"Isn't there supposed to be a good cop?" -- 9th Circuit Holds Bilious Conduct Not a Disability Under ADA

Cantankerous employees beware! Being a jerk is not a disability and, at least according to the Ninth Circuit in Weaving v. City of Hillsboro, blaming bad behavior on a physical or mental impairment does not guarantee protection under the Americans with Disabilities Act ("ADA").

Matthew Weaving was diagnosed with ADHD as a child, but stopped exhibiting symptoms at the age of 12 and was taken off of his ADHD medication. His interpersonal problems continued through adolescence and into adulthood. Weaving pursued a career as a police officer and eventually joined the Hillsboro (Oregon) Police Department in 2006. His relationship with subordinates and peers was strained. Co-workers complained that he often was demeaning and derogatory. Following a subordinate’s complaint about Weaving in 2009, the Police Department placed him on leave pending investigation.

While on leave, Weaving decided that some of his interpersonal difficulties might have been due to ADHD so he sought a mental health evaluation. The psychologist concluded that Weaving had adult ADHD and sent a letter to the police department explaining his diagnosis. The next day, Weaving sent a letter informing his employer about the diagnosis and requesting “all reasonable accommodations.”

A few weeks later, the police department concluded its investigation, finding that Weaving had created and fostered a “hostile work environment for his subordinates and peers,” noting that they described him as “tyrannical, unapproachable, non-communicative, belittling, demeaning, threatening, intimidating, arrogant and vindictive.” Following a fitness for duty examination in which two doctors found Weaving fit for duty despite his ADHD diagnosis, the police department terminated Weaving’s employment.

Weaving sued under the ADA claiming that the police department fired him because of his disability. The case went to trial and the jury returned a verdict in Weaving’s favor finding that he terminated because of his disability. The jury awarded total damages, including attorney’s fees, of over $700,000.

 

In a 2-1 decision, the Ninth Circuit reversed based on its finding that Weaving’s inability to get along with others was not a disability under the ADA. The court distinguished this from cases holding that an inability to interact with others can be a disability: “To hold otherwise would be to expose to potential ADA liability employers who take adverse employment actions against ill-tempered employees who create a hostile work environment for their colleagues.” (What might strike employers as a proper outcome, Weaver’s lawyer called “a bunch of baloney.” Just a matter of perspective, I suppose.)

This case demonstrates that even under the expanded definition of “disability” under the 2008 Americans with Disabilities Act Amendments Act ("ADAAA"), there are limits, at least under the right circumstances. While typically it is better for employers to simply assume the medical condition is a disability and argue that the employee cannot perform the essential functions of the job even with a reasonable accommodation—how exactly do you accommodate “tyrannical” conduct?—Weaving demonstrates that there still is a limit to what is a "disability" under the ADA.

Court Rules That Telecommuting May Be a Reasonable Accommodation Under the ADA

The Sixth Circuit recently held in EEOC v. Ford Motor Co. that regular attendance may not mean physical presence in the workplace, and that telecommuting may be a reasonable accommodation for some employees with disabilities under the Americans with Disabilities Act ("ADA").  This case provides yet another cautionary tale for employers wrestling with complex ADA accommodation issues.

Irritable Bowel Syndrome Makes It Hard To Be At Work--Can Telecommuting Be The Answer?

Jane Harris had worked at Ford since 2003 as a resale buyer, acting as an intermediary to ensure there was no gap in steel supply to parts manufacturers. Although the job duties included such tasks as updating spreadsheets and making site visits, the main function of the job was group problem-solving, which required communication and collaboration with the resale team and others in the supply chain. Harris’ managers determined that such interactions were best handled face-to-face.

Harris suffered from irritable bowel syndrome, which caused fecal incontinence, and began taking intermittent FMLA leave when her symptoms flared up. Her job performance suffered after she began to take leave. Harris was unable to establish consistent working hours, and frequently made mistakes because she could not access suppliers while working nights and weekends. Her co-workers and manager were forced to pick up some of the slack. Eventually, in February 2009, she formally requested that she be permitted to telecommute on an as-needed basis to accommodate her disability. Although Ford had a policy permitting telecommuting up to four days a week, the policy also stated that such an arrangement was not appropriate for all positions or managers. However, some of Harris’ counterparts telecommuted one day a week.

Ford denied Harris’ request, and offered alternative accommodations including a cubicle closer to the restroom and the option of looking for a different, more telecommuting-friendly job within the company. Harris filed a discrimination charge with the EEOC and shortly thereafter was given a poor performance review and placed on a Performance Enhancement Plan. After failing to meet the goals set forth in the plan, Harris was terminated.

 

Harris filed a lawsuit, alleging that Ford violated the ADA by failing to accommodate her disability. The lower court granted summary judgment in Ford’s favor, and Harris appealed. The Sixth Circuit reversed the ruling, and found that Harris’ case should proceed to trial.

 

Sixth Circuit Answers:  Yes!

 

The Court began by noting that the ADA requires employers to make reasonable accommodations for an “otherwise qualified” employee with a disability. The Court found that Harris could be “otherwise qualified” for two reasons. First, Harris would be qualified if Ford removed the requirement that she be physically present at work. Although Ford argued that her consistent presence at its work site was an “essential function” of the job (a position that has been upheld in other cases, including a Ninth Circuit case we blogged about two years ago), the Court found there was insufficient evidence on this point. In doing so, the Court noted that given technological advances, regular attendance did not necessarily mean being present at the employer’s “brick-and-mortar location.” The Court accepted Harris’ contention that most of her communications took place over conference call, even when she was physically present at Ford, and also noted the telecommuting policy that permitted Harris’ counterparts to work remotely (albeit less frequently than what Harris was requesting).

 

The Court also found that Harris would be qualified if Ford granted her the reasonable accommodation of a telecommuting arrangement. The Court rejected Ford’s argument that such an arrangement would prevent Harris from interacting with others during business hours, noting that she could still maintain a predictable, mutually agreeable schedule on a remote basis. The Court again cited technological advances, stating that “the class of cases in which an employee can fulfill all requirements of the job while working remotely has greatly expanded.” 

 

What Employers Need To Watch Out For

 

So what does the decision mean for employers? Undoubtedly, it provides some leverage for would-be plaintiffs seeking telecommuting arrangements as a reasonable accommodation in the workplace. The EEOC’s pursuit of the lawsuit also suggests that it will continue to closely scrutinize employer denials of telecommuting requests. 

