BREAKING: Sex Is A Major Life Activity

(HT: LawMemo via Workplace Prof Blog)

In order to prove you have a disability in federal court, you generally have to be able to show 2 things (and this is obviously generalizing a lot):

1. You have some type of impairment.
2. That your impairment substantially limits a 'major life activity'.

Of course, the laws governing disability discrimination neglect to define either of these terms, which means courts have, over the years, had a lot of fun with them. Especially that second requirement.

As it stands right now, breathing, eating, walking, lifting, caring for ones self all count as "major life activities." AIDS is a disability for straight women, because it impairs the major life activity of reproduction, but not for gay men, because it doesn't impair anything but remaining alive, which, interestingly, is not a major life activity. Working is (usually) a major life activity, but working more than 40 hours a week generally isn't. (How one lawyer convinced a bunch of other lawyers of that is a total mystery to me.) In one case involving a mentally handicapped Wal-Mart applicant, the 11th Circuit said they weren't sure if "thinking, communicating and social interaction are ‘major life activities’ under the ADA."

Last month, the D.C. Circuit Court of Appeals made headlines when it held that sleeping was a major life activity. Seriously.

Well, now the D.C. Circuit has done it again: Having sex, apparently, is a major life activity. In Adams v. Rice, the court noted that a woman recovering from cancer, whose symptoms and treatments were messing with her sex life had a valid disability.

All this confusion over what constitutes a disability may be "cleared up" by an amendment before Congress right now, which would define the definition to include anything that "materially restricts" a "major bodily function." The amendment's proponents think this language would encompass things like AIDS and cancer automatically. I wonder if we're just giving the courts two more phrases to ponder over.

Back to sex in D.C. - One of the judges issued a dissent - not arguing that sex isn't a MLA, thank God - but rather saying that the plaintiff didn't show any interference with her sex life until long after the alleged discrimination took place. This is quite interesting, and is a sub-issue that will probably outlast any amendment made to the ADA.

Either way, an appellate court has once again explained something most of us took for granted. Employment law is such a great lens through which to view the difference between the judicial system and real life.

More After the Jump...

ERISA Makes an Interesting Appearance at the 7th Circuit

The Seventh Circuit's recent decision in Williams v. Interpublic Severance Pay Plan, No. 07-3146 (dec. April 29.2008) seems straightforward enough. It's an ERISA case. It's not very sexy.

But buried in there, underneath the actual legal analysis, are a couple of things worth mentioning.

1. Easterbrook Schools the Academics?
Judge Easterbrook focuses the first part of his holding on the use of trust law in analyzing ERISA cases. This seems appropriate, as the Supreme Court instructed as much in Firestone v. Bruch. But critics of the federal courts' consistent deference to plan administrators' decisions have been chastising the courts for years, saying they ignore trust law in favor of a rough amalgam of contract, administrative and labor law. And no one epitomizes the anti-deference movement like Yale professor John Langbein, who has written extensively on why he thinks the standard of review under ERISA is out of whack.

So it's no suprise when Judge Easterbrook supports deference to the plan's administrator, or when he uses contract law to do it. But when he supports his holding with "See generally John H. Langbein, The Contractarian Basis of the Law of Trusts, 105 Yale L. J. 625 (1995)," call me crazy but that's more than just a holding. That's a shot across the bow.

2. ERISA: the Cartoon
"Second, one must not anthropomorphize 'the administrator.'"

Oh, how many geeky benefits conversations this unfortunate statement could start. What Disney animal would best represent "the administrator?" Would "the administrator" have a high-pitched squeak or a low, dopey voice? How many episodes would it take before "the administrator" would have an anthropomorphically similar character of the opposite gender?

Seriously, though, Easterbrook's point is that administrator's are "commonly large organizations" and don't have any real "interest" in the day-to-day operation of the plan. I know, I know. ZZzzz.

But then, there it was. It might as well have been written in red.

There would be a real conflict of interest if a given administrator put in place a method of linking decisionmakers' income to the substance of their decisions. A quota system...or some other means of tying the wages or promotion of staff to its disposition of claims could call for non-deferential judicial review.

