ADA: Comprehensive Job Descriptions Are Vital

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Job descriptions are an important piece of evidence in defending ADA claims.

Do you have job descriptions for your employees?  Do your job descriptions list the “essential functions” for each job?  If not, your chances of violating the Americans With Disabilities Act (“ADA”) are greater than they need to be.

To prevail on a claim of disability discrimination, an employee must prove that they were “disabled” and that they were a “qualified” individual with a disability.  A “qualified” individual can perform the essential functions of their job, with or without reasonable accommodation.   Job descriptions are vital because they help a court to determine the essential functions of a job.

Whether a job function is “essential” is determined on a case-by-case basis.  Even so, one of the factors that a court considers is the employer’s judgment of whether a particular function is essential.  And, a comprehensive job description will tell a judge exactly which functions the employer considers to be essential.

But, a job description can be a double-edged sword.  If your job description fails to list a function as “essential,” it will be difficult to convince a court otherwise.  One employer learned that lesson in Lewis v. City of Union City, 877 F.3d 1000 (11th Cir. 2017).  In Lewis, a police department claimed that officer must be trained on, and suffer a shock from, taser guns.  Lewis refused because of a heart condition, and the department terminated her employment.  The department then tried to argue that taking a shock from a taser was an “essential function” of the job, but the job description for police officer made no reference to the taser shock.  The Eleventh Circuit then found that there were genuine issues on whether the taser shock was an essential function of the job.

The lack of reference to taser shock in the job description also defeated the department’s “direct threat” defense.  The department argued that the officer was a direct threat to herself, because her presence near tasers in the workplace posed a significant risk of harm to her health.  The Eleventh Circuit rejected that argument, however, because a “direct threat” can only be determined by examining “essential functions.”  And, again, the taser shock was missing from the “essential functions.”

In short, job descriptions are vital part of any defense to an ADA claim.  As always, proceed carefully if you are going to take any action based upon the health of any employee.

No Preference for Disabled Employees in a RIF

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Disabled employees are not entitled to preferential treatment when an employer conducts a RIF.

Disabled employees who are part of an employer’s reduction in force (“RIF”) are not entitled to preferential treatment.  See Mance v. Board of Trustees of Univ. of W. Ala., No. 7:16-cv-01056-JEO (N.D. Ala. Mar. 23, 2018).  Angelia Mance was employed by the University of West Alabama (“UWA”) as the managing partner of the Demopolis Higher Education Center (“DHEC”).  Even though UWA was her employer, the funding for the DHEC’s programs came from the City of Demopolis.  On October 22, 2014, the City cut-off funding for the DHEC, and UWA decided to implement a reduction-in-force — terminating all five members of the DHEC staff, including Mance.

Ms. Mance is confined to a wheelchair and indisputably disabled.  On December 3, 2014, she e-mailed the President of UWA and asked for a “reasonable accommodation” — re-assignment and/or placement in a new position.  UWA, however, was in the middle of a hiring freeze.  Even so, Mance claimed that she previously held positions as an Associate Director and a Special Projects Coordinator.  UWA provided evidence that there were no such available positions.

Ms. Mance’s case hinged upon her insistence that UWA was required to “accommodate” her disability by making her an Associate Director or Special Projects Coordinator.  Chief Magistrate Judge John Ott was not persuaded.  Judge Ott noted that employers are not required to “afford ‘preferential treatment’ to the disabled when it comes to job reassignments or filling vacancies.”  He also found that “Mance’s discrimination claim is a textbook example of a plaintiff asserting that her disability affords her a right of preferential treatment over non-disabled employees when the employer imposes a lawful reduction-in-force.”  He concluded that “federal anti-discrimination law does not require an employer to create a new position, either out of whole cloth or by shuffling around other employees or their duties, as a reasonable accommodation for a disabled worker who is otherwise lawfully subject to termination.”

Obviously, employers should not include employees in a RIF because of a protected characteristic — such as disability, race, age or gender.  At the same time, Mance helps to establish that employers are not required to give preferential treatment to the disabled in the decision-making process.

ADA: Extended Leave Is Not a Reasonable Accommodation

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In the Eleventh and Seventh Circuits, an extended leave of absence is not a reasonable accommodation under the ADA.

