Are You Allergic to Your Job? ADA Guidance

Delta flight attendants say they are suffering from hives, respiratory issues, and compromised immune systems, possibly due to new uniforms that were issued about 18 months ago.

The photo is from the Cleveland Health Clinic, showing a person who suffers from stress-induced hives (me, too, but not sharing photos).

Does the Americans with Disabilities Act offer any legal help in these situations?

Likely, yes.

In 2008, Congress passed the ADAAA—The Americans with Disabilities Amendatory Act. 

It broadens the definition of disability to include immune disorders. It also defines “work” as a “major life activity.” Thus, if you are “substantially limited” in “working” you may request a “reasonable accommodation.”

What should the flight attendants and Delta do? First, the employees need to speak up (they are afraid to do so, and are reporting anonymously). Retaliation for raising an ADA issue is a violation of the ADA.

Next, Delta must engage in an “interactive process.” That’s fancy for talk it out.

From there, the law is murky. What is a “reasonable accommodation?” Cost is a factor in determining “reasonable.” Effectiveness is also a factor. What if 20% of flight attendants who report health problems are helped by an accommodation (use old uniforms that had no problems), but 80% are not?    

More generally, many of us are stressed at times (or constantly) by our work. Employers aren’t under a duty to provide a stress-free job. However, when many employees report a common cluster of symptoms, it’s probably time to start talking it out and working toward solutions.

PS: I worked with the flight attendant union for about 15 years and learned of a distressing occupational study. Flight attendants who routinely flew international routes near the North Pole had unusually high blood cancer rates. The study showed correlation but not causation. Last I heard, the speculation was that something about the electromagnetic impulses and the conductivity of the aircraft’s skin were x-raying these employees in overexposed amounts.

Thanks to AMR for the blog suggestion!

Fired for Criticizing Poor Conditions in Grade School: High School Coach (Former NFL Player) Seeks to End Immunity for Impunity

After playing in the NFL for eight years, Gerald Sensabaugh worked as a high school coach for David Crockett High School. His first year went well. In his second season, he toured elementary schools and said he was “shocked at the poor condition of the school.”

When Sensabaugh posted about it on Facebook, his boss, district director Kimber Halliburton, texted him saying he didn’t have all the facts and asked him to take it down, citing photos of schoolchildren he’d included.

Two days later, Sensabaugh posted about how he thought it was wrong for the district to use unpaid prison labor on campus while kids were attending school.

Again Halliburton and others texted Sensabaugh and tried to both threaten and cajole him into not making future posts, Sensabaugh said.

Sensabaugh was fired—but he’s not going quietly. He is asking the Supreme Court to revisit its “qualified immunity” standard for public officials.

That doctrine was created by the Supreme Court in the 1967 case Pierson v. Ray. It says that when a public official violates someone’s constitutional rights— here, Sensabaugh is claiming he was fired for First Amendment speech— the official isn’t personally liable unless he or she clearly knew that they were violating a right.

Legal scholars believe it gives too many public officials a free pass for really bad behavior—for example, misconduct cases involving police who engage in theft and violence in their official capacity.

Sensabaugh’s attorney makes the argument that “qualified immunity entitlement continues to grow unbridled and acts as a steel barrier protecting virtually every public official sued in their individual capacity.” If Sensabaugh wins, public officials will hopefully be deterred from depriving citizens of their rights.

Trump Gives Spur-ious Reasons to Start Deportation Process for Thousands of U.S. Military

spu·ri·ous /ˈsp(y)o͝orēəs/ Adjective

not being what it purports to be; false or fake.

President Trump, known for avoiding military duty due to bone spurs, is being sued for presidential obstruction of MAVNI (Military Accessions Vital to the National Interest), a program for foreigners in the military to gain citizenship.

MAVNI was started in 2008 under President Bush, and remains in effect. It allows more than 10,000 foreign-born military enlistees to become naturalized citizens via an expedited process. Since the program started, the Defense Department has added a “slow-walk” step for processing an application by inserting an open-ended step for “Background Investigation and Suitability Vetting.” Bush and Obama used the internal vetting process to deny some petitions to become citizens—for reasons not given.

Now, President Trump is slow-walking every petition. The effect will be to terminate the lawful presence of these foreign-born men and women in the Army, Navy, Air Force, and Marines.

Here is a synopsis of the problem, as stated in Kirwa v. U.S. Dep’t of Defense, 285 F.Supp.3d 21 (D.C.D.C. 2018), at 43: “Every day of delay leaves plaintiffs in limbo and in fear of removal…. Plaintiffs live in constant fear that they will lose their work or student visas, or be discharged, deported, and subject to harsh punishment in their country of origin for joining a foreign military.”

I'll be discussing this situation on PBS-Southern California later this week, and will try to post a podcast. 

NCAA Coach Protection Racket: One Shining Moment Covers Up Many Dark Days

Maybe you get emotional when the NCAA basketball tournament ends with “One Shining Moment.” It’s meant to be a feel good moment about March Madness.

