adverse employment action

Dog in Apartments, Hostile Work Environment and the ADA, and Scared of Needles

March 13, 2019 by William Goren Leave a Comment

Today’s blog entry is a triple play. In the first, we will go over an advice column and discuss what they got wrong and what they got right. In the second and third situation, we will briefly discuss two cases that came down from the Second Circuit recently: dealing with hostile environment under the ADA claims; and dealing with essential functions of the job. As usual, the blog entry is divided into categories and they are: the advice column; the hostile work environment case/takeaways; and the pharmacist who is afraid of needles case/takeaways. The blog entry is pretty short, and so, you probably will want to read the whole thing, but you certainly don’t have to.

In an Ask Sam column, which can be found here, a reader asked the question whether as the owner of a rental property, just what were the rules for service dogs on the premises since obviously not all requests were coming in for service dogs.

The column gets it right that landlords may not discriminate against a tenant with disability regarding the leasing of a property because the person with a disability has a service animal. I am presuming the column is talking about a residential unit and not a place of business.
The column also gets it right that North Carolina has a system for registering service animals.
The column gets it right that a landlord cannot assess a pet fee for a service animal, and that the tenant is responsible for any damage to the leased premises caused by the service animal.
The column more or less gets it right when it talks about what is the definition of a service animal. For that, see this blog entry. It does get it right with respect to examples of what might be a service animal.
The column gets it wrong in saying that registration with North Carolina is necessary in order to have permission for a service animal to be in the unit. Federal law, in this case the Fair Housing Act, trumps state law and federal law contains no such requirement.
The column gets it wrong in a big way when it says that comfort animals, which presumably includes emotional support animals, do not qualify as a service animal under either the ADA or the North Carolina statute, AND therefore, in those situations the landlord can enforce a no pet policy. The first part of this sentence is correct but since it is dependent upon the second part of the sentence, the whole thing fails. As we know from our blog entries, the Fair Housing Act, which is the law that applies to residential unit being leased, specifically allows for emotional support animals as an assistance animal. Failure to get this right can cost you big time, as we discussed here.

Hostile Work Environment Case and Takeaways

Two labor and employment bloggers do a real nice job discussing the hostile work environment case. Those blogs are Bergstein and Ullrich’s Wait a Second blog (Wait a Second also blogged on the scared of needles case as well), in my blog roll and which can be found here, and Fisher and Broyles Employment Law blog, here. As everyone knows, if other people blog on the case, I may blog on it as well if I can add a perspective to it, and so, here goes.

In Fox v. Costco Wholesale Corporation, the Second Circuit was faced with the question of deciding whether a hostile work environment claim flies (it does and questions of fact existed to defeat summary judgment), with respect to the ADA. The Second Circuit reasoned as follows:

The 4^th, 5^th, 8^th, and 10^th Circuits have all held that the ADA supports a hostile work environment claim.
Under the ADA, a covered employer shall not discriminate against a qualified individual on the basis of disability in regard to terms, conditions, and privileges of employment. That language is borrowed from title VII, which has very similar language. Therefore, when Congress used that language, it was using a legal term of art that prohibited a broad range of employment practices, including workplace harassment.
When the ADA was enacted, the United States Supreme Court had already twice concluded that title VII provided for hostile work environment claims.
Title VII and the ADA share a purpose to prevent discrimination against a defined class of people. Since the two statutes share a common purpose and the ADA echoes and expressly refers to title VII, it necessarily follows that people with disabilities should be able to assert hostile work environment claims in the same way people without disabilities can assert title VII claims.
A person alleging a hostile work environment claim under the ADA must demonstrate either that a single incident was extraordinarily severe, or that a series of incidents were sufficiently continuous and concerted to have altered the conditions of the working environment. That analysis is a totality of the circumstances test.
Plenty of evidence existed to create a question of fact as to whether the plaintiff endured a hostile work environment.

Takeaways;

The plaintiff in this case had Tourette’s syndrome as well as obsessive-compulsive disorder since birth. The plaintiff did certain things in order to compensate for that disability, and fellow employees simply didn’t get it. Further, they mocked him for it.
You don’t need an adverse employment action for a hostile work environment claim. Rather, you just have to show an alteration in the conditions of the working environment. They are not at all the same thing. Indeed, here the court finds that a hostile environment could well have existed even though no adverse action occurred.
Perhaps, a Circuit Court split will develop on the issue of whether the ADA allows for a hostile work environment claim. However, I think it is just as likely that no such split will ever occur. Also, if it ever gets to the United States Supreme Court, I can’t imagine the Supreme Court – even with it being an employment case and even with this makeup of the court- saying no to such claims, but who knows.
When it comes to hostile work environment and persons with disabilities, it will be very important for a plaintiff to be able to show the judge what was in the mind of the plaintiff as he or she had to endure all these things. It isn’t necessarily going to be obvious. Plaintiff may want to consider using expert testimony on that.
When problems like this surface, don’t wait months to deal with it. Get on it immediately.

