February Legal Roundup: Is 'Something Is Wrong' Enough Notice of a Disability

Here’s the latest on some employment-related legal cases that have gone before the courts:


Disability Discrimination | Privacy/Misuse of Identity | Age Discrimination | Religion Discrimination | Labor Arbitration | Legislation and Administrative Action

Disability Discrimination

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“Something is wrong” and “might have a medical condition” are not sufficient to give notice of disability.

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A university employee was discharged for poor performance, missed assignments and a total mess-up on a student trip for which she forgot to make reservationsa bus full of students arrived at the destination to find that no reservation or arrangements had been made. She was given prior coaching and warnings over a several-month period.

At some point during that time she told a manager that she thought “something might be wrong” with her and she “might have a medical condition” and she was thinking of “going to get tested.” She provided no further information prior to the discharge.

A month later she was diagnosed with Attention Deficit Disorder. She then brought an Americans With Disabilities case alleging that the university should have known about and sought to accommodate her disability.

The court dismissed the case. Her vague statements were insufficient to trigger the employer’s knowledge of a disability or the need to explore any accommodation. Not every “condition” is a disability, and the employee must be more clear and explicit about the nature of the condition and the desire for an accommodation.

Fuoco v. Lehigh University (E.D. Penn., 2014)

Psychologist was not qualified to continue work.

A clinical psychologist suffered increasing short-term memory loss and forgot appointments, did not enter notes about patients, could not recall patient sessions, forgot to enter information for insurance payments, etc. He was placed on leave. Then his physician sent a note that he was OK to return to work with the accommodations of close supervision of each of his appointments and charting, and a lighter caseload with “no complex cases.” The medical center declined to restore the psychologist, and he sued for failure to accommodate.

The court found that as a matter of law the psychologist was “not a qualified person with a disability” and the accommodations requested were unreasonable on their face. A professional employee hired to work autonomously cannot reasonably request close supervision and still claim to be “qualified” to perform the essential function of autonomous, independent professional work. Further, clinical psychologists are not hired to do simple, noncomplex cases. The nature of human psychology is that any case will fluctuate between more or less complexity over time, and the patient cannot be shifted from one psychologist to another every time the emotions become more complex.

Stern v. St. Anthony’s Health Center (S.D. Ill., 2013)

Privacy/Misuse of Identity

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Misappropriation of identity: liability for continuing to list former employee on company website.

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A company’s failure to update its website resulted in a former employee having a civil suit for invasion of privacy/wrongful appropriation of his name. The employee had won awards for his work and articles while employed. The company website featured him as an example of its depth of skill and expertise when promoting itself to customers and the public. However, it later fired the employee due to alleged deficiencies in his work and billings. Then the company left its website unchanged for 19 months, still representing him as an award-winning employee of the organization.

The court found a prima facie violation of the former employee’s rights. Though the company had a right to tout its employees and use their names while they were employed, that ended once they left. The 19 months of continued promotion was evidence of an intentional act of misappropriation, especially since he had written to the company to object.

The court also found that the plaintiff had valid grounds for a claim of mental distress and emotional damages. It would be “particularly repugnant” and distressful for the plaintiff to be fired, unemployed and in financial distress, while the company was advertising his excellent skills and awards and making profits by representing that he was still part of the organization.

Wagner v. Gallup, Inc. (D. Minn., 2014)

Age Discrimination and Contracts

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Professor took the money and must accept the consequences.

An older professor requested a lengthy leave to research and teach at another university. His school counter proposed a paid sabbatical for two nonconsecutive years, if he would return and teach in between the two years, and then retire at the end of the leave.

He took the deal. He took the money. Then he decided he did not want to retire and rescinded his retirement. The university retired him anyway, and he then sued for age discrimination due to the involuntary retirement.

The court ruled that he had voluntarily entered a contract, which was enforceable. He got the benefit of the two years of paid leave and he could not breach the contract. Second, the statute of limitations for age discrimination began to run the day he knew about the retirement provisionnot when it finally became effective. So his time to file under the Age Discrimination in Employment Act was long past.

Ortony v. Northwestern University (7th Cir. 2013)

Religion Discrimination

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Company may not require religious-based training, will pay $170,000 settlement.

The president of a medical-services company required professional employees to attend training courses involving Scientology religious practices, many conducted at the Church of Scientology. Employees objected but were ordered to attend. Two employees were fired for refusal.

The EEOC brought suit, and the company settled, paying the discharged employees $170,000, agreeing to implement a practice of accommodating the various religious beliefs of employees and not inflicting a particular religious view or practice upon employees.

EEOC v. Dynamic Medical Services, Inc. (EEOC Settlement, 2014)

Labor Arbitration

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Don’t touch, don’t slap.

A male employee kept inappropriately touching a female coworker during a company meeting. She slapped him in the face. She was fired.

The arbitrator ruled that discipline was warranted, but termination was too harsh. “She had a right to defend herself and send a message” that he should stop improper physical contact.

In re Knoll v. United Brotherhood of Carpenters & Joiners #1615 (2013)

Legislation and Administrative Action

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Paid FMLA bill introduced.

Bills have been introduced into Congress to provide paid FMLA. The Family and Medical Insurance Leave Act would establish a payroll deduction for employees and an employer contribution of 0.2 percent of wages to fund the pay.

The fund would be administered by the Social Security Administration and pay up to 66 percent of an individual’s regular pay if he or she were on an otherwise unpaid FMLA leave. The bill would also expand FMLA coverage to those who work for companies with fewer than 50 employees.

NLRB will not require posters.

The National Labor Relations Board has dropped its rule requiring all private-sector employees to post a notice advising employees of their right to form unions and collectively bargain. The NLRB lost two cases challenging the validity of the rulemaking process and has decided not to appeal.

The NLRB may still pursue the issue by going back to the starting point and having a more careful rulemaking process.

New Jersey adopts reasonable accommodation for pregnancy.

Governor Christie has signed a new law requiring employers to make reasonable accommodation to enable employees to work or preserve jobs during pregnancy. (Federal Title VII prohibits pregnancy discrimination but does not require accommodation.)

Bob Gregg, a partner in Boardman & Clark LLP, shares his roundup of diversity-related legal issues. He can be reached atrgregg@boardmanclark.com.

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