COTW #34 - Obesity is always an impairment under Washington State disability discrimination statute

Casey Taylor sued the employer under the Washington Law Against Discrimination (WLAD) for refusing to hire him due to his obesity. After the case was removed to federal district court, it granted summary judgment to the employer. On appeal to the 9th Circuit, that court certified to the state Supreme Court the question of when obesity qualifies as an impairment under WLAD. The state Supreme Court accepted certification and held that obesity always qualifies as an impairment under WLAD. Taylor v. BNSF Railway (Washington 07/11/2019) [PDF].

Worth repeating: Always qualifies as an impairment

The employer refused to hire Taylor, who had a BMI of 41, which meets the technical definition of severe obesity, because it had a policy of not hiring people with BMIs exceeding 35. The district court granted summary judgment to the employer based on federal cases holding obesity is not a disability unless it results from a separate, underlying physiological disorder.

The state Supreme Court answered the certified question by stating obesity is always an impairment under the plain language of WLAD because it is a physiological condition affecting one or more body systems. The court expressly rejected federal court treatment of obesity under the ADA on the basis WLAD is broader than the ADA and offers its own independent protections to employees.

This is Washington State. Most other places require a showing that obesity is a disability only if it results from a separate, underlying physiological disorder.

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COTW #33 - Bikini Baristas

"Bikini Baristas" were wearing a lot less than your typical bikini, and they were doing a lot more than what you normally find on a barista job description.

The City adopted a dress code ordinance, and amended their lewd conduct ordinance. These basically specify certain body parts that need to be covered up.

Some baristas brought a lawsuit and a federal district judge issued a preliminary injunction against these ordinances on the ground that they were void for vagueness and that they interfered with the Baristas’ 1st Amendment rights.

The 9th Circuit, however, took a look at it and said look — it's not void for vagueness. A person of ordinary intelligence can ascertain what these ordinances are actually saying, and what they mean.

And the dress code is okay in terms of 1st Amendment because the court didn't see how any person on the street could understand what these baristas were actually trying to communicate by the way they were dressed.

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COTW #32 - Telecommuting as an ADA accommodation

Today’s Case-of-the-Week — Bilinsky v. American Airlines (7th Cir 06/26/2019) [PDF] —caught my eye because it involved the controversial question of whether telecommuting can be a reasonable accommodation under the Americans with Disabilities Act (ADA).

Well, of course, the answer always is “It depends.”

Here an employee with MS successfully telecommuted from her home in Chicago, while the on-site department was in Dallas. That worked out fine until the Dallas department began changing the nature of its work. Previously it was mainly preparing various written materials. Then it began staging live events in Dallas, and doing crisis management. So the boss began requiring the employee to be on site in Dallas.

The 7th Circuit split 2-1. The majority supported granting summary judgment for the employer on the basis that the employee could not perform the essential functions of the job (i.e., being on site).

The dissent would have let the case go to a jury to decide whether being on site really was an essential function.

Personally, I thought the majority was a little too quick to take a crucial fact-finding function away from the jury. 7th Amendment, and all that.

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COTW #31 - Unconscionable arbitration agreement

Today’s Case-of-the-Week — Burnett v. Pagliacci Pizza (Washington Ct App 06/17/2019) [PDF] —caught my eye because of the somewhat non-traditional way the court handled the question of unconscionability.

Most courts find a contractual provision (arbitration clause or otherwise) unconscionable only if it is both procedurally and substantively unconscionable.

Procedural unconscionability has to do with how the contract was formed — adhesion contract, take-it-or-leave it approach, huge difference in bargaining power, etc.

Substantive unconscionability has to do with the actual terms in the contract — things that are vastly one-sided, harsh, or unlawful.

In this case the court — remarkably — held that procedural unconscionability alone will do the trick.

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Ban on transgender personnel in the military will receive intermediate scrutiny; injunction against the ban is stayed.

