Sixth Circuit: ADA Does Not Require Employer to Accommodate Employee's Commute

Alisha Regan worked for Faurecia Automotive Seating, an automotive manufacturing facility in Michigan. When hired, Regan's work hours were from 6 am to 3 pm.  When her husband later took a new job, they moved some 79 miles from Ms. Regan's job, resulting in her commute to work lasting between two and four hours. 

Regan has narcolepsy but continued to work without incident until Faurecia determined that her group's 6 to 3 shift was inefficient because materials the group needed did not get to them until later in the morning.   When Faurcia change the hours from 7 to 4, Ms. Regan asked to be allowed to leave work at 3 pm (by skipping lunch or starting work earlier) as an accommodation because driving home from work at the later time would put her in heavier traffic.  She explained that heavy traffic tired her out more quickly and cause her to become tired.  Her commute would take longer because she would have to pull over and rest more often.  Faurecia offered FMLA leave but refused to let her end work at 3.

As a threshold matter, the court of appeals addressed whether Ms. Regan's requested accommodation was reasonable because it sought to accommodate difficulties she encountered outside of the work environment.  Relying upon decisions from other courts, the court of appeals held that "the Americans with Disabilities Act does not require Faurecia to accommodate Regan’s request for a commute during more convenient hours. Under the facts present here, her proposal of a modified work schedule for purposes of commuting during hours with allegedly lighter traffic is not a reasonable accommodation."

Tennessee employers should not read more into this decision than it says.  The EEOC agrees that an employer is not required to "provide assistance in getting [an] employee to and from work."  But the EEOC's position is also that an employer must allow an employee to work a "modified work schedule" (e.g. different start or ending times) as an accommodation for a disability.  

Frankly, it is not easy to reconcile the Sixth Circuit's decision with the EEOC's position.  The Sixth Circuit apparently concluded that difficulties caused by the heavier commute were too attenuated from a symptom of her disability (which an employer must accommodate).  I suspect the EEOC might not agree, saying that Regan's disability was a major reason Regan felt she needed to leave early. 

EEOC Addresses Employer's Use of Criminal Background Checks

Today, the EEOC issued an "enforcement guidance" that addresses Title VII liability arising out of an employer's use of criminal background checks.  

Of course, as the EEOC acknowledges, Title VII prohibits employment discrimination based on race, color, religion, sex, or national origin but "[h]aving a criminal record is not listed as a protected basis in Title VII."  Instead, employers can be found liable under Title VII when, for example, "the evidence shows that a covered employer rejected an African American applicant based on his criminal record but hired a similarly situated White applicant with a comparable criminal record."   Most employers get this point.

The more difficult question is when will the EEOC find that an employer's reliance on criminal background checks causes a disparate impact.  The EEOC's guidance cites to FBI and other studies and finds that

African Americans and Hispanics are arrested in numbers disproportionate to their representation in the general population. In 2010, 28% of all arrests were of African Americans, even though African Americans only comprised approximately 14% of the general population. 

The EEOC also found that imprisonment rates among African Americans was between 5.6 to 10 times higher than imprisonment rates among whites.  Comparative statistics for Hispanic arrests and incarcerations are less reliable but equally troubling.

Based on these statistics, the EEOC concludes that "that criminal record exclusions have a disparate impact based on race and national origin."  There are two points to note here.  I don't dispute the statistics the EEOC relies upon, but the EEOC's adverse impact findings do not distinguish arrests from imprisonment.  Assuming neutrality, employers should be able to treat past convictions as more serious than past arrests. Also, as the EEOC acknowledges, these statistics are no substitute for actual statistics tailored to the employer's hiring pool.  The EEOC cites national statistics and if, as is usually the case, an employer does not hire from a national pool of applicants, then the employer has the right to insist on the use of accurate local data. 

But let's assume there is an adverse impact. The question at this point is whether the practice (however it is defined) is "job related for the position in question and consistent with business necessity." Discussing arrests separately from convictions, the EEOC takes the position that a blanket policy against employing (hiring or firing) individuals because of an arrest history violates Title VII: "an exclusion based on an arrest, in itself, is not job related and consistent with business necessity."  But, the EEOC also says, although "an arrest record standing alone may not be used to deny an employment opportunity, an employer may make an employment decision based on the conduct underlying the arrest if the conduct makes the individual unfit for the position in question.." So, with arrests, employers are advised to take each question individually (and, of course, make consistent decisions to avoid disparate treatment liability).

