Voluntary Disclosure of Medical Information does not Create Employer Liability Under the ADA

A truck driver voluntarily informed his company’s human resources manager that he was HIV-positive. Several months later, the driver decided to become a driver-trainer for the company. The company’s human resources manager expressed concerns regarding the driver’s ability to work as a trainer because of his HIV-positive status. The company and the driver discussed the matter and ultimately decided that the driver’s HIV status would be disclosed to those he trained via an acknowledgement form informing trainees that the driver suffered from HIV. Ultimately, the relationship between the driver and the company deteriorated significantly, and the driver’s contract was terminated. The U.S. Employment Opportunity Commission (EEOC) sued the company on the driver’s behalf, raising a number of claims. Included among these was a violation of Section 102(d) of the Americans with Disabilities Act (ADA), which governs medical examinations and inquiries. Ultimately, the U.S. Court of Appeals for the Tenth Circuit held that Section 102(d) only prohibits the disclosure of confidential information obtained through an authorized medical examination. It does not, the court held, protect information that is voluntarily disclosed by an employee outside of an authorized employment-related medical exam or inquiry. This opinion recognizes an important limitation on Section 102(d), which could otherwise rapidly devolve into a strict-liability provision that creates liability for any disclosure. Such a result would negatively impact the ability of employers and employees to develop creative solutions to difficult situations, like the one presented here. Nevertheless, employers must tread with extreme caution whenever disclosing confidential employee information, as doing so could lead to litigation not only under the ADA, but under state tort laws as well.

Former Employee must Arbitrate Discrimination Claim Because the Employment Agreement Constituted a Valid Contract

An employee signed an employment agreement four years after she began her employment with the employer. The agreement contained an arbitration clause that set out a three-step process for resolving employment disputes, including discrimination claims. The employee sought to have the agreement invalidated based on lack of consideration and lack of notice as to the arbitration provision. The U.S. Court of Appeals for the First Circuit held that the employee’s agreement to the alternative dispute resolution process in exchange for the employer’s promise to waive certain defenses satisfied the consideration requirement for contract formation. The court also held that the plain text of the agreement provided the employee with adequate notice that employment discrimination claims would be subject to arbitration. Accordingly, the court ruled that the employee was required to arbitrate her claims. In light of this case, employers should consider utilizing a carefully drafted arbitration clause in their employment agreements as a viable alternative to being forced to litigate discrimination claims.

Tenth Circuit Finds no Pretext in the Termination of an Employee who was the Subject of 23 Reported Complaints

An African-American male worked as a technician for 10 years. During that time, he was the subject of 23 reported complaints from co-workers and supervisors, including five complaints of sexual harassment. The employer performed an investigation based on the complaints, which resulted in the employee’s termination. The investigation revealed that the employee had received many final warnings and should have been terminated much earlier. After being fired, the employee sued, alleging that the employer discriminated against him based on his race and retaliated against him for complaining about the lack of African-Americans in management. The employee argued that his long disciplinary history was proof that his inappropriate behavior could not have been the motivation for his termination and must have been pretext for discriminatory and retaliatory motives. The U.S. Court of Appeals for the Tenth Circuit rejected the employee’s claims and held that the employer’s discipline of the employee, including his termination, was coherent, consistent and lawful. Employers should be sure to have a coherent, progressive disciplinary policy that is applied consistently to all employees. Such a policy will serve as a valuable defense should claims of discrimination or retaliation arise after an employee has been disciplined.

Seventh Circuit Condones Broad EEOC Subpoena Power

After an African-American sales employee was fired, he filed a charge with the Equal U.S. Employment Opportunity Commission (EEOC) alleging that the employer discriminated against him based on his race and ultimately terminated him because he had filed an internal complaint of race discrimination. When the EEOC investigated the employee’s charge, it requested and received information from the employer. The information revealed that few African-Americans worked for the employer and that the employer maintained two separate sales teams that were racially divided. Based on those facts, the EEOC surmised that the employer may have engaged in discriminatory hiring. This led the EEOC to issue a subpoena to the employer seeking information about its hiring practices. The employer refused to comply, arguing that the materials were irrelevant to the employee’s race discrimination charge, in which he did not specifically allege discriminatory hiring. The U.S. Court of Appeals for the Seventh Circuit rejected the employer’s argument and held that there is “a generous standard of relevance for purposes of EEOC subpoenas” and that the agency may obtain “virtually any material that might cast light on the allegations against the employer.” In this instance, information pertaining to the employer’s discriminatory hiring practices could “cast light” on the employee’s discrimination complaint. Accordingly, the court enforced the EEOC’s subpoena. This case underscores the EEOC’s far-reaching subpoena power and serves as an alert that employers must be prepared to respond when the EEOC requests information.

