Issues in Employment Law
October 2001
Although a recent Federal Court of Appeals decision permitted an employer to destroy records in the course of business, we recommend a thorough review by an attorney prior to destroying ANY employment-related documents.
In Crabtree v. National Steel Corporation, 2001 WL 936351 (7th Cir. 2001), THE Federal Court of Appeals for the Seventh Circuit, which covers Illinois, Indiana, and Wisconsin, the employer destroyed certain documents which could have been related to the case. The general rule in that Circuit, and most circuits, is that the bad faith destruction of documents relevant to proof of an issue at trial gives rise to a strong inference that production of the documents would have been unfavorable to the party responsible for its destruction. In Crabtree, the former employee claimed that his prior employer failed to rehire him for positions after he was let go in a Reduction in Force, and that the employer's failure to rehire him was based upon his age. During the course of the prosecution of Mr. Crabtree's claims, the employer destroyed documents pertaining to the Reduction in Force, as well as résumés and applications to positions to which the Plaintiff did not get hired. The employer stated that it rarely retained résumés and applications, and that birthdates were not included in either place, and that it had retained the RIF-related documents for two years after the RIF, one year longer than its policy requires. Further, the employer had notified the Agency which was investigating Mr. Crabtree's claims of its intention to destroy the documents. Also, the employer retained all RIF-related documents which affected or pertained to Mr. Crabtree. The Court found that the employer had not acted in bad faith, and that the documents which were destroyed were not relevant, nor would the Plaintiff have been prejudiced by their destruction.
However, as you can see from the Crabtree case, destroying documents is wrought with danger for an employer, and although the employer in this case did nothing wrong, it remains our advice that you permit your employment counsel to review any documents you plan to destroy, even if in the regular course of business, and even if you deem the documents unrelated to possible or pending claims.
The definition of "disability" under the Americans with Disabilities Act is NOT the same as it is under the Family and Medical Leave Act, and employers are advised to seek counsel if it intends to make an issue of an employee's exercise of his/her rights under the FMLA to care to for an ill family member.
Under the Family and Medical Leave Act, an employee is entitled, inter alia, to take leave in order to care for a seriously ill adult child. In promulagating regulations under the FMLA, the Secretary of Labor has borrowed, and akes reference to, certain regulations used by the EEOC in applying the Americans with Disabilities Act. For example, in defining the circumstance when an adult child of an employee is "seriously ill" such that the employee is entitled to take FMLA leave, the Secretary of Labor has borrowed the definition of "disability" used by the EEOC to mean "substantially limited in a major life activity." As used by the EEOC, a "fleeting, short-term impairment is not a disability." Relying on this, the employer in Navarro v. Pfizer Corporation, 2001 WL 929885, (1st Cir. 2001), refused to permit its employee to take FMLA leave to care for her pregnant daughter who was placed on bed-rest by her physician in the final weeks of her pregnancy. Reversing the trial court's grant of summary judgment for the employer, the First Circuit Court of Appeals, which covers xxxxxxxx, found that the statement by the EEOC that a "fleeting, temporary impairment was not a "disability" under the ADA, was inapplicable to the application of the term "disability" as used under the FMLA, despite the clear reference to the EEOC regulations by the Secretary of Labor.
What this means for employers is that the coverage of the FMLA is broader than the coverage of the ADA in this context, and that employers should permit such leave to be considered FMLA leave, and seek the advice of counsel before making termination or FMLA decisions in this context.
A complaint of Harassment by an employee must be adequately investigated, and acted upon sufficiently to prevent a recurrence of the harassing behavior, a recent Federal Court of Appeals decision reminds.
In Frazier v. Delco Electronics Corporation, 2001 WL 964933, (7th Cir. 2001), the Court revisited the obligations of an employer when faced with a complaint of harassment. In this case, a male co-worker stalked a female co-worker, at one time even threatening to kill her. The Court discussed that even though there were no sexually charged comments or behavior, the actions of the male employee were most probably based upon the Complaining employee's sex, in that it was unlikely that the offending employee would have treated a male co-worker with such hostility. Additionally, the employer, and the union representatives assured the complaining employee that it was "dealing" with the problem, but failed to actually take any action at all. One reason why this factor was important in this case was that the time limit for bringing a complaint or action to court or to the EEOC, does not begin to run until the employer has failed to take remedial action, not from the time of the offending behavior, which is sooner. By telling the complaining employee that the employer is "dealing" with it, merely extends the exposure of the employer to a complaint based upon this behavior.
As an interesting side note to this case, at some point subsequent to the complaint, the offending employee again resurfaced in the complaining employee's work-space, after she was told that he would leave her alone. She suffered a nervous breakdown as a result. She also sued the employer for violating her rights under the Americans with Disabilities Act, by failing to accommodate her "disability" by failing to remove the offender from her work area. The court stated that while it was understandable that she would not desire to work near the offender, and that the employer should consider that in formulating its remedy to her complaint, she was not "disabled" under the ADA. To be classified as "disabled" under the ADA, one must be "substantially limited in a major life activity." In this case, being substantially limited in working near a particular person, is not a major life activity. What this means for employers is that it is not necessary to submit to the demands of a complaining employee about what resolution she/he would prefer. Instead, employers must take measures "reasonably calculated" to prevent recurrence of the offending behavior.
Again, employers should vigorously investigate any compliant of harassment and take measures to remedy the offending behavior. As always, if questions arise, consult with competent counsel.
The Americans with Disabilities Act envisions an interactive process by which employers and employees work together to assess whether an employee's disability can be reasonable accommodated, and may require an employer to make exceptions to its policies and procedures, a recent Court of Appeals decision reminds.
If an employee is otherwise qualified to perform the essential functions of a particular job, then the employer is expected to make reasonable accommodations for that employee's disability. Argument as to whether a particular function is an essential one is the area where many ADA employment disputes arise. Such was the case in Lovejoy-Wilson v. NOCO Motor Fuel, Inc., 2001 WL 998037, (2nd Cir. 2001). There, the Plaintiff was an employee at a convenience store, who sought promotion to assistant manager of the store. She also suffered from epilepsy, and thus could not receive a driver's license. The employer had a general requirement that all management personnel have valid drivers' licenses. The reason given for this requirement was that management personnel had to be able to transport the store's receipts to the bank. The employee presented several options for accommodation, but as none of them included her having a driver's license, the employer refused to promote her. In fact, the employer became defensive, and accused the employee of misinterpreting the law and trying to intimidate the employer into changing its "non-discriminatory" policy. The employer further characterized the employee's assertion of her rights "slanderous" by implying that the employer discriminated against disabled workers, and threatened legal action against her if she persisted. She was later denied promotion again, but this time due to some question of missing money. She was offered promotion to assistant manager at a less desirable location. The District Court felt that this was sufficient accommodation. The Court of Appeals disagreed, finding that forcing a disabled employee to seek promotions only in less desirable locations, instead of trying to reach accommodation at the present or preferred location was a prima facia violation of the ADA.
Our advice to employers is to remain open-minded regarding how flexible you are willing to be when seeking accommodation for disabled employees. For questions on how far you must go, please contact us.
