Tag Archives | ADA

A reminder on reasonable accommodations: they often require deviations from employer policies

When an employee requests a reasonable accommodation, the employer is obligated to engage in the “interactive process,” which is a dialogue between employer and employee to try to come up with a reasonable accommodation.  What if an employee’s proffered accommodation conflicts with a well-established rule or policy?  Well, it depends.  Sometimes, an employer must make exceptions to its policies as a reasonable accommodation.

Take the recent EEOC settlement with Ezeflow USA, a pipefitting manufacturer in Pittsburg.  Ezeflow had a policy of not granting time off to employees during their probationary period (tip: don’t call it a probationary period, as this sounds like once the employee passes it, he or she has some guarantee of employment; call it an orientation or introductory period instead).  Thus, when a relatively new employee sought 6 weeks of leave as an accommodation for his military service-related seizures, the employer denied the request and fired him instead.  What should the employer have done?  Duh, really considered (and most likely granted) the request.

When it comes to reasonable accommodations, employees are not always entitled to the accommodation of their choice.  But they are entitled to consideration and the interactive process.  Even if it means deviating from established policies.

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If an employee walks out of the “interactive process,” she basically loses her claim under the ADA

A recent case makes this seemingly obvious point clear.  It’s good news for employers, who would do well to copy the employer’s actions here.  In EEOC v. Kohl’s Dept Stores, decided just last month, a diabetic employee sought to have her shift changed as an accommodation under the ADA.  Pamela Manning was a sales associate with a steady day shift.  Due to changing business needs, her hours were changed so that sometimes she worked days and sometimes she worked evenings.  She came to her supervisor and stated the new schedule was exacerbating her diabetes.  Thus, she sought to be returned to her previous days-only shifts.  The supervisor took the issue up with the store manager, who reached out to HR for input as well.  Upon HR’s advice, the store manager and Ms. Manning’s supervisor met with her to discuss the accommodation.  While they had decided they could not put her back to an only day shift schedule, they were planning on ensuring she did not work the so-called swing shift (an evening shift immediately followed by a day shift), as this seemed to be the main problem in terms of her diabetes.

At the onset of the meeting, the manager and supervisor informed Ms. Manning they could not give her a day-only shift.  They stated they were happy to discuss alternative accommodations.  But Ms. Manning cut the meeting short, stating she had no choice but to quit.  She placed her keys on the desk and walked out.  Her supervisor followed her and asked her to reconsider, but Ms. Manning refused.  Thereafter, Kohl’s reached out to Ms. Manning and tried to reopen the discussion.  Ms. Manning would have none of it.  Thus, Kohl’s considered her to have resigned.

When the EEOC subsequently took up Ms. Manning’s case and accused Kohl’s of violating the ADA by refusing Ms. Manning’s requested accommodation, the court had no problem kicking the case out, holding that Ms. Manning’s refusal to participate in the interactive process doomed her claim.  Seems like an easy call, right?  Lucky for the employer, the appellate court thought so and affirmed the dismissal.

Employer takeaways from the case:

  • Get HR involved in requests for accommodations
  • Even if you can’t provide the requested accommodation, try to keep the “interactive process” going by having a dialogue and trying to find other options.
  • Even if the employee acts unreasonably, keep trying to engage him or her in the dialogue before calling it quits.
  • Train your supervisors so they can spot these issues and handle them appropriately.
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A recent ADA case and some pointers on determining a job’s “essential function”

The Seventh Circuit recently sent an ADA case to trial, reversing a lower court’s grant of summary judgment to the employer.  In Kauffman v. Petersen Health Care, a hairdresser for a nursing home was no longer able to push residents in wheelchairs from their rooms to the beauty parlor.  She had done so without incident for nearly 30 years, but after a surgery was no longer able.  She asked for an accommodation, namely that other employees wheel the residents to the parlor, where she would do their hair.  The home’s administrator told her “we just don’t allow people to work with restrictions.”  He then stated it would place a hardship on the home for other employees to have to assume the wheelchair pushing duties.  Interestingly, the plaintiff’s co-workers voluntarily did the pushing for her for some time, until she resigned.  In her subsequent ADA suit, she claimed the home failed to accommodate her.

