Special Client Alerts

Americans with Disabilities Act

The following recent court decisions interpreting the Americans with Disabilities Act (ADA) and a United States Supreme Court decision granting certiorari are of major significance and are therefore brought to your attention via this Special Alert:

          The Fifth Circuit, in a case of first impression, has held that disability harassment is a cause of action under the ADA.  Flowers v. Southern Regional Physician Services, 99-31354 (3/30/01 5^th Cir.).  Subsequently, the Fourth Circuit has likewise held that disability harassment is a cause of action.  Fox v. General Motors Corp., 00-1589 (4/13/01 4^th Cir.).  Be aware that the Third Circuit has indicated that such a claim under the ADA should be cognizable.  See Walton v. Mental Health Ass’n, 168 F.3d 661, 666-67 (3d Cir, 1999).

          The Seventh Circuit has held that eating is a major life activity in the context of diabetes and that a plaintiff, although the condition can be mitigated by medication, is still disabled under the statute.  This decision may conflict with the Supreme Court’s decision in Sutton v. United Air Lines.  Lawson v. CSX Transportation, 00-1179 (3/26/01 7^th Cir.).

Finally, the U.S. Supreme Court has agreed to hear argument regarding whether an accommodation requesting a transfer is reasonable even though it conflicts with the employers’ job seniority system.  US Airways v. Barnett, 00-1250 (cert. granted 4/16/01 US).  The Circuits are currently split over whether such a request is reasonable.  The Supreme Court’s decision may impact on whether an accommodation may be reasonable even if barred by a collective bargaining agreement.

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Waiver of Title VII Claims Through a Collective Bargaining Agreement

The following recent court decision interpreting the arbitration provision of a collective bargaining agreement is of major significance and is therefore brought to your attention via this Special Alert:.

The Fourth Circuit has upheld a provision of a Collective Bargaining Agreement (CBA) requiring that claims of discrimination under Title VII be arbitrated rather than litigated in federal court.  Safrit v. Cone Mills Corp., 85 FEP 833 (4^th Cir. 2001).  The CBA provided that the union and company would not discriminate on any basis and that they agreed to abide by the dictates of Title VII.  It further provided that unresolved grievances under this provision are proper subjects of arbitration.

The court held that a union can validly waive an employee’s statutory rights to litigate in federal court as part of the negotiation process.  In order for the waiver to be valid, it must be clear and unmistakable in the CBA.  This is accomplished one of two ways:

            (1)       The CBA can contain an explicit arbitration clause in which the parties agree to submit all federal employment causes of action to arbitration; or

            (2)       A general arbitration clause can be coupled with a provision that makes clear discrimination statutes are part of the agreement to arbitrate.

The rationale is straight-forward:  The collective bargaining process allows unions, on behalf of their members, to give up rights, be it to strike or litigate discrimination claims, in favor of other benefits they will receive in return.

              For those clients with non-union employees, the United States Supreme Court and the New Jersey Appellate Division have upheld the validity of employment agreements with provisions requiring the arbitration of employment claims, thus barring suits in court.  Circuit City Stores, Inc. v. Adams, 85 FEP 266 (U.S. 2001); and Littman v. Morgan Stanley Dean Witter, 337 N.J. Super. 134 (App. Div. 2001).

Should you have any questions concerning this new ruling of the National Labor Relations Board, please contact the attorney normally servicing your account.

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