So What If I\u27m Gonna Hurt Myself: The ADA\u27s Direct Threat Defense

A high-beam walking ironworker atop a skyscraper develops a severe case of vertigo. A power saw operator develops narcolepsy. Must the employers of these individuals with disabilities tolerate the risk that they pose to their own safety in fear of facing disability discrimination charges by removing the employees from their jobs? The Americans with Disabilities Act of 1990 (ADA) clearly provides a defense to a discrimination claim by an individual with a disability when the employer takes action based on the individual’s posing a direct threat to the health or safety of other individuals in the workplace. This is commonly referred to as the direct threat defense. But what if the employee poses a direct threat to his own health or safety, but does not pose a direct threat to the health or safety of other individuals in the workplace? Will the direct threat defense shield an employer who discriminates against an individual with a disability in those circumstances? Framed another way, does the ADA’s direct threat defense include a direct threat (to self) defense? This article thoroughly addresses the sometimes thorny and complex direct threat defense. The article describes the ADA’s textual direct threat defense, which applies only to threats to others, and illustrates how the Equal Employment Opportunity Commission (EEOC) expanded the direct threat defense to include direct threats to one’s own health or safety in addition to the safety of others in the workplace. The EEOC defines direct threat as “a significant risk of substantial harm to the health or safety of the individual or others that cannot be eliminated or reduced by reasonable accommodation.” The EEOC’s expansion of the direct threat defense prompted confusion among federal courts. Some federal courts deferred to the EEOC’s regulations, which inherently limited protection for employees with disabilities; other federal courts refused to defer to the EEOC’s expanded direct threat defense, concluding that the ADA itself was the proper standard for the direct threat defense and that the ADA’s text did not include threats to self in the direct threat defense. Still other courts adopted a hybrid approach, which inherently transported the direct threat defense from the employer’s case to the employee’s case by requiring them to establish that they are able to perform the essential functions of a job without risk of injury to themselves. After letting the authorized scope of the direct threat defense percolate in the lower courts for a few years, the Supreme Court then addressed the disagreement among circuit courts. The Court held that the ADA permits the EEOC’s enhanced regulation and allows deference to the EEOC’s interpretation of the direct threat defense. The Court reasoned that Congress included the harm-to-others provision in the ADA as simply an example of a legitimate qualification standard that is job-related and consistent with business necessity. But the use of that example did not limit the scope of the ADA’s direct threat defense only to threats to another and not to oneself. The Court rejected the idea that the EEOC’s direct threat defense encourages discriminatory paternalism. Instead, the Court concluded that the EEOC reasonably interpreted the ADA in a way that would not force employers to ignore “specific and documented risks to the employee himself, even if the employee would take his chances for the sake of getting a job.” Even though the Supreme Court validated the EEOC’s expanded direct threat defense, this article explains how to properly analyze the scope of the defense in light of the Supreme Court’s narrow and strict interpretation of it. Despite the Court’s validation of the expanded direct threat defense, including threats to self, attorneys must understand that such a defense only applies in limited circumstances and that employment decisions based on unsubstantiated fears and stereotypes will not (and must not) be accommodated by the defense. Moreover, the direct threat defense does not permit an employer to exclude an individual with a disability when that individual’s disability might pose a direct threat to his own health or safety; rather, the employee must pose a significant risk to his health or safety. Additionally, an employer still must conduct an individualized assessment based on the most current medical knowledge or best available objective evidence to determine whether an individual poses a significant risk of substantial harm to himself. Even if an individual’s disability poses a direct threat to his health or safety, an employer is still required to conduct a reasonable accommodation analysis to determine whether the individual with a disability can perform the position’s essential functions. In sum, the Supreme Court’s blessing of the EEOC’s expanded direct threat defense does not open additional avenues of discrimination against individuals with disabilities. Indeed, the use of the direct threat defense in cases involving direct threats to oneself should not be readily attainable and most likely will be sparingly utilized in practice. If an attorney for either an employer or employee with a disability uses the framework outlined in this article to navigate the direct threat defense when faced with the difficult question of whether an individual poses a direct threat to his own health or safety, a workable and humane balance can be achieved between ensuring that individuals with disabilities do not unnecessarily endanger themselves while ensuring that individuals with disabilities are not unlawfully discriminated against based on stereotypes, myths, speculation, or unfocused paternalism

Credits to Our Profession - A Frank and Far-Reaching Interview with Judge Lyle E. Strom and Judge William J. Riley (Part One of Two)

