School
Law
School
District
Violates Teacher’s Free Speech Rights.
A Federal
court in California
held that a school district violated a high school teacher’s
right to free speech when it forced him to remove banners
from his wall with messages that could be construed as containing
religious content. The banners
contained phrases such as “In God We Trust”
and “God Shed His Grace On Thee.”
Because the district had a policy permitting its
teachers to express ideas and concepts on their classroom
walls, the Court classified the walls as “limited
public forums.” The Court
noted that where the government has designated an area of
public property specifically for the expression of ideas,
it “may not exclude speech where its distinction is
not reasonable in light of the purposes served by the forum,
nor may the government discriminate against speech on the
basis of its viewpoint.” Johnson
v. Poway Unified School District.
Thus,
a school district should be mindful that when it has dedicated
space for the expression of ideas, the regulation of that
speech must be reasonable and unrelated to the content of
the speech.
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| Know
Your Obligations as an Employer
Sexual
Harassment Seminars:
We
provide training in compliance with AB 1825’s
requirement that employers with 50 or more employees
provide sexual harassment prevention training for
its supervisory employees.
Family
and Medical Leave:
Lynberg
& Watkins also provides seminars on how to properly
administer leaves of absence pursuant to FMLA and
CFRA and how these leaves interact with maternity
and other leaves of absence. |
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| Limits
on Display of Student Piercings Held Constitutional.
The 11th
Circuit Court of Appeals (with jurisdiction over the states
of Alabama, Georgia
and Florida)
concluded that a school policy restricting where students
could display body piercings did not violate its students’
free speech rights. Unlike in
the case noted above, this Court concluded that the restrictions
were reasonable in light of the district’s goal of promoting
student safety and personal hygiene, and noted that students
had alternative methods of communication available.
Bar-Navon v. Brevard
County Sch.
Bd.
PRACTICAL
TIP: When
enacting rules that restrict student speech or expression,
school districts should ensure that the restrictions are
not based on the content of the speech or expression and
are related to a reasonable pedagogical goal.
Employment Law
ADA
Amendments Act of 2008 (ADAAA) Goes Into Effect January
1, 2009.
The
ADA Amendments Act of 2008 (ADAAA) will place new federal
obligations on employers with respect to their dealings
with disabled workers. However,
with respect to California employers, the effect of these
changes will be much less significant inasmuch as the California
Fair Employment and Housing Act is already more protective
of employees’ rights. Nevertheless,
employers should discuss with counsel how the ADAAA
may alter their obligations to employees.
PRACTICAL
TIP:
A great deal of the litigation arising out of an alleged
failure to accommodate a disabled employee focuses upon whether
the employer fulfilled its duty and obligation to properly
engage in the interactive process with the employee.
It is therefore imperative that the interactive process
commence as soon as practicable. This
goal is aided by the creation of very explicit and specific
policies and procedures. We suggest
that employers provide a written form to the employee to complete
requesting specific information concerning the nature of the
employee’s disability, how the disability impacts the
employee’s ability to perform the essential job functions
of his/her position, the nature of any accommodations the
employee is requesting, medical information concerning treatment,
and any other information that could assist in the assessment
of the disability and the determination of appropriate accommodations.
If you would like a sample of such a form, please e-mail your
request to rottaiano@lynberg.com.
Employer
Has Duty to Accommodate Employees with Obvious Disabilities.
The
Federal 2nd Circuit Court of Appeals has held
that, while generally under the ADA
an employer is not liable for failing to accommodate an
employee’s disability where the employee did not request
an accommodation, an exception exists where the employee
is obviously disabled. In the
case of Brady v. Wal-Mart Stores, the court
held that Wal-Mart violated the ADA
when it failed to accommodate Brady, who had cerebral palsy,
although he did not request an accommodation.
The court reasoned that Brady’s disability
was obvious in that Wal-Mart knew or should have known that
Brady was disabled since he walked slowly and with a limp,
spoke slowly and quietly, had weaker vision and a poor sense
of direction, among other things.
This means
that an employer must initiate the interactive process and
seek to accommodate employees who have obvious disabilities.
Thus, even though an employee with an apparent disability
makes no request for an accommodation, under the ADA it is
necessary to err on the side of caution by being proactive
and initiating the process. Fired
Disabled Bus Driver Awarded $2.2 Million.
A
Los Angeles
jury recently awarded a terminated MTA bus driver $2,247,137
for past and future damages. Plaintiff
became disabled while employed as bus driver.
He informed the MTA that he was expected to be released
to return to work without restrictions on a date certain.
However, the MTA terminated his employment just days
before he was scheduled to return.
The jury returned a verdict for Plaintiff and believed
Plaintiff’s experts who testified that he was able
to perform the essential duties of his job, or some available
alternative job. The jury determined
that plaintiff’s physical condition was a motivating
factor in the decision to terminate, that the MTA failed
to engage in a good faith interactive process and that it
failed to provide reasonable accommodation for his physical
condition.
Although
this case is subject to post-trial motions and possible appeals,
it is a reminder of the sizable verdicts that juries can and
do award in employment discrimination cases.
As previously mentioned, it is always best to initiate
the interactive process and seek to accommodate a disabled
employee whenever there is an indication of disability.
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