There are several things an employer can ask in an interview. Let’s discuss a few.

1. How old are you? This is not a good question to ask. There are very few jobs in which age is a legitimate requirement for the job. Inevitably, this question will suggest age bias. It is best to not go there unless you are hiring for jobs with clearly appropriate age requirements, such as the U.S. Army.

2. Are you married? If you ask this only of female applicants, then this question could cause problems. Why would this question be helpful? Unless this is a ruse to discovery whether a female applicant might quit when she wants to have a baby. Its best to just not go there….

3. Are you a US citizen? It would be best to not ask this question until a job is offered. This question could conflict with the Immigration Reform and Control Act of 1986. It could also serve as evidence in an ethnic origin case, if the question is only asked about Hispanic or Hispanic-appearing applicants.

4. Do you have disabilities? Do not ask this specific question. But, an employer can ask if an applicant has any limitations that would keep him/her from performing essential functions of the job. How else would a fire deaprtment make sure an applicant can carry someone out of a burning building? So, yes you can ask about physical or mental limitations that would impair the performance of the essential functions of the job. But, do not ask about disabilities or diagnoses until a job offer has been made.

5.  Do you take drugs, smoke or drink? An employer can ask about drinking, smoking or illicit drug use. An employer should not ask about legal or prescription drug use, since that might involve issues of a possible disability.

6. What religion do you practice? An employer cannot ask about religious practices. Since, that could be used as evidence later of religious discrimination.

7. What is your race? No, of course, this would be an inappropriate question. See No. 6 above.  Don’t we all know not to ask this by now?

8. Are you pregnant? This question could be used as evidence of female stereotyping and, therefore, as evidence of gender bias. So, it is better not to ask this question. And, as the article mentions, refusing to hire a woman based on pregnancy or possible pregnancy would violate the Pregnancy Discrimination Act.

All of these warnings only matter if some adverse personnel action occurs later for which there is no otherwise reasonable explanation. If an employer asks about pregnancy and then later fires the applicant for some trivial error, only then would questions asked in an interview have any relevance. A discrimination lawsuit requires first and foremost a negative personnel action with no otherwise reasonable explanation. The lack of an otherwise rational explanation for an adverse personnel action is what makes prior discussions possibly relevant. The best defense for any employer is to simply issue written warnings whenever a transgression occurs. Emphasizing written discipline, applied consistently will serve the employer very well.

In federal court, sanctions are a real possibility. The parties need to behave themselves and act in a professional manner. That even applies to a settlement conference. In Chen v. Marvel Food Services, Inc., No. CV-15-6206 (E.D. N.Y. 11/21/2016) (FLSA), the court scheduled a settlement conference. The parties were required to come to court and discuss settlement. Under the local rules, that means both parties had to comply with certain deadlines in submitting settlement offers and responses. The plaintiff submitted his settlement offer weeks prior to the conference. But, minutes before the conference was to start in court, the plaintiff doubled his settlement demand. He explained that he had re-evaluated his case. The defendant was unable to proceed with the conference because he had come with authority to settle based on the prior amount.

The Defendant filed a motion for sanctions. The plaintiff did not oppose the motion, but he did move to strike the motion because it contained the prior settlement demands. The plaintiff argued that the motion for sanctions contained confidential information. The court denied the motion to strike. The court noted this was an action based on the Fair Labor Standards Act. Therefore, the ultimate settlement amount was not confidential. The court then found that in doubling his settlement demand just minutes before the conference was to start, the plaintiff acted in bad faith. It sanctioned the plaintiff $1,000, which were the expenses of the defendant’s lawyer for that day. See the decision here.

The Ninth Circuit has joined the Fourth Circuit in upholding the injunction against Pres. Trump’s travel ban. The unanimous three-judge decision found that of the six countries identified in the ban, none had ever posed a risk to the United States. I wrote about the Fourth Circuit’s recent decision here. The Ninth Circuit pointed to the same two travel bans. But, the Ninth Circuit did not devote as much attention to Pres. Trump’s statements about the travel bans. The opinion notes the complete lack of a link between the nationality of the six countries and any terrorist organization. The second travel ban points to no link between those persons seeking entry to this country and any unsettled conditions in those six countries. In short, the second travel ban did not provide any basis foe a complete ban on travel from those six countries. The court did point to a statement by Pres. Trump on June 5 in a tweet that he was concerned with the six countries themselves, not the 180 million persons living in those six countries. Slip opinion, p. 40 n.14.

The President tweeted: “That’s right, we need a TRAVEL BAN for certain DANGEROUS countries, not some politically correct term that won’t help us protect our people!” The court noted that Sean Spicer has said the President’s tweets represent official U.S. policy.

