New Jersey Employment Lawyer Blog

More About the EEOC’s New Americans with Disabilities Act Regulations

April 19, 2011 | by Jonathan I. Nirenberg

Last week, I discussed the Equal Employment Opportunity Commission (“EEOC”)’s new regulations regarding the Americans with Disabilities Act Amendments Act (ADAAA) which discuss the newly broadened scope of the ADA, and the terms “major life activity” and “substantially limited.” In this article, I will focus on ADAAA regulations that cover the concept of “mitigating measures” for disabilities, and how to prove that an employee has a “record of” a disability or is “regarded as” having a disability.

What Are “Mitigating Measures,” and When Can They Be Taken Into Consideration Under the ADAAA?

Under the ADAAA, most “mitigating measures” must be ignored when determining whether an individual is disabled include. A mitigating measure is something that reduces or minimizes the limitations caused by a disability. Examples of mitigating measures include medication, medical equipment and devices, prosthetic limbs, low vision devices, hearing aids, mobility devices, oxygen therapy equipment, use of assistive technology, reasonable accommodations, learned behavioral or adaptive neurological modifications, psychotherapy, behavioral therapy, and physical therapy.

However, the new ADAAA regulations indicate it is appropriate to consider the negative side effects of a mitigating measure when determining whether an individual is disabled. Similarly, it is proper to consider a mitigating measure when deciding whether an employee is qualified for his job, or is entitled to a reasonable accommodation for his disability.

What Does it Mean to Have a “Record of” a Disability?

In addition to protecting individuals who are actually disabled, the ADA protects individuals with a “record of” a disability. Under the new ADAAA regulations, someone has a record of a disability if he previously had an impairment that substantially limited him in a major life activity, or was misclassified as having an impairment that substantially limited a major life activity.

What Does it Mean to Be “Regarded as” Having a Disability?
The ADAAA also protects individuals who are “regarded as” being disabled. According to the new regulations, this includes any employee whose employer correctly or incorrectly believed he has an impairment, unless the employer reasonably believed the impairment was both minor and expected to last for six months or less. Unlike the previous ADA regulations, under the new regulations an employer does not have to believe the impairment substantially limited the employee’s ability to perform a major life activity to regard an employee as disabled.

EEOC Issues New Americans with Disabilities Act Regulations

April 12, 2011 | by Jonathan I. Nirenberg

As I previously discussed, protection for disabled employees was vastly expanded on January 1, 2009, when the Americans with Disabilities Act Amendments Act (ADAAA), a law expanding the scope of Americans with Disabilities Act (ADA), went into effect. On March 25, 2011, the United States Equal Employment Commission (EEOC) established its final regulations clarifying the ADAAA. Courts generally must follow these regulations unless they are inconsistent with the ADAAA.

Below, I discuss some of the regulations regarding the scope of the ADAAA, and the terms “major life activity” and “substantially limited.” Next week, I will discus additional regulations that explain when an employer can consider “mitigating measures” for disabilities, and how to prove that someone is covered by the ADA because he has a “record of” a disability or is “regarded as” having a disability.

The Scope of the ADAAA
The new regulations make it clear that the ADAAA is intended to broaden the definition of the term “disability” and to make it easier for employees to meet that definition. The ADA still covers individuals who have (1) an actual physical or mental impairment that “substantially limits” a “major life activity;” (2) a “record of” such an impairment, and (3) are “regarded as” having an impairment. However, the meanings of those terms have been broadened significantly.

What is a “Major Life Activity” Under the ADAAA
The regulations explain that the term “major life activity” includes 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, and working.

Some impairments almost always are considered disabilities. Examples include deafness, blindness, intellectual disability (formerly known as mental retardation), partially 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.

What Does it Mean to “Substantially Limit” a Major Life Activity?
The regulations say the term “substantially limits” should be interpreted broadly and does not necessarily require an individual to be severely or significantly limited. Generally, the focus should be on whether the employer discriminated against the employee, not on whether the employee meets the definition of disabled.

They also say that, when determining whether the impairment is a disability, you can consider the condition, duration, and manner in which an individual can perform a major life activity. They further clarify that an impairment can be covered by the ADAAA even if it lasts less than six months, is episodic, or is in remission. For example, episodic impairments like epilepsy, hypertension, asthma, diabetes, major depressive disorder, bipolar disorder, and schizophrenia, and cancer in remission, all can be impairments under the ADAAA.

