Sixth Circuit Addresses "Associational Discrimination" Under the ADA

A little used provision in the ADA prohibits "excluding or otherwise denying equal jobs or benefits to a qualified individual because of the known disability of an individual with whom the qualified individual is known to have a relationship or association." 42 U.S.C. § 12112(b)(4).  Under this provision, the EEOC has explained,

an employer may not treat a worker less favorably based on stereotypical assumptions about the worker’s ability to perform job duties satisfactorily while also providing care to a relative or other individual with a disability. For example, an employer may not refuse to hire a job applicant whose wife has a disability because the employer assumes that the applicant would have to use frequent leave and arrive late due to his responsibility to care for his wife.  

The Sixth Circuit appeal involved an employee, Stansberry, who managed the employer's, Air Wisconsin, operations at the Kalamazoo Michigan Airport from 1999 until he was fired on July 26, 2007.  In the mid-1990s Stansberry’s wife developed Polyarteritis Nodosa, a very rare and debilitating autoimmune disorder. The treatment for this condition "involves medications to suppress the immune system, including prednisone and cyclophosphamide."  It is expensive.  Costing Air Wisconsin's insurer some $4,000 every six weeks.

At some point in 2007, Air Wisconsin increased it operations in Kalamazoo, growing from eleven employees to twenty-five. Stansberry was responsible for ensuring all employees properly carried out their jobs and there were several significant problems with the new hires. Between February and May 2007, six different employees received a total of nine security violation letters from the Kalamazoo airport director. Stansberry failed to notify Air Wisconsin’s corporate headquarters about the violations, they learned about the violation only when the Transportation Security Administration sent a letter of investigation to Air Wisconsin’s headquarters.

Stansberry, already had issues with his boss, Mulder.  When Mulder reviewed the security violations, he let the TSA know he would be taking "severe disciplinary action" against Stansberry.  Air Wisconsin asserts that it terminated Stansberry for poor performance based on his failure to stay within budget, failure to report security violations, and improper supervision of employees, which led to the security violations in the first place. The prepared termination letter Mulder brought with him to the meeting, however, simply mentioned the security violations.

Relying on a Seventh Circuit decision, Larimer v. Int’l Bus. Machs. Corp., 370 F.3d 698, 700 (7th Cir. 2004), the Sixth Circuit decision summarized the types of theories under which an associational discrimination claim could be brought:

Several circuits, including this Court in an unpublished opinion, have relied on Larimer’s outline of three theories into which “association discrimination” plaintiffs generally fall: (1) “expense”; (2) “disability by association”; and (3) “distraction.” The “expense” theory covers situations where an employee suffers an adverse employment action because of his or her association with a disabled individual covered under the employer’s health plan, which is costly to the employer. The “disability by association” theory encompasses two related situations. Either the employer fears that the employee may contract the disability of the person he or she is associated with (for example the employee’s partner is infected with HIV and the employer fears the employee may become infected), or the employee is genetically predisposed to develop a disability that his or her relatives have. The “distraction” theory is based on the employee’s being somewhat inattentive at work because of the disability of someone with whom he or she is associated. Id. at 700.

Stansberry relied only on a “distraction” theory.  Stansberry, who lacked direct evidence, argued that the court should infer discrimination because he was discharged shortly after his wife's condition worsened.  The court rejected the argument:

although her condition grew worse immediately before Stansberry was terminated, Air Wisconsin had been aware of her illness for many years. Because Air Wisconsin knew of her disability for a long period of time, this undercuts the inference that Stansberry’s termination was based on unfounded fears that his wife’s disability might cause him to be inattentive at work.

While the court held Stansberry couldn't establish a prima facie case, it also held he could not show his discharge was because of his association with his wife:

Importantly, while Stansberry’s poor performance at work was likely due to his wife’s illness, that is irrelevant under this provision of the Act. Stansberry was not entitled to a reasonable accommodation on account of his wife’s disability. Cf., e.g., Larimer, 370 F.3d at 700. Therefore, because his discharge was based on actually performing his job unsatisfactorily, and not fears that his wife’s disability might prevent him from performing adequately, Air Wisconsin’s conduct is not prohibited by this section of the Act.

There is an important caveat to the decision.  While the ADA does not require an accommodation in these circumstances, the FMLA (which may not have applied to Stansberry) might require time off from work.  