It also cited the 1965 statute, the immigration and Nationality Act of 1965, which prohibits discrimination against any one nationality in the country’s immigration policies. That act specifically provides that no preference on immigration will be based on “nationality.” See 8 U.S.C. Sec. 1157. See the decision in Hawaii v. Trump, No. 17-00050 (9th Cir. 6/12/2017) here.

And, of course, the next day, the President continued his assault on the judiciary by suggesting the Ninth Circuit was not concerned with national security. See Politico report about his tweet.

Against my better judgment, sometime back, I let the company representative talk to my client at a mediation. I am always interested in trying something different. The employer suggested the company rep talk directly to my client, the employee who had sued that company. Always interested in trying something different, I thought, “let’s give it a try.” The meeting did not last long. After just a few minutes, the representative started pointing out all the things the plaintiff should have done differently: she should have called the HR hotline, she should have done this, she should have done that. He was blaming the victim.

We see that blaming the victim thinking when former Director of the FBI explains a difficult meeting with Pres. Trump. The President asked him to let up on the Flynn investigation. Mike Flynn, he assured the Director, was a “good guy.” So, when Director Comey testified to the Senate last week, he was asked several times why he did not prevent that one-on-one meeting? Why didn’t he insist on someone staying in the room? Dir. Comey is a big, tough guy, after all.

Pres. Trump placed Director Comey in an untenable position. Mr. Comey did not arrange the meeting. He was not the supervisor. He was still new to working with a new president. Like my client, the victim of extended harassment, she was not the boss. She wanted to make a difficult relationship with her boss work. She did talk to HR, but did not call the HR hotline. She tried to resolve her problems with her boss as quietly as possible. She hoped to save her job, not end it. As did Director Comey.

The Director was honest. He said he was a coward. Maybe, he would handle it differently if there was another such meeting with the president. All victims of an overbearing boss try to make it work. And, all victims of an overbearing boss shrink from the challenge, at first.

 

A  request for accommodation need not mention any specific words, so long as the request puts the employer on notice that an accommodation is needed. Indeed, if an impairment is obvious, caselaw does not require the person to actually request the accommodation. See Brady v. Wal-Mart Stores, 531 F.3d 127, 135 (2d Cir.2008); McElwee v. Cnty. Of Orange, 700 F.3d 635, 642 (2d Cir. 2012). Generally, a doctor’s note or medical restriction of some sort suffices to serve as a request for an accommodation. See, e.g.Cehrs v. Northeast Ohio Alzheimer’s Research Center, 155 F.3d 775, 784 (6th Cir. 1998) (doctor’s note was sufficient, and court would infer that employer read it because it was located in plaintiff’s personnel file). So, the decision in Acker v. General Motors, No. 16-11174 (5th Cir. 4/10/2017) is surprising. That decision found that FMLA leave cannot constitute a request for an accommodation.

Lonny Acker worked for GM for over ten years. He was diagnosed with anemia, which causes blackouts, heart palpitations and severe fatigue. It can cause dizziness for prolonged periods. He requested and received intermittent FMLA leave. He was out on leave some 30 times over a six month time period. Five absences were considered unexcused. Mr. Acker testified he called in for those absences, but the phone records for his phone did not support that claim. He was suspended twice, once for 30 days. He then filed suit for the unpaid suspensions.

The employer moved for summary judgment. The lower court granted the motion for summary judgment, which the Fifth Circuit affirmed. The court insisted that Mr. Acker cannot create a factual issue based solely on his deposition testimony, since his testimony conflicted with the phone records. That is unfortunate. GM accused him not of not calling in but of not calling in to the right places. He allegedly called the absence phone line but did not call the Benefits & Services phone line, according to GM. Five of the 30 absences were in question. Plaintiff Acker insisted he called in correctly on those days. But, said, the court, his testimony was not enough to avoid summary judgment. So, the court affirmed summary judgment regarding his FMLA interference claim.

The employee then argued that his FMLA leave should constitute a request for an accommodation. He admitted that his FMLA request did not follow the GM procedure for seeking a request for an accommodation under the ADA and the state equivalent of the ADA. Mr. Acker argued that generally, a request for medical leave is generally also a request for an accommodation. No, said the court. The panel stated that FMLA and the ADA are two different statutes. But, of course, the two are different statutes.  That the two are different statutes wth different definitions does not explain why a request for medical leave does not serve as a request for an accommodation.

