In This Issue:
Washington DC Court of Appeals Found Illness Triggered by Office Building Not Substantial Enough to Recover Under ADA
A budget analyst for the District of Columbia became ill with a condition called "idiopathic pruritus" that manifested itself in lack of sleep brought on by severe allergies. The employee represented that the allergies were a result of the work environment and that the problem caused "severely incapacitating skin-itching." He testified that the itching would begin as soon as he arrived at work and would continue after he returned home, resulting in nearly completely sleepless nights. As a result, his sleeping problems caused him to frequently arrive late to work. He requested accommodation for his condition, but, instead, was fired for excessive tardiness. In response, the employee sued the District of Columbia for violating the Americans with Disability Act.
The Court of Appeals for the District of Columbia found that the employee failed to prove that the disability was substantial, because the symptoms of the disability were brought on by only one workplace location. The Court found that "If [the employee] could have avoided the itching that seriously affected his sleep by simply working at a different location, then he was not 'substantially limited' in the major life activity of sleeping."
There was no evidence that the employee's itching and sleeplessness were brought on by any other location than his office. For a disability to fit within the meaning of the ADA, it must require the employee to avoid or refrain from participating in a wide variety of everyday situations.
However, employers should note that the Court accepted the underlying disability of pruritus, signaling that problems many would consider minor or strange do fall within the category of disability under the ADA.
http://caselaw.lp.findlaw.com/data2/circs/dc/037134a.pdf
Contact for more information: Andrew B. Cripe
Makeup Found Not Discriminatory as Part of Dress Code
Harrah's Casino’s new dress code requires female beverage servers to wear makeup. A female beverage server complained to management about the policy. In response, Harrah's gave her 30 days to apply for another job within the company that did not require her to wear makeup. When the 30 days expired and she had not applied for another job within the organization, Harrah's fired her. She, in turn, sued Harrah's claiming that the dress code discriminated against women.
The Ninth Circuit Court of Appeals held that different grooming standards for men and women are not discriminatory unless the grooming standards impose a greater burden on one sex over the other. The court found that Harrah's policy did not impose more stringent standards on the female employees. Both men and women were required to conform to personal grooming requirements such as hair style, make-up (or the prohibition of make-up on male employees), nail upkeep, etc.
Although the court finds that requiring women to wear makeup does not cross the line of unequal treatment, it is still not clear as to the extent to which a dress code can mandate specific attire, makeup, etc.
http://caselaw.lp.findlaw.com/data2/circs/9th/0315045p.pdf
Contact for more information: Tom H. Luetkemeyer
Company and Union May Not Require Employees to Wear a Union Logo
Two BellSouth workers filed an unfair labor practice against their employer and the Communications Workers of America ("CWA"), the union representing BellSouth employees.
The collective bargaining agreement required workers to wear both the company and union logos on their uniforms. The two employees were not members of the union and their unfair labor practice stated that forcing them to wear the union logo on their uniform interfered with their right not to participate in union activity.
The National Labor Relations Board found in favor of the company and the union; the employees appealed. The Fourth Circuit Court of Appeals decided that the mandatory regulation forcing workers to wear the union insignia on their uniform interfered with the right of workers not to engage in union activity. The court noted that the National Labor Relations Act protects an employee's right to both: 1) engage in activities supporting the union, and 2) refrain from engaging in union activities. The Court stated that it is reasonable for a person, viewing a union embroidered uniform, to assume the employee supports the union. Therefore, the Court found that the company must not force employees to wear the union logo.
The Court did recognize that acts by the company requiring employees to wear the union logo on their uniforms is different from the company displaying union logs on bulletin boards and company forms. Printing the logo "on papers concerning company and employee business could not reasonably be taken to convey an individual's support of the union, as does the display on the uniform."
http://caselaw.lp.findlaw.com/data2/circs/4th/012075p.pdf
Contact for more information: Thomas Y. Mandler
Minimum-Wage Increase in Illinois
Effective January 1, 2005, Illinois raised its minimum-wage to $6.50 an hour from $5.50 an hour, which remains the Federal minimum wage. Employers are required to post the new minimum wage through posters issued by the Illinois Department of Labor. Illinois is the only state in the Midwest with a minimum wage higher than the Federal mandate. Other states with higher minimum wages than the Federal mandate include Alaska, California, Connecticut, Delaware, Maine, Massachusetts, New York, Oregon, Rhode Island, Vermont and Washington state.
