Below is a review of the posts (on Facebook, LinkedIn, and X [formerly Twitter]) from the past week. You can check out the full posts by clicking on the links.
The post on Sunday 12/10/2023 noted Bank will offer accommodation to employee with anxiety disability. Citizens Bank has agreed to change its company policy and pay $100,000 to a former employee of a call center to resolve a disability discrimination lawsuit filed by the EEOC. According to the suit, Citizens Bank declined to accommodate the employee after he developed an anxiety disorder and requested reassignment to a position that did not require him to field calls with aggravated customers over the phone. There were literally hundreds of nearby job openings, but what Citizens Bank did instead is in the post. As a result, the employee was forced to resign, the EEOC said. The EEOC found that the bank’s refusal violates the ADA because reasonable accommodation might include reassignment. The EEOC filed suit in federal court 2019 after conciliation failed. What are the employer’s obligations under the ADA? See the post.
Interestingly, this agreement comes a few weeks after a federal district court judge in Massachusetts upheld a $24 million award for a woman who sued her employer for retaliation and discrimination because of her social anxiety disorder.
What else Citizens Bank must do under the settlement is noted in the post – because monetary relief is often not enough.
TAKEAWAY: It can be so much more costly for employers if they don’t satisfy their interactive accommodation obligations under the ADA than if they do so from the start.
The post on Monday 12/11/2023 reminded that employee protection limited for ADA and FMLA discrimination and retaliation claims. On November 8, 2023, the US District Court for the Eastern District of Pennsylvania granted the defendant’s motion for summary judgment and dismissed the plaintiff’s complaint in Erin Coleman v. Children’s Hospital of Philadelphia. What is the case about?
Coleman alleged that her former employer, the Children’s Hospital of Philadelphia (CHOP) discriminated and/or retaliated against her in connection with her medical leave for gallbladder surgery and COVID-19. Details regarding her work and leave are in the post. Coleman was suspended pending investigation on February 25, 2021 – the supposed reasons for termination are in the post. She sued, asserting disability discrimination and retaliation under the ADA and retaliation under the FMLA.
The court first addressed Coleman’s claim that CHOP violated the ADA by terminating her because of her real or perceived disabilities. The court set the threshold for an ADA discrimination claim; see the post. Coleman claimed that she was suffering from an “ongoing, episodic and serious GI condition that substantially limited her ability to perform a major life activity” at the time of her firing. But the court found to the contrary in a detailed description in the post. With respect to her COVID-19 issues, the court held that no jury could find Coleman to be regarded as being disabled because CHOP reasonably understood that Coleman’s COVID-19 issues had fully resolved. The court then moved to the nexus between disability and termination due to same. How the facts played into that analysis is in the post.
Then the court moved on to Coleman’s retaliation claims. Relative to her ADA retaliation claim, the court said that use of FMLA and/or administrative leave (such as PTO) is not an invocation of her rights under the ADA so there could be no retaliation for doing so. The analysis for FMLA retaliation was slightly different – see the post.
The opinion provides a roadmap of sorts for employers on dealing with employees who claim to be disabled, including as relates to contracting COVID-19 and the effect of having recovered from a disability (but employers should be careful here for the reasons noted in the post). Employers should also keep in mind temporal proximity as to potential claims under the ADA or FMLA and what is a protected activity under the ADA.
TAKEAWAY: Resolved medical conditions and non-long-COVID symptoms are not “disabilities” under the ADA; timing is crucial to a claim; and FMLA and admin leave are not a use of the ADA. Consult an employment lawyer.
The post on Tuesday 12/12/2023 was a condo column: forced savings – for a good reason (Fannie/Freddie criteria). It is – or was recently – budget season for condo and homeowner associations. That means thinking about next year. Including the fact that Mae is tightening its requirements for lending.
Why do you care about this? Fannie Mae is the largest secondary mortgage lender in the nation. It lends money to banks, so banks can make loans, which Fannie Mae then buys from the banks. Fannie Mae is backed by the federal government. Fannie Mae sets guidelines for the loans it buys from banks; it is those guidelines that recently changed (again!) relative to condo units. Why do purchasers, owners and associations care? See the post.
Fannie tightened lending practices after the Surf City catastrophe; other lenders did the same. To minimize losses that have occurred, they now require much more in the way of condo inspections of infrastructure. They also look at certain saving practices – and if your association is not following them … see the post. Think coal from Santa but much more serious.
Fannie Mae’s bad list is confidential, but this past summer it was discovered that there are now more than 1,400 associations around the nation that are on the list, up more than 50% in the past few years. So how does the process work? Banks look at several factors. For example, each condo association is required to have a line item in its budget that shows it is putting (at least) 10% of the total budget into reserves each year. Why? See the post. Where did the 10% come from? Good question. It’s a randomly-chosen percentage that shows Fannie Mae an attempt to save for long-term capital expenses.
