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

silent treatment discrimination Alabama Employment Law employee
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?

ADA reasonable accommodation work from home alabama employment law
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

EEOC statute of limitations
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

ADA medical leave reasonable accommodation
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

gender dysphoria ADA
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

EEOC documents
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.



Retaliation: Employees on Thin Ice Can’t Save Their Jobs with Discrimination Complaints

Thin Ice retaliation
Employees on thin ice can’t save their jobs by making insincere claims of discrimination.

People don’t like to get fired from their jobs.  Thanks to the wonders of the internet, many employees also know that several employment laws (like Title VII of the Civil Rights Act of 1964) prohibit retaliation for making complaints of discrimination.  As a result, employees who know that their jobs are in trouble will frequently make last-minute claims of discrimination in the hope that their employer will not fire them — for fear of a retaliation law suit.

This tactic has become so commonplace that the Eleventh Circuit Court of Appeals has developed a line of cases which protect employers from such retaliation law suits.  Those cases focus on the concept of causation.  As part of his/her case, an employee claiming retaliation must show that termination was caused by the discrimination complaint.  In most cases, close timing between the complaint and termination is sufficient to establish causation.   But, there are exceptions to every rule, and the Eleventh Circuit has created an exception to the general rule on causation.  Close timing “between the protected activity and the adverse action alone generally cannot show causation when the employer has contemplated the adverse action before the protected activity takes place.”  Tucker v. Florida Dept. of Transport., No. 16-10420, 2017 WL 443632 at *3 (11th Cir. Feb. 2, 2017).

In short, if an employer is contemplating termination before an employee claims discrimination, then the employee must show more than close timing if he/she wants to win a retaliation claim.  The Eleventh Circuit provides the following rationale for that rule:   “Title VII’s anti-retaliation provisions do not allow employees who are already on thin ice to insulate themselves against termination or discipline by preemptively making a [ ] complaint.”   Id.

As a practical matter, I strongly encourage any employer “contemplating” termination to have documentation in support of termination prior to making the decision.  Additionally, employers should also proceed cautiously any time an employee complains about discrimination.  Sometimes, even last-minute discrimination complaints have merit, and employers should ensure that no discrimination occurs in the workplace.


ADA: Job Descriptions Are Crucial For Proving Essential Functions

ADA essential functions job description
ADA: Job descriptions help to determine the essential functions of the job

Employers need to draft job descriptions for each class of employees in their workplace.  The importance of good job descriptions was recently reinforced in an Americans with Disabilities Act (“ADA”) decision from Morgan County, Alabama.  Bagwell v. Morgan County Commission, No. 15-15274, 2017 WL 192694 (11th Cir. Jan. 18, 2017).

Under the ADA, only a “qualified” individual with a disability can sue for discrimination.  A “qualified” individual is one who can perform the “essential functions” of their job, with or without reasonable accommodation. Thus, employers  sued for disability discrimination frequently argue that an employee cannot perform the essential functions of their job.

In the Eleventh Circuit (which includes Alabama), federal courts “give substantial weight to an employer’s judgment as to which functions are essential.”  Bagwell, 2017 WL 192694 at * 2.  In Bagwell, the Eleventh Circuit Court of Appeals affirmed the trial court, which found that every activity listed in a job description was an essential function of the plaintiff’s job.  The plaintiff was employed as a groundskeeper, and her job description required the ability to traverse uneven and wet surfaces, standing and walking.  But, the plaintiff could not perform those essential functions safely and consistently because of her condition.  As a result, the Eleventh Circuit found that the plaintiff was not “qualified” and affirmed dismissal of her ADA claim.

While it is possible for an employer to argue about “essential functions” even where no job description exists, Bagwell demonstrates that a written job description can be an effective aide in defending ADA claims.

Discrimination: Sometimes, ignorance is a good excuse.

Ignorance discrimination knowledge
If a decision maker lacks knowledge of an employee’s protected class, an employer may possess an additional defense to discrimination claims.

We’ve all heard the phrase:  “Ignorance of the law is no excuse.”  Indeed, that point has been driven-home to at least one employer in Alabama:  Ignorance of the Law is No Excuse  While ignorance of the law is not a good excuse, sometimes, ignorance of the facts can provide employers with a defense to employment discrimination claims.

