I. COMMON EPL CLAIMS AGAINST EMPLOYERSDocument Transcript
A SUMMARY OF COMMON EPL CLAIMS,
RECENT DEVELOPMENTS AND SOME INTERESTING STATISTICS
Mark Diana, Esq.
Stanton, Hughes, Diana,
Cerra, Mariani & Margello, P.C.
10 Madison Avenue, Suite 402
Morristown, New Jersey 07960
973 656 1600
I. COMMON EPL CLAIMS AGAINST EMPLOYERS
A. Discrimination Claims
1. Various federal laws (Title VII of the 1964 Civil Rights Act, the Age
Discrimination in Employment Act of 1967, the Americans with Disabilities
Act of 1990, the Uniformed Services Employment and Reemployment Rights
Act of 1994, the Immigration Reform and Control Act) prohibit
discrimination against employees on a variety of bases:
• sex (including sexual harassment)
• national origin
• age (over 40)
• veteran status
2. All states have passed anti-discrimination laws that prohibit discrimination
against employees on a variety on bases. For example, the New Jersey
Law Against Discrimination (NJLAD) prohibits discrimination on the
• national origin
• marital status
• affectional or sexual orientation
• genetic information
• sex (including sexual harassment)
• atypical hereditary cellular or blood trait
• liability for service in the Armed Forces
• refusal to submit to a genetic test
B. Retaliation Claims
1. State and federal anti-discrimination statutes also contain anti-retaliation
provisions that prohibit retaliation against any employee who:
• makes an internal complaint about prohibited discrimination or
otherwise opposes prohibited discrimination; or
• files a complaint, testifies or assists in any proceeding alleging
2. Many states have passed “whistleblower” statutes that generally prohibit
retaliation against employees who disclose illegal employer activities. For
example, the New Jersey Conscientious Employee Protection Act (CEPA)
prohibits retaliation against an employee who:
• discloses or threatens to disclose an activity of the employer that the
employee reasonably believes is in violation of a law (or, in the case of
an employee who is a licensed or certified health care professional,
reasonably believes constitutes improper quality patient care); or
• provides information to or testifies before any public body conducting
an investigation into any violation of law; or
• objects to or refuses to participate in any activity that the employee
reasonably believes is in violation of a law, or is fraudulent or
criminal, or is incompatible with a clear mandate of public policy
concerning the public health, safety or welfare or protection of the
3. Most states have also recognized a common-law cause of action for
“wrongful discharge in violation of public policy.” For example, in New
Jersey, an employer may not discharge or otherwise retaliate against an
employee because the employee has:
• exercised certain statutory rights, such as the right to seek workers’
compensation benefits; or
• fulfilled his/her statutory obligations, such as serving on jury duty; or
• complained about or refused to participate in conduct violative of a
clear mandate of public policy, such as illegal conduct by an employer.
4. Various federal statutes prohibit retaliation against employees who engage
in certain activities, such as:
• engaging in “concerted activity” under the National Labor Relations
• making safety complaints under the Occupational Health and Safety
• seeking vested employee benefits under the Employee Retirement
Income Security Act.
C. Breach of Contract Claims
1. Employee handbooks can constitute enforceable contracts if they contain
implied promises to employees, such as an implied promise of:
• termination only for cause; or
• termination only after progressive discipline; or
• benefit payments, such as severance pay.
2. Unwritten practices of the employer can constitute enforceable contracts if
the practice is well known and understood by employees, such as a
• termination only for cause; or
• termination only after progressive discipline; or
• benefit payments, such as severance pay.
3. Individual negotiated employment agreements may give rise to many
different claims, according to the particular promises made in the contract.
4. Employees may also allege the breach of an “implied covenant of good
faith and fair dealing.” These claims are typically asserted when the
employer has not breached the actual terms of an agreement, but has
allegedly acted in bad faith in the permitted exercise of discretion under
the agreement (such as the right to change commission rates).
D. Leave of Absence Claims
1. The Federal Family and Medical Leave Act (FMLA) requires employers
(of 50 or more employees) to provide employees 12 weeks of leave in
every 12-month period upon the:
• the birth or adoption of a child; or
• the serious health condition of a family member; or
• the employee’s own serious health condition.
2. Many states have also passed parental leave laws. For example, the New
Jersey Family Leave Act (NJFLA) requires employers (of 50 or more
employees) to provide employees 12 weeks of leave in every 24-month
period upon the:
• the birth or adoption of a child; or
• the serious health condition of a family member.
3. A leave of absence may be a required “reasonable accommodation” for a
disabled employee under the ADA or state handicap discrimination laws.
E. Defamation Claims
A common-law cause of action for defamation can be maintained on the basis of
false statements (written or oral) regarding an employee’s job performance or
reason for discharge.
F. Invasion of Privacy Claims
Various constitutional, statutory and common-law protections exist that prevent
employers from violating an employee’s right to privacy. In most cases,
employees are protected against:
1. Random drug testing (unless the employee is in a safety-sensitive position);
2. Unreasonable searches of personal property, such as desks and lockers;
3. Polygraph testing (unless the employee is involved in the manufacture or
distribution of a controlled dangerous substance); and
4. Credit report inquiries (unless the employee has consented in writing to same).
G. Intentional Infliction of Emotional Distress Claims
Most states have recognized a common-law cause of action for intentional
infliction of emotional distress. The employee must prove extreme and outrageous
conduct by the employer that causes severe emotional distress.