According to the employer, pushing residents in wheelchairs took up about 60% of the plaintiff’s time. Per the plaintiff, this duty amounted to only 9% of her duties.  Based on this discrepancy, the Seventh Circuit held the case had to proceed to trial.  There, each side can try to prove their position.  If the wheelchair pushing duty really amounts to a small percentage of the plaintiff’s time, the employer will have a hard time establishing an “undue burden” would have resulted from reassigning this duty.  The court also noted the discriminatory sound of the administrator’s comment about restrictions.

What are some takeaways from this case?  Essential functions are best spelled out before there is an issue.  If the employer had a job description that delineated the percentage of time spent transporting residents, it could have avoided the prospect of a trial.  Also, employers can’t have a policy – in writing or otherwise – providing that they don’t accept restrictions.  Some management level training would probably have avoided this problem.



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The maxim that customer preference is never an excuse for discrimination comes into play with one-armed security guard

A federal jury in Florida just ruled in favor of a one-armed security guard who was effectively fired after a customer complained about his assignment.  The customer called the security company a “joke” for assigning a security guard who lost an arm in a car accident to its property.  In response, the company pulled the guard from the assignment and did not not provide him with another assignment.  An ADA lawsuit filed by the EEOC followed.  In addition to having to pay the former security guard, the employer now has to train its workforce on the anti-discrimination laws and implement new policies.

Lesson learned: customer preference is never a defense!  So what should this employer have done?  Arguably, the customer raised a legitimate concern about the guard’s ability to safely and effectively provide security services.  In response, and perhaps even in the absence of such a complaint, the employer should have taken the following steps:

  • Initiate a dialogue with the guard about his ability to perform the essential functions of the job
  • Consider seeking a fitness for duty certification from a medical professional to ensure the guard could perform these duties
  • Consider reasonable accommodations, if necessary, to enable the guard to perform the job
  • If and only if these measures led the employer to determine the guard was incapable of performing the essential job functions, with or without a reasonable accommodation, should the employer have taken any adverse action.

If you have a situation that requires these kinds of steps, get counsel involved.

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Recent case shows that not every impairment qualifies for ADA protection

The Ninth Circuit recently decided Weaving v. Hillsboro, involving a police officer with ADHD (attention deficit hyperactivity disorder).  The officer had severe interpersonal problems with co-workers and was terminated.  He sued under the ADA, claiming the problems were due to his disability.  The case proceeded to a jury trial, which ended in the officer’s favor to the tune of $770,000.  On appeal, the Ninth Circuit reversed.  It held the officer did not qualify for ADA protection, noting that “a cantankerous person who has mere trouble getting along with coworkers is not disabled under the ADA.”  The court’s analysis was that not every impairment is a “disability” under the ADA.  In this case, the officer failed to provide evidence that his impairment was substantially limiting.  A key factor in the court’s decision was the fact that while the officer suffered from interpersonal problems with peers and subordinates, he was somehow able to get along just fine with his superiors.

This case is significant in that it provides a rare exception to the oft-repeated mantra that almost all impairments are covered under the ADA Amendments Act.  Still, if confronted with a potential ADA situation, check with counsel before taking an adverse action.  More often than not, the impairment will be covered and the employer will have to consider potential reasonable accommodations.



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The right way to deal with a scary employee

Say you have an employee who exhibits strange and intimidating behavior such as glaring at colleagues, standing inappropriately close to them, laughing in a wild cackling manner, clenching his fists, and forcefully hitting colleagues on the shoulder.  Say also a number of his colleagues have complained that they are “terrified” of him and believe he could harm himself or others.  What should the employer do?

The recent case of Kao v. University of San Francisco provides a useful example.  After receiving numerous complaints from Kao’s colleagues, the university initiated an investigation.  It also contacted a forensic psychologist with expertise in identifying workplace threats.  The psychologist suggested that Kao undergo an independent medical examination to determine whether he was fit for duty.  The university engaged another psychologist to perform the exam and instructed him not to provide the university with any medical information, but to simply report back on whether Kao was fit for duty and, in particular, whether he posed a danger to himself or others.  Kao refused to undergo the exam and, as a result, the university fired him.

