Reasonable Accommodation

Judge_Gorsuch_official_portraitA colleague recently brought to my attention a 2014 employment case written by then-Circuit Judge Gorsuch for a panel of the U.S. Court of Appeals for the 10th Circuit – a particularly interesting opinion that may give us hints as to how Justice Gorsuch may rule in future employment cases before the Supreme Court.

In Hwang v. Kansas State University, an assistant professor was diagnosed with cancer and received a six-month leave of absence. (In the opinion, Judge Gorsuch specifically noted it was a “(paid) leave.” Whether or not it was paid is irrelevant to the legal analysis, but his express mention of payment suggests approval of the employer’s actions as exceeding the norm). Towards the end of the six months, she requested additional leave of apparently another few months. The University, however, had an inflexible policy limiting leave to six months, and it denied her request. The professor then sued, claiming that the University’s inflexible leave policy violated the Rehabilitation Act. Continue Reading Justice Gorsuch and the ADA?

healthFollowing up on my recent post, “Employer May Change Essential Functions of the Job,” I thought we’d discuss another little-mentioned aspect of essential job functions under the Americans with Disabilities Act – job functions that are rarely performed can still be essential!

As we’ve previously discussed, the ADA protects employees with disabilities who, with or without reasonable accommodations, are able to perform the essential functions of his/her job. The ADA regulations define “essential function” as “a fundamental job duty of a position.” But how do you determine what are the essential functions of a particular job? According to the Equal Employment Opportunity Commission (which is the federal agency charged with enforcing the ADA) and the regulations, the following factors should be taken into account in determining whether a job function is essential: Continue Reading Rarely Performed Job Functions May Still Be “Essential” Under ADA

healthA recent case highlighted for me (and now for you) an interesting point under the Americans with Disabilities Act (ADA) – whether essential job functions can change. As you may know, the ADA protects employees with disabilities who, with or without reasonable accommodations, are able to perform the essential functions of his/her job. This means that the issue of what are the essential functions of the job is critically important.

According to the EEOC, the following factors should be taken into account in determining whether a job function is essential:

  • whether the reason the position exists is to perform that function,
  • the number of other employees available to perform the function or among whom the performance of the function can be distributed, and
  • the degree of expertise or skill required to perform the function.

The EEOC also identifies the following types of evidence that can be used to establish that certain job functions are essential:

  • the employer’s judgment as to which functions are essential,
  • a written job description prepared before advertising or interviewing for a job
  • the actual work experience of present or past employees in the job,
  • the time spent performing a function,
  • the consequences of not requiring that an employee perform a function, and
  • the terms of a collective bargaining agreement.

Continue Reading Employer May Change Essential Functions of the Job

US-EEOC-Seal.svgIn a prior blog post, “EEOC Says Sexual Orientation Is Protected Under Title VII!!,” I noted that the Equal Employment Opportunity Commission can be sneaky in seeking to expand the scope of the laws it enforces. It will drop bombshells in the middle of otherwise pretty innocuous guidance or resource documents, as if hoping no one notices. The latest example of this is in its just-announced (December 12, 2016) publication on the rights of job applicants and employees with mental health conditions, in which the EEOC oh-so-casually expands the reach of the American with Disabilities Act! Continue Reading EEOC Expands the ADA!

Mark of the BeastBack around Halloween, we offered you a seasonally appropriate and cautionary tale about accommodating an employee’s religious concerns. As we discussed in that blog about the case of EEOC v. Consol Energy, Inc., the employee refused to use a biometric hand scanner because he was afraid it would reveal or imprint the mark of the beast. Because the mark of the beast is supposed to appear on the right hand, the company told him to use his left hand, but the employee believed that using either hand was a problem. The company refused to permit him to record his time manually or to report it to his supervisor, and the employee chose to retire under protest. The EEOC brought suit against the company on his behalf for failure to provide a reasonable accommodation for his religious beliefs and constructive discharge (i.e. the employee was forced to quit), and the employee was awarded over a half-million dollars in damages- a death knell to the employer’s arguments!

Like a zombie, the employer has returned from the grave to ask the court to throw out the judgment on various grounds. The court’s reaction to the employer’s arguments provide some additional lessons for employers generally. Continue Reading Return of the Beast: Religious Accommodation Redux

According to the federal district court in Mendillo v. The Prudential Ins. Co. of America, the answer is “yes.” But I struggle with this decision, because I think it ties an employer’s hands and undercuts the employer’s right to demand medical information under the Americans with Disabilities Act.