The EEOC also points out that "an employer must avoid treating an employee differently than other employees because of his or her association with a person with a disability."   It gives two examples:

Example J:  Kyung, an employee at an accounting firm, requests a week of unpaid leave and is told by her supervisor that there will be no difficulty in granting the leave.  Kyung then mentions that she will be using the leave to care for her mother with a disability, who is coming into town for medical treatments.  The supervisor denies the leave request, telling Kyung that the firm's leave policy is not intended to cover this type of situation and that she should hire someone to look after her mother.  A few days later, the supervisor approves Diego's request for a week of unpaid leave to attend a father-son camp with his son.  If the firm grants requests for unpaid leave for certain personal or family reasons, it is a violation of the ADA's association provision to deny Kyung's request because she wishes to use the time to assist her mother with a disability.  

Example K:  A law firm permits its attorneys to use 100 hours of administrative leave a year to provide pro bono legal services.  One attorney, Sylvia, wants to use these hours to work with a non-profit organization that provides legal and other services to individuals with psychiatric disabilities.  The law firm denies her request because it does not believe that this type of work will reflect well on its image.  If the firm allows attorneys to use administrative leave to provide pro bono legal services, it is a violation of the association provision of the ADA to deny Sylvia's request because she wishes to use the time to assist individuals with disabilities.

6th Circuit Rejects ADA Claim from Poor Performing State Employee

In a published (and therefore binding precedent) decision issued today, the Sixth Circuit upheld the poor performance-based firing of an individual with a disability by Tennessee Department of Mental Health and Developmental Disabilities.  The interesting thing about the decision is that the employee (named Whitfield) blamed some, but not all, of her performance issues on her disability and the Department's failure to "successfully" accommodate them.  The court rejected this approach saying:

Although Whitfield attributes her spelling errors to a lack of spell check in the computer program used to input complaints, she made serious spelling and grammatical errors even in programs that had a spell-check feature. In December 2007, nearly three months into her employment, Whitfield neglected to enter the required county on numerous inspection forms and, on another form, entered the wrong county. And although she had difficulties using her computer due to her disability, she also made errors in assignments that were not performed on a computer, such as organizing files alphabetically. On other occasions, she mailed letters without zip codes or complete addresses. Many of Whitfield’s errors can be attributed to nothing more than  Whitfield’s lack of attention to detail, and Whitfield admitted as much in her deposition, stating that she “just wasn’t looking that close” when addressing mailings. At bottom, Whitfield routinely made serious errors that were unrelated to her disability or to a lack of accommodations.
In this context, Whitfield must do more than point to the facts that Defendants knew she was disabled and failed to provide all of her requested accommodations. Although these facts may help Whitfield establish her prima facie case of discrimination under the ADA, in order to survive Defendants’ motion for summary judgment, she needs to show that Defendants’ explanation for her termination could be deemed pretextual. Whitfield focuses only on the problems she had entering complaints into the computer, arguing that, if she had been given all the accommodations she requested, she would have not had the same problems, and, further, other employees made similar errors or were not required to enter complaints at all. Appellant’s Br. at 18–21. Although Whitfield succeeds in creating a genuine issue as to whether she could have adequately performed that particular function with the proper accommodations, she does not address the serious errors she routinely made while performing tasks that were not at all impacted by her disabilities, such as confirming that an envelope has a zip code before dropping it in the mail. Because Whitfield does not create a genuine issue of material fact as to whether she was fired due to her disability, summary judgment in Defendants’ favor was proper.

The holding let the court avoid addressing whether the Department had failed to reasonably accommodate the employee.  The Department had made several attempts to accommodate her but there were technological limitations that the IT employees could not overcome relating to placement of her monitor and the use of a one-handed  keyboard.

Employers must still make reasonable accommodations, of course, but this decision provides reassurance that an employer may terminate a disabled employee for poor performance, especially where the performance issues are not caused by the disability.  Terminations for performance issues that are caused by a disability require more thought but even the EEOC acknowledges that employees with a disability may be held to the same performance standards as other employees so long as the employee is provided the reasonable accommodations "required to assist an employee in meeting a specific production standard."

Another aspect of the decision is worth mentioning.  The court expressly rejected the employee's argument that all she needed to do to get to a jury was to establish a prima facie case.  Given it is very easy to establish a prima facie case, that provides employer with greater security when dealing with employee performance problems.