Last week, the Eleventh Circuit found that an open-ended extension of leave without pay is not a reasonable accommodation under the Americans with Disabilities Act.  See Billups v. Emerald Coast Utilities Auth., No. 17-10391, 2017 WL 4857430 (11th Cir. Oct. 26, 2017).  Roderick Billups suffered an on-the-job injury on December 18, 2013 and he began FMLA leave on December 19, 2013.  The FMLA 12-week period expired on March 12, 2014, while Billups was still out on leave.  He underwent surgery on April 16, 2014 and on May 27, 2014 his physician restricted him to sedentary work.

In early June 2014, Billups’ employer, Emerald Coast, sent him a notice that he would likely be terminated because of his inability to perform the essential functions of his job with or without reasonable accommodation.  At a “hearing” on June 19, 2014, Billups provided some evidence that he might be cleared for duty by July 15, 2014.  Nevertheless, on June 23, 2014, Billups was terminated because of a continuing inability to perform the essential requirements of his job.  Billups continued medical treatment and was cleared to return to work without restrictions on October 23, 2014.

In January, I discussed another case from the Eleventh Circuit (Here) finding that a leave of absence is a reasonable accommodation only if it allows employees to “perform the essential functions of their jobs presently or in the immediate future.”  Because Billups received more than six months of leave before the termination decision, and could not return within the immediate future, the Court found that an extension was not a reasonable accommodation.

The Billups decision comes on the heels of a similar decision by the Seventh Circuit Court of Appeals, Severson v. Heartland Woodcraft, Inc., which is discussed here:  7th Circuit Rejects Leave as Accommodation.    The Severson decision is slightly more noteworthy, because it directly addresses a policy from the EEOC requiring it as a reasonable accommodation:  EEOC on ADA and Leave.  The Court reasoned “[i]f, as the EEOC argues, employees are entitled to extended time off as a reasonable accommodation, the ADA is transformed into a medical-leave statute-in effect, an open-ended extension of the FMLA.”

“I Don’t Hire Overweight People”: Obesity and the ADA

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Courts are divided on whether obesity is a disability under the ADA.

Last week, an article on AL.com caught my attention.  A Vestavia Hills chiropractor admitted that he terminated a receptionist/chiropractic assistant because of her weight.  Here’s a link to the article:  “I Don’t Hire Overweight People.”  I’ve never had a client admit that they terminated an employee based upon their weight and/or obesity.  So, my first question was whether the chiropractor might be liable under the Americans with Disabilities Act (“ADA”).  Is obesity a “disability” under the ADA?

After a little research, I determined that there is no clear answer.  Prior to the ADA Amendments Act in 2008, the EEOC’s interpretive guidance expressly held that obesity would only be considered a disability in “rare circumstances.” But, that guidance was deleted after the ADA amendments.  Courts are divided on the issue after the ADA amendments.  See McCollum v. Livingston, 4:14–CV–3253, 2017  WL 608665 (S.D. Tx. Feb. 3, 2017)(“Courts are split as to whether obesity, on its own, can qualify as a disability under the ADA”).  The highest court to consider the issue lately is the Eighth Circuit Court of Appeals in Morriss v. BNSF Ry. Co, 817 F.3d 1104 (8th Cir. 2016).  The Morriss court held that obesity is not a disability unless the obesity is the result of a “physiological disorder.”

In Alabama, Judge Abdul Kallon in the Northern District of Alabama assumed that obesity could be a disability for purposes of his analysis in White v. Beaulieu Group, No. 5:15-cv-02141-AKK, 2017 WL 2243024 (May 23, 2017).  But, even with that assumption, Judge Kallon found that the employee failed to prove that he suffered discrimination.

The ADA Amendments Act liberalized the ADA’s requirements and made it much easier for employees to sue.  So, as a practical matter, I strongly suggest that all employers refrain from relying upon physical characteristics as a reason for taking an employment action.  In my opinion, it’s simply not worth the risk of a law suit.

On final note.  In this case, the chiropractor could probably not be liable under the ADA, because the receptionist/chiropractic assistant was his only employee — and an employer must have 15 employees to be subject to the ADA.

Employee Can’t Sue for Getting the “Silent Treatment”

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An employee receiving the “silent treatment” is not subjected to actionable discrimination

Your Mom probably told you:  “If you can’t say something nice, say nothing at all.”  In the workplace, this is sometimes great advice.  Rather than unleashing your true feelings on a co-worker, you can elect to ignore him.  Nevertheless, you can’t make everybody happy.  So, one employee who received the “silent treatment” from co-workers attempted to claim that she was being discriminated against.  The Eleventh Circuit Court of Appeals recently rejected that claim in Jones v. Allstate Ins. Co., No. 16-15628, 2017 WL 3887790 (11th Cir. Sep. 6, 2017).

