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Disabled rights roundup

by Walter Olson on January 13, 2014

  • “US Airways has agreed to pay $1.2 million in fines because it provided inadequate wheelchair service at the Charlotte and Philadelphia airports” [Charlotte Observer, USA Today; on abuses of the right to request wheelchair service at airports, see links in our post last May] Support animals on airplanes, cont’d [NYT]
  • In New York, indefinite leave of absence may be deemed a reasonable accommodation that employer is obliged to grant [Erin McPhail Wetty, Seyfarth] Per Second Circuit in NYC case, timely attendance not essential job function [Mark Kittaka, Barnes & Thornburg]
  • US disability rate fell 25 percent between 1977-87, then more than doubled [Tad DeHaven, Cato via Bryan Caplan] Has a Kentucky attorney found holes in the SSDI system? [Jillian Kay Melchior]
  • Per EEOC, employer may be obliged to grant employee’s request to work from home as reasonable accommodation [Johanna Wise, Seyfarth]
  • Lawprof suspended for allegedly yelling at subordinates sues under ADA [Althouse, Above the Law]
  • “None of the people who complained had even been into the store” [San Diego Reader]
  • And yet more from EEOC: employer “integrity testing” meant to assess applicants’ honesty, trustworthiness and dependability can run afoul of disabled-rights law [link]

And a good thing too:

In 2008, 1.9 million Portuguese workers in the private sector were covered by collective bargaining agreements. Last year, the number was down to 300,000.

Spain has eased restrictions on collective layoffs and unfair dismissal, and softened limits on extending temporary work, allowing workers to be kept on fixed-term contracts for up to four years.

The New York Times being the New York Times, the trend story is largely anchored by the views of critics who detest the trend and view it as ushering in (new Times preoccupation) American levels of economic inequality, but it still more or less admits that labor market liberalization in Germany has contributed to that nation’s relatively strong economic performance in recent years. Comedy bonus: a description of the United States as a place “where the government hardly interferes in the job market.” [Eduardo Porter, New York Times]

“Did the law firm [Ropes & Gray] retaliate against John Ray III by providing information about his Equal Employment Opportunity Commission race-discrimination complaint to the Above the Law blog?” That is among the questions a federal court in Boston will consider in a trial beginning next month. Specifically, the firm sent a copy of the EEOC’s determination letter in Ray’s case to the popular blog. Since no law bars “retaliation” by employees against employers, we might arrive at a situation in which an employee is free to try his case in the press, while an employer’s hands are tied against responding in kind. [ABA Journal; earlier]

  • Defend yourself in the press against an employee’s litigation publicity, and you’ve “retaliated”? If you say so, Your Honor [Jon Hyman]
  • Hijab-wearing applicant never informed Abercrombie she needed religious accommodation of Look Policy; 10th Circuit reverses EEOC win [Wolters Kluwer, EEOC v. Abercrombie & Fitch]
  • What, no more drop-ins from other states? “Gov. Jerry Brown signs athlete workers’ comp bill” [L.A. Times, background]
  • ProPublica on supposed decline and fall of employment class actions after Wal-Mart v. Dukes [Ted Frank, my take]
  • How many online readers need to follow OFCCP press releases on federal-contractor law but have so little fluency in English that they require a version in Hmong, Lao, Tagalog, or Urdu? [Department of Labor]
  • What happened to the carpal tunnel epidemic? The condition itself didn’t go away [Freakonomics via Ira Stoll]
  • Gail Heriot on affirmative action at Cato Constitution Day [video]

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The article, by Ruth Graham in the Boston Globe “Ideas” section, takes more or less for granted that private parties’ liberties of free association and contract must be curtailed in order to right the “galloping injustice of ‘lookism'”:

Tentatively, experts are beginning to float possible solutions. Some have proposed legal remedies including designating unattractive people as a protected class, creating affirmative action programs for the homely, or compensating disfigured but otherwise healthy people in personal-injury courts. Others have suggested using technology to help fight the bias, through methods like blind interviews that take attraction out of job selection.

