U.S. Supreme Court to Decide Pregnancy Discrimination Case

 On July 1, 2014, the United States Supreme Court granted certiorari in Young v. UPS, Inc. to decide “whether and in what circumstances, an employer that provides work accommodations to nonpregnant employees with work limitations must provide work accommodations to pregnant employees who are ‘similar in their ability or inability to work.’”

Young was a UPS “air driver” who became pregnant in 2006.  An air driver is responsible for delivering letters and packages for immediate delivery.  The letters and packages were typically light weight; however, Young’s job description required her to be able to lift up to 70 pounds unassisted and up to 150 pounds with assistance.  Young’s doctor gave her a 20 pound lifting restriction during her pregnancy.

UPS disallowed Young from working due to the lifting restriction because (1) light duty was only offered to hose with on-the job injuries, ADA disabilities, or those who had lost DOT certification and (2) UPS policy did not permit Young to continue working as an air driver with a 20 pound limitation despite her claim that she rarely lifted anything heavier than that or could be accommodated otherwise.  Young was able to return to work after her pregnancy.

Young brought an action against UPS claiming disability discrimination and pregnancy discrimination.  The lower courts granted judgment in favor of UPS on both claims prior to trial.  Young appealed the pregnancy discrimination claim to the U.S. Supreme Court.  The Pregnancy Discrimination Act (PDA) requires employers to treat women affected by pregnancy, childbirth, or related medical conditions to be treated the same as other persons not so affected “but similar in their ability or inability to work”.  Young argued that UPS’ policy in granting accommodations to those injured on-the-job, had ADA disabilities, and lost their DOT certification but not pregnant employees was a violation of the PDA because pregnant employees were not treated equally.  In short, Young argues that if an employer accommodates any class of employee, it must likewise accommodate a pregnant employee.

Interestingly, the EEOC published Enforcement Guidance on Pregnancy Discrimination and Related Issues on July 14, 2014.  The EEOC Guidance not only agrees with Young’s argument, it appears to base one of its examples on the Young facts: 

            Example 10:  An employer has a policy or practice of providing light duty, subject to availability, for any employee who cannot perform one or more job duties for up to 90 days due to injury, illness, or a condition that would be a disability under the ADA.  An employee requests a light duty assignment for a 20-pound lifting restriction related to her pregnancy.  the employer denies the light duty request, claiming that pregnancy itself does not constitute an injury, illness, or disability, and that the employee has not provided any evidence that the restriction is the result of a pregnancy-related impairment that constitutes a disability under the ADA.  The employer has violated the PDA because the employer’s policy treats pregnant employees differently from other employees similar in their ability or inability work.


It's easy to determine whose side the EEOC will be on in this fight.

It’s my opinion that Iowa law regarding accommodation for pregnant employees is clearer than the Pregnancy Discrimination Act, but doesn’t necessarily cover the Young circumstances.  Iowa Code § 216.6(2) sets out the employer’s obligations for pregnancy and childbirth.  Subsection b identifies that pregnancy, miscarriage, childbirth and the recovery from each is a temporary disability and should be treated like any other temporary disability for the purpose of leave.  Because Iowa’s specific provisions regarding pregnancy and related conditions seems to apply only in circumstances necessitating leave, it would not necessarily require an employer to provide a light duty position to a pregnant employee.

The ruling in the Young case will have a great impact on Iowa employers and should be watched carefully.

Amanda James Joins Sullivan & Ward, P.C.

Amanda James has joined Sullivan & Ward, P.C. as an associate attorney.  Amanda graduated from Drake University Law School in 2008.  Since that time, she has focused her practice on public utility and regulatory work.  She will continue her work in these areas at Sullivan & Ward, P.C. 

John T. Ward and Richard R. Chabot Honored

Sullivan & Ward, P.C.'s President and CEO, John T. Ward, was recently honored by the Iowa State Bar Association as a member of the "50 Year" class of 2014.  John graduated from Drake University Law School in 1964 and has been with the firm ever since.  Recently retired, Richard ("Rick") R. Chabot, was also honored.  Rick graduated from the University of Minnesota School of Law in 1964 and joined Sullivan & Ward, P.C. in 1985.  Congratulations to John and Rick on this notable accomplishment!   

Nebraska Supreme Court Hears Arguments in Iowa Same-Sex Divorce Case

The Nebraska Supreme Court recently heard arguments in a same-sex divorce case involving two women legally married in Iowa.  Nebraska does not recognize same-sex marriages because of a constitutional amendment that was approved by voters in 2000.  So, the question before the Court, is whether or not the a Nebraska court can grant a divorce without acknowledging the marriage?  An attorney for one of the parties argues that the U.S. Constitution's "full faith and credit" clause requires Nebraska to recognize the marriage.  Given the large number of same sex-marriages that have occured in Iowa between non-Iowa residents since 2009, it will be interesting to see the outcome of this case. 

Return of the Inflexible Leave Policies

Inflexible leave policies—that is policies which provide a specified time off for personal reasons, including medical reasons—have been declared unlawful by the EEOC.  The EEOC’s position is that inflexible leave policies do not provide the individualized consideration necessary to determine whether leave longer than the specified time is a reasonable accommodation.  Accordingly, many companies have revised their leave policies.