Gender Discrimination Lawsuit Gives Bayer a Headache

April 6, 2011 | by Jonathan I. Nirenberg

A group of six female employees of Bayer HealthCare Pharmaceuticals recently filed a class action lawsuit claiming the company discriminated against them because of their gender. The case, which was filed in the United States District Court in Newark, New Jersey on March 21, 2011, seeks $100 million in damages.

The lawsuit claims Bayer discriminated against its female employees who hold Associate Director and higher level positions, in violation of the New Jersey Law Against Discrimination and Title VII of the Civil Rights Act of 1964. According to Katherine Kimpel, the employment lawyer who represents the plaintiffs in the lawsuit, “Bayer engages in systemic discrimination against its female employees – particularly those with family responsibilities – by paying them less than their counterparts, denying them promotions into better and higher paying positions, limiting their employment opportunities to lower and less desirable job classifications, and exposing them to different treatment and a hostile work environment.”

Female Employee Being Discriminated Against.jpg According to a press release issued by the law firm representing the female employees, the lawsuit claims Bayer published articles describing women as being prone to “mood swings,” “indecision,” and “backstabbing,” and concluding that “women with power are ‘loose cannons’ who often feel threatened by colleagues.” The case further alleges that Bayer’s managers made disparaging comments about working mothers, including saying the company “needed to stop hiring women of reproductive age.”

According to a company spokesperson, “Bayer denies the allegations of gender discrimination and will vigorously defend itself against these charges.” However, “Bayer will not comment further on pending litigation, other than to note that it is committed strongly to a policy of non-discrimination and equal treatment for all employees.” Bayer HealthCase Pharmaceuticals, which is a subsidiary of Bayer Corporation, has its headquarters in Wayne, New Jersey.

U.S. Supreme Court Rules FLSA Forbids Retaliation Against Employees Who Make Oral Complaints

April 1, 2011 | by Jonathan I. Nirenberg

On March 22, 2011, the United States Supreme Court ruled that the Fair Labor Standards Act of 1938 (“FLSA”) prohibits employers from retaliating against employees who make oral complaints about violations of the FLSA. The FLSA is a federal law that sets minimum wages, maximum hours, and overtime pay requirements. It includes an anti-retaliation provision which forbids employers from firing or otherwise discriminating against employees because they “filed any complaint” under the FLSA.

The case, Kasten v. Saint-Gobain Performance Plastics Corp., involves Kevin Kasten’s lawsuit against his former employer, Saint-Gobain Performance Plastics Corporation. Mr. Kasten claimed Saint-Gobain fired him in retaliation for his verbal objections to the company’s violation of the FLSA. Specifically, he repeatedly told his supervisor, several human resources representatives, and other Saint-Gobain officials that the company was violating the law by locating its time clocks in a place where employees could not get credit for the time they spent putting on and taking off their protective gear. In a separate lawsuit, Mr. Kasten proved that Saint-Gobain violated the FLSA because it was required to pay its employees for the time they spent “donning and doffing” their protective gear.

The Supreme Court found that Mr. Kasten is entitled to try to prove his retaliation case because “filing any complaint” under the FLSA can include making a verbal complaint to your employer. The Court noted that the word “filed” has different meanings in different contexts. Sometimes it implies something in writing, but in other contexts it can include verbal statements. It then considered that when Congress passed the FLSA, it recognized enforcement of the law was likely to depend on “information and complaints received from employees seeking to vindicate rights claimed to have been denied,” and that the anti-retaliation provision was intended to encourage employee to come forward by preventing employers from silencing them through “fear of economic retaliation.” Accordingly, the Court concluded that Congress did not intend to limit the FLSA’s anti-retaliation protection to written complaints, since that would make it more difficult for illiterate, less educated, and overworked workers to complain. It also explained that limiting complaints to written complaints would prevent Government agencies from using hotlines, interviews, and other verbal complaint methods, and would discourage employees from using informal workplace grievance procedures.

However, the Supreme Court also recognized that it would not be fair to employers if the FLSA’s anti-retaliation provision applied when the employer did not have fair notice that the employee made a complaint that could subject the company to a retaliation claim. It therefore ruled that an oral complaint must have enough formality that the employer either understood or reasonably should have understood that the complaint was a business concern. In other words, a complaint is “filed” when a reasonable person would have understood that the employee put the employer on notice that he was asserting a right under the FLSA.

