Michael P. Maslanka 2016-12-20 18:03:23
The 5th Circuit deftly handled three employment law issues in 2016, each with broad practical applications. First, Dillard v. City of Austin and the intersection between an Americans with Disabilities Act disability and the employer’s duty to reasonably accommodate it. Dillard worked for the city as a supervisor of manual laborers and took leave after being injured on the job. When the leave was exhausted, the city could have legitimately terminated him. It didn’t. Instead, it placed him in a clerical position as an accommodation to his disability. He was later terminated for poor performance. While the city ultimately prevailed in the ADA lawsuit, the 5th Circuit rejected the city’s argument that an employer is under no duty to reasonably accommodate an employee who could have been fired but was not. Rather, the court stressed that the duty of accommodation is continuous for the duration of employment. In EEOC v. Rite Way, the court expanded the right of employees to be free from unlawful retaliation. Prior to the case, the court asked whether an employee “reasonably” believed she was opposing unlawful conduct. If so, the employee engaged in protected activity and is insulated from retaliation. But what constitutes a “reasonable belief”? In a well-crafted punch line to this perplexing question, the court declared: “(t)he reasonable belief standard recognizes there is some zone of conduct that falls short of an actual violation but could be reasonably perceived to violate (the law).” The final case in this trifecta is Heinsohn v. Carabin & Shaw. The employer terminated an employee for poor performance with a conclusion-filled letter from the decision- maker. When asked in his deposition for details, the decision-maker had none. His subordinates had given him only conclusory reasons and had not asked for the employee’s version of events. The court essentially employed a “snapshot” approach, looking only to what the decision-maker knew of poor performance at the time of the termination. Thus, the employer had no facts. Summary judgment reversed. And Texas appeals courts weighed in on disability and accommodation issues. Donaldson v. Texas Department of Aging and Disability interpreted the Texas Labor Code’s provisions on reasonable accommodation. An employee was in a weakened state at work because of treatment for prostate cancer. As a result, the employer provided him with a part-time assistant to help with paperwork. She was promoted to a new position but was not replaced. He claimed that he asked for a replacement but that none were forthcoming. Summary judgment denied. Once an employer starts down the reasonable accommodation road, it must continue. On December 1, 2016, the Department of Labor was set to require employers to pay $47,476 a year to employees if the employer wants to classify the employee as exempt from overtime. That’s a dramatic increase from the current $23,660. Employers are now clamoring for a return to the previous regulations. On November 22, a federal district judge in the Eastern District of Texas issued a nationwide injunction preventing the rules from taking effect on December 1. And finally, a federal district court recently adopted the Equal Employment Opportunity Commission’s position that discrimination based on sexual orientation violates Title VII. A gay employee was allegedly harassed at work because of his relationship with another man. The commission argued that had the employee been a woman, he would not have been treated thus, making it a Title VII violation.1 And on November 30, the United States Court of Appeals for the 7th Circuit heard en banc oral arguments on sexual orientation discrimination as a possible Title VII violation. Stay tuned to this development. Notes 1) EEOC v. Scott Medical Health Center (W.D. Penn, November 4, 2016). MICHAEL P. MASLANKA is an assistant professor of law at UNT Dallas College of Law and is publishing two books this year, Maslanka’s Field Guide to Texas Employment Law and Learning Employment Law, of which he is a co-author.
Published by State Bar of Texas. View All Articles.
This page can be found at http://mydigimag.rrd.com/article/Labor+and+Employment+Law/2669056/370428/article.html.