The reality is sometimes different. 

Consider two lawsuits won by the NCAA and member schools, UNC and University of Arkansas-Little Rock (UALR).

The UNC case took nine years to litigate and was settled for about $400,000, with no admission of UNC’s liability nor action taken against Coach Anson Dorrance, a legendary women’s coach (photo above). 

Melissa Jennings sued under Title IX, claiming that the coach created a sexually-charged environment laced with vulgarity. She alleged sex discrimination after she (a) complained about this environment, and (b) was cut from the team shortly later for creating bad team chemistry.

Quoting from the court opinion:

“As part of the conversation about her grades, Dorrance then asked Jennings about whether her social life was adversely affecting her grades. As part of that inquiry, Jennings testified that Dorrance specifically asked Jennings, “Who are you f* * *ing?” and whether it was adversely affecting her grades. 

Although Jennings testified that Dorrance used the word “f* * * ” a lot during practice, the question took her aback. Jennings immediately told Dorrance that her personal life was “none of his g* * d* * * business.”

According to Jennings, Dorrance would frequently participate in conversations at practice about players’ personal lives, including their dating and sex lives….  In addition, according to Jennings, Dorrance would sometimes make comments about team members' bodies, including comments about team members’ weight, legs, or chests.

Jennings also testified that while coaching the team in 1996 and 1997, Dorrance used profanity, including using the words “f* * * ” and “unf* * * ing believable” and the phrases “what the f* * *,” “f* * *ing brilliant,” and “f* * *ing stupid.”

***

On to UALR baseball. Cole Gordon was an assistant baseball coach. He blew the whistle on his head coach because of his concerns that Scott Norwood harassed players, sexually harassed their girlfriends, and purchased alcoholic beverages for some players. He took his concerns to Gary Hogan—Senior Associate Athletic Director for External Relations—and Richard Turner—Senior Associate Athletic Director for Compliance and Student Support.

Neither Hogan nor Turner took any action to address these issues. Human resources merely asked Norwood if the allegations about his behavior were true, but he denied them. Human resources did not attempt to seek additional information from Gordon about his complaints until he no longer worked at UALR.

***

I am tentatively scheduled to make a presentation at a labor law conference in March at Cal-Berkeley, where the topic is whether NCAA student athletes should be employees. I’ll be contrasting the poor outcomes for NCAA players when they allege, report, or oppose sexual and racial harassment under Title IX (an education law) with similar case under Title VII (an employment law). The two laws prohibit discrimination—the employment law is more potent than the education law.

Farewell, Britannia

Boris Johnson’s smashing success is a feel-good moment for nativists.

But they are all on the wrong side of history. Here is an excerpt from my forthcoming study on three empires that, at times, cutoff immigration and trade to their great detriment—Rome, Britain, and the U.S.:

Naturalization Laws and the Rise of the British Empire: From an early time, English law protected workers from foreigners.^[1] But these policies isolated and slowed the English economy. In time, England allowed limited immigration to develop its business climate. Three waves of foreigners were admitted: Flemings in the fourteenth century, Dutch and Walloons in the sixteenth century, and French in the seventeenth century.[2] Over this long span, English governments regarded these foreigners as religious refugees and economic assets.[3] Beginning in 1331, Edward III promoted immigration of skilled craftsmen with letters of protection.[4] Weavers from Flanders were allowed entry to work.[5] Edward III cultivated industry and training by admitting skilled aliens.[6]

Within a short time, the Black Death created an immense labor shortage. The Ordinance of Labourers of 1349 reacted to wage inflation by capping wages across many trades and occupations.[7] A year later, citizenship was broadened in “A Statute for Those That Be Born Beyond the Sea.”[8] The law provided that inheritance rights for the “children of the kings of England, in whatsoever parts they be born, in England or elsewhere, be able ought to bear the inheritance after the death of their ancestors.”[9] Timing of the law suggests a national imperative to increase the labor pool by extending citizenship to English emigres.

Until the early sixteenth century, England remained in a trading rut, a small satellite in the orbit of Italy, the Mediterranean, Low Countries, and Germany.[10] The Hanseatic League was England’s primary trade partner in the 1400s: together, they granted favorable trading privileges in wool to Germanic guilds but disadvantaged English producers and merchants.[11] England’s primary export until 1565 was cloth— a finished commodity that required imported raw materials and dyes.[12] Not only did England import most products essential to its economy: It imported also Europe’s technical skills.[13]

As foreigners arrived in larger numbers during the early sixteenth century, this influx brought labor competition.[14] Native resentments exploded on Evil May Day 1517, a day of rioting against foreigners.[15] But the trade between foreign businesses and English artisans was so vital to the treasury that the king meted out cruel punishment against the nativists.[16] Thirteen young rioters were hanged; more than 400 others bound in ropes awaiting their fate at the gallows before they received a last-minute pardon.[17]

