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Reversing the district court and further broadening a circuit split, the Eleventh Circuit Court of Appeals found that “[b]ecause a review of the plain language of the ADA yields no statutory basis for distinguishing among individuals who are disabled in the actual-impairment sense and those who are disabled only in the regarded-as sense, we join the Third Circuit in holding that regarded-as disabled individuals are also entitled to reasonable accommodations under the ADA.” In so holding, the court found that by “[i]nserting [the definition of disability] into the statute's prohibition, the ADA can only be read as barring discrimination 'against an individual with a physical or mental impairment that substantially limits one or more major life activities of such individual who, with or without reasonable accommodation, can perform the essential functions of the employment position,' and as barring discrimination 'against an individual with a record of such an impairment who, with or without reasonable accommodation, can perform the essential functions of the employment position,' and, finally, as barring discrimination 'against an individual regarded as having such an impairment who, with or without reasonable accommodation, can perform the essential functions of the employment position.'” Thus, the court found that the ADA's prohibitions, including the refusal to make reasonable accommodations for the physical or mental limitations of a qualified individual with a disability, extended to all of the statutorily defined disabilities. Therefore, the Eleventh Circuit determined that “the ADA's plain language – which treats an individual who is disabled in the actual-impairment sense identically to an individual who is disabled in the regarded-as sense compell[ed] [it] to conclude that the very terms of the statute require employers to provide reasonable accommodations for individuals it regards as disabled.”

Title VII Sex-Based Hostile Work Environment Action Does Not Require Facially Sex-Specific Harassing Behavior

The Ninth Circuit has held that offensive behavior that is not facially sex-specific may still support a Title VII hostile work environment claim if there is sufficient circumstantial evidence of qualitative and quantitative distinctions in the way harassment is experienced by female and male employees. Equal Employment Opportunity Commission v. National Education Association, 2005 WL 2106164 (9th Cir. Sept. 2).

The Equal Employment Opportun-ity Commission (EEOC) brought this action against the National Education Association-Alaska (NEA-Alaska), a labor union that represents teachers and other public school employees, and the National Education Associa-tion (NEA or NEA National), its parent union, on behalf of three female employees who had previously filed sex-based hostile work environment charges against the NEA-Alaska. All three employees subsequently intervened in the action. The three employees, Carol Christopher, Julie Bhend, and Carmela Chamara, all employed by the Anchorage office of the NEA, based their charges on harassing behavior directed at them by NEA-Alaska Executive Director Thomas Harvey. This behavior involved, among other things, “repeated and severe instances of shouting, screaming, foul language, invading employees' personal space (including one instance of grabbing a female employee from behind), and threatening physical gestures, all apparently following little or no provocation.” Harvey's harassing behavior was not, however, facially sex- or gender-related, and thus did not involve sexual overtures, gender-specific comments, or gender-specific orders or requirements. Finding that Harvey's treatment of women did not satisfy the “because of … sex” element of a Title VII sex-based hostile work environment claim, the United States District Court for the District of Alaska granted summary judgment in favor of the defendant.

Reversing the lower court's decision, the Ninth Circuit held that because “there is no legal requirement that hostile acts be overtly sex- or gender-specific in content, whether marked by language, by sex or gender stereotypes, or by sexual overtures, the district court had “erred in its characterization of the boundaries of a cognizable Title VII sex-based hostile work environment claim, and summary judgment was inappropriate under applicable law.” In so holding, the Ninth Circuit explained that “[w]hile sex- or gender-specific content is one way to establish discriminatory harassment, it is not the only way: 'direct comparative evidence about how the alleged harasser treated members of both sexes' is always an available evidentiary route” (citing Oncale v. Sundowner Offshore Servs., Inc., 523 U.S. 75, 80-81 (1998). Thus, “[t]he ultimate question in either event is whether 'members of one sex are exposed to disadvantageous terms or conditions of employment to which members of the other sex are not exposed'” (citing Oncale at 80). The court found this interpretation in line with Title VII, which focuses on the consequences or effects of discriminatory employment practices, rather than the motivation of the employees and employers.

