Public Interest Law Center of Philadelphia

EMPLOYMENT DISCRIMINATION

JUDGE DENIES MOTION TO DISMISS ADVANCING CHALLENGE TO DISCRIMINATION AGAINST NURSES RECEIVING METHADONE TREATMENT
June 21, 2010 - The federal district court for the Middle District has denied the Commonwealth of Pennsylvania’s motion to dismiss claims against it, the State Board of Nursing and the Bureau of Professional and Occupational Affairs under the ADA and Rehabilitation Act for injunctive relief and damages in a case by a registered nurse denied her right to practice because she is using methadone to treat her opioid dependency. The nurse, Melinda Reynolds, has been suspended from practice until she is “weaned from” methadone, although the Complaint alleges that methadone does not impair cognitive function or limit mental capability, intelligence or the ability to maintain employment. Ms. Reynolds alleges that the state agencies have an unpublished policy—one that state agents call “secret”—of refusing to license or relicense as a nurse any person known to be participating in a methadone maintenance program. Because of the state’s action, Ms Reynolds, a widow with dependent children, has been forced to live in reduced circumstances for the past three years, working at minimum wages.

In reaching his decision, federal judge James M. Munley held for the first time that Title II of the ADA was a valid abrogation of 11th Amendment immunity in the circumstance of a state professional licensing decision. In 2004, the Supreme Court upheld Title II’s abrogation of 11th Amendment immunity in Tennessee v. Lane under the limited fact circumstances of access to courts. Subsequently in Roe v. Johnson, 334 F. Supp. 2d 415 (S.D.N.Y. 2004), a court applying Lane held Congress did not create a sufficient record of discrimination in licensing lawyers to validly abrogate immunity. Judge Munley instead applied the Third Circuit’s decision in Bowers v. NCAA, which held that “[t]he Court in Lane concluded that Congress had clearly identified a history and pattern of disability discrimination with respect to public services.” Bowers, itself, was briefed by the Law Center and its co-counsel. The Commonwealth defendants have filed a motion for reconsideration on this issue.

The decision granted the state’s motion to dismiss for claims addressed against individual members of the Board of Nursing in their personal capacity, so that they are not personally liable for any damages.

The motion was briefed and argued by Larry Berger of Shepherd, Finkelman, Miller & Shah, LLP with the assistance of Michael Churchill, on behalf of the Law Center. Former Law Center lawyers Barbara Ransom and Bessie Dewar previously provided important analysis in the case.
Read the Order

MINORITY OWNED BUS COMPANIES ALLEGE RACIAL DISCRIMINATION BY NJ DEPARTMENT OF TRANSPORTATION
The Law Center’s advocacy on behalf of several black-owned, Philadelphia-based bus companies progressed in February 2010 as the State of New Jersey asked the federal court to dismiss the plaintiffs’ claims. The lawsuit alleges that the New Jersey bus inspectors illegally discriminated against black-owned buses in running inspections in Atlantic City.

Working in conjunction with Dechert LLP and the Sterling Law Firm of Burlington, NJ, the Law Center’s Michael Churchill and Christopher Sousa seek to ensure that the plaintiffs’ have their day in court. While much of the work to date has been in establishing the inspectors' pattern of discrimination through admissible evidence and expert reports, the motion to dismiss focused on a number of legal questions that arise when suing government entities and officials. In replying to the state’s motion to dismiss, the plaintiffs’ team addressed the defendants’ misconception of the doctrines of sovereign and qualified immunity, and their misapplication of judicial abstention rules to the present case. Briefing continues on these questions, and a ruling is expected in March.

