Legal Update: Smoke Signals

Is smoking the new frontier for EEO actions? Hospitals and other health institutions (the National Institutes for Health in the Washington metro area comes to mind) proclaim that they are smoke-free. Some employers are going a step further and have become smoker-free. The reason is that these employers, regardless of their business, have a stake in keeping health benefit costs down. Having healthy workers would help achieve that goal, and smoking is unhealthy.

Under federal law smokers are not a protected class. But does smoking implicate protected classes? Smoking itself is an activity, not a disability. Nicotine addiction might be an impairment, but it may or may not be a disability under federal law. Another angle is whether smokers tend to be more prevalent in some race/ethnic groups. The Centers for Disease Control issued a report last year indicating that smoking rates varied by industry, but did not go into demographics. Continue reading

Legal Update: Spawn of Ricci

The Court will be asked to straighten out the aftermath of Ricci v. Destefano. It has not yet decided whether to grant certification in Briscoe v. New Haven, No. 11-1024, petition for cert 2/15/2012. The case that has revived the fight over tests administered in 2003.

Michael Briscoe, an African American firefighter, brought the suit that the city said it was trying to avoid when it canceled promotion lists that would have benefitted Ricci et al. District court, while somewhat sympathetic to Briscoe‘s suit, said that the Supreme Court had spoken regarding promulgation of the lists and Briscoe should have intervened in Ricci to ensure that his situation were taken into account. Among other things, Briscoe argued that the city could have weighted the written test results differently and had less adverse impact. Continue reading

Legal Update: Who is the Supervisor?

Who is a supervisor? The Court isn‘t sure and is asking the U.S. Solicitor General (SG) for help. The SG provides amicus curiae briefs on issues in which the federal government has a stake, and sometimes the Court invites an analysis of a disputed legal issue. The Court invited the SG to file a brief expressing the government’s view on the definition of the term “supervisor” for the purpose of imposing vicarious liability on an employer for harassment in violation of Title VII (Vance v. Ball State Univ., U.S., No. 11-556, SG invited to file brief 2/21/12). The Seventh Circuit had ruled in this racial discrimination that the alleged harasser was a co-worker, not a supervisor. Vance is arguing that the circuits are split on the issue. Ball State acknowledges that there is a circuit split, but claims that Vance’s alleged harasser would not be a supervisor under any theory. The major alternatives are between someone with personnel action authority and someone who directs the daily work of others. Continue reading