The Americans with Disabilities Act provides that a person is entitled to an accommodation if needed. But, sometimes the need for accommodation is not so apparent. Back injuries are notorious for being unpredictable. Russell Holt applied for a job with BNSF railway. He received a job offer conditional on passing a physical exam. Mr. Holt had a history of back surgery. His medical doctor and medical information supported a positive result. But, the employer’s doctor, Dr. Jarrard, refused to certify the applicant unless he received an MRI. Mr. Holt could not afford an MRI. The Equal Employment Opportunity Commission filed suit, alleging that requiring the job applicant to pay represented discrimination against a person with a disability. That lawsuit became EEOC v. BNSF Railway Co., No. 16-35447, 2018 WL 4100185 (9th Cir. 8/29/2018).

The applicant’s insurance company would not pay for the MRI, because he was not in any pain, at present. The MRI would then cost over $2500.

The Ninth Circuit Court of Appeals asked the question, who must pay for a medical exam. The court viewed the claim as a “regarded as” disabled claim, noting that Mr. Holt suffered from permanent disc damage. BNSF tried to argue that it did not consider him impaired. It just wanted to be “sure.” The court was not persuaded. The employer pointed to a case that was in effect overruled by the ADA Amendments Act. But, more importantly, in requesting more information about Mr. Holt’s back condition, BNSF had made an assumption that the applicant had a back condition which prevented him from performing the duties. That presumption would persist unless the applicant could overcome it. The employer, said the court, cannot hide behind the level of uncertainty about the precise nature of his back condition. A “perceived impairment” is consistent with the ADAAA’s broad coverage.

The court then addressed the requirement that the applicant pay for the physical exam. The court had no trouble in finding that requiring a job applicant to pay the cost of a physical exam is a condition of employment which is based on a perceived impairment. An employer can only impose a condition of the job if it imposes the same requirement as all applicants. BNSF, however, only imposed this requirement to pay for an MRI on the job applicant who was perceived as impaired. That condition amounts to a violation of the ADA. And, noted the court, if the employer was not required to pay for such tests, then the test would act as a screening criteria for persons with a disability. That would also amount to a violation of the ADA. The court affirmed summary judgment in favor of the plaintiff.

See the decision here.

In another case about immigrants, Pres. Trump’s racist remarks about immigrants were used as evidence against him. This judge, Edward Chen in San Fransisco, ruled in favor of the immigrants partly based on the President’s comments about Mexican immigrants, about Muslims and about immigrants from some African countries. Judge Chen ruled that to the extent the President had influence on the head of Homeland Security Department may have implemented certain restrictions due to the President’s wishes.

The lawsuit seeks to stop Homeland Security from ending provisions allowing immigrations from from El Salvador, Sudan, Nicaragua, and Haiti. Judge Chen found there was evidence that Pres. Trump harbors animus against non-white, non-European immigrants.  See CBS news report here.

I previously wrote about Pres. Trump’s racist comments here. It is exceedingly unwise to make comments like that. Some court decisions have chosen to overlook his comments, finding most of them were made during the campaign. But, in every lawsuit about immigration, those comments become key issues.

Those racist comments may help his election chances, but they undermine his immigration policies. But, I suppose he knows all this and has chosen to emphasize election viability.

 

English-only policies are acceptable if they are related to safety concerns. Otherwise, they are generally viewed by most courts as evidence of discrimination. English-only policies are also rare as hen’s teeth in San Antonio. Yet, according to a recently filed lawsuit, La Cantera imposed an English-only work rule for its workers. But, if the allegations are to be believed, the policy only applied to Spanish speakers. Farsi  speakers could speak in Farsi at work.

The Equal Employment Opportunity Commission filed suit against La Cantera alleging the resort imposed the policy and then fired some employees when they violated the new rule. One worker of 12 years was fired after he complained about the rule against speaking Spanish. One worker who spoke Spanish at an orientation meeting was escorted rom the room after he spoke Spanish.

One supervisor poked fun at a Spanish accent. One worker was fired with a notation in his personnel file that he spoke Spanish while using his personal cell phone.

In October, 2014, a worker went to Human Resources to complain and was told, “This is America, so speak English! What’s the problem?” When even HR does not see a problem with that sort of rule, then the employer has a serious problem. See the San Antonio Express News report here. And, imposing a rule like that in the San Antonio area suggests management is simply tone deaf.

Why is it so hard to speak up at a toxic work culture? The Harvard Business Review described what occurred at Nike when some women informally surveyed other female employees and found a problem. As a result, top male executives are having and bias training has ben instituted. The real problem started long before those women started their own survey. It started when some female em-loyees went to Human Resources and found no assistance.

