Issues in Employment Law
January 2003
An employer may not terminate an employee solely because he is or has been a bankruptcy debtor.
In Leonard v. St. Rose Dominican Hospital (No. 01-15544), a hospital employee incurred large medical expenses and did not pay them, telling his employer that he was intending to file for bankruptcy. The Ninth Circuit Court of Appeals held for the employer, holding that an employee who had not yet filed for bankruptcy is not protected by the Bankruptcy Code, even if the employee has informed his employer of his intentions to file for bankruptcy. The court says Bankruptcy Code only protects employees who are or have been a debtor in bankruptcy. However, the dissent noted that other circuits may hold otherwise, citing In re Tinker, 99 B.R. 957 (Bankr. W.D. Mo. 1989) explaining that "the Court cannot believe that it was the intent of Congress to set up a footrace between a prospective bankrupt and his or her employer." Please consult with us before terminating a prospective bankruptcy debtor.
HIV qualifies as an ADA impairment from the moment of infection, and if an employee can show it substantially limits a major life activity (such as working or reproduction), he will be entitled to ADA protection.
Under the Americans with Disabilities Act, an employer may not discriminate against a qualified employee because of his disability. The employee must (1) have an actual physical impairment that substantially limits one or more major life activities, (2) have a record of such impairment, or (3) be regarded by the employer of having such impairment. If an employer excludes a physically impaired employee from a broad range of jobs, the employee is "regarded" as being disabled. Employers can protect themselves from liability under the third category by offering a physically impaired employee alternate positions.
In Blanks v. Southwestern Bell Communications, Inc. (No. 02-10089), an HIV-positive employee claimed that his employer discriminated against him because it regarded him as being substantially limited in the major life activity of working. The Fifth Circuit Court of Appeals held that because the employer attempted to place the employee in other positions, the employee failed to show that he was "regarded" as being disabled. The court suggested it would not be difficult for an HIV-positive employee to show that he is actually limited in the major life activity of reproduction, but the plaintiff in this case fails to make this argument.
