Recently, the Federal District Court for the Eastern District of Louisiana held that "severe obesity" qualifies as a disability under the Americans With Disabilities Act (ADA). The court also held that someone who is "severely obese" (defined by the EEOC as someone with a body weight of more that 100% over the norm) need not show that they have some underlying physiological disorder causing the obesity in order to be protected by the ADA. This is a signficant departure from many former court decisions which held that simply being obese did not constitute a disability under the ADA. The court notes that while being overwieght is not, in and of itself, a disability, those individuals who are severely obese or have an underlying physiological condition causing the obesity would qualify as disabled under the ADA.
The Louisiana Court applied recent amendments to the ADA that took effect in January 2009 which, among other things, signficantly broadened the definition of "disability." Prior to these amendments, the courts had interpreted the definition of "disability" in the ADA very narrowly, denying ADA protection to numerous individuals with very serious disabilities like diabetes, multiple sclerosis and cancer. The text of the ADA amendments specifically states that they were intended to overturn two U.S. Supreme Court opinions that excluded numerous individuals from the ADA's protection. An instructional chart setting forth some of the differences between the old version of the ADA as interpreted by the courts and the new ADA amendments can be found here. In sum, these new amendments were intended to move the focus away from whether the employee is disabled and turn attention to whether the employer was making discriminatory decisions based on an employee's impairment. In my experience, the amendments are having their intended effect.
There is one interesting side note to the enactment of the ADA amendments. The amendments clearly broadened the coverage of the ADA to many more people. This, in theory, could increase the number of employees (individuals) who may decide to sue their employers (businesses) for discrimination. While one would assume that typical political battle lines would be drawn in favor of, and in opposition to, the ADA amendments, that was not the case. Remarkably, as noted in various articles and elsewhere, the ADA amendments passed with overwhelming bipartisan support in Congress, were signed by President Bush and were born from a collaboration between disability, civil rights and employer groups. I wonder if these amendments would pass today?
Wednesday, December 21, 2011
Saturday, December 17, 2011
"They encourage you to report something and when you do, it seems as if it's taken out on you...."
According to the New York Times, those were the words used by Warren Glover, a former NBA security director and former police officer, in his attempt to explain his termination as a long time NBA security director following his reports of sex harassment and discrimination against female coworkers prior to his termination in July 2011. Glover has now sued the NBA and a number of individuals for retaliation.
Glover alleges that he had accumulated a "glowing performance record," but once he began reporting instances of harassment and discrimination of women in the workplace to his superiors, he received veiled and overt threats of retaliation and received poor performance reviews. Specifically, Glover states he communicated complaints from female employees to his superiors that they were shown pornographic material on the computer and were subject to offensive and intimidating remarks from male supervisors and coworkers.
In addition, Annette Smith, an administrative assistant who worked for Glover, complained to Glover that Bernard Tolbert, the NBA's then Senior Vice President for Security, engaged in a pattern of sexual harassment towards her. Smith complained that Tolbert exhibited a demeaning attitude and conduct towards women. As an example, Tolbert allegedly had shown Smith a photo of an obese, naked woman lying on top of a man who was barely visible in the picture. Tolbert, according to Glover, wanted Smith to incorporate the image in a presentation to NBA players warning them about the dangers of drinking. When Glover told Tolbert how offended Smith was by the conduct, Tolbert allegedly responded: "If she doesn’t like it, she can quit. One monkey don’t stop no show."
Smith prudently followed Tolbert's advice, quit her job and sued both Tolbert and the NBA. Following the initiation of Smith's lawsuit, Gregory Robinson, Glover's immediate supervisor, allegedly told Glover that he “was in trouble” and that any involvement in Smith's case “would be detrimental to his [Glover's] career.” I suspect that Robinson's statements, if true, had not been vetted by the NBA's general counsel.
Despite Robinson's overt threat of retaliation, Glover gave a deposition in Smith's case in May 2009 in which I suspect he substantiated many of Smith's allegations of harassment. Following his deposition, Tolbert allegedly stated to Glover: "It’s all your fault. You testified for your girl." Tolbert left the NBA near the end of 2010 following a "sizable settlement" that was paid to Smith, according to Glover. Glover was then terminated by James Cowley, Tolbert's replacement, for alleged performance reasons in July 2011. The termination, coincidentally, occurred one month after Glover had received a congratulatory letter and gold watch from the NBA Commissioner David Stern thanking him for his 10 years of dedicated service in June 2011.