H. Fraud Claims
Employers may be liable for fraud if, for example, they induce an employee to
leave a prior employer, or induce an employee to stay employed with them, by
misrepresenting the terms of the employment or the stability of the position (for
example, where employer fails to disclose its intent to eliminate job in near
I. WARN Act Claims
The Worker Adjustment and Retraining Notification Act of 1988 (WARN)
requires employers with 100 or more full-time employees to give employees 60
days notice before implementing a plant closure or layoff if:
1. In the case of a closure, the closure affects 50 or more employees; or
2. In the case of a layoff, the lay off affects 50 or more employees who
represent at least one-third of the workforce, or the layoff involves 500 or
II. RECENT DEVELOPMENTS AND HOT TOPICS
A. Hostile Environment Claims
1. Internet Postings May Be Actionable Harassment
The New Jersey Supreme Court ruled in June 2000 that Continental
Airlines may be liable for insulting postings about a female pilot on the
company's electronic bulletin board if the company was aware of them.
Blakey v. Continental Airlines, 164 N.J. 38 (2000).
2. “Same Sex” Sexual Harassment is Actionable
Under both Title VII and various states’ anti-discrimination laws
(including the NJLAD), “same sex” sexual harassment is a viable cause of
action. Thus, a woman can be sexually harassed by a woman, and a man
can be sexually harassed by a man. The sexual orientation of the harasser
and victim is not controlling. The victim need only show that he/she was
treated differently by the harasser “because of” his/her sex. Oncale v.
Sundowner Offshore Services, Inc., 118 S. Ct. 2257 (1998); Lehmann v.
Toys R Us, 132 N.J. 587 (1993).
• When the alleged harasser is homosexual, courts will more easily
conclude that the harassment occurred “because of” the victim’s sex.
Sheppard v. Slater Steels Corp., 168 F.3d 998 (7th Cir. 1999); Bailey v.
Runyon, 167 F.3d 466 (8th Cir. 1999).
• When the alleged harasser is heterosexual, the difficulty becomes
distinguishing between non-actionable “vulgarity and horseplay” and
actionable harassment “because of” the victim’s sex. Pirolli v. World
Flavors, 81 FEP Cases 783 (E.D. Pa. 1999) (despite allegations that
plaintiff’s coworkers physically assaulted him, exposed themselves
and posed vulgar and sexual questions, plaintiff fails to offer any proof
that the harassment occurred because of his sex, such as proof of
general hostility toward men in the workplace or proof that female
employees were treated differently).
3. “Sexual Orientation” Harassment is not Actionable under Title VII,
but may be Actionable Under Other Laws
• Federal courts continue to hold that Title VII does not prohibit
discrimination against employees on the basis of sexual orientation.
Higgins v. New Balance Athletic Shoe, Inc., 194 F.3d 252 (1st Cir.
1999); Simonton v. Runyon, 232 F.3d 33 (2d Cir. 2000); Bibby v.
Philadelphia Coca-Cola Bottling, 85 F. Supp. 2d 509 (F.D. Pa. 2000)
(allegations included supervisor's comments that "everyone knows you
are as gay as a three dollar bill" and "everyone knows you're a
• However, sexual orientation harassment claims may be viable under
other federal statutes, such as 42 U.S.C. §1983. Quinn v. Nassau
County Police Department, 53 F.Supp.2d 347 and 1999 WL 1066869
(E.D.N.Y. 1999) (plaintiff awarded $380,000 in compensatory and
punitive damages, and $134,000 for attorneys fees and costs).
• Also, sexual orientation harassment claims are possible under state
anti-discrimination statutes that prohibit discrimination based on
sexual orientation (like New Jersey). Lehmann v. Toys R Us, 132 N.J.
• Also, harassment with homosexual overtones (such as being called a
“homo” and “crotch grabbing”) may still be actionable as traditional
sexual harassment. Schmedding v. Tnemec Co., 197 F.3d 862 (8th Cir.
1999) (such allegations do not transform complaint into one alleging
harassment based on sexual orientation); Higgins v. New Balance
Athletic Shoe, Inc., 194 F.3d 252 (1st Cir. 1999) (“a man can ground a
claim on evidence that other men discriminated against him because he
did not meet stereotyped expectations of masculinity”).
• As a last resort, sexual orientation harassment may be actionable on a
theory of intentional infliction of emotional distress. Hampel v. Food
Ingredients Specialities, Inc., 125 DLR 1 (Ohio 2000) (court upholds
$1.6 million verdict even though make supervisor's harassment of
male employee did not occur "because of" plaintiff's sex).
4. “Reverse Hostile Environment” Claims are on the Rise
• In June 1999, a New Jersey jury awarded a male prison guard
$750,000 for emotional distress damages and $3 million in punitive
damages after finding that the male guard had been sexually harassed
by a female guard, and that the employer took no corrective action in
response to his complaints. The harassment, which began after the
male guard rejected the female guard’s advances, included vulgar
remarks about the male officer made in the presence of others. In
October 1999, the court awarded the guard $855,000 in attorney’s
fees, bringing the total award to $4.6 million. Lockley v. NJ Dep’t of
• In December 1999, the State of New Jersey paid $425,000 to settle a
male prison investigator’s claims that he was sexually harassed by a
female co-worker. The male employee alleged that the female
coworker undressed in front of him, and when he complained, she
taunted him about his masculinity. Ferri v. NJ Dep’t of Corrections,
• Another court recently held that a male employee kicked in the groin
by female co-worker may proceed with a sexual harassment claim.
Court finds the single incident comparable to single-incident sexual
harassment claims asserted by female employees. Jones v. United
States Gypsum, 29 DLR (BNA) A-1, 2000 (N.D. Iowa 2000).
5. “Other” Hostile Environment Claims are also on the Rise
• The EEOC’s June 1999 Enforcement Guidance on employer liability
standards recognizes that employers can be liable for hostile working
environments based on race, national origin, age, and disability.