Here’s a complicated case, raising important issues about the rights of transgender individuals, the extent of executive branch privileges, and the amount of deference courts should grant to military decisions.

In 2017 the President issued a Memorandum barring transgender individuals from serving in the military, but a federal district court issued a preliminary injunction against enforcement of the 2017 Memorandum. In 2018 the President revoked his 2017 Memorandum and authorized the Secretary of Defense to implement the policies he proposed based on a 44-page report. Defendants then requested that the district court dissolve its preliminary injunction, but the district court struck that motion. While defendants were appealing that order, the district court denied defendants' motion for a protective order of discovery and granted plaintiffs' motion to compel production of documents that defendants withheld under a claim of two executive branch privileges. Defendants then petitioned the 9th Circuit for a writ of mandamus challenging the discovery order.

In Karnoski v. Trump (9th Cir 06/14/2019) [PDF] the 9th Circuit:

(1) vacated the district court’s order striking the Defendants’ motion to dissolve the preliminary injunction and remanded to the district court to reconsider the motion. This was on the ground that the 2018 Policy was significantly different from the 2017 Memorandum. In evaluating whether the significant change warrants dissolution of the preliminary injunction, the 9th Circuit rejected the district court's strict scrutiny approach. "[T]he district court should apply a standard of review that is more than rational basis but less than strict scrutiny." In addition, the district court "must apply appropriate military deference to its evaluation of the 2018 Policy." "In applying intermediate scrutiny on remand, the district court may not substitute its 'own evaluation of evidence for a reasonable evaluation' by the military."

(2) issued a stay of the preliminary injunction (which had previously been ordered by the US Supreme Court).

(3) vacated the district court’s discovery order and directed the district court to reconsider discovery by giving careful consideration to executive branch privileges. These include the deliberative process privilege and the presidential communications privilege.

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SCOTUS: EEOC exhaustion is not jurisdictional

Monday's unanimous US Supreme Court Title VII decision in favor of the employee does not give employee-plaintiffs a free pass. Exhaustion of EEOC administrative processes is still required. All the Court did was say exhaustion is not a jurisdictional question that can be raised after five years of litigation. Employers can still get cases dismissed for failure to exhaust if they raise the issue early on in the litigation.

Fort Bend County v. Davis (US Supreme Ct 06/03/2019) [PDF]

The employee filed an EEOC charge claiming sex harassment. Later she wanted to add religion. So she wrote “religion” on the intake form, but she never revised the formal EEOC charging document.

Then she sued claiming religious discrimination, and the employer — after years of litigation — raised the question that the EEOC form had not been properly filled out. So the question was: is this a jurisdictional issue that the employer can raise at any time even the years later? Or is it a claims processing rule that the employer waived by waiting so long?

The US Supreme Court says it's non-jurisdictional.

So this is something the employer can raise but – use it or lose it.

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Fired for extra-marital affair

A police officer was fired for having an extra-marital affair.

Does that violate her constitutional right to privacy and intimate relationship?

The 9th Circuit has done a real flip-flop in Perez v. City of Roseville (9th Cir 05/21/2019) [PDF].

Ross Runkel's Employment Law Case of the Week for May 29, 2019 - Part of a series.

Physician loses Title VII case

A hospital terminated a physician's hospital privileges, and she thought she had a Title VII case. But she was not an employee of the hospital. Levitin v. Northwest Community Hosp (7th Cir 05/08/2019) [PDF].

The court applied a five-factor test: (1) the extent of the employer’s control and supervision over the worker, including directions on scheduling and performance of work; (2) the kind of occupation and nature of skill required, including whether skills are obtained in the workplace; (3) responsibility for the costs of operation, such as equipment, supplies, fees, licenses, workplace, and maintenance of operations; (4) method and form of payment and benefits; and (5) length of job commitment and/or expectations.

