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In Turnabout, Seventh Circuit Says Reassignment Is ADA Reasonable Accommodation

Kollman & Saucier
09/10/2012
Business Law
For the past 12 years, the Seventh Circuit has held that the ADA does not require an employer to reassign employees to a vacant position as a reasonable accommodation.  The court has now retreated from that position in EEOC v. United Airlines, Inc., No. 11-1774 (7th Cir.  Sept. 7, 2012).  Back in 2000, the court ruled in EEOC v. Humiston-Keeling, 227 F.3d 1024 (7th Cir. 2000) that, while the ADA mentions reassignment as a reasonable accommodation,...
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Rotating Shift Requirement is Essential Function of Job

Kollman & Saucier
09/05/2012
Disability & Leave, Employment Discrimination
The Americans with Disabilities Act (ADA) requires that an employer provide a reasonable accommodation (without undue hardship) to a qualified individual with a disability to enable her to perform the essential functions of the job.  An employer need not – and should not – eliminate an essential function of a job for a disabled employee.  To do so turns the ADA on its head, with the employer basically saying “that’s ok, we don’t expect as...
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Circuit Split Created on ADEA and Section 1983

Kollman & Saucier
08/28/2012
Employment Discrimination
The Seventh Circuit has split from all of the other federal appellate courts that have addressed the issue to hold that the Age Discrimination in Employment Act (ADEA) does not preclude the bringing of a Constitutional equal protection claim under 42 U.S.C. § 1983. Levin v Madigan, 2012 U.S. App. LEXIS 17291 (7th Cir. August 17, 2012). Every other appellate court has followed the Fourth Circuit’s decision in Zombro v. Baltimore City Police Dept.,...
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Telling an Employee to Attend Psychological Counseling May Violate the ADA

Kollman & Saucier
08/24/2012
Disability & Leave, Employment Discrimination
Emily Kroll was working as an EMT for White Lake Ambulance (WLA) when her supervisor began to get reports from employees about concerns over Kroll’s well being. The supervisor also  received a complaint that Kroll had screamed at a “male acquaintance” on the phone while driving a vehicle with a patient in emergency status. The supervisor told Kroll to attend counseling if she wanted to continue working at WLA.  She said “no” and left the...
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Employer Stopped From Claiming No FMLA Eligibility

Kollman & Saucier
07/20/2012
Disability & Leave
Making sure an employee is actually FMLA eligible before telling her she can take FMLA leave seems self-evident. But employers sometimes don’t do that. If the employee relies on the assurance of FMLA leave, the employer should not later take adverse action against the employee for taking leave, even if it discovers the employee had not actually met the FMLA’s eligibility requirements. A Pennsylvania County recently lost its motion to dismiss...
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Court Finds No Accommodation Possible for Deaf Employee, So Employer Wins

Kollman & Saucier
07/17/2012
Disability & Leave, Employment Discrimination
Jessica Chrysler is a congenitally and profoundly deaf individual who communicates with hearing individuals by writing notes, gesturing, pointing, and miming. She can also type, text message, and use body language. Chrysler was hired to take pictures at a photography store, usually of young children. She also was required to sell photo packages. When working with other employees who could hear, Chrysler could perform just fine because she would rely...
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“Cat’s Paw” Theory Applied in Title VII Case

Kollman & Saucier
07/16/2012
Employment Discrimination
Last year, in Staub v. Proctor Hospital, 131 S. Ct. 1186 (2011), the Supreme Court held that the “cat’s paw” theory of liability could be used in a USERRA case. While the statutory language is different, most commentators expected that it would not be long until the theory was adopted for use under Title VII and other anti-discrimination laws. They were right. In Chattman v. Toho Tenax Am. Inc., 2012 U.S. App. LEXIS 14359 (6th Cir. July...
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Will the NLRB Revisit Yeshiva in Faculty Unionization Effort?

Kollman & Saucier
07/07/2012
Labor Law
In 1980, the Supreme Court held that faculty members at private universities typically cannot organize and form a union under the National Labor Relations Act.  NLRB v. Yeshiva University,444 U.S. 672 (1980).  Whether this is the view of the Obama NLRB will be vetted in the coming months as interested parties have filed amicus briefs with the Board in Point Park Univ., No. 6-RC-12276, a representation case challenging whether faculty members are...
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Supreme Court Holds No Waiver of Sovereign Immunity for FMLA’s Self-Care Provision

Kollman & Saucier
03/21/2012
Quick Clips
In Coleman v. Maryland Court of Appeals, No. 10-1016 (decided March 20, 2012), the Supreme Court in a 5-4 decision has decided that - unlike the family leave provisions of the FMLA - Congress did not adequately abrogate the States’s sovereign immunity for the FMLA’s self-care provisions. In so doing, the court affirmed the Fourth Circuit, 626 F.3d 187 (4th Cir. 2010), and agreed with the five other appellate courts that had held the same...
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No FMLA Violation When Employee Fired for Attendance Violation After Earlier Warnings

Kollman & Saucier
03/17/2012
Quick Clips
In Lovland v. Employers Mut. Cas. Co., 2012 U.S. App. LEXIS 5503 (8th Cir. March 16, 2012), the Eighth Circuit held that an employee who was fired for her failure to call her supervisor regarding an unscheduled two-day absence, after having been previously warned about excessive absenteeism, had no FMLA claim under either the interference or retaliation theories.   Affirming summary judgment for the employer the appellate court held that the trial...
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