San Antonio Employment Discrimination Lawyer & Attorney : McKinney Law Firm : Sexual Harassment, Wrongful Termination : Texas

Today we have a guest post from a friend and great lawyer Brian East. Brian is a civil rights lawyer with Advocacy Inc., which represents disabled individuals in civil rights matters. It is my sincere hope that Brian will agree to do more guest posting as often as possible.In this post, Brian discusses the Eighth Circuit's recent ADA opinion in EEOC v. Wal-Mart. In EEOC v. Wal-Mart Stores, Inc., ___ F.3d ___, 2007 WL 447941 (8th Cir. Feb. 13, 2007), Steven Bradley alleged that Wal-Mart failed to hire him as a greeter or cashier because of his cerebral palsy. The fact of Mr. Bradley's disability was not contested by the company, but the trial court granted summary judgment for Wal-Mart, finding that Bradley was not "qualified," and that there was insufficient evidence of pretext. The 8th Circuit reversed. Here are some of the (to me) important points:1. The court recognized that if an employee cannot perform the essential job functions without an accommodation, he or she "must only make a facial showing that a reasonable accommodation is possible. . . . [Then] the burden of production shifts to the employer to show that it is unable to accommodate the employee." (internal quotes omitted)2. Through its two experts, a vocational rehabilitation consultant and a medical center case coordinator (who did a "functional capacity assessment"), the EEOC made a "facial showing" that certain specified reasonable accommodations would enable Bradley to perform the essential job functions.3. The fact that the experts did not observe Bradley using these devices or performing the duties did not defeat the "facial showing."4. The defense attack on the experts involved a credibility determination "best reserved for juries."5. Wal-Mart's own expert admitted that the accommodation of using a wheelchair would work, and Wal-Mart's own "Resource Retention Guide" suggests accommodations that might assist employees with mobility limitations, with one illustration specifically involving a "cashier who uses a wheelchair."6. With regard to the legitimate nondiscriminatory reason, the court observed that an "employer is prohibited from inventing a post hoc rationalization for its actions at the rebuttal stage of the case." (internal quotes omitted)7. One reason Wal-Mart gave for not hiring Bradley was the fact that the hiring supervisor supposedly knew of 3 jobs Bradley had held with other employers in the past that he did not put on his application. It turned out that he never had one, he did not get another until after the decision at issue here, and the third he only had for a few hours. Neither of the first two could have motivated the decision, and the jury could have doubted the supervisor saw him in the last (as she said) because it was so brief. (There was also a fact dispute about who actually made the decision.)8. The supervisor also claimed to rely on Bradley's limited availability in denying him the jobs, but that was only evident in an earlier application the previous year, and the hiring committee did not normally look at that, the jury could disbelieve that the supervisor could recall it, and she admitted that based on the latter application (the one at issue), she would not have questioned his availability.9. The 8th Circuit held that the burden of proof on the affirmative defense of direct threat is on the employer. (Note that although the court did not explicitly discuss those cases requiring the plaintiff to prove safety as part of his/her burden on "qualified," it seems that the court followed the EEOC's view that in cases like this, in which the job at issue was not fundamentally about safety [in contrast to, say, a line police officer or firefighter], safety only comes up as a defense.)10. Wal-mart's expert failed to present evidence that a reasonable accommodation--such as a wheelchair--would not eliminate the risks he identified. Furthermore, Wal-Mart failed to explain how Bradley, using a wheelchair or other similar device, would pose any more of a threat than Wal-Mart customers who shop using such devices.------Thanks to Brian for his post. The issue of who has the burden of showing a "direct threat" in an ADA case is ripening into a large circuit split that will need to be addressed by the Supreme Court. In holding that the burden of proving that an employee's disability poses a direct threat to the employee or others rests on the employer the Eighth Circuit joins the Second, Seventh and Ninth Circuits. The First, Tenth and Eleventh Circuits and maybe the Fifth would place the burden on the employee.

Here is a link to Petitioner's brief.

More:10th Circuit Opinion Below: Equal Employment Opportunity Commission v. BCI Coca-Cola Bottling Co (10th Cir 2006).

Answer: Yes.

Although there is no law that requires employers to have employee handbooks or personnel manuals, they are one of the best tools for communicating information to employees about your company's policies, their performance standards, and employment benefits. By having written policies in place, an employer is also able to develop uniform standards within the workplace that can help promote fairness and the consistent treatment of its employees. Handbooks are therefore a must in terms of an employer's ability to comply with their legal obligations to their employees.

