In This Issue

• Ergonomics Update: President Bush Signs Repeal of OSHA's New Standard
• U.S. Supreme Court Gives Support to Enforcement of Arbitration Clauses
• Another Positive Step for Enforcement of Arbitration Clauses
• Grooming Policies —Facial Hair
• "Good Faith" Efforts to Accommodate Disabilities
• Wrongful Discharge in Violation of Public Policy
• ADA and Sports, Who Is in Charge?

Ergonomics Update: President Bush Signs Repeal Of OSHA's New Standard

By Tom Metzger

On Tuesday, March 20, 2001, President Bush signed a repeal of OSHA's new ergonomics standard, explaining that the new workplace regulations posed "overwhelming compliance challenges" for businesses. President Bush's action to revoke the rules that were issued late in the Clinton administration was the first substantive policy that Bush has signed. Earlier in March, the House followed the Senate's lead and voted to repeal the controversial legislation. The House vote cleared the way for the new President to finalize the repeal.

The rule from the Occupational Safety and Health Administration was aimed at addressing health problems and injuries associated with repetitive motions and awkward postures, such as carpal tunnel syndrome, chronic back pain, and tendinitis. The rule, which was scheduled to take effect in October, would have been one of the most sweeping regulations governing the workplace, affecting more than 1 million workers. The 600-page rule would have forced companies to alter their workstations, redesign their facilities, or change their tools and equipment if their employees suffered work-related injuries from repetitive motion. It also would have required that disabled workers receive more compensation than is provided for by many state workers' compensation laws. The ergonomics standard was the product of a 10-year effort by the Occupational Safety and Health Administration to prevent musculoskeletal disorders in the workplace. OSHA explained that the rule was based upon the science of ergonomics, or the designing of workplace equipment to accommodate workers who perform repetitive tasks, such as typing on a keyboard. Business groups had determined that the required changes would cost employers as much as $100 billion per year.

In explaining his opposition to the ergonomics standard, Bush stated that, "The rule would have applied a bureaucratic one-size-fits-all solution to a broad range of employers and workers — not good government at work." Bush has asked Labor Secretary Elaine Chao to devise a more narrow and less expensive method of addressing workplace safety in connection with the types of injuries addressed in the previous ergonomics standard. "There needs to be a balance between and an understanding of the costs and benefits associated with federal regulations," Bush said in a statement. "The ergonomics rule would have cost both large and small employers billions of dollars and presented employers with overwhelming compliance challenges."

While it is unlikely that we will see a new ergonomics proposal anytime soon, we will provide an update in this Newsletter if there are any further developments in this area.

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U.S. Supreme Court Gives Support To Enforcement Of Arbitration Clauses

By Larry Feheley, Tom Metzger, John Lowe IV

[Note: This article originally appeared in Kegler Brown's E-mployment Alert issued March 22, 2001. If you have not yet signed up for this free electronic mail service, or if you know someone who would like to be added to its distribution list, use our Publications Subscription Form to sign-up.]

On March 21, 2001 the U.S. Supreme Court issued a decision in an employment case which will no-doubt get a good deal of media attention. At issue in Circuit City Stores, Inc. v. Adams was whether the federal law that governs the enforceability of agreements to submit disputes to arbitration for binding resolution applies to employment contracts and claims. The case involved an employer that required all newly-hired employees to sign an agreement whereby all disputes about hire, employment, or cessation of employment were to be submitted for binding resolution by a neutral arbitrator. The Supreme Court ruled that the federal law does apply to employment contracts (except those involving transportation workers —sea, rail, air, etc.), and that the agreement to arbitrate could be enforced under the federal statute.

This ruling represents a very positive step for employers because it states that agreements to arbitrate, as a general rule, are not unenforceable simply because they arise in the employment context. The ruling does not, however, deal with more delicate issues relating to arbitration. For instance, lower courts have refused to enforce employment arbitration agreements on other grounds — such as that the agreement to arbitrate is too one-sided, that it unfairly limits damages and remedies, or that it exacts a penalty on the non-prevailing party. The Supreme Court's decision yesterday did not address any of these collateral issues.

While we are generally in favor of arbitration provisions, there remain some strong bases for employers not to use them. While legal commentators will likely make much of the decision, we would encourage employers not to read too far into this holding, and to certainly weigh the costs and benefits before uniformly requiring employees to sign arbitration agreements.

