- The U.S. Court of Appeals for the Eleventh Circuit recently
held that it was not discrimination for an employer to fire a
pregnant certified nurse's assistant after her doctor imposed
a 25-pound lifting restriction, so long as other employees who
suffer from non-occupational injuries are similarly situated.
Employees given modified job duties to accommodate on-the-job
injuries are not comparators with respect to a claim of pregnancy
- Sticking with the 11th Circuit, the court ruled that a supervisor
at Borden's Miami dairy facility did not commit actionable sexual
harassment when he constantly followed the plaintiff, a former
employee, stared at her, and made sniffing noises while staring
at her crotch. The divided court held that the conduct was not
sufficiently severe or pervasive to alter the former employee's
terms or conditions of employment. The judges dwelled on the fact
that the supervisor's actions were not unambiguously sexual gestures.
Due to the fact that the entire court (rather than a panel of
3 judges) ruled on this case, it is an important benchmark sexual
harassment decision (the plaintiffs' Bar is seeking Supreme Court
review). Mendoza v. Borden Inc., 11th Cir.,
No. 97-5121, en banc, 11/16/99.
- Recent FMLA Decisions: In July, the 11th Circuit
invalidated a U.S. Department of Labor regulation and found that
an employer need not give employees advance notice that their
paid leave will be counted toward the 12 weeks of leave provided
by the FMLA. In Cox v. AutoZone, the employee had accrued
13 weeks of paid disability leave, which she used after child
birth, along with two weeks of unpaid leave. She thought that
she was entitled to her paid leave, as well as up to 12 weeks
of FMLA leave. The Department of Labor argued that she was so
entitled, unless the employer specifically and prospectively notified
her that she was using FMLA leave when she used her paid leave.
The court disagreed, finding the regulations add requirements
and grant entitlements beyond the statute, concluding that the
employer exercised its right to require the employee to use her
paid leave as part of the 12-week FMLA leave and, as she was absent
for more than 12 weeks, she did not have a right to return to
her previous job or an equivalent position (she was demoted).
- In another 1999 case, this one involving a public sector employee,
the 11th Circuit ruled that individual liability does
not exist under the FMLA. The same court had similarly found,
in another case involving government employees, that public officials
are not liable for violations of the FLSA. It is not yet clear
that these decisions are applicable to the private sector (although
most other courts have found FLSA individual liability of owners,
presidents, board directors in the private sector).
- The Seventh Circuit Court of Appeals joined other courts in
finding that depression induced from inability to work under a
particular boss, where the employee was otherwise capable of working,
was not protected under the ADA. In another ADA decision,
a Federal trial court in Alabama found that a sales representative's
attention deficit disorder was not a disability under the ADA.
- Congress enacted the Labor-Management Reporting and Disclosure
Act (LMRDA), in 1959 to protect various rights and interests of
union members, including freedoms of speech and assembly in union
affairs and due process in disciplinary proceedings, against abuses
by unions and their officials. In addition, the LMRDA requires
unions to inform their members about the act's provisions. The
International Association of Machinists gave its members such
notice when the LMRDA was passed in 1959, but has not done so
since. On January 27, 2000, the United States Court of Appeals
for the Fourth Circuit held that insufficient, because the notification
duty is "continuous": "Effective notice . . . requires
at a minimum that each individual, soon after obtaining membership,
be informed about the provisions of the LMRDA." Thomas v.
Machinists, 163 L.R.R.M. (BNA) 2324, http://www.law.emory.edu/4circuit/jan2000/991621.p.html
(4th Cir. Jan. 27, 2000).
- In Communications Workers v. Beck, 487 U.S. 735 (1988), the
Court ruled that under the National Labor Relations Act nonunion
employees required to pay union "agency fees" as a condition
of employment have a right to object and pay only that portion
of union dues attributable to collective bargaining, contract
administration, and grievance adjustment. On February 22, 2000,
reversing the National Labor Relations Board, the United States
Court of Appeals for the District of Columbia Circuit held, in
a case brought by National Right Work to Work Legal Defense Foundation
attorneys, that the duty of fair representation requires a union
to inform all new employees and agency fee payors what percentage
of dues they would pay if they become Beck objectors and to provide
all objectors with "a detailed explanation of how the union
calculated" that percentage, including an explanation of
"how its affiliates used the money" paid over to them.
Penrod v. NLRB, No. 99-1121, http://pacer.cadc.uscourts.gov/common/opinions/200002/99-1121a.txt
(D.C. Cir. Feb. 22, 2000).
- Most, if not all, unions require nonunion employees to object
annually during a narrow "window" period if they want
to exercise their "Beck rights." However, in Shea v.
Machinists, 154 F.3d 508 (5th Cir. 1998), a case brought under
the Railway Labor Act (RLA) by National Right to Work Legal Defense
Foundation attorneys, the court held that an annual objection
requirement violates the employees' First Amendment rights and
breaches the duty of fair representation. On February 1, 2000,
Foundation attorneys filed a follow-up nationwide class action
suit against the Machinists in the United States District Court
for the Eastern District of Virginia. This suit seeks, on both
collateral estoppel and substantive grounds, to extend the Shea
ruling to all RLA nonunion employees subjected to that union's
agency shop requirements. Lutz v. Machinists, Civil Action No.
00-148-A (E.D. Va.). The Foundation's press release announcing
the filing of Lutz can be read at http://www.nrtw.org/b/nr_177.htm.
2003 The Federalist Society