 

But the Court did not find, however, that employers were always required to acquiesce to telecommuting demands.  Instead, the decision is a good reminder that employers should tread carefully when considering accommodation requests, and above all perform the "individualized assessment" of each employee in each case that is required under the ADA's interactive process.  That process should include a fundamental (re)examination of job requirements to see whether they really are "essential," and should not dismiss accommodation requests involving telecommuting or similar alternative arrangements out of hand.  Instead, employers must consider the impact that technology might have on an employee’s ability to perform the essential functions of his or her position remotely.  If, after engaging in that detailed review, you think a particular employee accommodation request is unreasonable, the reasons for denying the request should be well-articulated and meaningful alternatives should be offered. 

Employers should also conduct a periodic check of their telecommuting policies. This means not only ensuring that boundaries for use and approval are clearly articulated in the policy itself, but also ensuring that all employees are actually working within the confines of the policy. Courts in these types of cases will undoubtedly want to know whether other employees are allowed to telecommute, and whether anyone has (whether formally or informally) been allowed to deviate or go beyond what is explicitly stated in the policy. Employers are more likely to lose these cases if they deny an employee’s request to telecommute while simultaneously allowing others to do it (perhaps in excess of what the written policy provides).

Allergy to Perfume Not a Disability, Says Ohio Federal Court

 Employers got some relief from a situation that is becoming more and more common: an employee that claims a scent allergy and wants a work accommodation. In Core v. Champaign County Board of County Commissioners, Case No. 3:11-cv-166 (S.D. Ohio Oct. 17, 2012), plaintiff claimed she was allergic to a particular scent that substantially limited her breathing and requested, as an accommodation, that her employer institute a policy requesting that all employees refrain from wearing scented products of any kind. The U.S. Court for the Southern District of Ohio threw the case out, concluding that (1) plaintiff was not disabled, as that term was used under the pre-2009 amendments to the Americans with Disabilities Act; and (2) even if the broader post-2009 definition of “disability” were used, plaintiff’s requested accommodation was not reasonable. 

Plaintiff worked for the Champaign County Department of Jobs and Family Services as a social service worker. Her job required her to conduct onsite inspections of childcare facilities, interact with the public and clients both onsite and offsite, and perform in-house client interviews, among other things. She claimed a disability because one particular scent she encountered occasionally in the workplace—Japanese Cherry Blossom—triggered asthma attacks, which substantially limited the major life activity of breathing. (She claimed reactions to other scents, too, but those reactions only included headaches and nausea, which the court found had no impact on plaintiff’s breathing or on any other major life activity.)

Allergy to Specific Perfume Not a Disability

The court, applying the pre-amendment definition of “disability,” concluded that plaintiff’s reaction to Japanese Cherry Blossom did not substantially limit her breathing because, among other things, she encountered it so rarely, and plaintiff admitted she was still able to perform the essential functions of her job even when exposed. The court acknowledged that, after January 1, 2009, the relevant inquiry is whether the asthma substantially limits plaintiff’s breathing when she is having an attack, rather than examining whether her breathing is substantially limited generally. But the court did not reach the issue of whether the amended standard would entitle plaintiff to relief because it concluded her requested accommodation was unreasonable.

Fragrance-Free Workplace Request an Unreasonable Accommodation

The court noted that, in the Sixth Circuit (encompassing Ohio, Michigan, Kentucky, and Tennessee), an accommodation requiring a fragrance-free workplace is objectively unreasonable. The court emphasized that it would be unreasonable to require employees to “alter all of their personal habits to ensure that all products of daily living, i.e., deodorant, lotions, hair products, etc., used in their private homes before coming into the workplace, are fragrant-free.” Moreover, plaintiff’s request that all fragrances be banned was not reasonable because she only alleged having breathing difficulty in response to one fragrance. Notably, her employer had offered her a wide array of accommodations—including allowing plaintiff to use an inhaler and take breaks, and circulating an email to all employees requesting that they refrain from wearing Japanese Cherry Blossom—all of which plaintiff inexplicably rejected.

What Does This Mean for You? 

Employers should be cautious in relying on this decision. Because of the timing of the plaintiff’s claims, the court applied the pre-amendment definition of “disability.” An employee after January 1, 2009, who can demonstrate a substantial breathing impairment when encountering a particular scent can probably establish that he or she is disabled under the ADA Amendments Act. But that does not mean that employers are going to have to declare their businesses fragrance-free. The Sixth Circuit, at least, has declared such accommodations facially unreasonable; there does not yet appear to be any law in the Ninth Circuit on this issue. 

So what should you do? When an employee complains about scents in the workplace, it is incumbent on the employer to gather as much information as possible. What scents trigger an episode? (This will help determine whether the employee has broad allergies/sensitivities that may require a broader response or has narrower allergies/sensitivities like the plaintiff in Core.) What happens when the employee encounters those scents? (If the reaction is headache and nausea, this may not qualify as a disability or may require very minor accommodations; if the reaction is anaphylactic shock, you can bet on probably having to find some accommodation(!).) If necessary, request that the employee provide medical verification of the allergy/sensitivity and its severity. Importantly, like the employer did in Core, talk to the employee about what might ameliorate the problem. The plaintiff in Core made the mistake of rejecting every accommodation offered—accommodations the court later concluded were all reasonable. Will a fan suffice? Can the employee be moved to a different work station? Will the job requirements permit the employee to work remotely part of the time? Are additional breaks to get fresh air adequate? The bottom line: Ask questions and get as much detail as possible.

As always, each case will depend on the particular circumstances. Note that the employer here was prepared to request (though not require) employees to not wear the particular scent to which plaintiff alleged an allergy. The court specifically declared that offer reasonable—though it did not say that kind of accommodation would have been required. Different facts—for example, an employee with broader scent allergies than the one particular scent at issue here—could well lead to a court concluding broader scent prohibitions are reasonable and necessary. All we can do is hold our breath and wait.

 

9th Circuit: Attendance Is Essential Job Function For NICU Nurse Under ADA

This week the federal Ninth Circuit Court of Appeals provided some help to employers seeking to balance the need to accommodate disabled employees with the need to enforce regular attendance policies.  In Samper v. Providence St Vincent Medical Ctr, the Ninth Circuit held that the Americans with Disabilities Act (“ADA”) did not require an Oregon hospital to exempt a neo-natal intensive care unit (“NICU”) nurse, whose fibromyalgia caused frequent absences, from its attendance policy.  The case helps illustrate both when employers should be flexible in accommodating disabilities that could affect attendance, and also when they may be entitled to require stricter adherence to attendance policies.