But let's face it. Control is the main factor. The court summarized that this way:

Levitin owned her own medical practice, billed her patients directly, and filed taxes as a self-employed physician. Northwest did not provide Levitin with employment benefits or pay her professional licensing dues. Moreover, Levitin’s work agreement with Northwest confirms her independence. She could set her own hours, subject only to operating-room availability; she could obtain practice privileges at other hospitals and redirect her patients to those locations; and she could use her own staff in surgeries. Most importantly, she made the treatment decisions for her patients.

The physician had a theory that the hospitals' peer-review committee (which recommended terminating her privileges) was exerting the kind of control that made her an employee. But the peer-review committee was reviewing her work after-the-fact. That's not the kind of control that turns her into an employee.

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ABC Test vs. franchise arrangements

A Ninth Circuit case has applied the California Dynamex case retroactively. Vazquez v. Jan-Pro Franchising (9th Cir 05/02/2019) [PDF].

Jan-Pro - an international janitorial firm - had franchisors called Master Franchisors. And then under them were Unit Franchisees who were the only people actually doing janitorial work.

And those franchisees sued Jan-Pro seeking to be classified as employees rather than independent contractors.

So the question under the California Dynamex case is

• whether these workers were free from control,

• whether their work was outside Jan-Pro’s customary business, and

• whether these workers themselves customarily had an established business.

I don't think Jan-Pro can win this case. But we'll see. And I think this is the end of these complex franchising arrangements in California.

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$3.8 million verdict for a breastfeeding paramedic

She says the fire department didn't provide a proper place for lactation, and retaliated against her after she complained.

Employment Law Case of the Week.

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Class arbitration is available only when there is an affirmative contractual basis for concluding that the parties agreed to it (5-4).

Another 5-4 arbitration decision from the US Supreme Court: No class-action arbitrations based on ambiguity. There must be an affirmative contractual basis for concluding that the parties agreed to class arbitration. Lamps Plus v. Varela (US Supreme Ct 04/24/2019) [PDF].

Varela filed a putative class action against his employer on behalf of employees whose tax information had been disclosed to a hacker. Varela's employment contract contained an arbitration agreement, so the employer moved to compel arbitration on an individual – not class – basis. The trial court authorized class arbitration and dismissed Varela's claims. The 9th Circuit affirmed. The US Supreme Court (5-4) reversed, holding that under the Federal Arbitration Act (FAA), an ambiguous agreement cannot provide the necessary contractual basis for concluding that the parties agreed to submit to class arbitration.

The 9th Circuit recognized that Stolt-Nielsen S. A. v. Animal Feeds Int'l Corp., 559 U. S. 662 (2010), held that a court may not compel arbitration on a classwide basis when an agreement is "silent" on the availability of such arbitration. But the 9th Circuit ruled that Stolt-Nielsen was not controlling because the agreement in this case was ambiguous rather than silent on the issue of class arbitration.

The US Supreme Court pointed out that courts must give effect to the intent of the parties, and it is important to recognize the "fundamental" difference between class arbitration and the individualized form of arbitration envisioned by the FAA. Class arbitration "sacrifices the principal advantage of arbitration – its informality – and makes the process slower, more costly, and more likely to generate procedural morass than final judgment." Like silence, ambiguity does not provide a sufficient basis to conclude that parties to an arbitration agreement agreed to sacrifice the principal advantage of arbitration. Instead, there must be an affirmative contractual basis for concluding that the parties agreed to class arbitration.

The dissent would allow the application of California's "plain-vanilla rule of contract interpretation" which would require interpreting an ambiguous contract against the drafter.

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US Supreme Court will decide whether Title VII prohibits discrimination based on (1) sexual orientation and (2) transgender status

The United States Supreme Court is going to be deciding two big Title VII cases (1) involving sexual orientation and (2) involving transgender status. The announcement was made on April 22, 2019.

The question in both cases is whether Title VII applies to these cases because Title VII talks about discrimination “because of sex.”