With convictions, the EEOC is a little more flexible but even here it makes the inquiry too complicated.  The EEOC does not go so far as to prohibit any questions about prior convictions.  It cautions, however, that the "best practice" is to "not ask about convictions on job applications and that, if and when they make such inquiries, the inquiries be limited to convictions for which exclusion would be job related for the position in question and consistent with business necessity."  One has to wonder whether the EEOC has ever written a job application because I'm having a hard time seeing how a job application could be written in this manner.

The EEOC also needlessly complicates the task of determining whether a past criminal conviction renders an applicant unqualified.  An employer's past conviction policy, it says, must be "tailored to the rationale for their adoption" (considering all the factors) and will "need to be narrowly tailored to identify criminal conduct with a demonstrably tight nexus to the position in question."  The EEOC never explains what it means by a "demonstrably tight nexus," much less whether this standard is the same as the business necessity standard in the statute (presumably it is).   So far as I (using Google and Lexis) can tell, the EEOC has never used this phrase for any concept.  And of all things, why adopt a confusing and potentially more demanding standard in a Guidance on the use of criminal histories.  There is just no support for this in the statute.

But while I question whether courts will adopt the EEOC's vague standard, I agree that the better practice for an employer is to never make knee jerk reactions.  Blanket exclusions, no matter what the job, are not a good idea.  But employer can adopt rational policies, especially for jobs that require the employee be put in a position of trust.  The EEOC even acknowledges that "Title VII thus does not necessarily require individualized assessment in all circumstances."

What disappoints me most of all, however, is that the EEOC did not address the kind of evidence or showing it will take for an employee to establish that there was a "less discriminatory 'alternative employment practice' that serves the employer’s legitimate goals as effectively as the challenged practice."  The EEOC should have done more than simply parrot the statute especially since, on this question, it is hard to understand how there could be a less discriminatory alternative.

Finally, the EEOC guidance acknowledges that employers will have a valid defense where federal law establishes job criteria.  As always, however, employers will need to be able to show that their decisions consistently applied these federal mandates.

Calling Your Lawyer is Not Evidence of Retaliation

The Sixth Circuit issued a very interesting decision (Sander v. Gray Television Group, Inc. today involving a television news reporter who got mad and stormed off the job, saying "I'm qoing to quit" or words to that effect.  The decision is interesting for the holding that the employee did in fact quit and therefore could not establish a prima facie case (because quitting, short of a constructive discharge, is not an adverse action).

But what interested me was that the court, in discussing whether the employer, assuming it had fired the reporter, considered whether one manager telling another manager to contact the station's lawyers because knowing the employee, the station "would end up at this point sitting at this [litigation] table.”  In arguing that his "termiantion" was retaliatory (the court assumed the reporter engaged in protected activity) the reporter cited to this comment as evidence of retaliation.  The Sixth Circuit didn't buy it:

Companies that terminate employment relationships for legitimate reasons often choose to speak with counsel; therefore, Gray Television’s choice to do so here does not necessarily support a conclusion that Sander was fired in retaliation for complaints about age discrimination.

As of late, I've revived my interest in "age conscious statements" and this decision addressed an argument that is currently being made by older employees.  In his ADEA claim, the reporter (Sander) cited to allegedly age biased statements made by his new supervisor (Thomas) (who made some significant changes to the station).  The court, however, rejected the argument:

Sander claims that Thomas “admitted that he harbored an age-related bias against Sander.” However, to support this claim Sander can only point to Thomas’s comments regarding Sander’s “weak” energy levels and his perceived reluctance to change. The “perceived reluctance to change” was in relation to Sander’s disgruntled attitude toward learning to post stories on the web, which is not necessarily age-related. As for the “weak” comment, as the district court explained, one’s energy level is not only not necessarily related to age, but also is essential to the success of a television station.

I typically suggest, perhaps a bit unrealistically, that employers avoid making any statements that might be taken to reflect an age animus.  (My point is it is better to be explicit, not conclusory, in  describing an employee's performance issues and anything that avoids the cost of litigation is a good thing for an employer.  But truth be told, this decision shows that many innocent comments can be twisted and used against an employer.

