More Penn State Fallout--Former Coach McQueary Files Whistleblower Suit

And so the PSU/Jerry Sandusky/Joe Paterno saga continues.  At some point it will become clear to the people at PSU that they can't win for losing.  Specifically, there are no good choices for the University at this point, only increasingly bad ones.

I suppose this latest lawsuit could be assessed in terms of people and institutions getting what's coming to them--Penn State allowed itself to become a karmic black hole, and so therefore it should expect noxious consequences for some time.  But this is also a very good example of how a bad management culture can create effects that reverberate long after the principal miscreants have left the scene.  

The failure of the University to deal with the former coach's reporting Sandusky abusing a child ten years ago continues to create fallout for the school.  That initial failure led to the school removing the coach when he ultimately was identified as the key witness against Sandusky (and Joe Paterno).  It was clear that McQueary couldn't continue at PSU under the circumstances.  But it was also clear that his termination was fraught with legal difficulties for the school.  

Damned if you do and if you don't--the only way for PSU to avoid a lawsuit was to reach some kind of severance agreement.  Agreement has been in limited supply in State College lately.

When 40 hours A Week Is Enough

A recent case out of the Fourth Circuit Court of Appeals provides a useful analysis for assessing disability claims and what an employer has to do to accommodate them.

The case involves an employee who suffered a string of health problems, culminating in an extended absence from work. When the employee returned, his doctor precluded him from working more than eight hours a day, and 40 hours per week. Because the employer was using a rotating 12 hour shift system, it determined that it could not reemploy the employee, but also maintained that because he was able to work a normal week, the limitation on overtime did not qualify him as "disabled" under the Americans with Disabilities Act.  Thus, no accommodation was required.  Ultimately, the employee's physician certified him to work up to 10 hours a day, four days a week.

Eventually, the company (working with the employee's union) fashioned a position that was described in the opinion as being an eight hour a day job, plus overtime. But the employee sued under the ADA, claiming disability discrimination for the period during which the company refused to employ him.  Note to employers--just because you go out of your way and bend over backwards to help one of your workers doesn't mean he still won't be an ungrateful wretch and sue you anyway.

Fortunately, justice prevailed.  In affirming the dismissal of the employee's case, the Fourth Circuit initially determined that it would consider the act of working to be a major life activity for purposes of its analysis. That assumption does an important thing-it makes this opinion applicable to the 2008 amendments to the ADA, which categorically state that working is a major life activity. The court then decided that an inability to work overtime is not a substantial limitation on an individual's ability to work, and therefore does not qualify as a disability. Note that this is true even though the employee's inability to work overtime absolutely precluded him from working the specific job that he wanted with his employer.

This decision, which reinforces the holdings in a number of other federal circuit courts, is noteworthy because it helps shape the analysis employers have to use when determining whether there is a need to accommodate a claimed disability, and how far they have to go to do so. It represents a straight forward, common sense application of the statute.