Retaliation, or reprisal as it is called in the Minnesota Human Rights Act, is a form of workplace discrimination that is illegal under both federal and Minnesota law. In essence, it is illegal to retaliate against someone for reporting discrimination or harassment in the workplace. It is also illegal to retaliate against someone for participating in a discrimination investigation or testifying in a discrimination proceeding as Glover did here. Many employers, like the NBA, have written policies encouraging their employees to report discrimination or harassment to their supervisors or human resources department. Those policies also promise that the employee will not be retaliated against for making the report of discrimination.
The U.S. Supreme Court has held that retaliation can take many different forms depending on the nature of the job and the unique culture of each workplace. Terminations, demotions and pay cuts are obvious forms of retaliation. But the Supreme Court held that retaliation could, in certain circumstances, come in the form of a suspension, shift change or reassignment of job duties, among other things. In essence, the Court held that if the employer's retaliatory conduct would dissuade a reasonable person from making a complaint of discrimination in the first place, it can form the basis of a retaliation claim.
While the goal of prohibiting retaliation is a noble one, it is often very difficult for employers to follow in practice. Oftentimes, complaints of discrimination or harassment are directed at supervisors or coworkers we have to see and interact with every day. The accused get angry at their accuser for making what they often believe are baseless allegations and putting their employment in jeopardy. Their natural reaction is to lash out at their accuser. In some instances, when the accused is an important person in the organization, others will retaliate against the accuser because they don't want anything to jeopardize the employer's relationship with this key employee. The accused, or their supporters, often know retaliation is wrong and illegal. Nonetheless, they may say or do things that result in actionable retaliation claims. According to Equal Employment Opportunity Commission (EEOC), retaliation claims have become a much larger percentage of its workload, comprising over 36% of all claims made to the agency in 2010.
Employees are not protected for reporting any slight or injustice that may occur in the workplace. These anti-discrimination statutes clearly limit protection against retaliation to those who are reporting violations of those statutes that prevent discrimination against a individuals in a "protected class," i.e., discrimination on the basis of sex, race, national origin, age, religion, disability, sexual orientation, marital status, etc. Minnesota also has what is commonly referred to as the "Whistleblower Act," which also prohibits retaliation against an employee for reporting illegal conduct to the employer or governmental authorities.
One thing that is important to remember, however, is that there is no law prohibiting an employer from retaliating against an employee for reporting other types of unfair treatment in the workplace. I often receive calls from people who have complained to their employer that they are being treated differently than their coworkers, their reviews weren't fair, their boss is a jerk, or that their coworker is treating them disrespectfully, among a litany of other complaints. Unless you can show that the underlying conduct was directed at you because you belong to a "protected class" or have engaged in other protected conduct, you likely will not be able to bring a claim of retaliation. If you have any question about whether you have legal protection when making a report to your employer, it is always best to call a lawyer before making your report.
(Hat tip: Gillette-Torvik Blog)
Glover alleges that he had accumulated a "glowing performance record," but once he began reporting instances of harassment and discrimination of women in the workplace to his superiors, he received veiled and overt threats of retaliation and received poor performance reviews. Specifically, Glover states he communicated complaints from female employees to his superiors that they were shown pornographic material on the computer and were subject to offensive and intimidating remarks from male supervisors and coworkers.
In addition, Annette Smith, an administrative assistant who worked for Glover, complained to Glover that Bernard Tolbert, the NBA's then Senior Vice President for Security, engaged in a pattern of sexual harassment towards her. Smith complained that Tolbert exhibited a demeaning attitude and conduct towards women. As an example, Tolbert allegedly had shown Smith a photo of an obese, naked woman lying on top of a man who was barely visible in the picture. Tolbert, according to Glover, wanted Smith to incorporate the image in a presentation to NBA players warning them about the dangers of drinking. When Glover told Tolbert how offended Smith was by the conduct, Tolbert allegedly responded: "If she doesn’t like it, she can quit. One monkey don’t stop no show."
Smith prudently followed Tolbert's advice, quit her job and sued both Tolbert and the NBA. Following the initiation of Smith's lawsuit, Gregory Robinson, Glover's immediate supervisor, allegedly told Glover that he “was in trouble” and that any involvement in Smith's case “would be detrimental to his [Glover's] career.” I suspect that Robinson's statements, if true, had not been vetted by the NBA's general counsel.