The Facts Of Samper
The defendant in Samper, St. Vincent Hospital in Portland, Oregon, had little trouble demonstrating that strict adherence to its attendance policy was essential for NICU nurses, who care for a very vulnerable patients, need to be in the NICU to do their jobs, and must be able to respond quickly in emergency situations.  The NICU nurse job description specifically identified attendance as an essential job requirement.  Further, NICU nurses have specialized training making it more difficult to find replacements during absences.  And despite the need for good attendance, the hospital policy nevertheless “generous[ly]” allowed nurses up to five unexcused absences per year. 

The plaintiff, Ms. Samper, worked as a part-time NICU nurse since about 2000.  From early on, she was disciplined or received multiple poor performance reviews in part because of unexcused absences in excess of the policy's 5-day per year limit.  In 2005, she began suffering from fibromyalgia, which caused more absences.  St. Vincent initially was able to accommodate her disability; first, it allowed her to call in on bad days and move her shift to another day.  Later, it adjusted her schedule so she would not work on consecutive days.  The hospital also provided Samper numerous extended leaves of absence, including for personal reasons unrelated to her disability.  Ultimately, however, in 2008 St. Vincent terminated Ms. Samper’s employment for, among other reasons, her continued unexcused absences in excess of the policy.  Ms. Samper sued, claiming in part that the hospital failed to reasonably accommodate her disability by not exempting her altogether from the 5-day limit under the attendance policy.

The Ninth Circuit found that her Ms. Samper’s request to be exempted from the attendance policy was not a reasonable accommodation as a matter of law.  In reaching its conclusion, the Court first noted that the hospital’s written job description stated in several places that attendance and punctuality were essential functions.  The Court also surveyed a number of other cases where courts found attendance to be an essential function, such as where employees must work in a team with other employees, where they regularly must interact with customers or clients (such as teachers and airline ticket agents), or are required to be on-site to work with special equipment (such as in a manufacturing environment).  Ultimately, the Court found that attendance for NICU nurses was even more essential than in any of those other situations, considering the importance of their “specialized, life-saving work” and the difficulty of finding replacements due to the specialized training NICU nurses receive.

When Is Attendance An Essential Function Under the ADA?
The reasoning in Samper probably provides a mixed bag for other employers trying to balance attendance and accommodation needs.  On the one hand, the case provides a ringing endorsement for the general principle that attendance can be an essential function of most jobs, absent evidence it is not, in fact, necessary.  Indeed, the Court stated as a general “rule” and matter of “common sense” that:  “Except in the unusual case where an employee can effectively perform all work-related duties at home, an employee who does not come to work cannot perform any of his job functions, essential or otherwise.”  (emphasis added)

On the other hand, the detailed discussion of the facts and overall subtext of the case suggest that the court’s holding may not be as broad as employers might hope.  For example, the fact that NICU nurses provide care to vulnerable infants fighting for their lives probably helped tip things in the hospital’s favor; few other jobs will be able to demonstrate such urgency.  In addition, for positions that don’t require as much specialized training as NICU nurses, attendance may be less essential if the employer can more easily find qualified replacements on short notice when a disabled employee is absent.

Perhaps most importantly, the hospital demonstrated flexibility in applying its attendance policy and had a demonstrated track record in accommodating Ms. Samper in the past.  It did not enforce its attendance policy too strictly; instead, it allowed up to five unexcused absences per year.  In addition, the hospital made “Herculean” attempts to accommodate Ms. Samper over a nearly eight-year period, including allowing absences in excess of the policy, providing numerous leaves of absence, and adjusting her schedule several times.  The Court only found that her final request—to be exempted from the attendance policies altogether—was unreasonable.  While those efforts are technically distinct from whether attendance is an essential function of a job, the Court obviously believed the hospital had already bent over backwards repeatedly to try to accommodate Ms. Samper.  Had the hospital terminated her employment for a first time attendance violation or without the accommodation history, the case could have come out differently.  In that sense, Samper could serve as a reminder that employers often cannot do enough to engage in the interactive process and attempt accommodation where reasonable.


 

When Does Alcohol or a Controlled Substance Preclude Workers' Compensation Benefits?

Like most states, Utah’s Worker’s Compensation statute prohibits an employee from recovering disability compensation when “the major contributing cause of the employee’s injury” is the employee’s unauthorized use of alcohol or a controlled substance. See Utah Code Ann. § 34A-2-302(3)(b). If any amount of a controlled substance or its metabolites is found in an injured employee’s system at the time of the injury, the Worker’s Compensation statute presumes that drug use was the major contributing cause of the injury. 

An employee can rebut this presumption by:

  • challenging the accuracy of the drug test;
  • demonstrating that he or she did not actually use a controlled substance;
  • providing expert medical opinion suggesting that the level of controlled substance in the employee’s system does not support a finding that drug use was the major contributing cause of the injury; or
  • otherwise demonstrating that drug use was not the major contributing cause of the injury.

 

A Utah appellate court recently weighed in on this issue when it reversed the Utah Labor Commission’s denial of disability compensation to James Barron in Barron v. Labor Commission.

Mr. Barron was severely injured while at work when he stepped backward off the edge of temporary metal decking at a construction site and fell fourteen feet to a concrete floor below. A urine sample taken at the hospital on the day of the accident tested positive for cocaine metabolites. Mr. Barron admitted to sharing a quarter of a gram of cocaine with a friend two days before the accident but presented evidence tending to demonstrate he was not impaired at the time of the accident, including testimony from co-workers and medical personnel who observed Mr. Baron’s conduct on the day of the accident.

Applying the statutory presumption, the Commission ignored Mr. Barron’s evidence of non-impairment and found that drug use was the major contributing cause of his injury. Specifically, the Commission determined that Mr. Baron must demonstrate that “some other force” apart from his own actions caused his injury to overcome the presumption. Following case law from a number of other states with similar statutory schemes, the Utah Court of Appeals reversed the decision of the Commission and, for the first time, clarified that employees are not required to show that their injury was the result of an outside force to overcome the statutory presumption. Rather, evidence of non-impairment at the time of the accident may be used to rebut the presumption and to demonstrate that drug use was not the major contributing cause of injury. 

So, when does the use of alcohol or a controlled substance preclude workers' compensation benefits?  The answer: almost always, but not when employees can demonstrate that they are not impaired, despite the presence of controlled substances within their systems.