The case arose when Saint Clair Adams, a former Circuit City employee who is gay, filed a federal lawsuit claiming he had been harassed at work. Circuit City Stores argued that the 1925 Federal Arbitration Act required Adams to arbitrate his discrimination claim. At issue was whether Adams was included in the final portion of an exception to the Act for "seamen, railroad employees or any other class of workers engaged in foreign or interstate commerce." The 9th U.S. Circuit Court of Appeals agreed with Adams' attorneys' arguments that "any other class of workers engaged in...interstate commerce" applied to Adams and, therefore, that the arbitration enforcement law did not apply to employment or labor contracts. On appeal to the U.S. Supreme Court, Circuit City contended that the exception from the arbitration enforcement law was limited to workers actually involved in moving goods from one state to another. The Supreme Court, divided 5-4, agreed. The Court's conservative-led majority took a narrow view of the exception to the federal law from the early days of the labor era. Justice Anthony Kennedy, writing for the majority, stated that the 9th Circuit interpretation is unworkable and would spawn more lawsuits. He was joined by Chief Justice William Rehnquist and Justices Antonin Scalia, Clarence Thomas and Sandra Day O'Connor.

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Another Positive Step For Enforcements Of Abritration Clauses

By John Lowe IV

The Hamilton County Court of Appeals recently held that an internal grievance procedure that consisted of a hearing before a panel containing management personnel barred an employee's subsequent race discrimination suit. The Ohio and U.S. Supreme Courts have both declined to review the decision. While the decision is a positive step for employers, other Ohio Courts of Appeals may not consistently agree with holding.

The Hamilton County Court of Appeals affirmed the trial court's grant of summary judgment in favor of the employer based on the employee having previously "arbitrated and lost" his race discrimination claim. The Court determined that Revised Code § 4112.14(C), which has generally been applied only to age discrimination claims, bars any discrimination claims where the employee had the ability to fully arbitrate the claims. Just as important as the extension of the statute to relate to all discrimination claims, the "arbitration" at issue was truly an internal grievance procedure before a panel that included management representatives. The plaintiff argued that (1) the process lacked the indicia of impartiality that the term "arbitration" implies, (2) he had not been represented by an attorney, and (3) he had not asserted his race discrimination claim in the grievance hearings. The Hamilton County Court of Appeals held that these were "products of his own inaction and were not flaws inherent in the grievance procedure."

This case, while not controlling in jurisdictions outside Hamilton County, represents a positive step for employers who seek to enforce arbitration provisions as an alternative to state discrimination claims. As stated, we think it is somewhat unlikely that other Ohio Courts of Appeals will follow the lead of Hamilton County, but we will keep an eye on the issue and keep you updated as new decisions are issued.

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Grooming Policies — Facial Hair

By Larry Feheley

Generally speaking, employers can require employees to meet preferred grooming or dress requirements, as long as the requirements are not discriminatory in practice. One of the most frequently challenged grooming rules is one that prohibits beards or facial hair. While these policies frequently arise in the food and health care businesses, other employers commonly adopt these types of policies.

One such case arose in the police department in Newark, New Jersey. In that situation, two police officers refused to comply with the no-beard policy on the ground that it violated their constitutional right to freedom of religion. The officers testified that, as devout Sunni Muslims, their religious beliefs required them to grow beards. The court upheld the officers' challenge and forbade the employer from enforcing the no-beard rule. FOP Newark Lodge No. 12 v. City of Newark, 170 F.3d 359 (3rd Cir. 1998).

One of the most frequent bases for challenge to a no-beard policy is that African-American males are susceptible to a skin condition, pseudo folliculitis barbae, which impairs their ability to shave. In such circumstances, the employer's no-beard policy must be waived unless the employer can demonstrate a substantial and compelling business justification for the rule (such as a serious threat to safety). One interesting aspect of the Newark police officers' case was that the police department actually did allow exemptions from the rule for skin condition reasons, but not for any other reason. The Court of Appeals found it incongruous that the rule would be relaxed for secular, medical reasons and not for religious reasons.