The court then added that “FMLA leave is not a reasonable accommodation under the ADA.” It cited Harville v. Texas A&M Univ., 833 F.Supp.2d 645, 661 (S,D.Tex. 2011), which cited Trevino v. United Parcel Service, No. 3:08-CV-889-B, 2009 WL 3423039 *12 (N.D. Tex. 10/23/2009). The court in Trevino does indeed find that a request for leave under the FMLA does not serve as a request for leave as an accommodation. But, it does not explain why. It does cite to Navarro v. Pfizer Corp., 261 F.3d 90, 101 (1st Cir. 2001). But, the Navarro decision nowhere finds that in all cases a request for medical leave under the FMLA can never serve as a request for accommodation. Instead, it answered a different question, whether a daughter’s illness met the definition of disability under the FMLA. If the daughter’s diagnosis satisfied the definition of disability under the FMLA, then the mother was entitled to leave to care for her daughter. The question of whether a person asking for medical leave under the FMLA could be seen as also requesting leave as an accommodation was never addressed.

The salient question which the Fifth Circuit opinion did not address was whether the leave request under the FMLA satisfied the requirements for requesting leave under the ADA? The caselaw states in clear terms that no “magic” words are necessary to request leave as an accommodation. There appears to be no reason why a request for leave under the FMLA cannot serve as a request for leave as an accommodation, assuming the normal ADA factors are also satisfied. That is, so long as the employee places the employer on notice that the leave may apply to a qualified disability, then yes, a request for leave under the FMLA ought to serve as a request for leave as an accommodation. One can conclude from the court decisions, however, that judges prefer to keep legal matters tidy and not allow things to “slop” over from one statute to another……..

See the decision in Acker v. General Motors here.

 

 

Pres. Trump seriously undercuts his own case when he states publicly that the travel ban currently on appeal is a “watered down” version of the first travel ban. See CNN news report. That is a problem because the first travel ban made specific references to establishing a religion. The second ban removed that language. I wrote about the Fourth Circuit decision here. The DOJ lawyers tried to argue that the travel ban did not target Moslems. The Fourth Circuit were not impressed. They noted the President’s many public statement syndicating the travel ban did indeed target Moslems. The administration has also consistently claimed it was not a “travel ban.”

With his latest remarks, the President has once again undermined his own case.

The Trump administration has proposed huge cuts to the Social Security Disability payments. Known as SSDI, these payments go to persons who can no longer work. The Trump administration has proposed cuts of $72 billion over ten years. They have also proposed reducing the back pay period from 12 months to six to save more money. As one woman exclaimed, these benefits apply to persons with stage 4 cancer. Heck, I had a client once with a brain tumor. It was not operable. Yet, even he was initially denied benefits and had to appeal.

The White House Budget Director, Mick Mulvaney, claims the administration wants to “test” new approaches to labor force participation. But, he did not explain how the administration would screen out persons allegedly receiving benefits who do not deserve the benefits or how it would transition disabled persons to jobs. And, the Office of Management and Budget did not respond to a request for more information regarding how the adimistration plans to achieve these aims. During his briefing on the budget, Mr. Mulvaney claimed that SSDI applies to partial or short-term disability. It does not. On the contrary, it applies only to permanent disability that keeps a person from working abroad range of jobs.

I have worked on a few SSDI appeals. I can attest that SSDI is exceedingly difficult to obtain. Many persons apply for benefits who are severely incapacitated and yet, they are denied benefits. Unfortunately, the “Plan B” for most applicants is to apply again. Since, their impairment worsens, and the documentation of the condition usually improves. By the second or third attempt, if the person is still alive, they are generally more successful. But, during that lag time between the first application and the second, they are without health care. Persons already on the edge of survival have no medical care.

According to one agency, the U.S. process to achieve disabled status ranks highest among advanced countries, second only to South Korea. The Arc, a nonprofit that advocates for persons with disabilities, estimates some 946,000 persons currently receiving benefits would lose their benefits under this plan. See CBS News report.

It is one thing to lose benefits because the country claims to lacks resources. But, to lose benefits because an administration is confused about those benefits indicates a lack of competence. No one is getting rich off these benefits. The top benefit amount is about $14,000 per year. But, SSDI includes access to medicaid. So, recipients do receive medical care. For persons with the most serious health conditions, that is all about survival. There is something just not cool about taking benefits away from someone in Stage 4 cancer, so we can buy more tanks. I love tanks. But, that is just not the way to go.

It is difficult to find a lawyer who specializes in employment law and who represents employees. Most employment lawyers represent the employer and are not willing to represent employees. The typical plaintiff starts out talking to Personal Injury lawyers, because PI lawyers advertise. So, many times, the employment plaintiff must file his/her own case pro se. Pro se means the person represents himself. How do pro se clients fare in court? I have no scientific evidence, but in my experience, they do not fare well.