The EEOC Reiterates the Importance of the Interactive Process

A recent decision from the federal Equal Employment Opportunity Commission (EEOC) reminds employers of their affirmative duty to engage in an interactive process once an employee raises a medical condition and requests some change to their work environment to accommodate it. The Americans with Disabilities Act (ADA), and the Rehabilitation Act at issue in Harden v. Social Security Administration, protect an employee from discrimination based on a disability, where the employee can otherwise perform his or her job with a reasonable accommodation. Tips for the interactive process are provided below, and next week we will go through a “hypothetical.”

In Harden, a claims assistant who was frequently late notified the SSA about her depression and general anxiety which were causing her problems sleeping and functioning early in the morning. She requested approval to arrive between 9:00 and 9:30 a.m., rather than between 7:00 and 9:00 a.m. like other employees, or else to use leave rather than leave without pay or discipline. The claims assistant supplied the SSA some medical documentation, but the SSA found that the documentation did not show that her medical condition kept her from getting to work before 9:00 a.m. The SSA denied the employee’s request for a modified schedule, and disciplined her when she was again tardy.

Based on information about the employee’s medical condition that came out during the EEOC complaint process, the EEOC found that the SSA engaged in discrimination. The claims assistant had a disability that could have been reasonably accommodated with a modified schedule. The EEOC disagreed with the SSA’s argument that medical documentation provided during the complaint process was irrelevant to the SSA’s decision to deny the modified schedule and discipline the employee.

What does Harden teach us? Disability discrimination laws place affirmative duties on employers to engage in a meaningful process after an employee raises a medical condition. Do not cut short the interactive process because the facts will come out eventually. This 4-step process provides a helpful framework for an ADA request.

 

1.        Get the facts: What is the medical condition? Get documentation from the employee’s doctor if necessary (with an appropriate release), including any limitations and potential accommodations. Allow the employee or doctor to provide additional information if you are not satisfied. What is this employee’s job? Identify the essential functions of her position. Is the employee performing the job, except for reasons related to her disability?

 

2.         Decide whether the employee is eligible for an accommodation: Based on the facts, is the employee qualified for the job? Can he or she perform the essential functions of the job, with or without an accommodation? Determine whether the individual has a physical or mental impairment that substantially limits a major life activity. Is the employee regarded as having such impairment?

 

3.         Have an interactive dialogue with the employee about an accommodation: Ask the employee what he or she wants. Quite frequently, this simple communication can result in a practical, cost-effective solution that works for everyone involved. Can the employee do the essential functions of the job with the employee’s proposed accommodation? Identify other accommodations that may work, and consider the effectiveness of each proposed accommodation. Discuss the cost and burden of each effective accommodation and assess whether it would be an “undue hardship.”

 

4.        Put the accommodation into action: Document the dialogue with employee. Choose and implement an accommodation. Document the expectations on all sides. Inform others of the accommodation, only to the limited extent they must know (such as a supervisor). Ensure confidentiality at all times, and maintain a separate confidential file for the employee’s medical documentation. Reassess the effectiveness of the accommodation after a time.

EEOC's Final Regulations on the ADAAA: News You Will Certainly Use

At long last the EEOC has issued its final regulations for the Americans With Disabilities Amendments Act.  In so doing, the EEOC has taken Congress’ words contained in the Act and declared (repeatedly) that the definition of “disability” is to be read very broadly and that employers should instead focus on whether discrimination has occurred or an accommodation is needed. As we've noted in our prior ADAAA coverage, we think that many more disability lawsuits will be filed and far fewer of them will be dismissed on summary judgment. As the EEOC sees it, “many more ADA claims will focus on the merits of the case.” 

What Hasn’t Changed

Most of the terms used in the original ADA haven’t changed. The Final Regulations do not alter the definitions of “qualified,” “reasonable accommodation,” “direct threat,” and “undue hardship.” And there are still three ways to come within the scope of the statute: “Actual” disability; “record of” disability; and “perceived as” disabled. The “perceived as” category has some substantial changes, as discussed below. 

What Has Changed

1.         Mitigating measures can no longer be taken into account when determining whether a person is disabled. (Except, individuals with with regular vision correction such as eyeglasses or contact lenses are still considered in their mitigated state for purposes of determining whether they have a disability.)  This means that if the employee’s condition is entirely treated (heart disease is kept under control by medication, for example), the employee’s “disability” is evaluated without consideration of the treatment. Of course, if a person’s condition is controlled entirely by medicine or an assistive device or some other measure, it may mean that no accommodation is needed.

2.         A “regarded as” claimant need no longer prove that he or she is perceived as a “disabled” person (i.e., a person with a physical or mental impairment that substantially limits a major life activity). Instead, a “regarded as” claimant need only show that the employer discriminated against him or her based on a belief that the employee (or applicant) had an impairment. However, if the employer can show that that the employee’s (or applicant’s) condition is actually just “transitory [i.e., lasting six months or less] and minor,” then the employee can’t be “regarded as” disabled. The six month time limit does not apply to evaluation of an actual disability or a record of a disability. And, in fact, the “rules of construction” contained in the Final Regulations specify that a disability may last less than six months. 

3.         The list of examples of “major life activities” is expanded and now includes “major bodily functions.” The rules make it clear that this is not a demanding standard. The major life activity need not be central to daily living, and it doesn’t have to severely or significantly limit the person’s ability. The final rule provides non-exhaustive lists of what constitutes a major life activity. Such activities include caring for oneself, performing manual tasks, seeing, hearing, eating, sleeping, walking, standing, sitting, reaching, lifting, bending, speaking, breathing, learning, reading, concentrating, thinking, communicating, interacting with others, working and performing major bodily functions. Bodily functions include the immune system, special sense organs and skin, normal cell growth, digestive, genitourinary, bowel, bladder, neurological, brain, respiratory, circulatory, cardiovascular, endocrine, hemic, lymphatic, musculoskeletal, and reproductive functions.

4.         Given the new lists, some conditions will almost always be deemed to substantially limit a major life activity. The ones mentioned in the Final Regulations are: Deafness, blindness, intellectual disability (formerly known as mental retardation), partial or completely missing limbs, mobility impairments requiring use of a wheelchair, autism, cancer, cerebral palsy, diabetes, epilepsy, HIV infection, multiple sclerosis, muscular dystrophy, major depressive disorder, bipolar disorder, post-traumatic stress disorder, obsessive-compulsive disorder, and schizophrenia. Of these, perhaps the most troubling are autism and PTSD since both are ill-defined in the medical literature and exist on very broad spectrums of impairment. 

5.         The changed definition of “disability” applies to Title II of the ADA (State and local governments) and Title III (private places of public accommodation).