As the determination of these narrow legal issues progress, PILCOP continues with its work to build the plaintiffs' case. The Plaintiffs' team continues to conduct discovery, consult with outside experts, and analyze data in order to demonstrate how New Jersey inspectors abused their power to hurt black-owned bus companies. According to Michael Churchill, “the State’s attempts to delay and distract will not keep us from finding justice for our clients.”
Motion to dismiss filed November 2, 2009
Response filed January 4, 2010
Motion for leave to file Third Amended Complaint
Reply filed January 25, 2010

THE LAW CENTER COMMENTS ON PROPOSED GUIDANCE TO REDUCE EMPLOYMENT BARRIERS CAUSED BY CRIMINAL RECORD CHECKS
January 26, 2010 - at the invitation of the Pennsylvania Human Relations Commission (PHRC), The Public Interest Law Center of Philadelphia (the Law Center) submitted comments on PHRC's new proposed guidance regarding employers’ use of criminal records checks to exclude applicants. Under the guidance, the PHRC will presume that an employer’s policy of excluding applicants based on a record of a criminal conviction disparately impacts minority applicants. The guidance is based on the disproportionate impact of such policies on minorities, particularly in Pennsylvania. In its comments, prepared by the Law Center's Executive Director Jennifer Clarke and Deferred Associate Fellow Harry Moseley, the Law Center suggests modifications designed to encourage employers to tailor more carefully any use of such record checks.

One of the purposes for PHRC's Guidance is to encourage employers to adopt policies and practices that protect legitimate employment-related interests without discriminating against racial minorities and other protected classes. The Law Center's recommendations support this goal by strengthening the incentives for employers to adopt non-discriminatory policies:

1) Apply a presumption of disparate impact when an employer inquires into an applicant’s criminal record early in the hiring process.
The Law Center suggests applying the presumption of a disparate impact not only when there is a stated policy or practice of excluding individuals from employment on the basis of a prior criminal conviction, but also by assuming that when an employer inquires into an applicant‘s criminal history before making either a conditional offer of employment or granting an interview, there is such a policy or practice. This suggestion is based on principles in place in Hawaii and Minnesota. In May of 2009, Minnesota passed a bill that prevents public employers from inquiring about an individual‘s criminal record until after an interview has been offered. As explained by the Council on Crime and Justice‘ s President, and former Hennepin County, Minnesota Judge, Pamela Alexander: an "increase in criminalization combined with easier access to criminal records and heightened fear and scrutiny have created an entire class of people who are subject to permanent punishment …."

2) Define and clarify when a past crime is substantially related to a job.
Using this standard, PHRC should favorably view employers who narrowly tailor their inquiries to specific crimes or categories of crimes that they have determined are substantially related. We believe that the currently described standard is too vague and recommend that the PHRC adopt the standard contained in the New York statute cited in PHRC‘s memorandum: whether the conviction is directly related to the applicant‘s ability to perform one or more of the job‘s duties or responsibilities. This standard sharpens and clarifies the focus on the particular activities required in the position.

3) The Commission should not consider “applicant pool” data.
The current proposal allows an employer to rebut a presumption of disparate impact with information about the applicant pool. We agree with information presented in the proposed policy that information about the applicant pool is flawed because the power rests substantially with the employer to shape the applicant pool, and otherwise eligible candidates may be discouraged from applying for a position because of a known employer policy. Therefore PHRC should not allow employers to use applicant pool data to rebut a presumption of disparate impact.
PHRC's proposed policy and request for comments
The Law Center's comments

LAW CENTER CHALLENGES PENNSYLVANIA’S DISCRIMINATION AGAINST NURSES RECEIVING METHADONE TREATMENT
On November 4, 2009, the Law Center filed an Amended Complaint on behalf of our client M.R. against the Commonwealth of Pennsylvania and its State Board of Nursing for suspending her nurse’s license because she was using methadone to treat her drug dependency. Although a licensed LPN and RN for over 25 years M.R. has been unable to work as nurse since 2007 because the Commonwealth refuses to accept methadone maintenance treatment as an acceptable treatment for her drug dependency. The case was filed by Lawrence D. Berger of Shepherd, Finkelman, Miller, and Shah, LLP and the Law Center’s Michael Churchill. The lawsuit charges that the Commonwealth’s actions violate the Americans with Disabilities Act and the Rehabilitation Act by discriminating against persons with a disability, in this case drug dependency.

M.R. is seeking an injunction to force the defendants to discontinue their discrimination against nurses who participate in methadone maintenance programs and to recover damages that she has suffered as a result of their policy.

