Disability Rights Organizations Voice Support for Class Action on Behalf of Disabled Foreign Service Applicants

A consortium of more than 100 national, disability-related organizations joined in support of the class action which was certified in September 2010, seeking to end the United States Department of State’s practice of discrimination against people with disabilities, records of disabilities, and perceived disabilities in the hiring process for Foreign Service Officers. At the request of the State Department, the class certification decision in Meyer v. Clinton (Department of State), a case brought by Bryan Schwartz Law, is currently under review by the United States Equal Employment Opportunity Commission (EEOC).

The Consortium for Citizens with Disabilities wrote to the EEOC, addressing the State Department’s so-called “worldwide availability” policy, which required that applicants prove they are able to work at more than 250 diplomatic posts worldwide, without reasonable accommodations of any kind or need for ongoing medical treatment, before being hired into the Foreign Service. Thus, for example, an applicant (like the Class Agent, Ms. Meyer) who the State Department admitted was able to work at more than 85% of posts without any accommodations, could not be hired, at all, into the Foreign Service, without undergoing a special “waiver” process to prove he or she had “extraordinary qualifications” not required of other, non-disabled applicants. Only a tiny fraction of disabled applicants receive Foreign Service jobs after this discriminatory “waiver” process.

Though numerous court and EEOC decisions have found the application of the “worldwide availability” requirement unlawful, it has never been addressed on a class-wide basis. The Consortium’s letter stated, “The time has come to stop handling these challenges to a discriminatory policy piecemeal – and to address head-on the whole ‘worldwide availability requirement’ as implemented.”

Bryan Schwartz, attorney for the Class Agent, stated, “This support of the organized, disability rights community is critical. This Consortium is a major stakeholder in the EEOC’s performance of its mission to eliminate workplace discrimination, and I hope the EEOC will take the Consortium’s well-reasoned amicus letter very seriously – as it should.”

For more information about Meyer v. Clinton, contact Bryan Schwartz.

The complete letter reads as follows:

April 27, 2011
Carlton M. Hadden, Director
Office of Federal Operations
U.S. Equal Employment Opportunity Commission
One NoMa Station
131 M Street, NE
Suite 5SW12G
Washington, DC 20507

Re: Amicus Letter in Support of Opposition to the Agency’s Appeal of Class Certification Decision in Meyer v. Clinton, OFO No. 07-2011-007; EEOC No. 570-2008-00018X

Dear Director Hadden:

The Rights Task Force, the Employment and Training Task Force and the International Task Force of the Consortium for Citizens with Disabilities (CCD) submit this amicus letter in support of the opposition to the agency’s appeal of the class certification decision in the above-referenced case. This case challenges the State Department’s practice, under its “worldwide availability” policy, of banning people with a variety of disabilities from Foreign Service officer positions.

The CCD is a coalition of more than 100 national disability-related organizations working together to advocate for national public policy that ensures full equality, self-determination, independence, empowerment, integration and inclusion of children and adults with disabilities in all aspects of society. The mission of the Rights Task Force of the CCD is to focus on civil rights and protections for people with disabilities, and for enforcement of rights provisions by federal agencies. The Employment and Training Task Force works on issues relevant to the employment of people with disabilities, particularly issues related to the programs and projects funded under the Rehabilitation Act of 1973, as amended. The International Task Force advocates for United States and international policies which promote the rights and inclusion of persons with disabilities worldwide. Accordingly, the undersigned task forces of the CCD have an especially strong interest in the issues presented by this case, including ensuring the exacting implementation of federal employment policy that maximizes the employment opportunities for Americans with disabilities.

We urge the Commission to uphold certification of the proposed class in this case. The State Department’s worldwide availability policy negatively affects hundreds of employees and job applicants, and needlessly deprives the country of the tremendous public service that could be provided by these outstanding job candidates. In urging this case go forward as a class action, we simply seek to advance the EEOC’s rallying cry that “[t]he Federal Government shall be a model employer of individuals with disability.” 29 CFR 1614.203(a).

Class complaint processing is appropriate because this case meets all of the criteria set forth by the Commission in 29 CFR 1614.204. In addition, this case focuses on a “broad pattern of workplace discrimination,” which is exactly the type of case that the Commission targeted when adopting its current regulations for class complaint processing. As the Commission confirmed in 1999: “[c]lass actions play a particularly vital role in the enforcement of the equal employment laws. They are an essential mechanism for attacking broad patterns of workplace discrimination and providing relief to victims of discriminatory policies or systematic practices.” 64 Fed. Reg. 37651 (1999).

The time has come to stop handling these challenges to a discriminatory policy piecemeal – and to address head-on the whole “worldwide availability requirement” as implemented.

