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.
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 disordersnot 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.
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.
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 thinice 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 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.
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 decision–maker 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 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.
Indefinite Leave Is Not a Reasonable Accommodation Under the ADA.
Employers are not required to give indefinite extensions of leave as a reasonable accommodation under the Americans with Disabilities Act (“ADA”). Luke .v Board of Trustees of Fla. A&M Univ., No. 15-13995, 2016 WL 7404677 (11th Cir. Dec. 22, 2016). In Luke, the plaintiff was a patrol office for the Florida A&M University police department. She injured her knee and took leave in September 2013. On June 10, 2014, after an approved nine-month leave, she requested an extension of leave based upon her doctor’s assessment that she would be unable to work patrol shifts for “at least another six months.” Florida A&M denied that request and terminated her employment.
The Eleventh Circuit Court of Appeals affirmed the dismissal of the patrol officer’s ADA law suit. Among other things, the officer claimed that Florida A&M failed to provide her with a reasonable accommodation, when it refused to extend her leave. The Eleventh Circuit rejected that argument: “While a leave of absence might be a reasonable accommodation in some cases … an accommodation is unreasonable if it does not allow someone to perform his or her job duties in the present or in the immediate future.” Luke, 2016 WL 740467 at *3 (emphasis added). The Court found that the six-month extension request did not satisfy the “present or immediate future” requirement.
The Luke decision provides an interesting contrast to the position taken by the EEOC regarding leave as a reasonable accommodation. On May 9, 2016, the EEOC published its position that employer-provided leave is a required accommodation under the ADA. That publication can be found here: EEOC ADA Leave Publication
The EEOC’s position avoids any reference to the Eleventh Circuit’s “present or immediate future” requirement. Instead, the EEOC seeks to shift the burden to employers to prove that a particular leave would an “undue burden.” Fortunately for employers, the Eleventh Circuit does not appear to be overly persuaded by the EEOC’s publication. In the same paper, the EEOC took the position that employers are required to place a disabled employee “in a vacant position for which he is qualified without requiring the employee to compete with other applicants for open positions.” The Eleventh Circuit rejected that position earlier this month in an opinion that I discussed here: Job-Competition Policy Can Be a Defense to ADA
Luke provides some guidance to employers — a six month leave request does not meet the “present or immediate future” requirement. For shorter leave requests, however, employers should proceed with caution, because the Eleventh Circuit has not provided guidance on the “immediate future” requirement.
A recent decision from the Eleventh Circuit Court of Appeals demonstrates difficult decisions that may face employers when they hire employees with Asperger’s syndrome. Furcron v. Mail Centers Plus, LLC, No. 15-14595, 2016 WL 7321211 (11th Cir. Dec. 16, 2016). Asberger’s is generally considered a “high functioning” form of autism. Affected persons “have difficulty with social interactions and exhibit a restricted range of interests and/or repetitive behaviors.” https://www.autismspeaks.org/what-autism/asperger-syndrome
In Furcron, Myra Furcron was a female mailroom clerk, who claimed that she was sexually harassed by Daniel Seligman, a male mailroom clerk suffering from Asperger’s. Furcron claimed that Seligman attempted to look down her shirt and at her underwear when she bent over. She also claimed that Seligman would intentionally bump against her and rub his erect penis against her. When she complained, Furcron’s supervisor responded “that Seligman meant no harm, and that his conduct should be tolerated because of his disability.” Furcron, 2016 WL 7321211 at *2. Although a trial court dismissed Ms. Furcron’s claims, the Eleventh Circuit found sufficient evidence of sexual harassment to warrant a jury trial.
Another case involving Asperger’s is Taylor v. Food World, Inc., 133 F.3d 1419 (11th Cir. 1998). In Taylor, the plaintiff suffered from Asperger’s and was a utility clerk who bagged groceries and assisted customers with their groceries. He was terminated after three customers complained that he was “loud, overly friendly and overly talkative.” He sued for violations of the Americans with Disabilities Act. The Court found that one of the essential functions of the job was “the ability to carry out the tasks of the job without offending customers.” Taylor, 133 F.3d at 1424. Nevertheless, the Court found sufficient evidence to warrant a jury trial, because some managers and employees testified that they received no complaints and observed no inappropriate behavior. Additionally, there were questions of fact regarding whether the questions asked by the plaintiff to customers were offensive or inappropriate.
