Author: Justin S. Gilbert

Categories
Labor and Employment

Wage Discrimination Reform Is Coming

Wage Discrimination Reform Is ComingOn April 5, 2016, Presidential candidate Hillary Clinton said she would require employers “to review employee pay to ensure that women are being paid fairly,” according to the Washington Post. She did not mention how she would accomplish this, but she did say she wanted to “remove [fusion_builder_container hundred_percent=”yes” overflow=”visible”][fusion_builder_row][fusion_builder_column type=”1_1″ background_position=”left top” background_color=”” border_size=”” border_color=”” border_style=”solid” spacing=”yes” background_image=”” background_repeat=”no-repeat” padding=”” margin_top=”0px” margin_bottom=”0px” class=”” id=”” animation_type=”” animation_speed=”0.3″ animation_direction=”left” hide_on_mobile=”no” center_content=”no” min_height=”none”][the] legal barriers that prevent some women from finding out what their male counterparts are paid.” If this sounds familiar, it is; Senator Clinton has supported legislation in the past to do just that. It is called the Paycheck Fairness Act, and it was introduced just over a year ago in the Senate.

It promptly went nowhere – for now.

Over the past few weeks, issues regarding wage discrimination and the gender pay gap have slowly but surely started gaining steam. The recent decision by the United States Women’s National Soccer Team to file an EEOC Charge of Discrimination has been applauded by people across the country (ourselves included) fighting for equal pay. We have seen sweeping reforms in California, where the Fair Pay Act demands justification for any discrepancies in the salaries of men and women who do “substantially similar” jobs, where minimum wage has been raised to $15 an hour (as it has in New York), and where the city of San Francisco “became the first city in the country to require employers to offer six weeks of fully paid leave for new parents.” These reforms may change the path of our country forever as more and more cities follow suit – or fight back.

Taking a closer look

As attorneys who fight on behalf of employees who have been hurt by discriminatory practices, we know full well the importance of these issues. The Paycheck Fairness Act was designed to amend the Equal Pay Act of 1963, just as the Lilly Ledbetter Fair Pay Act of 2009 was designed to address the statute of limitations in wage discrimination cases. The Paycheck Fairness Act would:

“limit when employers can pay differently to ‘bona fide factors, such as education, training, or experience.’ It would require the Equal Employment Opportunity Commission (EEOC) to collect data on compensation, hiring, termination, and promotion sorted by sex.

It would also prevent employers from retaliating against employees for inquiring about or disclosing wage information at a company — perhaps the main method employees have of discovering such a gap in the first place. And it would ‘make employers who violate sex discrimination prohibitions liable in a civil action for damages.’”

Regardless of who is elected, we hope all of the nominees will take a good, hard look at the gender wage gap in this country. Workers deserve to be compensated fairly and equally for the work that they do, and taking steps towards transparency could be what finally ends the gap.

At the Gilbert Firm, we represent Tennessee workers who have been unfairly compensated for their work. If you have been a victim of wage and/or gender discrimination, we want to help. To make an appointment with Michael Russell, Justin Gilbert or Jonathan Bobbitt, we invite you to contact us. With offices in Nashville, Chattanooga, Memphis and Jackson, you can always find an experienced Tennessee employee rights attorney when you need one the most.

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Categories
Special Education Law

Online Schools, Charter Schools and Accommodations

Online Schools, Charter Schools and AccommodationsOnline, for-profit schools are usually associated with colleges and universities. They have been in the news a lot over the last few years as more and students (and teachers) come forward claiming the schools lied about their placements rates, charged them almost unreal amounts of money for tuition, and failed to comply with the rules and bylaws that govern accredited schools. Those problems are now trickling down to online schools for lower grades, too.

Tennessee offers a number of these programs. Tennessee Online Public School, or TOPS, allows high school students to obtain their degree online for free. It keeps its classes small – there were only 40 students in the 2015 graduating class – and its curriculum is designed by certified teachers in Tennessee. Compare this to the more divisive Tennessee Virtual Academy (you can read an op-ed by controversial former Education Commissioner Kevin Huffman here), and it appears that TOPS has a pretty good program.

