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While private parties doing business are free to agree to arbitrate any dispute between them outside of the courts, an employer who presents a “take-it-or-leave-it” arbitration requirement to a job applicant as a condition of hiring presents special problems. California’s appeals courts have been particularly dedicated – or perhaps in commerce’s view obsessively picky – in refining the detail required to render an employment arbitration agreement fair, balanced and thus enforceable in this state
While private parties doing business are free to agree to arbitrate any dispute between them outside of the courts, an employer who presents a “take-it-or-leave-it” arbitration requirement to a job applicant as a condition of hiring presents special problems. California’s appeals courts have been particularly dedicated – or perhaps in commerce’s view obsessively picky – in refining the detail required to render an employment arbitration agreement fair, balanced and thus enforceable in this state. The decision in Garden Fresh Restaurant Corp. v. Superior Court, 180 California Reporter , third series (Cal. Rptr. 3d) 89 (November 17, 2014), is the latest.
One of the more hotly contested refinements on arbitration agreements is the wording necessary to disqualify an employee from bringing a “class action” or “representative claim” into his or her arbitration on his individual claims. As we outlined in “Contractor Misclassification . . . Class Action?”, an employee’s class action allegations seek to include a large number of his or her co-workers claims in the lawsuit. A “representative” claim or action similarly seeks to include co-workers, but under special, streamlined criteria and procedures.
In Garden Fresh, the Court of Appeal decided that when the employment arbitration agreement does not specify whether the employee can include class action or representative claims in arbitration, it is up to a judge, not an arbitrator, to decide.
The trial judge in Garden Fresh originally declined to make the ruling on an employee’s ability to include a representative claim in her arbitration, instead referring the question for the arbitrator to decide. This was bad news to the employer Garden Fresh Restaurants since, in theory anyway, an arbitrator might well be more inclined to include class or representative actions in the arbitration out of the prospect of a more complicated and thus more profitable proceeding for that arbitrator. Handing the question to the arbitrator also raised the stakes because arbitration decisions and awards are commonly not reviewable by a court. Thus, an employer would almost certainly be stuck with an arbitrator’s ruling to allow a class or representative action, a development that could jack up considerably the leverage against the employer to settle.
However, Garden Fresh, and with it other California employers, fared better with the appellate court. Just as trial judges are required to examine agreements for their fairness on matters such as an employee’s decreased scope of claims or increased cost in arbitration, the Court of Appeal saw this as a “gateway” issue requiring judicial determination.
The irony of course is that arbitration agreements are dictated by employers. Here, Garden Fresh faced the prospect of incurring a severe blow to its operations and financial stability by virtue of incomplete contract terms on which it had required the employee to agree.
The wisdom of whether an arbitration agreement could or should actually seek to limit an individual’s ability to bring class or representative actions in his/her required arbitration is a separate question. However, if the Garden Fresh agreement had included direction on that point – or directed that the trial judge should decide it – it would have saved the fees and other resources necessary to hash out the ambiguity at two levels of the California courts. The simple “math” of an ounce of prevention equaling several thousand pounds (or dollars) of cure comes to mind.
If you need further information, please contact any of our attorneys – Tim Bowles, Cindy Bamforth, and Helena Kobrin.
Helena Kobrin, December 12, 2014
While private parties doing business are free to agree to arbitrate any dispute between them outside of the courts, an employer who presents a “take-it-or-leave-it” arbitration requirement to a job applicant as a condition of hiring presents special problems. California’s appeals courts have been particularly dedicated – or perhaps in commerce’s view obsessively picky – in refining the detail required to render an employment arbitration agreement fair, balanced and thus enforceable in this state
While private parties doing business are free to agree to arbitrate any dispute between them outside of the courts, an employer who presents a “take-it-or-leave-it” arbitration requirement to a job applicant as a condition of hiring presents special problems. California’s appeals courts have been particularly dedicated – or perhaps in commerce’s view obsessively picky – in refining the detail required to render an employment arbitration agreement fair, balanced and thus enforceable in this state. The decision in Garden Fresh Restaurant Corp. v. Superior Court, 180 California Reporter , third series (Cal. Rptr. 3d) 89 (November 17, 2014), is the latest.
