The Americans with Disabilities Act, ADA, 42 U



UNION LIABILITY UNDER TITLE I OF THE ADA

The federal statutes for Title I of the Americans with Disabilities Act (ADA) are 42 U.S.C. § 12111-12117 and the Equal Employment Opportunity Commission (EEOC) regulations for Title I are 29 C.F.R. Part 1630.

42 U.S.C. § 12111. Definitions. As used in this title:

(2). Covered entity. The term “covered entity” means an employer, employment agency, labor organization, or joint labor-management committee.

However, the statute and the regulations for Title I of the ADA are silent with regard to any liability on the part of a labor union under the ADA. Therefore, it is necessary to review the federal statute to determine the enforcement procedures and the penalties for labor union violations under the ADA.

42 U.S.C. § 12117. Enforcement

(a) Powers, remedies and procedures The powers, remedies, and procedures set forth in sections 705, 706, 707, 709, and 710 of the Civil Rights Act of 1964 (42 U.S.C. 2000e-4, 2000e-5, 2000e-6, 2000e-8, and 2000e-9) shall be the powers, remedies, and procedures this title provides to the Commission [Equal Employment Opportunity Commission], to the Attorney General, or to any person alleging discrimination on the basis of disability in violation of any provision of this Act, or regulations promulgated under section 106 [42 USCS § 12116], concerning employment.

42 U.S.C. § 2000e-5 is the section of the Civil Rights Act that is applicable to violations of the Civil Rights Act by labor unions and this section is made applicable to the ADA as stated above in 42 U.S.C. § 12117 of the ADA.

42 U.S.C. § 2000e-5 Enforcement

(b) Whenever a charge is filed by or on behalf of a person claiming to be aggrieved, or by a member of the Commission [Equal Employment Opportunity Commission], alleging that an employer, employment agency, labor organization, or joint labor-management committee controlling apprenticeship or other training or retraining, including on-the-job training programs, has engaged in an unlawful employment practice, the Commission shall serve a notice of the charge (including the date, place and circumstances of the alleged unlawful employment practice) on such employer, employment agency, labor organization, or joint labor-management committee (hereinafter referred to as the “respondent”) within ten days, and shall make an investigation thereof. Charges shall be in writing under oath or affirmation and shall contain such information and be in such form as the Commission requires. … The Commission shall make its determination on reasonable cause as promptly as possible and, so far as practicable, not later than one hundred and twenty days from the filing of the charge or, where applicable under subsection (c) or (d) of this section, from the date upon which the Commission is authorized to take action with respect to the charge. (emphasis in original).

42 U.S.C. § 1981a is the federal statute that provides for damages for disability discrimination by a respondent under the ADA.

Damages in cases of intentional discrimination in employment

(a) (2) Disability. In an action brought by a complaining party under the powers, remedies, and procedures set forth in section 706 or 717 of the Civil Rights Act of 1964 (42 U.S.C. 2000e-5, 2000e-16) (as provided in section 107(a) of the Americans with Disabilities Act of 1990 (42 U.S.C. 12117(a)), and section 794(a) of title 29, respectively) against a respondent who engaged in unlawful intentional discrimination (not an employment practice that is unlawful because of its disparate impact) … or who violated … section 102 of the Americans with Disabilities Act of 1990 (42 U.S.C. 12112), or committed a violation of the Act, against an individual, the complaining party may recover compensatory and punitive damages as allowed in subsection (b) of this section, in addition to any relief allowed by 706(g) of the Civil Rights Act of 1964, from the respondent. (emphasis in original).

42 U.S.C. § 1981a(b)(3)(A),(B),(C) and (D) determine the maximum amount allowed for punitive damages and it is based on the size of the respondent with regard to the number of its employees.

It is interesting to note that punitive damages are not available in a suit against a labor union under the Railway Labor Act (RLA) or the National Labor Relations Act (NLRA). See I.B.E.W. v. Foust, 442 U.S. 42, 48-52, 99 S.Ct. 2121, 60 L.Ed.2d 698 (1979).

But 42 U.S.C. § 1981a(a)(2) provides for punitive damages against “respondents” in a suit under 42 U.S.C. § 2000e-5 and Black’s Law Dictionary, Seventh Edition, defines “respondent” as “The party against whom an appeal is taken” and labor unions are definitely included in § 2000e-5.

It should also be noted that the NLRA does not preempt state law claims for intentional inflection of emotional distress by a labor union. See Farmer v. United Brotherhood of Carpenters and Joiners of America, Local 25, 430 U.S. 290, 97 S.Ct. 1056, 51 L.Ed.2d 338 (1977).

Now, let’s review the union collective bargaining agreements that cause individuals with disabilities to be laid off so other employees can have “smoking privileges,” the union policy of refusing to file or process grievances for individuals whose disabilities are caused or exacerbated by second hand tobacco smoke, and the union policy of refusing to file grievances to enforce employer no smoking policies.

And, that is exactly what smoking in the workplace is under the National Labor Relations Act (NLRA), a “work-related privilege.” See Allied-Signal, Inc., Kansas City Division and District 71, I.A.M.A.W., 307 NLRB No. 118, 752, 760 (1992); W-I Forest Products Co., a Limited Partnership and Lumber and Sawmill Workers Local 2841, 304 N.L.R.B. No. 83, 957, 959 (1991); YHA, Inc. and Service Employees International Union Local 627, AFL-CIO, 307 NLRB No. 123, 782, 784 (1992).

