This is a reminder to all our union clients of the various services available through our firm. Most of our retainer agreements provide for unlimited legal advice, on-site visits and filing and processing of unfair labor practice charges. Please do not hesitate to contact us if you would like to have one of us conduct training, meet with employees or review a case for arbitration or MSPB. We are also just a phone call or a fax away if you need help or feedback researching any legal issue on federal sector employment. Check out our web site at http://minahan.wld.com.

We continue to get inquiries about employees who are told that because of a medical condition there is no longer any work available for them. Management has the option to send these employees home but this is regarded as a suspension so the employee has the right to advance written notice and an opportunity to reply before he or she is forced to take leave. We have developed an information sheet for our Union clients that addresses some of the most commonly answered questions on this topic and it is attached to this newsletter.

The Fourth Circuit issued an encouraging decision in Dennis v. Columbia Medical Center, 88 FEP Cases 1460 (4th Cir. 2002). The case involved a claim of sex discrimination where the employer's defense was that it had selected the better qualified employee. The plaintiff proved that the person selected was far less qualified than the plaintiff and the jury ruled in the plaintiffs favor. On appeal, the employer argued that proof of superior qualifications was not enough in itself to win the case and that the plaintiff had no direct evidence of sex discrimination. The appeals court rejected this argument, saying that the jury was allowed to conclude that sex discrimination existed once it was convinced that the employer's explanation for the promotion made no sense.

In Weeks v. Harden Manufacturing, 88 FEP Cases 1482 (11th Cir. 2002), the employer presented its employees with a new handbook requiring them to agree to take any discrimination claims into arbitration and not into court. When the employees refused to sign, they were fired. The court ruled that the law prohibiting reprisal for opposing unlawful employment practices did not apply. The court went further and made the astounding observation that the fact that an employment agreement is unenforceable or even illegal does not mean that an employer that requires its employees to sign such an agreement violates the law. This is flat wrong.

The Supreme Court issued a decision clarifying when the Continuing Violation Doctrine can be used in EEO complaints: National Railroad Passenger Corp. v. Morgan, 88 FEP Cases 1601 (2002). Until now, some courts ruled that a continuing pattern of similar actions, such as nonselections for promotion, can be challenged so long as a complaint is filed over one of them within the required time limit. The Supreme Court rejected this view and ruled that "discrete acts" such as termination, failure to promote, denial of transfer, refusal to hire, suspension and denial of training do not fall within the Continuing Violation Doctrine and a timely complaint needs to be filed on each one. The Continuing Violation Doctrine, said the Court, applies only to hostile work environment claims because, by their nature, they do not amount to a violation of the law until a series of incidents have occurred. For example, one off-color sexual joke is probably not sexual harassment but a whole series of them would amount to sexual harassment.

The Supreme Court's decision in Chevron, Inc. v. Echazabal, 13 AD Cases 97 (2002), involved the question of whether an employee who may endanger himself by working in a particular environment can be considered a "qualified person with a disability" covered by the ADA. The employee was refused employment at an oil refinery because he had a liver condition which would be aggravated by continued exposure to toxins at the refinery. The employee argued that he could not be refused employment solely because of a concern about his own health without proof that his disabling condition might harm someone else. The Supreme Court disagreed, on the basis of an EEOC regulation that disqualifies employees from a job if their disability would pose a threat to the employee's own health or safety as well as a threat to others in the workplace. This decision contrasts with the Supreme Court's decision a few years ago in Sutton v. United Airlines, 119 S. Ct. 2139 (1999), which ruled that a person is not considered "disabled" within the meaning of the ADA if the accommodations she normally uses, such as medication or prosthetic devices, allow her to lead a relatively normal life. In that case, the Supreme Court struck down an EEOC regulation saying that whether a person suffers from a disability must be evaluated without regard to the accommodations they use. The rule of law, of course, is obvious. When an EEOC regulation favors employers it is valid; when it favors employees it is invalid. And you thought it was hard work being a Supreme Court justice.

Echazabal was not the worst ADA decision last month. That prize goes to Sznai v. American Telephone and Telegraph Company, 13 AD Cases 104 (7th Cir. 2002). Consistent with the general trend in recent years that nobody is disabled, the court ruled that an employee with a congenital eye condition which prevented him from performing a job requiring him to read a lot is not covered by the ADA. The employee actually could read some of the time, but only with discomfort. The court brushed this aside, saying that comfort and disability are not synonyms. We see a whole new defense for employers in ADA cases. Think of it. The paraplegic employee can get where he wants to go, with some effort. It might be uncomfortable for him to drag himself up the stairs but that doesn't mean he's disabled!