Despite Robinson's overt threat of retaliation, Glover gave a deposition in Smith's case in May 2009 in which I suspect he substantiated many of Smith's allegations of harassment. Following his deposition, Tolbert allegedly stated to Glover: "It’s all your fault. You testified for your girl." Tolbert left the NBA near the end of 2010 following a "sizable settlement" that was paid to Smith, according to Glover. Glover was then terminated by James Cowley, Tolbert's replacement, for alleged performance reasons in July 2011. The termination, coincidentally, occurred one month after Glover had received a congratulatory letter and gold watch from the NBA Commissioner David Stern thanking him for his 10 years of dedicated service in June 2011.
Retaliation, or reprisal as it is called in the Minnesota Human Rights Act, is a form of workplace discrimination that is illegal under both federal and Minnesota law. In essence, it is illegal to retaliate against someone for reporting discrimination or harassment in the workplace. It is also illegal to retaliate against someone for participating in a discrimination investigation or testifying in a discrimination proceeding as Glover did here. Many employers, like the NBA, have written policies encouraging their employees to report discrimination or harassment to their supervisors or human resources department. Those policies also promise that the employee will not be retaliated against for making the report of discrimination.
The U.S. Supreme Court has held that retaliation can take many different forms depending on the nature of the job and the unique culture of each workplace. Terminations, demotions and pay cuts are obvious forms of retaliation. But the Supreme Court held that retaliation could, in certain circumstances, come in the form of a suspension, shift change or reassignment of job duties, among other things. In essence, the Court held that if the employer's retaliatory conduct would dissuade a reasonable person from making a complaint of discrimination in the first place, it can form the basis of a retaliation claim.
While the goal of prohibiting retaliation is a noble one, it is often very difficult for employers to follow in practice. Oftentimes, complaints of discrimination or harassment are directed at supervisors or coworkers we have to see and interact with every day. The accused get angry at their accuser for making what they often believe are baseless allegations and putting their employment in jeopardy. Their natural reaction is to lash out at their accuser. In some instances, when the accused is an important person in the organization, others will retaliate against the accuser because they don't want anything to jeopardize the employer's relationship with this key employee. The accused, or their supporters, often know retaliation is wrong and illegal. Nonetheless, they may say or do things that result in actionable retaliation claims. According to Equal Employment Opportunity Commission (EEOC), retaliation claims have become a much larger percentage of its workload, comprising over 36% of all claims made to the agency in 2010.
Employees are not protected for reporting any slight or injustice that may occur in the workplace. These anti-discrimination statutes clearly limit protection against retaliation to those who are reporting violations of those statutes that prevent discrimination against a individuals in a "protected class," i.e., discrimination on the basis of sex, race, national origin, age, religion, disability, sexual orientation, marital status, etc. Minnesota also has what is commonly referred to as the "Whistleblower Act," which also prohibits retaliation against an employee for reporting illegal conduct to the employer or governmental authorities.
One thing that is important to remember, however, is that there is no law prohibiting an employer from retaliating against an employee for reporting other types of unfair treatment in the workplace. I often receive calls from people who have complained to their employer that they are being treated differently than their coworkers, their reviews weren't fair, their boss is a jerk, or that their coworker is treating them disrespectfully, among a litany of other complaints. Unless you can show that the underlying conduct was directed at you because you belong to a "protected class" or have engaged in other protected conduct, you likely will not be able to bring a claim of retaliation. If you have any question about whether you have legal protection when making a report to your employer, it is always best to call a lawyer before making your report.
(Hat tip: Gillette-Torvik Blog)
Monday, December 5, 2011
Your Friend Is Wrong: A Non-Compete Agreement Is Typically Enforceable in Minnesota
I probably get three or four phone calls a month from individuals who are unhappy at work, are thinking about making a change in their employment but wonder if that non-compete agreement they signed a year ago is really enforceable. The conversation generally goes like this:
Potential Client [PC]: "Everyone I've talked to says these things [non-compete agreements] aren't enforceable."
Me: "Well, who have you spoken with exactly?"
PC: "Everyone."
Me: "Have you spoken to another lawyer about whether your non-compete is enforceable?"
PC: "No. But how can it be enforceable? I have a right to work."
Me: "I wish it were that simple."
