Disability Discrimination

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A notable case caught our eye recently coming out of the United States District Court for the Middle District of Florida filed by the Equal Employment Opportunity Commission (“EEOC”). Namely, The EEOC sued CRST International, Inc. (“CRST”) claiming that it, among other things, violated the Americans with Disabilities Act (“ADA”) by failing to accommodate and retaliating against a prospective truck driver.

The new driver allegedly requested the use of a prescribed emotional support animal to mitigate post-traumatic stress and mood disorder. CRST purportedly told the new driver simply to leave his dog at home and refused to provide an accommodation, citing unbendable company policies, and effectively rescinded his employment offer. Unfortunately, usually these policies must bend, or at the very least the possibility explored.

While the CRST case is in its early stages, and no court decisions have yet been issued, this complaint serves as a great illustration of just how far reaching the disability discrimination laws are. Here many employers would scoff or summarily dismiss the seemingly unworkable request of having a service animal in a trucking business. However, the CRST complaint reminds us of the potential disability accommodations that employers must consider and make. Regardless of the nature of the requested accommodation, the employer is, at the very least, required to engage in the interactive process with the employee and determine what, if any, reasonable accommodations can be made. Otherwise, you may end up on the wrong side of an EEOC lawsuit alleging ADA retaliation and failure to accommodate.

Please remember that when an employee or prospective employee requests a workplace disability accommodation in order to perform his or her job, an employer generally must consider the accommodation and, if it can be implemented without undue hardship, it must be granted. Anytime an accommodation request is received, never dismiss the request out-of-hand. Make sure to talk to your in-house human resources department or legal department, or involve outside counsel if necessary, to determine your legal obligations. Also, note that your state or local laws may provide additional protections beyond the ADA.

Bill Egan writes:

Cancer treatment
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Aside from whistleblower and highly offensive sexual harassment cases, there may be no claim that elicits the protective instincts of the average jury more than disability discrimination cases, especially where the disability is cancer-related.  Employees with disabilities who are terminated without demonstrable cause often are seen as suffering the double indignity of dealing with whatever hardship their disability imposes and the termination of their employment because of it.  Adept attorneys paint a picture of the employer kicking an employee when he’s down and when you place the outcome of such a case in the hands of average Americans (i.e., a jury), and you have the makings of a big verdict.

Such was the case of Axel v. Fields Motorcars of Florida, Inc., where a Mercedes dealership terminated a 71-year-old used car and wholesale manager, Michael Axel, who had been diagnosed with kidney cancer in 2010.  Following surgery, the cancer metastasized to his lungs.  Axel elected to undergo an experimental treatment that came with very unpleasant side effects described as “tremendous” stomach pain, sores in his mouth, and sores on his feet.  Evidence was introduced that Axel’s supervisor expressed frustration with Axel because, among other reasons, he was “not getting real doctors treatment” but “other holistic or crazy things.”

The dealership terminated Axel in 2014, allegedly for making misrepresentations in 2004 on paperwork needed to obtain an auto auction access card for his son, a non-employee of the dealership who occasionally assisted Axel in transporting used cars to the local auto auction.  The son was not accused of misusing this authority other than to move vehicles.  In fact, he was employed by the dealership at the time of his father’s termination.   The misrepresentation on which the termination allegedly was based was discovered ten years after the fact, leading to the decision to terminate.  Pre-trial submissions did not reveal much in the way of other performance deficiencies by Axel.

The jury apparently rejected the dealership’s stated reason for the termination as pretext for disability discrimination.  It found that Axel was fired because of his disability in violation of the Florida Human Rights Act and awarded Axel $680,000 in lost wages and benefits, $600,000 for emotional distress, and $3.22 million dollars in punitive damages.  Notably, despite allegations of stray remarks reflective of possible age animus, the jury found that there was no age discrimination in the decision to terminate Axel’s employment.

A runaway verdict?  Perhaps, but verdicts of this nature and magnitude seem to occur more frequently in disability discrimination cases. This jury’s rejection of the age discrimination claim demonstrates a thoughtful and discerning assessment of the evidence presented.  This case serves as a reminder that disability discrimination cases stand in a class of their own and must be handled with utmost care and discretion.