Kao’s subsequent lawsuit contained a number of claims, including an ADA-like claim (under California state law) that challenged the university’s right to insist on an independent medical exam.  Both the lower and appellate courts ruled in the university’s favor, under a “direct threat” analysis.  The court held that the employer had a right to require a fitness for duty exam, as it was “job related and consistent with business identity.”  Further, the exam was specifically tailored to assess whether Kao posed a danger to himself or others (e.g., whether he was a direct threat).  Given the employer’s duty to maintain a safe workplace, its insistence on a medical exam as a condition of employment was legal.

This case carries a number of important takeaways for employers.  If you have an employee who is actually frightening other employees, and whom you suspect could partake in workplace violence, you have the right (and duty) to do something.  UCSF walked the delicate tightrope balance between the rights of the employee in question and the obligation to provide a safe workplace by consulting with an expert and requiring a narrowly tailored medical exam.


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Remember the blog post about telecommuting as a reasonable accommodation? JK (maybe)

Back in April I blogged about a noteworthy Sixth Circuit case that held telecommuting may be a reasonable accommodation.  (See here for the post).  The case was filed by the EEOC against Ford and involved a resale steel buyer who asked if she could telecommute due to her medical condition of irritable bowel syndrome.  The employer’s position was that the employee had to have face to face contact with co-workers and suppliers and so denied the request.  The Sixth Circuit held in April that the EEOC was entitled to a jury trial on the issue.  The case caught a lot of attention for its significant pronouncement that changes in technology have, in effect, changed the definition of the “workplace” to expand beyond the employer’s actual place of business.

Just yesterday, the Sixth Circuit agreed to rehear the case.  What does this mean?  That some of the judges are skeptical of the pro-telecommuting decision and want a chance to revisit it.  This is a case to watch.

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Remember the case of the employee fired for stealing a bag of chips?

Back in May I blogged about an employee who was fired for stealing a bag of chips from Walgreens.  The employee was a diabetic who typically carried around candy in case she suffered a drop in blood sugar.  On one occasion she started to shake and sweat, a sure sign she needed to ingest some sugar.  But she had none on hand.  She took a bag of chips (valued at $1.39) and tried to pay for it, but no one was at the register.  Thus, she went about her duties and forgot about the chips.  When Walgreens discovered the “theft,” it fired her.  An EEOC-initiated lawsuit followed, alleging Walgreens violated the ADA by failing to accommodate the petty theft.  The case was set for trial after the court denied Walgreens’s motion for summary judgment.

Last week the EEOC obtained a settlement of $180,000 with Walgreens.  In addition, Walgreens agreed to provide training to employees on the ADA and reasonable accommodations.  The EEOC attorney captured the agency’s view of the matter, stating “[p]eople may think this case revolves around theft, but the real issue is how a company responded to a valued 18-year employee, whom it knew for 13 years to be diabetic, and who attempted to pay for the chips after she recovered from her hypoglycemic attack.”  Framed this way, the outcome seems pretty darn reasonable.

What’s the moral of this story?  Make sure all managers understand their duties when it comes to reasonable accommodations.  Consider having a centralized decision-making process for accommodation issues.  And above all, be reasonable.


Bag of Potato Chips


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Leaves of absence under the ADA: how long is long enough?

The ADA requires employers to provide reasonable accommodations, including leaves of absence, to qualified individuals with disabilities unless doing so would result in an undue hardship.  A question employers repeatedly struggle with is, how long is long enough?  According to a recent Tenth Circuit decision, six months, generally speaking.

In Hwang v. Kansas State Univ., the plaintiff sought and received a six month leave of absence.  Thereafter, per her doctor’s advice, she requested additional time off.  The employer denied the request and terminated her employment, applying a policy that provided for a maximum of six months leave in all cases.  When the plaintiff sued under the Rehabilitation Act (which basically tracks the ADA for entities that receive federal funding), the court held the initial six month leave was all the employer needed to do to fulfill its duty to provide a reasonable accommodation.

