For my Jewish brethren, I hope everyone survived the gauntlet of the Jewish High Holidays, which ended last night. Again, wishing everyone and their families a happy and healthy new year.
Today’s case comes from the United States District Court’s Southern Division in South Dakota and it takes on issues of alcoholism as a disability, associational discrimination, retaliation, and whether magic words are necessary when requesting a reasonable accommodation. The case, which appears to be an unpublished decision, is Adams v. Persona, Inc., 2015 U.S. Dist. LEXIS 110764 (D. South Dakota, August 21, 2015). As is my usual practice, the blog entry is divided into categories: facts; court’s reasoning regarding retaliation; court’s reasoning regarding associational discrimination; and takeaways. The reader is free to focus on any or all of the categories.
The plaintiff suffered from alcoholism. In August 2012, after he was notified of possible alcohol related misconduct at the workplace, several people from his employer met with him. At the meeting, the plaintiff was told that his employer, Persona, was engaging in a “fact-finding mission,” and he was asked about his alcohol consumption. In response, the plaintiff admitted to his alcohol dependency. The president of human resources then advised him to enter treatment and that the employer would allow him 10 weeks leave. Plaintiff was suspended from work and his employment status set to be reevaluated in 30 days. Several days after the fact-finding meeting, the plaintiff spoke with the president of human resources and was informed of his suspension. The president of human resources told him that she would attempt to find a new position for him upon his return but that it may not be in Madison. Furthermore, he was informed by the president of human resources that the 10 weeks of leave would be covered through his accumulated vacation pay and that he would have four weeks of accumulated vacation pay remaining. He entered a 30 day treatment facility on the same day he spoke with the president of human resources. He completed the treatment on September 12, 2012, and, on September 28, again met with various people from his employer including: the CEO; the company’s production manager; the president of human resources; and the employer’s president. At that meeting the plaintiff detailed his struggle with alcoholism and expressed a commitment to his job, his recovery, and sobriety. Further, he stated his wish to return to his old position as plant manager. Adams was again told that the employer was engaging in a “fact-finding mission,” and that it was, “not prepared to make a decision” after his employment. On October 10, 2012, just 12 days later, the plaintiff again met with the president, production manager, the CEO, and the president of human resources. At that time he was told that his employer was terminating him as of that day.
From there, it only gets worse with respect to the fact pattern for the employer. It turns out that the plaintiff’s daughter suffers from an autoimmune disease requiring transfusion treatments every 6 to 8 weeks. The health insurance for his daughter was provided through plaintiff’s insurance plan with his employer. In November 2011, the president of human resources held a company meeting where she stated that health insurance premiums were to be increased to 22.51%. She also stated that two of Persona’s employees were causing the premium hike. More specifically, the complaint alleged that the president of human resources implicitly named the plaintiff as one of the two employees because she stated, “that one reason the insurance premium rates were going to be higher was because one employee’s daughter needed treatments every 6 to 8 weeks and the treatments were expensive.” On August 14, 2012, a day after the plaintiff entered treatment, the plaintiff’s wife spoke to the chairman of the employer and to the chairman of the board for the employer regarding the president of human resources November 2011 comments about her daughter’s treatments. The chairman of the employer stated that they run a report every so often to see which employees have the highest payout of insurance benefits and that the report indicated that the plaintiff was an employee with one of the highest amounts. In February 2013, the plaintiff filed a claim with the EEOC and after receiving a notice of right to sue filed suit. The complaint contained several counts, of which only two of them the employer sought to dismiss (retaliation and associational discrimination).
Court’s Reasoning Retaliation
In denying the employer’s motion to dismiss the retaliation claims, the court reasoned as followed:
1. In a footnote, the court noted that neither party contested whether the plaintiff’s alcoholism qualified as a disability under the ADA, and therefore, the court proceeded under the assumption that the plaintiff was a person with a disability under the ADA. The court also noted that the ADA prohibits retaliation against a good faith request for accommodation even if the alleged disability turns out to be uncovered by the ADA.
2. To make out a prima facie case for retaliation in violation of the ADA, plaintiff has to show: 1) he was engaged in a protected activity; 2) he suffered an adverse employment action; and 3) there was a causal connection between the first two elements.
3. A request from the employee suffering from alcoholism to be granted a leave of absence to attend to inpatient recovery is the kind of request protected from retaliation. The court in their discussion cited to another case that noted that treatment would seem to be essential to any accommodation for alcoholism.
4. The court also noted that other decisions have held that a plaintiff is not required to speak any magic words when making a request for reasonable accommodation. In fact, the employee does not need to mention the ADA or even the term accommodation, and nothing in the ADA prescribes how the accommodation is requested. Therefore, a request for leave to attend rehabilitation for alcohol dependency qualifies for ADA protection as a request for accommodation.
5. One way an employer becomes aware of the need for an accommodation is being informed of an employee’s disability by the employee himself. Here, the plaintiff admitted to alcohol dependency and such admission may be construed as his request for accommodation since the plaintiff was not required to explicitly request accommodation in order for the employer’s duty to accommodate to be triggered. That is, the admission by the plaintiff himself was also the request for reasonable accommodation.
