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States' best practices regarding individuals with disabilities
October 31, 2005 by Ross Runkel at LawMemo
The EEOC has issued a report detailing what it considers best practices that promote the hiring, retention, and advancement of individuals with disabilities in state government jobs. The focus is on nine states: Florida, Maryland, Vermont, Washington, Kansas, Missouri, New Hampshire, New Mexico, and Utah.
Final Report on Best Practices For the Employment of People with Disabilities In State Government
A goldmine of useful information and ideas.
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Why does the EEOC sue?
October 30, 2005 by Ross Runkel at LawMemo
The EEOC has released its Annual Report for Fiscal Year 2004, and it is full of all sorts of statistics.
One set of statistics that caught my eye showed what kind of issues were involved in cases in which the EEOC brought law suits. Of course, the EEOC does a lot more than bring suits, but the numbers are interesting:
| Basis for suit | Percent |
|---|---|
| Sex | 52.4% |
| Retaliation | 37.9% |
| Race | 15.3% |
| Disability | 11.8% |
| Age | 11.8% |
| National Origin | 9.7% |
| Religion | 4.2% |
| Equal Pay | 1.3% |
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Solomon amendment case briefs
October 30, 2005 by Ross Runkel at LawMemo
Rumsfeld v. Forum For Academic and Institutional Rights is the Solomon Amendment case which will be argued in the US Supreme Court on December 6.
- The government has filed its Reply Brief for the Petitioners.
- We also have a collection of other briefs.
Here is the official "QUESTION PRESENTED"
The Solomon Amendment, 10 U.S.C. 983(b)(1), as amended by the Ronald W. Reagan National Defense Authorization Act for Fiscal Year 2005, Pub. L. No. 108-375, Div. A., Tit. V, Subtit. F, § 552(a) to (d), 118 Stat. 1911, withholds specified federal funds from institutions of higher education that deny military recruiters the same access to campuses and students that they provide to other employers. The question presented is whether the court of appeals erred in holding that the Solomon Amendment likely violates the First Amendment to the Constitution and in directing a preliminary injunction to be issued against its enforcement.
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EEOC discusses blindness and visual impairments
October 26, 2005 by Ross Runkel at LawMemo
Application of the Americans with Disabilities Act (ADA) to persons who are blind or have visual impairments is the subject of a new EEOC publication: Questions and Answers About Blindness and Vision Impairments in the Workplace and the Americans with Disabilities Act.
This document covers:
- when a vision impairment is a disability under the ADA;
- under what circumstances an employer may ask an applicant or employee questions about a vision impairment;
- what types of reasonable accommodations employees with visual disabilities may need;
- how an employer can prevent harassment of employees with visual disabilities or any other disability.
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Supreme Court transcripts
October 26, 2005 by Ross Runkel at LawMemo
Transcripts of US Supreme Court oral arguments are available for the following two employment cases:
- IBP, Inc. v. Alvarez and Tum v. Barber Foods transcript. Argued 10/03/2005. Issue: Is time spent walking to the worksite after donning protective clothing compensable under the FLSA and Portal-to-Portal Act? IBP, Inc. v. Alvarez and Tum v. Barber Foods briefs.
- Garcetti v. Ceballos transcript. Argued 10/12/2005. Issue: Does the 1st amendment protect a deputy district attorney who wrote a memo to his supervisor alleging that a deputy sheriff lied on a search warrant application? Garcetti v. Ceballos briefs.
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Cooperate with the EEOC or lose your case
October 21, 2005 by Ross Runkel at LawMemo
If you file a charge with the EEOC, and then fail to cooperate with the EEOC investigation, expect to lose your case when you go to court.
Davis Shikles, claiming his employer violated the Age Discrimination in Employment Act (ADEA), filed a charge with the EEOC.
Over the course of the next three months, Shikles and his attorney cancelled three scheduled telephone interviews with the EEOC investigator assigned to his case, failed repeatedly to return the investigator's telephone calls, and failed to submit information requested by the investigator. As a result, Shikles never provided the investigator with any information on his claim of discrimination beyond that contained in his initial EEOC charge.
The 10th Circuit concluded that Shikles had a duty to cooperate with the EEOC investigation, that failure to do so was a failure to exhaust administrative remedies, and the court lacked jurisdiction to hear his case.
- even though the statute does not require a claimant to cooperate
- even though the EEOC filed a brief saying such cooperation was not required
Shikles v. Sprint/United Management Co (10th Cir 10/20/2005).
My view: It all makes sense, of course. However, I dislike court decisions that have no statutory foundation.
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Associating with disabled individuals
October 19, 2005 by Ross Runkel at LawMemo
A lesser-known provision of the Americans with Disabilities Act (ADA) is the one that forbids discrimination based on one's association with or relationship to a an individual with a disability.
The EEOC has published Questions and Answers About the Association Provision of the Americans with Disabilities Act.