Really? Somebody must have seen "Sicko".

3. Please Deliver 9 Copies to: One First Street, Washington D.C.
Easterbrook ends his interest/deference analysis by noting that (what a coincidence!)the whole thing was presently before the Supremes in MetLife v. Glenn, which was argued (again!) six days before Williams was released. Make of that what you will.

More After the Jump...

BREAKING: LaRue Bats 1000 (Or 9, As the Case May Be)

In a much-awaited decision just released, all 9 Supreme Court Justices have agreed that plan beneficiaries (regular joes like you and me) are able to file suit under ERISA to recover money we would have had if the administrators had followed our instructions.

Prior to the LaRue holding, most courts agreed that ERISA limited suits to recover plan losses had to be brought by the plan, for the plan as a whole. LaRue opens the door for regular people to sue for losses to their individual account, reasoning that their account balance is part of the plan balance.

The decision did a fine job of weaving around the most dicey parts of the case beneath - whether "make whole" remedies (i.e. money) are "equitible" enough to be recoverable under ERISA.

More to come.

On the web:
ScotusWiki on LaRue
Workplace Prof Blog Analysis

More After the Jump...

FirmSuit of the Day: The House Always Wins

Day 2 of Current Employment's week of law firm employment suits is one of those cases that make you wonder if someone at the plaintiff's attorney's office just missed a question on the client questionnaire. Now it's a cautionary tale, thanks to Legal Blog Watch.

The Story: Theresa Brooks worked for Boston's Peabody & Arnold for sixteen years. Then, one day in 2005 she didn't come in. The next day, still no Theresa. Obviously, the firm was a little worried. Brooks had a history of back problems - the firm had given her a special chair, and made some poor chump do her heavy lifting (probably a law clerk).

When Brooks informed the firm that she could no longer work because of her disabling back issues, Peabody decided a little more inquiry might be in order (back problems don't usually lead to trips to the happiest place on earth), so they sent her for an independent medical exam. But even the independent doctor diagnosed her with spondy-something (does this look like the DSM IV?) and agreed it was disabling. Still, 2&1/2 months after she stopped coming in, Peabody fired Brooks, and she sued.

At trial, Peabody showed a secret spycam video of Brooks... What? Oh, get off your horse - you know your firm's got one on you, too. Anyway, the video showed Brooks "working in her yard, repeatedly bending over, carrying heavy bundles, walking up and down stairs without difficulty, and walking without a limp or a cane," according to the court. But we all know that those videos are edited to make people in wheelchairs look like they spend their days surfing and competing in strongman competitions. That doesn't prove anything, right?

[The video shows that s]he was also physically able to drive forty minutes each way to a casino in Lincoln, Rhode Island, and to sit playing slot machines for three hours, while claiming that her back problems would not permit her to sit at her desk and type.

Oh. Well. Ok.

Advantage Peabody. Somebody greenlight whoever shot that footage - I smell an indie career. The moral of the story for those of us in the biz? Stick with craps, and it's high table, and let someone else roll.

More After the Jump...

Wal Mart Settles Supreme Court Case

A couple of months ago, Wal Mart Assistant General Counsel Miguel Rivera made it clear via a memo to its outside counsel that the legal profession was anything but safe from its policy of exporting efficiency on its suppliers. (They put a moratorium on across-the-board rate hikes, citing skyrocketing associate salaries. Really.)

Well, now it seems the Supreme Court is no exception; the retail giant settled an ADA lawsuit yesterday that would have given the Court the chance to answer a long-pondered question - whether the ADA requires employers to place disabled employees in available positions or simply allow them to participate in the application process. The Court dismissed the case, and the question remains unanswered.

To me, it's just more proof that, for all its benefits, efficiency (economic or judicial) can still leave you so unsatisfied.

More After the Jump...