But TOPS is a public high school created by the Bristol City Schools district, and thus follows the rules and regulations set forth by the state of Tennessee and the federal government. Charter schools, and for-profit online schools, usually have a company or corporation at their helm – which means the people in charge of your child’s education aren’t necessarily educators themselves. Because of that, they are driven by a different set of data: tuition costs, not placement scores. NBC News reports:

“The criticism has sharpened since an October 2015 study of 200 online charter schools that serve approximately 200,000 students in 26 states. It found that charter students who received instruction exclusively via the Internet achieved ‘significantly weaker academic performance’ in math and reading, suffered from larger class sizes and received far less attention from teachers than those in traditional schools.”

Not only is performance weaker, but there are also reports of rampant, systemic fraud. A recent paper published on the Social Science Research network says online charter schools are heading towards a disaster not unlike the subprime mortgage crisis. One of the main issues discussed in the research is how many of these “private for-profit charter school management companies [fusion_builder_container hundred_percent=”yes” overflow=”visible”][fusion_builder_row][fusion_builder_column type=”1_1″ background_position=”left top” background_color=”” border_size=”” border_color=”” border_style=”solid” spacing=”yes” background_image=”” background_repeat=”no-repeat” padding=”” margin_top=”0px” margin_bottom=”0px” class=”” id=”” animation_type=”” animation_speed=”0.3″ animation_direction=”left” hide_on_mobile=”no” center_content=”no” min_height=”none”][are] declining to enroll students with special needs and disabilities,” a blatant violation of the Americans with Disabilities Act, Title IX of the Civil Rights Act of 1964 and Section 504 of the Rehabilitation Act of 1973.

Unless, of course, these private online charter schools don’t take money from the government. Then they can do almost whatever they like. That is why hiring a skilled Tennessee special education attorney to review your concerns is the smart decision. If your child is being denied accommodations, and the online school is taking federal funding of any kind, you can take legal steps to ensure that your child’s needs are met.

At the Gilbert Firm, we are advocates for your child’s right to the best possible education. If that education take places online, he or she should still be granted the tools and resources needed to facilitate learning. To learn more about our services, or to make an appointment with a Tennessee special education lawyer like Justin Gilbert, we invite you to contact us today.

 

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Categories
Discrimination

Discrimination against Transgender Persons in Tennessee

Discrimination against Transgender Persons in TennesseeOver the last few months, more and more states have begun to enact legislation that defends “religious freedoms” by allowing discrimination against certain groups of people. Here in Tennessee, that legislation is twofold:

Senate Bill 2387/House Bill 2414 requires that “Public schools shall require that a student use student restroom and locker room facilities that are assigned for use by persons of the same sex as the sex indicated on the student’s original birth certificate.”

House Bill 1840 “declares that no person providing counseling or therapy services shall be required to counsel or serve a client as to goals, outcomes, or behaviors that conflict with a sincerely held religious belief of the counselor or therapist.”

HB 2414 was tabled by Governor Haslam on April 18 for another year, thought it could find its way back in 2017. HB 1840 is heading to the Governor now, having passed in the House and Senate.

The response has been divided

There has been considerable backlash against other states which have signed similar statutes into law – North Carolina in particular lost 400 jobs when PayPal pulled out, and found themselves with an open venue after Bruce Springsteen cancelled a concert there – and Georgia governor Nathan Deal vetoed a religious liberty bill, saying that he did “not think that we have to discriminate against anyone to protect the faith-based community,” of which he considers himself a member. Bills have been successfully passed in Kansas and Mississippi; in Missouri, Virginia and Kentucky, the legislation remains up in the air.

But is it discrimination?

Of course it is. “Discriminate” simply means to treat differently—to differentiate. By definition, these laws allow different treatment of LGBTQ persons than non-LGBTQ persons. The basis for the differentiation (the discrimination) is said to be one’s religious beliefs. So, it would be more accurate for lawmakers to state that the bill allows discrimination against LGBTQ persons based upon sincerely held religious beliefs.

Opponents of this type of legislation have an even stronger case now, as “a federal appeals court in Richmond has ruled that a transgender high school student who was born as a female can sue his school board on discrimination grounds because it banned him from the boys’ bathroom.” This decision could set the precedent for the rest of the country. At the very least, it will lend credence to other arguments that this is discrimination.