The following idea was central to the court’s holding: “After all, reasonable accommodations – typically things like adding ramps or allowing more flexible working hours – are all about enabling employees to work, not to not work.” (emphasis added)

While the case provides some useful guidance for employers struggling with the question of how long is long enough, please remember a few key points when it comes to accommodating employees with leaves of absence:

  • “No fault” attendance policies or inflexible leave policies are still pretty risky, just ask the EEOC.
  • The employer’s obligation is to engage in the “interactive process” with the employee in question — that means have a genuine dialogue.
  • Before terminating an employee with a disability on a leave of absence, consider consulting with counsel.
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DOJ gets big settlement in LSAT discrimination case

The Law School Admissions Council (LSAC) administers the LSAT – the prerequisite to aspiring lawyers everywhere to get into law school.  The Department of Justice (DOJ) sued LSAC for violating the ADA in administering the infamous test in a discriminatory manner.  According to the lawsuit, LSAC routinely denied accommodations to disabled test-takers, and also flagged the scored of test-takers who got more time for the test as a reasonable accommodation.  The result: a 7.73 million dollar settlement.  Ouch.

Reasonable accommodations are no joke.  Take this ADA legal requirement seriously by having a policy, training on it, and being ready to engage in the interactive process when the need arises.


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Is permitting employee theft ever a reasonable accommodation under the ADA?

While it seems like the answer to this question should be a resounding “no,” a recent case against Walgreens shows that sometimes, permitting employee theft may actually be a reasonable accommodation.  But wait – the facts of the the case make this outcome seem more reasonable than it would, at first, appear.

Josephina Hernandez was a long-term Walgreens employee.  She had diabetes and was permitted to carry around candy while she worked, in case of a precipitous blood sugar drop.  One day, however, she did not have any candy nearby when she began to shake and sweat.  Recognizing the symptoms of her diabetes acting up, she knew she need to ingest some sugars, and fast.  So she grabbed a bag of potato chips (valued at just over $1) and dug in.  She tried to pay for them, but no one was at the register.  When the half-eaten bag of chips was discovered, Josephina explained the situation to her supervisor and again tried to pay.  But it was too late.  Pursuant to Walgreens no-exceptions policy against employee theft of any amount, she was terminated.

The EEOC is now taking the case to trial (they just survived a motion for summary judgment filed on behalf of Walgreens).  According to the court, it is for the jury to decide whether permitting the “theft” would be a reasonable accommodation of Josephina’s disability.

Takeaways: this is a case where the facts very much determined the outcome.  I would not suggest that a blanket rule of “permitting employee theft can be a reasonable accommodation.”  But what this case shows very clearly is that reasonable accommodation issues are intensely fact-specific.  Uniform application of company policy is not a surefire way to beat an ADA claim.  Employers should proceed with caution and analyze disability issues carefully and deliberately (and ideally, with counsel).


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ADA trap for the unwary: Don’t label employees’ problems

When employees exhibit behavior problems, it can be tempting to label them with psychiatric terms (e.g. bipolar, narcissistic, OCD, schizophrenic).  This can be extremely dangerous from an ADA perspective, so put away that armchair psychology degree.  The ADA not only covers “disabilities,” but also individuals who are “regarded as” having disabilities. Thus, an employee who is perceived as being disabled and subjected to an adverse action based on this perception can have a solid claim under the statute.

So what should employers do?  Focus on the behavior, not the cause.  Instead of “It seems like James’ OCD is interfering with his ability to focus on his long-term assignment” say something like “James has consistently failed to focus on and make progress with respect to his long-term assignment.”

It’s a simple solution, but an easy mistake to make.  Make sure your supervisors understand this “regarded as” prong of the ADA.


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EEOC to employers: be careful your ADA forms don’t violate the ADA

The EEOC recently released an informal discussion letter to an employer who inquired about the legality of its ADA forms.  While the letter is not binding, it is noteworthy in that it reveals the EEOC’s position on this issue.  What are ADA forms anyway?  The employer in question apparently got a sample ADA policy and reasonable accommodation request form from a state agency’s website.  These forms delineated employee’s rights under the ADA, but also outlines circumstances where the employer would NOT provide an accommodation.  For example, the form stated that unscheduled or excessive absences would not be considered a reasonable accommodation.  The EEOC took issue with this provision.  While that may sometimes be the case, the point of the reasonable accommodation process is to engage in a case-by-case, individual-specific, interactive process.  Barring some accommodations from the get go was at odds, per the EEOC, with the reasonable accommodation obligation itself.

