July 2002

Our Regular Reminder

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.

Guidance on Enforced Leave

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.

EEO in Non-Selection

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.

Refusal to Sign Illegal Agreement is Not Protected Activity (0)

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.

What is a "Continuing Violation"?

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.

"Qualified Person with a Disability" Danger to One's Self

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.

Discomfort is Not Disability

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!

EEOC Disability Decisions

Now for some better news. The EEOC recently publicized a couple of favorable decisions under the ADA. In Clark v. U.S. Postal Service, EEOC No. 01992682 (Nov. 20, 2001), the EEOC ruled that a fitness for duty examination was improper. The employee had the habit of taking notes on coworkers and causing stress in the workplace. Rather than disciplining the employee, the Postal Service directed him to undergo a psychiatric fitness for duty examination. The EEOC ruled this was a violation of the ADA. . . . In Irvin v. Dept. of Energy, EEOC No. 01991867 (Sep. 8, 2000), the EEOC ruled that a federal agency unreasonably continued to demand medical documentation from an employee after it already knew he was disabled. The employee complained that he was required to provide medical documentation whenever he used sick leave even though he had already proven to the Agency that he had a chronic condition. The EEOC agreed and ruled that the ongoing requests for medical documentation amounted to unlawful discrimination on the basis of his disability.






Sometimes, employees who are medically unable to perform their jobs are placed on enforced leave. The union's position is that employees should be accomodated with light duty assignments if possible, rather than being sent home but that if no accomodation is possible then management needs to follow correct procedures. Here are some things to know about enforced leave.

1. If you are medically unable to perform your job, ask to be placed in some other work that you can do. If you are refused a light duty assignment, tell your union representative. We will try to work with you and with management to see if there is light duty or a permanent reassignment available.

2. If you are medically unable to perform your job and no arrangements can be made for light duty or a reassignment, then management will probably try to find out how long you will be unable to work. If it is likely to be a long time (over a year), management may propose to separate you from employment or may suggest that you apply for disability retirement or workers compensation. These are important options and you should contact your union representative about them.

Management may decide that you should be sent home on leave. They have the power to do this, but they must follow certain procedures.

4. No employee is required to "volunteer" to go on sick leave, annual leave or leave without pay. If you are informed that there is no work for you to do and that you have to go on leave, it is very important to make it clear to management that this is their choice, not yours. Have them put the order in writing. You may remain at work and do nothing at all, if necessary, until you are told to leave.

5. The proper procedure for management to follow is to treat enforced leave the same as a disciplinary action. This means that you are entitled to advance written notice and an opportunity to make a reply before you can be forced into a leave status against your wishes.

6. Union members with questions are urged to contact the union office.