Why are restrooms such a big issue?

Women’s restrooms must, of course, be a place of safety. And, historically, this has been a place of legal discrimination—that men are not permitted. A transgender person, however, presents a new territory. Consider the transgender person who does not identify with his/her birth-assigned gender. If that person internally identifies as female, and expresses herself in voice, clothing, pronouns, haircut, behavior, or other cues as female, should she be forced to use the men’s room based upon birth-assigned anatomy? The Tennessee bill cruelly answers that question “yes,” without exception.

But consider that transgender persons face bullying and harassment at alarming rates—50% have been abused or harassed according to Department of Justice estimates. A government which forces an identifying and outwardly appearing female child to use a men’s bathroom is guaranteeing harassment and abuse for that child.

Presumably, the bill has a basis beyond ignorance and homophobia. Perhaps it is a fear that a female using the women’s restroom could be abused by a transgender person because of a male birth- assignment. If so, those chances are so staggeringly low in comparison to the experience of transgender persons being bullied that it does not make for good law.

Ultimately, these bills fail to grapple with the fundamental question of what does it mean to be transgender—and what do the rights of a transgender person look like? In this sensitive area, lawmakers should educate themselves more rather than playing to ignorance and stereotypes that can lead to bullying and harassment of the LGBTQ community.

To learn more about your rights, to speak with an experienced Tennessee discrimination attorney, we invite you to contact the Gilbert Firm. We maintain offices in Nashville, Chattanooga, Memphis, and Jackson for your convenience.

Categories
Labor and Employment

When Having a Disability Isn’t Enough

When Having a Disability Isn’t EnoughA 2015 case out of the Court of Appeals for the Sixth Circuit denied a man’s claim for compensation under the Americans with Disabilities Act. Because we handle complex ADA claims for our clients throughout Tennessee, we paid attention to the case as it was moving through the courts, and it occurs to us that the average non-lawyer might not understand why the claim was denied. The plaintiff was born with spina bifida occulta, a birth defect that “results in a small separation or gap in one or more of the bones (vertebrae) of the spine.” While some people live their whole lives without any symptoms, Michael Arthur (the plaintiff) had some mobility issues, and underwent surgery in 2002 to correct the issue, having a few of his discs fused.

In 2003, Mr. Arthur took FMLA leave, citing problems with his back. He returned to work but asked for an accommodation, which he was granted. But in 2011, the company for which he worked laid a number of employees off through a reduction-in-force (RIF), and Mr. Arthur was one of them. He brought a lawsuit against the company upon hearing that another employee who was RIFed was offered a position in the manufacturing department – the same department where he used to work before he asked for reassignment. He lost the suit, appealed the decision and then lost the appeal.

But why?

It all comes down to evidence and following the letter of the law

In this particular case, both courts agreed that the person whose job it was to let Mr. Arthur go, his direct supervisor, was never informed that Mr. Arthur had a disability. There is no doubt that he is truly disabled, but as the supervisor was never told, it could not be a discrimination case. Furthermore, Mr. Arthur was the least senior employee in his department; thus, laying him off would be following proper protocols in RIF situations.

Another interesting element of this case is Mr. Arthur’s request for a different position. Under the ADA, an employer must accommodate a disabled employee, but only within reason: it does not always force employers to create new positions for that employee, or to move other employees around in their companies. Mr. Arthur requested to be transferred into another position, but that position was already taken by another employee. The Court found this request to be unreasonable, and therefore upheld the lower court’s decision that there had been no discrimination against the plaintiff.

In the end, what we hope you take from this is that if you have a disability, you do have options – but you cannot infringe upon the rights of your fellow employees any more than they can infringe upon yours. If your employer and your supervisor(s) are not aware of your condition – and it is within your rights not to tell them if you don’t want to – then they may not be found to have committed an act of discrimination under the ADA.

These types of cases can be challenging. You want an attorney who can handle the complexities of your individual case. At the Gilbert Firm, we proudly represent the rights of workers throughout Tennessee. Please contact us to speak Justin Gilbert or Jonathan Bobbitt, or to schedule an appointment with a dedicated Tennessee employment attorney at one of our offices in Nashville, Chattanooga, Memphis and Jackson

 

Categories
Special Education Law

When is Bullying “Officially” Bullying?

