“Sleeping on the Job” Bars ADA Lawsuit
Employee’s Own Behavior, Not Disability, Led to Discharge
- Supreme Court. How will Justice Sca- lia’s death impact employers?
- State Round-Up. Learn about the latest state employment law news.
- Traditional Labor. John Merrell and Ruthie Goodboe discuss the new per- suader regulations.
- Best Practices. New California regula- tions on harassment training take effect.
- Harassment. Court rejects lawsuit brought by worker who complained about sexual favoritism.
Offices of Ogletree Deakins
A federal appellate court recently held that an employer did not violate the Amer- icans with Disabilities Act (ADA) when it discharged an employee who had been sleeping at work and falling short of the employer’s performance expectations. The Sixth Circuit Court of Appeals af- firmed a district court’s grant of summary judgment to the employer, ruling that the employee had failed to show that he was disabled or had engaged in “protected ac- tivity” as defined by the ADA, and that his sleeping difficulties had been caused by his own “horrible sleep hygiene,” rather than a medical condition. Neely v. Bench- mark Family Services, No. 15-3350, Sixth Circuit Court of Appeals (January 26, 2016).
David Neely was hired by Benchmark Family Services as a support specialist in
December of 2011. Within two weeks, he was promoted to support administrator.
Prior to joining Benchmark, Neely had sought treatment from family physicians Dr. Shah and Dr. Froelich for sleeping problems. Neither doctor diagnosed Neely with sleep apnea or a related sleeping dis- order, but in 2010, Dr. Froelich referred him to Dr. Burton, a specialist who treats patients with sleeping issues.
Dr. Burton’s “preliminary impressions” (which were not a diagnosis) were that Neely had “poor sleep hygiene, insuffi- cient sleep syndrome, and probable ob- structive sleep apnea.” Dr. Burton rec- ommended various follow-up tests, but Neely did not go through with them, pre- venting, according to the court, “‘prelim- inary impressions’ from maturing into a diagnosis.”
After Neely joined Benchmark, he
Please see “ADA SUIT” on page 6
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Ogletree Deakins’ 2016 Workplace Strategies seminar will be held May 4-7, 2016 at the Chicago Marriott Downtown Magnificent Mile and will feature dy- namic speakers and presentations on a full range of labor and employment law topics. This annual seminar—the premier event of its kind for sophisticated human resources professionals, in-house coun- sel, and other business professionals—will likely sell out soon.
If you haven’t yet made your plans to join us, here are five reasons to make your reservation now: 1) cutting-edge topics, including “ambush” elections, the revised rules for “persuader” activity, pay equity laws, the new proposed overtime rules, and the latest guidance on joint employ- ment status; 2) world-class guest speakers,
including U.S. State Department Presi- dential Deputy Envoy Julia Nesheiwat, Ph.D., ESPN Senior Writer and Legal Analyst Lester Munson, and former Sec- retary of Transportation and U.S. Con- gressman Ray LaHood; 3) “TED”-style talks with engaging speakers who will offer their perspectives on current work- place developments; 4) giving back by joining your colleagues at a special event on Wednesday evening benefiting Kids Off The Block, a local nonprofit dedi- cated to helping at-risk youth; and 5) net- working at our Friday special wrap recep- tion in “Sweet Home Chicago.”
The seminar has a hard cap on atten- dance of 800 guests, so register soon. For
more details, see the enclosed flyer or visit www.ogletreedeakins.com.
Justice Scalia’s Death Could Have Profound Reverberations for Employers
by Harold P. Coxson (Washington, D.C.)
The sudden death of Associate Justice Antonin Scalia of the Supreme Court of the United States, who served on the Court for over 30 years, has touched off a heated political debate over the appointment and consideration of his successor, which will perhaps shift the philosophical balance on the Court. Justice Scalia was the leader of the Court’s “conservative faction” and was admired by his supporters—including his colleagues on the Court, some with whom he frequently disagreed—as a legal scholar, the principal and often tiebreak- ing conservative voice on the Court, and
Joseph L. Beachboard
Stephanie A. Henry
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The articles contained in this pub- lication have been abridged from laws, court decisions, and admin- istrative rulings and should not be construed or relied upon as legal ad- vice. If you have questions concern- ing particular situations and specific legal issues, please contact your Ogle- tree Deakins attorney. This publication may be considered advertising under
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a social friend off the bench.
Beyond the broader political and social issues, Justice Scalia’s death will have an immediate impact for employers on sever- al labor and employment cases currently pending before the Court, as well as on the future of earlier decisions in which his vote would have been a tiebreaker.