Methadone maintenance treatment is a legal treatment for opioid drug dependency and for many persons it is the only effective treatment. It is safe and does not affect a person’s mental health or employability. It also relieves the person from the cravings caused by addiction to opiate drugs, such as heroin. Persons who receive methadone maintenance treatment are able to participate in the nursing profession with no significant risk to their patients or co-workers. M.R. is currently part of a supervised rehabilitation program and is capable of safely performing her duties as a nurse while also taking part in methadone maintenance treatment.

The state defendants have implemented what the complaint calls a “methadone exclusion policy.” In this case the state’s own expert recommended that M.R. continue to receive methadone treatment, and the actual administrative order merely required her to receive drug treatment from an approved provider. Nevertheless, the defendants enforced their unpublished policy, refusing to license or relicense any nursing professional who is participating in a methadone maintenance program. Furthermore, they only approved drug treatment providers who do not use methadone maintenance as a treatment. Defendants include the Commonwealth of Pennsylvania (“Commonwealth”) and its related agencies, including the Department of State, the Bureau of Professional and Occupational Affairs, the Division of Professional Health Monitoring Programs, the State Board of Nursing, Basil L. Merenda, Commissioner of the Bureau, and members of the Board of Nursing.

M.R. seeks a declaratory judgment to examine the legality of the methadone exclusion policy implemented by the defendants. She believes that methadone maintenance treatment is a reasonable accommodation for her disability and that the defendants should not refuse to relicense her. Because the programs that relate to her relicensing receive federal financial assistance they are covered by Section 504 of the Rehabilitation Act, which states that no person with a recognized disability shall be discriminated against by any institution receiving federal financial assistance based solely by reason of his/her disability. The defendants are also considered “public entities” under Section 12132 of Title II of the ADA, which states that public entities shall not discriminate against a qualified individual based on his/her disability. M.R. also seeks to recover damages for her loss of income and for any legal fees.

AMICUS CURIAE BRIEF SEEKS TO PRESERVE THE LARGEST CLASS TO EVER FILE SUIT UNDER THE AMERICANS WITH DISABILITIES ACT

The Public Interest Law Center of Philadelphia joined forces with the Impact Fund and dozens of other disability rights advocates in an amicus curiae brief opposing UPS’s appeal of a class certification decision in a landmark disabilities rights case. Plaintiffs/appellees seek injunctive and declaratory relief for a class of up to 36,000 UPS employees. The complaint alleges that members of the class left work for medical reasons and were barred from further employment due to UPS’s “100% healed” policy that demands complete recovery for returning employees, even those who are otherwise able to perform essential job functions. Should the class withstand the appeal it would become the largest class to ever file suit under the Americans with Disabilities Act (ADA).

According to the complaint, so pervasive is the 100% rule that many such employees never even attempt to return to work. Those who do meet resolute refusal. Such was the case for a UPS package car driver from Ohio who seriously injured her arm when a dog attacked her on delivery. She tried to return to her job after her doctor cleared her to work, stipulating only that she drive a vehicle equipped with power-steering, a “limitation” that still allowed her to drive any but one of the trucks in the entire fleet. Despite her clear ability to perform essential job functions, UPS denied her employment on the basis of the 100% rule.

Not only does the appeal threaten the interests of tens of thousands of UPS workers, it could severely curtail the efforts of disability rights advocates to address harmful employment policies as it questions whether claims of discriminatory pattern and practice can ever be certified as a class action under the ADA. Defendant/appellant UPS argued in the appeal that, unlike race and gender, disability must be proved on an individual basis and that therefore individual issues predominate over common issues. Plaintiffs/appellees and amici countered that proof of UPS’s pattern and practice is common proof.

In the amicus brief the Law Center and its allies argued not only that the ADA expressly recognizes classes of disabled individuals, but that to deny the certification of such a class would be to deny the purpose for which Congress created the ADA: to protect the employment rights of disabled persons just as Title VII of the Civil Rights Act protects people of color, women, and religious minorities. The brief warns, “To preclude class adjudication would undermine the goals of the ADA and result in fragmentary, inconsistent, and burdensome litigation.”