As the HBR article points out, is is hard to challenge the status quo. Some workers see abuse occurring, but believe it is not their place to intervene. Or, they fear the consequences of intervening. In one study, actors played a man harassing a female worker. In the first scenario, the male actor was smaller and less threatening in his appearance. If a bystander was present, 50% of observers would help. If there was no bystander, only 5.9% of participants would help the woman. When the male actor was larger and more fierce looking, the numbers dropped considerably.

When I was in the Army, every Army unit took a “climate survey” every few years. The survey asked on an anonymous basis how the soldiers viewed the leadership. But, after a few years in the military, I did not need a survey. I felt I could visit a unit and know within minutes whether the climate was good or bad. If soldiers would talk to me as a captain or major who they had never met, then I knew the unit was functional. But, if the subordinate soldiers avoided engaging me in conversation, then I knew these were soldiers who did not believe they were supported by their chain of command. They feared to make a mistake.

People in general are more likely to conform to certain behavior if they know others were also conforming. For example, one study found that hotel guests were more likely to re-use their towels if they knew that most guests re-used their towels – as opposed to otherwise simply hearing a message about protecting the environment. The level of re-use rose 26% if the guest knew other hotel guests had also re-used their towels. And, if the guests knew that the very persons who had been in that same room also re-used their towels, they were 33% more likely to re-use their towels. That is the power of following behavior displayed by others.

Yes, but what happens in a hierarchical situation? What happens when persons outrank other persons? That is the employment situation. In the Army, the message was clear: the leader must set the example. The HBR article makes the point that organizations need to covey a message that some behaviors will not be tolerated. In doing so, the mistreated persons will find their voice. Yes indeed. See the Harvard Business Review article, “Why Its So hard to Speak Up Against a Toxic Culture” here.

An engineer worked for Texas Commission on Environmental Quality or 23 years. Shiyan Jiang was never in any trouble until in 2014, he was assigned a new boss, Kim Wilson. The new boss believed Mr. Jiang placed some papers in a permit folder that did not belong there. The plaintiff then filed a complaint alleging discrimination based on age and ethnic origin. The supervisor then found many more things wrong with the long-time engineer, including raising his voice and disputing settled policy matters. Ms. Wilson placed the engineer on probation. During the probation, he had two meetings with supervisors. No incident occurred after the second meeting, yet, the supervisor recommended termination.

Mr. Jiang filed suit as Jiang v. Texas Commission on Environmental Quality, No. 17-CV-00739 (W.D. Tex. 8/13/2018). The TCEQ moved for summary judgment. The Western District court noted that there was evidence that some other co-workers raised their voices on occasion. Other co-workers sometimes placed draft documents into a permit folder. And, others debated policy with their supervisors. Mr. Jiang submitted a statement on his behalf in responding to the motion for summary judgment. The employer tried to argue that Jiang’s Declaration was based on subjective belief. But, his testimony was corroborated by co-workers. The employer then argued that the co-worker affidavits were based on subjective belief. But, noted the court, the co-workers presented facts to support their beliefs.

The court also noted that two other senior employees were placed on probation or issued written warnings after they complained about age discrimination. And, the court noted  that Mr. Jiang complained about race discrimination at the second probation meeting. The very next day, the supervisor recommended he be terminated. That is a very close nexus indeed between opposing discrimination and then suffering an adverse personnel action. The court found that viewing all this evidence in totality, a jury could infer a pattern of behavior of retaliation against persons who complaint about discrimination. It found that there were issues of fact regarding the employer’s articulated reasons for the termination. So, the court denied the employer’s motion for summary judgment. See the decision here.

The judge ruled correctly. The affidavits of co-workers, if supported by factual observations, are much more than mere “subjective” belief.

it happens more and more. A jilted lover posts pictures of his former girlfriend on the internet. Only this former lover kept doing it over and over. Mark J. Uhlenbrock was a pilot for United Airlines. He formed a relationship with a stewardess who uses the name Jane Doe. The relationship started in 2002 and lasted about four years. He took some pictures of her in the nude with her permission – and some pictures without permission. The stewardess obtained restraining orders against him here in Bexar County in 2009 and again in 2011. He just kept posting the pictures. The pilot settled her case against him for $110,000. But, the harassment did not stop.

In 2013, the stewardess went to their mutual employer, United Airlines. But, the employer failed to take appropriate action, says the EEOC. The EEOC filed suit recently against United Airlines for failing to do something about the pilot’s conduct. In 2015, Mr. Uhlenbrock was arrested by the FBI and his computers were seized. United granted him ing-term disability in January, 2016. He received the long-term disability payments until July, 2016. In June, 2016, he pleaded guilty in federal court to internet stalking. He was sentenced to 41 months in prison for the offense.