Respectfully submitted,

CCD Rights Task Force Co-Chairs:

Mark Richert
American Foundation for the Blind

Curt Decker
National Disability Rights Network

CCD Employment and Training Task Force Co-Chairs:

Cheryl Bates-Harris
National Disability Rights Network

Alicia Epstein
NISH

Susan Goodman
Down Syndrome Congress

Charlie Harles
Inter-National Association of
Business, Industry & Rehabilitation

Susan Prokop
Paralyzed Veterans of America

Paul Seifert
Council of State Administrators of Vocational Rehabilitation

CCD International Task Force Co-Chairs:

David Hutt
National Disability Rights Network

Deb Ziegler
Council for Exceptional Children

cc: Kimberly A. Jackson, Agency Representative
Office of the Legal Advisor, Department of State
Email: Jacksona2@state.gov

Bryan J. Schwartz
Bryan Schwartz Law
Attorneys for Class Agent and the Class
Email: Bryan@BryanSchwartzLaw.com

Joseph V. Kaplan
Passman & Kaplan, PC
Co-counsel
Email: jkaplan@passmanandkaplan.com

State Department Disability Class Action - Announcement

Check out Bryan Schwartz Law's new website:

www.StateDepartmentDisabilityClass.com

ATTENTION

If you are a current or former employee of or applicant to the United States Department of State Foreign Service with a disability, a record of a past disability, or a condition perceived by the State Department as a disability:

Were you denied Class 1 medical clearance?

Have you been denied desirable or prestigious State Department posts because of your medical condition?

Have you been denied reasonable accommodations for your disability?

Have you been harmed by the so-called "worldwide availability" requirement?

If your answer to any of these questions is "Yes" you may have a discrimination claim to bring immediately against the State Department.

If the State Department’s Office of Medical Services (MED) denied your Class 1 clearance, affecting your employment with another Government agency, you may also have a claim.

Bryan Schwartz Law has certified a nationwide class of applicants to the Foreign Service who were denied Class 1 medical clearance based on their supposed lack of "worldwide availability," which is currently being reviewed by the United States Equal Employment Opportunity Commission. Click here to read this momentous decision: http://www.bryanschwartzlaw.com/Meyer%20class%20certification%20decision.pdf

You must file an EEO claim with the State Department within 45 days of any unfavorable action you believe is related to your disability, record of a disability, or perceived disability, by contacting the State Department’s Office of Civil Rights: http://www.state.gov/s/ocr/ or by email: socr_direct@state.gov

Contact Bryan Schwartz Law or co-counsel, Passman &  Kaplan, PC, today if you believe you might have a claim!

Bryan Schwartz

Bryan Schwartz Law

180 Grand Avenue, Suite 1550

Oakland, California 94612

Tel. (510) 444-9300

Fax (510) 444-9301

Email: Bryan@BryanSchwartzLaw.com

Website: www.BryanSchwartzLaw.com

Joseph Kaplan

Passman & Kaplan, PC

1090 Vermont Avenue, Ste. 500

Washington, DC 20005

Tel. (202) 789-0100

Fax (202) 789-0101

Email: JKaplan@PassmanandKaplan.com

Website: www.PassmanandKaplan.com

Kasten v. Saint-Gobain - Is the United States Supreme Court Becoming Pro-Employee?

There is a lot of talk about the Supreme Court’s pro-business bent during the current Chief Justice’s tenure. For example, see “Justices Offer Receptive Ear to Business Interests,” The New York Times, December 18, 2010 (http://www.nytimes.com/2010/12/19/us/19roberts.html). A leading Supreme Court advocate for business interests, Carter G. Phillips, who represents the Chamber of Commerce and argues more Supreme Court cases than any active lawyer in private practice, is said to have boasted recently: “I know from personal experience that the chamber’s support carries significant weight with the justices….Except for the solicitor general representing the United States, no single entity has more influence on what cases the Supreme Court decides and how it decides them….” (Republished in http://www.dailykos.com/story/2011/03/14/956322/-The-SCOTUS,-the-Chamber-of-Commerce,-and-a-Code-of-Conduct). The low point for those concerned with corporate excesses infecting the Supreme Court was the January 10, 2010, Citizens United v. Federal Elections Commission decision (http://www.law.cornell.edu/supct/html/08-205.ZS.html), holding that election laws cannot restrict independent campaign expenditures by corporations, construing such as an improper restriction on free speech precluded by the First Amendment. The Citizens United case was essentially grounded in the notion that corporations are entitled to protection of their individual liberties, like human beings.

But, notwithstanding the early returns, so to speak, we should be careful not to judge the Roberts court too soon. People change…maybe. In any event, in Kasten v. Saint-Gobain Performance Plastics Corp., No. 09-834 (March 22, 2011) (http://www.supremecourt.gov/opinions/10pdf/09-834.pdf), the Supreme Court got one right, when they very easily could have gotten it wrong, if the Court was indeed inherently skewed to corporations. While I would like to see the result as a product of brilliant advocacy by my former firm, Nichols Kaster (www.nka.com), who represented the Petitioner – which, no doubt, it was – I would like even more to see the result as evidence of fairness toward America’s workers that will manifest itself in important upcoming decisions. Time will tell.