Well, if experts favor these measures — though there is nothing even remotely new or unusual about allowing damage recovery for disfigurement in a personal injury action — well, okay, then. I was critical of the “looksism” crusade some years back in my book on employment law, The Excuse Factory, but clearly to not enough effect, since more such laws have been passed since then:

The Constitution forbids employment discrimination on the basis of things like race, sex, and religion [no, it doesn't -- it's federal statutes that do that -- W.O.], but only a few jurisdictions have tried to add appearance to the list, starting with the parts of appearance you can measure. The state of Michigan banned height and weight discrimination in 1977, and six municipalities, including Washington, D.C., and San Francisco, have followed suit with similar statutes. These laws haven’t led to a flood of frivolous suits, as libertarians might fear — in fact, they haven’t led to many suits at all, which suggests they aren’t doing much more than tackling the most egregious cases. ([Stanford lawprof Deborah] Rhode’s book reports that in Michigan, an average of just one case a year makes it to court.)

Notice that the paucity of cases filed directly under these statutes (although one would find more if one looked at suits invoking the ADA) is somehow supposed to be a reproach to libertarians for objecting. One might equally well interpret it as an indicator that such laws are mostly a waste of time even from their proponents’ standpoint, since so few persons are willing to swear out a public document in front of the world alleging that they have lost job opportunities due to personal unattractiveness. (& welcome Instapundit readers)

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The HR maxim “Hire slow, fire fast” takes deeper root as the law provides more and more handles for the disgruntled employee to litigate. I explain why at Cato at Liberty.

  • Litigious anti-feminist loses case alleging that Manhattan club’s expensive bottle service for old men, free drinks for young women violate bias law [NY Mag, NYDN]
  • “Hospital cannot ban all service animals from psych ward, federal judge rules” [ABA Journal] “New Yorkers use bogus ‘therapy dog’ tags to take Fido everywhere” [NY Post via Althouse]
  • Canada: foes seek to prevent opening of evangelical law school in B.C. [CBC, Jonathan Kay/National Post, Globe and Mail editorial, TaxProf]
  • Related: broad religious exemptions in anti-bias law make good complement to same-sex marriage [Ilya Shapiro/Cato, my take] Gay couples must also live and let live, or else liberty is in for some cake wrecks [Bart Hinkle, Richmond Times-Dispatch]
  • Hiring based on IQ testing: widely regarded as legally suspect, but mostly tolerated in practice? [Bryan Caplan]
  • “‘Borgata Babes’ lose weight bias suit; judge says casino policy was legal” [ABA Journal, earlier]
  • 2009 expansion of federal hate-crimes law headed for a court challenge? [Josh Gerstein, Politico]

In many cases, I’m sympathetic when government defendants who get sued ask for their legal costs to be covered. Among other reasons: 1) claims against individual supervisors are regularly advanced tactically in cases that really arise from discontent aimed at the government as employer; and 2) the in terrorem effect of individual liability can otherwise create pressure for pre-emptive settlement. Does it make a difference when the alleged misconduct serves the purpose of personal gratification for the boss rather than advancing the interests of the government employer? Or — in the case of San Diego’s mayor — that his bad behavior toward women has apparently been an open secret in the city’s political circles for years? [San Diego Union-Tribune]

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I’ve got a new post up at Cato at Liberty on three important decisions for the business community decided today at the Supreme Court, two on employment law and one on pharmaceutical pre-emption: Vance v. Ball State on liability for supervisorial harassment, University of Texas Southwestern v. Nassar on mixed-motive retaliation, and Mutual v. Bartlett (more) on design default preemption for a generic drug. (& welcome Coyote, Point of Law, SCOTUSBlog, Taegan Goddard/WonkWire readers)

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“A pot-smoking city [of Ottawa] worker couldn’t convince a court that his reefer madness was a disability. …[Claude] Lavoie tried to claim his penchant for pot qualified as a disability, which would have obliged the city to accommodate him under provisions of the Ontario Human Rights Code.” [Ottawa Sun]

