One recurring issue in employment cases is the breadth of discovery that is allowable. Many employers want to seek the records of the plaintiff’s former jobs. That means the employer can possibly rummage around the employee’s former jobs and see if there is any dirt that will help the employer. Unfortunately, some plaintiff attorneys do not resist those subpoenas. But, it is important to do so. No one should give up total privacy simply because s/he filed a civil rights lawsuit.

In Henry v. Morgan’s Hotel Group, No. 15-CV-1789 (S.D. N.Y. 1/25/2016), the federal Judge agreed that an employer should not have unfettered access to a plaintiff’s entire work history. The employer, as many employers do, submitted overboard requests when it asked for records from three former employers. Morgan’s Hotel Group sought all records related to Phillip Henry, the plaintiff. The court felt that simply requesting “all” records was itself a basis to quash the subpoenas.

[That makes sense. “All” records would include financial and medical related records. How could those sorts of records possibly be relevant to a lawsuit against a new employer alleging discrimination?]

The subpoenas were based on the old standard for discovery, whether the records are reasonably calculated to lead to admissible evidence. The new standard focuses on documents that are relevant in proportion to the importance of the issues, the resources of the parties, and the burden or expense of the discovery. The employer justified its request on the grounds that Mr. Henry claimed to be an “exceptional” waiter based in part on his experience at these three prior restaurants. It wanted to test his claim and see if it was true. But, as the court noted, whether he was exceptional or not, that would have no bearing on any discrimination at his job where he was fired. And, the employer offered no suspicion or basis for its belief that Mr. Henry had exaggerated or lied about his qualifications. So, found the court, the discovery was not proportional to the asserteded need.

The employer also failed to send advance notice to the plaintiff’s lawyer before sending the subpoenas to former employers. That lack of notice violated federal rules. At least one employer had already produced some records before the plaintiff l lawyer could submit her motion to quash.

To make things worse, the subpoenas were served on the former employers and the plaintiff’s lawyer on Christmas Eve, a “sharp” tactic noted by the court. See decision here.

Its a small thing really, but it can be so helpful. The EEOC has adopted a new national policy that it will allow persons who file an EEOC Charge to obtain a copy of the employer’s explanation. The employer is required by federal statute to provide a response to the employee’s charge of discrimination. The charge itself is just one page. The employer’s response, known as a “Position Statement,” can be quite lengthy with many pages of attachments. For decades, the EEOC has contacted the complainant and reviewed the employer’s response with the complainant. The EEOC would then ask for the employee’s response. Here in San Antonio, the EEOC would summarize the Position Statement in a letter and invite a response from the employee. But, in some regions of the country, the EEOC already provides a copy of the Position Statement itself and then invites the employee’s response. This change in national policy makes the process more uniform.

As I have mentioned before, the EEOC rarely conducts an actual investigation. That is, it does not typically interview possible witnesses or review documents. All it does is compare the employee’s charge to the Position Statement. But, when employers “fudge” the facts a bit, that early statement can include some valuable pieces of evidence. As the employer’s story evolves over time, the Position Statement is the first “cut” at what its story is. if the story changes later, that Position Statement is critical to show that the employer’s story has changed.

So, it is helpful to get a copy of the Position Statement sooner than later. But, in the end, this new policy changes little. The EEOC will still not conduct an actual investigation. So, the outcome of the EEOC investigation will not change. Yet, some defense lawyers see this change as  “one-sided” in allowing the employee to see the employer’s story – while supposedly not allowing the employer to see the employee’s story. See Holland and Hart blog post here for example. But, the employer does receive a copy of the charge. The charge is just one page, but it does indeed provide the employee’s story to the employer.

I cannot help but notice Holland and Hart’s advice that if the employer maintains good records and good policies, then this change will not affect them. Sure, but the defense lawyer does not mention that only in rare cases does the EEOC conduct an actual investigation. And, if there is no actual investigation, then there will not be a finding of discrimination. The EEOC does have teeth, but those teeth are so rarely used. But, I suppose if employers did not feel some sense of urgency, then they would not hire those defense lawyers…..