Bill Egan is a partner in the Labor & Employment Department, resident in Fox’s Minneapolis office.

Bill Egan writes:

Under the Americans With Disabilities Act (ADA), a covered employer must provide reasonable accommodations to disabled employees, unless doing so would cause an undue hardship on the employer. Generally, an employer’s duty to reasonably accommodate is initiated by a request for an accommodation from a disabled employee or someone speaking on the employee’s behalf.

Pillars
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Most courts have held that a request for accommodation from an employee is a “predicate requirement” to the interactive process for determining whether a reasonable accommodation can be made and what that accommodation will look like. The ADA does not require an employer to speculate about the accommodation needs of employees and applicants.

That has now changed, at least in the Eighth Circuit.  In Kowitz v.Trinity Health, a hospital respiratory therapist returned to work under a lifting restriction after undergoing spine surgery and exhausting her 12-week FMLA leave.  Although the hospital initially accommodated this restriction, it terminated the therapist’s employment after she advised that her doctor restricted her for four months from performing the physical demonstration portion of the “basic life support” recertification process, a departmental requirement.

The District Court granted summary judgment to the hospital concluding that Kowitz was not qualified to perform the essential functions of her job because she was not certified to provide basic life support.  The court further held that because Kowitz never requested a transfer to another position, the hospital was under no obligation to reassign her to a position that did not require the basic life support certification.

The Eighth Circuit reversed, over a strongly worded dissent, holding that an express request for assistance is not needed to trigger an employer’s duty to discuss the reasonable accommodation option with an employee.  The court held, “Though Kowitz did not ask for a reasonable accommodation of her condition in so many words, viewing the facts in the light most favorable to Kowitz, her notification to her supervisor that she would not be able to obtain the required certification until she had completed physical therapy implied that an accommodation would be required until then.”

The lesson from Kowitz is if the facts known to the employer about an employee’s disability are sufficient to make the employer aware of the possible need for a reasonable accommodation, the employer is legally obligated to engage in the interactive process to determine if indeed the employee needs such an accommodation and whether an accommodation can be made without posing an undue hardship on the employer.

Bill Egan is a partner in the Labor & Employment Department, resident in Fox’s Minneapolis office.

Gambling at casinos and on sports events have been a part of the fabric of American life since long before employment laws existed.  Unfortunately, the thrill of the bet can give way to a compulsive addiction that, left unchecked, can destroy an individual’s life.  If you have a workplace of any size, it is likely that there is at least one employee who suffers in silence from gambling addiction.

In a large percentage of cases, this has no effect on the workplace environment.  However, often gambling addictions give way to substance abuse, depression, and theft, all of which have serious implications on the workplace.

dice

However, federal and state courts (in most states) have been very clear that gambling addictions are not disabilities under the Americans with Disabilities Act or most of the state corollaries.  Despite the fact that the definition of “disability” has broadened over time, an employee is likely not going to be able to sustain an action for discrimination based upon a gambling addiction.

What should an employer do if an employee confesses an addiction to gambling?  Well, obviously we recommend referring them to the myriad of support groups that address the underlying issue (1-800-GAMBLER being the most well-known).  If the gambling addiction is accompanied by a disability that is recognized by state and federal law, that disability should be addressed. Beyond that, if the gambling addiction has led to bona fide performance issues, any discipline should be meted out at the discretion of the employer.

11298754_sTime for a pop-quiz on disabilities in your workplace!  (I hope you brought your No. 2 pencils, because it’s multiple choice).

You are a supervisor at Company X. You have an employee who has worked for the company for a number of years. By all accounts, he’s a reasonably good employee — receiving raises and benefits for performance over the years. At the time he was hired, he disclosed a number of his medical conditions, including hemophilia, HIV+ status, and Hepatitis C. The employee comes to you and says he will be undergoing a six-month treatment regimen for his hepatitis, for which he will not take leave during the treatment period.