Key Labor and Employment Cases
Of immediate concern, for example, is the Court’s decision in Friedrichs v. California Teachers Association (No. 14- 915), which was decided as this issue was going to press. The issue in Friedrichs was the constitutionality of the com- pelled payment of “fair share” union dues for non-member public-sector employ- ees.
The Court’s decision was widely ex- pected to be 5-to-4, with Justice Scalia casting the deciding vote against a re- quirement that non-members who are included as part of a collective bargaining unit pay union dues. With Justice Sca- lia’s death, the result was a 4-to-4 tie, and the decision by the Ninth Circuit Court of Appeals upholding the right of public-sector unions to demand the “fair share” payment of union dues by nonmembers was affirmed. As a result, the tie decision lacks precedential val- ue and merely becomes the law of that circuit. (For a detailed discussion of this case, see page 5 of this issue of The Employment Law Authority.)
An important pending case is Unit- ed States v. Texas (No. 15-674), which challenges President Obama’s deferred action immigration policy. If the death of Justice Scalia results in a 4-to-4 tie vote, the Court will uphold the decision of the Fifth Circuit Court of Appeals
affirming the district court’s prelimi- nary injunction preventing implementa- tion of the president’s executive action granting deferred immigration status to certain undocumented immigrants.
Other pending employment law cases before the Court are:
- CRST Van Expedited, Inc. v. EEOC (No. 14-1375) involves a challenge to the largest fee sanction award—$4.7
million—ever issued against the U.S. Equal Employment Opportunity Com-
mission. The fee award was for the federal agency’s failure to meet its investigato- ry obligations in prosecuting a systemic lawsuit.
- Spokeo, Inc. v. Robins (No. 13-1339) concerns whether individuals can bring class action lawsuits for technical vio- lations of the Fair Credit Reporting Act without actual injury.
- In Green v. Brennan (No. 14-613), the issue is whether the filing period for a constructive discharge claim brought under Title VII of the Civil Rights Act begins to run from the date when the em- ployee resigned or when the employer commits the last alleged discriminatory act leading to resignation.
Class Actions and Mandatory Arbitration Also at Risk
Beyond currently pending cases, Justice Scalia’s death threatens the future viability of the Court’s 5-to-4 majority decisions. Examples of two such deci- sions authored by Justice Scalia include Wal-Mart Stores, Inc. v. Dukes (2011) and Comcast v. Behrend (2013), em- ployer-friendly decisions that dramati- cally changed the rules as to when and how class action lawsuits may proceed.
Another important case is the 5-to-4 decision in AT&T Mobility LLC v. Con- cepcion (2011) in which the Court up- held the right of employers to mandate employment arbitration agreements that provide individual treatment of employ- ment law disputes rather than as class or collective actions.
The next Court—without the presence of Justice Scalia—will likely be called upon to consider or reconsider crucial la- bor and employment law issues. As former Associate Justice Robert H. Jackson once wrote about the Supreme Court: “We are not final because we are infallible, but we are infallible because we are final.” In effect, the Supreme Court is the final “firewall” from actions by the White House, Congress, and regulatory agen- cies. The Court’s ultimate composition, thus, will have a significant and lasting impact on the shape and tenor of many of our nation’s most pivotal issues for years to come.
Ogletree Deakins State Round-Up
On April 4, Governor Jer- ry Brown signed a measure to increase the statewide
minimum wage to $15.00 per hour. The new law will increase the mini- mum wage to $10.50 per hour on Jan- uary 1, 2017, and to $11.00 on January 1, 2018. Thereafter, the minimum wage would increase $1.00 per year for four years.
In a case that will have significant implications for employers, the Connecti-
cut Supreme Court clarified the “ABC Test,” finding that an employer is not required to pay unemployment taxes for workers who contractually install heating and security systems in resi- dences because they are independent
contractors, not employees. Standard Oil of Connecticut, Inc. v. Administra- tor, Unemployment Compensation Act, No. SC 19493 (March 15, 2016).
On April 16, the Flori- da Supreme Court will hear another in a long
line of cases brought by plaintiffs’ lawyers trying to turn the clock back on Florida’s Workers’ Compensation Law. Stahl v. Hialeah Hospital has been making its way through the courts, questioning whether Florida’s workers’ compensation system has been an adequate alternative for in- jured workers since its major overhaul in 2003.
On March 2, Massachu- setts House Speaker Rob- ert A. DeLeo announced
that he supported legislative restrictions on employee noncompetition agree- ments. Speaker DeLeo’s statements, made in a speech to the Greater Boston Chamber of Commerce, may be a turn- ing point in the long-running debate in Massachusetts over whether noncom- petes should be banned or restricted through legislation.