Must an Employer Provide Lodging as a Reasonable Accommodation

I'm always looking for unusual legal precedents.  I shouldn't be surprised when they come from unusual sources. I receive emails from the Government Accountability Office listing the Comptroller General decisions they issue.  The Comptroller General of the U.S. GAO issues legal decisions and legal opinions on appropriations law, bid protests, and other issues of federal law.  Agencies can ask the Comptroller General for advice on whether federal law permits a specific expenditure. 

Today's e-mail from the GAO addressed whether the Department of Housing and Urban Development, Office of Inspector General, could us appropriated funds to pay for a reasonable accommodation for an employee who wanted the IG's office to provide her with lodging closer to where she would be performing audits.  

The Comptroller General decision addresses an unusual accommodation request.  Federal employees, by statute, are paid lodging expenses when they are "away from the employee's designated post of duty."  The employee's need for lodging, however, was not away from her post of duty.  There was, in other words, no authorization for paying the employees lodging for these trips. 

The Comptroller then addressed whether the appropriated funds could be spent nonetheless, as part of a reasonable accommodation, and concluded they could not because the requested accommodation was not reasonable:

An employer, however, is not required to provide for accommodations that fall outside the scope of employment, like commuting. Laresca v. American Telephone and Telegraph, 161 F. Supp. 2d. 323 (D.N.J. 2001). In this case the employee's drive is akin to a commute, traveling from the employee's home to the work site. Reasonable accommodations are directed at enabling an employee to perform the essential functions of the job itself, 29 C.F.R. sect. 1630.2(o)(1)(ii), and federal courts have held that activities like commuting to and from the workplace fall outside the scope of a job. Consequently, an employer is not obligated to provide a reasonable accommodation for such activities.

The Comptroller General encouraged the IG's office to find some other accommodation that would be effective.

Seventh Circuit holds ADA Does not Adopt Mixed Motives Damages Provision from Title VII

When I previoulsy wrote about the age discrimination decision in Gross v. FBL Services, which held the mixed motives analysis doesn't apply to age discrimination claims, I deliberately avoided explaining what was meant by mixed motives analysis.  I simply said that in a Title VII mixed motives claim, "the employee can partially win."

Today's Americans with Disabilities Act decision from the Seventh Circuit requires me to more fully explain what I meant. 

Because of amendments to Title VII in 1991, if a jury finds that the employer's motives were not entirely pure but that it would have nevertheless made the same decision, the court may award the employee limited relief.  The employee cannot get damages (including backpay) nor can the court order the employee be  reinstated.  The employee can get other injunctive relief (i.e. an order prohibiting future discrimination) and can recover attorney fees (which can add up to a lot).

The 1991 amendments, however, divided up this into two different statutes.  One statute (42 U.S.C. 2000e-2(m) states (essentially) that if the employer had an illegal motive but would made the same decision nonetheless, the employer is nevertheless liable to the employee (the "liablity" provision).  The other statute (2000e-5(g)(2)(B)) limits the relief the employee can obtain in such a situation (the "remedy" provision).

Just a year before the Title VII amendments, Congress enacted the ADA.  Instead of establishing new procedures within the ADA itself, Congress simply invoked by reference the Title VII procedures (several statutes were invoked but the one we are currently concerned with is section 2000e-5).  This is why employees must file charges of discrimination with the EEOC in ADA claims.  The ADA does not, however, invoke 2000e-2, which is, to repeat, where Congress, a year later, inserted a provision making employers liable (but with limited relief) if race, sex, religion or national origin actually motivated the decision even if the decision would have been the same without that illegal motive.

In the Seventh Circuit ADA claim, the jury found that the employer (Rockwell) terminated the employee because of her perceived disability.  The jury also found, however, that Rockwell would have terminated the employee even if it did not believe she had a disability.  The district court granted the employee injunctive relief (requiring Rockwell to put a copy of the judgment in the employee's personnel file) and her attorney fees (which the court reduced from $153,290.54 to $30,658.11, because of the jury's finding).

The Seventh Circuit decision wiped out even this "limited" relief by holding that because Congress did not expressly invoke the mixed motives liability provision (2000e-2) in the ADA, its invocation of the mixed motives remedy provision (2000e-5) was not enough after the Supreme Court's decision in Gross.

I don't ordinarily discuss here questions of statutory interpretation.  This decision is important because it further demonstrates the impact of the Supreme Court's decision in Gross.  It makes trying or briefing an ADA claim simpler.  Of course, it doesn't mean employers should be less cautious or more sloppy in making decisions, especially now that the ADA has been amended to vastly increase the number of folks who have "protected" disabilities.  It is far better to convince a jury (or judge) that the decision was completely free from bias. 