The ADEA and "New Eyes"

Earlier in my career I tried to compile a list of the alleged "age conscious statements" addressed by federal court decisions.  It was fun, but impossible to keep up to date.  I still use it from time to time. 

A CA6 decision issued today (Metz v. Titanium Metals) involved a new one for me.  In making a reduction in force decision, a decision maker (Heatherington) sent an email which compared the respective candidates.  The email said:

 [Dickinson] has been employed with us for seven-and-a-half years and has continually performed in various capacities at a high level. He is a solid performer and will bring new eyes and tools to the material movement area of the plant . . . . The two Supervisors currently in that area have been with Timet for many, many years, Hercules, 42-plus, Metz, 23-plus, and Mike Saletta is looking to bring new ideas to the area. Hercules will most likely retire within six-to-nine months. [Dickinson] is well-suited to ensuring improvement in this area. 

The court rejected the argument that these comments reflected an age bias, explaining: 

These comments do not require the conclusion that Timet discriminated against Metz. Heatherington was describing Metz’s and Hercules’s tenures at Timet, which is not the same as their age. See Hazen Paper Co. v. Biggins, 507 U.S. 604, 611 (1993) (an employer’s consideration of an employee’s years of service does not equal discrimination). Heatherington’s remarks about “new eyes and tools” and “new ideas” are ambiguous and do not necessarily refer to age. See Abnet v. Unifab Corp., No. 06-2010, 2009 WL 232998, at *4 (6th Cir. Feb. 3, 2009) (a supervisor’s statement about the need to bring in “new blood” or a “change agent” did not show discrimination). And her mention of Hercules’s plan for retirement does not show age-based animus. See Woythal v. Tex-Tenn Corp., 112 F.3d 243, 247 (6th Cir. 1997) (comments on an employee’s planned retirement, without more, do not show discrimination).

While the court ruled these comments were not discriminatory, employers should not take this as permission to use these words.  It is best to play it conservatively.  The better practice is to avoid the use of somewhat conclusory statements ("new eyes and tools") in favor of a more detailed explanation of the critical skills the surviving employee possesses.

Subjective Assessments

There's nothing automatically wrong with basing employment decisions on subjective assessments.   For many jobs, particularly exempt jobs, it can be the only way to evaluate an employee's performance.

It is important, however, to do it right.  That means being able to explain the reason for the subjective decision adequately.  In the disciplinary context, it also helps, strongly helps, to be able to point to past attempts to correct the employee's problematic conduct.

A decision (Segal v. Kimberly Clark) from the Sixth Circuit released today demonstrates the difference between an unsupported subjective decision made in a vacuum and laying the proper groundwork.   Consider Kimberly Clark's reason for firing Segal:

First, Kimberly-Clark’s reasons for Segel’s termination are richly supported by the record. Segel’s annual performance reviews persistently expressed concern regarding Segel’s inflexibility toward his colleagues and his clients as early as 2000. When Segel’s 2006 performance review indicated a heightened level of dissatisfaction with Segel’s inflexibility, Kimberly-Clark provided Segel with both a 90-day PIP and a 30-day Last Chance Agreement to improve his behavior. Both documents highlighted Segel’s inflexibility as the reason for Segel’s probationary status with Kimberly-Clark and made clear that Segel’s failure to improve would result in termination.

Segal argued that “flexibility” is an entirely subjective criterion, and that “[s]ubjective assessments are easily susceptible to manipulation in order to mask the interviewer’s true motivations.”  He tried to rely upon a a previous CA6 decision, White v. Baxter Healthcare Corp., 533 F.3d 381 (6th Cir. 2008). The court, however, explained what White held and why that didn't apply to Segal:

In White, an African-American employee appealed the district court’s grant of summary judgment in favor of his prior employer. 533 F.3d at 384. The employee in this case had received stellar performance reviews and was interviewed for an internal promotion; ultimately, however, another candidate was selected for the job. Id. at 386-87. The employer explained that the other candidate was selected because the interviewers considered the employee “extremely aggressive” and “confrontational.” Id. at 387. This Court reversed the district court’s grant of summary judgment, holding that:

any evaluation of [plaintiff’s] interview performance is an inherently subjective determination, and thus easily susceptible to manipulation in order to mask the interviewer’s true reasons for making the promotion decision. Indeed, since the very issue in dispute is whether the reasons given by these interviewers for their decision should be believed, it would be highly inappropriate for us to assume . . . that their own subjective perceptions of [plaintiff] were accurate.