The hearing took place before the Court of Appeals for the Third Circuit on November 20th, 2008 before Justices Scirica and Rendell, as well as retired Justice Sandra Day O’Connor.
Amicus brief supporting affirmance of class certification

PENNSYLAVANIA HUMAN RELATIONS COMMISSION: PROBABLE CAUSE TO CREDIT LAW CENTER CLIENT’S ALLEGATIONS OF GENDER AND RACE DISCRIMINATION AGAINST THE PHILADELPHIA HOUSING AUTHORITY

Law Center client Romani Abney was vindicated on October 7, 2008 when the Pennsylvania Human Relations Commission (PHRC) issued a finding of probable cause to credit her allegations that the Philadelphia Housing Authority (PHA) violated the Pennsylvania Human Relations Act when it failed to promote her to a position for which she was qualified and eventually constructively discharged her due to her race and gender. The PHRC also found probable cause to credit the allegations of Ms. Abney, an African American woman, that she was subjected to incidents of harassment forcing her to work in a hostile environment. These allegations amount to a violation of Section 5 of the Pennsylvania Human Relations Act, 43 P.S. 955.

In the facts described by the PHRC, Ms. Abney worked for PHA for two years as a graduate architect during which time she received exemplary evaluations and the support of her field supervisor. In 1999,Ms. Abney applied for a promotion to Project Engineer but the position was given to a Caucasian male coworker; Ms. Abney was informed that she did not possess the required experience. To strengthen her candidacy, Ms. Abney enrolled in a program to receive a B.A. in Architecture, while continuing to work in the same position at PHA. She also enrolled in several continuing education training programs. In January 2003, once she had gained the requisite experience, Ms. Abney reapplied and was rejected for the position of project engineer in January 2003. She applied and was rejected again in October 2003 and October 2004.

According PHRC’s finding of probable cause, PHA hired five project engineers during the years that Ms. Abney was applying for the position. Four of them were men; the sole female who was promoted to the position received it only after Ms. Abney had filed a complaint against PHA. In addition, PHRC noted that PHA had previously hired project engineers who did not posses either the degree or the on the job experience which PHA was requiring of Ms. Abney.

According to the PHRC’s findings, after Ms. Abney filed complaints against PHA, her supervisor began harassing her and creating a hostile work environment. Ms. Abney notified PHA of the harassment in November 2004 and again in January 2005. Ms. Abney’s situation became so unbearable that her doctor required her to take a work-related stress leave in January 2005 and suggested that she leave the job due to health concerns in May 2005. The mounting tension between Ms. Abney and her supervisor led to her constructive discharge on May 27th, 2005.
PHRC Finding of Probable Cause

LAW CENTER JOINS FORCES WITH OTHER CIVIL RIGHTS ORGANIZATIONS TO PROTECT ABILITY TO COMBAT EMPLOYMENT DISCRIMINATION WITH CLASS ACTION LAWSUITS

On October 31, 2007 an Amicus Brief was submitted to the Third Circuit Court of Appeals by the Law Center and three other organizations - The Impact Fund, The National Employment Lawyers Association, and The Lawyers' Committee For Civil Rights Under Law - charged, among other things, with protecting the civil rights of all people, and dedicated to representing employee clients and advocating for workplace fairness. As more fully described in the brief itself, Amici are interested in the case (GUTIERREZ, et al, v. JOHNSON & JOHNSON) because their clients' (or their members' clients') ability to enforce their civil rights may be significantly affected by this matter. Believing that the opinion of the district court, if permitted to stand, could have significant adverse consequences for their ability to present classwide challenges to unlawful discriminatory employment practices in violation of federal and state civil rights statutes, the organizations have submitted the brief which attempts to summarize the vast body of social scientific, statutory, and judicial authority supporting such classwide challenges as necessary and appropriate to combat unlawful discrimination.
Read the brief here

History of the Employment Discrimination Project

Ending employment discrimination, based on race, gender or disability, has been an important element of the Law Center's work since it was created out of the Lawyers' Committee for Civil Rights. Training lawyers to make Title VII of the Civil Rights Act of 1964 work effectively was one of the first projects of the Law Center. Indeed, the Equal Employment Opportunity Commission (EEOC) cited the pro bono training program established by the Law Center as exemplary and particularly effective.