(These Guidelines are available on the EEOC’s website at
• The EEOC has been aggressively pursing class action litigation against
employers for maintaining racially hostile workplaces:
• In early January 2000, Foster Wheeler Constructors agreed to
pay $1.3 million to 100 former employees
• On January 11, 2000, the EEOC filed suit against Scientific
Colors, Inc., in Chicago alleging that it fostered a racially
hostile working environment
• The New Jersey Supreme Court recently ruled that a single racial
epithet can be sufficiently severe to create a hostile working
environment. The Court found that a hostile working environment
could have been created when a supervisor (the Burlington County
Sheriff) called an African American subordinate “jungle bunny.”
Taylor v. Metzger, 152 N.J. 490 (1998). That case subsequently
settled for $200,000.
• A New Jersey appellate court recently held that an employee was
entitled to a jury trial on his claim of hostile environment based on
disability, where he claimed that his supervisor made just two
derogatory comments about his diabetes. Leonard v. Metropolitan Life
Insurance Company, 318 N.J. Super. 337 (App. Div. 1999).
• Numerous federal courts have assumed that a claim for hostile
environment based on disability can be maintained under the ADA.
Walton v. Mental Health Ass’n, 168 F.3d 661 (3rd Cir. 1999).
6. Employers are Successfully Asserting the “New” Affirmative Defense
to Liability for Supervisory Sexual Harassment Under Title VII
In 1998, the United States Supreme Court held that an employer is
automatically liable for hostile environment sexual harassment committed
by a supervisor when a tangible job detriment results (for example, a
termination, a demotion or an undesirable transfer), but when no tangible
job detriment results, the employer can avoid liability if it can prove two
things: (1) that it exercised reasonable care to prevent and correct
promptly any sexually harassing behavior and (2) that the victim
unreasonably failed to take advantage of any preventive or corrective
opportunities by the employer. Faragher v. City of Boca Raton, 118 S. Ct.
2275 (1998); Burlington Industries v. Ellerth, 118 S. Ct. 2257 (1998).
Thus, analysis of the question of employer liability for supervisory sexual
harassment involves four issues: (1) is the harasser a “supervisor”; (2) did
“tangible employment action” occur; (3) did the employer exercise
reasonable care to prevent and correct promptly the behavior; and (4) did
the employee unreasonably fail to complain?
Since Faragher and Ellerth, employers have been surprising successful at
achieving summary judgment:
• Hill v. American General Finance Co., 218 F.3d 639 (7th Cir. 2000)
(employer's anti-harassment policy and "textbook" response to
complaint defeat sex and racial harassment claim).
• Tutman v. CBS, 209 F.3d 1044 (7th Cir. 2000) (employer's prompt
response to complaint of racial harassment precludes employer
• Shaw v. Autozone, Inc., 180 F.3d 806 (7th Cir. 1999), cert. den., 2000
WL 11940 (2000) (plaintiff’s claim that she never received sexual
harassment policy irrelevant since plaintiff signed receipt
acknowledging she received handbook which contained policy; policy
provided multiple mechanisms for redress and ability to bypass
supervisor; employer trained managers regarding sexual harassment;
plaintiff never complained about harassment; plaintiff’s subjective
fears of confrontation, unpleasantness or retaliation do not alleviate
employee of duty to complain).
• EEOC v. Baron Protective Services, 47 F.Supp.2d 57 (D.D.C. 1999)
(plaintiff waited 11 months to complain of harassment; employer had
written policies, plaintiff received policies on first day of work,
employer conducted training, and employer conducted immediate
investigation once it received notice).
• Madray v. Publix Super Markets, 30 F.Supp.2d 1371 (S.D. Fla. 1999)
(employer had written sexual harassment policy with detailed
complaint procedure; plaintiffs failed to complain to persons identified
• Riffle v. Sports Authority, 80 FEP Cases 897 (D. Md. 1999) (employer
published sexual harassment policy identifying numerous persons to
whom victim should complain; plaintiff’s claim that she did not
complain because harasser said he would fire her and she believed
management would not help her not reasonable).
7. Importance of Proper Sexual Harassment Investigations
In Blackmon v. Pinkerton Security, 182 F.3d 629 (8th Cir. 1999), the Court
upheld a $100,000 punitive damage award in a sexual harassment case
where employer failed to promptly investigate, and when it did finally
investigate, devoted most of its investigation to uncovering unfavorable
information about the victim. See also Henderson v. Simmons Food Inc.,
217 F.3d 612 (8th Cir. 2000) (upholding $175,000 award under similar
8. “Assumption of the Risk” Defense Rejected
Courts continue to reject employer arguments that a different standard
should be applied to traditionally male-dominated industries: “ a woman
who chooses to work in male-dominated trades does not relinquish her
rights to be free from sexual harassment.” Williams v. General Motors
Corp., 187 F.3d 553 (6th Cir. 1999) (car assembly plant); Smith v.
Sheahan, 189 F.3d 529 (7th Cir. 1999) (county jail).
However, some courts have adopted this argument. Gross v. Burggraf
Const. Co., 53 F.3d 1531 (10th Cir. 1995).
9. Employer Liability for Harassment by Non-Employees
• The EEOC has long taken the position that an employer can be liable
for acts of sexual harassment inflicted upon its employees by non-
employees, such as independent contractors and visitors to the
workplace. 29 C.F.R. §1604.11(e).