Lyle E. Strom and William J. Riley have been mainstays of the Omaha legal community for decades. These legendary Omaha lawyers have enjoyed successful careers as trial lawyers in private practice, educated law students on trial practice, dedicated their time and talent to Nebraska’s legal community, motivated Boy Scouts to lead virtuous lives, mentored countless young attorneys, and served their nation as federal judges. Judge Strom currently serves as a senior judge on the United States District Court for the District of Nebraska; Judge Riley currently serves as the chief judge of the United States Court of Appeals for the Eighth Circuit. I am lucky and fortunate to call both of them friends. Although Strom and Riley are not as famous as such duos as Buffett and Munger, Martin and Lewis, or Batman and Robin, they have an interesting story linked by common threads. Through a brief background and a far-reaching, question-and-answer format, this two-part article hopes to capture parts of the interesting careers of Judge Strom and Judge Riley. This article represents the results of an enjoyable three-hour conversation between this article’s author (Tory L. Lucas), Judge Strom, and Judge Riley in the Eighth Circuit Conference Room in Omaha, Nebraska, on a sunny afternoon on August 15, 2005. Part one of the article addresses the following subjects: the genesis of the relationship between Judge Strom and Judge Riley; how they made their career choices to become trial lawyers; memorable trial stories; mentoring; teaching; community service; the quality of trial lawyers; and civility and professionalism. Part two of the article addresses the following subjects: the judicial nomination process, including personal stories about Judge Strom’s and Judge Riley’s nominations to the federal bench by Presidents Reagan and Bush; the current climate for federal judicial candidates; the makeup of the Supreme Court of the United States; appeals from Judge Strom’s decisions to Eighth Circuit panels involving Judge Riley; judicial philosophies; future plans; and advice to future law clerks and to young lawyers. This two-part article tries to capture portions of two amazing careers that have intriguing parallels. It also attempts to relay interesting stories about two mainstays of the Omaha legal profession that undoubtedly reveal that Judge Strom and Judge Riley are credits to our profession

Supervisors Individually Liable Under the Iowa Civil Rights Act

Using federal law, Title VII of the Civil Rights Act of 1964, as a model, the State of Iowa enacted the Iowa Civil Rights Act of 1965 (ICRA) to strengthen anti-discrimination laws on a state level. But the ICRA was not simply a carbon copy of Title VII; instead, the ICRA contained its own unique language, which provided state-specific distinctions to further the interests of Iowans. For thirty-four years, it was an open question as to whether the ICRA authorized individual liability against supervisory employees — as opposed to only employers — for unlawful discrimination. In Vivian v. Madison, 601 N.W.2d 872 (Iowa 1999), the Iowa Supreme Court held that the ICRA’s clear and unambiguous language indeed provided that supervisory employees could be held individually liable for unfair employment practices. This article reviews the ICRA’s plain language, contrasts it with Title VII’s plain language, and explains why the Iowa Supreme Court correctly interpreted the ICRA to hold that supervisory employees could be held individually liable. For years, the Iowa Supreme Court and federal courts in Iowa consistently analyzed the ICRA against the backdrop of Title VII. In the run-of-the-mill cases involving the run-of-the-mill issues, this analytical tool proved helpful and created no glaring inconsistencies. In addressing the contentious issue of individual supervisory liability for discrimination, however, the Iowa Supreme Court in Vivian explained that using Title VII as a guidepost served as an unnecessary impediment, because Title VII “differs from the ICRA in several key respects.” Focusing on the plain, unambiguous language of the ICRA contrasted with a different statutory structure under Title VII, the Court reasoned that the ICRA’s prohibiting any person from engaging in unlawful employment practices while providing a relief mechanism against any person or employer revealed a clear and deliberate distinction such that employer and person could not mean precisely the same thing. Under this analysis, the Court concluded that both an employer and a supervisor who engages in discrimination can face liability from an individual who has suffered discrimination When Title VII is read alongside the ICRA in considering whether supervisory employees can be held individually liable under either anti-discrimination statute, it becomes glaringly obvious that the ICRA does not say the same thing as Title VII says, which must result in a conclusion that if they do not say the same thing, they cannot mean the same thing. While Title VII imposes liability on employers, the ICRA imposes liability on persons and employers. To simply bow to an interpretation of Title VII in the supervisor liability context under the ICRA when the statutes use different language would be a wholesale abrogation of a court’s obligation to fairly and broadly interpret and apply both civil rights statutes to carry out their intended purpose. After years of head fakes at bowing to such an unworkable comparison between Title VII and the ICRA, the Iowa Supreme Court in Vivian stood tall and foreclosed any further comparisons between Title VII and the ICRA that could do damage to the ICRA’s purposes to protect individuals from discrimination at the hands of supervisory employees