In Kasten, the employee brought an anti-retaliation suit against his former employer, Saint-Gobain, under the Fair Labor Standards Act of 1938 (FLSA), which provides minimum wage, maximum hour, and overtime pay rules; and which forbids employers “to discharge . . . any employee because such employee has filed any complaint” alleging a violation of the FLSA, 29 U. S. C. §215(a)(3). (Saint-Gobain had violated the FLSA by placing timeclocks in a location that prevented workers from receiving credit for the time they spent donning and doffing work-related protective gear.)

The employee said he was discharged because he orally complained to company officials about the timeclocks. The District Court and Seventh Circuit rejected the employee’s claims, concluding that the FLSA’s anti-retaliation provision did not cover oral complaints – i.e., that orally complaining is not “fil[ing] a complaint” which engenders the statute’s protection. The Supreme Court vacated the summary judgment against the employee, and remanded to the Seventh Circuit, with not only Justice Kennedy, but Justices Roberts and Alito in the majority, along with Justices Ginsburg, Sotomayor, and Breyer. (Kagan sat out.) Only Justices Scalia and Thomas voted to affirm the Seventh Circuit’s narrow – but not insane – construction of the FLSA, i.e., that the protection from retaliation against a worker who has “filed any complaint” only relates to written complaints.

The Supreme Court found that there was at least one dictionary definition which allowed the possibility that the term “file” a complaint encompassed an oral complaint, stating, “This possibility is significant because it means that dictionary meanings, even if considered alone, do not necessarily limit the scope of the statutory phrase to written complaints.” This was so, even though “[f]ilings may more often be made in writing.” In other words, the Supreme Court grabbed hold of any possibility that the statute could be construed in a way to benefit employees, and chose to construe it in this most protective manner.

Likewise, the Court acknowledged that to “file any complaint” was not language as broad as other language in statutes, which expressly encompassed oral complaints, but admitted a different possibility – “that Congress did not believe the different phraseology made a significant difference in this respect.” The Court concluded, “The bottom line is that the text, taken alone, cannot provide a conclusive answer to our interpretive question. The phrase ‘filed any complaint’ might, or might not, encompass oral complaints.” Again, the Supreme Court gave the employee, Kasten – and all employees – the benefit of the doubt.

In law school, we learn that on summary judgment, the non-moving party is supposed to receive this sort of benefit of all presumptions, and that our system of justice favors the right of parties to be fully and fairly heard. In practice, however, employees’ advocates have wondered if the Supreme Court might be moving toward summary dispositions more often against our clients. In Kasten, though it was not a case about the summary judgment standard, the High Court also reinvigorated the idea of giving plaintiffs a chance to be heard.

Most importantly, the Court rested its holding on the underlying purpose of the FLSA, asking rhetorically, “Why would Congress want to limit the enforcement scheme’s effectiveness by inhibiting use of the Act’s complaint procedure by those who would find it difficult to reduce their complaints to writing, particularly illiterate, less educated, or overworked workers?” The Court suggested that “broad rather than narrow protection to the employee” was intended under the FLSA. While holding that employers need to be given “fair notice” of wage complaints to serve as a condition precedent for a retaliation complaint, the Court held that the standard can be met by oral complaints, as well as by written ones.

Predictably, Justices Scalia and Thomas provided a lengthy dissent giving employers the way out – going so far as to argue that “complaints” only cover an “official grievance filed with a court or an agency, not oral complaints.” Their interpretation ignores the purpose of the FLSA and the realities of the workplace – where most workers subject to wage violations are unsophisticated, and can suffer reprisal long before they make it to a court or government entity with their concerns.

But, the importance of Kasten is not that two justices on the farthest right margin of the Court did not side with employees – but rather, that all of the other justices did the right thing. In the coming months, the Court will decide important cases for employees – the AT&T Mobility v. Concepcion and the Wal-Mart v. Dukes matters, which will resolve, for all practical purposes, to what extent class actions are available to employees (and others) whose rights have been violated. Will employees have the opportunity to level the litigation playing field with employers possessing far superior resources, preventing employers from dividing and conquering, and limiting the windfall employers receive because so few employees have the resources and courage to step forward alone? Indeed, the Court heard oral argument in the Wal-Mart v. Dukes case last week, and Justice Scalia again was transparent in his disdain for the employees’ case. Let us hope that, once again, in deciding these cases, as in Kasten, Justices Scalia and presumably Thomas will be in the dissent, and the rest of the Supreme Court again will consider, first and foremost, how workers in America will be affected every day by the decisions they render.