OSHA Fines Employer $1.2 Million for Exposing Workers to Asbestos Hazards

AMD Industries, Inc.of Cicero, IL discovered asbestos containing materials on its heaters, boilers and connected pipes. Allegedly, they used their own workers, who were untrained and not issued proper protective clothing and equipment, to remove the asbestos and thereby exposed the workers to this hazard. AMD was prosecuted under OSHA's newly created "Severe Violators Enforcement Program," which targets recalcitrant employers who have previously been cited for multiple OSHA violations in the past. DOL press release.

Mexican Restaurant fined $1.2 million for violations of FLSA

A federal court has issued a judgement for $1.2 million for back wages and damages against the owner and the manager of two Mexican restaurants in Decatur, Illinois based on the court's finding of pervasive violations of the FLSA. The U.S. DOL had investigated the pay practices of these restaurants and found innumerable violations of the FLSA with respect to how the wait staff and kitchen staff were paid by the restaurant.

Voluntary Disclosure of Medical Information does not Create Employer Liability Under the ADA

A truck driver voluntarily informed his company's human resources manager that he was HIV-positive. Several months later, the driver decided to become a driver-trainer for the company. The company's HR manager expressed some concerns regarding the driver's ability to work as a trainer because of his HIV-positive status. The company and the driver discussed the matter, and ultimately decided that the driver's HIV status would be disclosed to those he trained via an acknowledgement form informing trainees that the driver suffered from HIV. Ultimately, the relationship between the driver and the company deteriorated significantly, and the driver's contract was terminated. The EEOC filed suit against the company on the driver's behalf, raising a number of claims. Included among these was a violation of Section 102(d) of the Americans with Disabilities Act ("ADA"), which governs medical examinations and inquiries. Ultimately, the Tenth Circuit held that Section 102(d) only prohibits the disclosure of confidential information obtained through an authorized medical examination. It does not, the court held, protect information that is voluntarily disclosed by an employee outside of an authorized employment-related medical exam or inquiry. This opinion recognizes an important limitation on Section 102(d), which could otherwise rapidly devolve into a strict-liability provision that creates liability for any disclosure. Such a result would negatively impact the ability of employers and employees to develop creative solutions to difficult situations, like the one presented here. Nevertheless, employers must tread with extreme caution whenever disclosing confidential employee information, as doing so could lead to litigation not only under the ADA, but under state tort laws as well.

EEOC v. C.R. England, Inc., Nos. 09-4207, 09-4217 (10th Cir., May 3, 2011)

OSHA Public Outreach: Private Employer Survey

OSHA has announced that it will send a survey to 19,000 private employers to get input concerning workplace safety & health management practices. The goal is to obtain information to help guide future rules, compliance and outreach efforts. As we mentioned earlier this month, the EEOC is also engaging in a public outreach effort to assist reviewing its regulations.

No Violation of Bankruptcy Code for Refusing to Hire Applicant due to Bankruptcy Filing

An applicant for a project manager position with an information technology employer was interviewed and offered the position, pending a background check. The background check revealed that the applicant had filed for bankruptcy in 2002, and the applicant was not hired because of that filing. The applicant sued, alleging that the employer had violated the U.S. Bankruptcy Code’s anti-discrimination provision when it decided not to hire him based on his debt history. The U.S. Court of Appeals for the Third Circuit rejected the applicant’s claim, finding that the Bankruptcy Code does not prevent a private employer from considering a bankruptcy filing in the hiring process. While the Bankruptcy Code states that a public employer may not “deny employment to” an individual based on a bankruptcy filing, it does not extend that prohibition to private employers. Rather, the Bankruptcy Code only creates liability for private employers who “terminate the employment of, or discriminate with respect to employment against, an individual who is or has been a debtor . . .” While this case indicates that private employers may consider an applicant’s debt history when making hiring decisions, employers must be aware of state laws that do not allow such considerations. For example, Illinois employers must now abide by the Employee Credit Privacy Act, which prohibits employers from discriminating against applicants based on their credit history.

Help us, Help you: EEOC asks for Input on Regulation Reforms

In a piece of beauracractic master craftsmanship, the EEOC has asked for input on possible regulatory reform by soliciting "Public Comment on Plan for Retrospective Analysis of Significant Regulations." From what we can discern from the press release, the agency is taking a serious look at stream-lining and improving the regulations covering the enforcement of six employment nondiscrimination laws: More ›