The other aspect of the form that the agency commented on was its request for information related to the alleged disability.  Remember, the ADA limits employers’ ability to request medical information.  Thus, questions such as “describe your treatment plan” cannot be asked across the board.  Employers can ask for disability-related information if necessary to determine whether the employee has a disability and/or needs a reasonable accommodation, such questions must be individually tailored to the situation at hand.

Takeaway: It’s great to have an ADA policy.  But it should be a general statement about the employer’s participation in the reasonable accommodation process where appropriate.  It should not delineate specific instances of accommodations that will not be granted, nor should it accompany a form requesting medical information.  ADA issues should be handled on a case-by-case basis.

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Reasonable accommodation does not necessarily mean the accommodation the employee wants

The recent case of Hamedl v. Verizon Commc’ns, Inc. affirms this principle of the law of reasonable accommodations under the ADA.  Hamedl, an employee who suffered from back pain, asked to work the night shift, from midnight until 8 a.m.  He claimed this shift would afford him a  shorter commute time, as he would not be sitting in traffic, which aggravated his back.  The night shift was a coveted slot, as workers were paid a premium for their time.  Workers were assigned to shifts based on their seniority; Hamedl’s seniority did not afford him the night shift.  Rather than override its seniority rules, the employer kept Hamedl on the 8 a.m. to 5 p.m. shift, but let him come in (and leave) two hours early, at 6 a.m., when the traffic would be minimal.

According to the court in the subsequent lawsuit, the employer did its duty under ADA in providing this accommodation.  The fact that Hamedl asked for something else did not change this fact.

Takeaway: In assessing requests for reasonable accommodations, employers do not have to ignore their own operational rules and business needs.  They simply have to engage in the interactive process and work to find an accommodation that addresses the employee’s problem.

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Calling an employee a “liability” can create liability

The employer in the recent Sixth Circuit case of Demyanovich v. Cadon Plating and Coatings just learned this, when the court sent the plaintiff’s case to a jury trial.  Pithiness aside, this FMLA/ADA case holds some important lessons for employers.  The employee in question suffered from congestive heart failure, necessitating numerous leaves of absence.  When he came back from his most recent leave, he requested light duty work and that he not be assigned overtime.  Denying both requests, the employer’s Vice President told the employee he was a “liability.”  When the employee sought an additional leave of absence, the VP stated he did not have to grant any FMLA leave, as the employer did not have enough employees to be subject to the Act’s requirements.  Thereafter, the employee was terminated for excessive absenteeism.

While the trial court granted summary judgment on the FMLA and ADA claims, the Sixth Circuit reversed on both.  With respect to the applicability of the FMLA, the court noted the employer was affiliated with a much larger company and therefore was a “joint employer” for purposes of the FMLA.  Regarding the ADA claim, the employer’s summary rejection of the requests for accommodations was enough to permit the plaintiff to proceed to trial.

Takeaways:  (1) even if you don’t think the FMLA applies to your workplace, check with counsel to be absolutely sure; (2) always engage in the interactive process when it comes to requests for reasonable accommodations.



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Who determines the “essential functions” of a job? The Sixth Circuit weighs in

In Rorrer v. City of Stow, the Sixth Circuit reversed a trial court’s dismissal of an ADA claim filed by a firefighter who lost vision in one eye.  Rorrer was terminated based on the employer’s assertion that he could no longer perform the essential functions of his job, namely driving an emergency vehicle.  The trial court credited the employer’s assertion that driving a fire truck was an “essential function.”  But the Sixth Circuit noted that under the relevant EEOC regulations:

[t]he employer’s determination about what functions are essential is certainly given weight, but it is one of seven factors the court should consider, including ‘[t]he amount of time spent on the job performing the function’ and ‘[t]he consequences of not requiring the [employee] to perform the function.’  The district court appears not only to have given deference to the City’s position, but to have considered only the City’s position, failing to consider all of the § 1630.2 factors while drawing all reasonable inferences in Rorrer’s favor as required at the summary judgment stage.”