III

The Pharmacist Who Simply Can’t Give Shots

In Noel v. Walmart Stores, East LP, the Second Circuit was faced with the question of whether a motion to dismiss should be affirmed where a pharmacist who had a fear of needles would not give out shots to consumers wanting flu shot and other shots. The Second Circuit held that dismissing the case was not right and gave the following reasons:

When Walmart announced that all pharmacy employees had to administer immunizations, plaintiff specifically sought an accommodation. Walmart in response sent the plaintiff a letter informing him that his request had been granted, that he was capable of performing the essential functions of the position, and that they were reasonably accommodating his disability. While the letter did note that the accommodation was subject to further review, including any changes in the job description, the job description was never altered at any time following receipt of the letter.
When considering whether a job function is essential, the court noted the seven factor test laid out by the EEOC. However, the court notes that in these situations it is up to the court to conduct a fact specific inquiry into both the employer’s description of the job and to determine how the job is actually performed in practice.
At the time of plaintiff’s constructive discharge, the job description had yet to change.
The only way to arrive at the conclusion reached by the District Court dismissing the case was to discredit the plaintiff’s well pleaded allegations and discount Walmart’s own letter. That is not something that can be done on a motion to dismiss.

Takeaways:

Employers are under no obligation to waive essential functions of the job. However, employers do have to consider restructuring of the job, which we discussed here.
Keep job descriptions current. That is, if you do change the essential functions of the job, make sure the job description changes with it.
Regardless of what is in the job description, the critical question is what is occurring on the ground. So, figure out some way to periodically review job descriptions and compare them to what is actually happening.

Does a Failure to Accommodate Claim Require an Adverse Action?

December 13, 2018 by William Goren 2 Comments

Today’s blog entry will be the last substantive blog entry of the year. Next week, is the annual Understanding the ADA greatest hits for 2018. This week’s case deals with the question of what happens when you have both a failure to accommodate and a lack of adverse action. Is the plaintiff out of luck? The case of the day is Exby-Stolley v. Board of County Commissioners, Weld County, Colorado. It came down from the 10^th Circuit on October 11, 2018. As usual, the blog entry is divided into categories and they are: facts; majority opinion; dissenting opinion; and takeaways. The reader is free to focus on any or all of the sections.

Facts

The facts are pretty straightforward and are covered in great detail in the opinion. Basically, you have a person that broke her right arm on the job leading to two surgeries. That led to an interactive process that did not satisfy the plaintiff and perhaps miscommunication as well. Instead of pursuing the interactive process to the end, plaintiff resigned. Nevertheless, plaintiff brought suit alleging violations of the ADA. At trial, the jury found that the plaintiff had a disability, but also found that the plaintiff had not proven by a preponderance of the evidence that she was discharged from employment. That is, the jury bought the county’s argument that the placement of plaintiff on temporary half-time office duty was not an adverse employment action because she fully agreed with the change, and there was no reduction in pay since the reduction was offset by workers compensation payment. Also, the county took no later action against her because she voluntarily resigned.

Majority Reasoning

An adverse employment action is an element of a failure to accommodate claim.
42 U.S.C. §12112(a) says a covered entity cannot discriminate against a qualified individual on the basis of disability in regard to job application procedures, the hiring, advancement, or discharge of employees, employee compensation, job training, and other terms, condition, and probative of employment. So, any discrimination has to be in regards to certain features of employment.
While the language adverse employment action does not appear in the ADA, the terminology is well established in judicial opinions when it comes to the Civil Rights Act of 1964, which has a very similar provision with respect to its antidiscrimination clause.
An adverse employment action is one that materially affects the compensation, terms, condition, or privileges of employment.
In a footnote, the court said that “terms and conditions,” appearing in the ADA’s statutory provisions is very significant because it was the lack of that language that led the United States Supreme Court to say a retaliation claim could be based upon any action, whether or not significant to the employee’s job, that a reasonable employee would have found to be materially adverse.
The failure to accommodate statutory provision doesn’t change the terms and conditions requirement. Rather, it just sets forth that an employee does not have to show she was treated worse than a person without a disability when he or she brings a failure to accommodate claim. That is, even after proof of the failure to accommodate, the requirement that discrimination be in regard to job application procedures or other terms, condition, or privileges of employment remains.
For those who don’t believe an adverse employment action is required for a failure to accommodate claim, they may be just getting confused by the McDonnell Douglas burden shifting framework, which has to be modified in order to apply to failure to accommodate claims.
Since McDonnell Douglas can only apply to discriminatory failure to hire, courts have modified the test to other circumstances by saying that the employer took an adverse employment action.
While proving a failure to accommodate claim does not involve showing a person with a disability is treated worse than a person without a disability, that hardly means none of the requirements set forth in McDonnell Douglas apply to failure to accommodate claims. That is, McDonnell Douglas enables the plaintiff to prove her claim in its entirety, not just that she was treated worse than people not in her protected class.
The reason to require that the discriminatory act involves an adverse employment action is because not every discriminatory act by an employer entitles an employee to a remedy under the employment discrimination statutes. The discriminatory act must be in regard to, or with respect to, the terms or conditions of employment. In fact, there could be a failure to accommodate that does not result in termination and is not otherwise connected to an adverse employment action. Mere inconvenience or an alteration of job responsibilities is not an adverse employment action.
Once it is recognized that requiring an adverse employment action simply means requiring the discrimination be in regard to job application procedures, the hiring, advancement, or discharge of employees, employee compensation, job training, and other terms, conditions, and privileges of employment, it necessarily follows that the requirement applies to every discrimination claim under the ADA, including failure to accommodate claims. Cases cited by the dissent to the contrary are dicta.
Several Circuits have explicitly required an adverse employment action in failure to accommodate cases (1^st, 2d Cir., 7^th Cir., 8^th Cir., and 9^th Cir.).
In a footnote, the court said that it is unlikely an employee would pursue a failure to accommodate claim when there is no adverse employment action.

