Publications

Mario Echazabal worked for Chevron U.S.A., Inc. through an independent contractor and twice applied for a job directly with Chevron. On each occasion, Chevron withdrew its offer to hire Echazabal based on the results of a physical exam, and on the second occasion requested that its contractor either reassign Echazabal or remove him from the refinery altogether. The contractor laid Echazabal off, and he filed suit alleging, among other things, that Chevron had violated the Americans with Disabilities Act (“ADA”) in refusing to hire him, or even to let him continue working in the plant.

The EEOC has promulgated regulations that allow employers to screen out a prospective employee with a disability if he poses a direct threat either to himself or others. Echazabal argued that Chevron’s reliance on this regulation was misplaced as the regulation was invalid.

The Supreme Court held that the regulation was valid and that an employer may refuse to hire an individual whose disability would pose a direct threat of harm to him on the job. At the same time, the Court warned employers against falling into the paternalistic practice of refusing to hire individuals with disabilities “for their own good.” Instead, employers must individually assess each employee and any health or safety threats posed by the employee’s placement on the job.

In US Airways, Inc. v. Barnett, the Supreme Court found that under certain circumstances a seniority system may allow an employer to refuse a request from an employee with a disability to be placed in a position ahead of other workers with more seniority.

In 1990 Robert Barnett injured his back while working for US Airways, Inc. and was transferred to a less physically demanding position. Subsequently Barnett learned that two employees more senior to him intended to bid on the position. When he asked US Airways to make an exception to its seniority system in order to reasonably accommodate him and allow him to remain the position, US Airways declined and Barnett lost his job. He then brought suit claiming that he had made a request for a reasonable accommodation under the ADA and that US Airways had violated that law when it refused to assign him the requested job in violation of its seniority system.

Normally, the Court said, a request for an assignment to another position would be a reasonable accommodation under the ADA. When an employer has an established seniority system in place, however, it is not ordinarily reasonable for such a request to trump the rules of a seniority system.

The Court was clear, however, that an employee may show special circumstances warranting a finding that despite a seniority system, the requested assignment is “reasonable” under the particular facts of the case. For example, the Court noted, an employee might show that the employer fairly frequently makes exceptions to its seniority system, or that the system already contains exceptions and that one more is unlikely to matter. Employers must, therefore, continue to examine requests for reasonable accommodation on a case-by-case basis despite the existence of a seniority system.

In another recent decision important for employers, the United States Supreme Court in National Railroad Passenger Corp. v. Morgan held that the “continuing violation doctrine” does not apply to save otherwise untimely claims of discrete discriminatory or retaliatory acts under Title VII.

Abner Morgan, an African-American male, filed a charge of discrimination and retaliation against National Railroad Passenger Corp. with the EEOC. In his charge, Morgan alleged that he had been subjected to discrete discriminatory and retaliatory acts and had experienced a racially hostile work environment throughout his employment. While some of the alleged discriminatory acts occurred within the requisite timeframe for filing suit, many took place prior to that time. In order to include all of the alleged discriminatory acts in his lawsuit, Morgan relied upon the “continuing violation doctrine,” under which a plaintiff may sue on claims that would ordinarily be time-barred, so long as they are sufficiently related to incidents that fall within the statutory period.

The Court narrowed the continuing violation doctrine by holding that it does not apply to discrete acts of discrimination or retaliation. Specifically, the Court stated that discrete discriminatory acts are not actionable if time-barred, even when they are related to acts alleged in timely-filed charges. It is important to note, however, that the continuing violation doctrine may still be utilized in hostile environment cases. A charge alleging a hostile work environment will not be time-barred if all acts constituting the claim are part of some unlawful practice and at least one act falls within the filing period. Nevertheless, the Court held that in neither instance is a court precluded from applying equitable doctrines that either toll or limit the time period for filing a charge of discrimination.

In another important decision, the United States Supreme Court recently allowed to stand the D.C. Circuit court decision in Epilepsy Foundation of Northeast Ohio v. NLRB, in which the court extended “Weingarten rights” to nonunionized workers who are called into a disciplinary meeting by the employer. Weingarten rights provide employees with the right to request the presence of a representative at an interview in which the employee reasonably believes might result in disciplinary action.