One of the more hotly contested refinements on arbitration agreements is the wording necessary to disqualify an employee from bringing a “class action” or “representative claim” into his or her arbitration on his individual claims. As we outlined in “Contractor Misclassification . . . Class Action?”, an employee’s class action allegations seek to include a large number of his or her co-workers claims in the lawsuit. A “representative” claim or action similarly seeks to include co-workers, but under special, streamlined criteria and procedures.
In Garden Fresh, the Court of Appeal decided that when the employment arbitration agreement does not specify whether the employee can include class action or representative claims in arbitration, it is up to a judge, not an arbitrator, to decide.
The trial judge in Garden Fresh originally declined to make the ruling on an employee’s ability to include a representative claim in her arbitration, instead referring the question for the arbitrator to decide. This was bad news to the employer Garden Fresh Restaurants since, in theory anyway, an arbitrator might well be more inclined to include class or representative actions in the arbitration out of the prospect of a more complicated and thus more profitable proceeding for that arbitrator. Handing the question to the arbitrator also raised the stakes because arbitration decisions and awards are commonly not reviewable by a court. Thus, an employer would almost certainly be stuck with an arbitrator’s ruling to allow a class or representative action, a development that could jack up considerably the leverage against the employer to settle.
However, Garden Fresh, and with it other California employers, fared better with the appellate court. Just as trial judges are required to examine agreements for their fairness on matters such as an employee’s decreased scope of claims or increased cost in arbitration, the Court of Appeal saw this as a “gateway” issue requiring judicial determination.
The irony of course is that arbitration agreements are dictated by employers. Here, Garden Fresh faced the prospect of incurring a severe blow to its operations and financial stability by virtue of incomplete contract terms on which it had required the employee to agree.
The wisdom of whether an arbitration agreement could or should actually seek to limit an individual’s ability to bring class or representative actions in his/her required arbitration is a separate question. However, if the Garden Fresh agreement had included direction on that point – or directed that the trial judge should decide it – it would have saved the fees and other resources necessary to hash out the ambiguity at two levels of the California courts. The simple “math” of an ounce of prevention equaling several thousand pounds (or dollars) of cure comes to mind.
If you need further information, please contact any of our attorneys – Tim Bowles, Cindy Bamforth, and Helena Kobrin.
Helena Kobrin, December 12, 2014
How do you choose a trademark (for products) or service mark (for services)? Choosing an enforceable mark or one that can be registered with the government is not as simple as just picking a word, icon or phrase that you like. Careful research and planning are required to confirm your chosen mark does not conflict, i.e., is not likely to cause confusion in the public’s eye, with an existing mark. If you skip this step out of supposed cost or time considerations and rely purely on chance that no-
How do you choose a trademark (for products) or service mark (for services)? Choosing an enforceable mark or one that can be registered with the government is not as simple as just picking a word, icon or phrase that you like. Careful research and planning are required to confirm your chosen mark does not conflict, i.e., is not likely to cause confusion in the public’s eye, with an existing mark. If you skip this step out of supposed cost or time considerations and rely purely on chance that no-one else already has rights that would trump your own, you may be in for a very expensive mistake.
Witness the nearly 30 years of legal actions (1978 – 2007) between Apple Records (aka the Beatles’ label) and Apple Computer, in part over the supposed confusion between the music company’s whole green Granny Smith apple logo and the computer company’s iTunes cartoon apple with a bite taken. Apple Records prevailed in some of the cases and there were some settlements. Apple Computer then prevailed in the last court battle over whether its establishment of iTunes violated the earlier settlement, citing another case decision to argue that “even a moron in a hurry could not be mistaken about” the distinction between the two marks. The parties then settled, with Beatles music available on iTunes. Of course, if you don’t have the kind of money these two entities could devote to the fight, you should avoid such disputes in the first place.