Do you:

(A) Share with the employee your own personally-held fears and stereotypes regarding his illness
(B) Distance yourself from the employee, speaking to him less and less during the course of his treatment
(C) Fire the employee four months after he completes the treatment
(D) None of the above

If you picked (D), congratulations — you’re correct!  One supervisor at NJ Transit, however, appears to have run afoul of a similar situation, resulting in the state transportation agency shelling out $200,000 to settle a discrimination suit:

Kenneth Hitchner, a nine-year employee at the public transit agency, disclosed when he was hired as a public information officer in 2002 that he had hemophilia, Hepatitis C and was HIV positive, according to a copy of the lawsuit obtained by The Trentonian . . .

Hitchner’s direct supervisor, Ken Miller, allegedly had an animus towards people infected with Hepatitis C.

“Miller had previously told Hitchner that Miller was afraid of Miller’s own mother because she had Hepatitis C and was afraid that she would infect his kids by going to the bathroom in the house,” the lawsuit reads . . .

“Miller began distancing himself from Hitchner and speaking to Hitchner less and less during the months that Hitchner was undergoing the Hepatitis C treatment,” the lawsuit states.

After his treatment was complete in February 2010, Hitchner was advised four months later that his job was eliminated due to “budget cuts,” court documents outline.

Hitchner then learned that other employees without disabilities whose positions were also eliminated were offered other jobs with the agency at the same rate of pay. When Hitchner protested this to the agency and requested a similar placement, he was offered a customer service representative position, which is an entry-level position with lower pay, documents show.

A few disclaimers. The news story above only cites the plaintiff’s complaint. Thus, we don’t have the benefit of knowing what legal defenses the employer would have asserted, nor the additional facts the employer might use to support those defenses. Another point to keep in mind: as the case has settled, none of its allegations or theories have been tested by rigorous cross-examination. Nor has any liability been duly adjudged by a jury. It’s fair to say that we are probably not getting the full picture by merely reading the story and that the hypothetical presented above is somewhat oversimplified.

All of that said, the story raises a few worthwhile points to remember when it comes to employee disabilities in the workplace. (Note: the suit alleges a claim under New Jersey’s Law Against Discrimination, but for the benefit of our broader readership, I will discuss these points in the context of the Americans with Disabilities Act).

First, do not rely on fear, generalizations, or stereotypes in making decisions about an employee’s disability.  The ADA does permit employers to set qualification standards that an employee will not pose a “direct threat” to health and safety in the workplace. “Direct threat” is a legal defense established by the ADA that refers to “a significant risk to the health or safety of others that cannot be eliminated by reasonable accommodation.” The ADA’s regulations require an employer to weigh a number of factors, and as such, this defense is very fact-specific. However, the determination must be established through individualized judgments of the employee’s ability to safely perform the job’s essential functions and must be based on reasonable medical judgment and objective evidence. In other words, taking adverse action against an employee that may be motivated by fear or stereotypes regarding their disability (such as, a supervisor allegedly expressing fear that people with Hepatitis C will infect others by using the bathroom) is asking for legal trouble.

Second, remember: “disability” is broadly defined. A bit of backstory may be helpful here. In 2008, Congress amended the ADA via the Americans with Disabilities Amendments Act (or, “ADAAA”). Congress did so in response to a number of court decisions, including Supreme Court decisions, that construed the definition of disability in what it regarded as too narrow or technical a fashion. In particular, the ADAAA included a directive that disability should be broadly construed in favor of coverage.

One method to establish protected disability status is when an employee has a physical or mental impairment that substantially limits one or more major life activities.  The Act itself states the determination of whether a life activity is “major” should not be interpreted strictly or create a demanding standard for disability.  Moreover, with the exception of eyeglasses or contact lenses, determining if a major life activity is substantially limited is done “without regard to the ameliorative effects of mitigating measures,” such as medication.  Thus, in the example above, an employer would not be able to successfully argue that because the employee was undergoing treatment, he was not disabled under the meaning of the law. 

Third, train, train, and train some more. Training your supervisors, managers, and HR team on the nuances of the ADA (and any state/local law equivalents in the states where your business operates) is a crucial component of ensuring compliance, promoting harmony in the workplace, and reducing potential legal exposure. You should plan for regular training — at least annually.

