The ADA Amendments Act was passed in 2008 and became effective in 2009. Only now are we seeing cases interpreting those important changes. One significant change concerns the “regarded as” claim. The old ADA protected persons who were fired because they were “regarded as” disabled. But, the old ADA also required that to merit that protection, the person had to suffer from an actual impairment. That ruling meant many persons in the early stages of an illness or impairment were not protected. Their disability simply had not progressed far enough. So, the ADA Amendments Act broadened the requirement of “regarded as” to also include persons who were simply perceived as impaired. The ADAAA removed the requirement that a person suffer from an actual impairment that limits a major life activity.

In Mesa v. City of San Antonio, No. SA-17-CV-654 (W.D. Tex. 8/16/2018), the Court addressed a critical component of this new “regarded as” claim. How serious does the impairment have to be before the impairment can become the subject of a “regarded as” claim? In Mesa, the worker suffered from a shoulder injury. He recovered from that shoulder injury within eight days. In moving for summary judgment, the employer argued that the condition was “transitory and minor.” The ADAAA provides that the protections of the “regarded as” claim do not extend to conditions which are transitory and minor. The court in Mesa first addressed the question regarding who must show that an impairment is transitory and minor. The court reviewed the pertinent regulations and found this status to be a defense, so the burden lay with the defendant to show a condition was transitory or minor. So, in moving for summary judgment, the employer must show no genuine issue of material fact regarding the status of transitory and minor.

The Act defines an impairment as one which lasts six months or longer. Mr. Mesa’s condition apparently lasted less than six months. But, what is “minor”? The court noted that the employer focused on the wrong analysis in its motion for summary judgment. The employer argued in its motion for summary judgment that there was no evidence that any person at CPS Energy, the employer, viewed Mr. Mesa’s impairment as anything but transitory and minor. That was the wrong inquiry, said the Court.

The proper question was whether the employer believed the employee had an impairment which objectively could be viewed as transitory and minor. That is, was the employer aware of an impairment, which objectively could constitute a brief illness or injury? The court was saying that the employee must show not that the employer viewed the health condition as transitory and minor, but must instead show 1) that the employer viewed the impairment as a particular diagnosis, 2) which objectively may last longer than six months or is otherwise not minor.

The court engaged in detailed review of the facts and noted that CPS Energy took actions which did show they believed the employee had a shoulder injury which persisted, even after apparent treatment. They required him to take a fitness-for-duty examination, for example, even after receiving a medical report. Management also considered requiring the employee to undergo an MRI. Management took several steps even after initial assurances of his recovery. And, as the court noted, the employee was removed from work via an ambulance when the injury first occurred. All those facts suggest an impairment which was something more than minor.So, even though the condition may have lasted less than six months, it was something more than minor.

The court then noted that shoulder injuries as a matter of course, are unpredictable. It found that the plaintiff had presented adequate evidence to show genuine issue of fact whether the injury was not “minor” and whether he had been placed on unpaid leave due to his perceived injury. See the decision here.

If it was not so serious, the story in Tarrant County, Texas would be humorous. A small community near Ft. Worth has a City Councilman who is Muslim. Shahid Shafi has served as a Republican Councilman in Southlake since 2014. He is a doctor. He has served as delegate to state Republican conventions. In July, 2018, he was appointed vice chairman of the Tarrant County Republican Party. Within days of that appointment, a couple of precinct chairs have sought his removal. Dorrie O’Brien and others believe Dr. Shafi represents an attempt by the Muslim Brotherhood organization to infiltrate the Republican Party. Based on no evidence, these precinct chairpersons believe Dr. Shafi seeks too impose the dreaded Sharia law in Texas (and the hordes will multiply!) and that he has some unspecified connection to Jihadi groups. I previously wrote about this story here.

In Facebook posts, Ms. O’Brien has complained often about his appointment as Vice-chairman. She has offered no evidence, says the Texas Tribune, of her assertions about Dr. Shafi. Ms. O’Brien and another precinct chair, Dale Attebery, have asked an anti-Muslim activist, John Guandolo, to come to Tarrant County and conduct training on the dangers of Sharia law. His training will occur on Dec. 29. A vote regarding Dr. Shafi will be held on Jan. 10, 2019. See Texas Tribune story here.

Dr. Shafi came to this country from Pakistan. He has been here 29 years. He says the Republican Party’s belief in small government appeals to him, especially after coming from a country like Pakistan. Leading Republicans in the state have affirmed their support for the doctor. It is ironic that the Muslims who come here are probably the ones most familiar with the horror of actual jihadis. Persons like Ms. O’Brien are attacking the wrong Moslems.

As I have mentioned here, I am continually appalled at the bigotry applied to persons who happen to be Moslem. It is comparable to blaming Presbyterians for acts committed by Methodists. Yes, they are all Moslem, but within the very large Muslim faith, there are infinite variations of adherence to one’s faith and one’s interpretation of that faith. It is silly to generalize all some 1.5 billion Moslems based on the actions of some hundreds in Iraq and Afghanistan. That sort of ignorance would be laughable, were it not so serious.

It is safe to say no one ethnic or religious group has a monopoly on patriotism. Yet, some Republican precinct chairs in Tarrant County believe just the opposite. Some Tarrant County Republican precinct chairs are trying to remove Shahid Shafi as Vice Chairman of the GOP party in Tarrant County. The chairman, Darl Easton, appointed Mr. Shafid to the post last Summer. Some Republicans have been trying since August to remove Mr. Shafid. Said one of the leaders, Dorrie O’Brien, “We’re patriots who don’t allow jihadists to play in the fields of the Lord.”

In August, some members of the board posted messages on social media claiming Mr. Shafid did know what sharia was, even though he would claim otherwise. They claimed he is a practicing Moslem. (Oh no!)  Many Republicans in Tarrant County oppose the move. Mr. Easton has rightly noted this is pure religious discrimination. Mr. O’Brien insists they did not oppose Mr. Shafid because he is Muslim, but because they oppose the global jihad to conquer nations and make them subject to sharia law. See Ft. Worth Star Telegram report for more information.

Ok, I get that. We should all oppose jihadis who seeks to impose anything on unwilling persons. I served in one war to help stop them from killing people in Iraq. But, what does global jihadism have to do with Dr. Shafid? He is a doctor in Southlake and sits on the City Council there. Somehow, I doubt he has spent time in the forces of ISIS or Al Queda…….

 

If you are a person with an impairment, should you volunteer information about your impairment during an interview? When I worked at Disability Rights of Texas, we advised persons with disabilities to not discuss their impairment until necessary. An employer cannot lawfully ask about an impairment until a job offer has been made. And even in that situation, the employer should simply state these are the job functions, can you perform them?

Dr. Daniel Ryan, author of the Job Search Handbook for Persons with Disabilities, agrees. He says resumes are often used to screen pout people. So, it is better to provide information about an impairment later in the application process. The problem may come if you have a large gap in your resume, due to some disability. In that case, says Dr. Ryan, you should have a filler – something that explains the gap. Dr. Ryan advises to use the resume to open the door and use the interview process to tell who you are. See Military Times report.

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.