6.         The phrase “qualified individual with a disability” has disappeared and instead the Final Regulations refer to “individual with a disability” and “qualified individual” separately. Again, these changes are intended to focus the inquiry on whether discrimination has occurred, and away from whether the individual meets the definition of “disability.”

More Lawsuits to Follow

In our experience, the vast majority of employers do try to fully comply with the ADA. Unfortunately, the ADAAA and these new Final Regulations assume just the opposite; by removing practically any burden on the employee to show that he or she is disabled, Congress and the EEOC have clearly shifted the burden to employers.

 

For more ADAAA information, check out:

 

Service Animals Limited to Dogs and Some Miniature Horses Under New ADA Rules

As reported in the Oregonian, the Department of Justice this week implemented amendments to a number of regulations governing Title II and Title III of the Americans With Disabilities Act (“ADA”). Title II of the ADA applies to public entities, while Title III applies to public accommodation. While the new rules do not apply to Title I, which covers employment, they will impact any business that constitutes a place of public accommodation, which includes all businesses that provide access to members of the public. 

The primary change that will impact employers whose businesses constitute a place of public accommodation is a new definition of what constitutes a “service animal” under the Act. The purpose behind the rule change is to combat the dilution of the “service animal” label, “which has resulted in reduced access for many individuals with disabilities who use trained service animals that adhere to high behavior standards.”

The definition includes two primary changes: First, animals intended only to provide emotional support are no longer considered service animals. The second change limits the definition of a service animal to include only dogs that have been individually trained to do work that benefits an individual with a disability. Other animals, wild or domesticated, trained or untrained, no longer qualify as service animals, except, in limited circumstances, miniature horses. Places of public accommodation are not required to admit customers or members of the public with “service animals” that do not meet this new, limited, definition.

We want to stress again that this change does not apply to the part of the Act that relates specifically to employment, and does not in and of itself require employers to allow employees to have service animals. Employers presented with a situation where an otherwise qualified employee with a disability requests use of a service animal should engage in their usual reasonable accommodation analysis.  This new rule does have the potential to inform that process for employers, by providing insight as to what's considered “reasonable” in the public accommodation context.

For more information on the ADA rule changes, including the text of the rules and fact sheets for employers, go to the Department of Justice’s ADA home page

Oregon: 2011 Legislative Session Preview

Oregon’s 76th Legislative Assembly convened on February 1, 2011. The Legislature has wasted no time introducing a multitude of new labor and employment bills, some with potentially far reaching effects. Below is a (non-exhaustive) list of some of the more interesting bills up for debate:

Civil Rights:

  • HB 2035 -- Standardizes statute of limitations period for filing discrimination lawsuits. A person who has filed a BOLI complaint must file a lawsuit within one year of the occurrence of the unlawful practice or within 90 days of the mailing of BOLI’s 90-day notice, whichever is later.
  • HB 2036 -- This bill was introduced at the request of the Commissioner of BOLI, and attempts to accomplish several significant changes. First, it proposes to lower the standard as to what’s considered a “substantial limitation in a major life activity,” and clarifies certain aspects of state statutes related to discrimination against individuals with disabilities. Second, it grants BOLI the authority to enforce provisions for employees to take crime victim leave to attend criminal proceedings. Third, it will allow employers to make decisions based on credit history of applicants for public safety officer employment.
  • HB 2243 -- Allows Attorney General or BOLI to file suit related to discrimination against person for uniformed military service; includes $50,000 penalty for first violation, and $100,000 penalty for each subsequent violation.
  • HB 2446 and HB 2771 seek to respectively amend and repeal ORS 659.70 and 659.785 related to workplace communication on employer opinions on religion and politics. While HB 2771 would seek to repeal those provisions entirely, HB 2446 seeks to amend the definitions and exceptions to those provisions and amend the damages as well.
  • HB 2828 -- Would make it unlawful (including a civil penalty of $750) to cease to provide health, disability, life or other insurance during period employee serves on a jury.
  • HB 2862 -- This bill would extend various anti-discrimination laws to persons working for educational purposes or as volunteers.

Leave:

  • HB 2095 -- Requires granting family leave under OFLA for academic activities of the employee’s child, including teacher conferences or meetings, and requires granting up to 18 hours of family leave for academic activities in a one-year period, but not more than six hour per calendar month.
  • SB 506 -- Allows eligible employee to take family leave related to the death of a family member.
  • HB 2850 -- Adds siblings as covered family members under OFLA.

Wage and Hour:

  • HB 2038 -- Modifies expression of breast milk provisions. Requires employers to provide a reasonable rest period each time an employee has a need to express milk and eliminates the undue hardship exception for employees with 50 or more employees
  • HB 2040 -- Requires unpaid wages requested by employee post-termination or discharge to be mailed by certified mail, return receipt request.  
  • HB 2230 -- Requires employers to offer first payment to a new employee within 14 days of employment, unless declined by employee. Carries a maximum fine of $720 for violations.
  • HB 2861 -- Expands Oregon’s wage discrimination law to bar wage discrimination based on a more expansive list of protected classifications, not just sex.

Other:

  •  Immigration: HB 2802 and HB 2973 include a variety of immigration-related provisions, some of which would affect employers. One such provision includes a prohibition against knowingly employing unauthorized aliens, which includes a maximum six-month prison sentence and/or up to $2,500 fine. Another would require employers to verify immigration status of employees hired after January 1, 2012, and authorizes the Attorney General to investigate violations and suspend or revoke business licenses of violators. 
  •  Health Care Employees: SB 199 -- Requires health care facilities/employers of 25 or more employees to provide mandatory annual vaccinations against influenza, varicella zoster, pertussis, Hepatitis B, measles, mumps and rubella at no cost to employees.

World of Employment will keep you updated regarding the status of these (and other) bills up for debate this legislative session, and will provide an end-of-session wrap-up of the winners and losers.

Oregon Supreme Court: Employers Are Not Required to Accommodate Medical Marijuana

Yesterday the Oregon Supreme Court conclusively ruled that employers are not required to accommodate the use of medical marijuana in the workplace, ending years of doubt and confusion on this critical issue. Click here to read the Court’s opinion in Emerald Steel Fabricators, Inc. v. Bureau of Labor and Industries.

In Emerald Steel, a drill press operator was terminated after his employer learned he was using medical marijuana to treat a medical condition that qualified as a disability under Oregon law. The employee filed a claim with the Oregon Bureau of Labor and Industries, alleging that the employer’s refusal to accommodate his use of medical marijuana violated Oregon law requiring employers to reasonably accommodate an employee’s disability. A judge ruled that the employer did not properly engage in the interactive process to determine whether other reasonable accommodations were possible.