Sixth Circuit Rejects ADA Suit by Employee who Refused a Valid Request for a Medical Examination

The Goodyear plant in West Tennessee had an employee with progressive multiple sclerosis. He worked for 10 years without issue but then his symptoms worsened, in part, by his medications. The employee insisted he could perform his job safely despite his condition. Management learned, however, that the employee was holding onto machinery for support and that his co-workers were helping him perform tasks that required him to climb stairs or ladders. A safety issue also arose regarding forklifts but this was not clearly explained by the decision.

Union representatives met with the employee to tell him Goodyear was going to require him to take a functional capacity examination ("FCE") to determine whether he could safely continue in his job with or without accommodation. The union also advised him that if he "failed" the FCE, Goodyear would likely terminate him but that he had the option to take a medical retirement and receive temporary disability benefits. He took the Union's advice, retired, and sued the company.

Because the employee retired in order to avoid the FCE he had to prove that Goodyear's FCE demand itself constituted an adverse employment action. Citing one of its decisions from 10 years ago, the court held that a "valid FCE demand cannot constitute an adverse action" in a disability discrimination claim (the court left it open whether it could be adverse in a retaliation claim but it would be a stretch there too). The employee argued the examination was not valid, i.e., that the FCE was not job-related nor consistent with business necessity, but (and this is the interesting part of the decision), the Sixth Circuit held that because the employee retired without undergoing the FCE, he could not establish that the examination would have been invalid. An employee, it seems, cannot assume the worst about an employer's demand to submit to a medical examination.

The Sixth Circuit's decision reinforces the employer's right to require an employee to provide accurate medical information. These demands are not to be taken lightly, however. The court stressed that Goodyear required the FCE for valid and specific reasons, job safety concerns, that were "position-specific" and clearly articulated. The EEOC has published Enforcement Guidance which helps to describe when Medical Examinations will be job-related and consistent with business necessity.

Suppose, for the sake of argument, the employee had refused the valid FCE demand? What remedy would the employer have had? Refusal to obey a clear (and legitimate) job requirement is insubordination. Smart employers, however, will not summarily fire an employee upon the employee's initial refusal. Instead, they should write the employee a memo explaining why the employer believes the medical examination is necessary (citing the specific facts) and leaves no room for doubt about what is being required. This memo (or a follow up memo) should unambiguously state that the refusal to undergo the FCE will be regarded as insubordination and will be dealt with pursuant to the employer's disciplinary policies. The discipline imposed for a continued refusal should, of course, be consistent with past disciplinary decisions.

Also remember that the ADA does not permit a medical examination whenever an employee's performance lags. Generally, the EEOC says, "[a]n employer must have objective evidence suggesting that a medical reason is a likely cause of the problem to justify seeking medical information or ordering a medical examination." In the Goodyear case, the medical reason was obvious. That is not always the case and some courts have held that an employee's refusal to undergo a medical examination that fails the ADA requirements is protected activity for which the employee cannot be fired. In that situation, the employer's reason for firing would be per se illegitimate. Thus, smart employers make sure there is no doubt that the examination is authorized by the ADA before imposing discipline.

Quantifying the Cost of a Reasonable Accommodation

I am something of an oral argument junkie. I read Supreme Court oral argument transcripts and listen to oral arguments when the Oyez Project updates its archive. One court of appeals, the Seventh Circuit, makes it easy to listen to arguments as they release oral argument recordings to as a podcast (including to iTunes) the same day of the argument. Other federal courts of appeals (1st, 3rd, 5th, 9th and Federal Circuits) release online oral argument recordings, the Eighth Circuit also releases a podcast (including on iTunes). Unfortunately, the Sixth Circuit (and several others, including the Fourth Circuit and D.C. Circuit) keeps its oral argument recordings to itself, requiring counsel to request the recording "in writing" and even then only releasing the recording upon the payment of a $26 fee.

When I am not working, I'll listen to the "latest" in oral arguments. (I get a lot of eye-rolls and a few jaw drops when I admit I listen to these arguments.) Of course, the arguments are most interesting (or should that be, "less dull") when the judges on the panel ask informed questions. It gets downright entertaining when the judges ask questions the lawyers can't (or won't) answer. (Clients may be dismayed to know that this happens a lot more than they might think.)

