping in this category.  The interpretation is not novel--other courts and the EEOC regulations support such a determination.  But the court did more than simply expand the RA's coverage.  The court also eased the burden of someone who can't sleep to file a claim against his employer.

     The case involved an FBI trainee with diagnosed post-traumatic stress disorder resulting from being held hostage in his mother's house by an armed robber/rapist two years before the plaintiff entered the academy (note--PTSD is an over-diagnosed psychological conditions; it comes up again and again in employment cases as a result of such mundane things as people being criticized about their work product--but at least in this case, the trauma appears to meet the criterion for the condition).  The trainee satisfactorily completed his classes and the PTSD was apparently treatable.  But the trainee obsessed over his behavior during the hostage incident and lost an appreciable amount of sleep during his training because he was unable to get an FBI assignment closer to home.  The FBI ultimately terminated the trainee after learning of the PTSD diagnosis, for a variety of reasons that, up until that time, had not been an issue.

     The court of appeals found that sleep was a vital life activity in its own right, and that receiving two to four hours of sleep per night for five months was a significant restriction on the ability to sleep.  Perhaps as importantly, the panel also found that the employee did not have to show an effect on work performance because of the lack of sleep; the inability to sleep was sufficient to establish the disability protections of the Rehabilitation Act.  The court also determined that expert testimony was not necessary to establish the impact or the disability; in this case, the employee would be allowed to testify on his own about how little sleep he had. 

     The FBI did not help its position by claiming that it had dismissed the trainee because of a lack of "emotional maturity" and "cooperative spirit."  The court noted that this kind of generic and non-specific criticism could readily be perceived as a pretext for PTSD-based bias.

      So the disability here that interferes with a major life activity is the PTSD, which stops someone from sleeping.  Employers should be aware that someone with some type of sleeping disorder has already jumped through the very difficult ADA hoop of establishing that they are disabled.

Infertility Treatments Are Not Gender Neutral

     The employer was consolidating its staffing around this time and decided to eliminate several positions.  Of course, one of the candidates for consolidation was the position occupied by the plaintiff.  The employer decided to retain another woman who was performing the same job, but who had not missed as much work. 

      The plaintiff's immediate supervisor told her about the decision and, in classic "let's raise an issue of material fact" style, told the plaintiff that the termination was in her best interest “due to her health condition."  The supervisor also discussed the termination with the human resources manager, and the HR manager recorded in her notes that the plaintiff "missed a lot of work due to health" and noted poor job performance because of "absenteeism - infertility treatments."  The company terminated her employment approximately two weeks before the plaintiff was scheduled to go out on her second in vitro absence. 

     The district court granted summary judgment to the employer because it believed that fertility alone was a gender-neutral condition and, therefore, the employer could not be found guilty of violating the Pregnancy Discrimination Act when it considered fertility remedies as a basis for its decision.  The 7th Circuit had no trouble reversing the district court's determination, noting that an adverse employment action based on absence related to pregnancy or pregnancy treatment violates the statute.  The employer's legitimate basis for the termination, i.e., the office consolidation and elimination of a secretarial position, was fatally undercut by the fact that both the supervisor and the human resources director memorialized their focus on the plaintiff's pregnancy as a factor in their decisions.  Thus, the case gets to a jury. 

     Again, referencing an employee's protected status, such as health or pregnancy, conterminously with an adverse employment action, is usually fatal to summary disposition of a case.  Notwithstanding the fact that this employer probably thought that it was doing the employee a favor by removing a source of stress from her life, referencing these kinds of considerations is a surefire way to find yourself explaining it to a jury. 

RIP ADA As We Know It

    Both houses of Congress have now either passed or are seriously considering versions of the so-called "ADA Amendments Act", a fairly sweeping change to the ADA that will greatly broaden the scope of the statute.

     I'm really not sure whether I think these changes will fundamentally alter the way ADA litigation is pursued, but there is no doubt that the changes in the law are designed to make more people fall within the "qualified individual with a disability" definition that is the key to claiming benefits under the statute. 

     For one thing, the amendment states that the definition of disability is to be construed broadly.  The amendments put some teeth in that definition by substantially altering the meaning of key terms within the ADA's lexicon.  For example, the term "substantially limits", now a key part of the disability definition, now means to "materially restrict" a major life activity.  The current standard defined "substantially limits" as preventing or severely restricting a major life activity.  "Major life activity" is defined even more broadly and now specifically includes "major bodily functions."  Accordingly, a medical condition that materially restricts a major bodily function would be a disability under the amendments.  Impairments that are episodic or are in remission are considered disabilities if they would meet the "substantially limits" definition when active.  At an extreme, I suppose this would mean that someone who has been successfully treated for cancer (cancer is rarely “cured”, and normally considered to be in remission) is disabled given the fact that active cancer substantially limits major life activities, including bodily functions.

     The statute prohibits consideration of the effects of mitigating measures in determining whether an individual is disabled.  I’m guessing this means that someone who wears glasses, but that has vision sufficiently poor enough to keep them from driving (a major life activity) without the glasses, would be considered disabled.  It will be interesting to see how far that line of reasoning goes, since our aging population is rapidly requiring glasses to do all kinds of things.  In an attempt to complicate further a semantic conundrum, the amendments also state that a plaintiff establishing that she is "regarded as" disabled, does not have to show that the subject impairment limits her or is perceived to limit a major life activity, only that she is believed to have such an impairment.  On reflection, I have absolutely no idea how that's going to play out in a litigation scenario. 

     I can only imagine a jury trying to wrestle with instructions in this kind of a situation.  Some commentators have indicated that they do not believe these amendments will mean substantially more litigation.  Everyone seems agreed, however, that the population of covered individuals is substantially greater under the new law.  In my book, that means more litigation.

Addendum:  The Senate passed its version of the bill on September 11.  The House now gets a look at the Senate version, and is expected to pass it.  The President should sign the final version.  It will go into effect on January 1, 2009.

Update:  The House passed the Senate's version today (September 18), the President's people have said he'll sign the bill.

Perspective on Harassment

A recent article reported on a Russian judge (the courtroom kind, not an Olympic one) who dismissed a sexual harassment lawsuit filed by a female Russian advertising executive.  The judge's rationale:  not a lack of evidence, but the alleged need for harassment to foster procreation.  As the judge so eloquently stated, "If we had no sexual harassment we would have no children."  All I can say is: don't try this defense at home.  And especially not in the Ninth Circuit.

In all seriousness, though, the article cites some disturbing statistical and anecdotal information about the commonplace nature of workplace harassment in that country, and provides a sobering perspective on the issue.  In our employment defense practice, these days we rarely see the kind of quid pro quo harassment described in the article, and characterized as a regular part of the Russian workplace.  Most of our cases arise from allegations of a hostile work environment, but this story should at least serve as a reminder that there are certainly still risks that someone with the wrong attitude about women's roles in the workplace can, in the blink of an eye, get a company into serious trouble.  At least in the good old U.S.A.