Great Hall

Back when I was in law school, lo those many years ago, Prof. Fuller, who was always a gentleman and very genial, made a comment about jokes in a law school exam. He explained that professors, after staying up late, wading through hundreds of pages, are not in a joking mood. So, he warned us first year laws students, that if we made a joke in our answers, it better be “damn funny.” Law exams are always written and open ended. Prof. Fuller never swore, so his use of the phrase caught our attention.

The Fifth Circuit has its own version of Hoffman Fuller’s warning. In the case of Forum Subsea Rentals v. Elsharhawy, No. 14-20717 (5th Cir. 2/26/2016), a lawyer submitted a motion asking for a rehearing by the entire panel of judges. The lawyer was trying to tell the Court that it had overlooked an argument about personal jurisdiction. To make his point, he opened his motion with an imaginary conversation between the lawyer and the client. It went like this:

“Lawyer: I regret to inform you that the court of appeals affirmed.

Client: What reason did they give?”

The conversation then developed between the lawyer and the client that the Fifth Circuit did not address the argument concerning personal jurisdiction. The lawyer then concluded:

“Lawyer: Have faith. The Fifth Circuit has to tackle thousands of cases a year, so mistakes will happen once in a while, but the Court is conscientious about fixing them on rehearing.”

The Fifth Circuit did respond. It issued its decision this way:

“Judge 1: Did you see Appellant’s petition for rehearing?

Judge 2: No, what do they say?

Judge 3: Well, they begin with a strange hypothetical conversation between a lawyer and client.

Judge 1: I cannot imagine why thought that was a good idea.

Judge 2: What’s their argument?

Judge 3: They say we made a mistake by not expressly addressing their personal jurisdiction argument.

Judge 2: That’s silly. It goes without saying that there was personal jurisdiction here.

Judge 1: I agree. The company reached out to Appellee in Texas, traveled to Texas to negotiate the contract, and entered into a contract with a Texas corporation.

Judge 2: So, what do you think we should do about their petition?

Judge 1: Deny it.

Judge 3: I agree. deny.

Judge 2: Sounds right.

IT IS ORDERED that Appellant’s Petition for Panel Rehearing is DENIED.”

See Above the Law post here. So, the Fifth Circuit responded in kind to a silly technique used by the appellant. As Prof. Fuller said many years ago, if you make a joke when judges are tired and have worked very hard, it better be darn funny.

There is much risk when filing a discrimination lawsuit. There is the simple risk that the plaintiff will lose. Most plaintiffs file their lawsuits based on contingency – meaning the lawyer is paid only if there is a recovery of some sort. So, the lawyer incurs the risk of his/her time or money, or both. But, there is also the risk of being sanctioned. A Pennsylvania lawyer was sanctioned by a United States District Judge for “litigious necromancy . . .  conjured up by specious pleadings.” Donald P. Russo was ordered to pay $115,917 in legal costs for two defendants when he lost his lawsuit. Mr. Russo, said the court, built up his case based on posturing and consistent filings that were based on bluffs. The judge noted the lawyer had a problematic track record, apparently indicating he had filed other questionable lawsuits. See ABA Bar Journal report.

I assume this means Mr. Russo filed a case for which he lacked evidence. Knowing federal court as I do, I suspect Mr. Russo was warned about his problematic lawsuits long before he was sanctioned.

Some jobs just require too much of an employee. SeaWorld Entertainment, Inc.had some of its employees pose as animal rights protestors, so it could watch the activists and prevent harm of some sort. The corporation has ended the practice. The company would not say how many employees were sent on this undercover operation. People for the Ethical Treatment of Animals has been protesting the treatment of animals at the water parks. Attendance has been dropping over the past few years. So, the employer apparently felt some pressure to react. See San Antonio Express News report. Reportedly, one undercover operative even appeared to be trying to incite the PETA members on Facebook.

I am not a fan of PETA. But, you know, there are some jobs I just would not accept.