One such case, Ekstrand v School District of Somerset, was argued before the Seventh Circuit in September; the decision was issued today. I remember the argument because the judges on the panel (judges who are not considered to be "liberal" judges by any means) cut straight to the most problematic aspect of the School District's case. But I am getting ahead of myself.

Ms. Ekstrand taught first grade and kindergarten (successfully for 5 years) until she was assigned a classroom with no windows. Ms. Ekstrand, it seems, has "seasonal affective disorder" (a form of depression) and natural light helps alleviate the symptoms; artificial light, in turn, causes her difficulty. (The court found she at least arguably met the definition of disability but I'll omit any discussion of the issue given the 2008 ADA Amendments). Before the 2005-06 school year, Ekstrand asked (repeatedly) for a "natural light" room. There were two available (one teacher was willing to move and the other vacant one was being held anticipating that the school might add another third grade class). The School District worked with Ekstrand a good bit (she complained of other aspects of the inside room) but did not move her to an outside room.

Ekstrand's symptoms (fatigue, anxiety, hypervigilance, tearfulness, racing thoughts, and trouble organizing tasks) increased after the school year began; she sought medical attention, and continued to press for an outside room. After going on medical leave, she presented the school (through its "workers' compensation representative") with a note from her physician which explained that it was important for individuals who had seasonal affective disorder to have natural light and that the current episode of depression was likely caused by being in the windowless room. Ms. Ekstrand eventually quit (the court rejected her assertion that she was constructively discharged).

At argument (the lower court had dismissed the case), the court wanted to know why the school didn't move Ms. Ekstrand to the classroom so she could get natural light. The judges pressed the School District to explain what it would have cost them to move her. The School District's counsel didn't (and wouldn't) say, preferring instead to focus on what the School District had done for her instead.

Now, in fairness to the School District's counsel, there is a good bit of stress put on how the employer and employee must engage in an "interactive process." In addition, Ms. Ekstrand had already left work on medical leave more than a month before she submitted the note from her physician. By that time, there wasn't a lot of "interactive process" to be had.

The court, however, viewed the School District as arguing that the "interactive process" means the "when we get around to it" process. The move, it turns out, would have cost nothing and the disruption would have been minimal (recall that at least one teacher was willing to trade classrooms). So why didn't, the court wanted to know, the School District agree to it?

The bottom line message this decision sends is that it is a mistake to equate the "interactive process" with a "reasonable accommodation." The interactive process isn't an end result; it is a means to an end. The interactive process would have allowed the school to have proposed other "less expensive" accommodation "so long as it is sufficient to meet the job-related needs of the individual being accommodated." (29 C.F.R Part 1630 Appendix to 1630.9)

The School District thought its initial efforts met this requirement but it turns out their "good faith" steps (as even the court described them) fell short of the ultimate mandate. They were not, after all, effective in alleviating Ekstrand's condition and, when she presented the medical explanation, the School District backed itself into the corner of trying to explain how some other effective accommodation would be "less expensive" than an accommodation that doesn't cost anything to begin with.

One other important point concerns the court's holding about when the accommodation should have been made. The court didn't hold that the School District should have immediately moved the teacher upon her initial (before the school year) request. Instead, because the accommodation she requested wasn't "so widely known as a necessary treatment for seasonal affective disorder that it should have been obvious to the school district," the court held the School District acted reasonably in not moving her until she submitted the physician's note. The EEOC's Appendix to § 1630.9 permits the employer to require documentation "when the need for an accommodation is not obvious" and the court held "an employer may not be obligated to provide a specifically requested modest accommodation unless the employer is made aware of its medical necessity to the employee." (Some common sense is required here, of course.)

But, once Ekstrand submitted the physician's note, "the school district was obligated to provide Ekstrand's specifically requested, medically necessary accommodation unless it 'would impose an undue hardship' on the school district." Similarly, the EEOC emphasizes that when a request is made the employer "should act promptly to provide the reasonable accommodation" (Q&A # 10) or at least engage in the interactive process "as quickly as possible." (Id.) The simpler the requested accommodation the quicker the employer will be required to provide it. (The EEOC lists several other factors at footnote 38 of its Enforcement Guidance).

Decisions like this one are going to be more common now that the 2008 ADA Amendments have effectively changed the focus of ADA litigation from arguing over whether an employee has a disability to whether the employer accommodated the disability. Smart employers will (they should have done so already) refresh their understanding of the ADA Accommodation requirements.