Me Three - the Court Questions Your Buddy's Testimony

The Supreme Court took up the issue of "me too" evidence in discrimination claims on Monday, hearing arguments in Mendelsohn v. Sprint. The case hinges on whether or not testimony of other employees who were allegedly discriminated against ("me too" evidence) is admissible as circumstantial evidence of another employee's alleged discrimination. Did that make sense?

It's like this. You sue your employer. I say "hey, that happened to me, too" (thus the catchy name) usually under a different supervisor. I testify at your trial as to my events, thus providing "evidence" that your discrimination happened.

As always, SCOTUSblog (and now the awesome SCOTUSwiki - my new favorite website) has the best coverage. Not to be outdone the New York Times has a synopsis of the orals, noting that the Roberts Court seemed to be more conservative than Bush's EEOC, which would like to allow "me too" information when it can jive with the relevance and nonprejudicial rules of evidence.

Most of the Court seemed to think that letting in "me too" evidence would necessitate "minitrials" within trials to determine whether or not the information was accurate, and therefore relevant. From Paul Cane's Argument for Sprint:

Had the "me, too" evidence been admitted, then we would have had to respond with what might be called "not you, either" evidence. And then the plaintiff would have made a rebuttal to that showing, and we would have had trials within a trial on whether these couple of persons that plaintiff identified as potential bad actors were, in fact, bad actors...

I think they should disallow the use of the evidence until someone comes up with descriptions that don't make us sound like we're fighting over a Tonka truck.

Justice Souter said the evidence would be highly prejudicial, but could be probative too. After all, if your supervisor is discriminating and mine is discriminating, isn't that a sign of something? Not surprisingly, Justice Scalia didn't think so. Turns out, this is a really good oral transcript to read if you're a 2L stuck in evidence, because it goes to show you can be a Supreme Court Justice and still not know what Rule 403 really covers.

And then Justice Breyer sort of went off the deep end a little and said that "me too" evidence couldn't be allowed in or "[w]e’ll have trials that last a thousand years..."

A thousand years. Hmm. So, like longer than the time between now and the Magna Charta. Maybe the Court should start taking on more mandatory retirement cases...

Anyway, as posted here, this decision could have pretty sweeping effects on future pattern and practice cases. It's unlikely this is an issue the Court will balk on (unlike, say, 401(k) recovery for individual claimants).

More After the Jump...

Eye Witness Report on LaRue Oral Arguments

Just got this email from Marc DeBofsky (ERISA case law wizard and CE's Benefits Litigation professor) and thought I'd pass it along:

From a friend of mine –
Just got back from the oral argument in LaRue [v. DeWolff, Boberg & Associates]
Court asked lots of questions whether the claim should be brought under A(1)(b) versus (a).

Section 502(a)3 was barely discussed and I would doubt that the court will reach that issue at all.

Prediction -- a win under [502](a)2. Votes - 5-4 or 6-3. Kennedy asked no questions.

Anybody else see the show? Any predictions, eye-witness or otherwise, feel free to leave in the comments.

For all the discrimination lawyers out there, LaRue is the ERISA case asking whether individual plaintiffs should be allowed to recover money they would have gained if the 401(k) plan administrators had followed their investment instructions properly. LaRue lost pretty big when his retirement wasn't invested according to his specs.

If you're thinking anything like "well, of course they can, why would congress pass a law to protect people where plaintiffs can't recover under common law theories..." let me just stop you right there. You are entering a world of pain. Just stop. Don't look up the annotated statute or try and find a treatise or anything. Ignorance is bliss, I promise you.

More After the Jump...

Supreme Court Grants Cert. on Awesome California Labor Case - And Also Some Gun Thing.

I know, I know. Everyone's talking about D.C. v. Heller, the Second Amendment bombshell of a cert. grant. Believe me, the D.C. Circuit version, Parker, was my life for 3 months of moot courtness this fall. I'm interested.

But if you want to talk guns, you're in the wrong place - unless it's a postal service article or something - and Heller was not the only cert petition granted today.