To Designate or Not to Designate Under the Family and Medical Leave Act

The Family and Medical Leave Act (FMLA) entitles eligible employees to take a total of twelve workweeks of leave during any twelve-month period for specifically prescribed circumstances such as a serious health condition or the birth or adoption of a child. Does the FMLA require employers to specifically designate leave as FMLA leave or risk having to provide more than the guaranteed twelve weeks of leave? This precise question created a circuit split in the federal courts before the Supreme Court of the United States answered the question in March 2002. This article, published in 2000, addressed the issue a couple of years before the Supreme Court decided it. Here is the fact pattern that lies at the heart of this article’s analysis of the employer’s obligation to designate leave as FMLA leave and how it impacts an employee’s right to take FMLA leave. After a year of working for a new employer, an employee was diagnosed with cancer and was unable to work. Under the employer’s leave policy, all employees with at least six months of service were entitled to take up to seven months of leave, a generous leave policy under almost anyone’s definition. Once an employee’s leave commenced, an employee was required to request a leave extension every thirty days. The employee with cancer properly requested medical leave and the employer granted the leave request. The employee then requested extensions monthly; all requests were granted by the employer. When the employee exhausted her seven months of leave, the employee was unable to return to work. Indeed, the employee was at least three months away from being able to return to work. The employer never personally notified the employee of her eligibility for FMLA leave; the employer also never formally designated the seven months of leave already taken as FMLA leave. The employee then requested additional leave under the FMLA, even though the employer had already provided seven months of leave. The employer was faced with the question of whether the employee was entitled to twelve weeks of FMLA leave in addition to the seven months of leave already provided by the employer, all because the employer failed to specifically designate all or parts of the seven months of leave as FMLA leave. The FMLA does not expressly require an employer to specifically designate employee leave as FMLA leave; it simply guarantees a certain amount of leave to certain employees. The Department of Labor (DOL), on the other hand, enacted regulations that squarely and unambiguous placed the burden on employers to designate leave as FMLA leave: “If an employee takes paid or unpaid leave and the employer does not designate the leave as FMLA leave, the leave taken does not count against an employee’s FMLA entitlement.” It was not long before courts were called upon to determine whether the DOL acted within its authority in promulgating the above-quoted regulation. This article discusses how the issue was resolved in the Unites States Courts of Appeals for the Sixth, Eighth, and Eleventh Circuits, focusing mostly on the Eighth Circuit’s striking down of the above-quoted regulation as exceeding the DOL’s authority. The Supreme Court decided the issue in March 2002, affirming the Eighth Circuit’s decision. Ultimately, this article is still relevant, even though it predated the Supreme Court’s decision. This is particularly true because the article provides a path forward for employers to avoid any entanglements with designation issues like the one that started the federal case in the first place. To avoid such conflicts (as all employers and employees should seek to do), an employer should provide all employees with a clear leave policy that fully addresses FMLA leave and how it relates to employer-provided leave (whether paid or unpaid). Supervisors and human resource managers must understand and correctly implement those policies once adopted. Designating leave as FMLA leave ensures that employees are granted their FMLA-entitled leave while protecting employers from the potential pitfalls of miscommunication. As we all know, miscommunication and misunderstandings often are the impetus to litigation over rights and responsibilities. Although employers will not be punished for failing to designate employer-provided leave as FMLA leave (at least as long as the employee’s substantive FMLA rights have been protected), a clear leave policy consistently applied will erase any need to have an employment dispute resolved through litigation. Clear policies help to avoid employment disputes; lawsuits emanating from unclear policies or miscommunication are a waste of resources and harm the valuable employer-employee relationship

