San Antonio Employment Law Blog : San Antonio Employment Lawyer & Attorney : Thomas Crane Law Firm : South Texas, Bexar County TX Wage & Discrimination Issues

 This issue arises every so often.  An employee has a serious illness and is warned by her doctor that stress at work worsens the illness.  Is that a disability?  Not according to caselaw under the old (ie, pre-amendment) Americans with Disabilities Act.  In one case, the client was warned that her hypertension would worsen if her stress was not ameliorated.  She could suffer a severe heart attack, the note warned.  The stress was largely from work.  So, the doctor gave her a note to give to her employer with suggestions on how to reduce stress at work.  The employer ignored the note.  The employee filed suit and lost on summary judgment.  Caselaw interpreting the old ADA simply does not provide protection for a potential disability.  

A severe heart attack, said the judge, was a not a disability, yet.  Hypertension did not yet affect her daily life, said the court.   So far, the employee functions normally, other than loss of sleep.  So, she lost her lawsuit.

Another employee suffers from a rare genetic defect causing her spinal issues.  She has herniations in her neck and spine.  She has to stay home every so often and take medication.  She misses work, apparently without warning and her employer complains.  They start referring to her as the "absent" employee.  The stress causes her spine to worsen, causing even more time off.  Under the new ADA, that condition might constitute a disability.  

We had a saying when I served in Iraq, "nothing is easy in Iraq."  Well, nothing is easy in employment law. 

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 in  a recent decision, the Fifth Circuit found in favor of the plaintiff, actually overruling a judgment for the employer.  Even more surprising is that in its decision, the Fifth Circuit appears to be construing the available facts in favor of the non-movant, as they should be doing.  See Carmona v. Southwest Airlines.  

In this ADA case decided under the old ADA, the plaintiff claimed a condition known as psoriatic arthritis, which can be quite delibitating.  This particular plaintiff, for example,w as often reduced to crawling at times, because walking was far too painful.  

The court noted that the employer's attorney omitted from a quotation a key clarification: "most of the time."  That is, the plaintiff testified that he could drive, walk, read, take care of himself.  When pressed further, he added,  "most of the time."   That is, he could walk, drive, read, take care of himself most of the time.  The defense attorney omitted the latter response, as many defense attorneys do.  But, this time, the employer's attorney was called on this glaring omission.  As noted above, the defense attorney is supposed to construe the available facts in favor of the non-movant, or plaintiff, when seeking a judgment as matter of law.  All too often, they do just the opposite.  They usually construe the available facts in favor of the movant, or defendant.  So, the Fifth Circuit construed all the available information in favor of the non-movant and found there was enough evidence to allow a jury to hear the case. 

Judgment as a matter of law is a motion where one party claims the other party has no case.  The entire purpose of judgment as a matter of law is to dispense with cases that have no merit.  Why waste the jury's time with obviously flawed cases?  But, when flaws are not obvious, then the jury should hear such cases.  This time, the Fifth Circuit agreed. 

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 The Eastern District of Pennsylvannia, US district court, finds under the old ADA (ie, prior to the Jan 1, 2009 amendments) high blood pressure is not a disability which requires accommodation.  Nmako v. Acme Markets.    The employee had requested accommodation for migraine headaches, emotional stress and high blood pressure.  The physician had told the employee that if he lost weight, worked no more overtime and took a diuretic, then he could manage his high blood pressure.  Under the pre-amendment ADA, therefore, his illness was not a disability.  Because under prior precedent, when treated, his hypertension did not limit his major life activities.  

Now, of course, the 2009 amendment changes this completely.  Now, we look at illnesses under their "un-treated" state.  

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 In a recent settlement with the EEOC, Sears Roebuck agreed to pay $6.2 million to resolve claims made by persons with disabilities.  Sears also agreed to enter into a consent decree, which means Sears agreed to perform many other non-monetary tasks in settlement of the claims.  The EEOC represented persons with disabilities who had worked at Sears.  In the suit, Sears allegedly maintained an inflexible leave policy which did not look at each request for leave on a case-by-case basis.  This is the largest ADA settlement ever.  Some 235 Sears employees received an average of $26,300 each.  

The EEOC also sued UPS in a class action lawsuit also for maintaining inflexible leave policies.  See report.  Delaware employment law blog reports that these leave policies concerned employers who terminate employees after six or twelve months, regardless of their individual situation.  These policies are fairly common, since they supposedly avoid claims of discrimination.  The theory is that every employee, regardless of whether their injuries stem from worker's compensation complaints, disabilities or just simple personal injuries, is treated the same: they are fired after so many months (six or twelve typically).  If all employees with health problems are treated the same, then there is no discrimination, correct? 

