discrimination

11th Circuit Holds That ADA Does Not Require Employers to Create Light Duty Position

Robert C. Lockwood
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disability

On April 7, 2016, the Eleventh Circuit Court of Appeals confirmed that an employer is not required to create a permanent light-duty position for an employee as part of the Americans With Disabilities Act’s “reasonable accommodation” requirement.  See Frazier-White v. Gee, No. 15-12119, 2016 WL 1376448 (11th Cir. Apr. 7, 2016).

In Frazier-White, the Hillsborough County Sheriff’s Office implemented a policy that limited light-duty work to 270 days within a two-year period.  The employee was terminated after a due process hearing during which it was demonstrated that she was on light duty for 299 days with no definite expectation of returning to full-duty.  As part of the termination proceedings, the employee asked for “an extension to continue to receive care” so that she could “get better and return to full duty 100%.”  The Eleventh Circuit found that a request for an indefinite extension of light-duty work is unreasonable as a matter of law.  The Court further found that the Sheriff’s Office was not required to create a permanent light-duty position.

The issue of light-duty positions for injured employees is a complex one, which I previously discussed here:  AM I REQUIRED TO CREATE A LIGHT DUTY POSITION FOR AN EMPLOYEE INJURED ON THE JOB?

While Frazier-White provides assistance to employers faced with light-duty issues, you should proceed carefully and consult with your attorney before taking any action relating to employees on light-duty.

Can You Defame an Employee When You Respond to an EEOC Charge?

Robert C. Lockwood
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If an employee files a charge of discrimination with the EEOC, his or her employer will be required to file a response to the allegations of the EEOC charge.  I strongly encourage any reader of this blog to obtain legal counsel before responding to an EEOC charge.  But, what if you or your lawyer says something false about an employee in your response to the EEOC charge?  Could the employee then use that false statement to sue you for defamation?

On January 15, 2016, the Eleventh Circuit Court of Appeals (which reviews decisions from Alabama) issued a decision indicating that it would be very difficult for such a defamation claim to succeed.  In Mack v. Delta Air Lines, Inc., No. 15-11945, 2016 WL 197162 (11th Cir. Jan 15, 2016), a lawyer submitted a response to the EEOC charge for Delta Air Lines.  When the employee sued, she included a state-law claim for libel as part of her complaint, claiming that false statements in Delta’s EEOC response defamed her.

The Eleventh Circuit found that, under Georgia law, all filings in quasi-judicial proceedings are protected by absolute immunity and cannot be libelous.  The court further found that the EEOC’s investigative process was a quasi-judicial proceeding.  As a result, the court affirmed dismissal of the libel claim.

Obviously, the Mack case applies Georgia law.  But, Alabama also grants absolute immunity to statements made in quasi-judicial proceedings.  Sullivan v. Smith, 925 So.2d 972 (Ala. Civ. App. 2006).  As a result, it would probably be difficult for an employee to succeed on a defamation claim arising from your response to an EEOC charge.  In fact, at least one federal court in Alabama reached that conclusion before Mack was issued.  See Hatfield v. Bio-Medical Apps. of Ala., 2012 WL 4478769 (M.D. Ala. Sep. 24, 2012).

The Three Most Important Things to Know About Employees on Jury Duty

Robert C. Lockwood
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Most people think jury duty is a pain in the rear.  I’ve seen and heard of some creative excuses to get out of jury duty.  There’s even a report that “Jesus Christ” was struck from jury service in Birmingham:  Jesus On Jury Duty

Jury duty can also create hardships for employers.  Nevertheless, Alabama has recognized the importance of jury duty by statutorily creating protections for employees who are called for jury service.  This is significant, because the general rule in Alabama is “employment-at-will”: an employee without an employment contract can be terminated for a good reason, a bad reason, or no reason at all.

Protection of employees serving on juries is one of the few exceptions to employment-at-will in Alabama.  Here are the three most important things to know if one of your employees is called for jury service.

 1.  You cannot terminate an employee who misses time from work for jury service.

Alabama Code Section 12-16-8.1 prohibits termination or any “adverse employment action” because an employee was called for jury service.  Notably, Section 12-16-8.1 prohibits adverse employment actions because an employee “serves” on a jury.  But, the Alabama Supreme Court has interpreted the statute to protect employees from serving in any part of the jury process — including simply being called for jury duty.

2.  You must pay an employee their regular wage for time spent in jury service.

Alabama Code Section 12-16-8(c) requires that full-time employees receive their “usual compensation” for the time they spend in jury service.  As a result, you must pay an employee if they are absent for jury service.

3.  You cannot require the employee to use leave time for jury service.

Your company may provide annual, vacation or sick leave time as a benefit to employees.  If they miss time for jury duty, you cannot require, or even request, that they use paid or unpaid leave when they are called for jury duty.  Ala. Code § 12-16-8(b).

 

JUDGE ACKER PROVIDES EMPLOYERS WITH A WEAPON AGAINST DISCRIMINATION CLAIMS

Robert C. Lockwood
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Senior United States District Court Judge William Acker is providing Alabama employers with a highly-effective weapon against employment discrimination complaints.  In many cases, a terminated employee will be a member of multiple protected classes, for example race, age and disability.  When they are terminated from employment, those employees may suspect that one or more of their protected traits were the reason for termination.  As a result of that uncertainty, employers are often sued under multiple federal statutes:  Title VII of the Civil Rights Act of 1964; the Age Discrimination in Employment Act; and, the Americans with Disabilities Act.