The Supremes agreed to hear a challenge of a California labor statute that prohibits employer communication during a union campaign. The case, Chamber of Commerce v. Brown, could give the Court a chance to define the extent an employer's noncoercive speech is protected by the 1st Amendment or Section 8 of the NLRA. Except, of course, that it's been long-settled that both of those things are true, so, that's dangerous.

From the Petition for Cert.:

[The statute] forbids employers that receive either a state "grant" or over $10,000 from a "state program" from using those funds "to assist, promote, or deter union organizing," which is defined as "any attempt by an employer to influence the decision of its employees in this state or those of its subcontractors regarding either ...[w]hether to support or oppose a labor organization that represents or seeks to represent those employees ... [or] [w]hether to become a member of any labor organization," This proscription applies to "any expense, including legal and consulting fees and salaries of supervisors and employees, incurred for research for, or preparation, planning, or coordination of, or carrying out, an activity to assist, promote, or deter union organizing."

The 9th Circuit held en banc that the state law wasn't preempted by the NLRA because it only tangentially touches on noncoercive speech. And then it got good:

[The 9th Circuit held that the statute was not preempted] because noncoercive employer speech is neither actually nor arguably protected by the NLRA. It held that section 8(c) of the NLRA does not grant employers speech rights but "simply prohibits their noncoercive speech from being used as evidence of an unfair labor practice."

Wow. That could be a thing.

We're thinking that SCOTUS is going to overrule the 9th Circuit here. Why? Two reasons: 1) the Roberts Court is clearly pro-business, and this case, brought by the California Chamber of Commerce, is as "business" as they come, and 2) the Supreme Court always overrules the 9th Circuit. Seriously, their like the Buffalo Bills - it doesn't matter how good they are, they're never going to win.

More After the Jump...

Lawyer Loses Case on Sex Poems? We Are Back in Business!

Whew – a somber day followed by a day of dead air – we're lucky anyone's still out there. Are you still out there?

Well, we hope so, because CE is returning to its bread and butter today, starting with a cautionary tale coming out of the 1^st Circuit that we had to ignore on Monday.

We'll spoil it for you: if you're going to write love notes to coworkers, don't sue when you get fired.

Until now, we've always assumed British guys in their 60's living in the states could do pretty much whatever they wanted. (Girls go crazy for that accent. It's ridiculous.) Apparently, so did David Bennett. The ex-pat IP lawyer was fired from a corporation in Massachusetts, and he sued for age discrimination, among other things.

The problem was, he was fired for allegedly penning a series of anonymous, sexually-tinged love poems to a coworker. Though he denied writing the poems, he was ultimately implicated because many of the spellings and words were in the King's English, and not our west-of-the-atlantic, bastardized hog-talk. We can only assume this was a way of invoking the bright line rule about girls and accents espoused above. Plus, they hired a handwriting expert, which is an area of science we honestly thought was made up for 80's cop shows and CSI.

The other (read: actual) important thing to remember from the case is that, in the end, it didn't matter whether Bennett wrote the poems or not. From the ABA Journal:

Whether or not Bennett actually was the author was "largely beside the point," the panel wrote. "(W)hat counts is whether the decision-maker ... believed the plaintiff to be the author and, if so, whether he acted on that belief in deciding to send the plaintiff packing."

One last thing - when they asked Bennett if he wrote the poems he denied it, and then he said he had never composed a poem in his life. A search of Bennett's desk revealed a whole collection of other poems in his handwriting. Remind you of anyone? We'll simply repeat our often-repeated plea: Before you file that lawsuit that will cost hundreds of thousands of dollars and take years to fully resolve, THINK ABOUT HOW DIRTY YOUR OWN FRIGGING LAUNDRY IS!

Or don't. This stuff is a boon for us.

More After the Jump...

Supreme Court: Whining, Country Cookin' and Celebrities

In our recent post on how overly concerned the Supreme Court seems to be with old people, we pointed out that there were a few other employment cases this term that didn't have anything to do with those along in years.

While that's not exactly true (see below), the cases present a couple of age-neutral issues, parties, bigots and other tabloid-ready topics worth considering, and a judge/justice SCOTUS celebrity showdown that will blow your mind!!