EEOC Issues Notice of Proposed Rules under 2008 ADA Amendments

Today, shortly before lunch, the EEOC announced that it would issue a "notice of proposed rulemaking" (NRPM) that will conform the existing ADA to the changes made by the ADA Amendments Act of 2008.

I previously posted on most of the ADA amendments and on the "regarded as" changes.

The NPRM should be formally issued next week. I'll post a link to the formal notice in the federal register then.

The EEOC posted a Q and A section on its website. The EEOC Announcement about the NPRM is also available. The Q and A illuminates some of the issues but doesn't say much more than what is in the statute. One key question was how would the EEOC define when an impairment substantially limits a major life activity. The Q and A simply (and unhelpfully) states that the

determination of whether an individual is experiencing a substantial limitation in performing a major life activity is a common-sense assessment based on comparing an individual’s ability to perform a specific major life activity (which could be a major bodily function) with that of most people in the general population.

Job Reassignments and Reasonable Accommodations

One of the more controversial topics under the ADA is to what extent is an employer obligated, as a reasonable accommodation, to transfer an employee to another (vacant) job. It is controversial because, by definition, reassignment only comes into consideration when the employee (the EEOC says), because of a disability, "can no longer perform the essential functions of his/her current position, with or without reasonable accommodation" or undue hardship. It doesn't help that the EEOC takes the position that "The employee does not need to be the best qualified individual for the position in order to obtain it as a reassignment" leading some courts to disagree with the EEOC.

With passage of the 2008 amendments to the ADA, employers are going to find themselves having to address many more requests for accommodations, a good number of which are going to be job transfer requests. I'm not going to go into all of the rules and considerations that go into whether to accommodate such a request. If you want a refresher, the EEOC's Enforcement Guidance on Reassignments, gets close enough.

What I want to talk about is some of the reasons why, not too long ago, Liberty Mutual Insurance Company found itself on the losing end of a failure to reasonably accommodate ruling by the United States Court of Appeals for the First Circuit (governing primarily the New England States) and will, it looks like, have to pay a former insurance salesman more than $1.3 million in damages (attorney fees will be additional). Of course, what I know of the case is based solely on what is written in the court's decision.

Kevin Tobin worked for Liberty Mutual selling insurance for nearly thirty-seven years. Mr. Tobin has bi-polar disorder, diagnosed several years before his termination, and it ultimately appears to have prevented Tobin from performing up to standards in his current sales position. In fact, the court of appeals, in an earlier ruling, upheld Liberty Mutual's decision to terminate Tobin because of his "longstanding performance difficulties" but ordered a trial on Tobin's accommodation claim. At the trial, Tobin argued a reasonable accommodation would have been to assign him to manage "mass marketing" accounts, accounts that are group insurance programs offered to businesses and other institutions in which employees or members are able to purchase insurance policies at a discount. These "MM" accounts are highly sought-after because of the volume and ease at which some can be managed. Liberty Mutual refused, saying that Tobin's sales record made him ineligible for the MM assignments because they were awarded as perks to the best performing agents and that Tobin, because of his disability, could not have handled the stress of the MM accounts in any event. (Stress, the evidence showed, tended to worsen Tobin's mental problems.)

Where Liberty Mutual's case fell apart was in asserting reasons that were not supported by the facts.

It may be true that MM accounts were largely (or even overwhelmingly) assigned as perks for the best performers. There was evidence, including from Tobin's former manager and other sales employees, that MM accounts were not uniformly so assigned. So, while it is true that uniformly applied seniority rules do not have to be ignored in making an accommodation, US Airways, Inc. v. Barnett, 535 U.S. 391, 404-05 (2002), the catch is that where "one more departure [from the practice] will not likely make a difference," the employee may be able to show a deserved accommodation was wrongly denied.

So in deciding whether or not to transfer an employee with a disability to a vacant job, never look to what you think the transfer standards should be. You must look at your actual past practice in filing the position before denying the accommodation.

Liberty Mutual's other argument – that Tobin's disorder rendered him incapable of handling some of the MM accounts – also fell flat. Sure, the court acknowledged, Liberty Mutual could point to MM accounts that Tobin probably could not handle due to the pressure but that didn't mean, the court said, Tobin could not manage any MM account. There was testimony that some MM accounts were "easy" to manage. Again, the thoroughness of the evaluation at the time was what hung out to dry Liberty Mutual.