New York Federal Court Requires Early Mediation in Most Employment Discrimination Cases

March 24, 2011 | by Jonathan I. Nirenberg

In January, the United States District Court for the Southern District of New York (“SDNY”) began requiring early mediation in all employment discrimination cases other than cases brought under the Fair Labor Standards Act (“FLSA”). Mediation is a form of Alternative Dispute Resolution (“ADR”) in which a lawyer, retired judge, or other trained mediator tries to help the parties settle their case.

Mediation offers the parties to a lawsuit a way to resolve their cases before they spend too much time, money, or mental energy trying to prove their cases. A study has shown that Settling Is Better Than Going to Trial for both employers and employees. As a result, it makes perfect sense that the SDNY would require early mediation in employment discrimination cases, which often can be very time consuming, costly, and emotional for everyone involved.

The SDNY is a federal court which is located in downtown Manhattan, White Plains and Middletown, New York. It covers the Bronx, New York, Westchester Rockland, Putnam, Orange, Dutchess, and Sullivan Counties. The SDNY’s mediation program is free, since the mediators donate their time.

Like the SDNY, New Jersey’s state courts require early mediation in most employment law cases. However, currently the United States District Court for the District of New Jersey (“DNJ”) does not require mediation in every employment discrimination case, but instead leaves it up to individual judges to decide if and when to send the parties to mediation.

Appellate Court Reduces $10 Million Punitive Damages Award For Age Discrimination to $2,465,000

March 22, 2011 | by Jonathan I. Nirenberg

Earlier this month, New Jersey’s Appellate Division reduced a punitive damages award in an age discrimination case in which the jury had awarded $10 million, to slightly less than $2.5 million. Punitive damages are awarded to punish a defendant when its actions are especially egregious.

The Evidence of Age Discrimination

Nicholas Saffos worked for Avaya, Inc. and its predecessors, AT&T and Lucent Technologies, for more than 20 years. In 2002, Avaya hired M. Foster Werner, Jr., as the head of Mr. Saffos’ department. Mr. Saffos quickly noticed that Mr. Werner was firing employees who were over 40 years old, and replacing them with younger workers. He also noticed that Mr. Werner was favoring the younger employees in his department.

In 2003, Mr. Werner suddenly began criticizing Mr. Saffos’ job performance and examining his work, even though he had received positive performance reviews in the past. In August 2003, Mr. Werner placed Mr. Saffos on a Performance Improvement Plan (“PIP”). Avaya fired him 30 days later. At the time, Mr. Saffos was 49 years old. Avaya hired a 33-year-old to replace him. Mr. Saffoshas other evidence of age discrimination, including the fact that the average age of an employee in the department decreased by 10 years during the first two years that Mr. Werner was in charge.

The Jury Award

After a trial, a jury found in Mr. Saffos’ favor and awarded him $250,000 for emotional distress, $325,500 for past lost wages (“back pay”), $167,500 for future lost wages (“front pay”), and $10 million on punitive damages. However, the trial judge reduced the punitive damages to a little over $3.7 million, which was five times the other damages the jury had awarded because he believed the jury’s award was unreasonably high. Both sides appealed.

The Appellate Court Reduced the Punitive Damages Award

On appeal, in Saffos v. Avaya Inc., the Appellate Division reduced the punitive damages even further. It stated that although courts are not required to limit punitive damages to 5 times the actual damages, the trial judge acted properly when he used that as a guideline to find the punitive damages award was disproportionate to the harm Mr. Saffos experienced and disproportionate to the damages he recovered.

However, it ruled that emotional distress damages often include a punitive element, and the $250,000 the jury awarded to Mr. Saffos for emotional distress already included a punitive element since Mr. Saffos did not suffer any physical harm as a result of the emotional distress, and he did not need any psychiatric treatment. As a result, it concluded that the emotional distress damages should not have be included when calculating the punitive damages as 5 times the jury’s award. The Appellate Division therefore reduced the punitive damages award to just under $2.5 million, which is 5 times the economic damages the jury awarded.

New Jersey Appellate Division Reinstates Retaliation Claim Against Department of Corrections

March 11, 2011 | by Jonathan I. Nirenberg

On February 28, 2011, New Jersey’s Appellate Division issued an unpublished opinion ruling that a jury should decide whether the New Jersey Department of Corrections (“DOC”) retaliated against one of its employees, Bienvenido Montalvo.