Jamilia Jones’s employment with Allstate Insurance Company was complicated.  She complained that she was sexually harassed by her supervisor, and, after an investigation, Allstate fired that supervisor on May 8, 2012.  She then took disability leave in June and July 2012.   Ms. Jones testified that, upon her return to work, co-workers would not talk to her for fear of losing their jobs.  Those who would talk with her would only do so with a witness present. She resigned her employment on September 10, 2012, and later claimed that she was forced to resign because she was treated so poorly at work.  In other words, she claimed that she was “constructively discharged.”

To succeed on a claim of constructive discharge, an employee must show that her working conditions were so intolerable that a reasonable person in her position would be compelled to resign.  But, the Eleventh Circuit found that the “silent treatment” simply did not amount to intolerable working conditions.   As a result, the Court affirmed dismissal of Ms. Jones’s claim for constructive discharge — once again proving that Mom is always right.

Is Working From Home a Reasonable Accommodation?

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Sometimes, working from home is not a reasonable accommodation under the ADA.

The Eleventh Circuit Court of Appeals recently found that an employer was not required to allow an employee to work from home as a reasonable accommodation for her pregnancy/disability.  Everett v. Grady Memorial Hosp. Corp., No. 16-13495, 2017 WL 3485226 (11th Cir. Aug. 15, 2017).

At the outset, let me stress that the reasonable accommodation analysis under the Americans with Disabilities Act is a case-by-case determination.  The Eleventh Circuit’s ruling in Everett depends on the specific facts of that case.  In other cases, involving other jobs, work-from-home might be a reasonable accommodation.  If one of your employees suffers from an impairment and asks to work from home, proceed very carefully.

In Everett, Ana Everett was employed as the Program Manager for Grady Memorial Hospital’s car seat program.  She was diagnosed with a high-risk pregnancy in February 2015 and granted FMLA intermittent leave at that time.  On April 28, 2015, Ms. Everett presented a doctor’s note placing her on “light duty.”  In May 2015, her doctor diagnosed her with an “incompetent cervix” and said she should work exclusively from home.  Grady refused to allow Ms. Everett to work from home.  Instead, Grady placed her on unpaid leave until her doctor allowed her to return to work on October 8, 2015.

Ms. Everett asserted several claims against Grady — including a claim for failure to accommodate her pregnancy/disability because she was not allowed to work from home.  This is where the fact-intensive nature of the accommodation analysis comes into play.  The issue was whether Ms. Everett could perform the essential functions of her job if she worked from home.  In short, the Eleventh Circuit reviewed the relevant facts and found that teaching courses, supervising employees and meeting with patients were essential functions of the job.  Ms. Everett could not perform those essential functions if she worked from home.

Ms. Everett argued that Grady could assign those job duties to another employee as a reasonable accommodation, but the Eleventh Circuit rejected that argument.  “‘[T]he ADA does not require the employee to eliminate an essential function of the plaintiff’s job’ or place it upon someone else.”  Everett, 2017 WL 3485226 at *5.

Again, the Eleventh Circuit’s decision in Everett relied upon the fact that Ms. Everett’s presence at the work site was crucial to teach courses, supervise employees and meet with patients.  In other cases, particularly in those involving computer-intensive jobs, it might be reasonable to allow an employee with an impairment to work from home.

EEOC Cannot Revive Claim Barred By Statute of Limitations

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The EEOC cannot revive a discrimination claim that is barred by the statute of limitations.

The Eleventh Circuit Court of Appeals recently held that the United States Equal Employment Opportunity Commission (“EEOC”) cannot revive a discrimination claim that is barred by the statute of limitations.  See Stamper v. Duval County School Bd., No. 15-11788, 2017 WL 3033148 (11th  Cir. Jul. 18, 2017).

In 2007, Stamper filed a charge of race and disability discrimination.  On February 26, 2009, the EEOC issued a dismissal and notice of rights (also known as a “right to sue letter”) concluding that it could not establish a violation of the statutes.  Title VII of the Civil Rights Act of 1964 and the Americans with Disabilities Act both required Stamper to file a law suit (if any) within 90 days of the right to sue letter.  Yet, Stamper did not file suit.