Judge Acker is putting an end to that practice.  In a string of cases starting with Savage v. Secure First Credit Union, No. 2:14–cv–2468–WMA, –––F.Supp.3d ––––, 2015 WL 2169135 (N.D. Ala. May 8, 2015), Judge Acker is making employees choose exactly which employment law they are claiming has been violated.  Judge Acker’s reasoning is based upon the fact that an employee in ADA, ADEA, and Title VII retaliation cases must prove that the protected characteristic was the “but for” cause of termination.  In other words, the employee must prove that the characteristic was the only reason for termination.

As a result, Judge Acker finds that it is impossible for an employee to file a complaint claiming that he was fired in violation of the ADA or the ADEA or Title VII retaliation.  Instead, he is making employees commit to one discrimination claim.  If they refuse, he is dismissing their case in its entirety.

Notably, a Title VII claim for race, gender or religious discrimination does not require a “but for” causation analysis.  Under Title VII, an employee can recover if his employer had “mixed motives” for termination.  As a result, if race, gender or religion was merely part of the reason for termination, it is possible for an employee to win.  I discussed this possibility in reviewing the case of a transgender auto mechanic who was terminated after sleeping in a customer’s car:  LGBT Issues In the Workplace

Judge Acker’s decision in the Savage case is currently on appeal before the Eleventh Circuit Court of Appeals.  Thus, it is possible that the Eleventh Circuit could find that he is wrong, and employees can be permitted to assert multiple claims, even under “but for” statutes.

HAVE YOU REVIEWED YOUR EMPLOYMENT APPLICATIONS FOR ADA COMPLIANCE?

Robert C. Lockwood
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Many employers either forget or are unaware that the Americans with Disabilities Act restricts disability-related questions on employment applications.  In particular, the ADA prohibits discrimination “in regard to job application procedures.”  As a result, employers cannot ask disability-related questions or require medical examinations until after an applicant has been given a conditional job offer.

The EEOC has provided enforcement guidance on this issue:

At the pre-offer stage, an employer cannot ask questions that are likely to elicit information about a disability. Of course, this includes directly asking whether an applicant has a particular disability. It also means that an employer cannot ask questions that are closely related to disability.

Certainly, an employer may not ask a broad question about impairments that is likely to elicit information about disability, such as, “What impairments do you have?”

Many employers also want to know about an employee’s history of drug use.  This can be a thorny issue because the ADA provides protection for past drug addiction.  Current use and addiction are not protected, but past addiction is.  The EEOC makes this issue clear as mud with its guidance:

May an employer ask applicants about their prior illegal drug use?

That depends on whether the particular question is likely to elicit information about a disability. It is important to remember that past illegal drug addiction is a covered disability under the ADA (as long as the person is not a current illegal drug user), but past casual use is not a covered disability. Therefore, whether the question is likely to elicit information about a disability depends on whether it goes to past drug addiction.

It is safe to say that you can ask an applicant if they are currently using any illegal drugs.  You can also ask the general question of whether they have ever used illegal drugs.  But, if you ask for more detail beyond those general questions (like “Tell us the extent of your past drug use and whether you received treatment”) you may be close to violating the ADA.

It may be worthwhile to take a few minutes to see if your employment application asks questions that are in compliance with the ADA.

Birmingham Bans Inquiries on Criminal Convictions

Robert C. Lockwood
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It appears that job applications to work for the City of Birmingham will no longer require applicants to disclose criminal convictions.  Yesterday, Birmingham Mayor William Bell issued an executive order which modified the City’s hiring practices and adopted the “Ban the Box” movement.  Here’s a link to the Al.com article. Article

Most employment applications ask if the applicant has been convicted of a crime, and contain a “box” to check “yes” or “no.”  The “Ban the Box” movement seeks to remove that “box,” and other conviction inquiries, from job applications.  In concept, the “Ban the Box” requirement prevents employers from automatically weeding-out employees with a criminal history, which gives applicants a better chance at a job, and decreases the chances that they will commit another crime.

Mayor Bell’s executive order follows an executive order issued by President Obama on November 2, 2015.  In that order, President Obama directed that the “box” should be removed from applications for federal employment.  Here’s a link discussing that action and providing more information on the “Ban the Box” movement.  Obama Article

One of the central tenets of “Ban the Box” is that inquiries about criminal convictions should occur “later” in the hiring process.  Unfortunately, there is not a lot of clarity on when such inquiries should be permitted.  Can they be made before a job offer?  Or after?

Mayor Bell’s order does not provide much insight.  In fact, it adopts a broad policy to “implement hiring policies and procedures intended to encourage the full participation of motivated and qualified persons with criminal histories in the workforce, reduce recidivism and ensure public safety.”  It also “prohibit[s] the use of a criminal record as an automatic bar to employment” and requires that applicants receive an opportunity to “contest the content and relevance of a criminal conviction”.

Importantly, the executive orders from Mayor Bell and President Obama apply only to applications to work for the City of Birmingham or the federal government.  Private employers can still use job applications that ask about criminal convictions.

Nevertheless, there is a growing movement for Congress to pass “Ban the Box” legislation which would, at a minimum, apply to federal contractors.  Similarly, the City of New York has already imposed such legislation on private employers.

The devil is in the details with such legislation.  If Birmingham’s executive order was used as a starting point for legislation, the burdens on employers could be onerous.  What happens if an employer uses a criminal record as an “automatic bar to employment,” even in the post-offer stage?  How extensive must the opportunity be to allow applicants to “contest the content and relevance of a criminal conviction”?   What is the penalty for violations?

Employers should keep an eye on the “Ban the Box” movement and work to ensure that any new regulations do not impose requirements that are unworkable in the private sector.