There are other things lenders look at, such as operating like a condotel (see the post for a description) and investor ownership. There are two sub-groups to investor ownership – they are detailed in the post. All easy to “fix”, right? Maybe, but Fannie is not done yet.
Fannie Mae’s last issue comes in when the association has major infrastructure for which it is responsible; think roofs and the other things listed in the post. Fannie Mae wants to know those items won’t fall apart, cause damage, foreclosures, and real monetary problems for Fannie Mae. How does Fannie Mae know about these things? See the post for the process. So how do property managers and boards members answer the questionnaires without having the requisite expertise – and not wanting to answer incorrectly which might have the ramifications noted in the post. The first step is to get a reserve study done by a licensed professional or update the existing one. And more as noted in the post. Then when one of those questionnaires arrives, attach the reserve study with a statement similar to the one in the post. You don’t want coal from Fannie Mae.
TAKEAWAY: Keep your condo association on Fannie Mae’s good list (or not on its bad list) – do what’s now all but required but also good for the association. And get assistance from a community association lawyer.
The post on Wednesday 12/13/2023 was about US Supreme Court cases employers should keep an eye on this 2023-2024 term. But first brief updates on the legal developments from the 2022-2023 year. First, the FTC’s vote on the final version of its proposed rule that, if enacted, would amount to a nearly complete nationwide ban on employers’ use of non-compete agreements, is delayed until April 2024. Why it is delayed is in the post – and may be a good thing. Then in February 2023 the Supreme Court clarified in Helix Energy Solutions v. Hewitt that a highly compensated employee may be entitled to overtime pay under the FLSA if he or she is not paid on a salary basis. There’s more to that one, so see the post.
Then came June 2023. On the first day the Supreme Court decided Glacier Northwest, Inc. dba Calportland v. International Brotherhood of Teamsters Local Union No. 174; the holding there was that the NLRA does not preempt an employer’s state-law tort claim alleging that a union intentionally destroyed the company’s property during a labor dispute. The post has an explanation of what this really means. Then on June 29th the Supreme Court decided Students for Fair admissions, Inc. v. President and Fellows of Harvard College and Students for Fair Admissions, Inc. v. University of North Varo9lina et. al. holding that the affirmative action admissions programs used by Harvard and the University of North Carolina violate the Fourteenth Amendment’s Equal Protection Clause. Why they are in violation is in the post. And keep in mind our many posts since the decision came out on how companies are now looking at their in-house DEI efforts in light of the decision. June 30th brought the Supreme Court’s decision in 303 Creative LLC v Elenis that Colorado could not enforce its nondiscrimination law against a website designer who declined to create wedding websites for same-sex couples. Again, how that may impact employers is in the post.
So what does the Supreme Court have on its plate this year of interest in the employment arena? Here are a few, starting with potential limits on who can bring an ADA accessibility lawsuit (i.e., someone who actually wants/tried to use the service/item or a tester). The case is Acheson Hotels v. Laufer. The basis of the suit was the hotels’ alleged failure to detail on their website the accessible features in the hotel and guest rooms to allow individuals with disabilities to determine whether the hotel or guest rooms meet their accessibility needs. The hotel argued that this alone was insufficient to constitute an injury giving the plaintiff standing to sue. The court decisions by which this got to the Supreme Court are noted in the post (as well as the ramifications of either ruling from the Supreme Court).
Want more? Chevron deference to agencies may now be at risk. In Loper Bright Enterprises v. Raimondo the Court will consider whether to overrule, or at least clarify, the long-standing Chevron doctrine that courts should defer to agencies’ reasonable interpretations of ambiguous laws. How the deference works – as well as the underlying facts and lower court procedural stance in Loper – are in the post. If the Court overrules Chevron, there could be far-reaching implications for employers that deal with administrative agencies. One example is in the post. There might also be a ‘bright” side to the Court overruling Chevron; see the post.
And there are 2 more cases on the Supreme Court’s 2023-2024 docket that are of interest to employers: Muldrow v. St. Louis and Murray v. UBS Securities, LLC. The issues before the Court, as well as a bit of background about each, is in the post along with the procedural run-up to the Court. And why do employers and their lawyers care about these cases? Because of the potential future impact on workplaces and expansion of any decision to similar statutes.
TAKEAWAY: Employers are wise to keep an eye on what may be coming down the pike – and asking their employment lawyers to keep them apprised – so that they can plan for any changes.
In the post on Thursday 12/14/2023, the question was: is a lateral job transfer with no change in pay or benefits an adverse employment action under Title VII? HINT: The Supreme Court has decided to weight in and resolve a split in the circuit courts. The case is Muldrow v. City of St. Louis. Let’s look at the facts of the case.