Instead, on July 9, 2011, Stamper filed a request for reconsideration with the EEOC.  On December 15, 2011, the agency sent Stamper a “Notice of Revocation,” which attempted to vacate the dismissal of her first charge and revoked the letter terminating processing of that charge.  Stamper then filed a second charge of discrimination, and she received a second notice of right to sue on November 5, 2012.  Stamper then filed suit within 90 days.  A trial court found that her lawsuit was untimely and the Eleventh Circuit affirmed.

The Court relied upon the agency’s own regulations.  In particular, 29 C.F.R. § 1601.19(b) allows the EEOC to reconsider a decision to dismiss a charge of discrimination.  But, that regulation only affects the 90-day statute of limitations if the EEOC reconsiders within 90 days of its dismissal decision.  In short, if the EEOC reconsiders within 90 days, the right to sue is revoked and the statute of limitations is re-set.  But, if the EEOC reconsiders after 90 days, the right to sue is not revoked and the statute of limitations is not affected.

In this case, the EEOC reconsidered Stamper’s right to sue more than two years after the fact.  As a result, the Eleventh Circuit found that it did not properly revive Stamper’s claims, and affirmed dismissal.

ADA: “Maximum Leave” Policy Costs UPS $1.7 Million

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Inflexible medical leave policies may violate the ADA’s reasonable accommodation requirement.

An article from Bloomberg reports that United Parcel Service recently agreed to pay $1.7 million to settle a claim under the Americans with Disabilities Act:  UPS to Pay $1.7M

The EEOC filed a nationwide lawsuit challenging UPS’s policy of discharging workers who could not return from medical leave after 12 months.  The case was filed in Illinois, so it is not directly applicable to cases filed in Alabama.  Nevertheless, it appears to demonstrate the dangers of inflexible medical leave policies.  While I have not delved into the details of the UPS lawsuit, the Bloomberg article suggests that all employees were terminated after 12 months of medical leave.  Potentially, UPS should have engaged in the reasonable accommodation process and determined if employees could return to work, for example, in 13 months.  Clearly, the EEOC would view an additional month of medical leave as a reasonable accommodation.  Indeed, the EEOC’s resource document on employer-provided leave supports that position:  EEOC:  Employer-Provided Leave

Inflexible leave policies certainly pose dangers for employers under the ADA.  Thus, each request for leave should be dealt with on an individualized basis.   In the Eleventh Circuit, if an employee has exhausted their employer-provided leave, and cannot return in the “present or immediate future,” an indefinite extension of leave is not required under the ADA.  I previously wrote about this issue here:  ADA:  Indefinite Extension of Leave Not Required.  In summary, inflexible policies on return from leave can lead to liability, but employers are not required to provide indefinite leave as a reasonable accommodation.

Judge Recognizes Gender Dysphoria as a Disability

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A federal judge recently recognized gender dysphoria as a disability.

A federal judge in Pennsylvania recently found that an employee with gender dysphoria could sue under the Americans with Disabilities Act.  See Blatt v. Cabela’s Retail, Inc., 2017 WL 2178123 (E.D. Pa. May 18, 2017).  Kate Lynn Blatt claimed that she was terminated by Cabela’s because of her sex and disability — gender dysphoria.  Cabela’s asked United States District Court Judge Joseph F. Leeson, Jr. to dismiss the ADA claims.

The ADA’s express language says that the term “disability” does not include “transvestism, transsexualism, pedophilia, exhibitionism, voyeurism, gender identity disorders not resulting from physical impairments, or other sexual behavior disorders.”  42 U.S.C. §12211 (emphasis added).  And, Ms. Blatt claimed that she was diagnosed with “Gender Dysphoria, also known as Gender Identity Disorder.”  Blatt, 2017 2178123 at *2 (emphasis added).

While Ms. Blatt’s claim would appear to be barred by the ADA’s definition of a disability, Judge Leeson refused to dismiss the claim.  He found that the ADA intended to only exclude those people “identifying” with a different gender.  But, gender dysphoria “goes beyond merely identifying with a different gender and is characterized by clinically significant stress and other impairments that may be disabling.”  Blatt, 2017 2178123 at *2.