Reading between the lines, my take on this case is that Liberty Mutual finally ran out of patience with Mr. Tobin. The court said Liberty Mutual had engaged in the "interactive process" and made other accommodations than the ones at issue in this lawsuit. The provided accommodations, it appears, were geared toward helping the employee perform his old job, there was no indication, Liberty Mutual offered any other accommodation (in this instance, some other vacant job Tobin could have performed). Remember, once an employer offers an accommodation that is reasonable, the employee cannot reject it and demand the employer provide a preferred accommodation.

An employer does not always have to have the patience of Job (it helps, of course) but just a little more patience – in the form of giving Tobin at least the opportunity to fail in working on the MM accounts (or some other job) - could have possibly avoided the outcome in this case.

One of the best services an employment attorney can provide a client is to say when the client is about to make a mistake. It isn't easy or fun to give that message (there is an art to the delivery) but it often saves the client years of heartache, worry, significant money and the risk inherent in litigation. A good defense lawyer also knows how important it is to ask probing and "difficult" questions in rendering advice. So too must an HR manager. If you are going to bet the farm on a position, don't simply ask, "what is the rule," also ask, "what exceptions have been made to that rule." (And take it as a given that no rule is without some exception, even if only a potential one.)

Not every exception or potential exception will require you to grant the accommodation request, however. Under Barnett, the test is whether "one more exception" would make a difference. To determine that, you must examine all the facts, not simply those that might fit the desired outcome.

Preparing for Fair Pay Legislation - Part 1

With Congress on the brink of passing legislation that would make significant changing to the Equal Pay Act and Title VII's Compensation Discrimination case law, I thought it would help to post several blogs explaining the changes and how Tennessee employers can be prepared for the changes that seem likely. Of course, until legislation is finally enacted, this is tentative.

Most of Congress wants to change two aspects of compensation discrimination law. First, they want to overturn the perceived effect of Ledbetter v Goodyear Tire & Rubber Co. Inc. which had held an employee's claim was filed too late because she could not (and made no effort to) show that a discriminatory decision was made within the limitations period. Second, Congress would amend the Equal Pay Act to change what an employer must show to prove a factor other that sex was the reason for a pay difference. This bill would also increase the damages and penalties an employee would receive if pay discrimination is proven.

I could write much on how Congress perceives inequities. There are significant faults in the rationale members of Congress and the supporters of this legislation give as the necessity for these bills (especially the part that would change the effect of Ledbetter). This is not really the place for having an extended discussion of those faults.

The better and more interesting discussion would be whether the changes Congress seems poised to make will help in solving the problems they have identified. Study after study, as reported in the media and the Internet, proclaim that women are paid less than men for the same work. (So says a GAO Report from 2004 - reporting from 1983 to 2000, women earned 21 percent less, a figure the GAO said was diminishing. The worst "studies" are those, such as one reported last year in Crane's which draws conclusions based upon whether people perceive themselves to be underpaid.) Broadly defined statistics that cover multiple jobs in different companies are unreliable in forecasting whether individual employers permit pay disparities. Since I have no empirical basis for disputing that (and am not so naive as to think that all pay disparities everywhere have been eradicated), I take it as a given for purposes of the present discussion.

Pending now are two bills (HR 11 and S.181). HR 11 passed the House on January 9, 2009. It consists of two parts (each part responds to one of the concerns listed previously).

Part I would change the outcome in Ledbetter and let employees sue for pay discrimination (if the difference is caused by sex, race, age, disability, national origin or religion) for as long as the disparity in pay continues. Backpay would, however, be capped at two years prior to the filing of the charge (a cap that currently exists). So, where Ledbetter held a discriminatory pay decision made decades earlier could not be a timely discriminatory act, the intent of this legislation would be to let the lower paid employee sue and recover for a few years of the disparity so long as the improperly motivated pay disparity continues to exist. The employee could also recover other damages as already allowed by Title VII and the ADA (but the ADEA does not authorize compensatory or punitive damages).

The Senate will probably vote on its bill (S.181) as early as Wednesday, January 21, 2009, though several Republican senators (including both from Tennessee) have sponsored an amendment which, to my thinking, could be worse, as it would create uncertainty as to when the time for filing a charge (on any action, not just compensation claims) starts and eliminate the existing requirement that employees must act diligently in determining whether they have been discriminated against. Right now, S.181, only addresses the effect of the Ledbetter decision.

How would these changes affect Tennessee employers? Depending on what is passed, they might not notice much of a change at all. A few years ago, the Tennessee Supreme Court held employees could sue for present and past damages so long as the employee can show they are presently being paid less than their peers and the reason for the difference is prohibited (the THRA, of course, prohibits much the same things as Title VII, the ADEA and ADA). Tennessee law thus, in this way, goes further than what Congress would authorize.

