Tag Archives: disability discrimination

NEW CASE: Without More, Full-Time Attendance Is Not An Essential Job Function

In a recent case (Hostettler v. College of Wooster), the US Sixth Circuit Court of Appeals held that a requirement that an employee work full time, without a duties-based reason for the requirement.

In this case, the plaintiff was an HR Generalist at College of Wooster. The plaintiff had recently had a baby and, when she was released to return to work, her doctor provided a restriction that the plaintiff could only work part-time because the plaintiff was suffering from postpartum depression and separation anxiety.

Initially, the employer granted the requested accommodation – allowing the employee to work 5 half days per week.  The plaintiff worked that modified schedule for one month and then turned in a note from her doctor stating that she would need to continue working the modified schedule for an additional two months.  The next day, the employee was terminated.  The reason given – the department could not function properly because the plaintiff was not working full-time and working a full-time schedule was an essential function of the HR Generalist position.  The plaintiff filed a lawsuit claiming that her termination was discriminatory. Continue reading NEW CASE: Without More, Full-Time Attendance Is Not An Essential Job Function

NEW CASE: Court Reminds Employers That Reasonable Accommodation ≠ Employee’s Demand Where There Are Other Reasonable Alternatives

In a recent case (Sessoms v. Trustees of the University of Pennsylvania), the Third Circuit Court of Appeals held that while the Americans with Disabilities Act (ADA) requires employers to provide reasonable accommodations to disabled employees, employers are not required to provide the accommodation requested by the employee.  Instead, after engaging in the interactive process, employers may choose among reasonable accommodations as long as the chosen accommodation is effective.

In this case, an employee had been out on a medical leave of absence relating to her disability.  Prior to returning to work, the employee engaged in the interactive process with her employer (the university) and requested that she be provided a part-time schedule and that she be transferred to a different supervisor in a “lower-stress department/office” as a reasonable accommodation for her disability.

The university agreed to provide the employee with a part-time schedule, but the university did not grant the employee’s request to change supervisors.  The university offered the employee several different accommodations (all of which involved reporting to her current supervisor), but the employee refused to accept any accommodation that involved her reporting to her current supervisor.  Ultimately, after making several attempts to get the employee to accept the offered accommodation, the employee was terminated.  The employee later sued the university for disability discrimination. Continue reading NEW CASE: Court Reminds Employers That Reasonable Accommodation ≠ Employee’s Demand Where There Are Other Reasonable Alternatives

Utah Employer Learns A $832,500 Lesson About Disability Discrimination

Associated Fresh Market, Inc. has agreed to pay $832,500 to settle a group of disability discrimination charges filed with the U.S. Equal Employment Opportunity Commission (EEOC).

The charges filed against the company by several employees alleged that Associated Fresh Market had a pattern and practice of denying reasonable accommodations to disabled employees.

The EEOC investigated these charges and found that the company had a practice of denying reasonable accommodations under the ADA.  Specifically, the company required employees to have no restrictions or be 100% ready to return to work before an employee was reinstated following a medical leave of absence.  The company also routinely denied leave as a reasonable accommodation.  Finally, the company frequently refused to reassign employees to a vacant position as a reasonable accommodation.

Continue reading Utah Employer Learns A $832,500 Lesson About Disability Discrimination

The EEOC Claims Another Victory in Fight for Disabled Workers

On June 5th, Nevada Restaurant Services, a large Las Vegas-based gaming company that operates slot machines, taverns, and casinos, agreed to pay $3.5 million to settle a disability discrimination lawsuit filed by the U.S. Equal Employment Opportunity Commission (EEOC).

In the suit, the EEOC alleged that by requiring workers with disabilities or medical conditions to be “100% healed” before returning to work the Las Vegas gaming company violated the Americans with Disabilities Act (ADA). The EEOC argued that this behavior doesn’t adhere to the ADA’s interactive process, let alone its reasonable accommodation requirement.