Employee Handbook
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In newly published guidance, the Equal Employment Opportunity Commission (“EEOC”) discusses employer leave policies and the Americans with Disabilities Act (“ADA”). This guidance is significant for a number of reasons.  First, ADA-related developments feature prominently in the EEOC’s most recent enforcement plan. Second, alleged ADA violations continue to rank high on the list of grounds for which the EEOC both receives complaints and ultimately initiates lawsuits. Third, the interaction of ADA and employer leave policies adds another wrinkle to the complex interaction of laws at the federal, state, and local level that require paid or unpaid leave in some fashion.

The Relevant ADA Requirements

Before discussing the EEOC’s guidance, a brief refresher on the ADA “basics” may prove helpful. The ADA prohibits disability-based discrimination in employment and requires covered employers to provide reasonable accommodations to employees with disabilities. ADA regulations define “reasonable accommodation” as “any change in an employee’s work environment or in the way things are customarily done that enables an individual with a disability to enjoy equal employment accommodation.”

Under this definition, a broad variety of modifications to the work environment could potentially be reasonable accommodations, including leave. Potential accommodations, however, are not reasonable if: 1) they require eliminating an essential function of the job, or 2) they would cause undue hardship to the employer. A determination of undue hardship is a case-by-case analysis of the effect of the proposed accommodation on the employer’s operations or finances.

An employee who requests an accommodation triggers the “interactive process,” which, in broad terms, can be thought of as a dialogue between employer and employee seeking to identify the precise limitations of the disability and the potential reasonable accommodations that could overcome those limits. The employee does not need to use any specific phrasing to request an accommodation.

So how does the ADA affect employer leave policies?

Equal Access to Leave                                                                                            

Employers may not discriminate in employment on the basis of an individual’s disability. In the leave context, this means when an employee with a disability requests leave within the employer’s existing policies, the employer should treat that employee the same as employees without disabilities who request leave. The EEOC highlights this requirement with an example:

Example 2: An employer permits employees to use paid annual leave for any purpose and does not require that they explain how they intend to use it. An employee with a disability requests one day of annual leave and mentions to her supervisor that she is using it to have repairs made to her wheelchair. Even though he has never denied other employees annual leave based on their reason for using it, the supervisor responds, “That’s what sick leave is for,” and requires her to designate the time off as sick leave. This violates the ADA, since the employer has denied the employee’s use of annual leave due to her disability.

Leave as a Reasonable Accommodation

The EEOC’s guidance highlights the role leave can play as a reasonable accommodation. The EEOC’s guidance states that employers are required to consider unpaid leave as a reasonable accommodation to an employee who has a disability, even if:

the employer does not offer leave as an employee benefit;

the employee is not eligible for leave under the employer’s policy; or

the employee has exhausted the leave the employer provides as a benefit (including leave exhausted under a workers’ compensation program, or the FMLA or similar state or local laws).

Employers need not provide unpaid leave as a reasonable accommodation if doing so would create an undue hardship. Moreover, the EEOC cautions employers should not penalize employees who use leave as a reasonable accommodation, as doing so may be considered retaliation that violates the ADA.

Potential Red Flags

The EEOC guidance highlights leave-related policies where employers may run into ADA trouble.

Maximum Leave Policies are common to many employers in various forms. Sometimes these policies are referred to as “no fault” leave policies.  These policies often place caps on the amount of leave employees can use. Limits on Unplanned Absences are another policy tool some employers implement, and these policies typically spell out a set number of unplanned days off an employee is permitted to take before disciplinary action may occur. As the EEOC correctly notes, employees with disabilities aren’t categorically exempt from these policies. Nevertheless, employers may need to adjust these policies as a reasonable accommodation for an employee with a disability, unless the modification would constitute an undue hardship.

100% Healed Policies. Sometimes, employers may require an employee with a disability to be 100% healed (meaning, they have no medical restrictions) before returning to work, such as, for example, after a lengthy medical leave related to surgery. If such an employee is able to perform the essential functions of his or her job with our without reasonable accommodation, requiring that employee to be 100% healed before returning to work may violate the ADA. While there are exceptions – including undue hardship and the direct threat defense – employers maintaining 100% healed policies should tread carefully to ensure ADA compliance.

Bottom Line

In light of the EEOC’s new guidance on this topic, what should employers do?