Our leave plaices are woefully inadequate compared to European countries. Europe offers at least 14 weeks of paid maternity leave. Germany and Sweden offer the last amount at 14 weeks. The United Kingdom offers 52 weeks, while Ireland offered 42 weeks of paid maternity leave. Here in the USA, we offer zero. Although, says the CBS news report, some upper tier employers offer some paid maternity leave. See CBS News report.

The European Union requires employers to offer at least four weeks of paid vacation each year. That is much more than our mere two weeks each year. Some European countries, such as Denmark, France and Sweden offer five weeks per year. Without providing specifics, the report also indicates that unemployment benefits are much better in European countries.

But, taxes are also much higher in Europe. The average personal tax rate in Denmark, the country with the most generous benefits, is 38.4% while the average US worker pays 24.8% in taxes. Would it be worth the extra 10-14% to have better leave? That question is the stuff of which elections are made…..

I don’t get it, sometimes. People want to play “social engineering” with the veteran community. Yesterday, Sen. Ted Cruz announced his defense policy. One of his policy planks is to deny the military gluten-free meals. Gluten-free MRE’s are “politically correct,” the candidate urged. See Time News report.

The same day, National Public Radio has a piece talking about the Veterans Administration does not support in vitro fertilization. IVF is available to active duty soldiers, but not to veterans. Apparently, some member of Congress object to IVF because it can involve the destruction of fetuses. See NPR report. One soldier, Matt Keils, got out of active duty after he was paralyzed. He and his wife assumed incorrectly that he could get IVF as a veteran like he could as an active duty soldier. Much to the surprise of his wife and he, he could not.

I get it that Congress will use the military and veterans as tools in social engineering. People will tell us what our meals should include or what we should read. I was not a big fan of Playboy and those sorts of magazines. But, I remember when they were removed from PX shelves and thinking, “too bad, some soldiers would really miss that.” Giving up sensational magazines is part of the price we pay for serving in a military in a democracy.

But, surely, not diet? Menu restrictions are not politically correct. A great many soldiers watch what they eat and are very careful to avoid certain foods. When I commanded a drill sergeant battalion – one of the best assignments I ever had by the way – lactose intolerance was a big issue. We knew not to force milk on new recruits who just happened to lack tolerance for lactose. Heck, later as a an Assistant Scoutmaster, I learned not to mess with peanut allergies. Is a gluten free diet any different?

As soldiers, we expect to serve. To some degree, we know we have to accept some of these restrictions imposed by our duty to the public. We can give up Playboy magazine. But, surely, we can find a way to allow young soldiers and their spouses to conceive children. It is one thing to give your body parts to your country as part of your sacrifice. But, to give up having kids, that is a heavy requirement – especially when it is motivated largely by perceived political issues.

A recurring question is what can an interviewer can ask in a job interview. Here are some things to consider…… or not.

1. How old are you? Be very careful about asking this question. There are very few jobs where age is an appropriate question for a job interview. If asked at the wrong time, such a questions could serve as evidence of age bias. It is best to not go there unless you are hiring for jobs with clearly appropriate age requirements, such as the US Army.

2. Are you married? If you ask this only of female applicants, then this question could cause you problems. In any event, why would this question be helpful? Sometimes, this question acts as a ruse to discover whether a female applicant might quit when she wakes maternity leave. 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 a disability? Do not ask this specific question. But, an employer can ask something similar. It can ask an applicant if s/he has any limitations that would keep him/her from performing essential functions of the job. How else would a fire department 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, then questions asked in an interview would have some relevance. But, if there is adequate reason for any termination, discriminatory questions would not matter. 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.