Furthermore, the EEOC showed that Nevada Restaurant Services went as far as firing employees because it viewed them as disabled or, in some cases, were simply associated with someone with a disability.

The EEOC’s Fight Moves Onward

Continue reading The EEOC Claims Another Victory in Fight for Disabled Workers

NEW CASE: $4.5 Million Reasons to Engage In the Interactive process (and Provide reasonable Accommodation) to your disabled employees

In a recent California case, employers nationwide are reminded of the importance of engaging in the good faith interactive process and attempting to provide reasonable accommodation to a disabled employee.  California jurors, in a special verdict, recently awarded a disabled former employee a $4.5 million verdict for violating the California Family Rights Act (CFRA) and California Fair Employment and Housing Act (FEHA) when the employer terminated the employee while she was out on CFRA leave.

The Case

In 2015, the former employee went out on medical leave (CFRA leave) for a broken arm.  Shortly after going out on leave, the former employee was diagnosed with major depression and her treating physician advised her employer that she would require more time off than the 12 weeks provided under the CFRA.

Rather than engage in the interactive process with the employee to try to find a reasonable accommodation (or extend the employee’s leave), the employer terminated the employee when her 12 weeks of CFRA leave expired.  The former employee filed a lawsuit against her employer claiming that she was fired because of her physical and/or mental disabilities, and in retaliation for her taking protected leave for medical treatment.  The employee also claimed that her employer had violated FEHA by failing to engage in the interactive process with her about her disability and by failing to provide her with reasonable accommodation.

The jury agreed with the plaintiff and awarded her the $4.5 million verdict ($546,000 for back and front pay, over $1.9 million in compensatory damages and $2.6 million in punitive damages).

Take Home for Employers

While a California case, this case highlights to all employers the importance of working with employees who require accommodation for a disability (i.e. the importance of engaging in the interactive process).  This case might have been brought under California law, but there are federal laws (i.e. the Americans with Disabilities Act and Family Medical Leave Act) that impose the same requirements on employers.  Under these laws, employers are required to engage in the interactive process to determine what reasonable accommodations are necessary so an employee can perform essential job functions.

The following are important steps to follow when engaging in the interactive process with an employee:

  • Document!!!!! When an employee requests a leave of absence or a reasonable accommodation, document that request.  Also, provide the employee an acknowledgement of the request in writing, to document that the request was received.
  • Talk to the employee about the request. Sit down with the employee and discuss the request and possible accommodation(s) that the company can offer.  Request additional information from the employee (or his healthcare provider) where necessary in order to determine exactly what the employee can (and cannot) do.
  • Document (again)!!!!! After these conversations with the employee, send the employee a confirming memorandum summarizing your conversation, outlining accommodations discussed, and detailing any action items that both the employee and company need to perform in order to continue with the process.
  • Complete the company’s action items AND follow up with the employee. Be sure to complete any action items assigned to the company in the confirming memorandum.  Also, follow up with the employee to check the status of his action items.  Do not assume that the employee will simply complete them, periodically touch base with the employee.  And, as always, document both the company’s actions, but also the follow up conversations with the employee.
  • Repeat this process. This process will need to be repeated until an accommodation is reached or a determination is made that no accommodation is possible.  Remember, under the ADA (and FEHA), a leave of absence is considered a reasonable accommodation.

Remember, the interactive process is a continuing process with your disabled employees.  Just because an accommodation is reached, that does not end the employer’s obligation to engage in the interactive process.  Employers need to follow up with their employees periodically and verify that the selected accommodation is still working for the employee (i.e. enabling the employee to perform the essential functions of the position).  If it isn’t, then the company will need to start the interactive process all over again.

The Cost of an accommodation does not make it unreasonable – even if the cost is $120K

In two recent federal decisions (Searls v. Johns Hopkins Hospital – Maryland — and Smith v. Loudoun County Public Schools – Virginia), two different federal district courts have confirmed a long-standing position — hiring a full-time American Sign Language (ASL) interpreter for a deaf employee may be a reasonable accommodation, even if doing so comes at great expense to the employer.