On January 19, Governor Chris Christie signed into law S3129, which requires
the New Jersey Department of Labor and Workforce Development to create and maintain a webpage containing in- formation regarding state and federal family leave rights and benefits. The new law requires that the webpage in- clude information concerning the var- ious New Jersey and federal leave and benefit laws.
On February 16, the New York City Commission on Human Rights issued pro-
posed rules related to the city’s ban the box legislation, the Fair Chance Act. The proposed clarifications and addi- tions include an early resolution option for per se violations of the Act, a prohi- bition on employers’ use of disclosure and authorization forms authorizing background checks before conditional offers of employment are made, and a definition of “business day.”
On March 23, Governor Pat McCrory signed into law House Bill 2, com-
monly known as the Public Facilities Privacy and Security Act. The law ex- pressly clarifies that a wrongful termina- tion claim cannot be based on the state’s Equal Employment Practices Act.
Governor Kate Brown signed a bill to increase Oregon’s minimum wage.
The new law divides the state into three regions. In metropolitan areas, the hour- ly rate will increase to $9.75 on July 1, 2016, and will rise to $14.75 per hour by 2022. In nonurban counties, the hourly rate will increase to $9.50 on July 1, 2016, and will reach $12.50 per hour by 2022. For the rest of the state, on July 1, 2016, the minimum wage will rise to
$9.75 per hour, and it will increase to
$13.50 per hour by 2022.
The Philadelphia Commis- sion on Human Relations has released the poster em-
ployers are required to display under the new amendments to Philadelphia’s “ban the box” law. Effective March 14, 2016, the poster must be displayed “in a conspicuous place on the employer’s website and premises, where applicants and employees will be most likely to notice and read it.”
On March 22, Governor Gary Herbert signed into law the Post-Employment
Restrictions Act (H.B. 251), which lim- its the duration of post-employment noncompete agreements between em- ployers and employees to a maximum of one year from the employee’s date of separation. Under the new law, any such agreement containing a noncom- pete restriction exceeding the Act’s one-year limitation will be deemed void.
On March 9, Governor Peter Shumlin signed into law a measure that will
make Vermont the fifth state to require employers to provide paid sick leave. Vermont’s new sick leave law bears similarities to some other states’ paid sick leave laws, but has its own unique features, including an elective wait- ing period and extended deadlines for small employers and new businesses.
The Spokane City Coun- cil recently overturned the mayor’s veto and passed
Ordinance C-35300, which provides paid sick and safe leave to employees performing more than 240 hours of work in the city of Spokane in a cal- endar year. The ordinance requires employers to provide employees with 1 hour of paid sick and safe leave for every 30 hours worked starting on January 1, 2017.
For more information on these state-specific rulings or developments, visit www.ogletreedeakins.com/our-insights.
The Final Persuader Rule: What Employers Need to Know
by John T. Merrell and Ruthie L. Goodboe*
On March 24, 2016, the U.S. De- partment of Labor (DOL) published new regulations expanding the obligations of employers and lawyers to report cer- tain information to the DOL under the Labor Management Reporting and Dis- closure Act (LMRDA).
Lawyers (or labor relations consul- tants) will now have to report any en- gagement whose object is to directly or indirectly persuade employees concern- ing their rights to organize a union or bargain collectively. This is a change to a long-standing rule that has been in place for nearly 50 years. Until now, neither employers nor lawyers were required to report such engagements, provided that the lawyers communicated only with man- agement. This is what has been known traditionally as the “advice exception” to the reporting rules.
The DOL is now abandoning its long-held bright-line rule. Under this
new interpretation, a lawyer’s services will be reportable activity even if there is no direct contact between the lawyer and employees of the employer, if the object of the services is to directly or indirectly “persuade” employees. While pure legal advice will continue to be ex- empt from the DOL’s reporting require- ments, legal advice that is combined with persuader activity will be report- able under the new interpretation. This fine distinction may swallow the advice exception.
In such a case, both the law firm and the employer will have to file reports with the DOL. Lawyers will be required to file a report with the DOL within 30 days after being engaged by the client to pro- vide “persuader” services. The report is known as the LM-20 Agreement and Activities Report, and it must identify (among other things) the name of the
- John Merrell is a shareholder in the Greenville office of Ogletree Deakins. Ruthie Goodboe is a share- holder in the firm’s Detroit (Metro) and Pittsburgh offices. Both attorneys represent management in labor and employment-related matters.
client, the terms of the engagement, the scope of services to be provided, and the group of employees and union involved (if any). The law firm will also be required to file an annual report at the end of its fiscal year, supplying data on its receipts and disbursements related to providing “labor relations advice or services.”