An employer that does not have written guidelines in place is much more likely to encounter problems arising from ignorance of its policies, inconsistent or unfair application of those policies, conflicting policies, and resulting confusion among its employees. This can lead to internal problems such as employee dissatisfaction and discrimination charges filed by employees who feel they have been treated unfairly.

Jacqueline McManus has an excellent article in the Monterey Herald describing all of the reasons why an employee handbook is really a necessity for even relatively small employers. I reccomend it to you for your consideration.

Jay Shepherd over at Gruntled Employees has a great post out discussing the increasing clamor from corporate general counsels for billing alternatives to the increasingly unpopular "billable hour". Unfortunately, big law firms continue to ignore their clients' wishes in this regard and push the antiquated billable hour model. This recent survey of corporate legal expense issues from the New Jersey Law Journal found that:

Despite criticisms of the hourly billing format, its use continues to grow. In 2005, 87.1 percent of companies said they used standard or discount hourly rates, compared with 81.2 percent in 2004 and 81 percent in 2003.

While 62 percent of respondents are open to alternative fee arrangements -- including fixed, blended hourly rate, contingency and retainer -- they say that 90 percent of outside counsel resist the suggestion. (Emphasis added).

Ninety Percent? So why are big law firms resistant to change? The answer is simple. Hourly billing is often nothing short of an acceptable form of overbilling. Work on a project is open-ended, set objectives are often as vague as "win the case" and there often is no billing budget set out at all. Combine these ingredients with the incredible pressure large firms place on their associates to bill hours and the pressures partners face in earning enough to cover their gigantic overhead plus a more than attractive PPP and you have a recipe for an unbelievable amount of over...er... hourly billing.

With these kind of economics at work, its no wonder that large firms treat alternative billing as some type of odd-ball granola alternative lifestyle. "As if traditional (hourly) billing came over on the Mayflower."This problem is often no more apparent than in the employment law context. How frustrating must it be for general counsels to see case after case cost $50K, $75K, $100K or more to litigate through the summary judgment phase only to then settle for $50K or less. Ridiculous. And just as strange, some large firms still don't offer flat rates for everyday types of services such as employment handbooks or EEOC Charge responses. I agree with Jay that I don't think corporate counsels are going to allow themselves to be ignored forever on these issues. It may take more of an effort on their part to shop around for local firms that truly believe in providing real customer service and sensible billing models but eventually they will decide its worth it.

For more on alternative billing, read:

• No-alternative billing
• Law Biz Blog

Thanks to WorkplaceProfBlog for the pointer to this excellent article on Rule 68 Offers of Judgment in the context of civil rights and employment law litigation by Harold Lewis Jr. of Mercer University and Thomas Eaton of the University of Georgia Law School. From the article's abstract:

We were interested in learning why Rule 68 is not a more prominent feature of civil rights and employment discrimination litigation. Why is it not used more frequently in the very types of cases in which defendants have the greatest economic incentive to make offers and plaintiffs have the most to lose if they refuse them? We harbor no illusion that Rule 68 is a panacea for dispute resolution. But it is one tool for ratcheting up the pressures for an early settlement with a measure of legal compulsion. Our interest in Rule 68 is not driven by the belief that too many cases go to trial. Indeed, it appears that the civil trial has become a notable rarity - by one respected account, more than 98% of federal civil litigation is resolved by means other than trials. Nevertheless, Rule 68 may harbor the potential to speed up the settlement process and thereby produce significant economic savings to the parties, with correlative savings to the courts and the taxpayers who fund them.

Our contribution to the policy discussion is to report the views of experienced practicing attorneys who decide on a daily basis whether to make or accept offers of judgment. We conducted in-person, in-depth interviews with sixty-four experienced litigators who prosecute and defend civil rights and employment discrimination claims. This is the first such nationwide empirical inquiry into the incidence of practitioner use of Rule 68 in the federal fee-authorization cases where, after Marek, one would expect its use to be most common.

Part II describes the methodology we used in constructing this study. Part III discusses the technical aspects of Rule 68 and how they might contribute to use or non-use of offers of judgment. Part IV confirms the anecdotal evidence that Rule 68 plays little role in civil rights or employment discrimination litigation throughout most of the nation's federal courts. However, there are a few districts where Rule 68 has become a more than occasional part of evaluating and processing civil rights, although not employment discrimination, cases. Part IV also summarizes the primary reasons advanced by experienced attorneys for the infrequent use of Rule 68. Part V reports on the reactions of these attorneys to various proposals for reform.

Here is a link to the full article.