When is Bullying “Officially” Bullying?Find us a person who wasn’t teased during school and we’ll show you someone with excellent selective memory. A certain amount of simple teasing is to be expected from kids (even those who know better), and other than reprimanding them, there is not much a teacher can do to stop it.

However, there is a huge difference between teasing some classmates over a lost game of dodgeball during gym class and bullying a student or group of students, and the schools – and you, as parents – absolutely have the right to take action when a student is being bullied. The Federal government defines bullying as “unwanted, aggressive behavior among school aged children that involves a real or perceived power imbalance. The behavior is repeated, or has the potential to be repeated, over time.” A one-off comment may not qualify as bullying, but unending verbal, physical or emotional attacks do.

Students’ rights under the laws

Sadly, students with disabilities are often the subject of such behaviors. When the school fails to address and stop such behaviors, the students’ civil rights are being violated under:

  • Title IV and Title VI of the Civil Rights Act of 1964, which prohibit discrimination in programs or institutions that receive federal assistance (including schools).
  • Title IX of the Education Amendments of 1972, which prohibits discrimination specifically in schools receiving federal assistance.
  • Section 504 of the Rehabilitation Act of 1973, which prohibits discrimination specifically against students with disabilities.
  • Titles II and III of the Americans with Disabilities Act, which prohibits discrimination against persons with disabilities in regards to services and programs provided by State and local governments, an in places of public accommodations (respectively).
  • Individuals with Disabilities Education Act (IDEA), which ensures that all children, including those with disabilities, have access to a free, appropriate public education.

Bullying is a form of discrimination; so is allowing that behavior to continue, regardless of whether or not the student in questions has disabilities. This means that both the individual accused of bullying (or more likely, his or her parents) as well as the school can be held accountable for discriminatory and harassing behaviors.

Recently, the Second Circuit Court of Appeals determined that bullying can prevent a child from “pay[ing] attention to her academic tasks or develop[ing] the social and behavioral skills that are an essential part of any education.” T.K. v. New York City Dep’t of Educ., 2016 U.S. App. Lexis 888 (2d Cir. 2016). Thus, a school’s refusal to discuss bullying with the parents of a child who was bullied denies that child an appropriate education. This is consistent with the United States Department of Education’s position on bullying:

http://www2.ed.gov/policy/speced/guid/idea/memosdcltrs/bullyingdcl-8-20-13.pdf.

In the end, a school should and must be, under the law, a safe and secure place for children to learn. If a child is being bullied, he or she has been denied that right, and as parents, you do have options to help your children. The Gilbert Firm has the skills, experiences and resources necessary to make a successful case against those who would violate your child’s right to an education under the law. We invite you to contact us to schedule a consultation time with a dedicated Tennessee special education law attorney at our office in Nashville, Chattanooga, Memphis or Jackson.

Categories
Age Discrimination (ADEA)

State Funding as an Incentive to Discriminate

State Funding as an Incentive to DiscriminateRecently, the Gilbert Firm filed a lawsuit in federal district court in Nashville challenging funding incentives for schools which place children with disabilities in more restrictive settings than necessary; you can find the Complaint here. The lawsuit argues that Tennessee rewards local schools for more restrictive placements. This, the lawsuit contends, violates federal laws including the IDEA, Section 504, and Title II of the ADA.

The IDEA prohibits funding mechanisms which compel more restrictive environments than necessary:

20 U.S.C. §1412(a)(5): “A State funding mechanism shall not result in placements that violate the requirements of subparagraph (A), and a State shall not use a funding mechanism by which the State distributes funds on the basis of the type of setting in which a child is served that will result in the failure to provide a child with a disability a free appropriate public education according to the unique needs of the child as described in the child’s IEP.”

And so do IDEA regulations: “The State may not use a funding mechanism which distributes funds based on the type of setting in which the child will be served.” 34 C.F.R. §300.114(b)(i).

