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Wal-Mart may have felt the first aftershock of the Supreme Court’s March 2016 opinion in Tyson Foods, Inc. v. Bouaphakeo, which undercut overbroad interpretations of its landmark 2011 Wal-Mart v. Dukes decision and found that representative sampling of absent class members is not a per se improper method of establishing class-wide liability or damages.

In a highly anticipated decision, the Supreme Court last week affirmed a $5.8 million judgment against Tyson Foods and held that damages in a class action can be established by “statistical sampling” – a phrase that may now haunt many employers for years to come.

The Plaintiffs in Tyson Foods Inc. v. Bouaphakeo et al.

magnify_Social media privacy legislation has seen a dramatic increase in interest in state legislatures recently.  In 2015 alone, at least 23 states have introduced or considered measures to restrict employers’ ability to track, access, or demand social media information from employees, and since 2012, 21 states enacted such legislation – Arkansas, California, Colorado, Connecticut, Illinois,

On Monday, August 10, the Fourth Circuit rejected the application of the “manager rule” in the Title VII context, finding it “would discourage . . . employees from voicing concerns about workplace discrimination.”

The so-called “manager rule” is a doctrine developed in federal anti-retaliation cases that finds that a manager’s disagreement with an employer’s actions,

In Foster v. University of Maryland-Eastern Shore, the Fourth Circuit recently made clear that the McDonnell-Douglas test is alive and well, rejecting a District Court’s decision which had attempted to back away from the traditional test in evaluating a plaintiff’s burden of proof in a Title VII case.

Foster, a university police officer, alleged

Most practitioners know  that Title VII prohibits retaliation against any employee because he or she “opposed any practice made an unlawful employment practice [by the statute].”  Title VII does not define “oppose,” but the Supreme Court has held that it should have its ordinary meaning – “to resist or antagonize . . . ; to

As more details emerge about the troubled past of First Officer Andreas Lubitz – the co-pilot at the controls of the Germanwings flight that crashed in the French Alps in March – employers worldwide are faced with pressing questions that should bring renewed focus toward their policies regarding identifying and managing mental illness in the workplace.

How can employers be supportive of employees with mental health issues?

The Germanwings co-pilot hid important information regarding his mental illness from his employer.  Employers should be aware of the stigma that many employees may feel will result from their reporting a mental illness.  The more proactive an employer can be to reduce this fear, the more likely it is that an employee will come forward.  In fact, this is exactly why at least some pilots with mental health issues are not automatically barred from flying – the rationale being that employees who fear reprisals or different treatment will simply hide their problems.  Employers should consider offering employee assistance programs, or access to mental health resources, and ensure that there is a confidential process for employees who want to seek help or otherwise report their mental illness, or any medical issue, to their employer.  A greater show of support will foster an open environment.

Can an employer in the U.S. “test” the mental health of an employee or applicant? 

The answer is not clear in every case, but employers should be aware that they do have the ability to require employees and applicants to undergo mental examinations in certain circumstances.

This is a complex area. Just as there are laws in the European Union (EU) which protect employee privacy and restrict what information an employer can obtain about an employee’s mental (and physical) health, many of the same restrictions also exist here.

On the federal level, there are two laws to consider: the Americans With Disabilities Act (ADA), which prohibits discrimination against an employee based on a disability, and the Health Insurance Portability and Accountability Act (HIPAA), which protects and prohibits disclosure of patient medical records.

The ADA includes mental health problems as a “disability.” In addition to prohibiting discrimination, the ADA also restricts when and under what circumstances an employer may require an employee to undergo medical examinations. The ADA does not specifically address psychological tests. However, it is likely that such a test would be treated as a “medical examination” for purposes of the law. At least one court did hold, in 2012, that a psychiatric examination was  a medical test prohibited under the ADA.[1]

An employer generally cannot conduct any pre-offer medical testing of job applicants under the ADA.  Once an employee has been hired or provided with a conditional offer of employment, an employer is still restricted from requiring employees undergo a medical examination or mental health evaluation in every case.  The average employer may only conduct a medical examination to the extent it is “job related” and “consistent with business necessity.”  42 U.S.C. § 12112(d)(4)(A).  This means that the medical test must be designed to measure the employee’s ability to do the job in question.

For industries where public safety is an issue, the decision to require medical and mental health evaluations is easier, and is even required in many industries by law or  regulation.[2]  Outside of industries where medical examinations are required by law, employers must be careful to make a connection between the employee’s ability to perform his or her job duties, and the required medical or mental exams required. Even if not required by law, many employers have employees who do work that is potentially dangerous and could subject themselves, other workers, or members of the public to risks.  This “consistent with business necessity” principle applies to applicants and employees alike – periodic medical or mental examinations of employees must have the same justification as applicant testing.  A general medical examination policy must not be applied selectively – employers must require evaluations of all persons in affected positions.

Where a medical or mental examination is properly conducted, an applicant or employee can be rejected or terminated if it turns out that she has an impairment which prevents her from performing an essential function of the job, and the employer can show that it could not reasonably accommodate that impairment.  Employers must consider accommodation or possible leaves of absence under the Family Medical Leave Act or related state leave laws for current employees.  Employers should review their policies, and ensure that they include a requirement that employees receive “fitness for duty” certifications from their physicians following a medical leave of absence.

What can you do if an employee is behaving strangely, or others report that they have done something to make them “nervous” or afraid?
Continue Reading Germanwings Tragedy Highlights Important Mental Health Considerations for Employers

In the appeal of a lawsuit brought by the EEOC over a Texas employer’s use of background checks in the hiring process, Equal Employment Opportunity Commission v. Freeman, the Fourth Circuit Court of Appeals slammed the EEOC’s sloppy investigative work and dismissed the suit.

The underlying case arose from a racial discrimination charge brought