No.  Wrong, because the ADA requires an individualized assessment of a person's need.  Under the ADA, an employer must conduct a case-by-case evaluation regarding requests for accommodation.  For example, if an employee needs more time off as part of some treatment plan, the ADA would require an accommodation of more than six or twelve months of leave.  As Delaware employment law blog explains, employers with such leave policies are prime targets for lawsuits, now.  Many of us viewed such policies as unlawful.  Now, we know they are unlawful.  Employer should examine their polciies to make sure they allow for some sort of individualized evaluation whether extended leave is necessary as an accommodation. 

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 Discrimination laws in Texas are enforced by the Texas Workforce Commission, Civil Rights Division and the Equal Employment Opportunity Commission.  But, the CRD is only located in Austin, Texas.  So, by far, most cases are filed with the EEOC.  Both agencies have a work share agreement in which a charge with one will simultaneously be filed with the other agency.  The federal statute is Title VII of the Civil Rights Act of 1964, while the state version is the Texas Commission on Human Rights Act.  The TCHRA generally tracks Title VII. 

Both statutes prohibit discrimination based on sex, race, national origin, and religion.  The Americans with Disabilities Act prohibits discrimination based on disability.  The Age Discrimination in Employment Act prohibits discrimination based on age.  The EEOC investigates alleged violations of the Americans with Disabilities Act and Age Discrimination in Employment Act.  And, of course, the Texas TCHRA also tracks the ADA and the ADEA.

Any charge of discrimination must first be filed with either the EEOC or the TWC, CRD before proceeding to a lawsuit. 

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 Recently, I wrote about a study showing that employers are losing more discrimination cases this past year.  This was a study published by Manpower, a human resources firm.  Yet, a separate study by two Cornell professors published in the Harvard Law & Policy Review shows just the opposite, that plaintiffs in employment cases are doing worse.  These two professors are the same persons who prepared a study several years ago showing that employment plaintiffs generally do worse in federal court than other types of plaintiffs.  Well, now, in this latest study, based on data from 1970 to 2006, we see that within the last five years, the number of employment cases has dropped dramatically in federal court.  In 2001, employment cases accounted for 10% of all federal lawsuits.  In 2006, that number dropped to 6%.  I am sure that drop is due to the ever increasing use of summary judgment in employment cases.  

For example, this study finds that while defendants (employers) and plaintiffs (employees) appeal about as often as each other, the defendant is ten times more likely to win on appeal.  Too, the pretrial reversal rate is far higher for defendants (30%) than for plaintiffs (10%).  "Reversal rate" refers to those times when the lower court finds in favor of one party or the other.  If you are a defendant, you have a 30% chance of reversing the district court.  As a plaintiff, you have only a 10% chance of obtaining a reversal.  Pretrial disposition refers primarily to summary judgment and motions to dismiss.  So, when motions for summary judgment or to dismiss are granted, the employer has a 30% chance at getting the decision reversed.  While, the plaintiff has only a 10% chance at reversing the adverse decision.  

Looking at the reversal rate after a trial has occurred, the disparity becomes more clear.  Defendants have a 41% chance of obtaining reversal.  While, a plaintiff (employee) only has a 9% chance of getting the trial result reversed.  Thus, the authors point out, the federal system heavily favors the defendant (employer).  

As the authors explain, this result is counter-intuitive.  Discrimination cases by definition rely on evidence of intent and private conversations.  One would expect reversal of a jury decision to be rare.   Or, one would at least expect that reversal of a jury decision to be about the same for both parties.  Since, trial outcomes in discrimination cases depend so much on credibility determinations by a jury.  Such cases ought to be virtually immune from appellate review.  The appellate judges were not present at trial to observe witness testimony.  The authors believe the best explanation for this apparent discrepancy is that the federal judges have an "attitudinal" bias against such claims.  That "attitudinal" bias would certainly comport with my experience with federal appellate judges.  They are, on the whole, remarkably skeptical of discrimination claims.  

But, so are federal district court trial judges.  They are on the whole just as skeptical of discrimination claims.  The authors note that federal trial level judges are skeptical toward discrimination claimants.  Discrimination plaintiffs are among the least successful sorts of claimants in federal court.  

The data from 1998 to 2006 shows the following success rates for plaintiffs: 

ADA - 9% (Manpower study: employer wins 52%)

Title VII -11%

ADEA -12% (Manpower study: employer wins 33%)

FMLA -20%

The Manpower study I referenced on Jan. 6, 2010 does not describe the source of their data.  This Cornell study published in the Harvard Law & Policy Review drew from federal numbers.  Federal district clerks keep painstaking detail regarding each lawsuit filed.  So, the Cornell study is based on solid data.  The Manpower study relies on data collected by Jury Verdict Research.  My experience with verdict research firms is that they rely on information regarding cases provided to it on an ad hoc basis on its own or from other sources.  The information is still relevant when compared to prior years.  But, JVR's data is probably not as complete as federal systemic data.   So, the Cornell study is scientific, while the JVR study probably is not.  It is fair to say that federal courts remain a very inhospitable place for discrimination claimants.  

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