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Risk management is an essential function of many human resource professionals. At times, the role requires an assessment of the legal risks of certain employment decisions. As the 8th U.S. Circuit Court of Appeals recently noted, the risks of litigation from a deceased former employee can extend far longer than one might expect.
As alleged by his estate, Semmie John Guenther oversaw construction projects throughout Arkansas and Texas for Griffin Construction from 2008 through 2013. In the spring of 2012, he was diagnosed with prostate cancer. In 2013, he learned that the cancer had spread throughout his body. He notified Griffin that he would need to take a three-week leave of absence to undergo radiation treatment. In response, Griffin terminated Guenther's employment and advised him that he could reapply for job openings in the future.
About two months after his termination, Guenther filed a charge of disability discrimination with the Equal Employment Opportunity Commission (EEOC). He died in 2014 while the charge was pending. Approximately one year after Guenther's death, the EEOC found probable cause that unlawful discrimination had occurred and issued a right-to-sue notice. Guenther's estate filed a disability discrimination lawsuit under the Americans with Disabilities Act (ADA) and Arkansas state law against Griffin.
Griffin filed a motion to dismiss the lawsuit, arguing that Arkansas law established that the claims did not survive Guenther's death. The federal district court agreed. In that the ADA is silent on the issue, the court found it appropriate to rely on Arkansas state law to determine whether ADA claims may survive a plaintiff's death. Guenther's estate, with the assistance of the EEOC, appealed the decision.
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In reversing the decision of the lower court and restoring the ADA claim, the appeals court addressed the question of whether the survival of ADA claims by deceased plaintiffs should be determined by state law or a uniform federal law. As noted by the court in reflecting that either source of law could be appropriate, "Whether to adopt state law or create a uniform federal rule is a matter of judicial policy dependent upon a variety of considerations always relevant to the nature of the specific governmental interests and to the effects upon them of applying state law."
The appeals court sided with the establishment of a uniform federal law that allows for ADA claims to proceed after the death of the plaintiff. Because the ADA seeks to protect those with serious health issues that "makes it more likely that the aggrieved party will die before the case is complete," the appeals court decided that to hold to the contrary would pose "a special threat to enforcement" of ADA protections. The appeals court restored the case and sent it back to the district court for further proceedings.
Guenther v. Griffin Construction Co., 8th Cir., No. 16-1760 (Jan. 19, 2017).
Professional Pointer: Proper risk assessment can be essential in managing HR matters. Misunderstanding the potential liability of employment decisions can lead to costly and protracted litigation.
Scott M. Wich is an attorney with the law firm of Clifton Budd & DeMaria LLP in New York City.
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