The lawsuit includes examples of how the State pays for the costs of various placements. The State’s funding formula is set forth in a BEP Funding Handbook. Under Option 5, children who need 22 hours of a “resource program,” the State will pay $2,696.47 for that child’s education. But if a school were to simply add a single hour of service (to 23 hours, not 22), the child is considered an “Option 7 child” — one who needs a “developmental class” for 23 hours per week.” By adding one hour, the school will receive $4,044.70 from the State, not $2,696.47. And if the School chooses Option 8 for the child (a self-contained classroom), the school will receive $6,741.17 — almost three times as much money as the Option 5 child. Thus, the lawsuit alleges the State is monetarily rewarding more restrictive environments, not less restrictive environments.

Already, the case has resulted in a favorable opinion from U.S. District Judge Aleta Traugher, acknowledging that funding causing more restrictive environments — if proven at trial — can violate the law:

The state is a defendant in this action and has an interest in upholding, rather than changing, its current practices…. The plaintiffs are not asking the court to conduct a thorough review of all aspects of the plaintiffs’ educational needs. Rather, they are raising the very pointed question of whether — in meeting those needs — particular systemic practices … caused the plaintiffs to be placed in more restrictive environments than necessary, contrary to federally mandated requirements.

The Gilbert Firm is a leader in special education law, tackling challenging problems across the state to benefit kids. If you believe your child is the victim of unfair segregation, or discriminatory practices, please contact us. We maintain offices in Nashville, Chattanooga, Memphis, and Jackson for your convenience.

 

Categories
Uncategorized

Collective Bargaining Agreements and the Limitation on Judicial Remedies

          Suppose a union employee is unhappy with her union representation or the arbitration procedures and wants to pursue her employment law claims in federal court.  Can she do both?

          Well, it depends on the precise language in the collective bargaining agreement (CBA).

          If the CBA “clearly and unmistakably” waives the employees’  right to file certain types of claims in court, the employee may be forced to accept arbitration on those claims.  That was the holding of 14 Penn Plaza LLC v. Pyett, 556 U.S. 247, 129 S. Ct. 1456, 173 L. Ed. 2d 398 (2009).  In a 5-4 decision written by Justice Thomas, the Court looked to the precise language of the CBA.  In Penn Plaza, the CBA stated:

“[There] shall be no discrimination against any present or future employee by reason of race, creed, color, age, disability, national origin, sex, union membership, or any other characteristic protected by law, including, but not limited to, claims made pursuant to Title VII of the Civil Rights Act, the Americans with Disability Act, the Age Discrimination in Employment Act, the New York State Human Rights Law, the New York City Human Rights Code . . . or any other similar laws, rules or regulations.  All such claims shall be subject to grievance and arbitration procedures . . . as the sole and exclusive remedy for violations.” (emphasis added).  

          Note that this CBA did two things:  (1) it defined the specific statutes; and (2) it stated that arbitration was the sole and exclusive remedy for those particular statutes.  This type of language was enough to foreclose any judicial lawsuit.

          Note, too, that Penn Plaza does not mean that mere mention of non-discrimination language in a CBA, or even the listing of federal statutes in the CBA is sufficient to foreclose judicial remedy.  Where a CBA explicitly lists certain statutory claims, it must be contained within the context of a grievance resolution procedure, not as part of a compliance provision.  Simply put, a CBA which includes a provision preventing discrimination against employees under a federal statute is not the same as requiring union members to arbitrate such statutory claims. See Bratten v. SSI Services, Inc., 185 F.3d 625 (6th Cir. 1999).  A contractual promise to abide by certain civil rights laws does not satisfy the “clearly and unmistakably” requirement of Penn Plaza.   

          Bottom Line: If a CBA “clearly and unmistakably” requires union members to arbitrate certain statutory claims, then the employee’s claims are subject to grievance and arbitration procedures. But, when a CBA falls short of satisfying this high standard, an employee is free to pursue his or her claims through the judicial system. 

Categories
Retaliation Whistleblower Law

Silencing the Whistleblower: Using Confidentiality Agreements to Prevent the Reporting of Illegal Activity by Employees

          Increasingly, employers are adopting generic “confidentiality policies” which prevent employees from sharing any internal documents with persons outside of the company.  But what if these internal documents implicate ongoing illegal activity by the employer?  What if the employee, by remaining silent, faces criminal prosecution for remaining silent about illegal activity?