(To see the regulations listing the determining factors for essential functions, see here).  According to the court, there was conflicting evidence about whether the ability to drive a fire truck was really essential or could have been assigned to someone else.  Because the trial court failed to consider all of this evidence, the case is being sent back (and reassigned to a new judge, which is almost unheard of).

What does this case mean for employers?  Before you take adverse action against someone who you believe cannot perform the essential functions of the job in question, think long and hard about what the essential functions are and how you determined them.  And, it can’t hurt to check with counsel.



(Photo credit HR Insights blog)

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Accommodating mental disabilities: a great example of what to do

Earlier this month a federal court in Florida granted summary judgment to an employer on an ADA claim.  In Mecca v. Fla. Health Services, Dan Mecca was employed as a Peripherally Inserted Central Catheter (“PICC”) nurse.  His job involved inserting IV catheters into patients’ veins, typically in their arms, and threading them through the veins until the tip of the catether rested near their hearts.  As even this cursory explanation makes clear, it’s a job requiring precision and a lot of care; risks of infection can be high.

Mecca suffered from panic attacks and anxiety.  His employer granted him several leaves of absence under the FMLA (alas, we know the FMLA and ADA often intersect in these kinds of situations).  It also granted additional schedule changes on various occasions to accommodate his symptoms.  When Mecca returned from his last leave of absence on a reduced schedule basis, he failed to perform his duties.  His first day back he ignored multiple requests to assists patients.  He also left work early, without authorization.  So when HR told him he would face disciplinary action, he resigned and sued for discrimination under the ADA (among other things).

In dismissing Mecca’s claims, the court recognized what a fine job the employer did in accommodating Mecca.  It made several scheduling changes and allowed numerous leaves.  In the end, Mecca basically wanted to come and go as he pleased, without repercussions.  Not a reasonable accommodation, per the court.

Mental disabilities can be tricky issues to navigate.  The employer here got it right by making multiple accommodations in an effort to enable Mecca to be successful in his job.  When it finally put its foot down (or was about to, when Mecca resigned), it was for legitimate performance reasons.


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Think a temporary disability isn’t covered by the ADA? Think again.

It used to be almost black letter law that a temporary disability (e.g., a broken bone) did not qualify as a disability under the Americans with Disabilities Act (“ADA”).  Thus, if an employee couldn’t work because of such a temporary impairment, the employer had no obligation to reasonably accommodate or engage in the interactive process.  But then came the ADA Amendments Act of 2008 (“ADAAA”), which greatly expanded the definition of a disability.  The legislative changes were meant to shift the focus from whether an employee had a “disability” to whether the employer made or attempted to make a reasonable accommodation.  Judging from a Fourth Circuit case decided last week, mission accomplished.

In Summers v. Altarum Institute, the court found in favor of an employee who was rendered incapacitated by an accident.  He broke both legs and damaged numerous tendons.  His anticipated recovery time was seven months.  The employee sought to work from home during his recuperation.  Instead of considering the accommodation or otherwise engaging in the interactive process, the employer canned him.

The lower court bought the employer’s argument that the employee was not protected by the ADA due to the temporary nature of his disability.  But confirming a sea change in the post-ADAAA world, the appellate court reversed.  It noted, though, that not all temporary impairments will trigger ADA coverage; they must be “sufficiently severe.”  The employee in this case met the threshold sufficient to allow the case to proceed.

Takeaway: Beware the ADAAA – it covers far more than the original ADA did.  Make sure your supervisors understand the changes and know how to react to requests for reasonable accommodations.


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What to tell employees when they complain about “preferential” treatment (i.e., reasonable accommodations for other employees)

Not much.  Employees are not entitled to know what other employees are going through in terms of ADA-qualifying issues.  Some disabilities are obvious, but for those that are not, there is simply no right to know.  I’ve counseled many employers who don’t know how to respond to employee complaints that others are receiving what they perceive as preferential treatment.  If the so-called preference is really just a reasonable accommodation under the ADA, employers should be careful not to divulge confidential information.

A recent case shows how an employer walked this line just right.  In Lichty v. Allina Health, a nurse who returned from FMLA leave had lifting restrictions. Co-workers complained that she wasn’t doing her fair share.  The employer responded by telling the co-workers that accommodations were private and they were simply complying with legal requirements.  Smart move, because when the nurse later sued over her performance-based termination, the court tossed the case.

