Thursday, February 26, 2015

Pregnancy Accommodations and the ADAAA

Recently, at a Women’s Bar Association roundtable to discuss Young v. UPS, the Pregnancy Discrimination Act (PDA) case argued in December 2014 before the Supreme Court, talk turned to the other federal law that helps pregnant workers stay on the job: the ADAAA (Americans with Disabilities Act Amendments Act). Familiar with the ADAAA, but not with its use to protect pregnant workers, we wanted to understand whether and how the 2009 amendments to the ADA may have changed the landscape for pregnancy-related accommodations.

A number of scholars and practitioners have written about the still largely anticipated value of the amended law for pregnancy-related conditions, but we found Joan William's pragmatic analysis and advice in A Sip of Cool Water: Pregnancy Accommodation After the ADA Amendments Act (hereinafter Pregnancy Accommodations) most useful. Williams is the Director of the Center for WorkLife Law at the University of California, Hastings College of the Law, and she has long focused on issues of women and work. In Pregnancy Accommodations, Williams and her colleagues at the Center for WorkLife Law begin with a brief but comprehensive review of the status quo prior to the amendment of the ADA, especially the court decisions limiting the availability of accommodations for pregnant workers. This serves as a preface to Williams' argument that the amended ADA encompasses pregnancy-related conditions and should be used to ensure that pregnant workers have the accommodations they need to continue working through their pregnancies and beyond. Reviewing post-amendment judicial decisions, Williams offers specific practice tips for litigating pregnancy-related accommodations cases, and supplements this with a detailed chart listing at length "Some Pregnancy Conditions that Commonly Give Rise to the Need for Workplace Accommodations." Id. at 141ff. The chart, she explains, is designed to help plaintiffs analogize “their pregnancy-related conditions to parallel conditions that are not the result of pregnancy,” a strategy that she recommends to overcome the “unconscious bias and outmoded beliefs regarding women and pregnancy” that have hampered efforts to win accommodations for pregnant workers. Id. at 134.

Pre-amendment, the ADA did not apply to pregnancy – absent serious complications. Pregnancy-related conditions were too short in duration and rarely considered serious enough to "substantially limit" a "major life activity" under the restrictive standards of pre-amendment ADA jurisprudence. And, because pregnancy is a normal physiological condition (and therefore not, without complications, a disability), courts held pregnancy-related conditions were not covered by the pre-amendment ADA.

Even with the ADA amendments, expressly enlarging the range of conditions encompassed by the meaning of “disability,” pregnancy itself, absent serious complications, remains outside the scope of the ADAAA. Impairments resulting from pregnancy, however, even relatively minor ones, may now fall within the newly expanded definition of “disability.” Activities like “walking, standing, lifting, bending,” are now specified as “major life activities,” as is the functioning of specific bodily systems like the reproductive or endocrine systems. Whether a condition “substantially limits” is now judged by comparison with “most people in the general population.” Thus a lifting restriction, or restrictions on standing too long, common to the most normal pregnancy, but restrictive relative to “the general population,” may now qualify under the ADAAA as impairments that must be accommodated in the workplace.

Williams argues that by relying on comparators, plaintiffs may obtain new protection from pregnancy discrimination: "just as the amended ADA now protects vast numbers of workers whose conditions would not have qualified as disabilities prior to the passage of the ADAAA, it also protects women affected by identical conditions that happen to be caused by pregnancy." Id. at 114. Relying on a valid comparator in the person of a non-pregnant worker, who has the same “ability or inability to work” (see 42 U.S.C. § 2000e(k)), ensures that a pregnancy-related condition will be judged sufficiently disabling to qualify for accommodation. Williams pointedly advises that to overcome any lingering prejudice that pregnancy-related conditions are not covered by the ADA simply because they arise out of pregnancy (something she dubs “pregnancy contamination”), “plaintiffs should consider analogizing their pregnancy to parallel conditions that are not the result of pregnancy.” Id. at 135. And she helpfully provides in chart form potential “analogies” for pregnancy-related conditions. Id. at 142.

In Pregnancy Accommodations, Williams has provided a pragmatic litigation blueprint to help more plaintiffs make use of the newly-broadened protections of the amended ADA for pregnancy-related conditions.

1 Young v. United Parcel Service, Inc., 707 F.3d 437 (4th Cir. 2013) cert. granted, 134 S.Ct. 2892 (2014) (No. 12-1226, 2014 Term, argued December 3, 2014).
2The amended ADA (ADAAA) was effective January 1, 2009 and was not retroactive, so cases applying the new law only just began to wend their way through the courts in the last few years.
3Joan C. Williams, Robin Devaux, Danielle Fuschetti, Carolyn Salmon, A Sip of cool Water: Pregnancy Accommodation After the ADA Amendments Act (hereinafter Pregnancy Accommodation), 32 Yale L & Pol’y Rev. 97 (2013); see also Jeannette Cox, Pregnancy as “Disability” and the Amended Americans With Disabilities Act, 53 B.C. L. Rev. 443 (2012); Deborah A. Widiss, Gilbert Redux: The Interaction of the Pregnancy Discrimination Act and the Amended Americans With Disabilities Act, 46 U.C. Davis L. Rev. 961 (2013).