          The rights of employees to “blow the whistle,” or to oppose unlawful activity, may often conflict with an employer’s internal confidentiality policies.  Whether the employee’s right to blow the whistle usurps the employer’s right to strict confidence can be a thorny issue.

          The Sixth Circuit has employed a six-factor test to determine whether an employee may provide confidential information which otherwise violates an employer’s internal confidentiality agreement.  Those six factors include:  (1) how the documents were obtained; (2) to whom they were given; (3) the content of the documents; (4) the reason they were produced; (5) the scope of the confidentiality agreement; and (6) whether the employee could preserve the evidence without violating the confidentiality agreement. Niswander v. Cincinnati Ins. Co., 529 F.3d 714 (6th Cir. 2008).

          The employee in Niswander, an insurance adjuster, produced significant information from claims files to her attorney.  The Sixth Circuit found that her actions in obtaining the documents were appropriate in light of her position, and giving them to an attorney was appropriate as well.  However, the employer ultimately prevailed because much of the content of the information was unrelated to the legal claims she sought to pursue.

          After Niswander, a few courts have criticized the vagueness and weight to be given to the various factors.  For example, the New Jersey Supreme Court, in Quinlan v. Curtiss-Wright Corp., 204 N.J. 239, 248 (N.J. 2010), ruled that an employee may use 1,800 documents which she copied to support her lawsuit for gender pay equality. When the employer fired her for breaching the internal confidentiality agreement by using those documents in litigation, the jury found in her favor in a retaliation case.  Boy, did they ever—a $10,649,117 total verdict, including $4,565,479 in punitive damages.  Perhaps peculiarly, the Quinlan court held that copying and removing the documents was not protected activity, but using them in the deposition was protected activity.  In other words, this “fruit from a poisonous tree” was still good fruit indeed.

          What if the employee needs to report illegal activity to the United States in a Qui Tam (False Claims Act) case?  Is there a difference when the government is involved?  It appears so. The False Claims Act (FCA) makes it illegal to fire a person for providing documents to the government. 31 U.S.C. §3730(h).  Some courts have held that claims to the government under the FCA trump any internal confidentiality agreement. See, e.g., United States v. Cancer Treatment Ctrs. Of Am., 350 F.Supp.2d 765, 773 (N.D. Ill. 2004).  Indeed, under the FCA, and employee is supposed to provide information to the United States in secret because the government “must investigate the alleged fraud without tipping off investigation targets at a sensitive stage.” 31 U.S.FC. §3730(b); U.S. ex. Rel. Yesudian v. Howard Univ., 153 F.3d 731, 743 (D.C. Cir. 1998).

          So, what are the recommendations for an employee who wishes to report ongoing illegal activity to a lawyer?

          First, per Niswander, determine whether note-taking, as opposed to document production, may be sufficient information for counsel;

          Second, if the employee fears the employer will destroy the documents, consider making an additional copy of the documents and storing them in a safe place at the employer’s worksite;

          Third, if production of the documents to counsel is genuinely necessary for case evaluation, produce a narrow, limited sample and make sure those documents are strictly relevant to the claims to be asserted in a lawsuit;

          Fourth, do not share the documents with family members, friends, or other employees. Instead, limit the production to attorneys only, labeling them “attorney client privileged” so as to indicate the closely held nature of the production; and

          Fifth, if the matter is being produced to the government in furtherance of a False Claims Act case (Qui Tam), consider asking the government to seek an Ex Parte Order from a court allowing the documents to be reviewed by an impartial official.  That provides an additional layer of respect for the documents.

Categories
ADA & ADAA Age Discrimination (ADEA) Bankruptcy Sex Discrimination Title VII

The Plaintiff’s Bankruptcy Schedule – A Defendant’s Windfall?

Many victims of discrimination must file bankruptcy if they cannot obtain work. 

Those bankruptcy filings can be dangerous.  The schedule of assets and liabilities presumes the new debtor will disclose a wrongful termination lawsuit as an “asset.”  Often, that does not occur.

The failure to disclose a potential lawsuit can occur for any number of reasons:  (1) the debtor not understanding that a contingent legal claim, even if not yet pursued in court, is an “asset”; (2) believing a discrimination lawsuit must be filed in court before it becomes an asset for a bankruptcy; (3) relying upon a hurried bankruptcy paralegal to fill out the forms; and (4) not even knowing a discrimination case exists at the time of the bankruptcy filing.