Some of the steps involved in picking a good trademark are:
1. Find out if anyone else is using the mark you want to use or something similar. The research can and should be done on various levels, for example, search of the USPTO (United States Patent and Trademark Office) website; with state trademark registrars; online search for others using the mark; other searches of business forums and publications.
2. Determine if any such similar or identical marks are being used to identify products or services that are the same or related to what you are looking to identify with your potential mark.
3. In the event of such conflicts, continue the selection and research process until you have a potential mark that you believe will not be too close to someone else’s and the goods or service it is used to identify.
Some potential conflicts are obvious. An individual seeking to use “Nike,” “Nikey,” or even “NighKeigh” to identify a shoe company is clearly a bad idea. In addition to marks that are identical or similar in appearance or spelling, sounding the same can be enough to rule it out.
Another less-evident factor can cause problems. Some people do not register their established marks with the U.S. or other national government or with any state. Thus, even a fairly thorough search will not find them. Yet, even without government registration, a use in commerce (between states or with a foreign country) or even on a local level, may give its owner the right to block you from using the same or a similar mark for the same or similar products or services. Thus well-planned research beyond the standard government data bases should be part of the due diligence.
Maximizing your protections should include hiring a trademark specialist attorney who can get a search done for you. While you can of course order a search yourself, you would not then receive the attorney’s analysis on potentials for conflict and invitations for trouble. “Penny wise and pound/dollar foolish” comes to mind. Skipping the relatively small investment of a close search may buy a new business the much greater expense of dealing with a “cease and desist” letter from a rival. Such a letter typically presents an assortment of bad alternatives: (a) stop using the mark to avoid a losing legal battle and incur the expense of having to switch to a new, non-conflicting mark; (b) fight the challenger in court, with virtually guaranteed high legal fees and similarly guaranteed uncertainty of outcome; or (c) ignore the letter and hope they will go away.
Prevention of infringement claims is thus key. Clearing and properly protecting a mark are part of a business’s start-up costs or launch of a new product or service. Include those costs in your budget and you will save in the long run. Contact attorney Helena Kobrin if you need help selecting a legally protectable trademark.
Helena Kobrin, October 24, 2014
How do you choose a trademark (for products) or service mark (for services)? Choosing an enforceable mark or one that can be registered with the government is not as simple as just picking a word, icon or phrase that you like. Careful research and planning are required to confirm your chosen mark does not conflict, i.e., is not likely to cause confusion in the public’s eye, with an existing mark. If you skip this step out of supposed cost or time considerations and rely purely on chance that no-
How do you choose a trademark (for products) or service mark (for services)? Choosing an enforceable mark or one that can be registered with the government is not as simple as just picking a word, icon or phrase that you like. Careful research and planning are required to confirm your chosen mark does not conflict, i.e., is not likely to cause confusion in the public’s eye, with an existing mark. If you skip this step out of supposed cost or time considerations and rely purely on chance that no-one else already has rights that would trump your own, you may be in for a very expensive mistake.
Witness the nearly 30 years of legal actions (1978 – 2007) between Apple Records (aka the Beatles’ label) and Apple Computer, in part over the supposed confusion between the music company’s whole green Granny Smith apple logo and the computer company’s iTunes cartoon apple with a bite taken. Apple Records prevailed in some of the cases and there were some settlements. Apple Computer then prevailed in the last court battle over whether its establishment of iTunes violated the earlier settlement, citing another case decision to argue that “even a moron in a hurry could not be mistaken about” the distinction between the two marks. The parties then settled, with Beatles music available on iTunes. Of course, if you don’t have the kind of money these two entities could devote to the fight, you should avoid such disputes in the first place.
Some of the steps involved in picking a good trademark are:
1. Find out if anyone else is using the mark you want to use or something similar. The research can and should be done on various levels, for example, search of the USPTO (United States Patent and Trademark Office) website; with state trademark registrars; online search for others using the mark; other searches of business forums and publications.