  • Self-Audit. Review internal policies, procedures, and employee job descriptions for ADA compliance.
  • Train. Ensure that managers, supervisors, and HR professionals, as appropriate, are regularly trained on how to respond to accommodation requests, including leave as a possible accommodation.
  • Document, document, document.  Keep detailed records of discussions with employees that involve the interactive process and any decisions on requests for accommodation (and remember – there are no “magic words” an employee must use when requesting an acommodation).
  • Consult Counsel. Work with knowledgeable counsel early on to ensure ADA compliance and reduce legal exposure.

Today’s post comes to us courtesy of Brian McGinnis, an associate in our Labor and Employment Department in our Philadelphia office.

17755599_sThe Centers for Disease Control and Prevention estimate that over 1.2 million Americans live with an HIV-positive health status.  Under the Americans with Disabilities Act (“ADA”), HIV-positive status qualifies as a disability, providing a variety of legal protections to HIV-positive employees who work for qualifying employers.  These provisions include protections against discrimination and harassment on the basis of an employee’s HIV-positive status.

The Equal Opportunity Employment Commission (“EEOC”) recently addressed this issue, publishing a fact sheet entitled, “Living with HIV Infection:  Your Rights in the Workplace under the ADA.”  This fact sheet provides guidance to HIV-positive employees on a variety of their rights under the ADA, particularly the process of seeking a reasonable accommodation from their employer.

During the process of seeking a reasonable accommodation, the EEOC notes that employees may not need to disclose their HIV-status;  rather, it may be sufficient for employees to state they have an immune disorder.  Whether an employee discloses his or her HIV-positive status or provides a more generalized description, it is critical that employers keep this information confidential.

The EEOC suggests a variety of proposals that could qualify as a reasonable accommodation, depending on the circumstances, including:  modified schedules (including frequent rest breaks, bathroom breaks, as well as flexible time to schedule doctors’ or other medical appointments), unpaid time off for required treatment or recuperation, ergonomic office furniture, and permission to work from home, among others.  This list, however, is non-exhaustive, and the EEOC encourages employees to request accommodations specific to their unique needs according to their condition.

It is also critical for employers to know they may face ADA liability if they take certain actions toward HIV-positive employees during this process on the basis of myths or stereotypes about HIV/AIDS.  This reality is particularly noteworthy, given the history of misinformation, stigma, and stereotyping that has surrounded HIV/AIDS since it first came into the public eye in the late 1970s and early 1980s.

Because a broad range of reasonable accommodations may be sufficient for HIV-positive employees and because of the historic stigmatization of HIV-positive people, employers should consult knowledgeable counsel to ensure effective and appropriately sensitive management of the reasonable accommodations process.  Doing so will not only help employers meet their legal obligations under the ADA, but can also promote a beneficial resolution for both employer and employee.

Update:  Back in October, we brought you the story of Former USC Football Coach Steve Sarkisian and how the USC Administration handled alleged instances of  Sarkisian drinking on the job.  Sarkisian has filed suit in California State Court, claiming that, inter alia, he was terminated on the basis of his disability (alcoholism) .  He further alleges that USC failed to engage in the interactive process.  Notice that in his complaint, Sarkisian denies being inebriated, as his attorneys similarly recognize the need to separate the condition from the conduct.  You can view the Complaint here.

This week, the University of Southern California terminated Steve Sarkisian, their head football coach.  The firing came after a cavalcade of headlines that Sarkisian, essentially the CEO of a multi-million dollar enterprise, was increasingly showing up at practices, team functions, and even games allegedly under the influence of alcohol.  The move came one day after Sarkisian took an indefinite leave of absence to enter treatment for alcoholism.

Obviously, we here at the Employment Discrimination Report wish Coach Sarkisian nothing but the best in his attempts to embrace recovery and put his life back on track.  But the way USC handled the situation with a high-profile employee offers instruction on how to handle employees with substance abuse issues out of the public eye.

SteveSarkisian

Under the Americans with Disability Act and most state anti-discrimination statutes, alcoholism meets the definition of a disability.  But that should not be taken to mean an employer has to put up with an employee’s drinking on the job or showing up drunk simply because they are an alcoholic. The disease of alcoholism meets the definition of a disability, which means that an employer can’t take into account that an employee is an alcoholic when making employment decisions. However, an employer may maintain a blanket prohibition on drinking at work that applies to both alcoholics and non-alcoholics alike (If this is not in your handbook, it is well past time for an update).