Examples of unlawful discrimination:
- refusing to hire someone because of an unfounded fear that the individual will be excessively absent or unproductive because of the need to care for a child with a disability.
- firing or refusing to hire someone based on concerns that the individual will acquire a condition from a family member or other individual with whom he has a relationship.
- refusing to provide health insurance for an employee's family member with a disability when the employer generally provides health insurance for employee dependents.
- harassing someone based on the individual's association with a person with a disability.
- providing lesser benefits to someone who has a relationship or association with an individual with a disability than it provides to all other employees.
- firing, refusing to hire, or denying any benefit or privilege of employment to someone because of concern that the employer's image will be negatively affected by an applicant's or employee's association with individuals with disabilities - for example, discriminating against an employee who provides volunteer services for people with HIV/AIDS or psychiatric disabilities is prohibited.
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NLRB still has only three Members
October 14, 2005 by Ross Runkel at LawMemo
I'm unhappy with the President and the Senate for not appointing and confirming a full five-Member NLRB.
The public deserves better. So do employers, employees, and labor unions.
- It is not difficult to find highly qualified and easily confirmable people.
- Republicans should be outraged.
- Employers should be outraged.
- Unions should be delighted.
- The general public should be, at the very least, disappointed.
Perhaps I should be quiet. After all, limping along with only three Members, the Board has decided about the same number of cases as it did with five. See NLRB Reports on Case Production in FY 2005. But all that means is that they have churned out decisions. The bulk were routine, and not difficult.
Meanwhile, two things:
- No important cases will get decided with a three-Member Board. They will put these cases on hold. The backlog might not grow in numbers, but it will be larger in importance.
- No important change in policy will happen with a three-Member Board. (See NLRB Reversals During the Bush Administration.) There is an unwritten rule that it takes three votes to change policy. We have two Republicans and one Democrat, and it will take three Republicans to get any big changes.
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EEOC "Freedom to Compete" award
October 12, 2005 by Ross Runkel at LawMemo
The EEOC seeks to honor "Best Practices that Promote Fair and Open Competition in the Workplace."
An EEOC press release says "every individual deserves the opportunity to compete and advance on a level playing field as far as his/her talent and ability allows without regard to discriminatory barriers." Sounds good to me.
EEOC Chair Cari M. Dominguez says the award "is about showcasing, recognizing, and rewarding a specific practice that produces results; a practice that sets an example and reflects abiding commitment to access and inclusion in the workplace."
Details on the EEOC web site.
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Internal whistleblowing and the first amendment
October 12, 2005 by Ross Runkel at LawMemo
What 1st amendment protection - if any - surrounds a public employee who "blows the whistle" internally as part of that employee's duties?
That's my statement of the issue in Garcetti v. Ceballos, argued today in the US Supreme Court.
Ceballos sued his employer (the County) and his supervisors claiming they retaliated against him in violation of the 1st amendment. Ceballos wrote a memorandum to his supervisor in which he claimed that a deputy sheriff had lied in an application for a search warrant. Ceballos claimed that he was demoted in retaliation for this. The trial court granted summary judgment for the individual defendants on the ground of qualified immunity. The 9th Circuit reversed, saying "the law was clearly established that Ceballos' speech addressed a matter of public concern and that his interest in the speech outweighed the public employer's interest in avoiding inefficiency and disruption."
The real question is whether Ceballos was speaking "as a citizen," within the meaning of Connick v. Myers, 461 US 138 (1982). The employer argued that public employees are not protected by the 1st amendment when their speech is uttered in the course of carrying out their employment obligations.
My view: The 9th Circuit was wrong. Either Ceballos gets no 1st amendment protection at all, or he gets so little that the employer wins in the "balancing" process. Otherwise the courts will become the supervisors of all manner of things employees say to their supervisors. Speaking out to the public is one thing. What an employee says to the supervisor warrants little or no constitutional protection.
According to SCOTUSblog's report on today's oral arguments, there is an easy majority in support of the public employer.
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Supreme Court arguments in FLSA case
October 04, 2005 by Ross Runkel at LawMemo
I'm a daily reader of SCOTUSblog which keeps tabs on everything happening at the US Supreme Court. For a nice report on the oral arguments dealing with the interplay between the Fair Labor Standards Act (FLSA) and the Portal-to-Portal Act, see Yesterday's Oral Arguments in IBP v. Alvarez and Tum v. Barber Foods.
According to the writer (not unbiased, as she helped write the employees' brief), "The Supreme Court seemed to regard precedent as requiring the compensation of meat-processing workers for time spent ... waiting in line and walking between equipment stations in order to retrieve and return required sanitary and safety gear."
I still think the case is too close to call.
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Editor: Ross Runkel, Professor of Law Emeritus. email Ross@LawMemo.Com, Phone 503-399-8028. Copyright LawMemo, Inc.
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