• One court recently held that a University may be liable for sexual
harassment of a law professor by homeless person who was neither an
employee or student, but who regularly used the University law school
library. Martin v. Howard University, 81 FEP Cases (BNA) 964
B. Retaliation Claims
1. Retaliation Claims Are on the Rise
The percentage of retaliation Charges filed with the EEOC has been
steady rising since 1992. In 1992, 15% of the Charges filed with the
EEOC alleged retaliation. In 1999, 25%. In 2000, 27%. See EEOC
Charge statistics, Exhibit B.
2. Employers May Be Liable for Retaliation Against Former Employees
• Retaliation claims are typically brought by employees who allege that,
after complaining about discrimination, they suffered adverse
employment consequences, such as a negative review, a demotion, or
• However, employers can also be liable for retaliating against former
• Employer may be liable for giving former employee a negative
job reference in retaliation for filing EEOC Charge. Robinson
v. Shell Oil Co., 519 U.S. 337 (1997).
• Employer may be liable for filing complaints against former
insurance agent employee with State Department of Insurance
in retaliation for employee’s discrimination complaints.
Durham Life Ins. Co. v. Evans, 166 F.3d 139 (3d Cir. 1999).
3. Employees Protected for Complaining about Co-worker Conduct, Not
Just Employer Conduct
The typical retaliation claim is brought by an employee who has disclosed/
objected to some illegal conduct of his/her employer. Recently, the New
Jersey Supreme Court extended the reach of CEPA to prohibit retaliation
against an employee who disclosed wrongdoing by a co-worker, even
when the wrongdoing did not benefit the employer. DeLisa v. County of
Bergen, 165 N.J. 140 (2000).
4. Retaliation Claims by Employee-Witnesses in Other Cases
On the rise are retaliation claims by employees who are called as
witnesses in discrimination suits brought by other employees, and who
allege that they have suffered retaliation for giving testimony adverse to
their employer. Glover v. S.C. Law Enforcement Division, 170 F.3d 411
(4th Cir. 1999) (employee witness fired after criticizing management);
Oliver v. General Nutrition Center, 80 FEP Cases (BNA) 297 (S.D.N.Y.
1999) (employee claimed she was fired after refusing to testify that
employee-plaintiff in another case was a poor manager); Romano v.
Brown & Williamson Tobacco Corp., 284 N.J. Super. 543 (App. Div.
5. “Associational” Claims Are on the Rise
An employee who does not make a complaint about discrimination, but is
terminated in retaliation for another employee’s complaint of
discrimination (such as a complaint by a co-worker relative or co-worker
friend) may sue for unlawful retaliation. In other words, an employee who
suffers retaliation because of his/her association with someone who
engages in protected activity may also sue for retaliation. Kubicko v.
Ogden Logistics Services, 181 F.3d 544 (4th Cir. 1999); Murphy v.
Cadillac Rubber & Plastics, Inc., 946 F. Supp. 1108 (W.D.N.Y. 1996).
6. Employer Liable Under Title VII for Retaliation Suffered by
Employee of Another Company
Courts have held that although Title VII’s anti-retaliation provision only
expressly prohibits retaliation by an employer against its own employees,
an employer can be liable for acts of retaliation committed by a third party
against the third party’s employees. Here, a radio talk show host refused
to let a traffic reporter, who was employed by a separate company, deliver
her traffic reports unless she referred to herself as “big boobs.” When
she refused, her own employer reassigned her. The court held that the
radio station could be held liable for the retaliatory reassignment since the
radio station had substantial control over her employment. Angelina Diana
v. Schlosser, 20 F.Supp.2d 348 (D. Conn. 1998).
7. Internal v. External Complaints
• Title VII specifically prohibits retaliation both against employees who
make internal complaints to their employers and against employees
who file formal complaints in court or to government agencies.
• Although other statutes appear on their face to only prohibit retaliation
against employees who file formal complaints, courts have been
broadly construing these statutes and have been holding that
employers cannot retaliate against employees who merely file
informal, internal complaints:
• Lambert v. Ackerley, 180 F.3d 997 (9th Cir. 1999), cert. den., 2000
WL 29397 (2000) (FLSA; upholding award of $697,000 for lost
wages, $75,000 for emotional distress and $12 million for punitive
• Clean Harbors Envt’l Serv., Inc. v. Herman, 146 F.3d 12 (1st Cir.
1998) (Surface Transportation Assistance Act)
• Passaic Valley Sewerage Comm v. Department of Labor, 992 F.2d
474 (3rd Cir. 1993) (Clean Water Act)
8. Employee’s Manner of Opposition Must be Reasonable
An employee is entitled to protest discriminatory treatment without fear of
retaliation, but the employee’s manner of opposition must be reasonable.
An employee who makes false, inflammatory accusations is not protected.
Robbins v. Jefferson County School Dist., 186 F.Supp.1253 (10th Cir.
C. ADA Claims
1. Mitigating Measures Should be Considered When Determining Whether
an Employee is “Disabled”
In June 1999, the Supreme Court ruled that conditions such as high blood
pressure and nearsightedness must be evaluated in terms of the
individual’s corrected condition before a determination can be made that
the individual is “disabled” under the ADA. Put another way, courts must
assess an employee’s medical condition in its corrected state in deciding
whether the person is “disabled.” Sutton v. United Air Lines, Inc., 119 S.
Ct. 2139 (1999) (nearsightedness); Murphy v. United Parcel Service, Inc.,
119 S. Ct. 2133 (1999) (high blood pressure); Albertsons, Inc. v.
Kirkinburg, 119 S. Ct. 2162 (1999) (monocular vision).
Employers have relied on this Supreme Court precedent with varying
levels of success:
• Pacella v. Tufts Univ. School of Dental Medicine, 66 F.Supp.2d 234
(D. Mass. 1999) (Court granted summary judgment to employer,
holding that plaintiff’s visual impairment, in its corrected state, did not
substantially limit him in the major life activities of seeing and
• Tangires v. Johns Hopkins Hospital, 11 DLR A-6, 2000 (D.Md. 2000)
(Granting summary judgment to employer, holding that the plaintiff,
who refused to take asthma medication, is not disabled under the ADA
because asthma is “correctable by medication.”).