However, a 10th Circuit case shows that the rush to revision may have been premature.  The opening statement in Hwang v. Kansas State University declares, “Must an employer allow more than six months’ sick leave or face liability under the Rehabilitation Act?  Unsurprisingly, the answer is almost always no.”  Well, that is an attention-getting line in the world of employment these days.  Let’s examine the path to such conclusion:

Hwang was a good teacher that got cancer and needed treatment.  The cancer and its treatment required her to take a leave of absence.  The University granted her a six-month paid leave of absence.  When she requested additional time, the University denied her requesting explaining that it had an inflexible policy allowing no more than six-months’ sick leave.

Hwang, according to the opinion, was not able to perform her job even with a reasonable accommodation.  Hwang could not perform any function of her job for a lengthy period of time and requiring an employer to hold a position open for such a long period of time was not a reasonable accommodation.  In a profound statement, the court reasoned that reasonable accommodations were about enabling employees to work, not to not work.  An employer is not a “safety net” for the employee.

The court also explained why it did not find the EEOC’s position persuasive.  In what amounts to construction of the language used in the EEOC’s statement, the court found that the EEOC’s position does not answer the question “when is a modification to a leave policy legally necessary to provide a reasonable accommodation?”  The answer is not “every time” as Hwang (and the EEOC) argue.

Lastly, the court reasoned that inflexible leave policies may actually protect disabled employees rather than threaten them.  Such inflexible policies have a tendency to create and fulfill expectations of fair, uniform treatment and limit unfairness in personnel decisions.

To be certain, the court did not give its blessing on any and all inflexible leave policies, but a six-month leave policy was “more than sufficient to comply … in nearly any case.”  While this case is not an Iowa case or from the 8th Circuit, it is good to see a decision that provides an employer with useful tools rather than vague uncertainties. 

Finding an Attorney

Many people come to a point in their life where they need professional legal advice and finding someone to talk to can be a very scary and confusing process.  The first step in looking for an attorney is locating someone who practices in the area you need representation. A good place to start is talking to family and friends to see if any of them have someone they can recommend.  Social media is also a good way to find recommendations if you are comfortable with sharing your need for legal advice.

Another option is searching the internet using key words such as "Legal Services West Des Moines, Iowa" or "West Des Moines Iowa Law Firm" checking with organizations, such as the Iowa Bar Association.  There are also various websites such as "The Unsecret Shopper" where you can get a more personal review like the one where our own Samantha Gronewald was featured a few years ago.

Once you locate an attorney you would like to meet with, you should start out by giving their office a call and asking a few questions.  Explain why you need an attorney and ask questions about their costs, if they offer free consultations and what information you might need to bring to your first appointment.  You don't have to go in to great detail, but make sure they have a basic understanding of what your needs are, while at the same time you can get a feel for them and what they need from you.  Sometimes just in talking to someone on the phone for a few minutes, you can figure out if this is an office or attorney you are comfortable working with or not and if it is, move forward with making an appointment to sit down and discuss your situation in greater detail.

Telecommuting as a Reasonable Accommodation

The 6th Circuit’s telecommuting decision in EEOC v. Ford Motor Co. has been creating a buzz in the employment law community.  Since the concept of telecommuting as a reasonable accommodation is not necessarily innovative, the buzz must be coming from the way in which the court appeared to bend over backwards to declare that telecommuting could have been a reasonable accommodation in this specific instance.  Rather than offer my own critique of the case, check out this blog and this one here or maybe this one if you haven’t got enough yet.  Instead, let’s see what the 8th Circuit and Iowa courts have said about telecommuting.

 [chirp. chirp.]

It’s true, my cursory search of “telecommute” and “reasonable accommodation” in Iowa and the 8th Circuit through my online legal research provider yielded one unpublished one page opinion on telecommuting from 2002.  In Morrissey v. General Mills, Inc, the court found that allowing Morrissey to telecommute would have placed an undue burden on General Mills.  Morrissey’s job as an inventory accountant required her to review only original invoices.  The invoices would have had to be delivered by a courier, which would have possibly led to the disclosure of proprietary information.  The invoices would also have had to be logged out and back in, creating additional work for the other inventory accountant.  According to the court, employers are not required to hire additional personnel, risk disclosure of confidential documents, or increase the workload of other personnel to accommodate a disabled employee.  Telecommuting was not a reasonable accommodation based on the facts presented.

The decision is clearly not a blanket opposition to telecommuting.  These facts simply weren't the right facts to support telecommuting.  As telecommuting becomes more acceptable, requests to telecommute by employees with disabilities will increase.  Be prepared for these requests. Examine your job descriptions and your current telecommuting policies.  Do they need to be revised or updated?  Have you adequately set out the need for an employee's presence in the workplace?  Do you know what technology or workplace changes would need to be made if a request to telecommute was made?   Be proactive, not reactive because it's only a matter of time before a telecommuting request is made by one of your employees.