The population of foreign artisans swelled, constituting about one-third of Londoners.[18] Skilled labor in this period mostly came from foreigners, including tradesmen who worked for the royal household.[19] Their presence inflamed British subjects.[20] In consequence, the Aliens Act of 1540 restricted the rights of these workers.[21] Parliament reflected native concern that aliens “did eate the Englishmen out of trade, and that they entertained no Apprentizes, but of their own Nation.”[22] Before long, however, England adopted permissive immigration laws. During Elizabeth I’s reign, naturalization laws thrust England to the forefront as a continental trading partner. Foreigner artisans who mastered new drapery technologies provided a way for England to grow exports by adding new value to domestic materials.[23]

---

[1]   Daniel Thompson, The Weavers’ Craft 19 (1903) (the twenty-second law of the “Leges Burgorum,” written during the reign of David I (1124-1153), prohibited anyone but a burgess from making cloth or dyeing it).

[2]   Ephraim Lipson, The Economic History of England 60 (1937).

[3]   Id.

[4]   Lien Bich Luu, Immigrants and the Industries of London, 1500–1700 53-55 (2017) (Edward III promoted industrial development in his letters of protection to Flemish weavers, encouraging them to come and develop the cloth industry in England).

[5]   Also see Bart Lambert & Milan Pajic, Drapery in Exile: Edward III, Colchester and the Flemings, 1351–1367, 99 Hist. 338 (Dec. 2014) (as a result of Edward III granting Flemish textile workers letters of protection, skilled artisans helped Colchester become an international center of textile production. These letters were similar to modern actions by legislatures to grant a private form of naturalization.

[6]   Luu, supra note 176, at 54:

The king to all his bailiffs … to whom … greeting. Know you that since John Kempe of Flanders, weaver of woollen cloths, will come to stay within our realm of England to exercise his mystery here, and to instruct and teach those wishing to learn therein, and will bring certain men, servants and apprentices of that mystery, we have taken John and his aforesaid men, servants and apprentices, and their goods and chattels into our special protection of defence.

[7]   Braid, supra note 169, at 23-24.

[8]   25 Edw. III Stat. 2 (1350).

[9]   Id.

[10]   Luu, supra note 176, at 1.

[11]   Frederik Pedersen, Trade and Politics in the Medieval Baltic: English Merchants and England’s Relations to the Hanseatic League 1370-1437, in Public Power in Europe: Studies in Historical Transformations 161 (James S. Amelang & Siegfried Beer, eds.), at 161-165.

[12]   Lawrence Stone, Elizabethan Overseas Trade, 2 The Eco. Hist. Rev. 30 (New Series, 1949), at 37:

The main difference from the situation 200 years before was that cloth had now replaced wool as the staple English export. In this year cloth alone comprised 78% of the total value of all exports, and all types of wool, wool-fells and clothing amounted to over 90%. … For all intents and purposes England exported clothing and clothing materials and nothing else.

[13]   Id. at 39.

[14]   Charles Mathew Clode, The Early History of the Guild of Merchant Taylors of the Fraternity of St. John the Baptist, London 78 (1888) (“From early times the foreign workmen pressed very heavily upon the native craftsmen, taking work from them and keeping down the price of wages.”).

[15]   Derek Wilson, Evil May Day 1517, 67 History Today 68 (2017) (the riot was likely sparked by an Easter sermon that demonized foreigners for depriving English natives of wealth). The rioters were mostly poor laborers, watermen, or journeymen apprentices in tanning and brewing companies.

[16]   Id. at 69, explaining that customs duties made up the largest part of the king’s ordinary income. The Tudor regime, therefore, had no interest in inhibiting trade by restrictive practices. Id. Henry VIII and Wolsey had other methods of extracting much-needed cash from the foreigners to fund the king’s early military adventures and heavy personal expenditure. Id.

[17]   Graham Noble, “Evil May Day”: Re-Examining the Race Riot of 1517, 2008 History Rev. 37 (Sep’t. 2008), at 39.

[18]   Luu, supra note 176, at 1 at xxiii.

[19]   Letters of Denization and Acts of Naturalization for Aliens in England 1509-1603 (1893), vii.

[20]   Lien Bich Luu, Migration and Change: Religious Refugees and the London Economy, 1550-1600, 8 Critical Survey 93 (1996), at 98 (as economic conditions, worsened in the late 1500s attacks on foreigners peaked). In 1573, foreigners sought protection from London officials, complaining that they “‘have been of late molested and euell entreted going into the strete about there busines, by servants and apprentices undiscretly and without order whereof hurt may ensue (quoted in original text).’” Id.

[21]   32 Hen. 8, c. 16, § 1 (1540) (Eng.).

[22]   Sir Francis Bacon, Three Speeches of the Right Honorable 19 (1641).

[23]   Stone, supra note 184, at 45 (1949).