Indeed, as one recent article in the Minneapolis Star Tribune accurately stated, the increasing mobility of the workforce has resulted in an increase in the number and types of employees subject to non-compete agreements. As a general matter, non-compete agreement agreements are enforceable if its terms are reasonable and the employee is getting something a sufficient value in return.
When evaluating whether the terms of the non-compete agreement are reasonable, factors to consider include (1) what the employee did for the employer, (2) the type of work the employee will be prohibited from doing for a new employer, (3) the length of the time the employee is restricted from competing with the employer, and (4) the geographic scope of the restriction (i.e., whether you are prohibited from working in a particular town, state, country or the entire world). Generally, courts will uphold those agreements that are reasonable under the circumstances. The court also has the ability to unilaterally modify the restrictions to make them "reasonable" under the circumstances, which is often referred to as the "blue pencil doctrine."
A court also will look to see whether the employee received adequate consideration in exchange for signing the non-compete agreement. In other words, courts want to make sure the employee received something of sufficient value in exchange for giving up some of their post-employment rights. Typically, if a non-compete is signed at the beginning of the employment, the court will hold that the employment itself is of sufficient value to support the enforceability of the non-compete agreement. However, if the non-compete is being presented to a current employee after employment has began, the employer typically needs to offer more than the promise of continued employment. Courts typically find that a bonus, stock options, pay raise, promotion or other type of tangible benefit will, in most instances, be sufficient. In the end, the court will look at whether the consideration given was reasonable given the terms of the non-compete and all other circumstances.
Most people sign a non-compete without appreciating the implications to their future employment. A non-compete can be especially oppressive if you have specialized experience in a particular industry or have a particular expertise that you will not be able to utilize for a period of time following separation from your employer. This may result in a significant limitation in the types of positions you may be eligible to apply or may result in a decrease in your expected pay because you won't be able to use those skills that make you the most valuable in the job market.
My suggestion is that you spend time negotiating the scope of the non-compete with the potential employer to make sure it protects both the employer's legitimate interests while it allows you to be as marketable to future employers as possible.
Potential Client [PC]: "Everyone I've talked to says these things [non-compete agreements] aren't enforceable."
Me: "Well, who have you spoken with exactly?"
PC: "Everyone."
Me: "Have you spoken to another lawyer about whether your non-compete is enforceable?"
PC: "No. But how can it be enforceable? I have a right to work."
Me: "I wish it were that simple."
Indeed, as one recent article in the Minneapolis Star Tribune accurately stated, the increasing mobility of the workforce has resulted in an increase in the number and types of employees subject to non-compete agreements. As a general matter, non-compete agreement agreements are enforceable if its terms are reasonable and the employee is getting something a sufficient value in return.
When evaluating whether the terms of the non-compete agreement are reasonable, factors to consider include (1) what the employee did for the employer, (2) the type of work the employee will be prohibited from doing for a new employer, (3) the length of the time the employee is restricted from competing with the employer, and (4) the geographic scope of the restriction (i.e., whether you are prohibited from working in a particular town, state, country or the entire world). Generally, courts will uphold those agreements that are reasonable under the circumstances. The court also has the ability to unilaterally modify the restrictions to make them "reasonable" under the circumstances, which is often referred to as the "blue pencil doctrine."
A court also will look to see whether the employee received adequate consideration in exchange for signing the non-compete agreement. In other words, courts want to make sure the employee received something of sufficient value in exchange for giving up some of their post-employment rights. Typically, if a non-compete is signed at the beginning of the employment, the court will hold that the employment itself is of sufficient value to support the enforceability of the non-compete agreement. However, if the non-compete is being presented to a current employee after employment has began, the employer typically needs to offer more than the promise of continued employment. Courts typically find that a bonus, stock options, pay raise, promotion or other type of tangible benefit will, in most instances, be sufficient. In the end, the court will look at whether the consideration given was reasonable given the terms of the non-compete and all other circumstances.
Most people sign a non-compete without appreciating the implications to their future employment. A non-compete can be especially oppressive if you have specialized experience in a particular industry or have a particular expertise that you will not be able to utilize for a period of time following separation from your employer. This may result in a significant limitation in the types of positions you may be eligible to apply or may result in a decrease in your expected pay because you won't be able to use those skills that make you the most valuable in the job market.
My suggestion is that you spend time negotiating the scope of the non-compete with the potential employer to make sure it protects both the employer's legitimate interests while it allows you to be as marketable to future employers as possible.
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