The employer appealed that decision, arguing that neither federal nor state disability law requires employers to engage in the interactive process with users of medical marijuana, given that their use of marijuana is prohibited by federal law. The Oregon Court of Appeals ruled in favor of the employee on the basis that the employer failed to preserve that argument in the case below. Further, a prior Oregon Court of Appeals case—Washburn v. Columbia Forest Products—had held that employers do have a duty to accommodate the use of medical marijuana by a disabled employee.

On appeal, the Oregon Supreme Court reversed the decisions of the trial judge and the Court of Appeals, and reversed the Oregon Court of Appeals’ decision in Washburn. The Supreme Court held that employers do not have to accommodate employees’ use of illegal drugs. Because marijuana—medical or otherwise—is illegal under federal law, employers are not required to accommodate its use under any circumstance.

Since the original Washburn decision, many Oregon employers have assumed they were obligated to accommodate the use of medical marijuana by disabled employees. The Emerald Steel decision should give all Oregon employers comfort in knowing that, until or unless federal law changes, they are definitely not required to accommodate medical marijuana use. A similar ruling from the Washington Court of Appeals is being reviewed by that state’s supreme court.  Stoel Rives represents the employer in that case. Click here to read the World of Employment's coverage of that case.

Our Festivus Present to Oregon Employers: Ten Things You Should Know for 2010

Wow, it's Festivus already, which means that in just a few short days it will be a brand new year!  We have a Festivus present for Oregon employers to help you get ready:  Ten things you need to know for 2010!  (click on each blue hotlink for more information)

  1. All Oregon employers are required to post the SB 519 (Mandatory Meeting Ban) Notice to Employees.
  2. The H1N1 (or "swine:) flu is slowing down, but it's not gone. If you have concerns for you or your employees, Oregon has a great Flu Hotline.
  3. As if we needed another reason to investigate complaints of unlawful harassment, the Oregon Court of Appeals recognized a claim for negligent failure to investigate
  4. Leave for Military Spouses:  Employers with 25 or more employees in Oregon must provide leave to spouses of service members prior to deployment and during leave from active duty. 
  5. In 2010, you might have a greater duty to accommodate employees' religious dress and practices
  6. Domestic Violence Leave and Accommodations:  Employers may not discriminate against victims of actual or threatened stalking, sexual assault or domestic violence, and must  make reasonable accommodations for such employees.
  7. In 2010, you (and your employees!) may no longer talk on the phone while driving (unless it's with a hands-free device).
  8. Oregon's minimum wage will remain $8.40/hour.
  9. Oregon kept its disability discrimination law in tune with the federal Americans with Disabilities Act
  10. Oregon has new rest and meal break regulations.

And on that note, we're off to put up our festivus pole (aluminum, high strength-to-weight ratio), air our grievances, and commit feats of strength.  Happy festivus, and see you in 2010!

9th Circuit: Independent Contractor Can Assert Disability Claim Under Rehabilitation Act

The Ninth Circuit Court of Appeals ruled recently that an independent contractor may assert a disability claim against an employer under the Rehabilitation Act.  Click the link to read the opinion on Fleming v. Yuma Regional Medical Center

The Rehabilitation Act prohibits discrimination on the basis of disability in programs conducted by Federal agencies, in programs receiving Federal financial assistance, in Federal employment, and in the employment practices of Federal contractors. The standards for determining employment discrimination under the Rehabilitation Act are the same as those used in Title I of the Americans with Disabilities Act (ADA).

In Fleming, an anesthesiologist who worked as an independent contractor sued the medical center at which he worked, alleging a discriminatory constructive discharge.  The trial court dismissed the case on the basis that Fleming was an independent contractor and that the  Rehabilitation Act applied only to employee-employer relationships.  The Ninth Circuit reversed, holding that the Rehabilitation Act provides a cause of action to any individual subjected to disability discrimination by any program or activity receiving federal financial assistance.  While the Rehabilitation Act adopts the standards that are applied under the  ADA, it does not adopt the ADA's limitation to the employee-employer relationship. 

Independent contractors are not considered "employees" for purposes of most employment discrimination laws, and many employers hire independent contractors to avoid potential liability under such laws.  Fleming shows that, at least for employers covered by the Rehabilitation Act, independent contractors may still find ways to seek the protections of those laws despite their "non-employee" status.  In addition, many employers incur significant tax and other liabilities by misclassifying people as "independent contractors" when they really should be treated as employees.   For more information, the Internal Revenue Service offers this guidance for determining whether someone is or is not correctly classified as an independent contractor

Oregon BOLI Files Multiple Proposed Rule Changes

The Oregon Bureau of Labor and Industries has filed several proposed rules pertaining to labor and employment law, and is inviting public comment.  Click on the title of each to read the proposed rule:

  • Religious worship, child support obligors, physical accommodations for eligible disabilities.  The proposed rules would implement statutes:
    • requiring employers to reasonably accommodate wearing of religious clothing and leave for religious practices (SB 786)
    • making discrimination by employers against child support obligors an unlawful employment practice (ORS 25.424(3))
    • requiring places of public accommodation to provide access to employee toilets for customers with eligible medical conditions (SB 277)
    • requiring transient lodging of 175 or more units to provide lifts for individuals with disabilities (HB 3256). 
  • Compliance with the ADAAA, preferences for veterans, and discrimination on the basis of uniformed service.  The proposed rules and amendments would implement:
    • amendments to statutes providing for employment preference for veterans.
      (HB 2510)
    • amendments to disability discrimination statutes to conform them to the
      federal Americans with Disabilities Act Amendments Act of 2008 (ADAAA) (SB 874)
    • statutes prohibiting discrimination in employment on the basis of uniformed
      service (HB 3256).
  • Home Health Agencies, Wage Security Fund.  The proposed rule amendment would:
    • implement HB 2595, enacted in 2009, which prohibits home health agencies and hospice programs from paying nurses providing home health or hospice services on a per-visit basis
    • clarify conditions to be met in qualifying for payments from the Wage Security Fund and delete obsolete references in the agency’s insurance cancellation notification rules.
  • Employment of Minors.  The proposed rule amendment would:
    • implement House Bill (HB) 2826 enacted in 2009, which removes the requirement that employers obtain a special permit before employing a minor under 16 years of age until 7 p.m. (9 p.m. between June 1 and Labor Day).
    • conform current language in the rules to the provisions of HB 2826, which shifts authority for the issuance of agricultural overtime permits from the Wage and Hour Commission to the Commissioner of the Bureau of Labor and Industries
    • clarify that minors may not be employed to operate or assist in the operation of power-driven farm machinery unless the employer has obtained an employment certificate as required and the minor has received required training in the operation of such machinery.
  • Rest and meal periods.  The proposed rule amendment would address the provision of rest and meal periods to employees, including factors to be considered in determining when an employee is prevented from receiving regularly scheduled meal and rest periods.
  • Prevailing Wage.  The proposed rule amendments would make permanent the temporary rules currently in place regarding prevaling wage rates. 

