ADA: Extended Leave Is Not a Reasonable Accommodation



ADA leave of absence reasonable accommodation Alabama employment law
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.”

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.

Prohibiting Dreadlocks Is Not Race Discrimination Under Title VII

Dreadlocks Race Discrimination
An Employer’s Decision to Prohibit Dreadlocks Does Not Constitute Race Discrimination

The Eleventh Circuit Court of Appeals has ruled that an employer does not commit race discrimination by prohibiting African-American employees from wearing dreadlocks.  See EEOC v. Catastrophe Management Solutions, No. 14-13482, 2016 WL 4916851.

Catastrophe Management Solutions (“CMS”) interviewed Chastity Jones for a position as a customer service representative.  During the interview, Ms. Jones wore a blue business suit and wore her hair in short dreadlocks.  During  a meeting after the interview, CMS’s Human Resources Manager offered a group of employees (including Ms. Jones) positions as customer service representatives.  After that meeting, Ms. Jones spoke to the HR Manager about scheduling issues, and the HR Manager informed Ms. Jones that CMS could not hire her “with the dreadlocks.”  Allegedly, the HR Manager said:  “they tend to get messy, although I’m not saying yours are, but you know what I’m talking about.”  When Ms. Jones refused to cut her hair, the HR Manager requested that Ms. Jones return her hiring paperwork.

CMS had a race-neutral grooming policy which read as follows:  “All personnel are expected to be dressed and groomed in a manner that projects a professional and businesslike image while adhering to company and industry standards and/or guidelines…. [H]airstyle should reflect a business/professional image.  No excessive hairstyles or unusual colors are acceptable[.]”

The United States Equal Employment Opportunity Commission sued CMS for race discrimination under Title VII of the Civil Rights Act of 1964.  The Eleventh Circuit recognized that the concept of “race” today might be different from the concept of race when Title VII was enacted in 1964.  Indeed:  “It may be that today ‘race’ is recognized as a ‘social construct’ … rather than an absolute biological truth.”  Catastrophe Management Solutions, 206 WL 4916851 at *7.  Nevertheless, the Court declined to adopt a more-contemporary concept of race:  “But our possible currently reality does not tell us what the country’s collective zeitgeist was when Congress enacted Title VII half a century ago.  ‘That race is essentially only a very powerful idea and not at all a biological fact is, again, an emerging contemporary understanding of the meaning of race.'”  Id.

Utilizing a contemporary concept of race, the EEOC argued that a ban on dreadlocks amounted to race discrimination:  “black persons choose to wear dreadlocks because that hairstyle is historically, physiologically, and culturally associated with their race.”  Id. at *9.  But, the Eleventh Circuit rejected that argument by relying upon cases from the 1970’s holding “that Title VII protects against discrimination based upon immutable characteristics.”  Id. at *8.

The court then extended that rationale to find that “Title VII protects person in covered categories with respect to their immutable characteristics, but not their cultural practices.”  Id. at *9.  The court concluded:  “That dreadlocks are a ‘natural outgrowth’ of the texture of black hair does not make them an immutable characteristic of race.”  Id.  “[D]iscrimination on the basis of black hair texture (an immutable characteristic) is prohibited by Title VII, while adverse action on the basis of black hairstyle (a mutable choice) is not.”  Id.

Catastrophe Management Solutions should not be interpreted as carte blanche authority for employers to terminate African-American employees on the basis of hairstyle.  In fact, the Eleventh Circuit recognized that “the distinction between immutable and mutable characteristics of race can sometimes be a fine (and difficult) one ….”  Nevertheless, this case provides employers with increased protection if they possess a race-neutral grooming policy which is uniformly enforced without regard to race.


Constructive Discharge Claims Just Got Easier for Employees


Supreme Court

Yesterday, the United State Supreme Court released a decision which makes it easier for employees to win constructive discharge claims.  See Green v. Brennan, No. 14-613, 2016 WL 2945236 (May 23, 2016).  A constructive discharge occurs when an employer makes an employee’s working conditions so intolerable that any reasonable person would be compelled to resign their job.

The issue in Green concerned the time limitations period in constructive discharge claims.  Generally, employees are required to file a charge of discrimination with the EEOC within 180 days of the last discriminatory act.  Under that general rule, some courts required employees to file their EEOC charge within 180 days of the last “bad act” by the employer.  Other courts permitted the employee to file within 180 days of deciding to resign.  Typically, the resignation decision occurred later than the last “bad act” and employees in some courts found their claims barred by the limitations period.

In a 6-2 decision, the Supreme Court found that the limitations period begins to run on the date that the employee declares his resignation — not on the date of the last discriminatory act.  As a result of that decision, employers and employees now have clarity on the limitations period in constructive discharge cases.  But, employees are also given a longer limitations period, which removes one potential defense for employers.

EEOC Issues Final Rule on ADA and Wellness Programs



Yesterday, the United States Equal Employment Opportunity Commission issued its final rule discussing the interaction of employee wellness programs, the Americans with Disabilities Act (“ADA”) and the Genetic Information Nondiscrimination Act (“GINA”). The EEOC’s press release can be found here:  EEOC Press Release on Wellness Programs

Wellness programs provide a compliance dilemma for employers.  Generally, those programs are a good thing, because they encourage better health and lifestyle choices for employees.  Nevertheless, the ADA and GINA both generally prohibit employers from obtaining and using information about employees’ health conditions. Both acts contain exceptions that allow employers to ask health-related questions as part of a voluntary wellness program.

But, if an employer offers a financial incentive to employees to join a wellness program, is the program “voluntary”?  The EEOC’s final rule permits employers to ask health-related questions and also offer employees incentives of up to 30 percent of the total cost of self-only coverage.  The rule also implements notice requirements to employees and limitations on the amount of information sharing between the programs and employers.

The new rule goes into effect in 2017.  If you sponsor an employee wellness program, carefully review the new rule to ensure compliance.

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


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).