The vast majority of federal employment laws only prohibit intentional discrimination.  As a result, if a decision-maker possesses no knowledge (i.e. ignorance) of an employee’s protected status, then numerous decisions hold that there was no intentional discrimination.  For example, an employee suing under the Americans with Disabilities Act must prove that he or she was fired “because of” a disability.  But, the Eleventh Circuit Court of Appeals has clearly held that “a decisionmaker who lacks actual knowledge of an employee’s disability cannot fire the employee ‘because of’ that disability.”  Cordoba v. Dillard’s, Inc., 419 F.3d 1169, 1186 (11th Cir. 2005).  The Court has reached similar conclusions in cases involving allegations of: religious discrimination under Title VII of the Civil Rights Act of 1964, Lubetsky v. Applied Card Sys., 296 F.3d 1301, 1306 (11th Cir. 2002)(” an employer cannot intentionally discriminate against an individual based on his religion unless the employer knows the individual’s religion.”); and,  retaliation under Title VII,  Brungart v. BellSouth Telecomm., Inc., 231 F.3d 791, 799 (11th Cir.2000) (“A decision maker cannot have been motivated to retaliate by something unknown to him.”).

This post is not intended to encourage employers and decision makers to remain blissfully ignorant of issues in the work place.  Indeed, ignoring work conditions can quickly lead to more law suits.  But, if a decision maker was truly unaware that a terminated employee was part of a protected class, then there is a potential defense to an employment discrimination claim.

Judge Kallon Provides Guidance For Employers Faced With a “Direct Threat” Under the ADA

ADA direct threat hearing
Judge Abdul Kallon recently found that an employee with a hearing impairment posed a direct threat to himself or others under the ADA.

A recent decision from an Alabama federal judge provides guidance to employers who are attempting to determine if an employee’s disability is a “direct threat” under the Americans with Disabilities Act.  See Lewis v. United States Steel Corp., No. 2:14-cv-01965-AKK (N.D. Ala. Dec. 20, 2016).  Alonzo Lewis was an “oiler” at U.S. Steel’s Fairfield, Alabama plant.  U.S. Steel used audiovisual warning systems to alert employees that cranes, forklifts and/or trailcars were in motion in the plant.

Lewis is hearing impaired and admitted that sometimes he could not hear alarms in the plant. After a supervisor noticed that Lewis did not react to an alarm, U.S. Steel required him to undergo a hearing test.  When Lewis failed the test, U.S. Steel refused to allow him to enter the facility and began the process of attempting to find a reasonable accommodation. Unfortunately, U.S. Steel could not identify any jobs in the facility which did not involve exposure to the mobile equipment.  As a result, U.S. Steel terminated Lewis’s employment.

Lewis sued under the Americans with Disabilities Act.  While his hearing disability was uncontested, U.S. Steel claimed that he was a “direct threat” to his own health and safety or the safety of others.  Lewis claimed that he was not a direct threat, because he worked in the U.S. Steel facility for eight years without incident.  He relied upon a decision from United States District Court Judge Madeline Haikala to support that argument. I wrote about Judge Haikala’s opinion here:  https://employingalabama.com/2016/08/29/trust-doctor-violate-ada/

United State District Court Judge Abdul Kallon provided employers with an important distinction from Judge Haikala’s analysis of the direct threat defense.  In Judge Haikala’s case, there was no “individualized or objective proof” that the employee posed a direct threat to himself or others.  In the Lewis case, however, Judge Kallon found that the failed hearing test was “objective, individualized evidence” that could be relied upon by U.S. Steel to make an employment decision.  Because  Lewis was a direct threat, Judge Kallon found that his ADA case should be dismissed.

Judge Kallon also provided an alternative basis for dismissal.  He found that U.S. Steel possessed a nondiscriminatory reason for termination:  “safety concerns due to his inability to hear warning signals.”  Lewis failed to demonstrate that U.S. Steel’s safety concerns were not legitimate concerns, so Judge Kallon found another reason for dismissal.

Judge Kallon’s reliance on “individualized, objective evidence” provides effective guidance for employers when considering whether an employee poses a direct threat to himself or others.  If an employer possesses individualized, objective evidence that the employee poses a danger, then the employer is more likely to win an ADA discrimination case.