How can an employer protect themselves from suits over decisions made years earlier? One change was sanctioned by a 2004 Sixth Circuit decision which held that employers and employees may contract for shorter (or longer) time periods in which to sue than allowed by law. An employer that does this, should observe several precautions designed to increase the chance the clause will hold up in court:

• Have the employee sign the document or application in which the limitation exists. The Sixth Circuit decision and other similar decisions are based upon principles of contract law, and the failure of the employee to sign may result in a missing element of a contract -- mutuality or mutual assent (that is, a signature showing agreement to the terms).
  
• Make sure the time period to which the limitation has been reduced is reasonable. It is strongly suggested that any reduced limitations period not be less than six months in the employment context.
  
• Do not attempt to limit an employee’s right to file suit against the company, file a charge of discrimination with any federal or state agency, or to limit the type of actions that an employee may bring. Prospective waivers of substantive rights are not only frowned upon they are invalid. Worse still, you could end up being sued by the EEOC which takes the position that Title VII (ADEA, ADA etc.) is violated if an employer merely presents an employee with a contract that limits the employee's ability to participate in commission proceedings, though on this last point, it lost the lawsuit because the employee never signed and the employer never enforced the document in question.

These are not the only changes an employer can (and should) make. Limiting the time for suit only goes so far. In coming posts, I will address other practices an employer can adopt that would help identify and eliminate unexplainable pay disparities that might lead to a lawsuit.

For procedural reasons, even if the Senate adopts S.181, as it presently exists, the differences with HR.11 would have to be resolved before any bill could be presented to the President. Those differences (right now) are primarily how the "Fair Pay Act" (Part II of HR.11) would amend the Equal Pay Act. In the next post, I'll focus on those changes, though if Congress adopts one of the Republican Amendments, I would necessarily devote the post to explaining more about that.

Accommodations, the Interactive Process, and Supervisors who Listen

Today, the Sixth Circuit reversed the dismissal of an ADA claim because the supervisor didn't want to deal with the employee's accommodation request. Now, procedurally, to get a case dismissed prior to trial, the court must assume the employee's testimony is true so who knows what the truth is. The facts according to the employee were that she worked at a Dollar General Store as a cashier. She suffered from degenerative osteoarthritis of her cervical and lumbar spine and other conditions. For some time her supervisors allowed her to use a stool to sit on when she worked but other employees complained that she was getting preferential treatment. Without the stool, the employee couldn't work and so she took medical leave. On return, she was not permitted to use a stool and was told she would be limited to 3 five minute breaks per 6 hour shift. She refused and promptly obtained a doctor's note saying she could return to work and that it would be "beneficial" to let her use the stool. The supervisor, she said, refused to look at the note. She left work and the employer fired her for job abandonment.

The abandonment claim came down to whether or not the employer refused her request for a reasonable accommodation. In a case that comes down to whether or not an employee was reasonably accommodated (or offered an accommodation), the cases specify that "When a party obstructs the process or otherwise fails to participate in good faith, ‘courts should attempt to isolate the cause of the breakdown and then assign responsibility.'" This standard derives from the EEOC's "interactive process" for resolving what kind of an accommodation would be reasonable and effective.

The employer lost - at the early dismissal stage - because it was responsible for the breakdown in the process. It wasn't just that the employer refused to let the employee use a stool, though that was a significant part of the employer's failing. It was that when the employee brought in a note saying she could work if she used a stool, the employer did nothing other than to reject that as an accommodation. Had the employer continued to work with the employee, the result might have been different. For example, the employer in this case argued it proposed a reasonable accommodation of letting her take several breaks. The employee apparently wanted "unlimited" breaks (the decision isn't clear on this). That would probably have not been a reasonable request but if the employer had sat down with the employee and tried to work out a specific break schedule - or even a process for giving her a few more breaks as needed upon a reasonable request to her supervisor - the result here would have been different.

So, employers should make sure the supervisors know that in "negotiating" an accommodation, it is crucial that they listen. They don't have to agree with the employee's request - just listen to it and say, we will consider it and get back to you as soon as possible. The employee cannot assume the worst and the ADA puts the employer in control by saying that if the employer proposes a reasonable accommodation, the employee doesn't get to reject it (as long as, of course, the accommodation is genuinely reasonable).