2. Determine if any such similar or identical marks are being used to identify products or services that are the same or related to what you are looking to identify with your potential mark.
3. In the event of such conflicts, continue the selection and research process until you have a potential mark that you believe will not be too close to someone else’s and the goods or service it is used to identify.
Some potential conflicts are obvious. An individual seeking to use “Nike,” “Nikey,” or even “NighKeigh” to identify a shoe company is clearly a bad idea. In addition to marks that are identical or similar in appearance or spelling, sounding the same can be enough to rule it out.
Another less-evident factor can cause problems. Some people do not register their established marks with the U.S. or other national government or with any state. Thus, even a fairly thorough search will not find them. Yet, even without government registration, a use in commerce (between states or with a foreign country) or even on a local level, may give its owner the right to block you from using the same or a similar mark for the same or similar products or services. Thus well-planned research beyond the standard government data bases should be part of the due diligence.
Maximizing your protections should include hiring a trademark specialist attorney who can get a search done for you. While you can of course order a search yourself, you would not then receive the attorney’s analysis on potentials for conflict and invitations for trouble. “Penny wise and pound/dollar foolish” comes to mind. Skipping the relatively small investment of a close search may buy a new business the much greater expense of dealing with a “cease and desist” letter from a rival. Such a letter typically presents an assortment of bad alternatives: (a) stop using the mark to avoid a losing legal battle and incur the expense of having to switch to a new, non-conflicting mark; (b) fight the challenger in court, with virtually guaranteed high legal fees and similarly guaranteed uncertainty of outcome; or (c) ignore the letter and hope they will go away.
Prevention of infringement claims is thus key. Clearing and properly protecting a mark are part of a business’s start-up costs or launch of a new product or service. Include those costs in your budget and you will save in the long run. Contact attorney Helena Kobrin if you need help selecting a legally protectable trademark.
Helena Kobrin, October 24, 2014
Trademark can be confused with copyright. As we have explained in recent blogs, acopyrightprotects works that one creates. Atrademarkis a word, group of words, symbol or logo a person or company uses to distinguish their products from those of others. A word, symbol, etc. used to distinguish someone’s services from others is aservice mark.
Trademark can be confused with copyright. As we have explained in recent blogs, a copyright protects works that one creates. A trademark is a word, group of words, symbol or logo a person or company uses to distinguish their products from those of others. A word, symbol, etc. used to distinguish someone’s services from others is a service mark.
Trademarks and service marks are also commonly referred to as “brands.” “Coca-Cola” thus stands to distinguish one company’s cola beverage from those produced by others, including of course “Pepsi-Cola.” Cola connoisseur and average citizen alike can rightfully expect Coke’s and Pepsi’s distinctive trademarks to guide him or her to the preferred beverage. One associates a particular taste with one company and another taste with its competitor because both enterprises have spent millions over the years protecting respective brands to identify their respective products exclusively. The right to control such a brand gives its owner the power to bar anyone else from using that trademark to identify its own rival product.
Trademarks, along with other intellectual property, can be the most valuable assets your business will own. We will address in coming weeks the extent of trademark rights, how one acquires a trademark, how one protects it, and related issues. Contact Helena Kobrin of our office on such matters.
Helena Kobrin, October 16, 2014
Trademark can be confused with copyright. As we have explained in recent blogs, acopyrightprotects works that one creates. Atrademarkis a word, group of words, symbol or logo a person or company uses to distinguish their products from those of others. A word, symbol, etc. used to distinguish someone’s services from others is aservice mark.
Trademark can be confused with copyright. As we have explained in recent blogs, a copyright protects works that one creates. A trademark is a word, group of words, symbol or logo a person or company uses to distinguish their products from those of others. A word, symbol, etc. used to distinguish someone’s services from others is a service mark.