The Fifth Circuit reversed a summary judgment, but the district court ruling was by Judge Lynn Hughes in Houston. So, perhaps that is not so surprising, after all. I have written about Judge Hughes before here and here. In the case of Cannon v. Jacobs Field Services North America, Inc., No. 15-20127 (5th Cir. 1/13/2016), Michael A. Cannon was an engineer. He applied for a job as a field engineer with Jacobs Field Services. He was offered a job, at which point, the company sent him for a pre-employment physical exam. Mr. Cannon told the company doctor about his inoperable form rotator cuff. The injury prevented him from lifting his right arm above his head. He was given a drug test which he passed. he had taken the pain killer, Tramadol in the past but not recently. The doctor cleared Mr. Cannon for the job, so long as he did not drive any company vehicles, did not lift or push anything heavier than 10 pounds, and he did not work with his hands above shoulder level.

Jacobs did not accept these limitations. Instead, it decided that he was not physically capable of performing the duties of the position. HR contacted the work site, where the technical services manager said Mr. Cannon could not perform the functions of the job. Yet, at the same time, HR also notified Mr. Cannon that Jacobs only had concerns that he could not raise his right hand above his head. He would have difficulty climbing ladders, he was told. Mr. Cannon contacted OSHA to see if there might be a problem. He also made a video showing him climbing a ladder with three point contact. He also provided medical information about his condition.

No one at Jacobs contacted his doctors to ask for clarification. Instead, the company rescinded the job offer. Mr. Cannon filed suit. He alleged he was fired for disability based discrimination and because he was regarded as impaired. The employer moved for summary judgment. Judge Hughes granted the motion. Judge Hughes, however, relied on pre-Amercans with Disabilities Amendment Act decisions to find he was not regarded as disabled. As the Fifth Circuit pointed out, the new standard is not whether a person is regarded as having a major life activity which is impaired, but whether he is is simply regarded as having a physical impairment. The new standard sets a lower bar. The ADAAA has been in effect since September, 2009. It is surprising indeed that Judge Hughes would not catch this error.

The lower court construed Mr. Cannon’s testimony that he compensates for his weak right arm with greater use of his left arm to mean that the engineer was not impaired at all. The court rightly noted that is an extreme interpretation of his testimony and not in keeping with summary judgment analysis.

The lower court also said Mr. Cannon did not suffer from a disability. Yet, there was substantial evidence that he could not lift heavy objects. Lifting and reaching are major life activities, said the court. The plaintiff was clearly impaired in those areas. As the court noted, this was not even disputed.

The lower court even disregarded the fact that he passed the drug test with the observation that he passed the test “this time.” Noted the court, there was no evidence that 1) he was still using the pain killer, and 2) that even if he used it, that he used it conjunction with work or on a work site. The district court assumed facts in favor of the movant, not against the movant.

Judge Hughes found that driving was an essential function of the job. He ruled that Mr. Cannon could not perform this essential function. The work sites were spread out over the countryside. But, Mr. Cannon disputed that driving was an essential function.  Even so, there was adequate evidence that he could indeed drive.

There was a factual dispute about whether Mr. Cannon could climb a ladder with accommodation. But, said the court, since the company ended the interactive process early, there was a “thin”record regarding his ability to do so or not.

Regarding the issue of pretext, the court noted that Jacobs offered no nondiscriminatory reason for withdrawing the job offer. It never claimed, for example, that it had to reduce its work force or that income had decreased. The simple timing suggests the job offer was withdrawn due to concerns about his impairment.

And, so Judge Hughes is again reversed.

I have written about Greg Abbott’s many frivolous lawsuits and frivolous defenses to meritorious lawsuits. One such lawsuit was filed by Wendy David and other civil rights organizations regarding re-districting in 2011. Wendy Davis and the other minority groups won their lawsuit. They were awarded a million dollars in legal fees. I wrote about that result here. Now, the state’s appeal to the U.S. Supreme Court has been rejected. So, the state of Texas will have to pay over a million dollars because it refused to recognize a lawsuit with merit.

On appeal, the state of Texas had claimed it was the prevailing party. If true, then the state of Texas would be entitled to attorney’s fees. But, at the court of appeals level, the judge scolded the state for making such a specious argument. See San Antonio Express News report.

So, yes, the state of Texas’ defense to this suit was frivolous indeed.