The employer will also have to file its
own report. The employer’s report must be filed on Form LM-10 within 90 days of the end of the employer’s fiscal year. This report must disclose:
- The date of each reportable ar- rangement and the date and amount of each transaction made pursuant to that arrangement;
- The name, address, and position of the person with whom the agreement or transaction was made; and
- “A full explanation of the circum- stances of all payments made, includ- ing the terms of any agreement or un- derstanding pursuant to which they were made.” This includes attaching a copy of any written agreement between the employer and the persuader.
The LM-10 must be signed by the president and treasurer (or corresponding principal officers) of the employer.
Next Steps for Employers
The new regulations are scheduled to take effect on April 25, 2016, and will apply to arrangements, agreements, and payments made on or after July 1, 2016. On March 31, 2016, Ogletree Deakins filed suit on behalf of the National Fed- eration of Independent Business and other business groups in federal court in Lubbock, Texas, challenging the en- forceability of these new regulations. It is possible that a stay could be enact- ed in one or more of these lawsuits that will delay the implementation of the regulations.
Nonetheless, employers should be
prepared should the regulations take effect as planned. Below are some key pointers that employers should know.
First, the revised persuader rule ap-
plies to virtually all employers and to projects that, on their face, may not ap- pear to be union-related. While pure legal guidance from your attorneys still will not be reportable, “indirect persuasion”
is now reportable and includes such things as providing campaign materials, conducting certain seminars for super- visors, and even developing personnel policies if the purpose is to persuade em- ployees to exercise their Section 7 rights in a particular way.
So, to the extent employers have employee relations type projects in the works, such as handbooks, engagement surveys, websites, campaign readiness materials, or labor relations training, and employers have sought or plan to seek outside assistance that could be consid- ered “persuasion” under the new rules, those projects should be completed (and paid for) before July 1, 2016, so there is clearly no reporting obligation.
If you do not have a reporting mech- anism in place or a system to determine what should be reported, start working on a protocol immediately, including how you will coordinate with outside counsel and other vendors. It is important for various levels of management, not just human resources and legal, to understand
that what once was considered merely hu- man resource advice and counsel could now be reportable persuader activity if obtained from an outside source. Notably, a plan is only as good as its communi- cation and implementation, so be sure to have your plan in place with enough time to train all necessary constituents prior to July 1.
Next, remember it won’t be just the
union watching. Employers will need to determine if and how they will respond to inquiries about the information contained in the reports. Since the reports will be posted on the DOL’s website and become public information, sometimes within just a few weeks, anyone with curiosity and Internet access can learn how much an employer is paying its outside consultants and, to a certain extent, for what reasons those consultants have been retained. Ex- pect and be prepared for questions from employees, shareholders, customers/cli- ents, and community groups as well as unions.
Finally, be informed. Stay up to date with all that’s going on relative to the revised rule, including legal challenges, potential guidance, interpretation, and compliance issues.
Supreme Court Issues Long-Awaited Decision on Public Union Fees
Justices Hold Agency Shop Arrangements Are Still Valid But Provide No Further Guidance
On March 29, 2016, the Supreme Court of the United States issued a per curiam opinion in a case on the validity of pub- lic-sector “agency shop” arrangements, which permit unions to charge a fee (in order to pay for select costs) to public em- ployees who do not join a union. During oral argument, the Court had seemed like- ly to invalidate the fee and overrule the Court’s primary precedent. However, the recent death of Associate Justice Antonin Scalia, having shifted the Court’s con- servative-liberal balance, likely changed the outcome of this case. An equally di- vided Court affirmed the decision of the Ninth Circuit Court of Appeals upholding the agency fee on the basis of decades- old Supreme Court precedent. Friedrichs
- California Teachers Association, No. 14-915 (March 29, 2016).
“Agency Shop” Arrangements
Under an agency shop arrangement, all workers in a unit covered by a union contract must pay union fees, regardless of whether they belong to the union. Accord- ing to Supreme Court precedent, unions may require public-sector workers to pay an amount to support union activities re- lated to collective bargaining—but not for
union political activity (to which some workers would presumably object).
In 1977, in Abood v. Detroit Education Association, the Supreme Court extended this rule to the public-sector workforce. The Court ruled that unions may im- pose these fees on nonunion government workers for the following nonpolitical expenses: collective bargaining; admin- istration of union contracts; and internal grievance procedures. The Abood Court acknowledged that public-sector unions engage in political activity but ruled that non-union public workers are not required to pay those costs.