Searls v. Johns Hopkins Hospital

In Searls, the plaintiff was a deaf nurse who had attended the Johns Hopkins School of Nursing.  During her time as a student, the nursing school had provided the plaintiff with a full-time ASL interpreter when she was working her clinical placements at Johns Hopkins Hospital.

Following her completion of the program, the plaintiff was offered a full-time position at the hospital. Upon receipt of the offer, the plaintiff requested that the hospital provide her with a full-time ASL interpreter, which would cost the hospital $120,000 per year. The hospital refused to provide the requested accommodation (citing the cost of the accommodation as an undue hardship) and rescinded the offer. The plaintiff filed a disability discrimination lawsuit.

When arguing in Court, the hospital argued that the plaintiff’s requested accommodation would impose an undue hardship because the hospital had no money in its budget to make reasonable accommodations; therefore, to fund the accommodation, it would have to lay off two full-time nurses. This created an undue hardship.

The Court did not agree. Instead, the Court found that the size of the hospital’s budget for reasonable accommodations is “an irrelevant factor in assessing undue hardship.” Instead, the Court looked at the hospital’s operational budget of $1.7 billion and commented that a $120,000 accommodation constituted only 0.007% of that budget.

Smith v. Loudoun County Public Schools

In Smith, the plaintiff was a deaf teacher of special education for the hearing impaired. The plaintiff had requested that her employer provide her with a full-time ASL interpreter to assist her with her interaction with school administrators, teachers, staff members, parents, and students who don’t know ASL. (Prior to this request, the school was providing an on-call ASL interpreter, but the plaintiff claimed that the on-call interpreters were unreliable).

The school denied the plaintiff’s request for accommodation, stating that providing an on-call interpreter was sufficient accommodation. The school also claimed that providing a full-time interpreter would pose an undue hardship – based on the expense of providing an interpreter.

The Court rejected both of the school’s arguments.

With respect to the sufficiency of the accommodation, the Court found that the on-call interpreters did not fulfill the need for daily, verbal communication because those interpreters had to be requested between 3 and 7 days in advance.

With respect to the undue hardship, the school failed to provide any evidence relating to its operational budget and merely claimed that it had no budget allocated for this type of expense.

The Court was not persuaded. Like in Searls, the Court found that the fact that the school had no budget allocated for this expense was irrelevant, and quoted the Searls Court stating “even if it is correct that the salary of a full-time ASL interpreter would be twice the salary of a nurse, that in itself does not establish that an ASL interpreter would be an undue hardship.”

Take Home for Employers:

The case reminds employers, when it comes to undue burden, the court is looking to the entire operations of the entity. As such, if an employer is claiming that the cost of an accommodation is causing an undue burden, the employer must be prepared to provide specific evidence relating to their claims of undue hardship.  Unfortunately, as evidenced by these two cases, Courts are likely to find that the amount budgeted by an employer to cover ADA accommodations is irrelevant to determine undue hardship. Instead, the court are more likely to look at the comparison of the cost in relation to the size of the overall operational budget, which can make it difficult to prove undue hardship for a large organization.

What Employers Can Learn From This “Textbook” Disability Discrimination Case

The “post offer, pre-employment medical examination” – it’s a popular tool used by many employers during the hiring process. However, if improperly administered, use of this type of examination can expose an employer to liability – as one employer learned in a recent case (EEOC v MGH Family Health Care) – a case the Court dubbed “a textbook case for unlawful discrimination under the regarded-as-disabled prong of the ADA.”

The Case

In this case, the employer (a medical center) hired a new employee and she was advised that she would be required to complete a “post-offer” physical examination. Under the employer’s general practice, all employees were required to undergo a “post-offer” physical with its third-party medical evaluator prior to beginning work.