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"Good Faith" Efforts To Accomodate Disabilities

By Larry Feheley

The Americans with Disabilities Act (ADA) requires employers to make reasonable accommodations for an employee's disability. One of the components of the duty to accommodate is the requirement that an employer must engage, in "good faith," in an interactive process with the employee to discuss and identify appropriate accommodations that may be possible. One very important thing to remember is that the ADA specifically provides that even if an employee is successful in an ADA claim, the employee cannot recover compensatory or punitive damages if the employer has demonstrated good faith efforts, in conjunction with the employee, to identify and discuss possible reasonable accommodations. 42 U.S.C. §1981a(a)(3).

The interactive process is mandatory, not merely permissive, and the employer's obligation is triggered by an employee giving notice of a disability and the need for an accommodation. At its heart, the law requires communication with the employee and a good faith exploration of possible accommodations that would allow the employee to perform the essential functions of his job.

Most courts have ruled that an employer is liable for a failure to engage in this interactive process, when a reasonable accommodation would otherwise have been possible. In Barnett v. U.S. Air, Inc., 228 F.3d 1105 (9th Cir. 2000), the federal appeals court noted some specific steps that employers can take to establish their "good faith" efforts to engage in the interactive process, including:

• Meet with the employee who has requested an accommodation;

• Ask for information on the conditions that the employee has, as well as any limitations that arise from the conditions;

• Ask the employee what they desire to have happen, and consider the employee's request;

• Offer and discuss available alternatives, if the employee's request is burdensome;

• Analyze the specific job's essential functions;

• In a cooperative fashion, assess the effectiveness of each possible accommodation;

• Thoroughly document the entire process.

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Wrongful Discharge In Violation Of Public Policy

By Larry Feheley

As we have discussed in prior editions of this Newsletter, the Ohio Supreme Court has created the claim of wrongful discharge in violation of public policy. However, the contours of what constitutes "public policy" are not strictly defined and, instead, are being developed on a case-by-case basis by the courts.

A recent Ohio appeals court case provides a good example. In McKnight v. Goodwill Industries of Akron, Inc., 2000 Ohio App. Lexis 4014 (Lor. Co. 2000), the manager of the store threatened and yelled at two employees. Later, the manager told the employees that she would "get them" outside of work. Then, when the manager saw one of the employees over the weekend, she threatened her again. On the next working day the employees went to the police department over their lunch hour and filed criminal complaints regarding the manager's threats. The employer then terminated the employees' employment because they had violated policy by filing a complaint with the police without first notifying management.

The employees filed suit, alleging a violation of the Whistleblower Statute and a wrongful discharge in violation of public policy. Although the court disallowed the Whistleblower claim because the employees had not met its procedural requirements, the public policy claim was allowed to proceed. The appeals court ruled that a "clear public policy exists in favor of reporting crimes and preventing the escalation of crimes." Since the reporting of crimes is a "clear public policy," the court ruled, it would be illegal to discharge the employees because they engaged in that activity.

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ADA and Sports, Who Is In Charge?

By Ron Mason

In a case watched closely by the national media, the appeal of Casey Martin against the PGA was argued in the United States Supreme Court. This case could have a large impact upon sports across the country.

Martin, who is disabled and cannot walk a golf course, sued the PGA for the right to ride a cart. He won at both the District Court and the Court of Appeals levels. However, his case may not fair so well before the United States Supreme Court.

The PGA argued that everyone must play by the same rules and to alter the rules for a person's handicap, by definition, alters the game.

During oral argument, the Supreme Court seemed inclined to accept the right of a sporting association to set the basic rules of the game. As Justice Scalia pointed out, all sports rules are arbitrarily set and that it does not matter if a pitcher is required to bat in baseball or where the strike zone is, they are the rules of the game.

On the other hand, in defense of the Martin decisions below, Justice Ginsburg stated that the PGA could not issue a rule that prohibited blacks from playing golf.

It looks like this will be a close decision with the conservatives in the majority. Even Justice Ginsburg noted the problems in ruling for Martin by asking the question "Where do we draw the line?"

And that question by Justice Ginsburg goes to the heart of the case. How can the Court order the PGA to accommodate Martin and not subject other sports to challenges? Why should basketball hoops be set at 10 feet when there are people who are clearly disabled who could claim that the height is discriminating and the hoop should be lowered? The point is that in the field of sports, if you start to apply ADA restrictions, you fundamentally change the game.

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