From Pin Point to the Legal Pinnacle

In Judging Thomas: The Life and Times of Clarence Thomas, author Ken Foskett argues that “the key to unlocking Justice Thomas’s decision making is not dissecting the opinions but understanding the man who wrote them.” Capturing the essence of Judging Thomas, this quote forms the premise for this book review. A person cannot always be understood by his accomplishments. Instead, we sometimes must look beyond the person himself, and look into that person’s family history. That is precisely what this Thomas biography attempts to do. This book review, entitled From Pin Point to the Legal Pinnacle, briefly outlines how Thomas catapulted from poverty to the Supreme Court of the United States. It is an amazing and inspiring American story, one that began humbly without even a tint of privilege. At the age of seven, Thomas’s family life unraveled, forcing him to move in with his grandparents. This life-changing event brought Thomas face to face with a taskmaster of a grandfather, Myers Anderson. Anderson shunned excuses for a person’s lot in life even if confronted with bitter racial division, instead instilling in Thomas fundamental values and principles such as self-reliance, personal responsibility, hard work, and discipline. These values and principles laid the groundwork for Thomas’s success in school and life. The book review recounts Thomas’s struggles during his formative years in the Deep South, culminating in his graduation from Yale Law School. After Yale, Thomas’s professional career took off like a rocket ship. He accepted a position as an Assistant Attorney General under Missouri Attorney General John Danforth. He then moved to Washington D.C. to serve as then-Senator Danforth’s legislative assistant. President Ronald Reagan soon discovered Thomas’s enormous talents, appointing Thomas to be an assistant secretary for civil rights at the Department of Education. Two years later, President Reagan tapped Thomas to be chairman of the Equal Employment Opportunity Commission (EEOC) at the young age of thirty-four. During Thomas’s eight years at the EEOC, he transformed the agency from a fledgling bureaucracy to a first-rate government agency. This position also allowed Thomas to crystallize his views on civil rights and other important public policy issues. Thomas’s leadership at the EEOC earned him a fair amount of supporters, and detractors, and it ultimately laid the groundwork for his judicial nominations several years later. udging Thomas tries to reveal how Thomas had spent a lifetime flirting with conservative principles that begin to take shape as solidly conservative during the EEOC period. In 1989, Thomas was once again elevated in his service to America, this time to replace Judge Robert H. Bork as a federal circuit judge on the prestigious United States Court of Appeals for the D.C. Circuit. Thomas accepted President Reagan’s judicial nomination, and he received nearly unanimous support from the Senate. Less than two years later, the air in D.C. would shift dramatically and turn ugly against Thomas. In 1991, President George H.W. Bush nominated Thomas to the Supreme Court. To say that Thomas’s Supreme Court confirmation process would not go as smoothly as his circuit court appointment is a monumental understatement. A battle erupted over Thomas’s nomination, and that confirmation battle is still being discussed today. The book review provides a glimpse into how Judging Thomas details the now-infamous Supreme Court confirmation hearings. In response to vicious attacks on his character and integrity, Thomas made the following famous statement to members of the Senate Judiciary Committee: And from my standpoint, as a black American, as far as I am concerned, it is a high-tech lynching for uppity blacks who in any way deign to think for themselves, to do for themselves, to have different ideas, and it is a message that, unless you kowtow to an old order, this is what will happen to you. You will be lynched, destroyed, caricatured by a committee of the U.S. Senate, rather than hung from a tree. This book review attempts to encapsulate what the book expressly details about Thomas’s pain during these hearings and how that pain affected him and robbed him of his good name. This book review of Judging Thomas gives readers a glimpse of what they can expect to learn about Clarence Thomas’s life and the experiences that ultimately molded his worldview and legal philosophy. The review ultimately posits that regardless of your opinion of Justice Thomas, it is highly recommended that you read about Clarence Thomas, and Judging Thomas is a good place to start. If you drown out the incessant noise that for some reason surrounds the public discourse about Justice Thomas, and instead focus on the life story of Clarence Thomas, you will find an inspiring tale of hard work, self-reliance, discipline, personal responsibility, and perseverance, even against long odds. You also will witness the life-altering magnificence and boundless opportunity that America offers to its citizens, including a poor child born in a segregated small town who skyrocketed to the legal pinnacle

Credits to Our Profession - A Frank and Far-Reaching Interview with Judge Lyle E. Strom and Judge William J. Riley (Part Two of Two)

Lyle E. Strom and William J. Riley have been mainstays of the Omaha legal community for decades. These legendary Omaha lawyers have enjoyed successful careers as trial lawyers in private practice, educated law students on trial practice, dedicated their time and talent to Nebraska’s legal community, motivated Boy Scouts to lead virtuous lives, mentored countless young attorneys, and served their nation as federal judges. Judge Strom currently serves as a senior judge on the United States District Court for the District of Nebraska; Judge Riley currently serves as the chief judge of the United States Court of Appeals for the Eighth Circuit. I am lucky and fortunate to call both of them friends. Although Strom and Riley are not as famous as such duos as Buffett and Munger, Martin and Lewis, or Batman and Robin, they have an interesting story linked by common threads. Through a brief background and a far-reaching, question-and-answer format, this two-part article hopes to capture parts of the interesting careers of Judge Strom and Judge Riley. This article represents the results of an enjoyable three-hour conversation between this article’s author (Tory L. Lucas), Judge Strom, and Judge Riley in the Eighth Circuit Conference Room in Omaha, Nebraska, on a sunny afternoon on August 15, 2005. Part one of the article addresses the following subjects: the genesis of the relationship between Judge Strom and Judge Riley; how they made their career choices to become trial lawyers; memorable trial stories; mentoring; teaching; community service; the quality of trial lawyers; and civility and professionalism. Part two of the article addresses the following subjects: the judicial nomination process, including personal stories about Judge Strom’s and Judge Riley’s nominations to the federal bench by Presidents Reagan and Bush; the current climate for federal judicial candidates; the makeup of the Supreme Court of the United States; appeals from Judge Strom’s decisions to Eighth Circuit panels involving Judge Riley; judicial philosophies; future plans; and advice to future law clerks and to young lawyers. This two-part article tries to capture portions of two amazing careers that have intriguing parallels. It also attempts to relay interesting stories about two mainstays of the Omaha legal profession that undoubtedly reveal that Judge Strom and Judge Riley are credits to our profession