Trademarks and service marks are also commonly referred to as “brands.” “Coca-Cola” thus stands to distinguish one company’s cola beverage from those produced by others, including of course “Pepsi-Cola.” Cola connoisseur and average citizen alike can rightfully expect Coke’s and Pepsi’s distinctive trademarks to guide him or her to the preferred beverage. One associates a particular taste with one company and another taste with its competitor because both enterprises have spent millions over the years protecting respective brands to identify their respective products exclusively. The right to control such a brand gives its owner the power to bar anyone else from using that trademark to identify its own rival product.
Trademarks, along with other intellectual property, can be the most valuable assets your business will own. We will address in coming weeks the extent of trademark rights, how one acquires a trademark, how one protects it, and related issues. Contact Helena Kobrin of our office on such matters.
Helena Kobrin, October 16, 2014
As reported in “Will California Employers Have to Cough Up Paid Sick Leave?”, the proposed Healthy Workplaces, Healthy Families Act of 2014 (Assembly Bill [AB] 1522) was the California Legislature’s third – and now successful – attempt to provide such benefits. Governor Brown signed that measure into law on September 10, making California and Connecticut the only two states to require businesses to provide paid sick leave.
As reported in “Will California Employers Have to Cough Up Paid Sick Leave?”, the proposed Healthy Workplaces, Healthy Families Act of 2014 (Assembly Bill [AB] 1522) was the California Legislature’s third – and now successful – attempt to provide such benefits. Governor Brown signed that measure into law on September 10, making California and Connecticut the only two states to require businesses to provide paid sick leave.
Starting in July 2015, all California employers, regardless of size (and except for those with collective bargaining agreements and other very limited exemptions), will generally need to provide paid sick leave to any temporary, part-time and full-time employee who has worked in California for 30 days, at an accrual rate of at least one paid hour for every 30 hours worked. An employee would be entitled to use accrued sick days beginning on the 90th day of employment.
Accrued paid sick days shall carry over to the following year of employment. However, an employer may limit an employee’s use of paid sick days to 24 hours (or three days) in each year of employment.
Employees will be allowed to use paid sick time for their own or a family member’s preventative care (dental cleaning, physical etc.), as well as for treatment and care of an existing health condition. “Family member” includes children (of any age), parents, spouse, registered domestic partner, grandparent, grandchild and sibling. Employers shall not require employees to search for or find a replacement worker to cover the shifts during which the employee uses paid sick leave.
Employers must also modify their record-keeping, itemized wage statements, employee notices, and posters to satisfy the new law. After the California Labor Commissioner’s office publishes its upcoming frequently-answered questions on the new law, we will issue an updated blog with more information.
For assistance creating complete and comprehensive workplace policies, contact one of our attorneys Tim Bowles, Cindy Bamforth or Helena Kobrin.
September 25, 2014
As reported in “Will California Employers Have to Cough Up Paid Sick Leave?”, the proposed Healthy Workplaces, Healthy Families Act of 2014 (Assembly Bill [AB] 1522) was the California Legislature’s third – and now successful – attempt to provide such benefits. Governor Brown signed that measure into law on September 10, making California and Connecticut the only two states to require businesses to provide paid sick leave.
As reported in “Will California Employers Have to Cough Up Paid Sick Leave?”, the proposed Healthy Workplaces, Healthy Families Act of 2014 (Assembly Bill [AB] 1522) was the California Legislature’s third – and now successful – attempt to provide such benefits. Governor Brown signed that measure into law on September 10, making California and Connecticut the only two states to require businesses to provide paid sick leave.
Starting in July 2015, all California employers, regardless of size (and except for those with collective bargaining agreements and other very limited exemptions), will generally need to provide paid sick leave to any temporary, part-time and full-time employee who has worked in California for 30 days, at an accrual rate of at least one paid hour for every 30 hours worked. An employee would be entitled to use accrued sick days beginning on the 90th day of employment.
Accrued paid sick days shall carry over to the following year of employment. However, an employer may limit an employee’s use of paid sick days to 24 hours (or three days) in each year of employment.