Mr. Uhlenbrock said he had an addiction to posting nude photos on the internet. See San Antonio Express News report here. The EEOC appears to be arguing that United kept the pilot on its payroll several months after he pleaded guilty to stalking and that the employer took no steps to stop him from posting the pictures. The challenge in these sorts of cases is showing the employer had a duty to address behavior which occurred off-premises. This may become the exemplar for such cases, since the relationship clearly started on company premises on company time. At least one of the pictures was of Ms. Doe in her flight attendant uniform.

Even worse, the federal violations continued long after the stewardess complained. Ms. Doe filed suit in state court in Bexar County, and complained to management long before the EEOC filed this new lawsuit. At one point, United said it could not take action because the harassment was not related to work. The captain never received any discipline for his conduct. See Texas Lawyer report. The lawsuit is filed as Suit No. 18-CV-817 in the Western District.

Many plaintiffs complain they are treated differently than other co-workers in some way. It might be about pay, promotion opportunities, etc. In one case, two plaintiffs said they were treated differently than other peers and that they were subjected to derogatory comments about Italians. In Cicalese v. University of Texas Medical Branch, No. 17-CV-0067, 2018 US Dist. LEXIS 46796 (S.D. Tex. 3/22/2018), the employer filed a Rule 12(b)(6) motion to dismiss. Rule 12(b)(6) addresses the failure to state a claim. Dr. Cicalese was born in Italy. He and his wife both worked for UTMB. His wife, Dr. Rastellini, was also born in Italy and was also a medical doctor. Things went well for the couple the first five years at UTMB. But, when a new dean started working there, things went downhill. The doctors say the new dean targeted them based on their heritage as Italians. The dean, said the plaintiffs, when he first met them, told them they should go back to Italy. He made additional negative comments about Italians.

The dean removed some positions from the two doctors. But, it appears the adverse personnel action which forms the basis of their suit is denial of tenure.

The Plaintiffs’ allegations were not specific. Dr. Rastellini alleged other, unnamed comparators were granted tenure with lesser credentials. But, she did not name them. She did not describe what those lesser credentials looked like. She did name others, but not in the context of comparative employees. The court resurrected the so-called four-part test found in Brown v. CSC Logic, Inc., 82 F.3d 651 (5th Cir. 1996), regarding so-called stray remarks. I previously discussed the stray remarks doctrine here regarding a 2015 Fifth Circuit decision. In that decision in Goudeau v. National Oilwell Varco, LP,793 F.3d 470 (5th Cir. 2-15), the court tried to clear up the confusion surrounding the stray remarks doctrine. The point of the 2015 decision was that a remark which shows discriminatory bias on its face has some value, even if they may be old. Even older remarks can serve as evidence of pretext, said the court in 2015.

But in Cicalese, the court relied on Brown to find the remarks too remote in time. But, as the Goudeau court explained, even remarks that might be old in time, provide some relevance to the circumstantial evidence case. They might well be relevant to help show pretext. “In a circumstantial case like this one, in which the discriminatory remarks are just one ingredient in the overall evidentiary mix, we consider the remarks under a “more flexible” standard.” Goodeau, at p. 475.

But, the Southern District (Hanks) made no reference to Goudeau. It did not discuss a more flexible standard. Instead, it relied on the old strict formula that makes little sense. The complaint apparently did not mention the time period in which the three purported remarks were made. But, if a decision-maker makes a remark which shows bias on its face, such a remark would hold some relevance for a very long time period. This decision does appear to be oriented toward reaching a particular result. See the Cicalese decision here.

Sexual harassment cases are complicated. The legal standard is that harassment by co-workers which is “severe or pervasive” will constitute a hostile work environment – if of course, management knows about the harassment and does nothing. But, what happens when the harasser is a customer? If an employer is aware of the harassment and does nothing, the employer is liable. In Gardner v. CLC of Pascagoula, LLC, No. 17-60052 (5th Cir. 6/29/2018), we see an additional twist. What happens when the person doing the harassment is a patient suffering from dementia?

The plaintiff was employed as a certified nursing assistant at an assisted living facility. She had years of experience in the field. Perhaps, that is why she was assigned to J.S., a difficult patient. J.S. was elderly. He suffered from dimentia. He would grope the female employees and become violent when they would resist. One day, he tried to grope Ms. Gardner. She resisted. He struck her breast. He struck her again, as they tried to move him. She may or may not have swung toward him deliberately missing him. She walked out, allegedly saying she was the wrong skin color. The other white nurse apparently was able to calm down J.S.

Ms. Gardner went out on worker’s compensation leave and was fired when she returned to work. The employer said her comment was racist and that she tried to hit J.S. The CNA filed suit. The employer was granted summary judgment.

There was no question J.S. frequently tried to grope women, on their thighs, breast, buttocks and their private areas. He did this daily. The appellate court found this was “severe or pervasive” harassment. J.S. was eventually moved to an all-male facility with lock-down security.