A final case merits discussion, even though it deals with Tourette’s syndrome instead of Asperger’s. Ray v. Kroger Co., No. 03-12919, 2003 WL 23018292 (11th Cir. 2003). In Ray, a grocery store employee’s condition caused him to blurt out racial slurs on a daily basis. As an accommodation to his disability, the store allowed him to pass out cards to customers explaining his condition, and transferred him to the night shift when fewer customers were in the store. Nevertheless, three customers complained about bizarre and anti-social behavior, and a contractor complained about a perceived racial insult. The Court affirmed dismissal of Ray’s ADA case, because he could not demonstrate that he could perform the essential function of “interacting with customers without insulting them.”
These cases seem to place employers in a Catch-22 situation. If they discipline an employee for behavior related to their disability, they face the threat of a law suit for violating the Americans with Disabilities Act. But, if they fail to discipline the employee, the employee could then commit acts (like the alleged sexual harassment in Furcron) that get the employer sued by other employees or third-parties.
Employer should proceed slowly if they encounter performance issues from employees suffering from Asperger’s, Tourette’s or other conditions that affect behavior. Ray and Taylor both suggest that it may be possible to discipline such employees without violating the ADA. To do so, however, employers need to establish, at a minimum that: (1) the ability to interact with customers and co-workers without offending them is an essential function of the job; and, (2) abundant evidence existed demonstrating the employee’s inability to fulfill that essential function.
An inability to work in summer heat can make an employee unqualified to perform the essential functions of a job under the ADA.
If an employee cannot work outside in the summer heat, she is unqualified for a job that requires outside work and cannot file a claim under the Americans with Disabilities Act. This point was confirmed by the Eleventh Circuit Court of Appeals in Perry v. City of Avon Park, No. 15-14525, 2016 WL 6819669 (11th Cir. Nov. 18, 2016). As discussed below, Perry provides at least two tips for employers to follow. First, a written job description helps establish the essential functions of a job. If the employee cannot perform the essential functions found in a job description, it is very difficult to win a claim under the ADA. Second, employers are not required to change their job descriptions as an accommodation to employees with medical conditions.
In Perry, the employee was employed as a maintenance technician/assistant. Her primary duties took place outside doing manual labor in Avon Park, Florida. Ms. Perry was recovering from breast cancer and also suffering from mental health issues. A physician placed work restrictions on Ms. Perry to avoid direct sunlight and to work no more than four hours outside in temperatures above 50 degrees and below 80 degrees.
The City actually tried to accommodate Mr. Perry and gave her a thermometer with instructions to return to City Hall if temperatures exceeded her threshold. Because Avon Park is located in South Florida, the temperature restriction was exceeded almost immediately. When the City asked Ms. Perry’s physician if there was any possibility of accommodating Ms. Perry’s restrictions, the physician stated that there was no way Ms. Perry could work unless the temperature restrictions were met.
The City terminated Ms. Perry’s employment, and she sued under the ADA. The Eleventh Circuit found that Ms. Perry was not qualified for her position because she could not perform the essential functions listed in her written job description — the majority of which required outside work. The Court also rejected two “reasonable accommodations” proposed by Ms. Perry.
First, the Court found that Avon Park was not required to change her job description to eliminate the essential function of outside work. Second, the Court found that Avon Park was not required to abide by the physician’s restrictions, because those restrictions would prevent Ms. Perry from performing the essential function of outside work on a consistent basis.
Perry demonstrates that written job descriptions are extremely important to defending ADA claims. If an employee cannot perform the essential functions of a job as listed in a job description, it will be very difficult for them to establish a claim for disability discrimination.