The Friedrichs Case
A group of California public school teachers filed suit challenging the agency fee that their union required them to pay. In short, the teachers argued that all of a public-sector union’s activities attempt to influence government policy making, and thus that nonmembers of the union should not be required to pay any union fees if they do not support those political activities. The teachers also expressly challenged the holding in Abood. The Ninth Circuit affirmed a trial court deci- sion upholding the agency fee as required
The case eventually reached the Su- preme Court, which agreed to hear it to decide two issues:
- Whether Abood should be overruled and public-sector “agency shop” arrange- ments invalidated under the First Amend- ment to the U.S. Constitution; and
- Whether requiring public employ- ees to affirmatively object to subsidizing nonchargeable speech by public-sector unions—rather than requiring that em- ployees affirmatively consent to subsi- dizing such speech—violates the First Amendment.
The Supreme Court’s Decision
At oral argument in January of 2016, the line of questioning—and especially the liberal justices’ focus on the doctrine of stare decisis, dictating that Abood be upheld—seemed to indicate that the jus- tices would rule, 5-to-4, against agency fees. Instead, with Justice Scalia’s pass- ing, the justices split, 4-to-4, and issued a one-sentence decision: “The judgment is affirmed by an equally divided Court.” By affirming the Ninth Circuit’s decision, which followed Abood, the Supreme Court leaves the current agency shop system for public employees in place.
DOL Delivers Final Overtime Regulation Revisions to OIRA Ahead of Schedule
The U.S. Department of Labor’s (DOL) Wage and Hour Division recently delivered its proposed final revisions to the Fair Labor Standards Act’s (FLSA) Part 541 overtime regulations to the Office of Information and Regulatory Affairs (OIRA) of the Office of Management and Budget. OIRA review of this proposed final rule is required under Executive Order 12866 since the Department’s proposal is “economically significant” in that its annual impact on the economy would be
$100 million or more. OIRA review generally takes 30 days, but that time can be extended.
Based on the DOL’s regulatory proposal, the final regulations likely will more than double the minimum salary requirement that is needed to qualify for the executive, administrative, and professional exemptions to the FLSA’s overtime and minimum wage requirements. Annual indexing of the salary threshold also is anticipated. The larger unknown question is whether the DOL will modify the duties test, given that the department asked several questions about the adequacy of the current duties test and its position that many exempt employees perform too much nonexempt work.
Previously, the DOL had stated that its final revisions to these regulations would be published in July of this year. However, the delivery of the proposed final revisions to OIRA now means that publication could occur sooner, possibly in April or May of 2016. The final regulations will have an effective date of at least 60 days after publication.
The Supreme Court’s decision did not set any precedent on the constitutionality of agency shop arrangements and did not foreclose the possibility of similar cases reaching the Court in the future—when a full bench will likely make all the difference.
According to Harold P. Coxson, a
shareholder in the Washington, D.C. office of Ogletree Deakins, “This is one of the first decisions to be altered by the death of Justice Scalia and the resulting vacan- cy on the Supreme Court. It will not be the last. The Court had the option of setting the case for re-argument when a new justice is confirmed, but chose not to wait. For public-sector employees, the decision means continued payment of union dues, often against their will, for causes they may not support. Unfortunate- ly, the one-page decision affirming the Ninth Circuit provides no guidance for public-sector employers.”
New to the Firm
Ogletree Deakins is proud to announce the attorneys who recently have joined the firm. They include: Anja Becher and Sas- kia Hildebrand (Berlin); Rebecca Bryant (Chicago); Jim Berchtold (Las Vegas); Hector G. Sada Miramontes and Stefano San- doval Malori (Mexico City); Natalie Wyatt-Brown (Minneapolis); Christopher Archibald (Orange County); Adam Boyd and
D. Trey Lynn (Phoenix); Dan Webb Howard and Amy Knapp (Portland); and Brian Berry and Shivani Nanda (San Francisco).
continued from page 1
continued having sleep problems, which he apparently attempted to treat “by taking undisclosed supplements” and “drinking lots of coffee daily.” Following his pro- motion to support administrator, Neely began to have trouble performing his job. Benchmark also complained that Neely was underperforming in his assigned tasks, playing on his phone and doing non-work activities, and “almost daily falling asleep at work.”
Neely told his supervisors that he had a “sleeping disorder which caused [him] to suffer fatigue and experience micro sleeps,” and explained that he was trying to treat his sleeping problems himself. Over the next several months, Neely’s supervisors discussed his performance and sleeping issues with him numerous times, but “Neely never sought medical treatment for his sleep problems during his entire employment with Benchmark” or requested an accommodation.