Mr. Montalvo Filed a National Origin Discrimination Complaint With the EEOC

Mr. Montalvo worked for DOC as a senior corrections officer at Northern State Prison (“NSP”). On October 5, 2004,he filed a complaint with the United States Equal Employment Opportunity Commission (“EEOC”) in Newark, New Jersey. He claimed several superior officers harassed and retaliated against him because of his national origin, Hispanic/Puerto Rican. The EEOC sent Mr. Montalvo’s Charge of Discrimination to DOC in Trenton on October 7. It is unclear exactly when NSP received a copy of Mr. Montalvo’s Notice of Charge of Discrimination, but the evidence seems to indicate that DOC received it sometime in October 2004.DOC Unfairly Disciplined Mr. Montalvo After He Complained About Discrimination

On November 4, 2004, Mr. Montalvo received a notice of disciplinary action charging him with conduct unbecoming and other sufficient causes for allegedly assaulting a prisoner on October 28. DOC suspended him without pay pending a hearing, and told him he was subject to potentially being fired. However, after a hearing in December 2004, the charges against Mr. Montalvo were dismissed because DOC failed to present any evidence to support them. Mr. Montalvo was then reinstated to his job with full back pay.

The Trial Court Dismissed Mr. Montalvo’s Retaliation Claim

Mr. Montalvo sued DOC and six of its employees alleging national origin discrimination and retaliation in violation of the New Jersey Law Against Discrimination (“LAD”), among other claims. However, the trial court dismissed his retaliation claim, finding he did not have enough evidence to support it.

The Appellate Division Reinstated Mr. Montalvo’s Retaliation Claim

Security Guard.jpg The Appellate Division disagreed, and instead ruled that Mr. Montalvo is entitled to a trial. It concluded that he suffered an “adverse employment action” because a reasonable employee might not file a discrimination claim if he knew his employer would respond by falsely accusing him of committing an assault, suspending him without pay, and forcing him to defend himself at a disciplinary hearing. It further found it is possible for a jury to find from the evidence that DOC knew about Mr. Montalvo’s EEOC complaint when it disciplined him. The Court concluded that a reasonable jury could believe the discipline was retaliatory, based on evidence including the fact that (1) DOC suspended him less than a month after he filed his Charge of Discrimination with the EEOC; (2) the officers who brought the disciplinary charges against him told him he had a target on his back and they wanted to fire him in October 2004; and (3) DOC sought to discipline him despite a videotape and several reports from the day of the alleged assault which confirmed he had done nothing wrong. Accordingly, the Appellate Division sent Mr. Montalvo’s case back to the trial court for a jury trial.

U.S. Supreme Court Adopts “Cat’s Paw” Discrimination Theory

March 2, 2011 | by Jonathan I. Nirenberg

Yesterday, the United Supreme Court decided an important employment law case. Specifically, in Staub v. Proctor Hospital, the Supreme Court ruled that companies can be held liable for an adverse employment decision, even if the employee who actually made the decision did not discriminate, when another supervisor’s discriminatory actions or beliefs influenced the decision. As the Supreme Court explained, cases in which a supervisor uses a discriminatory factor to influence someone else to discipline or fire an employee are commonly referred to as “cat’s paw” cases. Staub is similar to Kwiatkowski v. Merrill Lynch, an April 2008 decision in which the New Jersey Appellate Division adopted the cat’s paw theory under the New Jersey Law Against Discrimination (“LAD”).

Staub involves an employee, Vincent Staub, who worked for Proctor Hospital as an angiography technician. Proctor fired Mr. Staub, who was a member of the United States Army Reserve, in April 2004. Mr. Staub brought a wrongful termination lawsuit under the Uniformed Services Employment and Reemployment Rights Act of 1994 (USERRA), a federal law that prohibits military status discrimination against members of the United States Armed Forces. After a trial, a jury found in Mr. Staub’s favor, concluding that his military status was a factor in Proctor’s decision to fire him. The jury awarded Mr. Staub $57,640 in damages.