• Franklin v. Consolidated Edison Co. of N.Y., 1999 WL 796170
(S.D.N.Y. 1999) (Rejecting employer’s motion for summary
judgment, holding that the side effects associated with the employee’s
seizure control medication included mild sedation and insomnia and
therefore contributed to limiting the major life activities of sleeping
• Belk v. Southwestern Bell Telephone Co., 194 F.3d 946 (8th Cir. 1999)
(Court rejected employer’s claim that an employee was not disabled
under the ADA because he could walk and engage in physical
activities with use of a corrective device. Although employee, who
suffered from the residual effects of polio, could walk with the use of a
leg brace, the court found that because his full range of motion was
limited by use of the brace, he was still disabled.)
2. To Sustain an ADA Claim Based on an Alleged Inability to Work,
Employees Must Prove They are Unable to Perform a Class of Jobs
• An employee who claimed she suffered from depression as a result of
working with a particular supervisor was not protected under the
ADA. Although the court found the employee to be “severely
depressed,” there was no evidence that the depression substantially
limited her ability to work inasmuch as the employee could still
perform her job under a different supervisor. Schneiker v. Fortis Ins.
Co., 18 DLR A-9, 2000 (7th Cir. 2000).
• An employee who was able to perform an array of jobs failed to
establish that his employer regarded him as unable to perform a class
of jobs. Rather, the evidence presented established only that the
employee was regarded as unable to perform one particular job.
Accordingly, the Court dismissed his ADA claim as a matter of law.
Murphy v. United Parcel Service, Inc., 119 S. Ct. 2133 (1999).
• Marinelli v. City of Erie, 216 F.3d 354 (3d Cir. 2000) (snow plow
driver with injured arm unable to lift more than 10 pounds and unable
to operate snow plow not disabled; injury does not preclude him from
a class of jobs).
3. Employees Who Cannot Appear Regularly For Work Cannot Prevail
on Disability Discrimination Claim
• In Hollestelle v. Metropolitan Washington Airports Authority, 1998
U.S. App. LEXIS 9420 (4th Cir. 1998), the court held that “attending
work in a regular and predictable manner,” including “arriving to work
on time” is an essential function of almost every job. Thus, the court
concluded that in light of the plaintiff’s excessive tardiness, i.e., he
was late to work over 90 times in an eight-month period, he could not
maintain an ADA claim.
• The New Jersey Appellate Division recently ruled that a handicapped
employee who could not appear regularly for work as required by the
employer failed to demonstrate the she could perform the essential
functions of her position with or without a reasonable accommodation.
As such, her handicap discrimination claim was rejected. Svarnas v.
AT&T Communications, et al., 326 N.J. Super. 59 (App. Div. 1999).
4. Courts Continue to Struggle Over What Constitutes a “Reasonable”
There is still a great deal of controversy over what constitutes a
“reasonable” accommodation under the ADA. Notably, however, courts
have rejected the following accommodations on the basis that they were
• Indefinite extension of an employee’s leave of absence. Although a
medical leave of absence can constitute a reasonable accommodation
under appropriate circumstances, employers are not required to extend
indefinitely an employee’s leave of absence. Walsh v. United Parcel
Service, Inc., 2000 WL 10605 (6th Cir. Jan. 6, 2000) (employee who
already had been given a year of paid disability leave was not entitled
to additional unspecified leave); Taylor v. Pepsi-Cola Co., 196 F.3d
1106 (10th Cir. 1999) (employee’s request for an indefinite period of
medical leave did not constitute a reasonable accommodation); Malone
v. Aramark Services, Inc., 334 N.J. Super. 669 (Law Div. 2000) (no
obligation to hold employee's job open for as long as necessary for
employee to recover from work-related injury).
• Transfer to a “Stress Free” Job. Employee’s request for transfer to a
“stress-free” environment was unreasonable. Gaul v. Lucent
Technologies, Inc., 134 F.3d 576 (3d Cir. 1998).
• Transfer to Another Supervisor. Employee’s request that her
employer provide her with another supervisor and guarantee no further
contact with her former supervisor, as an accommodation for her
depression, was held unreasonable as a matter of law. Kennedy v.
Dresser Rand Co., 193 F.3d 120 (2d Cir. 1999).
5. Court Will Scrutinize ADA Claims Where Employee Has Alleged Total
Disability on a Benefits Application
The U.S. Supreme Court recently held that a worker’s statement that he or
she is totally disabled in connection with an application for disability
benefits is not an automatic bar to an ADA claim. However, the Court
held that in order to prevail on an ADA claim, an employee who has made
such a statement is required to explain the inconsistency. Cleveland v.
Policy Management Systems Corp., 119 S. Ct. 1597 (1999).
Fortunately, courts appear to be scrutinizing employees’ prior claims of
• In Motley v. New Jersey State Police, 196 F.3d 160 (3d Cir. 1999), the
Third Circuit affirmed summary judgment for the employer, holding
that the plaintiff could not reconcile allegations regarding his ability to
work in his civil suit with statements made in his application for
disability benefits. Applying the U.S. Supreme Court’s decision in
Cleveland v. Policy Management Systems, the court held that the case
must be dismissed because the plaintiff failed to proffer a reasonable
explanation for his inconsistent statements.
