Amendments to the ADA Become Law

The long awaited amendments to the Americans with Disabilities Act became law today. President Bush signed the bill this morning. Thanks and congratuations should be extended to both the business community and the employee rights community for making the compromises that were necessary to bring about this important legislation. The significant changes to the ADA include:

(1) explicitly removing the Supreme Court's requirement in Sutton that mitigating measures be considered when evaluating whether an individual has a disability within the meaning of the ADA;

(2) including language in the findings and purposes section to clarify that the courts' previous interpretations of the term "substantially limits" [in the phrase "substantially limits a major life activity"] were too restrictive;

(3) defining "major life activity" to include "operation of a major bodily function" such as the neurological, circulatory, and reproductive systems (the provision contains a non-exhaustive list);

(4) eliminating the requirement that an individual asserting a "regarded as" claim show that s/he has an impairment that substantially limits a major life activity;

(5) clarifying that an impairment that is episodic or in remission is a disability if it would substantially limit a major life activity when active; and

(6) directing the courts to interpret the ADA as a remedial statute, i.e., liberally; and
conforming the definition of "disability" under the federal Rehabilitation Act, which covers federal, state, and local government employees, to the ADA-AA.

Working Through Meal Breaks

Do you work through your meal breaks?

I recently settled a case under the Fair Labor Standards Act that dealt with a situation that appears far too often.

My client had a 30 minute lunch deducted from her pay everyday, even though she was too busy to take her lunch break. When this happened, her employer was cheating her out of her pay. This is one of the most common employment law violations in the workplace today. It is illegal, and it is wrong.

I have heard from a number of lawyers who read this blog. If this is happening to any of your clients, please call me. I would be happy to talk through your client's legal options.

New 6th Circuit Case on Mixed Motive

On July 3, the Sixth Circuit issued an opinion that addressed the application of the U.S. Supreme Court's Desert Palace decision for the first time. Judge Clay wrote the majority opinion. Judge Gilman filed an opinion which concurred in part and dissented in part.

The decision was very favorable to employees. It acknowledged that most termination decisions do not involve a single motivation, and set out the analysis for cases where an employee is terminated for various reasons.

In my judgment, the decision makes employment discrimination cases much easier for employees. I've already talked with several lawyers and clients about the case. Give me a call if you have any questions.

ADA Amendments Act of 2008

In the nerdy world of employment lawyers, this was a big week. The U.S. House of Representatives passed a landmark bill to overhaul the Americans with Disabilities Act. The bill passed the House by a surprising vote of 402 to 17 on Wednesday. It now goes to the Senate, where it faces greater hurdles.

For employment lawyers, this is a big deal. Origionally known as the ADA Restoration Act, the bill legislatively overturns four U.S. Supreme Court cases. Perhaps most significantly, the bill overturns the Sutton decision, which held that employees do not have disabilities if they could correct their impairments with "mitigating measures," such as medication or medical devises. It remains to be seen what the Senate will do with this bill, though it arrives in the Senate with a good deal of momentum.

"Me Too" Evidence

In 2001, I wrote an article titled "Previous Acts of Discrimination: Probative or Prejudicial?" It was published in Vol 25 of the American Journal of Trial Advocacy. I've never told the story of what prompted me to write the article. In light of the Supreme Court's recent case of Sprint/United Management v. Mendelsohn, I feel vindicated and will come clean.

My current law partner, who was my boss at the time, was trying a retaliatory discharge case. I was second chair in the trial. Our primary evidence of retaliation was the testimony of another employee who was fired under the same circumstances. The judge excluded our evidence because the two situations were so similar, he found they would be unduly prejudicial. Effectively, he ruled our evidence was too relevant.

This drove me nuts, so I wrote an article that was published a year later. I argued that "other acts of discrimination" should be admissible under Rule 404(b) if the same decision maker was involved and there was reasonable temporal proximity.

The United States Supreme Court recently handed down a decision in a similar case. In the opinion of the Court, Justice Thomas held that such evidence could be admissible. In fact, the Court went even further than I did in my article. While the Court avoided ultimately deciding the issue, Justice Thomas' majority opinion went so far as to say that "me too" evidence could be admissible under certain circumstances even if DIFFERENT decision makers were involved.

We'll have to wait and see how the law evolves after this decision, but employee rights lawyers and their clients are certainly better off now.

This is the link to David Stout's article in the New York Times following the Court's decision. www.nytimes.com/2008/02/26/washington/26cnd-scotus.html?hp

Ceremony for Judge Todd

United States District Court Judge James D. Todd of Jackson celebrated his "semi-retirement" at a ceremony in the federal courthouse in Jackson on Friday. Judge Todd will soon become a senior judge.

This means that I will rarely have any future cases in Judge Todd's court. This will be a new experience for me, as Judge Todd has presided over the vast majority of my cases since my practice became exclusivley devoted to employment law in January of 2001.

I wanted to take a few lines to pay my respects to a career well spent. Though I have never had the chance to get to know Judge Todd on a deep personal level, he has issued dozens of opinions that have affected the lives of my clients significantly. Judge Todd was appointed to the federal bench by my favorite former president. His opinions have always been thoughtful and well reasoned. I haven't won every dispute that I have brought to his court, but I have always been treated with respect and fairness.

Judge Daniel Breen will replace Judge Todd in Jackson. He is a good man and a fine jurist. I look forward to practicing before him, and I wish Judge Todd God's blessings as he has more time to spend with his family and enjoy the fruits of his labor.

Law and Religion

Lawyers are required to insert themselves into some fascinating situations. Perhaps this is most clear when the worlds of law and religion meet. One of the most factually interesting cases I have handled involved two devout Christians (my clients) who interpret scripture very literally. Their former employer purchased a new payroll system that required the employees to “clock in” and “clock out” by placing their hand in a machine. My clients requested a different method of tracking their hours because they believed that such a machine was a forerunner to the “Mark of the Beast” in the Book of Revelation. They believe that, near the end of the earth, people will be required to take the Mark of the Beast on their forehead or right hand to engage in commerce. They believe that this payroll machine was a step in that direction , and they asked for another way to clock in. Instead of accommodating their belief, the company terminated my clients’ employment.

Title VII of the Civil Rights Act of 1964 requires employers to reasonably accommodate the sincerely held religious beliefs of employees unless it poses an undue hardship. I always enjoy telling people about my “Mark of the Beast Case.” When you’re an employment lawyer, you just never know what type of case will walk through the door next.