Why does the schedule matter so much?  Because, legally, filing bankruptcy creates an estate.  The assets of the estate, including any wrongful termination claims, no longer belong to the debtor.  They are property of the estate, and they include “all legal or equitable interests of the debtor in property as of the commencement of the case.”  11 U.S.C. § 541(a)(1).   

See the issue yet?  Yep, it’s one of standing to sue.  Filing a wrongful termination suit where the lawsuit was not first disclosed in bankruptcy can result in a legal challenge by the former employer for lack of standing to sue. 

So, what should experienced Plaintiff’s counsel do if he/she learns that a victim of employment discrimination has filed bankruptcy?

  • If the bankruptcy is still ongoing, check the bankruptcy schedules to see whether the potential lawsuit has been disclosed.  If not, amend the schedule to include the lawsuit and surrounding information.  Then, with the cooperation of the Bankruptcy Trustee, file the discrimination lawsuit.
  • If the bankruptcy already has been discharged, check the bankruptcy schedules to see whether the discrimination claim was disclosed in the first place. 
    • If it was, then the bankruptcy Trustee has chosen to “abandon” the discrimination claim and the individual regains standing to file the lawsuit. 11 U.S.C. §554(c); Auday v. Wet Seal Retail, Inc., 2012 U.S. App. LEXIS 22180 (6th Cir. Tenn. 2012).  
    • If the discrimination claim was not disclosed in bankruptcy, consider reopening the bankruptcy estate and making the claim known.  The Trustee may choose to abandon it, or may choose to pursue it.  If the Trustee makes known its intention to abandon, the plaintiff may fairly argue she has standing.  If the Trustee pursues the claim, the Trustee will likely cooperate with the filing of a discrimination suit in order to recover proceeds for creditors.  Technically, the Trustee becomes the “Real Party in Interest” in this situation, but the lawsuit is preserved and any recovery beyond the bankruptcy debt will revert to the debtor.

In summary, it pays to closely evaluate the bankruptcy schedule before filing a discrimination lawsuit.  Do not assume the bankruptcy attorney listed a discrimination lawsuit, or that the client’s ignorance of bankruptcy schedules will be a safeguard.  Instead, be proactive, fixing the schedule where necessary, even if the bankruptcy has already been discharged.

Categories
ADA & ADAA

The Employer’s Duty to Reconsider Under the ADAAA

Many years ago, shortly after the ADA was  passed, a Firing Squad lawyer was trying an ADA case of failure to reasonably accommodate.  The employee claimed the employer was not listening to his requested accommodation, and the employer claimed it could not understand what the employee was saying.

Nowadays, everyone knows this is the “interactive process,” that it “requires a great deal of communication between the employee and employer,” and the jury’s role is to determine who is most responsible for the communication breakdown. Criado v. IBM Corp., 145 F.3d 437 (1st Cir. 1998).  But back then, it was unclear whether liability could even attach over miscommunications.  So, after the plaintiff and the human resources manager had both testified, the judge told the lawyer at a bench conference: “I damn well don’t know who should say what under this law, who did say what, or who didn’t understand whom, but you two best get out in the hall and just settle it.”

We’ve come a long way since then.  In fact, if the employer fires an employee and then learns of additional information about a reasonable accommodation, many Circuits are requiring the employer to “reconsider” the termination based upon the new information. Criado v. IBM Corp., 145 F.3d 437 (1st Cir. 1998)(IBM should have reinstated Criado after learning of requests for leave); Cehrs v. Northeast Ohio Alzheimer’s Research Ctr, 155 F.3d 775, 784 (6th Cir. 1998)(employer should have “reconsidered its adverse employment action when [the plaintiff] . . . reapplied for a position shortly after she was terminated”); Bultemeyer v. Fort Wayne Comm. Sch., 100 F.3d 1281, 1286 (7th Cir. 1996)(employer should have “reconsidered the decision to terminate employment” after learning of need for additional leave time).

For questions about disability terminations, failure to reasonably accommodate, or failure to reconsider a termination, call the lawyers at Gilbert Russell McWherter toll free 888.354.3476.