Applying this standard, the Ninth Circuit found that Harvey's treatment of female employees was qualitatively different than his treatment of male employees, in that while his aggressiveness with male employees “had the quality of 'bantering back and forth with somebody, and being with the boys,'” his aggressive interactions with female employees caused them to cry, feel panicked and physically threatened, call the police, and, in some cases, resign. In describing the qualitative distinctions in this treatment, the court held that “evidence of differences in subjective effects (along with, of course, evidence of differences in objective quality and quantity) is relevant to determining whether or not men and women were treated differently, even where the conduct is not facially sex- or gender-specific.” The court went on to comment on the quantitative difference between Harvey's harassing treatment of female employees by addressing the defendants' argument that this difference could be incidentally tied to the fact that Harvey had more frequent and regular contact with female employees. The Ninth Circuit responded by finding that “an unbalanced distribution of men and women in relevant employment positions, and the fact that some men were also harassed, does not automatically defeat a showing of differential treatment.”

Sixth Circuit Finds Eleventh Amendment Immunity Protects States from FMLA's 'Self-Care' Provision

The Sixth Circuit has found that the Family and Medical Leave Act's (FMLA) abrogation of Ohio's Eleventh Amendment immunity is unconstitutional as applied to the FMLA's “self-care” provision. Touvell v. Ohio Department of Mental Retardation and Developmental Disabilities, 2005 WL 2173626 (6th Cir. Sept. 9).

Mary Touvell, a therapist employed at the Cambridge Developmental Center, an institution for the mentally retarded operated by the Ohio Department of Mental Retardation and Developmental Disabilities (the Department), developed back problems from lifting patients. After being excused from work because of back pain on two separate occasions, Touvell was terminated for excessive absenteeism. Touvell brought this case under the FMLA, alleging that the Department interfered with her entitlement to leave under 29 U.S.C. ' 2612(a)(1)(D), which requires em-ployers to allow their employees unpaid leave to care for their own serious health conditions, and that the Department retaliated against her for taking leave, in violation of 29 U.S.C. ' 2615(a)(1). Finding that FMLA's abrogation of Ohio's Eleventh Amendment immunity from the statute's “self-care” provision was unconstitutional, the district court dismissed the case for lack of subject matter jurisdiction.

Affirming the holding of the district court, the Sixth Circuit found that Congress had not acted within its constitutional authority when it attempted to abrogate states' immunity from the self-care provision of the FMLA. In so finding, the court cited its decision in Sims v. University of Cincinnati, 219 F.3d 559 (6th Cir. 2000) for the proposition that “the FMLA as a whole was not a valid exercise of Congress's power under ' 5 of the Fourteenth Amendment because, while Congress had clearly expressed its intent to abrogate state sovereign immunity, the legislative history of the FMLA 'discloses no pattern of discrimination by the States, let alone a pattern of constitutional violations'” (citing Sims, 219 F.3d at 564) The Sims court held that the FMLA was unconstitutionally overbroad in two respects. First, the court found that because state employers can discriminate on the basis of gender with respect to employee leave if that discrimination serves important governmental objectives and the means used to secure them are substantially related to their achievement, FMLA's mandate that leave be granted for all covered employees is overbroad. Further, the Sims court determined that FMLA's remedy is not corrective in nature, and thus “hard to characterize as a remedial measure” Therefore, the Sims court held that “'[i]n light of the broad scope of its substantive requirements, and the lack of evidence of widespread and unconstitutional gender discrimination by the States … the FMLA is not a valid exercise of Congress's power under ' 5 of the Fourteenth Amendment'” (citing Id. at 566).

Eleventh Circuit Finds Employees 'Regarded As' Disabled Under ADA Entitled to Reasonable Accommodations

The Eleventh Circuit has held that under the plain language of the Americans with Disabilities Act (ADA), employers must provide reasonable accommodations for employees who fall within any of the ADA's definitions of “disabled,” including those “regarded as” being disabled. D'Angelo v. Conagra Foods, Inc., 2005 WL 2072131 (11th Cir. Aug. 30).