On May 25, 2012, Benchmark ver- bally reprimanded Neely, citing various shortcomings in his work performance, including his continual sleeping during the “workday, trainings, and meetings.” The reprimand also informed Neely that he was being demoted to his former sup- port specialist position.
On June 1, 2012, Benchmark terminat- ed Neely’s employment. Neely later filed a suit, asserting state and federal claims of disability discrimination and retalia- tion, and state law claims for wrongful discharge and intentional infliction of emotional distress. The district court con- cluded that Neely was not disabled within the meaning of the ADA and had failed to establish a case for retaliation. As a re- sult, the court granted Benchmark’s mo- tion for summary judgment and dismissed the case. Neely appealed this decision to the Sixth Circuit Court of Appeals.
Under the ADA, a plaintiff must show that he or she is disabled and that the impairment “substantially limits one or
more major life activities.”
In this case, Neely was unable to pro- duce evidence to support his contentions related to either of the statute’s basic re- quirements. First, Neely was unable to show that he suffered from a physical or mental impairment that had caused his sleeping problems. Neely claimed to have been suffering from the effects of ob- structive sleep apnea, but never obtained a formal medical diagnosis or pursued medical treatment to directly address the issue. Although Dr. Burton had noted his “initial impressions” and speculated that Neely was experiencing “probable sleep apnea,” he did not make a formal diagnosis based on tests.
Because Neely had not sought testing and treatment for his sleeping issues, the court wrote, Neely’s showing was insufficient to support a finding that he had suffered from a “mental or physical impairment.”
Second, Neely failed to show that his sleep problems substantially limited a major life activity. In his case before the district court, Neely had never asserted which major life activity had been limited by his sleep problems. Furthermore, as the court of appeals observed, the Sixth Circuit has consistently held that “sleep- ing problems like Neely’s—‘getting only 2 to 3 hours of restful sleep per night, falling into micro sleeps during the day
. . . snoring, and extreme difficulty breath- ing while sleeping,’—fail to constitute a substantial limitation on a major life activity.”
Finally, the Sixth Circuit held that Neely’s self-described sleep problems, absent “corroborating medical evidence or any diagnosis,” were insufficient to constitute a substantial limitation under the ADA Amendments Act of 2008.
Neely also claimed that he was dis- abled under a third prong of the ADA— that he was “regarded as having  an impairment” by his employer. The court noted that the 2008 amendments “liber- alized the standard, redefining ‘regarded as having an impairment’ only to require
that a defendant took a prohibited action based on a perceived impairment, regard- less of whether the employer thought the impairment was substantially limiting.” The court, however, emphasized that it is not enough that an employer is aware of a plaintiff’s symptoms; rather, the court wrote, “the plaintiff must show that the employer regarded the individual as ‘im- paired’ within the meaning of the ADA.” The Sixth Circuit found that Neely’s proffered evidence painted an inconsis- tent picture of his alleged disability. The report of Dr. Burton, which Neely had submitted as evidence of his disability, also stated that Neely was “often  sleepy during the day but it does not interfere with his work.” Neely’s complaint before the district court acknowledged that his “sleeping disorder did not prevent him from doing his job in a competent, pro- fessional manner.” The court also found that Neely had inconsistently argued that Benchmark had been dismissive of his alleged disability, yet had also “regarded
him as disabled.”
The Sixth Circuit wrote, “The facts construed in a light most favorable to Neely—that Benchmark suggested he take supplements ‘so [his sleeping prob- lems are] not an issue,’ telling Neely to ‘hurry up’ with his self-medication for his sleep problems, and a supervisor ‘rolling [his] eyes when Mr. Neely tried to explain his sleep disorder,’—indicate that Benchmark was aware of Neely’s self-described sleep problems, but do not suggest that Benchmark regarded him as physiologically ‘impaired’ within the meaning of the ADA.”
The court also upheld the dismissal of Neely’s disability-related retaliation claim, finding that Neely’s mere com- plaint about the “unfairness” of using his “sleeping disorder against him,” in the absence of a failure to request an accom- modation or file a formal charge against his supervisor, was insufficient to estab- lish that he had engaged in statutorily protected activity.
Please see “ADA SUIT” on page 7
The New California Regulations: Harassment and Abusive Conduct Training
by Patti C. Perez (San Diego) and Andrea L. Fellion (San Francisco)
The California Office of Administra- tive Law recently approved regulations drafted by the California Fair Employ- ment and Housing Council. These new regulations, covering the entire gamut of employment law topics within the Fair Employment and Housing Act (FEHA), went into effect on April 1, 2016.