Employees will be allowed to use paid sick time for their own or a family member’s preventative care (dental cleaning, physical etc.), as well as for treatment and care of an existing health condition. “Family member” includes children (of any age), parents, spouse, registered domestic partner, grandparent, grandchild and sibling. Employers shall not require employees to search for or find a replacement worker to cover the shifts during which the employee uses paid sick leave.
Employers must also modify their record-keeping, itemized wage statements, employee notices, and posters to satisfy the new law. After the California Labor Commissioner’s office publishes its upcoming frequently-answered questions on the new law, we will issue an updated blog with more information.
For assistance creating complete and comprehensive workplace policies, contact one of our attorneys Tim Bowles, Cindy Bamforth or Helena Kobrin.
September 25, 2014
The ability of employers to follow the law – and of judges to enforce it – depends on clearly defined standards of responsibility and conduct. Vaguely or otherwise poorly stated rules can lead to inconsistent outcomes in very similar factual situations. This danger of arbitrary, unpredictable consequences is perhaps no better illustrated than in the recent struggles of three appeals judges to define the terms of the federalAmericans with Disabilities Act(ADA) inWeaving v. City of Hillsboro(9th C
The ability of employers to follow the law – and of judges to enforce it – depends on clearly defined standards of responsibility and conduct. Vaguely or otherwise poorly stated rules can lead to inconsistent outcomes in very similar factual situations. This danger of arbitrary, unpredictable consequences is perhaps no better illustrated than in the recent struggles of three appeals judges to define the terms of the federal Americans with Disabilities Act (ADA) in Weaving v. City of Hillsboro (9th Circuit, D.C. No. 3:10-cv-01432-HZ, August 15, 2014).
The ADA forbids workplace discrimination against a “qualified individual on the basis of disability.” “Qualified individual” means a person who, with or without reasonable accommodation, can perform the essential functions of the employment position that such individual holds or desires. Under the ADA, a “disability” is “a physical or mental impairment that substantially limits one or more major life activities,” with “a record of such an impairment,” or who is “regarded as having such an impairment.” The ADA provides examples of such major life activities, including “caring for oneself, performing manual tasks, seeing, hearing, eating, sleeping, walking, standing, lifting, bending, speaking, breathing, learning, reading, concentrating, thinking, communicating and working.”
The challenge in the Weaving case appeal was whether the ADA’s protections should extend to an individual terminated over recurring interpersonal problems with co-workers that he and testifying mental health practitioners attributed to so-called attention deficit hyperactivity disorder (ADHD). Two of the three appeals judges concluded that Officer Weaving’s sometimes gruff, offensive manner – even if the supposed result of a purported ADHD condition – did not deserve ADA protection because his behavior evidenced only an inability “to get along with others,” not a major life activity. The third judge disagreed, contending that Weaving’s periodically boorish behavior amounted to a substantial impairment of the ADA-protected major life activity of “interacting with others.”
While employers might take heart in the immediate result of the Weaving case, that (to use the court’s term) “jerks” do not deserve ADA protection, the decision really should give neither workers nor managers comfort since it leaves the dividing line about as clear as mud between: a) disruptive conduct from which an employer can protect its workforce by suspension or termination of the perpetrator; and b) perhaps offensive but protected behavior stemming from a disability that a business must seek to reasonably accommodate.
The City of Hillsboro, Oregon terminated Matthew Weaving from its police force in late 2009, in part based on the report of his superior that Weaving had created a hostile work environment for his junior officers and peers for actions described as “tyrannical, unapproachable, non-communicative, belittling, demeaning, threatening, intimidating, arrogant, and vindictive.” Weaving at page 10.
Officer Weaving then sued the City for ADA discrimination, alleging that he deserved protection because his diagnosed ADHD condition substantially limited his major life activity of “interacting with others.” The City appealed after a jury awarded Officer Weaving well over $600,000 in damages and over $139,000 in attorney fees. Weaving at page 11.