Discrimination deprives the victim of significant monetary rights which in turn are the source of independence, self-esteem and security. Gains from employment provide sustenance for the individual and for family life. In this society, discrimination undermines the center of economic well-being.

Consequently, the Law Center undertook to attack the denial of jobs in important economic sectors of Philadelphia life.

A series of cases were brought focusing on the steel industry. The Law Center tried the class action against the U.S. Steel Company for discrimination in promotion to apprentice jobs and to first level management in Dickerson v. U.S. Steel. After trial and judgment for the plaintiffs, the case was settled for $2.8 million in damages and attorney fees. Richard Z. Freemann, Jr. led the team at Ballard Spahr Andrews & Ingersoll that tried the claim for discrimination in initial hires, in a case called Green v. U.S. Steel. The verdict in that case was for $42.5 million. William H. Ewing led a team at Epstein Connolly in a case against Lukens Steel, Goodman v. Lukens Steel Co., that went to the U.S. Supreme Court and resulted in an award of damages of $4.3 million.

Several individual cases on behalf of steel workers set important precedents, including Worthy v. U.S. Steel Corp.

Another series of cases targeted employment in the Philadelphia Police Department. The Law Center intervened on behalf of the Guardian Civic League in Commonwealth v. O'Neill, a case concerned with the hiring of African-Americans as police officers. In particular, the suit challenged the use of a rank order written exam for selecting officers. Eventually, settlement of that suit resulted in extending the class so that all qualified applicants were hired.

Subsequently, a new test was challenged in Freeman v. City of Philadelphia, and resulted in a decree requiring the hiring of African-Americans at the same percentage level as they were of all African-American test takers. The decree, challenged by the Federation of Police, was upheld on appeal. As a result of the litigation, African Americans increased from 12 percent to 35 percent of the police force.

In an individual action, Brace v. Philadelphia , Frank Finch of the Law Center represented Penelope Brace in an effort to open the police department to women police officers. Previously, they had been limited to juvenile aids. This matter consolidated with a later filed Justice Department case, resulted in women now being 25 percent of the force.

While at the Law Center, Luis Diaz brought Alvarez v. City of Philadelphia, on behalf of Hispanics excluded from the police force and the Law Center continued to provide assistance in litigating the case when he continued with the matter at the Latino Project.

Other suits in the public sector included a major class action against SEPTA for its discriminatory discharge practices. The four-week jury trial found no class-wide discrimination, despite evidence showing a discharge rate three times as great for minorities as for whites. The jury did find discrimination against three of the individual plaintiffs.

Two class-wide actions on behalf of persons who have 20/20 vision with glasses or contact lenses but were denied hiring as Philadelphia police officers and as Philadelphia firefighters were successfully settled. Class members ultimately were hired as police officers and firefighters. A subsequent suit against the state police was ultimately dismissed as the U.S. Supreme Court reinterpreted the Americans with Disabilities Act.

Finally, the Law Center and the Justice Department teamed up in Lanning v. SEPTA to challenge SEPTA's discriminatory practice of using a running test to exclude women as transit police. As a result of the test, SEPTA nearly totally excluded women as transit police. The test SEPTA used was more restrictive than that used by any other municipal or transit police force in the country, as well as the U.S. Army, FBI and DEA. The first time the case went to the Court of Appeals the Court remanded it to the District Court after ruling that a test could be used only if it tested what actually is needed to do a particular job. The District Court again found the test valid, although the test used average ability as a measure to pass various tests and not minimum ability. On the second appeal, the Bush Justice Department withdrew. One of the judges on the panel died after hearing the Law Center's oral argument but before the opinion was written. The Court ultimately upheld use of the test.