We see one such case in Mzyk v. Northeast Independent School District, No. 14-00952 (W.D. Tex. 9/1/2015). Ms. Mzyk did not file an actual Complaint. Usually the Complaint is a summary of the allegations against the employer. It is always couched in legal language. But, Ms. Mzyk simply filed a copy of her EEOC charge and the right-to-sue Notice. The court generously accepted the copies as a complaint. The court is required to accord deference to the un-schooled layperson who files her own lawsuit. The suit did not go well for Ms. Mzyk. The employer quickly filed a motion for summary judgment. Responding to a motion for summary judgment requires considerable skill and training. It would be quite difficult for any layperson to respond. Ms. Mzyk filed two extensions seeking more time in which to respond. The judge granted each request. But, still, she did not file a response to the motion.

The judge noted rightly that just because no response was filed, a court may not issue a default judgment. So, the judge went through the process of discussing the evidence. The discussion was brief. The plaintiff had presented no contrary evidence. The judge did discuss Plaintiff Mzyk’s rebuttal information from her deposition. But, the judge was necessarily only seeing the rebuttal testimony provide by the defendant. Any information provided by the defendant, we can expect, would be favorable to the defendant. So, of course, the judge found Ms. Mzyk did not make out her case. Her lawsuit was dismissed. It is fortunate for her that the defendant did not seek sanctions. It did make a counter-claim in its Answer that her lawsuit was frivolous. So, clearly it did occur to the employer that it could seek sanctions.

But, it is unlikely a judge would award sanctions against a pro se plaintiff, anyway. Without the benefit of counsel, the true claims of the plaintiff would almost certainly not be revealed. The defendant did not even seek an award of expenses of defending the lawsuit, normally a routine matter once summary judgment has been granted. The plaintiff was fortunate indeed.

People new to lawsuits do not appreciate how depositions work. No judge is present at a deposition. So, the lawyers’ behavior, good or bad, depends entirely on them. We see this regarding objections. In front of a jury, we lawyers avoid objections, because the jury will not understand. They may think we are trying to hide something – which sometimes we are. But, with no judge and no jury, its “katy bar the door.” Some lawyers go crazy objecting at depositions. In one case, a lawyer was sanctioned by a New York federal court because she objected some 600 times in one deposition. At some point during the eight hour deposition, the parties called the judge’s office, but the judge could not take the call. He told them to make concise objections that only address the form of the question. But, the lawyer, Amatullah Booth, continued to make frequent objections that appeared to affect the testimony of the witness. Her objections appeared on 400 pages and 83% of the transcript.

Later, the lawyers contacted the judge’s office again. The judge’s instructed Ms. Booth to just mark questions in the transcript which she felt should not be answered. Despite that instruction, Ms. Booth later instructed the witness, a police officer, not to answer those questions. Ms. Booth, an assistant corporate counsel, instructed the witness not to answer 20 times. Magistrate Judge Pollack ordered the City of New York to pay for the deposition. The judge found that Ms. Booth sometimes objected “asked and answered” even thought the question had not been answered. Sometimes, she objected based on relevance and harassment, even though the question was relevant.

Magistrate Judge Pollack cited some examples:

Opposing Counsel: “Did you see yourself on the video?”

Witness: “Yes”

Opposing counsel: “What were you doing?

Booth: “Objection. Vague”

Witness: “What — where?”

Another example:

Booth: “Objection. Asked and answered.”

Opposing counsel: “Asked and answered is not an appropriate objection.”

Booth: “Harassment.”

Opposing counsel: “None of those are.”

Booth: “It is harassment.”

See ABA Bar Journal report. It is harder to behave when no judge and no jury are present.

To mark Memorial Day, I would also like to recall two area San Antonio heroes. They were both fiends of mine. They both died in war zones back in 2005 and 2006 when I was deployed myself.

SSGT Clinton Newman was a fine soldier. He was a bright young man in the 321st Civil Affairs Brigade during my brief time with the 321st here in San Antonio. One of the nice things about being in your hometown unit is that I actually ran into a member of my unit at a movie. I ran into SSGT Newman when he was at a movie with his girl and I was with mine. He was one of the few 321st soldiers still here back in late 2003 and early 2004, while most of the unit was deployed. See a biographical sketch to learn more about someone who would have been a fine citizen of San Antonio and was already an excellent soldier.

I served with Albert E. Smart way back in the 2/141 Infantry Battalion in Corpus Christi. We were young company commanders together. Albert was gung-ho and always smiling. Years later, I was quite surprised to see him in the 321st CA Brigade here in San Antonio. He deployed in 2005 and passed away in Kuwait on the way to Afghanistan. It was such a shock that someone so young, in such good physical shape would pass away from an illness. I think Heaven is in much better physical shape now that Albert is there. And, I expect there are a great many more smiles among its citizens. See a memorial here to learn more about my buddy, Albert.