Under the Civil Rights Act, the Supreme Court has held that a union may not cause or attempt to cause an employer to discriminate against an individual, that the union has an affirmative duty to combat discrimination in the workplace, and that the union may not deliberately choose to refuse to process grievances alleging discriminatory violations of collective bargaining agreements. See Goodman v. Lukens Steel Co., 482 U.S. 656, 667-69, 107 S.Ct. 2617, 96 L.Ed.2d 572 (1987).

Also, under the Civil Rights Act, the U.S. Court of Appeals for the Eighth Circuit has held that a “union may be held liable if it purposefully acts or refuses to act in a manner which prevents or obstructs a reasonable accommodation by the employer so as to cause the employer to discriminate.” See Marquart v. Lodge 837, International Association of Machinists and Aerospace Workers, 26 F.3d 842, 845-46 (8th Cir. 1994).

Now, let’s review reasonable accommodation under the ADA. The Supreme Court has specifically held that a reasonable accommodation under Title I must be effective. See U.S. Airways, Inc. v. Barnett, 535 U.S. 391, 400, 122 S.Ct. 1516, 1522, 152 L.Ed.2d 589 (2002). And an employer can only choose between effective reasonable accommodations. See Keever v. City of Middletown, 145 F.3d 809, 812 (6th Cir. 1998); E.E.O.C. v. Sears, Roebuck & Co., 417 F.3d 789, 802 (7th Cir. 2005).

Moreover, an employer cannot deny an employee a reasonable accommodation that is available under an existing company policy. See Bates v. Long Island Railroad Co., 997 F.2d 1028, 1035-36 (2nd Cir. 1993) (citing School Board of Nassau County, Florida v. Arline, 480 U.S. 273, 289 n.19, 107 S.Ct. 1123, 1131 n.19, 94 L.Ed.2d 307(1987).

Now, let’s review three court decisions that are relevant to smoking in the workplace under Title I of the ADA.

First, in Thursby v. City of Scranton, 2006 U.S. Dist. LEXUS 33475 (M.D.Penn. 2006), the City of Scranton argued “that implementation of a non-smoking policy throughout the police department was not a reasonable accommodation because it would violate the collective bargaining agreement with the police union.” Id. at *10.

Under the ADA, 42 U.S.C. § 12201(b) “expressly permits a total ban on smoking if a court finds it appropriate under the ADA.” See Staron v. McDonald’s Corp., 51 F.3d 353, 357 (2nd Cir. 1995).

And, under Title I of the ADA, 42 U.S.C. § 12112(a) and (b)(2) specifically prohibit an employer from participating in an employer/union collective bargaining agreement that subjects its qualified applicants or employees to discrimination that is prohibited by Title I.

Therefore, the City of Scranton and the police union would have been subject to punitive damages under the ADA if they had tried to enforce their collective bargaining agreement. And they may well have been subject to punitive damages for negotiating the agreement in the first place since it was in violation of 42 U.S.C. § 12112(a) and (b)(2).

However, the district court was apparently unaware of the decision in Staron as well as 42 U.S.C. § 12112(a) and (b).

Second, in Nyhart v. U.A.W. International, 170 F.Supp.2d 1135, 1138-39 (D.Kan. 2001), the U.S. District Court for the District of Kansas held that an employee was not precluded from suing his union for discriminatory processing of his grievances based on disability.

Furthermore, the District Court held that a union member was not required to exhaust union remedies or the procedures of the employer/union collective bargaining agreement prior to bringing suit against the union under the ADA. Id. at 1138 n.1, 1139 n.2. See also ARBITRATION OF ADA CLAIMS UNDER UNION AGREEMENTS, .

But, the union’s motion for summary judgment was subsequently granted on the basis that Nyhart had failed to timely file an ADA disability discrimination charge with the EEOC as required by 42 U.S.C. § 2000e-5(e)(1). See Nyhart v. U.A.W. International Union, 174 F.Supp.2d 1214 (D.Kan. 2001).

Third, in Pagliaroni v. Daimler Chrysler, 2006 U.S. Dist. LEXUS 66720 (E.D.Wis. 2006), the U.S. District Court for the District of Wisconsin denied summary judgment holding that:

DC’s [Daimler Chrysler] failure to enforce its smoking policy is an additional reason as to why summary judgment is inappropriate. It is undisputed that the extent of DC’s efforts regarding the enforcement of smoking policy was to speak with Pagliaroni’s supervisor, notify the plant’s industrial hygienist of the complaints, meet with union representatives, and re-post the policy. There is a material factual dispute as to whether these efforts can be characterized as enforcement. From the record, at no point did DC ever attempt to enforce its smoking ban by disciplining violators. Therefore, a jury issue has been raised as to whether enforcement of DC’s pre-established policies would have constituted a reasonable accommodation, and if so, was the action taken by DC sufficient. Id. at *20.

Therefore, a union that refuses to file or process grievances in order to enforce an employer’s pre-established smoking policies or employer/union collective bargaining agreement smoking policies may be subject to punitive damages under the ADA.

Moreover, a union that interferes or attempts to interfere with an employer imposing a smoking ban as a reasonable accommodation for individuals with disabilities caused or exacerbated by second hand tobacco smoke under the ADA can be held liable for punitive damages.

The statutes and regulations cited above can be accessed at .

DISCLAIMER: The content contained in this document has been prepared by GASP of Texas as a service to its readers. It is not intended to constitute legal advice. GASP of Texas has used reasonable efforts in collecting, preparing and providing quality information and commentary, but does not warrant or guarantee the accuracy, completeness, adequacy or currency of the information contained herein. Users of this information do so at their own risk.

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