Weaving contended his situation was similar to the systems analyst who was able to maintain an ADA case in McAlindin v. County of San Diego (9th Cir., 1999) 192 F.3d 1226. There, Mr. McAlindin was able to convince two out of three appeals judges that his claimed panic attacks, “fear reaction,” and “communicative paralysis” created a substantial limitation on his major life activity of interacting with others. 192 F.3d at 1235-1236. Weaving also argued he was entitled to ADA protection just as an equipment operator had been in Head v. Glacier Northwest (9th Cir., 2005) 413 F.3d 1053. There, Mr. Head convinced the appeals court that the ADA could protect him from discrimination since his avoidance of crowds and large family gatherings, and his shutting himself away in his house for weeks – all purportedly the result of a diagnosed “bipolar” mental disorder – constituted a substantial limitation on his major life activity of interacting with others. 413 F.3d at 1060-1061.
Yet, two of the three of the judges in Officer Weaving’s appeal found his situation more akin to another “bipolar”-afflicted employee, this time an electric-guitar assembler in Jacques v. DiMarzio, Inc. (2nd Cir. 2004) 386 F.3d 192. According to the lower court’s record, Ms. Jacques was a “problem employee,” prone to confrontations with co-workers, intolerance of ethnic minorities in the production department, and emotional problems dealing with supervisory staff. Ms. Jacques’s supervisors had found her the “most confrontational person we ever employed,” with supervisors and coworkers regarding her as “intimidating and mercurial” and feeling obliged to treat her with “kid gloves.” 386 F.3d at 197-198.
Taking the cue from the Jacques case, the majority in Weaving found the officer was not eligible for ADA protection for being a cantankerous person with mere trouble getting along with coworkers. In contrast to the plaintiffs in the McAlindin and Head cases, Officer Weaving did not shut himself away, unable at times to interact with others at all. While able to engage in normal social interactions, “his interpersonal problems existed almost exclusively in his interactions with his peers and subordinates.” Weaving at page 17. “One who is able to communicate with others, though his communications may at times be offensive, ‘inappropriate, ineffective, or unsuccessful,’ is not substantially limited in his ability to interact with others within the meaning of the ADA. To hold otherwise would be to expose to potential ADA liability employers who take adverse employment actions against ill-tempered employees who create a hostile workplace environment for their colleagues.” Weaving at page 18.
Circuit Judge Callahan, the third judge in Weaving, disagreed sharply with the other two. Citing the report of the treating psychologist, she emphasized that Officer Weaving was apparently unable to “self-regulate” certain symptoms of his supposed ADHD condition, including impulsiveness, “not seeming to listen when spoken to, … interrupting others, … difficulty waiting his turn, blurting out comments without having emotional intelligence, [and lack of] awareness of the effect that that communication would have on his other workers at the police department.” Weaving at page 23. Judge Callahan thus contended that Officer Weaving “was well beyond being merely cantankerous or troublesome. To the contrary, he had problems in his interactions with just about everyone throughout his career in law enforcement.” Judge Callahan thus reasoned that Weaving was substantially limited in his ability to interact with others and was not just a cranky, defiant bully undeserving of ADA protection. Weaving at page 32.
The Weaving decision demonstrates the highly subjective element that can drive the discussion on what is and what is not a protectable mental disability under the ADA. In the face of disruptive conduct as displayed by Officer Weaving, management must base any disciplinary decisions on the observable and documented negative effects that such angry, demeaning and bullying behavior has on the morale and productivity of the workers on the receiving end of such conduct. Job descriptions that establish the abilities to engage in effective, constructive communication and to work in efficient coordination with supervisors, coworkers and juniors will also promote the proper objective expectations for a worker at every company position.
For further information and assistance on workplace disability issues, contact any of our office’s attorneys, Tim Bowles, Cindy Bamforth or Helena Kobrin.
Additional references:
“Disability and Leave of Absence Policies, Keeping Up with Changing Employment Laws”
“Say “ADAAAAHHH” – More People to be Protected Under Federal Workplace Disability Law”