This blog was written by Mary Kuntz.

Monday, February 9, 2015

Whose Burden is it Anyway?

Last month, the Department of Labor’s Administrative Review Board convened a rare oral argument in Powers v. Union Pacific Railroad Company. The issue is whether the ARB had articulated the correct standard for “contributing factor” causation in Fordham v. Fannie Mae, ARB Case No. 12-061, ALJ Case No. 2010-SOX-051 (October 9, 2014).

Fordham dealt with the law on burdens of proof in whistleblower retaliation cases arising under modern statutes. In such cases, the employee must first demonstrate that his or her disclosure of employer wrongdoing contributed to the employer’s subsequent actions against the employee. Then, the employer must prove that it would have taken the same actions regardless of the employee’s disclosures.

In Fordham, the statute in question was the Federal Rail Safety Act, and the issue was whether the employer’s evidence of a non-discriminatory reason can be considered as part of the determination of the “contributing factor,” or whether the employer’s evidence must be weighed for “clear and convincing” evidence that it would have taken the same action even if no protected activity had occurred. Seemingly a purely academic question, in fact this issue strikes at where whistleblower claims can be the most vulnerable. Employers dwarf the whistleblower in their ability to access documents and resources – in essence, to present evidence. This is why Congress decided to hold employers to the higher “clear and convincing” standard. Congress recognized that “The agency controls most of the cards—the drafting of the documents supporting the decision, the testimony of witnesses who participated in the decision, and the records that could document whether similar personnel actions have been taken in other cases.” Whitmore v. Department of Labor, 680 F.3d 1353, 1367 (Fed. Cir. 2012), citing 135 Cong. Rec. H747-48 (daily ed. Mar. 21, 1989). Yet, judges often have misapplied this standard by allowing employers to smuggle its “independent justification” evidence into the consideration of the whistleblower’s much lighter contributing factor standard. In Fordham, the majority held that:

only an [employee’s] evidence may be considered at the “contributing factor” causation stage; that the employer’s evidence in support of lawful, non-retaliatory reasons for its action must await assessment under the ‘clear and convincing’ evidentiary standard after it is found that [the employee] has met his or her initial burden of proof.”
at 16.

In Powers, the employer argued for a lesser burden. Union Pacific and its amici contended during oral argument that Fordham excludes the employer’s evidence during the contributing factor stage, which works an injustice to employers. This is simply not true. All that Fordham says, and all the Congress says, is that the judge must hold the employer’s evidence to the heightened clear and convincing standard whenever he or she considers that evidence. Employers may indeed present relevant evidence at any stage – for example, rebuttal evidence to the employee’s contributing factor evidence. However, the judge must be scrupulous in holding that rebuttal evidence to the clear and convincing standard of proof. To do otherwise would vitiate the value of having the two different standards of proof. Congress deliberately subjected employers to a higher standard in direct recognition of the usefulness of whistleblowers and their disclosures about dangers to the public. The Board in Powers should uphold the congressional intent and its correct holding in Fordham.

You can find the Fordham decision and Powers briefs at:


This blog was written by Nina Ren.

Tuesday, February 3, 2015

Can a Federal Employee be Prohibited from Talking to a Lawyer?

Recently, we were approached by a federal employee with an interesting problem.  The employee is an attorney in an agency’s General Counsel’s office.  The employee had concerns about discrimination and asked the appropriate supervisor for official time to seek legal advice with respect to those concerns.  Regulations issued by the Equal Employment Opportunity Commission make clear that official time is available for this purpose. 29 C.F.R. § 1614.605(b).

In response, the agency’s General Counsel issued an instruction to all subordinate attorneys.  That instruction limited the ability of those attorneys to disclose, while seeking legal advice from an outside lawyer, information obtained from agency employees, and included the following:


    •  almost any communication from an agency employee to an agency attorney is presumed to be protected by the attorney-client privilege unless one of the following exceptions applies:

    a)  The attorney justifies release under bar rules applicable to him/her and obtains approval from the General Counsel to release the information outside the agency;

    b.  Prior to any conversation with an agency employee, the attorney must state that he/she is acting in his/her own interest and not as agency counsel; and

    •  If an attorney decides to disclose outside the agency the substance of conversations with agency employees, he/she must disclose the substance of that conversation to the General Counsel beforehand so that appropriate remedial action can be taken.