6. No specific language needs to be uttered by an employee before the employer has a duty of reasonable accommodation and therefore, the request for an accommodation itself requires no precise language. The confirmation of his alcohol dependency was the act necessary to put his employer on notice and trigger its duty to accommodate. While it is true that no explicit request for accommodation was made by the plaintiff, a reasonable juror could conclude that the employer retaliated against the admission of dependency itself as it was that admission that triggered the employer’s duty to accommodate.
7. In another footnote, the court noted that retaliation might also be of the anticipatory variety. That is, action taken against an individual in anticipation of that person engaging in protected opposition to discrimination is no less retaliatory than action taken after the fact. That is, an employer is equally prohibited from anticipating an employee’s request for an accommodation by preemptively suggesting its own so as to cancel out the employee’s protected activity, and then terminating his employment.
8. In short, the retaliation claim survived because: 1) plaintiff was confronted about his alcohol consumption; 2) he admitted to struggling with alcohol dependency; 3) the employer granted him leave to get treatment and he did attend treatment; 4) he was subsequently terminated from employment; 5) he was granted 10 weeks of leave to pursue treatment; 6) pay for those 10 weeks with to be drawn from his accumulated vacation pay; and 7) instead of allowing the full 10 weeks to elapse, his employer reevaluated his employment 30 days after leave was granted and terminated the employment short of the full 10 weeks.
Court’s Reasoning Associational Discrimination
1. Properly stating a claim of associational discrimination means showing: 1) a person was qualified for the position; 2) person was subject to adverse employment action; 3) the person was known to be associated with a disabled individual; and 4) the discharge occurred under circumstances raising a reasonable inference that the association with the disabled individual was a determining factor in the employer’s decision to terminate employment. There also must be a causal connection between knowledge of the association a person has with a person with a disability and the adverse employment action.
2. All four of the factors are satisfied because: 1) the plaintiff was qualified for the position. In fact, from starting at his employer, he was eventually promoted to plant manager; 2) the plaintiff was terminated and termination is an adverse action; 3) the employer was aware that the plaintiff’s daughter was a person with a disability and required treatment. In fact, the employer admitted as such through its November 2011 meeting where the president of human resources mentioned that the plaintiff’s daughter was causing insurance premiums to rise due to her necessary medical treatments. Further, an official of the employer told the plaintiff’s wife that her husband was one of two employees with the highest insurance payouts.
3. Causation is satisfied because of numerous circumstantial pieces of evidence including: 1) the employer knew that plaintiff’s daughter was a person with a disability and required treatment; 2) the statements that the plaintiff was one of two employees causing insurance premiums to rise; and 3) the chairman’s statement to the plaintiff’s wife regarding the running of the insurance reports. Of course, there are the facts mentioned above as well.
1. I find it interesting that the employer didn’t argue that the plaintiff was not protected under the ADA because they were “currently engaged with alcohol,” per this blog entry of mine.
2. Employers, governmental entities, and businesses should stop looking for magic words when it comes to request for reasonable accommodations. Employer should consider having persons with disabilities in their human resources department whose responsibilities include reviewing reasonable accommodation requests or requests that might be considered reasonable accommodations. Request for reasonable accommodations may very well be viewed differently depending upon whether the individual viewing the request is a person with a disability or not. Even so, if it is uncertain whether a request is a request for reasonable accommodation, preventive law would demand that the benefit of the doubt be in favor of finding such a request is being made. Once the decision is made that a request for reasonable accommodations has occurred, don’t forget to engage in the interactive process.
3. Employers need to be careful about disclosing to others any information that may tip off people as to the the specific condition of a person with a disability. Keep in mind, that the ADA requires that the employer keep disability related information confidential (see this blog entry of mine).
4. If an employer believes that by offering the accommodation without being specifically asked by an employee gives them the ability to claim that the reasonable accommodation request was never made and therefore there was no retaliation, such a practice may well be frowned upon by the courts as it was by this court.
5. For a person to claim retaliation, it is not necessary that the person is later found to have a disability under the ADA.
6. Very interesting about what the court says is the prima facie case for showing associational discrimination. In particular, element 4 stating that circumstances might be such so as to raise a reasonable inference that the association with the disabled individual was a determining factor in the employer’s decision to terminate employment. So, what does the ADA itself say about causation with respect to associational discrimination. If one looks at 42 U.S.C. § 12112(b)(4), the term used is, “because of the association.” Now, that brings us back to what “because,” might mean. For that, you might want to check out this blog entry and this blog entry. The term used by this court is “determining factor.” The plain meaning of that term is not sole cause, but rather more akin to “substantial factor,” as discussed in this blog entry. Nevertheless, it remains an open question as to what “because,” means in the context of associational discrimination. I would look for a lot of litigation to be coming on that point. Keep in mind, you do not see a lot of associational discrimination cases in the first place. Even so, when you do see it, I would certainly expect litigation over whether a mixed motive jury instruction has a place in associational discrimination case.
7. I find it curious that there is no mention of any of the corporate actors consulting legal counsel. One wonders if ADA knowledgeable legal counsel would have been consulted, things would have reached this point especially given these facts. Human resources, and for that matter, top management always need to have a direct line to legal counsel.