• In Feldman v. American Memorial Life Insurance Co., 196 F.3d 183
(7th Cir. 1999), summary judgment was affirmed in favor of an
employer on the grounds that the plaintiff employee had failed to
reconcile statements made in connection with her ADA claim with
statements she made in support of a Social Security disability claim.
6. Employers Are Not Required to Override Seniority System When
• The Ninth Circuit recently held that the ADA does not require an
employer to bypass its seniority system to grant a disabled employee a
reasonable accommodation, such as transfer to a vacant job, even
where the employer’s seniority system is unilaterally imposed.
Barnett v. US Air, 220 DLR (BNA) A-1, 1999 (9th Cir. 1999).
• Several courts have held that employers are not required to grant an
accommodation request that would cause the employer to violate the
seniority provisions contained in a collective bargaining agreement.
See, e.g., Kralik v. Durbin, 130 F.3d 76 (3d Cir. 1997) (“an
accommodation to one employee which violates the seniority right of
other employees in a collective bargaining agreement simply is not
reasonable”); Cassidy v. Detroit Edison Co., 138 F.3d 629 (6th Cir.
7. Employers Can Use “Business Necessity” To Defend Generally
Applied Safety-Based Qualifications
In a case of first impression for federal appeals courts, the Fifth Circuit
ruled that an employer that utilizes general safety-based qualifications
need not prove that making an exception to the policy for disabled
employees would pose a “direct threat.” Rather, employers can defend
such qualifications by making the lesser showing that the standards
constitute a “business necessity.” In this case, Exxon implemented a
policy barring persons who have undergone substance abuse treatment
from safety-sensitive, low-supervision jobs. The court held that in order
to defend its decision to demote employees pursuant to this policy, Exxon
needed only show that the policy was a business necessity. EEOC v.
Exxon Corp., 32 DLR (BNA) A-10, 2000 (5th Cir. 2000).
8. Courts Clarify Employers’ Responsibilities During the "Interactive
• Where an employer knows of an employee’s disability and of the
employee’s desire for accommodation, the employer is required to
begin the interactive process. Moreover, an employee’s request for
accommodation “does not have to be in writing, made by the
employee, or formally invoke the magic words ‘reasonable
accommodation.’” An employer who is found to have acted in bad
faith in the interactive process will be liable under the ADA if the
employee would have been able to perform the essential functions of
his/her job had s/he been accommodated. Taylor v. Phoenixville
School District, 184 F.3d 296 (3d Cir. 1999).
• However, an employer that fails to engage in the interactive process is
not liable for violating the ADA if the employee fails to prove that a
reasonable accommodation would have been possible. Donahue v.
Consolidated Rail Corp., 224 F.3d 226 (3d Cir. 2000).
• An employer who is aware of a disability but nonetheless fails to offer
reasonable accommodation violates the ADA regardless of its intent,
unless it can prove that the proposed accommodation would constitute
an undue hardship. Higgins v. New Balance Athletic Shoe, Inc., 194
F.3d 252 (1st Cir. 1999).
9. Court Not Required to Accept Employer's Judgment on Essential Job
• Although a court must give some deference to the employer's
identification of the essential job functions, the employer cannot set
job functions intentionally above a person's capacity just so that he/she
will no longer be qualified. Leshner v. McCollister's Transportation
Systems, Inc., 113 F.Supp. 2d 689 (D.N.J. 2000).
D. FMLA Claims
1. Employee's Leave Request Need Not Recite "FMLA"
• An employee gave adequate notice of the need for leave covered by
the Family and Medical Leave Act and the New Jersey Family Leave
Act to care for his ill spouse, even though he merely called in to say
that he was going to be absent and did not give the reasons why. The
court found that the individuals he called to report his absence were
aware both of the spouse's illness and the fact that the plaintiff was the
primary caregiver. Zawadowicz v. CVS Corp., 99 F.Supp. 2d 518
2. Employers May RIF Employees on FMLA Leave
• Citing the U.S. Department of Labor’s regulations on the Family and
Medical Leave Act (“FMLA”), the Eleventh Circuit recently
reaffirmed an employer’s right to terminate as part of a reduction in
force an employee who is on leave pursuant to the FMLA. However,
an employer who takes this action must be able to prove that the
employee would have been laid off during the FMLA period even if
the employee had not been on leave. O’Connor v. PCA Family Health
Services, Inc., 2000 WL 33166 (11th Cir. 2000).
• The FMLA does not prevent employers from discharging an employee
while he or she is on FMLA-protected leave, so long as the taking of
FMLA leave is not the cause for discharge. Santos v. Knitgoods
Workers’ Union Local 155, 5 WH Cases2d 1436 (S.D.N.Y. 2000).
3. Circumstances Triggering the Leave Requirement
• In Marchisheck v. San Mateo County General Hospital, 1999 WL
1188978 (9th Cir. 1999), the Ninth Circuit held that the FMLA did not
require an employer to provide leave to an employee who sent her son
to live with relatives in the Philippines out of concern for his well
being. The court held that the act of taking one’s child to a foreign
country to leave him with relatives cannot be considered “caring for” a
family member with a “serious health condition,” for purposes of the
• Employees may not take leave for the birth or adoption of a child more
than 12 months after the date of the birth or adoption. Bolcalbos
National Western Life Ins. Co., 162 F.3d 379 (5th Cir. 1998), cert.
denied, 120 S. Ct. 175 (1999) (employee not entitled to FMLA leave at
the time when children who were formally adopted several years prior
to the leave request were moving to the U.S. and into the employee’s
home for the first time).
4. Time for Designating Leave as FMLA Leave
The Department of Labor’s regulations place 100% of the responsibility
for designating leave as FMLA leave on the employer. 29 C.F.R.