In the sexual orientation case — Altitude Express v. Zarda [briefs] —  which is really a consolidation of two cases, we had two men who allege they were fired because they were gay. One of the lower courts said — Yes, that violates Title VII because sexual orientation discrimination is just a subset of sex discrimination. In the other case the court said — No, Title VII does not apply at all.

In the transgender case — R.G. & G.R. Harris Funeral Homes Inc. v. EEOC [briefs] —  we have a funeral director who was working as a male and wanted to transition to becoming a female and wear women's clothes. And the boss said — No, we're going to fire you because wearing women's clothes would violate our dress code, and it would violate God's commandments.

These two big cases will be argued in the fall of 2019 and decided sometime in 2020.

I would urge the Court to make an analogy to discrimination "because of … religion." If an employer treats a Catholic married to a Jew differently than a Catholic married to a Catholic, it seems that would be discrimination "based on religion." If an employer treats a Catholic transitioning to becoming a Jew differently from a Catholic who remains a Catholic, it seems that would be discrimination "based on religion." What am I missing?

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An unconscionable arbitration agreement

Sometimes a court will refuse to enforce an arbitration agreement because it's unconscionable.

Here we have a plaintiff who sued with a wage claim. He'd signed an arbitration agreement. The boss wanted the court to order arbitration, but the court said the arbitration agreement was unconscionable. Subcontracting Concepts v. De Melo (California Ct App 04/10/2019) [PDF]

Procedurally unconscionable — which has to do with how the contract was formed in the first place — because it was non-negotiable, the guy spoke hardly any English, it was given to him on a take-it-or-leave-it basis, and it said that the AAA rules applied but didn't say which rules, and he didn't get a copy.

Also substantively unconscionable — which has to do with exactly what's in that contract — because it provided for three arbitrators (which is going to be very expensive), and he's not allowed to recover punitive damages, or equitable relief, or attorney fees, or costs — even if he wins.

So — unconscionable. And the court refused to just carve out the bad stuff and save the rest. They threw the whole arbitration agreement out. So this man gets to stay in court.

Overreaching has consequences.

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Is obesity a disability? - Employment Law Case of the Week

Is obesity a disability? The New Jersey Appellate Division says (because a New Jersey statute says): only if it is caused by bodily injury, birth defect or illness. Dickson v. Community Bus Lines (New Jersey Ct App 04/04/2019) [PDF]. This is the Employment Law Case of the Week - Part of a series.

We have a bus driver who has been driving for 10 years, weighs between 500 and 600 pounds, and is obviously obese.

He failed his periodic medical exam which he needs for his commercial driver's license, and the doctor says he needs more tests.

He sued under the New Jersey Law Against Discrimination claiming that he was perceived as having a disability (obesity) and that there was a hostile work environment because of that.

The problem was that the New Jersey statute says that a disability has to be “caused by bodily injury, birth defect or illness.” Just being obese is not enough.

You may have a different outcome in other jurisdictions, but in New Jersey it's not enough just to be obese.

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Fired for using medical marijuana - Employment Law Case of the Week

Employment Law Case of the Week: Wild v. Carriage Funeral Holdings (New Jersey Ct App 03/27/2019) [PDF].

An employee claims he was fired for off-duty marijuana use.

The employee uses medical marijuana as permitted by the New Jersey Compassionate Use Medical Marijuana Act.

He sued under the state law against employment discrimination saying he has a disability — cancer. He's legally treating his cancer with marijuana and he says he can't be fired for that.

Now the employer finds one sentence, which says “Nothing in this act shall be construed to require an employer to accommodate the medical use of marijuana in any workplace.”

So the employer is saying we can fire him for using medical marijuana according to that sentence.

But the New Jersey Court says that The Compassionate Use Act — which is where that sentence is — does not require accommodation, but the law against discrimination is a separate statute and that statute might require accommodation of his disabilities.

The employer might still be required under the law against discrimination to accommodate his medical marijuana use.

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