One of these new regulations con- cerns an employer’s obligation to train its staff to avoid conduct prohibited by FEHA. This regulation and its re- quirements are discussed in detail below.
Additional Training Requirements
Employers with 50 or more employ- ees are obligated to provide two hours of sexual harassment training to their su- pervisory staff every two years. The goal of this training is to change or modify behavior that contributes to sexual ha- rassment, assist supervisors in preventing and responding to sexual harassment, and implement mechanisms to promptly ad- dress and correct wrongful behavior.
The training must define unlawful
sexual harassment as well as discuss the conduct that constitutes sexual harass- ment, remedies for sexual harassment, and strategies to prevent sexual harass- ment in the workplace. While this train-
continued from page 6
ing was always intended to be interactive, the new regulations include guidance to meet this requirement, such as using pre- or post-training quizzes, small group dis- cussions, or hypothetical fact scenarios.
Abusive Conduct and the Obligation to Report
While previous regulations only ad- dressed sexual harassment training, re- cent changes have expanded these re- quirements. As of 2015, employers are now required to train supervisors on “abusive” conduct, which FEHA defines as malicious workplace conduct that a “reasonable person would find hostile, offensive, and unrelated to the employ- er’s legitimate business interests.” The most recent amendments to the regula- tions also require employers to inform supervisors that they are obligated to re- port any harassment, discrimination, and retaliation of which they become aware.
Expanded Recordkeeping Requirements
Before the new regulations, employ- ers were required to maintain copies of certain materials in order to track compli- ance with this training requirement. For all trainings, employers were previously required to maintain a list of the names
of all trainees, the date of each training, the type of training, and the name of the training provider.
The new regulations require employers to keep even more training documentation for a specified period. Now, employers are required to keep sign-in sheets and certificates of attendance or completion. Employers that use computer-based train- ing must maintain copies of all questions submitted by employees in writing, as well as the responses.
Employers that train employees via webinars must maintain a copy of the webinar, all written materials used by the trainer, and all written questions that em- ployees submit during the webinar. Em- ployers must also document all written responses or guidance trainers provide during the webinar.
Employers must now keep all of this documentation for a period of two years.
California employers have been pro- viding mandatory sexual harassment training for 10 years, but the new regu- lations impose additional requirements that companies should fully understand. To ensure your training is compliant, de- sign and execute your program with the following in mind:
- Train supervisors to prevent wrong-
ful conduct. The new regulations require employers to cover mandatory substantive topics, including sexual harassment and
For all of these reasons, the Sixth Circuit affirmed the district court’s dis- missal of Neely’s claims under the ADA.
According to Natalie Stevens, a shareholder in the Cleveland office of Ogle- tree Deakins, “This decision illustrates that despite the relaxed standards of the ADA Amendments Act, an employee is still required to establish that he or she has a physical or mental impairment that substantially limits one or more major life activities, that there is a record of such an impairment, or that he or she is re- garded as having such an impairment by the employer to establish a viable claim of disability discrimination. Self-described symptoms, without any corroborat- ing medical evidence or diagnosis, are not enough. Where an employee, who has provided no evidence that he or she is disabled and has not requested an accom- modation, fails to meet the legitimate expectations for his or her position, he or she should be counseled and/or disciplined consistent with company policy. Although the employee in this instance did not request an accommodation, em- ployers should train their managers to recognize when an employee may be re- questing an accommodation to ensure that it is conveyed to the appropriate contact within the organization for evaluation.”
abusive conduct, but proactive employ- ers should take the opportunity to address ways to prevent and correct other types of wrongful workplace behavior.
- Interact with the audience. Keep in mind the specific issues that your employ- ees face and customize the training for your specific work environment.
- Keep required records. Make sure
not only to track attendance and com- pliance, but also to keep copies of the training materials, written questions, and responses.
The authors have also covered other key aspects of the regulations, including preventing and correcting wrongful be- havior and guidance related to transgender employees. For more, visit www.ogle- treedeakins.com/our-insights under the “State Developments” category.
Corporate Harem Does Not Give Rise to Hostile Work Environment Claim
Courts Finds Sexual Favors Being the “Common Currency” Had No Effect on Terms and Conditions of Employment
A federal appellate court recently af- firmed summary judgment on a lawsuit brought by an employee who claimed that she was subjected to a hostile work environment. The Fifth Circuit Court of Appeals held that allegations of a sex- ually-charged work environment—with- out an assertion that such an environ- ment negatively impacted the terms, con- ditions, or provisions of her employment
—was not sufficient to proceed with a hostile work environment claim under Title VII of the Civil Rights Act. Smith
v. Touro Infirmary, No. 15-30851, Fifth Circuit Court of Appeals (March 18, 2016).