In this case, a call center employee was pretty seriously injured in a car accident.  There were some performance issues that pre-dated her car accident, and they continued after her return to work. About four months later, the employee’s responsibilities were changed so that her off-line work was taken away and she did telephone work full-time. She told her supervisor that the full-time telephone work would exacerbate her back pain, since she was able to get up and stretch  when she was doing off-line work. In fact, her back pain did worsen with the full-time telephone work, which caused her doctor to order that she cut back on her hours. In addition, her performance took an immediate and significant turn for the worse. She was able to improve her performance, but it fluctuated over the next year, finally resulting in her termination. She then sued, alleging a number of claims including that the company failed to accommodate her in violation of the ADA. Continue Reading Must Employers Accept An Employee’s Stated Disability Without Question?

So as Halloween approaches, a recent religious accommodations case involving the “mark of the beast” seemed seasonally appropriate.

For those of you not so familiar with the Bible, the Book of Revelation tells the story of a satanic beast that comes out of the earth and forces all humans to worship another beast coming from the sea. The worshipers are marked on their right hands or their foreheads with the number “666” – i.e. the “mark of the beast.”Mark of the Beast

Several years ago, a client implemented a biometric timekeeping system, which used a hand scanning procedure. One of the employees objected to using the new system on religious grounds, based on his fear that the system would either imprint or reveal the mark of the beast (it wasn’t terribly clear exactly what the concern was). My partner, Mike McGuire, noted that the mark appears on the right hand, however, and the employee could simply use his left hand on the scanner. Well, that seemed to fix the problem – a pretty simple solution, wasn’t it?

Unfortunately, it didn’t work out so easily for another company – Consol Energy. In that case, an employee who was an Evangelical Christian objected to the biometric scanning system for the same reasons as our client’s employee. Consol actually provided a letter to the employee from the company that made the system, explaining that the Book of Revelation specifies that the mark will appear only on the right hand (or forehead), and therefore the left hand may be used for scanning purposes.

Continue Reading Religious Accommodations – A Beastly Concern

I’m the type of person who reads the ends of books first (which drives my book club friends crazy).  I always want to know how things turn out, which can be a little frustrating in my area of practice.  I provide advice and counsel to clients on how to deal with sticky employment situations, but I don’t always hear what happens afterwards. ( I assume things go as planned, since my clients don’t have to ask for further advice, but who knows?)

I also wonder what happens in important and interesting cases after an appeals court weighs in and reverses a lower court.  In those cases, the matter is sent back to the lower courts for further proceedings consistent with the appellate court decision, but you don’t always hear what actually happens there.  One such recent important and interesting case was EEOC v. Abercrombie & Fitch , in which the U.S. Supreme Court reversed the U.S. Court of Appeals for the 10th Circuit.  In this case, the applicant for employment did not state that her headscarf was worn for religious reasons, but the company believed that it was and it chose not to hire her because she did not fit its East Coast Preppy “Look” policy.

The 10th Circuit had held that an employer must have actual knowledge of an individual’s religious need in order to be liable for failing to accommodate that need under Title VII.  The Supreme Court reversed the 10th Circuit, however, and held that if an employer refuses to hire an individual based on its belief that she will require a religious accommodation, and she actually would need one if hired, Title VII is violated. Proof of actual knowledge is not required.

So, for those of you, like me, who wondered what happened after the Supreme Court’s ruling, the Equal Employment Opportunity Commission issued a press release, announcing that Abercrombie & Fitch had settled the case by paying $25,670 in damages to the applicant (who apparently now works at Urban Outfitters) and $18,983 in court costs.

Although it wasn’t included in the press release, I’m sure that Abercrombie & Fitch is also reworking its interview and hiring policies, and training its managers, with regard to possible religious dress accommodations – a step that other employers should also consider.  If an applicant dresses in a manner that is not compliant with the company’s dress code, it may be wise for the employer to explain the dress code and ask if the applicant can comply with it – this would likely trigger the applicant to explain any religious dress needs, enabling the employer to engage in the obligatory reasonable accommodation interactive discussion.  In fact, employers may wish to make this a generally applicable question to all applicants, so as to not target individuals based on a “perceived” religious dress requirement.

And they all lived happily ever after.  The end.

Last Friday afternoon, I was listening to NPR. I am a loyal NPR listener and have been for many years. Sure, I know it has a liberal bias, but I always thought – in fact, trusted – that it at least got the basic facts right. Thus, I was unbelievably dismayed by a story on religious accommodations, in which NPR described the recent EEOC v. Abercrombie & Fitch case as the Supreme Court “upholding the right of a Muslim woman to wear a headscarf at work” (or words to that effect). The online version of that story, “Why Are Only Three Observant Sikh Men Serving In The Military?”, starts off with, “If a Muslim woman may wear a headscarf at work, as the U.S. Supreme Court has now affirmed, perhaps a Sikh man should be able to wear a turban while serving in the U.S. military.”

WHAT?!!! That is just wrong. Wholly and completely wrong. Under Title VII, an employer must provide reasonable accommodation for an employee’s (or applicant’s) religious needs, unless the accommodation would pose an undue hardship on the employer. This reasonable accommodation obligation includes exemptions from otherwise-applicable dress code policies to permit religious garb, including headscarves and turbans. That is the law, has been the law, and the Supreme Court’s ruling did not change this.