www.illinois.gov/PressReleases/ShowPressRelease.cfm?SubjectID=3&RecNum=3607
Sexual Orientation is Now a Protected Category in Illinois
Illinois Governor Rod Blagojevich signed a law (effective January 1, 2006) that amends the Illinois Human Rights Act ("Act") to include sexual orientation in the list of protected categories in the areas of employment, real estate transactions, public accommodations and credit lending. The definition of sexual orientation in the new amendment includes "actual or perceived heterosexuality, homosexuality, bisexuality or gender-related identity." The Act requires employers to amend their workplace anti-discrimination and harassment policies to include a reference to "sexual orientation" as a protected category. Employers, however, are not required to enact any affirmative action policies or programs based on sexual orientation. Illinois is the 15th state to include sexual orientation in its anti-discrimination statute.
http://biz.findlaw.com/employment_employer/nolo/ency/E76BEBE6-E194-46C1-983629F17557E86D.html
Illinois Will Grant Unemployment Compensation to Locked-Out Employees
The Illinois legislature recently amended the Unemployment Compensation Act to provide benefits to employees who are locked out by their employer. Previously, locked-out employees were denied unemployment compensation benefits along with employees who engaged in strikes. The new law, backed by the United Auto Workers and the United Steelworkers unions, may impact employers’ aggressive bargaining tactics. Only by proving union bad faith bargaining tactics can an employer prevent unemployment compensation to locked-out employees.
http://www.ilga.gov/legislation/93/SB/PDF/09300SB1994lv.pdf
Contact for more information: James R. Pirages
Illinois Equal Pay Poster
Employers must post an Equal Pay Act poster in their workplace that summarizes the requirements under the Act. The Equal Pay Act prohibits employers with four or more employees from paying unequal wages to men and women who do the same or substantially similar work. Substantially similar work includes work requiring the same skill, effort and responsibility, under similar working conditions. The Equal Pay Act pertains to men and women working for the same employer in the same county. According to the Act, there may not be a pay disparity for similar work unless the difference is based upon a seniority system, a merit system, a system measuring earnings by quantity or quality of production, or a different factor other than gender. The poster is available through the link below.
http://www.state.il.us/agency/idol/news/epa.htm
Contact for more information: Paul J. Cherner
Mandatory Sexual Harassment Training in California
On September 30, 2004, a new law mandating sexual harassment prevention became effective in California. Full compliance with this law is required by January 2006. California businesses with 50 or more employees must now provide supervisors with at least two hours of sexual harassment training every two years. Although the law does not state that the business with 50 employees must be within the state of California, it is likely to be interpreted as applying to California employers with 50 total employees, including those outside California. A supervisor is defined as an individual with the authority to effectively recommend: 1) hire, transfer, suspension, layoff, recall, promotion, discharge, assignment, reward, or discipline of other employees; 2) direct the work of other employees or just their grievances; or 3) effectively recommend any of these actions.
Supervisors employed as of July 1, 2005, must receive two hours of training by January 1, 2006. Supervisors hired or promoted into a supervisory position after July 1, 2005, must complete the training within six months of the hire or promotion. Supervisors, who received training after January 1, 2003, need not be retrained until January 1, 2006. After January 1, 2006, employers must have ongoing training for all supervisors within six months of becoming supervisors, providing at least two hours of anti-harassment training every two years.
The two hours of training must be "interactive" and conducted by professionals with knowledge and expertise in the prevention of harassment, discrimination and retaliation. An audio or video presentation alone is not sufficient. The law provides that compliance with the statute is not a defense to a sexual harassment claim and a supervisor’s failure to receive the mandatory training is not grounds for establishing liability for harassment under California Fair Employment Housing Act.
Contact for more information: Antonio J. Gonzalez
California Domestic Partner Rights And Responsibilities Act
On January 1, 2005, the California Domestic Partner Rights and Responsibilities Act of 2003 took effect. The Act requires employers covered by the applicable laws to extend the same rights and benefits to domestic partners registered with the State of California as currently provided to spouses of employees. Employers in California and employers outside of the state with California employees, who currently provide benefits to employees’ spouses, must amend their policies to comply with the statute. The Act provides that domestic partners registered with the State of California “shall have the same rights, protections and benefits and shall be subject to the same responsibilities, obligations, and duties under law . . . as are granted to and imposed upon spouses.” Depending upon the benefits employers currently provide, employers may have to: 1.) provide health benefits equivalent to those offered to spouses; 2) provide extended unpaid leave to care for a domestic partner; or 3.) provide moving expenses, membership, membership discounts and travel benefits.
Contact for more information: David I. Dalby
This newsletter has been prepared by Hinshaw & Culbertson LLP to provide information on recent legal developments of interest to our readers. It is not intended to provide legal advice for a specific situation or to create an attorney-client relationship. | 