Also note that if the co-workers had engaged in harassing behavior towards the nurse based on the accommodation or the FMLA leave, the employer would have had an obligation to stop the harassment.

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What the EEOC has to say about “integrity tests”

Integrity tests are personality tests used by employers to assess the tendency of applicants to be honest, trustworthy and reliable.  Reasonable expectations for prospective employers to have, right?  Yes, but beware the tests’ potential intersection with the anti-discrimination laws.  The EEOC recently weighed in, albeit informally, to offer employers some guidance.

A company that conducts such tests for third parties recently asked the EEOC to comment on the lawfulness of certain questions.  The test at issue asked applicants: (1) to describe their current use of methamphetamines; (2) to describe their current use of illegal, non-prescription drugs while at work; and (3) whether they would “take things from their employer without permission to get even if they felt that the employer (either the company or their boss) was treating them unfairly.”  The EEOC answered that the test questions are acceptable because they “do not ask applicants to disclose their arrest or conviction history,” the employer may ask applicants about current illegal drug use or illegal use of non-prescription drugs at work, and there is no preclusion under Title VII about asking hypothetical questions about how an applicant may react in a situation involving illegal activity.  This is good news for employers wanting to dig a little deeper into applicants’ so-called integrity.

But don’t be lulled into thinking all such tests are ok by the agency.  As the EEOC explained, an employer may violate Title VII if the evidence shows that a test was “designed, intended, or used” to discriminate against certain applicants based on protected characteristics (i.e., disparate treatment), or if the test results are used to screen out certain applicants in protected categories (i.e., disparate impact).

Practice pointer?  If you use these tests, run them by counsel to make sure you’re not running afoul of Title VII, the ADA, or other laws.


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Is providing an employee an isolated work environment a “reasonable accommodation”?

Not according to the Fifth Circuit in the recent case of Sapp v. Donoh0e.  Sapp was a U.S. postal service supervisor.  However, she had a hard time playing well with others.  She frequently got into arguments with co-workers as well as subordinates.  After being diagnosed with depression, anxiety and a panic disorder, she requested to work in isolation, away from both subordinates and supervisors.  The postal service refused her request, precipitating a claim of failure to accommodate under the Rehabilitation Act (which mirrors the ADA in most respects).

The Fifth Circuit affirmed summary judgment for the postal service.  The employer was entitled to its position that interacting with both superiors and subordinates was an essential job function.  The court noted that Ms. Sapp offered no evidence of an available position that would meet her desired restrictions.

This last point is worthy of mention, as the court did not make a blanket rule.  It did not rule out the possibility that an employee in Sapp’s position could make out a failure to accommodate claim, if the facts lined up just right (i.e., there was an available position for which she was qualified that would meet her request).  Remember, these reasonable accommodation cases are intensely fact specific.  It’s a mistake to count on hard and fast rules.  But this case does suggest some instructive guidelines for employers, and reasonable ones at that.




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Pretext: the litigation dirty word

Every employer’s nightmare: you fire someone for a performance problem or a policy violation.  She sues alleging some kind of unlawful discrimination.  Adding fuel to the fire, she drudges up some evidence that your stated reason for termination may not have been the real reason — i.e., pretext.  Next thing you know it’s hello jury, buh-bye dollars.

PEC Management in Pennsylvania just learned this the hard way.  It terminated manager Theresa Buffington from one of its Burger King Stores after she asked a non-managerial employee to run errands for her.  Apparently this was a policy no-no, so PEC fired Buffington.  Wouldn’t you know it, there was more to the story.  Buffington’s teenage son had cancer; she missed work over the years to care for him.  [I hope that little red light is going off in your heads: danger, the ADA is at play here, as its “association provision” covers those associated with an individual with a disability, though they themselves may have no impairment].

In the ensuing litigation Buffington introduced the following evidence: the policy prohibiting non-managerial employees from running errands during work time was not strictly enforced; Buffington’s manager made comments about how much work time she missed to care for her son; Buffington’s performance reviews were uniformly stellar.

The result?  A jury finding of over $200,000.