Shortly before she was hired, Cris D'Angelo, an employee working for ConAgra in its Singleton Seafood processing plant, was diagnosed with vertigo and treated by a doctor, who prescribed the anti-vertigo medication Antivert. While D'Angelo did not mention her condition when she was hired by Singleton, at various times during her employment, she complained to co-workers that certain aspects of the job exacerbated her condition or made her feel sick and dizzy. When a new supervisor assigned D'Angelo to monitor a conveyor belt, a task she had never previously performed, D'Angelo's vertigo condition resurfaced. She was required to submit a doctor's note describing her condition in order to be excused from the assignment. When management was unable to locate any alternative position that would not require working around moving equipment, D'Angelo was fired. D'Angelo filed suit against ConAgra alleging that terminating her, rather than offering a reasonable accommodation that eliminated the work that aggravated her condition, constituted disability-based discrimination, both because she was actually disabled as a result of vertigo and because her employer regarded her as disabled, in violation of the ADA. In ruling on the second of these charges, the district court held “that an individual like D'Angelo, who does not actually suffer from a disabling impairment, but rather is disabled only in the 'regarded as' sense, is not entitled to a reasonable accommodation under the ADA.” In making this determination as a matter of first impression in the Eleventh Circuit, the district court followed a line of decisions in the Fifth, Sixth, Eighth, and Ninth Circuits, and rejected an opposite conclusion in the Third Circuit and a decision in the First Circuit that had addressed the issue only indirectly.

Reversing the district court and further broadening a circuit split, the Eleventh Circuit Court of Appeals found that “[b]ecause a review of the plain language of the ADA yields no statutory basis for distinguishing among individuals who are disabled in the actual-impairment sense and those who are disabled only in the regarded-as sense, we join the Third Circuit in holding that regarded-as disabled individuals are also entitled to reasonable accommodations under the ADA.” In so holding, the court found that by “[i]nserting [the definition of disability] into the statute's prohibition, the ADA can only be read as barring discrimination 'against an individual with a physical or mental impairment that substantially limits one or more major life activities of such individual who, with or without reasonable accommodation, can perform the essential functions of the employment position,' and as barring discrimination 'against an individual with a record of such an impairment who, with or without reasonable accommodation, can perform the essential functions of the employment position,' and, finally, as barring discrimination 'against an individual regarded as having such an impairment who, with or without reasonable accommodation, can perform the essential functions of the employment position.'” Thus, the court found that the ADA's prohibitions, including the refusal to make reasonable accommodations for the physical or mental limitations of a qualified individual with a disability, extended to all of the statutorily defined disabilities. Therefore, the Eleventh Circuit determined that “the ADA's plain language – which treats an individual who is disabled in the actual-impairment sense identically to an individual who is disabled in the regarded-as sense compell[ed] [it] to conclude that the very terms of the statute require employers to provide reasonable accommodations for individuals it regards as disabled.”

Title VII Sex-Based Hostile Work Environment Action Does Not Require Facially Sex-Specific Harassing Behavior

The Ninth Circuit has held that offensive behavior that is not facially sex-specific may still support a Title VII hostile work environment claim if there is sufficient circumstantial evidence of qualitative and quantitative distinctions in the way harassment is experienced by female and male employees. Equal Employment Opportunity Commission v. National Education Association, 2005 WL 2106164 (9th Cir. Sept. 2).

The Equal Employment Opportun-ity Commission (EEOC) brought this action against the National Education Association-Alaska (NEA-Alaska), a labor union that represents teachers and other public school employees, and the National Education Associa-tion (NEA or NEA National), its parent union, on behalf of three female employees who had previously filed sex-based hostile work environment charges against the NEA-Alaska. All three employees subsequently intervened in the action. The three employees, Carol Christopher, Julie Bhend, and Carmela Chamara, all employed by the Anchorage office of the NEA, based their charges on harassing behavior directed at them by NEA-Alaska Executive Director Thomas Harvey. This behavior involved, among other things, “repeated and severe instances of shouting, screaming, foul language, invading employees' personal space (including one instance of grabbing a female employee from behind), and threatening physical gestures, all apparently following little or no provocation.” Harvey's harassing behavior was not, however, facially sex- or gender-related, and thus did not involve sexual overtures, gender-specific comments, or gender-specific orders or requirements. Finding that Harvey's treatment of women did not satisfy the “because of … sex” element of a Title VII sex-based hostile work environment claim, the United States District Court for the District of Alaska granted summary judgment in favor of the defendant.