Sergeant Jatonya Muldrow was a patrol detective for the City of St. Louis Police Department. Muldrow received a promotion to the Intelligence Division in 2008. Muldrow worked high profile cases and oversaw the Police Department’s Gang Unit. The FBI later deputized Muldrow to work as a task officer (which gave Muldrow various benefits listed in the post). In 2017, Captain Michael Deeba took over as the Division’s commander of intelligence. Deeba made numerous personnel changes, including transferring 22 officers (17 men) into other positions, moving four officers (men and women) out of the Intelligence Division, and transferring Muldrow to the Fifth District. The effect of that change on Muldrow is in the post. Muldrow filed a charge with the Missouri Commission on Human Rights (Commission) claiming she was transferred for discriminatory reasons related to her gender. She received a right-to-sue letter and began applying for other roles within the department. Muldrow was later transferred back to the Intelligence Division (where Deeba was still the commander) and resumed all her previous responsibilities, including FBI task officer. Muldrow filed suit in federal court alleging that her 2017 transfer from the Intelligence Division was an adverse employment action based on gender discrimination and that, in retaliation for engaging in protected conduct, the Department did not approve her later requests to transfer.
The U.S. District Court (trial court) issued the first decision – against Muldrow. She appealed to the Eighth Circuit. What the appellate court did, and the detailed basis for its decision, is in the post. Since the appellate court affirmed the trial court, Muldrow appealed and argues that the Eighth Circuit’s holding is contrary to Title VII §703(a)(1)’s text. How Muldrow characterizes the appellate court’s ruling is in the post. Muldrow argues that any transfer should automatically establish per se harm under §703(a)(1) (with her cited basis noted in the post). Muldrow also argues that Congress did not limit § 703(a)(1) to discrimination that imposes a “significant disadvantage.”
Needless to say, the City of St. Louis (City) disagrees and argues that there must be some “objectively meaningful harm” relative to a job transfer based on the statutory text and context of §703(a)(1). More details on its argument are in the post. The City asserts that §703(a)(1) must be read with §703(a)(2), resulting in a requirement that there be material, objective harm.
A list of some of those who filed amicus briefs is in the post (and might be of interest).
TAKEAWAY: If a lateral transfer with no change in pay or benefits can be an adverse employment action under Title VII, there could be implications for employers related to day-to-day workplace decisions short of demotion or termination; likewise, if the definition of adverse employment action expands, then almost surely more litigation will follow.
The post on Friday 12/15/2023 noted that a community center exercises right to move building from Condo Association land – legal documents can impact your Association! The effort to save the Manchester Community House was moving ahead after the Nov. 13 special Town Meeting authorized the Board to enter into a 10-year lease for use of the building — and then it wasn’t. The Board Chair said the contract between the Association and Manchester-by-the-Sea was due to be signed shortly after Town Meeting – but never was. Instead, a few days after Town Meeting, the Community Center exercised their right under the lease to move the building by the Feb. 10 deadline. So now the association is at a standstill, knowing the building will be moved but not able to act for a few months. How did this happen? The Community Center owns the building, while the Association owns the land underneath it. The relevant lease provisions are noted in the post. The building is approximately 80 feet long by 24 feet wide with 13 feet of porch. The “situation” came to light after the town was informed of the landlord-tenant dispute with Association. The Center has a below-market lease; because of that, the Association had certain requests (as noted in the post). At some point lease negotiations broke down and the Association eventually sent a termination letter to the Community Center. As a result, occupancy ended Nov. 12 and the Center had 10 days to advise the Association of its intent to move the building or turn it over to the Association. Then the town got involved and a plan was drawn up – as detailed in the post. But …
TAKEAWAY: Leases are legal documents – be careful what you ask for as you might get it – and not really want it. Get assistance from a community association lawyer.
Finally, in the post yesterday 12/16/2023, we saw the EEOC sues Alternate Solutions Health Network for disability discrimination. Is this a no brainer? Alternate Solutions Health Network, LLC (ASHN), and its affiliated entity Beaumont ASHN, LLC, are home health care services providers. The EEOC alleges in a recent suit that they failed to provide a reasonable accommodation to a disabled employee and then terminated her employment. The employee was an occupational therapist who provided therapy services to patients in their homes. In February 2021 she suffered a grand mal seizure and was later diagnosed with a brain tumor and seizure disorder. She was released to return to work with restriction; because of the restriction, she asked for an accommodation. A reasonable one that would have no cost to the ASHN. The post notes the restriction and her requested accommodation. But ASHN denied her request and then terminated her. The EEOC filed suit after conciliation failed. What does the suit seek by way of relief? See the list in the post. One must wonder what defense ASHN has to the allegations in the suit …
TAKEAWAY: Make sure you live up to your obligations under the ADA to engage in the interactive accommodation process. Know the legal bases upon which you can refuse accommodation – talk to an employment lawyer.
York, Pennsylvania 17403