Ms. Gardner might have still lost her claim, but her supervisors were derisive toward her complaints about J.S. One of them told her to put on her big girl pants. And, as the court pointed out, another element of a sexual harassment claim is that management takes no action to stop the harassment. The court faulted management for doing nothing to even try to stop the harassment. After J.S. had punched her three times, she asked to be transferred. Management told her no. Management clearly was not even trying to fix the problem. The plaintiff presented evidence regarding what other nursing facilities had done where she worked. They would require two or more aids, try to use medications to control behavior, or simply transfer the patient to some other facility. CLC took none of steps. And, of course, long after firing Ms. Gardner, CLC did finally transfer J.S. out of the facility.

The court recognized that there may be times when it is simply not physically possible to keep an ill patient from acting aggressively. But, there were things the employer could have done this time, in this case. But, it did none of those. The Fifth Circuit reversed the grant of summary judgment. See the decisions here.

A frequent issue in discrimination cases concerns when does the time for filing a complaint start? The answer can be complicated when a teacher, for example, is notified her contract will not be renewed the next school year. Do her six months to file start when she is told she will not be re-hired, or does it start at the end of the school year, when the decision takes effect? In Reyes v. San Felipe Del Rio Consolidated ISD, No. 14-17-00488, 2018 WL 1176487 (Tex.App. San Antonio 3/7/2018), the Court said the time to file started when the school district board told the teacher it had accepted the Superintendent’s proposal to terminate her employment.

Situations involving public school teachers are particularly confusing, because they are entitled to a hearing before the school board. Before a teacher’s termination becomes final, she can ask for a hearing before the school board. Ms. Reyes had such a hearing. She lost, as do most teachers. She was the told by letter dated Jan. 18, 2012 that her employment would be terminated. According to the letter, her employment was terminated effective Jan. 11, 2012. She then filed her charge of discrimination on May 23, 2012. She later filed suit. The district filed a plea to the jurisdiction, which is comparable to a motion to dismiss. It is based on the pleadings. The district argued that she had missed her deadline to file her charge. The district argued that her deadline started not in January, 2012, but in August, 2011 whene was first told the board had accepted the Superintendent’s recommendation that she be terminated.

The court looked at the Texas Education Code which explains the appeal process for public school teachers. The court found that under the Texas Commission on Human Rights Act, Tex. Lab.C. Sec. 21.202, the key event occurred when a decision was made, not when that decision took effect. The focus of the statute, said the court, is on the unlawful decision. So, her six months started in August, 2011, not in January, 2012. And, the court affirmed the dismissal of her case. See the decision here.

Ouch. The plaintiff made a rational decision to look to the result of her hearing before the school board. And, she lost because she relied on the wrong event. She might have the possibility of filing in federal court. But, because she filed her charge some ten months after August, 2011, that possibility would also would be problematic.

Well, the Supreme Court disagreed with me. But, only by a 5-4 vote. The Supreme Court ruled in favor of the President’s travel ban and rejected the appeal of the state of Hawaii. See the opinion in Trump v. Hawaii, No. 17-965 (6/26/2018) here. I previously wrote about that travel ban and its apparent religious bias here and here. The Supreme Court found that the President had broad authority to restrict immigration. And, this was after all the third version, the one the President referred to as a “watered down” version.

Chief Justice Roberts wrote the majority opinion. The President relied on 8 USC Sec. 1182(f), which allows the President broad authority to restrict immigration. Justice Roberts noted that the Proclamation implementing the travel ban is 12 pages long. It provided detailed reasons for the exclusions it sought.

Regarding the allegation that the executive order sought to exclude Muslims, the court noted that the Constitution provides that the government shall take no measure respecting the establishment of a religion. The court noted the many statements by Candidate and President Trump attacking the Muslim faith. In his first week as President, he referred to the first version of the ban as the “Muslim ban.” When the current immigration ban was implemented, he said it was “watered down” and that he wanted something stronger. Justice Roberts then recounted a long history, starting with George Washington, of presidents espousing religious tolerance and freedom. The Justice was clearly calling the current President to a higher standard than to espouse “Muslim bans.”

But, the court would not go so far as to assign bias to the executive order itself. Wearing blinders a bit, the Justice claimed the executive order itself is neutral in regard to the Muslim faith. Of coarse, that conclusion strikes me as naive. The court chose to ignore the President’s own stated bias in effecting this travel ban.

Justice Kennedy issued a concurring opinion, simply to remind the Prudent that he, like all federal officials, took an oath to defend and support the Constitution. Without naming Pres. Trump by name, he was clearly warning the President that he must adhere to the principle of the Constitution even in regard to travel restrictions.

Four justices dissented. This was a close vote. But, the vote to watch belongs to Justice Kennedy. He is the swing vote. He supported the President’s executive order, this time. But, he sent a warning to the executive branch. I am doubtful the President will notice. But, his lawyers will.