While this type of practice typically poses no problem under the ADA, with respect to this particular employee, she was assigned employment duties prior to undergoing the physical examination. In addition, the third-party medical evaluator was not provided a copy of the employee’s job description before performing the examination.

The employee completed the physical examination and, while the results of the examination were normal, the employee’s medical records revealed some concern for the examiner and he put her on a “medical hold” and recommended the employee complete a functional capacity exam.

Two weeks after the employee had begun work (without incident), the employer notified the employee of the medical hold and informed her that she would need to undergo (and pay for) the functional capacity exam. The employee was also encouraged to obtain medical clearance from her own doctor relating to her ability to perform the job.

The employee provided the requested medical clearance to the examiner, which stated she was able to perform the job. In addition, the employer revised her job description to include lower lifting requirements. However, despite this information (and the fact that the employee had been performing the job for 5 weeks), the examiner refused to change his recommendation for a functional capacity exam.

Rather than explore the situation further with the employee, the employer terminated the employee – without having her complete the functional capacity exam.

Following her termination, the employee filed a lawsuit claiming disability discrimination. The court agreed — finding that there was “direct evidence of unlawful discrimination.”

What was this direct evidence? The employer’s admission that it fired the employee because it perceived her impairments as rendering her ineligible for the position – and it made that determination without first completing any type of individualized inquiry by the third-party medical evaluator. In doing this, the employer engaged in “textbook” disability discrimination in that it regarded the employee as having an impairment under the ADA, and ultimately determined she was unfit to continue to perform her job responsibilities because of that perceived disability without engaging in the interactive process.

Take away for employers

If employers wish to utilize post-offer, pre-employment examinations, they should be careful to follow the EEOC guidelines for disability related inquiries. Title I of the ADA strictly limits the circumstances under which employers may make disability related inquiries or require medical examinations of applicants. Once the employer has examined all non-medical information and has made a “real offer” of employment, it may require all entering employees in the same job category to submit to a medical exam. The employee should not begin work until the exam is complete. If the company withdraws the offer of employment it must show that the individual is unable to meet the essential functions of the job.

Mobile Phone Retailer Charged with Discrimination for Withdrawing Job Offer Because of Applicant’s Disability

The U.S. Equal Employment Opportunity Commission (EEOC) has charged Mobil Destination, Inc. with disability discrimination under the Americans with Disabilities Act. According to the EEOC, the company’s vice president took back a job offer from an applicant at its Porter, TX store when she found out that the applicant used a wheelchair. The staff at the store were told not to answer the applicant’s calls, and to say they had “promoted from within” if asked why the job was no longer available.

The district manager had interviewed and hired the applicant based on his being the most qualified. He advised the vice president that he did not appear to have any problems moving around the store in his wheelchair during his interview.

Take away for employers:

The ADA prohibits covered employers from discriminating against people with disabilities in the full range of employment, including recruitment and hiring. An employer is free to hire the applicant of their choice as long the decision is not based on a disability.

Clarifying Reassignment as a reasonable accommodation

In a recent decision (U.S. Equal Employment Opportunity Commission v. St. Joseph’s Hospital) the 11th Circuit Court of Appeals rejected the EEOC’s long-standing position that as long as the disabled employee is qualified for the position the employer must place the employee in the vacant position and cannot require the employee to compete for it.


The Case

The plaintiff was a nurse who suffered from a medical condition which required her to use a cane to help her walk. The nurse worked in the hospital’s psychiatric ward and the hospital became concerned that the patients could use the cane as a weapon, which caused the hospital to question her placement in that department. To address those safety concerns, the hospital gave the nurse 30-days to apply for other positions for which she was qualified and waived certain transfer requirements (like being in the current position for a certain amount of time and having no final written warnings on record) for this nurse. The nurse was, however, required to compete with other candidates for these positions in accordance with the hospital’s best-qualified hiring or transfer policy .