Amy Smith was employed as a re- spiratory therapist by Touro Infirmary in New Orleans, Louisiana. Larry Anderson was Smith’s direct supervisor.
Smith alleged that, throughout her employment with Touro, Anderson sex- ually harassed her and created a sex- ually-charged work environment in which sexual favors were the “common currency.” According to Smith, Ander- son favored female respiratory thera- pists who participated in his “sexually driven workplace economy” over those who were not part of his “harem.” For example, Anderson allegedly allowed women who condoned his actions to show up late to work.
Both male and female coworkers re- portedly complained about Anderson’s favoritism. Smith claimed, however, that only the women who complained were
subjected to heightened scrutiny, degrad- ing comments, and public humiliation. On one occasion, Anderson allegedly disciplined Smith for being late and displayed the disciplinary documenta- tion in a public area for all employees to see. He also used a chauvinistic tone and vulgar language with her, according to Smith.
On May 21, 2014, Smith took leave under the Family and Medical Leave Act (FMLA). She returned to work on June 25, but went on leave again one month later.
On August 25, 2014, Smith contact- ed Touro to update documentation in support of her need for FMLA leave. On September 22, 2014, Touro terminated Smith’s employment. While it is disput- ed how much protected leave remained as of August 25 when Smith contacted Touro, the court later determined that Smith was not discharged while on FMLA leave.
Smith sued her former employer, al- leging that she was subjected to a hos- tile work environment in violation of Title VII (among other claims). The trial judge dismissed the case on sum- mary judgment and Smith appealed this decision to the Fifth Circuit Court of Appeals, which affirmed.
To make a prima facie claim for hos- tile work environment under Title VII, an employee must show that (1) he or she belongs to a protected class; (2) he or she was subjected to unwelcome sex-
ual harassment; (3) the harassment was based on sex; and (4) the harassment af- fected a term, condition, or privilege of employment.
Even assuming that Smith could satis- fy the other elements of her prima facie case, the Fifth Circuit held that she could not demonstrate that the harassment af- fected a term, condition, or privilege of her employment. During her six years of employment, Smith’s work schedule re- mained consistent, she was granted every overtime request, she worked as “thera- pist-in-charge,” and she was not denied any promotions or raises. Thus, even if a hostile work environment existed, the court held, it was not the type that al- tered a term, condition, or privilege of her employment.
As a result, the Fifth Circuit upheld
the lower court’s decision to grant sum- mary judgment in favor of Touro on Smith’s hostile work environment claim.
According to Drew Burnside, a share- holder in the firm’s New Orleans office, “The employer in this case dodged a bul- let. To successfully make a claim of an unlawful hostile environment based on sex under Title VII, an employee has to offer evidence that he or she was affected by the alleged harassment. In this case, the employee alleged that she was sub- jected to a workplace highly charged with sexual activity and sexual favoritism driv- en by a rogue supervisor who treated her differently as a nonparticipant. According to Smith, the supervisor belittled her be- cause she did not participate in his ‘harem’
Ogletree Deakins, Attorneys Earn Accolades
Ogletree Deakins’ Employment Law Practice Group has been named a 2015 Practice Group of the Year by the prominent legal news publication Law360. The publication selected groups “that came through for clients by sealing the biggest deals and securing wins in high-stakes litigation.” This is the third consecutive year that the firm’s Employment Law Practice Group has been named a Practice Group of the Year.
The firm is also pleased to announce that shareholders Charles T. Speth II,
Gregg M. Lemley, and William L. Duda have been named to the BTI Client Service All-Stars 2016 list. The BTI Client Service All-Stars is a listing—devel- oped solely through client feedback—of lawyers delivering the highest levels of client service. Those named to the BTI Client Service All-Stars list have earned recognition from leading general counsel and legal decision-makers for client service.
of coworkers who engaged in sexual ac- tivity with him.”
Burnside continued, “Here, the plain- tiff defeated her own case by testifying that her job and performance were un-
affected by the hostile environment she asserted: she got the overtime she wanted, her schedule was unaffected, and she was not denied pay raises or promotions. To the Fifth Circuit, what mattered was that Smith’s job was objectively unaffected by the supervisor’s behavior and that the degrading comments and humiliation inflicted by the supervisor did not alter the terms, conditions, or privileges of her employment.”