Prevention tips:  Get your story straight on termination decisions.  Make sure there is no issue of pretext floating around.  This means checking performance documentation and the consistency of policy enforcement.  And make sure all supervisory employees understand how broad the anti-discrimination protections really are.

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Who determines the essential functions of a job for purposes of the ADA?

It’s ADA 101 that employers need to provide reasonable accommodations to employees with disabilities to enable them to perform the essential functions of the job.  But who determines the essential functions?  A recent case shows that fortunately, it’s the employer who gets to make this assessment.

In Vraniskoska v. Franciscan Communities, Inc., the plaintiff had an injured wrist and was no longer able to push a linen cart.  Pushing the cart was a part of her daily duties, but it only took about 15 minutes a day.  The plaintiff argued she should be relieved of this duty based on her injury, as a reasonable accommodation.  The employer terminated her and later claimed she did not fit within the statute’s protections, as she could not perform this “essential function” of her job, with or without a reasonable accommodation.  The court agreed with the employer.  Despite the short period of time it took to complete this job duty, it was up to the employer, not the employee, to set the job’s essential functions.

This is good news for employers.  But to avail yourself of the benefits of this decision, make sure to engage in the interactive process and be clear about essential functions.

Woman Pushing Shopping Cart



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Navy Yard shooter’s supervisors knew of mental health issues

Last weekend the New York Times ran a big story detailing who knew what and when about the mental health, or lack thereof, of Navy Yard shooter Aaron Alexis.  Alexis killed twelve people in a shooting rampage in September.  About a month before the shootings, Alexis’s mother told his supervisors that he had a history of paranoid episodes and needed therapy.  But according to an internal company investigation, his employer did nothing.

What could/should his employer have done?  It’s a tricky area, as on the one hand, Alexis presumably would have been covered by the ADA and perhaps entitled to a reasonable accommodation.  On the other hand, his paranoia posed a tremendous safety risk.  Is the employer in such a scenario forced to sit between the proverbial rock and hard place?  Thankfully, no.

The analysis should have been as follows: Assume Alexis was covered by the ADA.  BUT, there was enough information to be concerned about the safety of Alexis and others.  THUS, the question should have been whether he posed a “direct threat.”

Fortunately for employers, the direct threat analysis under the ADA provides an exemption to the duty to reasonably accommodate.  If an employee poses a direct threat (to his or her own safety or the safety of others), the employer does not need to keep the employee for fear of violating the ADA.  How can an employer ascertain whether an employee does, in fact, pose a direct threat?  By looking at reasonable medical judgment, or by looking at the best available objective evidence.  That means at least looking into the issue.  Sending the employee for a medical examination (at the employer’s cost), or taking some affirmative steps to assess the threat.  In the Navy Yard case, it appears the employer took none of these steps.

If you have an employee who might pose a danger to the workplace, please take it seriously and explore your options.  Consider the direct threat analysis.  Train your managers to spot these issues.  And contact counsel or your favorite HR consultant.

navy yard


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And the ADA accommodation cases just keep coming

The EEOC just announced a settlement with Creative Networks, a Phoenix-based company that provides services for the disabled (you can see the irony coming, can’t you?).  Creative Networks had a policy of denying hearing-impaired and deaf applicants’ requests for ASL (American Sign Language) interpreting services during pre-employment orientation and training.  Creative Networks did, however, offer applicants $200 toward the cost of the ASL services.  Still, the cost of the services far exceeded that amount, and the company admitted it had the resources to pay the full cost.

At trial, the court held Creative Networks failed to accommodate applicants as a matter of law.  It also violated the ADA when it refused to hire applicants who could not complete their orientation and training due to not being provided ASL services.

This is an interesting case in that it gets right to the heart of what it means to reasonably accommodate, particularly where the question is one of cost.  Employers have a duty to make (i.e., pay for) for reasonable accommodations unless they can show an undue burden.  You might think offering to pay $200 towards ASL services shows a good faith effort to comply with this legal mandate.  But you would be wrong.

The undue burden analysis is a tricky one.  Courts and agencies take it case by case.  But if you are claiming not to be able to afford an accommodation, you should make pretty darn sure the numbers back you up.



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