Ultimately, nurse was qualified for three of seven positions for which she applied, but the hospital hired other, better-qualified applicants. As a result, since the nurse did not secure a new position within the 30 days, the nurse was terminated. The nurse later filed a lawsuit claiming that she was discriminated against because of her disability and that the employer refused to provide her with a reasonable accommodation for her disability.

The Decision

While the Court acknowledged that reassignment to a vacant position may be a reasonable accommodation for a disability, the Court found that requiring reassignment in violation of an employer’s established best-qualified hiring or transfer policy is not reasonable.

In explaining its decision, the court stated, “Passing over the best-qualified applicants in favor of less-qualified ones is not a reasonable way to promote efficient or good performance.” The court further noted that “‘the ADA was never intended to turn nondiscrimination into discrimination’ against the non-disabled.” In short, the ADA does not require an employer to turn away a superior applicant in favor of a disabled employee.

Take Home for Employers

Under circumstances where an employer has hiring or transfer policies in place, (like a superiority system or a best-qualified applicant policy), the ADA does not require a reassignment that violates those established company policies. Instead, in those circumstances, the ADA only requires that an employer allow the disabled employee to compete equally for a vacant position. This may mean, like here, that the employer may be required to waive some other hiring policies (like a time in position policy or disciplinary action policy) as a reasonable accommodation to enable the disabled employee to compete equally for the position.

NOTE: This decision is a split from similar decisions in other jurisdictions; therefore, for employers who are not in the 11th Circuit, they may still need to consider placing the disabled individual in the open position even if he or she is not the best qualified.  It is important for employers to handle each reasonable accommodation situation on a case-by-case basis and engage in good faith in the interactive process with each disabled employee.

New EEOC Focus — Prescription Drug Use

In two recently filed lawsuits, the EEOC has sent the message to all employers that it is increasing its scrutiny of employer actions taken against prescription drug users.

Lawsuit #1 – Failure to Hire Due to Prescription Drug Use

In the first instance, the EEOC filed a lawsuit against a South Dakota casino who failed to hire a job applicant after she tested positive for drug use following a pre-employment drug test. The applicant suffered from a back and neck impairment and took legally prescribed pain medication for this medical condition. After failing the drug test, the applicant tried to explain to the casino that the positive drug test result was caused by her pain medication. Even though the applicant told the casino that she would provide additional information if needed, the casino refused to hire her.

In its lawsuit, the EEOC is arguing that the casino’s refusal to hire an applicant taking lawful prescription drugs because of a disability violates the ADA. As explained by the EEOC, “employers cannot refuse to hire someone simply because she takes prescription drugs.” Instead, the employer has an obligation to engage in the interactive process with the applicant to determine whether the applicant can perform the essential functions of the position.

Lawsuit #2 – Terminating an Employee for Taking Prescription Pain Medication

In the second instance, the EEOC filed a lawsuit against a Georgia medical group who terminated one of their doctors because he was taking legally prescribed pain medication. The doctor was undergoing treatment for a chronic pain condition that limited the functioning of his musculoskeletal and neurological systems and the treatment included taking prescribed pain medication and receive spinal injections. After learning of this treatment, the medical group terminated the doctor because of concerns that the doctor would be unable to perform his job safely and competently while taking these medications.

While this appears to be a legitimate concern, the EEOC is arguing the medical group violated the ADA because it failed to engage in the interactive process with the doctor to actually determine whether the doctor could have performed his job safely and competently. Instead, the medical group drew its own conclusions without engaging in any dialogue with the doctor. As explained by the EEOC, ” employers have an obligation to conduct individualized assessments when they have a concern about an employee’s ability to safely perform his or her job duties. The EEOC will continue to hold employers accountable when they summarily dismiss employees based on unsubstantiated fears about a perceived disability.”

Take Home for Employers

These lawsuits serve as a reminder to all employers of the importance of (1) engaging in an interactive process with job applicants and employees and (2) providing reasonable accommodations to those taking prescription drugs for medical conditions.