Click here for more information on BOLI's proposed rule changes, including information on how to make public comment and the deadlines for doing so. 

Oregon Court Of Appeals Holds Non-Disabled Employees Are Protected When Requesting Accommodations

On Thursday, in Herbert v. Altimeter, the Oregon Court of Appeals held that an employee does not need to actually be disabled in order to be protected from retaliation for requesting an accommodation under Oregon’s disability anti-discrimination law.  The case serves as a useful reminder that anti-retaliation protections, like those in the Oregon disability law, can be very broadly applied and protect many types of employee requests or complaints. Employers should be careful when disciplining or terminating any employee who has recently made some kind of arguably protected request or complaint.

Sherrie Herbert was terminated from her truck-driving job with Altimeter shortly after she became ill, allegedly from exhaust fumes in the cab of her truck, and she reported those problems to her boss. She sued under various retaliation theories, including that she was terminated in retaliation for her having requested an accommodation for a disability (i.e., requesting to be reassigned to a different truck). The trial court granted a directed verdict for Altimeter at the close of Herbert’s case at trial and dismissed all claims.

The Court of Appeals reversed.  Altimeter argued that it couldn’t have retaliated against plaintiff for requesting an accommodation as a matter of law, because she was not disabled and therefore not protected under the Oregon disability law's anti-retaliation provisions.  The court rejected that argument, noting that while the law requires Oregon employers to provide a reasonable accommodation to a “person with a disability,” the anti-retaliation provision, ORS 659A.109, protects any “worker” who requests an accommodation.  So, the court reasoned, by its plain terms the statute protects a broader class of employees (all of them) who make protected requests for accommodations, even though those employees may not be entitled to an actual accommodation. 

The opinion also contained an illustrative reminder about the importance of well-drafted written responses filed with the Equal Employment Opportunity Commission (“EEOC”), the Oregon Bureau of Labor and Industries (“BOLI”), and similar agencies. Those written position statements are admissible later; if they’re not carefully drafted they could come back to bite the complainant. In Herbert, Altimeter’s BOLI position statement included several damaging admissions, the worst of which essentially stated that she was terminated because she insisted she be reassigned to another truck, i.e., requested an accommodation.  Despite a general lack of other evidence of retaliation presented by Herbert at trial, the Court held that Altimeter's admission in the BOLI statement alone was enough to allow that claim to go to a jury. 

Oops!  While there are no easy, hard-and-fast rules about how to draft effective BOLI or EEOC position statements, generally you want to say as little as possible while still making your case, and above all, you don't want to provide the only evidence a plaintiff will need to take his or her case all the way to a jury!!  Those kinds of careless statements early on can make litigating employment discrimination lawsuits very expensive for employers, because they become much harder to get dismissed before trial.


New Website for Disability Information

The Department of Labor's Office of Disability Employment Policy today launched a new website that may be of use to employers seeking information on how to accommodate a disabled worker.  At www.disability.gov an employer can research the applicable law and regulations, get ideas for appropriate reasonable accommodations, and locate additional resources.  For example, clicking here will take you to information about accommodating deaf and hearing impaired workers.   And here is useful information about tax incentives for complying with the ADA.  The new site offers a myriad of social networking capabilities including a Twitter feed, RSS feeds and a blog.   The site also includes a handy multi-state guide which employers could find very useful as they work to comply with all applicable federal and state disability laws.  

Another Circuit Court Agrees: ADA Amendments Act is Not Retroactive

Congress did not intend for the ADA Amendments Act (ADAAA) to be retroactive, the Court of Appeals for the District of Columbia ruled yesterday, and applied pre-ADAAA law to dismiss an employment discrimination claim.  Click here to read the court's decision in Lytes v. DC Water and Sewer Authority

Congress passed the ADAAA in 2008 and the new law became effective January 1, 2009.  The ADAAA significantly expanded the definition of "disabled" under the Americans with Disabilities Act (ADA).  The Lytes court reviewed the legislative history of the ADAAA, and could not find in that history any indication that Congress intended the law to apply retroactively.  The court also noted that Congress signaled its intend that the law not apply retroactively when it gave the ADAAA a specific effective date. 

The DC Circuit joins the Fifth Circuit Court of Appeals, which also ruled in EEOC v. Agro Distribution, LLC that the ADAAA is not retroactive.  Notably, the Department of Labor has also taken the position that the law should not apply retroactively.  And, at least for now, it appears that the Equal Employment Opportunity Commission agrees

Lytes and Agro Distribution are important cases for employers defending ADA claims; they make clear that for claims arising before January 1, 2009, pre-ADAAA standards of what constitutes a "disability" are likely to apply.  For more information on the ADAAA, click here for the Stoel Rives World of Employment's ADAAA coverage

Oregon Court of Appeals Upholds Employer's Right to Ask Potentially Disabled Employees to Take Medical Exams

Today in Heipel v. Henderson et al.,  the Oregon Court of Appeals affirmed summary judgment on an Oregon disability discrimination claim in favor of an employer who asked an employee to take an independent medical exam (IME) as part of an investigation into the employee's disturbing work-related behavior.  The court confirmed that such exams must be "job related and consistent with business necessity," and that the exam in this case met those criteria.

Plaintiff Barbara Heipel worked for the Oregon Employment Department.  Her supervisors received an escalating string of complaints about her job performance and erratic behavior.  Her actions included:

  • standing in the bathroom in a "trance" pulling out paper towels into an overflowing trash can;
  • leaning against a bathroom stall in a "despondent state";
  • total loss of emotional control with supervisors and coworkers;
  • accusing her coworkers of stealing shredded documents from a trash can and pasting them together for personal use; and
  • false and contradictory complaints to customers about her employer and coworkers.