Descriptions after the jump.

CBOCS West v. Humphries.
As a preliminary matter, we note this post is being published in the N.D. of Ill. so we'll take our cues from the 7th Circuit's opinion and refer to CBOCS by it's Christian name, Cracker Barrel.

We tried to skim the questions presented to sum up the case, but somebody must've read the brevity suggestion for SCOTUS questions. From the petition:

QUESTIONS PRESENTED:
Is a race retaliation claim cognizable under 42 U.S.C. § 1981?

What kind of question is this? They better have good orals, 'cause Cracker Barrel is definitely not winning best brief this term.

The 7th Circuit opinion summarizes the case pretty well: Humphries was an assistant manager at Cracker Barrel in Bradley, IL (go Boilermakers!) And, after the store manager who liked him left, they apparently brought in a temporary manager from the early 19th century. From the Circuit Op.:

According to Humphries, Cardin [the mgr] routinely made racially derogatory remarks, such as stating that all African-Americans are “drunk or high on drugs” or that “all Mexicans have a bunch of kids.” Humphries alleges that other employees confirmed Cardin’s inappropriate comments, and told Humphries that Cardin had stated that he was there “for the white people” and was “going to take care of the white people.”

Humphries was fired, of course, and claimed it was in retaliation for bringing the manager's actions to the attention of the district manager. When his Title VII case was dismissed, the district court granted summary judgment on the 1983 claims, holding that retaliation isn't an option under section 1983. The 7th Circuit reversed, and now here we are.


Sprint United Management v. Mendelsohn
Ok, so we said these cases didn't have anything to do with old people, we were speaking from a purely academic point of view. Ms. Mendelsohn, is, in fact, an old person. But the question before the court is not about her underlying ADEA claim (she got riffed and claimed she was picked because of her age) but the fact that she wasn't given a fair trial because the trial court wouldn't hear "me too" evidence

"Me too" evidence is the hilariously juvenile nickname (we're waiting for the "nuh-uh, stupid" evidence debate) given to testimony from fellow employees who experienced similar discrimination (in this case, during the reduction-in-force) though not necessarily by the same manager or under the exact, same circumstances. Introduction of this type of testimony has actually been a pretty hotly-debated issue in discrimination cases.

Preston v. Ferrer
Ok, this case is not necessarily an employment case, though the result will definitely have implications on L&E law, because it involves federal preemption under the Federal Arbitration Act. That substantive importance, however, has nothing to do with our interest in this case.

The "Ferrer" in the caption is "Judge" Alex Ferrer, more commonly known as "Judge Alex" to anyone in college, raising small children or sick from school. The other guy, what's-his-name, is Ferrer's former manager. If ever there was an unfortunate and sordid relationship leading two individuals to the Supreme Court, this is it. From Preston's attorney's press release:

Alex Ferrer is a former Florida District Court Judge, who now makes his living on television, arbitrating petty legal disputes.

Arnold Preston is a Florida attorney, who once practiced before Judge Ferrer in Miami. In 1999, Mr. Preston left Florida and took a job with the William Morris Agency in Beverly Hills, California. Recalling Judge Alex Ferrer’s charisma on the bench, Arnold Preston introduced the Florida jurist to the top agents at William Morris. When Arnold Preston left William Morris to become a talent manager and television producer in 2002, he became Judge Alex Ferrer’s manager.

The two had a falling out, of course, and Mr. Preston is trying to arbitrate commissions he is allegedly owed. Heartbreaking.

Current Employment is reading right through this. We think the Supremes are merely trying to capitalize on their involvement in the media high-point that was Anna Nicole, though we hope they're planning some kind of judge-on-judge Iron Chef-style showdown where Judge Alex gets to pick a justice to opine against (we say go with Alito - he's new and seems easliy flustered).

At the very least, we hope the Roberts Court will adopt a minimum c-list celebrity standard for future terms. We'll keep you posted.

More After the Jump...