Asking existing employees about their family medical history might offer safety benefits in the workplace, both by indicating vulnerabilities that might be countered by protective measures, and by helping to distinguish ailments with a strong congenital influence from those that might signal occupational disease. However, the Equal Employment Opportunity Commission says that such questioning is “genetic discrimination” and unlawful under the Genetic Information Nondiscrimination Act (GINA), which became law in 2009. Fabricut, a decorative fabrics firm, will pay $50,000 to settle charges that it improperly asked about family medical history and also that it improperly engaged in disability discrimination by refusing to employ as a clerk a woman it regarded as having carpal tunnel syndrome. [EEOC press release]

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Two years ago the city of Portland, Ore. became the first to adopt a voluntary policy against fragrance use in city offices. (A similar Detroit measure had been taken in response to a lawsuit.) Now Julee Reynolds, a city worker who says she suffers from multiple chemical sensitivity (MCS), has sued Portland for allegedly not doing enough to enforce the policy. [KOIN; earlier here, here, etc.]

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Sometimes, when food choices are not involved, Mayor Michael Bloomberg is actually on the right side of controversies. One instance of that is the series of battles he’s having with the New York City Council on various bills to regulate employers. The Council recently overrode his veto of a bill creating unemployment status as a new protected class, and has pressed a paid-sick-leave bill as well. A third proposal: forbidding employers to consider job applicants’ credit records in hiring. Eight liberal-leaning states have already enacted similar measures but as the Proskauer Rose law firm explains, the NYC proposal goes further:

Unlike the vast majority of laws in effect and in legislation pending across the nation, however, the Proposal does not explicitly enumerate exceptions for managerial positions, or positions with access to bank or credit card information, Social Security numbers, significant amounts of cash, or confidential or proprietary information. Although the Proposal exempts employers required by law to run credit checks on their applicants and employees, its silence as to these other standard exceptions should give New York City employers particular pause should the Proposal become law.

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Some eye sleep patterns as the next frontier for government intervention in the name of public health. [Cohen, Prawfsblawg]

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National Public Radio is the latest news organization to take note of a very unwelcome, and presumably unforeseen, effect of ObamaCare that has already been covered extensively on the blogs.

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A new book and a “60 Minutes” report have brought back into the news the case of the killer nurse who murdered at least dozens of patients in New Jersey and Pennsylvania with drug overdoses and may have killed many more. There’s plenty of blame to go around among hospitals and others, but readers of this site will recall reason Cullen’s career went on so long: “When hospitals checked Cullen’s resume and previous jobs, they were given positive or neutral reports by his former employers, who feared getting sued if they provided a negative one.” [Asbury Park Press] Earlier here, here, etc.

  • For most private-sector employers it’s illegal to let workers take comp time off in lieu of overtime; H.R. 1406, the Working Families Flexibility Act of 2013, would fix that [Hyman]
  • Christine Quinn take note: laws requiring paid sick leave do not constitute social progress [Richard Epstein]
  • Occupational hazards of bagpipe playing (other than being chased out of your neighborhood) [Donald McNeil Jr., New York Times]
  • “Phoenix ‘Not Looking for Strong Swimmers’ for Lifeguard Jobs” [David Bernstein; earlier on discrimination against deaf lifeguards]
  • Decline of full-time work in retail sector in response to ObamaCare: year’s biggest employment story? [Warren Meyer, FoxNews (largest movie theater chain cuts hours for thousands of employees)]
  • City of Philadelphia not doing well on workers’ comp program, to say the least [Workers' Compensation Institute]
  • “New labor rule will violate attorney-client privilege” [Diana Furchtgott-Roth, D.C. Examiner]
  • “Calling a Co-Worker ‘Stupid’ Not Enough to Prove ‘Disability’, Court Says” [Daniel Schwartz]

A survey promoted by the U.S. Department of Labor makes that curious claim, but Jon Hyman’s readers beg to differ [Ohio Employer Law]

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