An employee who can’’t meet those standards because of drinking may be disciplined, whether they are an alcoholic or not.  Taking Coach Sarkisian as an example, while he self-identifies as an alcoholic, USC can state that he was terminated for showing up intoxicated on the job, not because of his disease.  The moral of the story is that the employer must set policies that separate the disease from conduct.  This will allow employers to deal with employees caught drinking on the job yet still be in compliance with anti-discrimination statutes.

Feel free to contact our Labor and Employment Department with any further questions.

This week, the University of Southern California terminated Steve Sarkisian, their head football coach.  The firing came after a cavalcade of headlines that Sarkisian, essentially the CEO of a multi-million dollar enterprise, was increasingly showing up at practices, team functions, and even games allegedly under the influence of alcohol.  The move came one day after Sarkisian took an indefinite leave of absence to enter treatment for alcoholism.

Obviously, we here at the Employment Discrimination Report wish Coach Sarkisian nothing but the best in his attempts to embrace recovery and put his life back on track.  But the way USC handled the situation with a high-profile employee offers instruction on how to handle employees with substance abuse issues out of the public eye.

SteveSarkisian

Under the Americans with Disability Act and most state anti-discrimination statutes, alcoholism meets the definition of a disability.  But that should not be taken to mean an employer has to put up with an employee’s drinking on the job or showing up drunk simply because they are an alcoholic. The disease of alcoholism meets the definition of a disability, which means that an employer can’t take into account that an employee is an alcoholic when making employment decisions. However, an employer may maintain a blanket prohibition on drinking at work that applies to both alcoholics and non-alcoholics alike (If this is not in your handbook, it is well past time for an update).

An employee who can’’t meet those standards because of drinking may be disciplined, whether they are an alcoholic or not.  Taking Coach Sarkisian as an example, while he self-identifies as an alcoholic, USC can state that he was terminated for showing up intoxicated on the job, not because of his disease.  The moral of the story is that the employer must set policies that separate the disease from conduct.  This will allow employers to deal with employees caught drinking on the job yet still be in compliance with anti-discrimination statutes.

Feel free to contact our Labor and Employment Department with any further questions

This blog post was inspired by the amazing news that my partner, Patrick Murphy, was nominated by President Barack Obama as the United States Under Secretary of the Army.  My first reaction was to be impressed at this well-deserved honor for Patrick.  My second reaction was “what does the Under Secretary of the Army do?”

7995575_sAfter some quick Internet research, I discovered that the Under Secretary is the second-highest ranking civilian official of the United States Department of the Army.  After that I was even more impressed with Patrick’s accomplishments. It also got me thinking about a situation that seems to arise in a lot of organizations.

Imagine that after some organizational changes in the organization, a new head of a department reviewed the people in the department to see what everyone did just to get a handle on how to supervise the team.  After completing the review, there were several large question marks about what people did in certain positions.  Upon further investigation, there seemed to be one position that no one could explain what that person did.

This is problematic for a lot of reasons, not just how to evaluate performance when you do not know what tasks the person is supposed to be accomplishing.  Another issue issue that arises is dealing with accommodation requests.  In order to address accommodation requests, it is generally necessary to know what are a persons essential and non-essential job functions to evaluate whether an accommodation is reasonable.

It is far easier to make the accommodation analysis if there are written job descriptions that accurately describe the job functions of particular positions.  This helps to establish expectations for the position as well serves as a guideline for what non-essential functions may be removed as accommodation requests.

Also, having written job descriptions that are given to employees helps employers defend against claims of failure to accommodate.  With a written job description, it is difficult for an employee to argue that a job function is not essential or that an employer belatedly made up a job description to add tasks as essential to avoid making an accommodation.

Jobs do evolve over time so employers should periodically review job descriptions to determine if they still accurately describe the position.  If job descriptions are changed, it is helpful if a copy of the new job description is given to the employee and the employee acknowledges receipt of the job description.