The instruction also stated that an attorney’s violation of these rules would warrant a notice to every jurisdiction in which the attorney was licensed.  Needless to say, the employee who consulted us was petrified that meeting with an outside lawyer about a possible claim of discrimination could result in the loss of the right to practice law.

The agency’s restrictions are incompatible with the attorney-client relationship that exists in the United States.  In 1982, the U.S. Court of Appeals for the District of Columbia Circuit considered a similar edict issued to employees of the Department of Justice who sought to challenge a reduction-in-force (RIF).  The memorandum issued to those employees stated as follows:

    You may not provide information or documents to the attorney representing these employees or to any other person assisting the employees or that attorney. In addition, there is a Department of Justice regulatory procedure governing the release of information involving litigation (See 28 C.F.R. §  16.21 et seq.). Employees are prohibited from releasing any information, producing any materials or disclosing any information in those materials except with the approval of the appropriate Department official which in this matter would be the Assistant Attorney-General of the Civil Division.

The memorandum concluded by warning that “immediate and appropriate disciplinary action (would be taken) to assure that the government's interests are protected.”

In Martin v. Lauer, 686 F.2d 24 (D.C.Cir. 1982), the D.C. Circuit rejected that memorandum.  The ability of federal employees to speak freely is subject to a balancing of the interests of the employee and the government, depending upon the type of speech, the nature of the agency, and the context in which the speech is uttered.  In the case of the Justice Department employees, the court held that the memorandum was aimed directly at communications between attorney and client, thereby threatening the attorney-client privilege:

    Restrictions on speech between attorneys and their clients directly undermine the ability of attorneys to offer sound legal advice. As the common law has long recognized, the right to confer with counsel would be hollow if those consulting counsel could not speak freely about their legal problems. Through the attorney-client privilege, the common law “encourage(s) full and frank discussions between attorneys and their clients and thereby promote(s) broader public interests in the observance of law and the administration of justice. The privilege recognizes that sound legal advice or advocacy serves public ends and that such advice or advocacy depends on the lawyer being fully informed by the client.”  Limitations on the attorney-client privilege have therefore been drawn narrowly, to remove the privilege only where the privileged relationship is abused. Absent such abuse, or a waiver of the privilege, our legal system jealously protects the confidential status of attorney-client communications. Although an adversary may ordinarily inquire as to what the client knows, he “ ‘cannot (compel him) to answer the question ”What did you say or write to your attorney?’ ”

Martin, 686 F.2d at 32-33 (citations omitted).

In 2000, the Justice Department found itself again embroiled in a dispute over its efforts to prevent employees from disclosing information to their attorneys.  Jacobs v. Schiffer, 204 F.3d 259 (D.C.Cir. 2000).  Reminding the Department that the issue had already been decided in Martin, the court emphasized the importance of allowing clients to have the unfettered ability to talk to their attorneys, as long as there was little danger the attorney would disclose that information to the general public:

    It thus has long been clear that the First Amendment does not provide a federal employee seeking legal advice regarding a dispute with the employing agency with carte blanche authority to disclose any and all confidential government information to the employee's attorney, but rather that the scope of the First Amendment right is determined by balancing the employee's interests in communication with the government's interests in preventing communication. Relevant to this balancing is whether the attorney is likely to keep this information in confidence, as suggested by willingness to enter into a protective order, or whether such communications to the personal attorney will operate as a de facto public disclosure. Where, as here, there was no evidence to suggest that Jacobs' attorney would publicly disclose the information Jacobs sought to communicate, the First Amendment required a balancing of interests beyond the balance between disclosure and non-disclosure under the Freedom of Information Act. Understandably, the Department would be concerned about giving carte blanche approval of unlimited disclosures to one of its attorneys who has access to a broad range of potentially sensitive, non-public information and who is challenging its management of litigation. But the reasonableness of the Department's position with respect to Jacobs' free speech claim regarding his attorney must be evaluated in light of Martin. In that regard it bears noting that in Martin the court observed, albeit in dictum, that in the whistle-blower context, where a legal question arises as to whether a contemplated public disclosure would be prohibited by law, “[s]urely, [the employee] must be allowed to consult his attorney for an answer to that question absent some strong governmental interest in limiting such communications.” Martin, 686 F.2d at 33 n. 41.

Jacobs, 204 F.3d at 265-66.

In sum, while public employers may want to limit their employees’ ability to hire a lawyer to help protect their rights, those employers may not do so absent some legitimate interest (such as national security).  As long as the lawyer keeps confidential the information conveyed by a prospective or actual client, the government’s interest in limiting the lawyer’s ability to advise the client is very slight.  (As an aside, without explanation the agency withdrew within a couple of days the instructions issued at the top of this blog.)


George Chuzi