- AMERICANS WITH DISABILITIES ACT--UNITED STATES SUPREME COURT--CONTROLLED CONDITION NOT A HANDICAP: The United States Supreme Court issued a decision on June 22, 1999, that a mechanic, whose high blood pressure was controlled by medication, is not "disabled" under the ADA. In Murphy v. United Parcel Serv., __ U.S. __ No. 97-1992, the Court held that an individual claiming a disability under the ADA must be assessed with regard to any mitigating or corrective measures employed. United Parcel Service ("UPS") had terminated the mechanic, who drove commercial vehicles and had to satisfy certain Department of Transporation ("D.O.T.") health certification requirements, because UPS believed that the mechanic's blood pressure exceeded the D.O.T.'s requirements for health certification. The Court further ruled that the mechanic was not "regarded as" disabled because of his high blood pressure because UPS did not mistakenly believe that his actual, non-limiting impairment substantially limited one or more major life activities, it simply regarded him as unqualified to work as a UPS mechanic because he was unable to obtain the D.O.T. health certification.
- COMMENT: The Murphy case is a victory for employers. In essence, the United States Supreme Court has stated that an employee's mental or health related condition is not a disability if that employee can function normally in everyday activities through the use of medication or other assistive devices. Employers should still, however, be aware that they may not discriminate against an employee by mistakenly "regarding" that employee as disabled.
- AMERICANS WITH DISABILITIES ACT--RECOVERING DRUG ADDICT NOT PROTECTED: The Fifth Circuit Court of Appeals held that a former hospital pharmacist and recovering cocaine addict who was fired when he completed the in-patient portion of his treatment is not covered as a disabled individual under the ADA because he is a "current" drug user. The plaintiff had become addicted in 1993 and injected himself with cocaine four to five times a week. He also abused tranquilizers in an effort to counter the effects of the cocaine. In August of 1995, realizing that he was still under the influence from his most recent cocaine injection, he called his supervisor, who advised him to use the employee assistance program. A second supervisor advised him to call a doctor. The employee was treated over night at a hospital and subsequently entered a rehabilitation program. During his ensuing medical leave of absence, the employer informed him that he would be terminated upon expiration of his twelve weeks of leave. The Fifth Circuit concluded that the ADA only protects and applies to individuals who have been drug-free for a significant period of time, and, therefore, the employee's voluntary enrollment in a rehabilitation program did not provide him coverage under this "safe harbor" provision. Zenor v. El Paso Health Care Sys. Ltd. d/b/a Columbia Med. Ctr.-East, __ F.3d __ (5th Cir. 1999).
- SEXUAL HARASSMENT--CURSING DOES NOT EQUAL SEXUAL HARASSMENT: A female store employee's question to her supervisor whether "cursing" was allowed on the sales floor is insufficient to place her employer on notice that there was a reasonable probability that she was being sexually harassed by a male co-worker. In Kunin v. Sears Roebuck & Co., 79 F.E.P. Cas. 1350 (3d Cir. 1999), the court held that employers are not on constructive notice of sexual harassment when an employee's complaint does not refer to sexually offensive behavior. In addition, the employer's failure to discover the alleged sexual harassment was reasonable, since the victim and alleged harasser did not work together every day during the three-week period in which the harassment allegedly occurred, and the harassment consisted only of personally derogatory remarks when management was not within hearing distance. Finally, the court noted that the employee's supervisor did take immediate action when the female employee finally told him of her co-worker's behavior toward her, and she experienced no further harassment before she was discharged for an unrelated incident.
- COMMENT: Supervisors must be aware of what does and does not constitute sexual and/or ethnic harassment in the workplace. In Kunin, the court noted that the mere questioning of whether "cursing" is allowed did not rise to the level of a harassment complaint; however, supervisors must be cognizant that sexually or ethnically filled language may rise to the level of harassment, and immediate action to rid the workplace of such conduct is warranted to avoid liability.
- SEXUAL HARASSMENT--EMPLOYER'S PROMPT, REMEDIAL ACTION RELIEVES LIABILITY: The Sixth Circuit Court of Appeals held that an employer's immediate, good-faith remedial action taken after a female employee reported a male co-worker's vulgar and harassing behavior to a supervisor who was not her supervisor precluded her from showing that the employer failed to take prompt and remedial corrective action. In this case, the supervisor in question met on the same day with the female employee and plant superintendent, the human resources manager met with her on the following day and conducted an investigation to verify her allegations, checked the co-worker's disciplinary record and moved the co-worker from her work area and warned him of possible disciplinary action if the offensive comments continued. Fenton v. HiSan, Inc., 79 F.E.P. Cas. 1138 (6th Cir. 1999).
- SEXUAL DISCRIMINATION--FAILURE TO PROMOTE FEMALE ACTIONABLE: The Eleventh Circuit Court of Appeals reinstated a sex discrimination case against the United States Postal Service for failure to promote a female employee in favor of a man because "he had a wife and children to support." The female superintendent in charge of equipment maintenance lost her position and was required to reapply for a job in a nationwide management reorganization of the Postal Service. The promotion was eventually given to a man who had been her subordinate, and when she complained to the hiring manager, he stated that the male applicant was chosen because he was "a married man with a family to support and needed the money." The court concluded that a jury must decide whether or not the manager's comment about the male candidate's financial position meant that the hiring decision was based on the manager's view of the "relative pecuniary" needs of the two applicants as "individuals rather than as male and female." Taylor v. Runyon, __ F.3d __ (11th Cir. 1999).
- RACIAL HARASSMENT--SEXUAL HARASSMENT STANDARDS APPLY TO RACE CLAIMS: The Sixth Circuit has ruled that the standards used to evaluate sexual harassment claims, as specified in recent United States Supreme Court cases [see Burlington Indus. v. Ellerth, 118 S. Ct. 2278 (1998)], are also applicable to racial harassment claims. In Allen v. Michigan Dep't of Corrections, __ F.3d __ (6th Cir. 1999), an African American employee sued his employer under Title VII for racial discrimination and harassment. The district court dismissed all of the employee's claims, finding that he failed to present enough evidence to create a triable issue for a jury. On appeal, the Sixth Circuit reversed the district court's holding and stated that the employee had presented enough evidence on the racial harassment claim based on the following facts:
- The lock was cut off his locker.
- His log book and notations were altered.
- He received unwarranted disciplinary action.
- He was monitored more closely than non-minority employees.
- He was not promoted.
- He was subjected to racial epithets and insults by supervisory personnel.
- He received a threatening note signed by the "KKK."
The Sixth Circuit found that the employee was subjected to a hostile work environment based on race because of these ongoing incidents which created an unreasonably abusive and offensive work-related environment that adversely affected the African American employee's ability to do his job. The court also stated that, since the conduct was committed by supervisors, pursuant to Ellerth and Faragher (see discussion Jan.-March 1999 Labor and Employment Law ALERT), the employer was vicariously liable.
- COMMENT: The Allen case underscores the necessity for employers to establish and disseminate a policy and complaint procedure which covers both sexual and ethnic harassment. In addition, the United States Supreme Court has held that employers must, in addition, educate their workforce so that each workplace will be free from illegal forms of harassment.
April 1999 Civil Rights Alert
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