Judge Leeson’s opinion appears to be an effort to avoid a constitutional question.  Ms. Blatt claimed that the ADA’s exclusion of gender identity disorders violated her Equal Protection Rights.  In order to avoid that issue, Judge Leeson found that Ms. Blatt was not excluded.  But, in avoiding the constitutional question, Judge Leeson may have extended the ADA beyond its intended scope.  The ADA, and its definition of “disability,” was passed by Congress in 1990.  At that time, the Third Edition of the American Psychiatric Association’s Diagnostic and Statistical Manual of Mental Disorders merely used the term “gender identity disorder.”  But, in 1994, the Fourth Edition of that Manual replaced the term “gender identity disorder” with the more descriptive term “gender dysphoria.”  Kothmann v. Rosario, 558 Fed. Appx. 907, 908 n.2 (11th Cir. 2014).  Thus, Judge Leeson’s attempt to distinguish between “gender identity disorder” and “gender dysphoria” may be an error based on differences in time and definitions.

Nevertheless, Blatt provides yet another reason for employers to proceed cautiously when disciplining transgender employees.  Under Title VII’s sexual discrimination provisions, employers must be careful to avoid disciplining transgender employees for failure to conform to gender stereotypes.  Discussion on Transgender Protections. Now, employers must also consider whether an employee’s gender dysphoria is a disability and entitled to protection.

Here’s One Strategy for Challenging EEOC Document Requests

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In appropriate circumstances, employers can challenge the EEOC’s requests for documents

The United States Equal Employment Opportunity Commission is required to review many claims for discrimination, including claims under Title VII of the Civil Rights Act of 1964, the Age Discrimination in Employment Act, and the Americans with Disabilities Act.  In the course of investigating discrimination claims, the EEOC frequently asks employers to produce documents related to the claim.  If the employer refuses to produce documents, the EEOC can issue an administrative subpoena and ask federal courts for assistance in enforcing the subpoena.

A Wendy’s restaurant franchisee in Tennessee recently won a victory for employers in resisting a far-reaching document request.  EEOC v. Southeast Food Svcs. Co, No. 3:16:MC-46-TAV-HGB, 2017 WL 1155040 (E.D. Tenn. Mar 27, 2017).   In that case, the franchisee offered a promotion to an employee, but required the employee to sign a release of all potential claims in order to receive the promotion.  Even though she possessed no claims, the employee refused to sign the release.  As a result, the franchisee withdrew the promotion offer.  Thereafter, the employee claimed that withdrawal of the promotion was discriminatory.  The franchisee admitted the reasons for withdrawing the promotion, but denied any discrimination.

While investigating the employee’s claim, the EEOC submitted a document request and a subpoena seeking the identity and contact information of all:  (1) current and former employees since December 4, 2012; (2) current and former employees who signed a release since December 4, 2012; and, (3) current and former employees promoted since December 4, 2012.  When the franchisee refused to provide that information, the EEOC filed an application in federal court for enforcement of the subpoena.

The EEOC’s subpoena authority is broad.  It can obtain any information that is :  (1) related to unlawful employment practices; and, (2) relevant to the charge under investigation.  42 U.S.C. § 200e-8(a).  Most disputes with the EEOC focus on the relevancy requirement.  In the Wendy’s case, the Court found that the EEOC did not meet its burden of demonstrating relevance.  While the request for information might be relevant to other potential claims, it was not relevant to this case, where it was undisputed that the promotion was denied for failure to sign the release.

The Tennessee court relied heavily upon the Eleventh Circuit’s decision in EEOC v. Royal Caribbean Cruises, 771 F.3d 757 (11th Cir. 2014).  In that case, the Eleventh Circuit noted that the term “relevant” has been generously construed in the EEOC’s favor, but that it should not be so broadly construed as to render the relevancy requirement ” a nullity.”  Id. at 760.  The Eleventh Circuit recognized that, sometimes, broad-reaching requests might be necessary, “where statistical data is needed to determine whether an employer’s facially neutral explanation for the adverse decision is pretext for discrimination.”  Id. at 761.  But, like the Wendy’s court, the Eleventh Circuit found that expansion of an investigation for discovery of potential, other claims was not a “relevant” reason.

Employers should carefully consider whether to resist a request for documents from the EEOC.  In many cases, the EEOC requests legitimate, “relevant” information related to a charge of discrimination, and employers should comply with information requests in those cases.  But, in some cases, the EEOC is clearly attempting to expand the scope of an investigation beyond the parameters of a particular case.   The Wendy’s case and the Royal Caribbean case provide employers with good arguments for contesting those types of subpoenas.