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September 2012 Archives

Sanchez v. Vilsack, No. 11-2118 (10th Cir. Sept. 19, 2012)

The Tenth Circuit joins other circuits and the EEOC in holding, under the Rehabilitation Act, that the required "reasonable accommodation" of persons with disabilities is not limited to accommodations related to the essential functions of a job. Here, the court holds that it may be a reasonable accommodation to transfer an employee to a major metropolitan area to enable her to get Medical attention. "Considering the case law from this court and others, we conclude that a transfer accommodation for Medical care or treatment is not per se unreasonable, even if an employee is able to perform the essential functions of her job without it."

Ibarra v. United Parcel Service, Inc., No. 11-50714 (5th Cir. Sept. 13, 2012)

The Fifth Circuit, applying 14 Penn Plaza LLC v. Pyett, 556 U.S. 249 (2009), holds that the UPS collective bargaining agreement did not "clearly and unmistakably" waive a driver's right to commence a Title VII sex discrimination suit.

Sheppard v. Evans And Assoc., No. 11-35164 (9th Cir. Sept. 12, 2012)

The Ninth Circuit reminds courts that the notice pleading standard for garden-variety employment discrimination cases remains low under Fed. R. Civ. P. 8, and that a simple three-page complaint can suffice.

EEOC v. United Airlines, Inc., No. 11-1774 (7th Cir. Sept. 7, 2012)

The Seventh Circuit today announces the overruling of its precedents, EEOC v. Humiston-Keeling, 227 F.3d 1024 (7th Cir. 2000) and Mays v. Principi, 301 F.3d 866 (7th Cir. 2002), that held employers had no duty to place employees who were losing their current positions due to disability into vacant positions for which they are otherwise qualified. The court holds that this interpretation of the ADA was superseded by the Supreme Court decision, U.S. Airways, Inc. v. Barnett, 535 U.S. 391 (2002), and that employers have a duty to transfer.

Dudenhoefer v. Fifth Third Bancorp, No. 11-3012 (6th Cir. Sept. 5, 2012)

The Sixth Circuit provides the first definitive, court of appeals decision on a recurring issue: is it a fiduciary act, subject to ERISA § 404(a)(1), for a plan fiduciary to incorporate (in this case, allegedly untruthful) SEC filings by reference in a Summary Plan Description, thus potentially misleading participants about the risk of investing retirement money in the employer's stock fund? The Sixth Circuit holds that it is.

George v. Junior Achievement Of Central Indiana, Inc., No. 11-3291 (7th Cir. Sept. 4, 2012)

The Seventh Circuit weighs in on an ERISA issue dividing the circuits: Do participants' informal complaints about plan-related issues constitute protected activity under Section 510, 29 U.S.C. §1140? With a thoughtful parsing of the language, the panel holds that such complaints do trigger the protections of Section 510.

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