As we discussed in our May E-Update, the issue before the Supreme Court in the Abercrombie & Fitch case was whether an employer must have actual knowledge of an employee’s religious need in order to be liable for a violation of Title VII. In this case, the applicant did not state that her headscarf was worn for religious reasons, but the company believed that it was and it chose not to hire her because she did not fit its East Coast Preppy “Look” policy. The Court held that if an employer refuses to hire an individual based on its belief that she will require a religious accommodation, and she actually would need one if hired, Title VII is violated. Proof of actual knowledge is not required. This is very different than “affirming” the right to wear a headscarf at work.

I was so upset, I nearly hit the car in front. Yes, I know that’s a bit of an overreaction, but let me explain: NPR’s mischaracterization of Title VII and the Supreme Court’s ruling fosters a fundamental misunderstanding in NPR listeners about the law and the rights and obligations of employers and employees under that law.

This NPR story reminded me of another media moment that caused me distress. I enjoy watching “The Good Wife.” But there was an episode in which the show stated that employees are only protected under the National Labor Relations Act if they are actually seeking to unionize. THAT WAS WRONG TOO! The NLRA protects the rights of employees to engage in concerted activity regarding the terms and conditions of employment – which can include, but is not limited to, unionization. Group discussions about wages or working conditions, even where the employees are not interested in unionization, are protected!

Although I was dismayed by the error, I wrote it off as a television show, and we all know that’s fiction and that shows take liberties with accuracy. But in retrospect, and in combination with NPR’s error, I see a grave problem – the public doesn’t know any better, and they believe what they are seeing, reading, hearing is correct. They may make decisions based on this faulty understanding of the law. And that is not OK. I believe the media, whether entertainment or the news, owe it to us, their listeners, to get it right!

In the vein of “man bites dog,” I particularly enjoyed a recent case in which an employee claims that her employer – the Equal Employment Opportunity Commission (?!!!) – failed to accommodate her disability. Yes, the federal agency charged with the enforcement of the Americans with Disabilities Act – the same agency that broadly interprets the ADA in favor of excessive coverage (we’re all disabled, don’t you know?) – the same agency that finds all manner of ridiculous accommodations to be “reasonable” (light duty for everyone!!) – the same agency that is all too willing to find violations of the ADA by innocent employers (my poor clients!) – that agency is now itself charged with failing to comply with its obligations under the ADA!

In Buie v. Berrien (Jacqueline Berrien was the former head of the EEOC), the plaintiff, who worked at the EEOC’s Washington D.C. office, suffered from lung disease and chronic asthma. She requested an accommodation of a private office equipped with an air purifier or, alternatively, to be permitted to telework. The head of the office refused to let her telework and said there were no private offices currently available for her use. The plaintiff was assigned to an open-air cubicle, where her air purifier was ineffective because of the large space. Following surgery for her condition, the plaintiff repeatedly communicated with the Disability Coordinator for the office about her accommodation needs, without success. After several months, she concluded that she was not going to be accommodated in the Washington office. Consequently, she requested and was granted a transfer back to the Charlotte office where she had previously worked and could be provided with a private office and the option to telework – although she was not given the mediator position she wanted and had to take a demotion in grade level. Seven months later, she retired on disability.

The plaintiff then sued the EEOC for failure to accommodate her disability, among other things. Upon receiving the Complaint and before the case proceeded any further, the EEOC moved to dismiss her Complaint, arguing that she failed to state a plausible claim. The EEOC stated that her requested accommodations of a private office and/or telework were not available in the Washington office, and that it granted her an accommodation by facilitating her return to Charlotte. The federal district court, however, found that the plaintiff had made sufficient allegations in her Complaint to allow her claim to proceed- at least with regard to the telework. The court determined that there were questions of fact about whether the plaintiff had to be physically present in the workplace, as the EEOC contended, to perform her job.

The court did agree with the EEOC, however, that the failure to accommodate claim should be tossed as to the private office, since the EEOC was able to demonstrate that there were, in fact, no offices available and that it continued to look for an office until the plaintiff decided to ask for the transfer. In addition, the transfer/demotion claim was also dismissed because the employer is not obligated to provide the accommodation the employee prefers (in this case, the mediator position). Further, the plaintiff could not demonstrate that she could perform the essential functions of that mediator position, which would have required her to be in the office.

Now it may be in the end that the EEOC will be able to demonstrate that the plaintiff’s requested accommodation of telework was unworkable or disruptive or otherwise unreasonable. We’ll have to wait to see how it plays out as the case proceeds through discovery and a possible trial. But in the meantime, I’m just enjoying watching the EEOC on the hot seat for once.