Today's News & Commentary — April 8, 2016


Published April 8th, 2016 - 04.08.1630


Unions are experiencing delays in their efforts to create a $50 million super PAC to support labor-friendly Democrats in the 2016 presidential and congressional races.  According to the Wall Street Journal, the delays are attributable to a few discrete factors: First, many “working-class white men and women, many of whom are union members,” have supported Donald Trump, and the effort to convince these members to vote for Democratic candidates will prove challenging if Trump becomes the Republican presidential nominee.  Second, while the AFL-CIO would like to endorse Democratic presidential frontrunner Hillary Clinton, Bernie Sanders’s victory in Wisconsin and seven other primaries has resulted in a lack of consensus to push Clinton.  Third, large labor unions, like the Service Employees International Union (SEIU) and the National Education Association (NEA), and the 50 mid-sized unions that are part of the AFL-CIO have disagreed on how the super PAC would be run.  “The SEIU and NEA, which rank as the top spenders on political campaigns in recent years, are reluctant to turn over their political funds to a new political organization without retaining enough control over how the money was going to be spent,” the WSJ reported.  No matter what the final organization of the super PAC, it will play an active role in shaping the upcoming election.  In the 2012 election, by comparison, labor unions donated $115 million to pro-Democratic super PACs.

The Eighth Circuit recently held that, despite the 2008 amendments to the Americans with Disabilities Act (ADA) that broadened the definition of a “protected disability,” obesity that is not caused by an underlying physiological condition is not a covered “impairment” for ADA purposes.  In Morriss v. BNSF Railway Company, an applicant received a conditional employment offer contingent on a satisfactory medical review.  On BNSF’s medical questionnaire, Morriss reported that he was 5’10” tall and 270 pounds, that he was once diagnosed as pre-diabetic but was not currently diabetic, and that he had taken appetite suppressants to lose weight but not for any health concerns.  During two subsequent physical examinations, BNSF doctors found that Morriss weighed 285 pounds with a BMI of 40.9 and that he weighed 281 pounds with a BMI of 40.4.  In accordance with its policy not to fill any safety-sensitive positions with applicants with BMIs equaling or exceeding 40, BNSF revoked its conditional offer.  Morriss filed suit, alleging that BNSF discriminated against him on the basis of disability, in part because BNSF regarded his obesity as an actual disability.  The district court found for BNSF, and the Eighth Circuit affirmed, ruling that in order to prevail on a “regarded as” claim, the applicant must show that his obesity was an actual or perceived “physical impairment.”  In turn, in order for one’s weight to be a physical impairment under the ADA, it must both fall outside the “normal” range and occur as a result of a physiological disorder.  JDSupra reports that this interpretation rejected an alternate proposal from the EEOC, which filed an amicus brief on behalf of Morriss.  The agency argued that following the 2008 amendments, a showing of an underlying physical disorder should be required only if a person’s weight is within the normal range.

Donald Blankenship, the former Chairman and CEO of the Massey Energy Company, has been sentenced to one year in prison and a $250,000 fine for conspiring to violate federal mine safety standards.  The sentence comes six years after a deadly explosion in Massey’s Upper Big Branch mine.  According to the New York Times, family members of the 29 miners who died in the explosion watched on from the courtroom’s gallery.  Throughout the trial, the prosecution successfully portrayed Blankenship as the “kingpin of a criminal enterprise,” who knew that safety-law compliance costs money and thus “contributed to an unspoken conspiracy that employees were to ignore safety standards and practices if they threatened profits.”  In a separate op-ed in the NYT, Professor Rena Steinzor noted that Blankenship is the first CEO ever to be convicted of conspiring to violate industrial safety standards.  Also noting that both the Mine Safety and Health Act and the Occupational Safety and Health Act treat systemic safety violations as mere misdemeanors with light prison sentences, Steinzor argued that “Congress should amend the mine safety and occupational safety acts to rank systematic violations by top executives as felonies and to increase the sentences available to judges for white-collar criminals like Mr. Blankenship.”

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