November 2021

2022 litigation trends to watch

Covid and the workplace are set to collide in the new year.

As we look around the corner to 2022 trends that will matter, it’s safe to say Covid-related issues will continue to dominate headlines — and workplaces. Workplace Covid policies and new remote work realities may make employers more vulnerable to class claims. Some experts predict increased case work due to two related developments:

Workplace vaccine mandates will inspire lawsuits

According to Bloomberg Law*, “In 2022, plaintiffs’ attorneys will continue to advance creative theories challenging vaccine mandates, exemption policies, and exemption request decisions, driving up the number of ADA cases.”

Courts have ruled that employers can mandate vaccines if exemptions are provided for religion and disability. These exemptions are now the subject of fierce debate. Two pending examples:

• • Barrington v. United Airlines, filed in U.S. District Court in Colorado. An operations supervisor and 30-year employee of the airline, Jayme Barrington opposes United’s vaccine mandate on religious grounds and claims it violates federal Title VII and state anti-discrimination laws. United declined her religious exemption claim, and Barrington says she fears suspension. In October, the company fired over 200 workers for not complying with its vaccine mandate.
  • Stefaniak v. Enlivant et al, filed in U.S. District Court in Pennsylvania. Plaintiff Dorota Stefaniak, an employee of an assisted living community corporation, seeks relief from a vaccine exemption denial under the federal Americans with Disabilities Act.

Increasing requests for telework accommodations

After nearly two years of working from home, many people find employer demands to return to the office intolerable, sometimes due to a disability. Look for an increase in employee requests for disability and health accommodations that allow them to remain in a home office, and likely an increased willingness by the courts to view remote work as a reasonable accommodation for ADA-covered conditions.

Current cases follow telework denials across a broad range of mostly white-collar occupations. Examples include:

• • A South Carolina teacher in a high-risk category sued her school district when it suspended her after allegedly failed to consider her request to work from home.
  • A New Hampshire nonprofit manager with prostate cancer sued after his request for remote work was denied.
  • A Georgia professor with lung and heart conditions began an EEOC discrimination charge after her request for telework was denied.
  • A New York investment firm lawyer with underlying health conditions claimed wrongful termination after refusing to return to the office.
  • A West Virginia county worker with COPD was allegedly terminated after she requested telework and other accommodations.

Some health accommodations requests will arise as exemption claims from workplace vaccine mandates. Because mandates apply to the entire workforce, employers become more vulnerable to class claims as like-minded employees organize themselves into group actions.

How background investigations can help employment litigation cases

For employers, companies often need assistance with background investigations, which can discourage frivolous lawsuits and the advancement of claims motivated by other factors.

When supporting employees, individual employees often need evidence that shows a pattern in the way an employer treats their employees.

A thorough background investigation, including an asset search, can reveal:

• • An unsupported claim. If a health exemption is claimed, is it supported or undermined by other publicly-available information about them?
  • A litigious plaintiff. Has a plaintiff brought up this complaint before? Do they tend to sue employers or companies in general? Is there anything in their background that would make them less credible?
  • Prior allegations of mistreatment. What have employees accused the company and its executives of doing in the past? Are there former employees who have experienced some kind of discrimination?
  • A plaintiff motivated by financial need. While not as common in these types of employment claims, plaintiffs seeking damages can sometimes be looking for a way out of financial troubles. A recent foreclosure, for example, could be a red flag.
  • A more advantageous jurisdiction. Plaintiffs who sue an employer from certain jurisdictions may have ties to a jurisdiction that’s more favorable for the employer. We find possible ties and help companies make the case to move the claim there.

If 2022 finds you with increased employment litigation work, contact us for a confidential, no-cost consultation to discuss how private intelligence can support your efforts. Email [email protected] or call 415-905-0462.

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*Bloomberg Law 2022 — Litigation