Id. at 394. Accordingly, this Court found that a jury could reasonably disbelieve the employer’s proffered explanation and that the employee’s case was entitled to go forward.

The facts in this case are distinguishable from White. The record in this case presents a longstanding concern with Segel’s flexibility; whereas the adverse employment decision in White occurred in a vacuum of otherwise glowing reviews, Kimberly-Clark’s decision to terminate Segel took place after years of documented concerns regarding his flexibility. Further, the plaintiff in White was interviewed by only four people on one occasion, whereas Segel was evaluated by a greater number of individuals on multiple occasions over the course of many years. So, even though a subjective term like “aggressive” was not a sufficiently clear motivating factor in White, we find that a similarly subjective term—“inflexible”—is adequate where it was repeatedly utilized by varying people on numerous occasions.

So, wise employers won't rely upon subjective decisions "in a vacuum of otherwise glowing reviews" but will lay the ground work by showing a history of addressing the problematic conduct with the employee.

Sixth Circuit Rules Employer Violated FMLA by Failing to Advise Employee How It would Calculate FMLA Leave Eligibility

The Sixth Circuit issued an ugly decision today in an FMLA interference claim.  It's ugly because it didn't need to happen.

The dispute concerned when the employee was required to return from FMLA leave.  The employee thought he had longer than did the employer, who fired the employee when the employee didn't return by the employer's deadline.  The employee maintained he would have been able to return to work by the deadline as he understood it.

The problem arose in how the employer calculated the employee's eligibility for 12 weeks of leave. The court explained:

The FMLA stipulates that, “an eligible employee shall be entitled to a total of 12 work weeks of leave during any 12-month period . . . because of a serious health condition that makes the employee unable  to perform the functions of the position of such employee.” 29 U.S.C. § 2612(a)(D). Employers, for their part, are “permitted to choose any one of . . . [four] methods for determining the ‘12-month period’ in which the 12 weeks of leave entitlement . . . occurs.” 29 C.F.R. § 825.200(b). Two of these four methods, namely, the “rolling” method and the “calendar” method, are pertinent to this case. The “rolling” method calculates an employee’s leave year “backward from the date an employee uses any FMLA leave.” Id.

 Under the rolling method, the employee's 12 weeks of leave would have expired on June 13, while under the “calendar” method, the allowed leave would have extended theoretically through July 14. The problem, the court said, was that (the emphasis belongs to the court):

At no time throughout the FMLA process did the Company mention to Thom that his leave time would be governed by a “rolling” 12-month period. The only written document he received from the company stated that his leave would expire on June 27. He was only notified that American Standard had  accelerated his return-to-work date on June 14, after it had already elapsed the day before. The first time Thom was given actual notice that the Company was using a “rolling” method requiring him to return to work on an earlier date was after he filed his lawsuit in this case when the defense lawyers raised the rolling method as a defense.

 The employer tried to argue that it had given notice to the employee but the court didn't buy it:

employers should inform their employees in writing of which method they will use to calculate the FMLA leave year. This standard is consistent with the principles of fairness and general clarity, and applying it, [the employer']s notice to [the employee] fell decidedly short. Although [the employer] did internally amend its FMLA leave policy in March 2005 to indicate that it would now calculate employee leave according to the “rolling” method, it did not give [the employee] actual notice of this changed policy.

 Even worse, the employer had approved the employee's FMLA leave for though June 27, which was well after it later maintained, in the litigation, the employee's leave expired.

The lesson is pretty simple.  Make sure to designate the manner in which you will calculate FMLA leave eligibility.  The rolling calendar method is the one most employer's favor.  But more importantly, make sure to calculate FMLA leave eligibility for each employee before approving a return to work date.  But even if you mistakenly approve a return to work date after an employee's eligibility expires, you can fix the mistake by notifying the employee of the new return to work date.  Depending on the circumstances, specifically, the employee's reliance on the longer leave period, you may have to be flexible in when the employee returns.