Heipel's employer asked her to take an IME to determine whether she posed a threat to herself and others and whether she could perform the essential functions of her position.  Plaintiff refused, and the Employment Department terminated her for refusing.  Plaintiff filed a lawsuit claiming, among other things, that her employer had unlawfully discriminated against her under Oregon employment statutes for having a disability.

ORS 659A.136(1) provides that such examinations are appropriate only where they are "job related and consistent with business necessity."  The Oregon Court of Appeals, relying on federal cases in the Sixth and Eighth Circuits, ruled that, under these circumstances, the requested exam met both requirements.

This decision should not be seen as a blanket endorsement of all IMEs in the workplace.  Although this exam was ruled appropriate, the Court of Appeals' inquiry was fact-specific -- and the facts here were unusual.  Employers should understand the risk of requesting such exams and should carefully evaluate the individual circumstances before forging ahead.

Bus Driver's "Shy Bladder Syndrome" a Disability

A school bus driver who was demoted after his "shy bladder syndrome" left him unable to comply with his employer's drug testing procedures may proceed with claims under the Americans with Disabilites Act (ADA) according to a recent ruling from a Tennessee federal court.  Click here to read the full opinion in Melman v. Metropolitan Government of Nashville.

In Melman, the plaintiff was required to submit to random drug tests.  During two tests he could not provide an "adequate" urine sample, and explained that he could not because of a "shy bladder."  A urologist diagnosed the plaintiff with paruresis (aka shy bladder syndrome) and offered to perform the urine sampling via catheterization.  The employer  declined that offer.  Instead, it placed the plaintiff on unpaid leave, required him to attend a drug rehabilitation program at his own expense, and demoted him to a position as a bus monitor.  (Notably, the plaintiff ultimately did provide a negative sample obtained via catheter.)  The court denied the employer's motion to dismiss, holding that shy bladder syndrome substantially limited the plantiff's major life function of eliminating bodily waste.

Employers with drug testing programs should take note:  employees who are unable to comply with standard drug testing procedures may have a qualifying disability, especially given the more liberal standards under the ADA Amendments Act.  Employers should not shy away (okay, bad pun) from engaging in the interactive process with the employee to find ways that the employee can comply with the procedures - such as providing a sample through catheterization.  The International Paruresis Association also provides suggestions for accommodating shy bladder syndrome. 

ADA Amendments Act Passes House - Next Stop White House

The ADA Amendments Act ("ADAAA") was passed by the U.S. House of Representatives earlier today.  For more information, read the House's Press Release.  As reported previously by the Stoel Rives World of Employment, the same version of the bill was recently approved by the U.S. Senate. 

The next stop for the ADAAA is the White House.  President Bush previously indicated he has some misgivings about the ADAAA, but given the broad bipartisan support that carried the bill through Congress, he is expected to sign it into law.  (Keep in mind, it was George H.W. Bush that signed the original ADA.) 

Assuming it becomes law, the ADAAA will greatly broaden the scope of the ADA.  Some highlights of the ADAAA:

  • Reverses several Supreme Court decisions that have seemingly narrowed the coverage of the ADA, restoring what the drafters perceive to be the original Congressional intent
  • Broadens the definition of disability, including what it means to be “substantially limited in a major life activity
  • Clarifies that accommodations are not be required if an individual is merely "regarded as” having a disability
  • Prohibits the consideration of mitigating measures such as medication, prosthetics, and assistive technology, in determining whether an individual has a disability
  • Provides coverage to people who experience discrimination based on a perception of impairment regardless of whether the individual experiences disability

The Stoel Rives World of Employment will let you know as soon as we receive word on what the White House intends to do.  Stay tuned!

ADAAA Update: Senate Approves ADA Amendments Act

The U.S. Senate yesterday approved the ADA Amendments Act (ADAAA) by unanimous consent, making enactment of the ADAAA likely.  As the Stoel Rives World of Employment previously reported, the ADAAA would overturn several U.S. Supreme Court decisions that many critics claim have too narrowly interpreted the Americans with Disabilities Act's coverage.  To read the Senate version of the ADAAA, click here

The ADAAA passed the House of Representatives in June by a 402-17 vote.  There are minor differences between the House and Senate versions of the bill, and the House is expected to adopt the Senate version on September 17.  After that, it's on to President Bush to sign the bill, which he is expected to do.  Keep watching the Stoel Rives World of Employment for further updates. 

Major Changes to ADA Coming

Here's something to be watching:  a bill currently winding its way through Congress is likely to bring significant changes to the Americans with Disabilities Act.  The bill, knows as the ADA Amendments Act ("ADAAA"), will greatly broaden the scope of the ADA. 

Some highlights of the ADAAA:

  • Reverses several Supreme Court decisions that have seemingly narrowed the coverage of the ADA, restoring what the drafters perceive to be the original Congressional intent
  • Broadens the definition of disability, including what it means to be “substantially limited in a major life activity
  • Creates a list of per se "major life activities"
  • Clarifies that accommodations are not be required if an individual is merely "regarded as” having a disability
  • Prohibits the consideration of mitigating measures such as medication, prosthetics, and assistive technology, in determining whether an individual has a disability
  • Provides coverage to people who experience discrimination based on a perception of impairment regardless of whether the individual experiences disability

The ADAAA passed the House of Representatives on June 25, 2008 by a vote of 402-17.  The bill was introduced to the Senate on August 1, and reports are that at least 70 Senators have vowed to support the bill.  A vote is expected when the Senate reconvenes in September.  No word yet from the White House on whether President Bush will sign the bill into law, but it seems to have a veto-proof majority. 

To read an official summary of the ADAAA, click here.  To read the full text of the current bill, click here.  Stay tuned to the Stoel Rives World of Employment for updates on this landmark legislation. 

Washington Mail Carrier Demands Right to Wear Kilt at Work

A 6-foot-tall, 250-pound mail carrier in Lacey, Washington, wants the U.S. Postal Service to add kilts as a uniform option for men, according to this article from the Seattle PI.  David Peterson, the mail carrier/kilt enthusiast in question, has successfully lobbied the Oregon and Washington mail carrier union locals to endorse kilts; however, his efforts were defeated at the July convention of the 220,000-member National Association of Letter Carriers.  Peterson, undaunted, vows to continue the fight for his right to wear a kilt on the job. 

Why does Peterson want to wear a kilt?  According to Peterson, "In one word, it's comfort."  With his build, Peterson said, his thighs "fill slacks to capacity, causing chaffing and scarring."

Scarring?  Really?  If so, could Peterson have a disability claim?  In any event, this author is now shopping for a nice, business-casual UtiliKilt