University of Texas v. Nassar

A Message from Patrick Reilly

On Monday, June 24, 2013, the United States Supreme Court, in the case of University of Texas v. Nassar, made it more difficult for employees claiming retaliation in the workplace to prove their damages.  Title VII of the Civil Rights Act of 1964 prohibits wrongful discrimination in the Nation’s workplaces and in all sectors of economic endeavor. There are two categories of wrongful employer conduct prohibited by Title VII. Status-based discrimination refers to basic workplace protection such as prohibitions against employer discrimination on the basis of race, color, religion, sex, or national origin, in hiring, firing, salary structure, promotion and the like. The second type of conduct is employer retaliation on account of an employee’s having opposed, complained of, or sought remedies for, unlawful workplace discrimination.

For status- based discrimination, in order to prove a claim, it is sufficient to show that the motive to discriminate was one of the employer’s motives, even if the employer also had other, lawful motives that were causative in the employer’s decision. Prior to the University of Texas decision, some courts applied the same standard to retaliation claims, but that will no longer be.

It is now clear that in order to establish a Title VII retaliation claim, the traditional principles of but-for causation, not Title VII’s lessened causation test applicable to status-based discrimination apply.  This requires proof that the unlawful retaliation would not have occurred in the absence of the alleged wrongful action or actions of the employer.  The Americans with Disabilities Act (ADA) is not affected by this decision, as it specifically provides that all claims, including claims of retaliation related to an (ADA) complaint, need only prove that the motive to discriminate was one of the employee’s motives.

The majority of the Supreme Court Justices were swayed by the number of retaliation claims filed in comparison to status-based discrimination claims, causing a strain on the judicial and litigation systems. The number of retaliation claims has nearly doubled in the last 15 years, and more retaliation claims are filed than all status-based claims of discrimination other than race. It is now up to Congress, if it deems appropriate, to amend Title VII to address this causation issue.

A Conversations With Sherry Blackman: PRX.org

I recently was featured on Public Radio Exchange PRX.org with host Guy Rathbun as part of his IdeaSphere: A Platform for Today’s Voices series to talk in-depth about Call To Witness. You can listen to the full audio stream interview here→

Pocono Record: East Stroudsburg woman fights for workplace rights

Stacy M. Brown of the Pocono Record featured Jane Gagliardo’s fight for workplace rights, which is the basis for Call To Witnessin a wonderful news article that has been posted on the paper’s Website. You can read the article here→ Many thanks to Stacy and the Pocono Record for this news article.

The Americans with Disabilities Act (ADA)

A Message from Patrick Reilly

The Americans with Disabilities Act (ADA) was enacted in 1990 to prohibit discrimination against a qualified individual on the basis of disability, and it applies to employers having 15 or more employees. It also requires an employer to make reasonable accommodations to the known physical or mental limitations of an otherwise qualified applicant or employee with a disability, unless the employer can demonstrate that the accommodations would impose an undue hardship on the operation of the business. There are many intricacies to the ADA which cannot be covered in this blog. However, a few definitions are appropriate.

A disability is defined as  a physical or mental impairment that substantially limits one or more major life activities, or a record of such impairment, or being regarded as having such an impairment. The regulations implementing the ADA do not provide a per se list of impairments, although they do provide specific exclusions for personality traits, economic, cultural or environmental traits or stress and certain conditions and practices. The regulations do identify certain conditions that by their very nature will, in virtually all cases, result in a determination of disability under the ADA because they pose substantial limitations in a major life activity. They include, without limitation, multiple sclerosis, diabetes, cerebral palsy and others.

Major life activities include such things as caring for oneself, walking, hearing, learning, seeing, breathing and concentrating, the latter being established in Jane Gagliardo’s case. Whether or not working is a major life activity is determined on a case by case basis, but typically requires a limitation on the ability to perform a class of jobs or broad range of jobs in various classes.

Employees or applicants for a position should make their employer/prospective employer aware of any impairments they believe might affect their ability to perform an essential function of their job. This is particularly so if there is a reasonable accommodation that would enable the employee to perform that task. Likewise, employers should endeavor to determine the extent of any possible impairment, and engage in a meaningful determination of whether or not there is a reasonable accommodation which can be granted without undue hardship. Because of the intricacies of the ADA, and the regulations, it is always a good idea for both the employer and employee to discuss any questions or issues regarding an impaired employee with the Human Relations expert or an attorney.