Preacher Man v. Porn King: A Legal, Cultural, and Moral Drama Starring Jerry Falwell, Larry Flynt, and the First Amendment

Take one part proselytizing, political Southern Baptist televangelist, one part obnoxious, media-seeking pornographer, and one part First Amendment free speech, and you get the colossal legal, cultural, and moral battle embodied in the seminal Supreme Court case of Hustler Magazine v. Falwell. It all started in late 1983 with a controversial and despicable ad parody of a man and his mother that culminated in an aggressive legal battle between litigants on polar opposites of the moral and legal spectrum. Going behind the text of the Supreme Court decision, this article delves into the history behind the unique circumstances that made the paths of Jerry Falwell and Larry Flynt cross in a way that made Supreme Court history

But I\u27m Not Twenty-One Yet: How Section 3B1.4 of the United States Sentencing Guidelines Ignored Congress\u27s Intent to Enhance Sentences Only for Adults at Least Twenty-One-Years of Age Who Corrupt Minors by Using Them to Commit Federal Offenses — And What Federal District Courts Can Do About It

If five similar-yet-unrelated criminals use minors to commit similar federal crimes at the same time in different states, justice dictates that the federal sentencing system would fairly apply a use-of-minor enhancement to sentence these similarly situated defendants. One would think. But not all similarly situated defendants who use minors to commit federal offenses will be treated fairly. Why the disparity in federal sentencing? The answer lies in a conflict between the U.S. Congress and the U.S. Sentencing Commission. Congress directed the Sentencing Commission to promulgate a use-of-minor enhancement that ensures that the defendant’s age is relevant by focusing on adult defendants at least twenty-one years old who corrupt minors by using them to commit federal offenses. The Sentencing Commission defied Congress’s directive, instead choosing to make a defendant’s age absolutely irrelevant when applying a use-of-minor enhancement such that every defendant — no matter how old or how young or how close in age to the minor used — must receive the same two-level use-of-minor enhancement. Currently, four federal circuit courts have sanctioned the Sentencing Commission’s expansive use-of-minor enhancement; one lone circuit court has decided that the Sentencing Commission exceeded its congressional authority such that the use-of-minor enhancement cannot be applied to defendants under the age of twenty-one. Siding with the lone circuit, this Article takes a systematic and thorough approach to explain how the congressional directive’s plain language, legislative history, and context in which it was enacted require the conclusion that Congress intended the Sentencing Commission to retain age as a relevant factor in applying the use-of-minor enhancement. The Article then equips federal district courts with three options to adequately respond to the Sentencing Commission’s open defiance of congressional intent and unlawful expansion of its limited authority by ensuring that the use-of-minor enhancement is not used against defendants under the age of twenty-one. First, the Article outlines how district courts can adopt the No-Authority Option, which concludes that the Sentencing Commission exceeded its congressional authority when promulgating a use-of-minor enhancement with a defendant’s age being irrelevant. Second, the Article presents district courts with the Policy-Disagreement Option, which authorizes district courts to decide as a matter of policy that the use-of-minor enhancement should not be blindly applied to defendants under the age of twenty-one. Third, the Article offers district courts the Individualized-Assessment Option, which sanctions the use of their institutional strengths to impose a sentence based on the unique facts and circumstances of a single case that demonstrate that the application of a use-of-minor enhancement to a particular defendant under the age of twenty-one does not serve the purposes of federal sentencing. As long as this three-option, analytical framework is followed, district courts are well equipped to mete out punishment consistent with the purposes of federal sentencing while simultaneously ensuring that the Sentencing Commission continues to play a vital role in national sentencing policy within its congressionally sanctioned power