MELA, the Maryland affiliate of the National Employment Lawyers Association, advances employment rights and serves lawyers who advocate for equality and justice in the workplace.
Guest Blogger
MELA invites its members to submit a short commentary on employment issues of interest to the legal community and clients.
December 8, 2009
The MELA Conference on December 4, 2009, was terrific. Participants appreciated the range of topics and the substance. Two of our presenters provided materials to be posted here. Laurie A. McCann's thorough update on the Age Discrimination in Employment Act was accompanied by a summary of recent case and other developments. You can access her update here. John Singleton's talk on case selection gave excellent practical advice on the fine art of evaluating the right matters to accept, his outline is here.
September 15, 2009
Maryland Court of Appeals Faces Important Disability Case
The Maryland Court of Appeals heard oral argument on Thursday, September 10, 2009, in the case of Meade v. Shangri-La Ltd. P’ship, No. 128, Sept. Term 2008. Larry Kaye argued the case on behalf of Ms. Meade, for whom I wrote the brief.
The Questions Presented were:
1. Should Maryland courts restrictively interpret a county ordinance prohibiting discrimination on the basis of handicap in pari materia with the Americans with Disabilities Act as construed by the United States Supreme Court in Sutton v. United Air Lines, Inc., 527 U.S. 471 (1999) and Toyota Motor Mfg., Ky., Inc. v. Williams, 534 U.S. 184 (2002), where Congress has declared that Sutton and Toyota Motor Mfg. are contrary to the original intent and meaning of the ADA and has legislatively overruled those decisions?
2. Should Maryland courts construing remedial legislation prohibiting discrimination on the basis of disability or handicap reject, as Congress has, the standards enunciated by the Supreme Court in Toyota Motor Mfg. that the terms “substantially limits” and “major life activity” in the definition of disability under the ADA “need to be interpreted strictly to create a demanding standard for qualifying as disabled”?
An excellent Amici Brief was filed on behalf of the Public Justice Center, MELA and MWELA (along with other amici) in support of Ms. Meade.
The judges were Eldridge (sitting by designation), Greene, Harrell, Bell, Battaglia, Adkins, and Raker (sitting by designation). Judge Murphy had been on the Court of Special Appeals panel reversing the jury’s verdict in favor of Meade on the grounds of Sutton and Toyota. We do not know why Judge Barbera recused herself.
I thought that the questioning was tougher than expected, particularly from Judge Adkins, although she asked tough questions both ways. Judge Adkins seemed particularly troubled by the notion that if Ms. Meade’s latex allergy is a disability, then there is no limit to what constitutes a disability. Judge Adkins and Judge Raker also seemed concerned that the plaintiff had not specified each of her “major life activities” that were at issue at trial, so that everyone down the road did a post hoc and speculative analysis to justify their desired result. Judge Adkins also seemed to take issue with whether “parenting” could constitute a major life activity. No judge was particularly interested in the non-issue of the “retroactivity” of the ADA-AA. Indeed, Judge Adkins suggested to the School’s counsel that since the statute at issue is remedial, the court should apply the law at the time of the appeal. Finally, it was striking that, with the exclusion of one question, all questions were asked by the three female judges.
Both Rebecca Strandberg and John Ates, who attended the oral argument (thanks!), predict that Ms. Meade will prevail, although they differ on what grounds.
MELA was involved as an amicus (Friend of the court) supporting the victim of sexual harassment in the case Ruffin Hotel Corporation of Maryland, Inc. v. Gaspar, now pending in the Court of Appeals. The brief was prepared by the Public Justice Center, and focused on explaining the culture of discrimination as involving more than isolated actions between two individuals. The discrimination victim appealed on the issue of the exclusion of certain evidence of prior acts of discrimination and retaliation.
The appendicesto the brief contain sociological and other studies supporting the arguments in the brief.
March 5, 2009
Our Vice-President, Mary Keating, asked me to write a little something about the history of the Maryland Employment Lawyers Association. I am proud of the fact that I started this organization, together with the late & great Gary Simpson. We did so in response to a request by the founder of the National Employment Lawyers Association (NELA).
We initially met in either my office in Rockville or Gary's office in Bethesda. Virtually every state had an affiliate with NELA except Maryland ---probably because our State case law provided virtually no relief at that time for arbitrary adverse action against employees and the suburban Maryland employment lawyers were well served by the D.C. Chapter, which included the entire Metro area, then as it does now, with a lot of DC based lawyers handling employment cases in Montgomery and Prince Georges County, but most of the cases in those days were in the Circuit Court for Montgomery County.
From the beginning, we tried to make the organization state-wide as best we could. We invited lawyers from Baltimore & Columbia (there were no lawyers practicing employment law elsewhere in the State of whom we were aware) to join and many did. Our first state wide meeting was in Columbia in 1992 or 1993 and 11 lawyers attended. We subsequently held meetings in Baltimore & in Rockville and our membership grew to about 20-25 lawyers state-wide. Other than organizational concerns, one priority was to submit amicus briefs to the Maryland Court of Appeals in employment cases. Another was to assist any lawyer who had appellate arguments in that court and in the Maryland Court of Special Appeals to prepare by hosting moot courts. I myself wrote the first amicus brief for MELA in Weathersby v. Kentucky Fried Chicken. We did not prevail, but at least our point of view was heard.
After the initial activity, the organization remained dormant for many years until Kathleen Cahill took up the challenge of leadership. As MELA's first President, I am delighted to see this new burst of activity, even though I myself no longer practice in the employment law area (I am a partner in a Maryland-based firm which concentrates on personal injury work for negligence victims). Local county anti-discrimination ordinances have helped somewhat and activity in the state courts has picked up in employment law cases. Hopefully, this new burst of energy from employment lawyers who advocate for employees will eventually turn the tide of Maryland court decisions favoring employers to decisions favoring employees. As Martin Luther King, Jr. pointed out, “The arc of history is a long one but it eventually bends toward justice.”
Larry Lapidus , Karp, Frosh Lapidus, Wigodsky & Nowind, P.A.
The current board of the Maryland Employment Lawyers Association consists of Kathleen Cahill, President; Julie Martin-Korb, Treasurer; Pamela Ashby, Secretary; Daniel Katz, Vice-President; and Mary Keating, Vice-President.