825.208(a). The regulations technically require that employers designate
leave as FMLA leave within 2 days of the employer becoming aware of
the FMLA qualifying nature of the leave. Failure to timely designate the
leave results in the employer being unable to count the leave against an
employee’s 12-week entitlement.
• However, at least one court has ruled that this notice regulation is
invalid. In Cox v. Autozone, Inc., 990 F.Supp.2d 1369 (M.D.Ala.
1998), aff’d, 180 F.3d 1305 (11th Cir. 1999), the court rejected the
plaintiff’s argument that her employer violated the FMLA by failing to
notify her that her time off was counting against her FMLA
entitlement, finding that Congress did not intend the FMLA to provide
employees with more than 12 weeks of job-protected leave. Another
court, however, has upheld the regulations, thus creating a split in the
courts. Plant v. Morton Int'l, 212 F.3d 929 (6th Cir. 2000).
5. Importance of Returning Employee to an “Equivalent” Position
In February 1998, a federal jury in Trenton, New Jersey awarded $399,525
to an employee who claimed she was denied an equivalent position under
the FMLA and the New Jersey Family Leave Act (“NJFLA”) after
returning from maternity leave. The employee, who had been employed
as administrative assistant to the Chief Financial Officer prior to her leave,
was offered the position of administrative assistant to a Vice President of
Finance and Administration – at the same pay and benefits – upon her
return from leave. Semoc-Morris v. Siemens Medical Systems, Inc.
6. Employee’s Ability to Perform Essential Job Functions Should Be
Considered in Deciding Whether to Grant FMLA Request
The Eighth Circuit found that an employee who missed work following an
automobile accident in which he injured his back was not discharged in
violation of the FMLA. Because the employee could not have performed
the “essential functions of his job” at the end of the 12-week period, he
could not establish a cause of action under the FMLA. Phillips & Temro
Industries, Inc., 220 DLR A-2, 1999 (8th Cir. 1999).
7. Calculating the Number of Hours Required for Leave Entitlement Under
• In determining whether an employee has worked the requisite 1,000
hours necessary to qualify for leave under the NJFLA, the employee is
entitled to credit for any time spent on workers’ compensation leave.
Put another way, hours for which an employee is paid workers’
compensation benefits count toward the eligibility requirement under
the NJFLA. Kenney v. Meadowview Nursing and Convalescent
Center, 308 N.J. Super. 565 (App. Div. 1998).
• However, sick leave unrelated to work is not included in an
employee’s “base hours” for purposes of calculating eligibility for
leave under the NJFLA. McConnell v. State Farm Mutual Insurance
Company, 61 F. Supp.2d 356 (D.N.J. 1999).
8. Employer’s Obligation to Advise Employee of Required Return Date
In Barone v. Leukemia Society of America, 42 F. Supp.2d 452 (D.N.J.
1998), the court held that under the NJFLA, the employer was required to
advise the plaintiff at what point she was required to return to work before
it could terminate her employment. However, the court noted the unique
circumstances of the case. The employee had taken leave to care for an ill
family member who subsequently passed away. The employer fired the
employee for failing to return to work after the family member passed
away, but did so without establishing a return to work deadline.
9. Consequences of Not Granting Leave Permitted Under the
• A Camden County, New Jersey jury awarded $540,000 to a male
employee who was fired after taking time off to attend to his son who
was critically injured in a motorcycle accident. The jury found that the
employer’s decision to discharge the employee violated the New
Jersey Family Leave Act. DePalma v. Building Inspections
Underwriters (Verdict: May 18, 1999). Note: The $400,000 punitive
damages award was later reduced to the $10,000 statutory cap allowed
under the NJFLA.
• A Mercer County, New Jersey jury awarded $1.1 million (exclusive of
punitive damages) to a former CFO based, in part, on his claim that he
was wrongfully terminated in violation of the NJFLA for taking time
off from work to care for his terminally ill wife. Crump v. New Jersey
Network (Verdict: September 14, 1999).
E. Class Action Claims
The numbered of class action suits filed in the last few years has increased
dramatically. The following is a summary of just some of class action suits filed,
certified or settled in 2000:
• Landis Plastics, Inc., agrees to pay $782,000 to settle sex
discrimination class action brought on behalf of 30 women denied
promotions. 245 DLR 1 (December 20, 2000).
• Class action suit certified against University of Washington by female
faculty members alleging disparate pay. 227 DLR 1 (November 24,
• Ford Motor Co. settles class action alleging sexual harassment at two
plants for $9 million. 226 DLR 1 (November 22, 2000).
• Coca-Cola agrees to pay $192.5 million to settle race discrimination
class action with 2000 employees. Average award is $40,000, with
named plaintiffs each to receive $300,000. 223 DLR 1 (November 17,
• CBS agrees to pay $8 million to settle sex discrimination class action
brought by 200 female technicians. 208 DLR 1 (October 26, 2000).
• Class action suit filed against Microsoft by 4500 female employees
alleging discrimination in pay and promotions. 200 DLR 1 (October
• FDIC agrees to pay $15.5 million to settle race discrimination claims
brought by class of 3000 employees. 197 DLR 1 (October 11, 2000).
• Class action suit filed against Girl Scouts USA by male graphic artist
alleging that Girl Scouts maintains a "glass ceiling" blocking male
employees from promotion. 188 DLR 1 (September 27, 2000).
• Class action suit filed by EEOC against GM plant in Linden, New
Jersey alleging discrimination against women and African Americans.
184 DLR 1 (September 21, 2000).
• 300 current and former Nextel employees file race and sex
discrimination charges with EEOC. 120 DLR 1 (June 21, 2000).
• Enterprise Rent-A-Car agrees to pay $300,000 to settle class action
age discrimination suit brought by EEOC, on behalf of 600 employees.