Google Made Easy!


 At Sullivan and Ward, P.C., we continually seek ways to streamline our resources and tune-up our skills to provide quality representation to our clients in the most efficient and effective manner.  As a paralegal for the firm, I am always seeking information to utilize our computer software and other on-line tools more efficiently.  I often ask myself, “What resources are at our fingertips that we don’t utilize to the fullest to the benefit of our clients?”


I recently ran across an article in Paralegal Today, a professional publication I subscribe to that provided a great article on how to use Google more effectively.  The article, Become a Google Power Searcher, was written by Paralegal, Kris Hill, ACP, FRP.  In her article, Kris, provides a link to a Google website that provides several lessons on how to utilize Google more effectively.  The website can be found at www.powersearchingwithgoogle.com.  The lessons are free of charge. I have not been through the entire list of lessons, but did complete the first stage, and found the information to be very helpful. 


A few things that I learned were:


·         Images can be searched, and then filtered by color.  This can be helpful if you remember certain characteristics of something, but not the actual name you want to search.  The website gave the example of a book.  You might remember what was on the cover and the author’s name, but not the name of the book.  You can provide in the query, the word “book” and the author’s name, and click on “images” and then search.  If you remember that the book was yellow, you can then filter the images by the color yellow, and you will most likely see the image of the book for which you are looking. (Lesson 1-1)


·         If you filter images for the color, “white” Google will show you charts and diagrams relating to your search criteria. (Lesson 1-1)


·         You can also filter the images by their usage rights.  For instance,if you want to use a Google image, type in your search, the word "Google and hit “image” below the search box,  then filter by, “Labeled for reuse," and Google will give you the image you can use. (Lesson 1-1)


·         When you do a search in Google, here are the questions that Google’s software asks:

v    How many times does this page contain your key words?

v    Do the words appear in the title? In the URL (web address)?

v    Do the words appear directly adjacent?

v    Does the page include synonyms for those words?

v    Is this page from a quality website? Or is it low quality, even spammy?  What is this page’s PageRank?

Google combines all those factors together to produce each page’s overall score and send you back your search results, about half a second after you submit your search. (Lesson 1-3)   Remembering these questions can help you better describe what you are looking for in your search.


Some of these are common sense, but a few of them I did not know.


·         By searching with less common words, you might find your answer more quickly, (i.e., instead of using the word “old” to find an “old town” that you cannot remember the name of, Google suggests trying  “ghost town.”)  (Lesson 1-4)


·         When searching via Google, remember that every word in your query matters, as well as the order of your words, however capitalization does not.  Most punctuation also does not matter, however there are several symbols that Google does read (such as % and $). (Lesson 1-5)


I found this website and the lessons completed to be very helpful and plan to go through all of the information/lessons in the near future.  I hope that this information and the website provided are also helpful to you – and happy Googling!


The NLRB's War on Employee Policies

 {Before skipping this post because you don’t have a union, remember that the National Labor Relations Act (NLRA) applies to employers without unions too.  You can read about the application of the NLRA to non-union employers here.}

War might be an extreme description, but the NLRB has been issuing decisions that declare run-of-the-mill employee policies as unlawful.  For example, earlier this month the NLRB determined that an employer’s conduct policy was unlawful.  The unlawful provisions of the policy stated that “employees will not make negative comments about our fellow team members”, “employees will represent [the employer] in the community in a positive and professional manner in every opportunity”, and “employees will not engage in or listen to negativity or gossip”.  What’s wrong with prohibitions against gossip and being rude?  Well, the NLRB found that the prohibitions might discourage employees from exercising their rights under the NLRA.  It’s not that the employer actually disciplined anyone for engaging in protected rights it’s that the employee might believe that she can’t engage in protected conduct.

Other policies that have been under attack include confidentiality policies, social media policies, dress code policies, confidentiality during workplace investigations, and at-will employment policies.

Before throwing out all your policies and handbooks and declaring anarchy at the workplace, remember that the NLRB isn't prohibiting you from having policies.  It is requiring that the policies you have are narrowly tailored and specific about the type of conduct you expect from your employees.  Instead of pitching the policies, have them reviewed to ensure that you aren't unknowingly violating the NLRA (or any other laws!)

Man-imony? The Changing Face of Alimony

Although the word "alimony" is not used in the Iowa Code, the terms "alimony" and "spousal support" are interchangable.  Alimony is stipend to a spouse in lieu of the other spouse's legal obligation for support.  In Re Marriage of Hansen, 733 N.W.2d 683, 702 (Iowa 2007).  In Iowa, gender is not a factor that the Court considers when determining whether or not alimony is appropriate.  The factors the Court must follow when awarding alimony are set forth in Iowa Code Section 598.21A(1) and pursuant to those guidelines either a man or a woman can be ordered to pay.  This is true in other states as well.  In 2012, the American Academy of Matrimonial Lawyers surveyed its members and found that 47% had noticed an increase in the number of women paying alimony.  With more and more women becoming the primary breadwinners for their families, the number of women paying alimony to their ex-husbands will likely continue to increase.