Reversing the lower court's decision, the Ninth Circuit held that because “there is no legal requirement that hostile acts be overtly sex- or gender-specific in content, whether marked by language, by sex or gender stereotypes, or by sexual overtures, the district court had “erred in its characterization of the boundaries of a cognizable Title VII sex-based hostile work environment claim, and summary judgment was inappropriate under applicable law.” In so holding, the Ninth Circuit explained that “[w]hile sex- or gender-specific content is one way to establish discriminatory harassment, it is not the only way: 'direct comparative evidence about how the alleged harasser treated members of both sexes' is always an available evidentiary route” ( citing Oncale v. Sundowner Offshore Servs., Inc. , 523 U.S. 75, 80-81 (1998). Thus, “[t]he ultimate question in either event is whether 'members of one sex are exposed to disadvantageous terms or conditions of employment to which members of the other sex are not exposed'” (citing Oncale at 80). The court found this interpretation in line with Title VII, which focuses on the consequences or effects of discriminatory employment practices, rather than the motivation of the employees and employers.

Applying this standard, the Ninth Circuit found that Harvey's treatment of female employees was qualitatively different than his treatment of male employees, in that while his aggressiveness with male employees “had the quality of 'bantering back and forth with somebody, and being with the boys,'” his aggressive interactions with female employees caused them to cry, feel panicked and physically threatened, call the police, and, in some cases, resign. In describing the qualitative distinctions in this treatment, the court held that “evidence of differences in subjective effects (along with, of course, evidence of differences in objective quality and quantity) is relevant to determining whether or not men and women were treated differently, even where the conduct is not facially sex- or gender-specific.” The court went on to comment on the quantitative difference between Harvey's harassing treatment of female employees by addressing the defendants' argument that this difference could be incidentally tied to the fact that Harvey had more frequent and regular contact with female employees. The Ninth Circuit responded by finding that “an unbalanced distribution of men and women in relevant employment positions, and the fact that some men were also harassed, does not automatically defeat a showing of differential treatment.”

Sixth Circuit Finds Eleventh Amendment Immunity Protects States from FMLA's 'Self-Care' Provision

The Sixth Circuit has found that the Family and Medical Leave Act's (FMLA) abrogation of Ohio's Eleventh Amendment immunity is unconstitutional as applied to the FMLA's “self-care” provision. Touvell v. Ohio Department of Mental Retardation and Developmental Disabilities, 2005 WL 2173626 (6th Cir. Sept. 9).

Mary Touvell, a therapist employed at the Cambridge Developmental Center, an institution for the mentally retarded operated by the Ohio Department of Mental Retardation and Developmental Disabilities (the Department), developed back problems from lifting patients. After being excused from work because of back pain on two separate occasions, Touvell was terminated for excessive absenteeism. Touvell brought this case under the FMLA, alleging that the Department interfered with her entitlement to leave under 29 U.S.C. ' 2612(a)(1)(D), which requires em-ployers to allow their employees unpaid leave to care for their own serious health conditions, and that the Department retaliated against her for taking leave, in violation of 29 U.S.C. ' 2615(a)(1). Finding that FMLA's abrogation of Ohio's Eleventh Amendment immunity from the statute's “self-care” provision was unconstitutional, the district court dismissed the case for lack of subject matter jurisdiction.

Affirming the holding of the district court, the Sixth Circuit found that Congress had not acted within its constitutional authority when it attempted to abrogate states' immunity from the self-care provision of the FMLA. In so finding, the court cited its decision in Sims v. University of Cincinnati , 219 F.3d 559 (6th Cir. 2000) for the proposition that “the FMLA as a whole was not a valid exercise of Congress's power under ' 5 of the Fourteenth Amendment because, while Congress had clearly expressed its intent to abrogate state sovereign immunity, the legislative history of the FMLA 'discloses no pattern of discrimination by the States, let alone a pattern of constitutional violations'” (citing Sims, 219 F.3d at 564) The Sims court held that the FMLA was unconstitutionally overbroad in two respects. First, the court found that because state employers can discriminate on the basis of gender with respect to employee leave if that discrimination serves important governmental objectives and the means used to secure them are substantially related to their achievement, FMLA's mandate that leave be granted for all covered employees is overbroad. Further, the Sims court determined that FMLA's remedy is not corrective in nature, and thus “hard to characterize as a remedial measure” Therefore, the Sims court held that “'[i]n light of the broad scope of its substantive requirements, and the lack of evidence of widespread and unconstitutional gender discrimination by the States … the FMLA is not a valid exercise of Congress's power under ' 5 of the Fourteenth Amendment'” (citing Id. at 566).