115 DLR 1 (June 14, 2000).
• Class action certified by non-managerial African American employees
against Federal Reserve Bank. 111 DLR 1 (June 8, 2000).
• Class action suit filed against Eagle Global Logistics alleging pattern
of discrimination against women and minorities. 103 DLR 1 (May 26,
• Class action suit filed against Lockhead Martin in Georgia alleging
class wide race discrimination. 92 DLR 1 (May 11, 2000).
• Class action suit filed by current and former secret service agents. 88
DLR 1 (May 5, 2000).
• Class action suit certified alleging race discrimination by applicants
turned down for positions as dealers on riverboat casino. 67 DLR 1
(April 6, 2000).
• Class action suit filed by 40 former and current employees of Boeing
alleging discrimination due to national origin. 52 DLR 1 (March 16,
• Class action suit filed against Boeing by class of 30,000 current and
former female employees. 44 DLR 1 (March 6, 2000).
F. Other Trends and Recent Developments
1. Supreme Court Makes It Harder for Employers to Get Summary
In June 2000, the Supreme Court clarified the standard and employee must
meet to prove an employment bias claim. Under this clarified standard, it
will be easier for employees to survive summary judgment and get to a
jury. Reeves v. Sanderson Plumbing Products, Inc., 120 S.Ct. 2097
2. Punitive Damage Standard Clarified Under Title VII
• The Supreme Court held in Kolstad v. American Dental Assoc., 119 S.
Ct. 2118 (1999) that to recover punitive damages under Title VII, a
plaintiff need not make an independent or additional showing that the
employer’s conduct was “egregious.” An employee is only required to
prove that the employer acted with malice or reckless indifference to
plaintiff’s federally protected rights, i.e., that the employer acted with
knowledge that its conduct was unlawful. The Court further held,
however, that an employer can avoid vicarious liability for the
discriminatory acts of managerial employees when those acts are
“contrary to the employer’s good faith efforts to comply with Title
• Note that an employer’s adoption of appropriate sexual harassment
policies for purposes of avoiding liability under Faragher and Ellerth is
also relevant to avoiding punitive damages under Kolstad.
3. Reverse Discrimination Claims in Flux
Courts continue to split on the issue of whether an employee alleging
reverse discrimination carries a heavier burden of proof than a minority
• Some courts hold that the reverse discrimination plaintiff must prove
“background circumstances” suggesting that the employer is the
unusual employer who discriminates against the majority. Duffy v.
Wolle, 123 F.3d 1026, 1036-1037 (8th Cir. 1997), cert. den., 118 S. Ct. 1839
(1998); Erickson v. Marsh & McLennan Co., Inc., 117 N.J. 539, 551
• More recent decisions have rejected this heightened burden of proof.
Iadimarco v. Runyon, 190 F.3d 151 (3rd Cir. 1999); Cully v. Milliman
& Robertson, Inc., 20 F.Supp.636 (S.D.N.Y. 1998).
4. Arbitration of Discrimination Claims Still Lawful
• With the notable exception of the Ninth Circuit Court of Appeals (with
jurisdiction over California, Oregon, Washington, Idaho, Montana,
Arizona, Alaska and Hawaii), state and federal courts around the
country continue enforce arbitration agreements which require
employees to arbitrate all claims they may have against their
employer. Desiderio v. NASD, 191 F.3d 198 (2d Cir. 1999); Michalski
v. Circuit City Stores, Inc., 177 F.3d 634 (4th Cir. 1999); Seus v. John
Nuveen & Co., 146 F.3d 175 (3rd Cir. 1998), cert. denied, 119 S. Ct.
1028 (1999); Young v. Prudential Insurance Co., 297 N.J. Super. 605
(App. Div. 1997), certif. denied, 149 N.J. 408 (1997); Garfinkel v.
Morristown Obstetrics and Gynecology, 333 N.J. Super. 291 (App.
• However, the arbitration agreement must clearly spell out what claims
are subject to arbitration. In one recent case, the Court held that the
arbitration agreement did not preclude the employee from pursing a
NJLAD claim in court, since the arbitration clause provided that it
only applied to disputes under the Employment Manual and not
controversies arising under the NJLAD. Alamo Rent-A-Car, Inc., v.
Galarza, 306 N.J. Super. 384 (App. Div. 1997).
• Also, to be valid, arbitration agreements should not attempt to limit
employees’ remedies, and should provide that the arbitration award is
binding on both parties, not just the employee. Ramirez v. Circuit City
Stores, 90 Ca.1Rptr.2d 916 (Cal. Ct. App. 1999).
III. SOME STATISTICS
A. EEOC Charge Statistics FY 92 – FY 00
See EEOC’s website at www.eeoc.gov/stats/charges.
B. Federal Court Complaint Statistics 1990-1998
• Number of employment discrimination cases filed in federal court each year tripled from
1990 to 1998
→up from 8,400 to 24,000
• What happens to these cases?
→In 1998, about 35% settled
→About 35% of the cases were dismissed before trial
→Only about 5% went to trial
• Once a case gets to trial, what happens?
→In 1990, employers won about 75% of the cases that went to trial
→In 1998, employers only won about 65% of the cases that went to trial
• What about the size of the awards when the employee does win?
→In 1998, the median award (not including attorney’s fees) was about $135,000
→14% of the verdicts were over $1 million
→10% of the verdicts were over $10 million
These statistics are available on the Department of Justice website at www.ojp.usdoj.gov/
C. ADA Verdict Statistics
A recent study revealed that in 1999, employers prevailed in 95.7% of federal court
decisions under the ADA. 121 DLR 1 (June 22, 2000).