Mr. Staub did not claim that the employee who made the decision to fire him, Proctor’s Vice President of Human Resources, Linda Buck, had any animosity toward him because he was a member of the Army Reserves. Rather, he claimed his immediate supervisor, Janice Mulally, and Ms. Mullally’s supervisor, Michael Korenchuck, were hostile toward him because of his military obligations, and influenced Ms. Buck’s decision to fire him. Specifically, Mr. Staub claims that when Ms. Buck decided to fire him, she relied on a discriminatory “Corrective Action” disciplinary warning that Ms. Mulally and Mr. Korenchuk placed in his personnel record in an attempt to get him fired. The Supreme Court ruled that these facts were enough for a jury to hold Proctor liable for discriminating against Mr. Staub in violation of USERRA.

Third Circuit Reverses Decision Preventing Class Action Arbitration

February 24, 2011 | by Jonathan I. Nirenberg

On February 9, 2011, the United States Court of Appeals for the Third Circuit ruled that an arbitrator, rather than a judge, must decide whether an arbitration agreement allows the parties to have a class action arbitration. As a result, it reversed the District of New Jersey’s decision which had ruled that the case must proceed to arbitration as individual claims, rather than as a class action.

I represent the plaintiffs in the case, Jose Ivan Vilches, Francis Sheehan, Jr., and Jack Costeria. They each worked for the Travelers Companies, Inc., and related companies as appraisers in New Jersey. They filed a lawsuit on behalf of themselves and other appraisers who worked for Travelers, seeking damages for unpaid overtime pay under the Fair Labor Standards Act (FLSA) and the New Jersey Wage & Hour Law (NJWHL).

Gavel On Lawbook.jpg When they began working for Travelers, Mr. Vilches, Mr. Sheehan and Mr. Costeria each signed agreements which require them to pursue their legal claims against Travelers through arbitration. Those agreements do not say, one way or the other, whether they can bring a class action in arbitration. Travelers later modified its arbitration policy to say that employees cannot bring class action cases. However, Mr. Vilches, Mr. Sheehan and Mr. Costeria never agreed to that new policy.

Last year, the District of New Jersey granted Travelers’ motion to compel arbitration. The court also ruled that the plaintiffs were bound by the arbitration policy which prohibited them from bringing a class action.

But on appeal, in an unpublished opinion in Vilches v. Travelers Companies, Inc., the Third Circuit Court of Appeals ruled that the District Court should not have decided whether the arbitration agreement the plaintiffs agreed prohibited them from bringing a class action wage and hour case. Rather, since the question involves interpreting the arbitration agreement they signed when they were hired to determine whether that agreement permits class action arbitration, the Third Circuit concluded that the arbitrator rather than a judge must answer that question. As a result, the Third Circuit reversed the lower court’s ruling, and referred the case to arbitration to decide whether the case can proceed as a class action.

Jury To Decide If Employer Must Pay Punitive Damages in Sexual Harassment Case

February 16, 2011 | by Jonathan I. Nirenberg

On February 8, 2011, New Jersey’s Appellate Division ruled that an employee is entitled have a jury decide whether to award punitive damages against her former employer. Prior to the appeal, a jury had awarded the plaintiff, Judith Rusak, $80,108.80 in wages she lost because she experienced sexual harassment and retaliation at work. However, the trial judge did not let the jury decide whether to award punitive damages against Ms. Rusak’s employer, Ryan Automotive.

Punitive damages are intended to punish a defendant for violating the law. As the Appellate Division explained, punitive damages are available against an employer under the New Jersey Law Against Discrimination (LAD) only if the company’s upper management either actually participated in or was willfully indifferent to the discrimination, harassment, or retaliation, and the conduct was “especially egregious.” An employer’s actions are “especially egregious” if it engaged in an evil-minded act with a willful and wanton disregard for the employee’s legal rights.

Applying that law, the court in Rusak v. Ryan Automotive, LLC concluded that a jury could find the sexual harassment Ms. Rusak experienced was especially egregious. Specifically, the court ruled that a jury should decide whether Ms. Rusak is entitled to punitive damages based on sexual harassment and retaliation that included supervisors telling Ms. Rusak sexually explicit stories about executives having sex with other executives’ wives; leaving graphic pictures of female genitalia on her desk and sending copies of them to her by e-mail; sending pornography to her at work; calling her a “dumb . . . stupid blonde;” insulting and making crude comments about her; yelling and screaming at her; telling her not to come back to work; taking away her telephone and computer; removing her name from a list of employees eligible for annual awards; telling her she was going to be fired; and other similar abusive behavior.