III

Dissenting Opinion by Judge Holmes

It was reversible error for the judge to instruct the jury that an adverse employment action element is required for failure to accommodate claims under the ADA.
The cases the majority said are dicta are not dicta at all.
The 10^th Circuit has previously distinguished between ADA discrimination claims based upon a disparate treatment theory and those based upon a failure to accommodate theory making clear the content and structure of its analysis that it is only the disparate treatment theory that includes an adverse employment action element. The court’s disregard of an adverse employment action in that case was intentional because an adverse employment action was irrelevant in applying the standards defining whether an employer had met its reasonable accommodation obligations.
The majority’s confusion stems from its failure to clearly differentiate between disparate treatment and failure to accommodate claims with the former requiring an adverse action showing, but not the latter.
In a failure to accommodate case, the purpose of the plaintiff’s prima facie case is not to raise a rebuttable presumption of discriminatory intent, but rather to determine the factual question of whether the employer complied with the statutory obligations to provide reasonable accommodation.
Any failure to provide reasonable accommodation for a disability is necessarily because of a disability. That is, the accommodations are only deemed reasonable if they are needed because of the disability and no proof of particular discriminatory intent is necessary.
In a footnote, the dissenting judge said that the EEOC in its regulations and interpretive guidance on the ADA also suggests that an adverse employment action is not an element of failure to accommodate claim. In particular, it says that once the plaintiff has shown the accommodation he or she needs is reasonable, the burden shifts to the defendant to provide case specific evidence proving the reasonable accommodation would cause an undue hardship. Nowhere in that language is there any adverse action requirement.
Congress has already determined that a failure to offer reasonable accommodation to a qualified employee with a disability is unlawful discrimination.
In a footnote, the dissent said that it doesn’t make a lot of sense that federal judges would cavalierly tolerate the serious risks going with omitting an essential element of a claim from their decisions as that would mislead the public and the lower courts regarding the state of the relevant ADA law. Instead, the dissent believed that the omission of adverse employment action from the elements necessary for proving a failure to accommodate claim, was intentional. It defies logic to suggest otherwise.
It doesn’t follow that the language in 42 U.S.C. §12112(a) pertaining to other terms, conditions, and privileges of employment is necessarily a shorthand for an adverse action requirement and case law is not to the contrary.

Takeaways

Reading this decision is very strange. The majority and the dissent reach opposite conclusions interpreting the same exact case law and the same exact statutory provisions. In my experience, you usually don’t see such a stark differentiation that way.
I certainly look for a split to develop among the Circuits considering the ambiguity of case law and the statutory provisions. It would be very unclear as to what would happen at the United States Supreme Court with respect to the question of whether a failure to accommodate claim involves an adverse action. It is true that persons with disabilities have not fared well at the Supreme Court in employment matters, but a failure to accommodate may or may not resonate differently.
It is not as unlikely as the majority seems to suggest that a failure to accommodate claim does not involve an adverse action. It happens more often than you would realize, especially if the employer has far thinking management counsel, and the employer is well trained on the rights of people with disabilities.
I also don’t see how the language of “in regards to…,” necessarily requires an adverse action, particularly since adverse action is not the same thing as any action.
If this decision prevails, plaintiff lawyers will have to get creative in their advocacy to show that a failure to accommodate a person with a disability has very serious consequences to the person with the disability and is certainly adverse. This means a plaintiff lawyer will have to educate the judge as to how the person with the disability perceives what happens in a failure to accommodate case and how the consequences of failing to accommodate are very real indeed.
It will be also interesting to see how other courts deal with the issue of many Court leaving off an adverse employment action from their listing of what is required in the prima facie case approving a failure to accommodate claim. The majority passes that off as dicta, while the dissent views those omissions as critical.
For plaintiffs, education about the mindset of a person with a disability is going to be absolutely critical. If you are on the defense side, this case gives you lots of leeway to make sure that a plaintiff with a disability continues in the same way as they are in their current employment in some manner or another until the interactive process is fully completed.
This case could have been handled completely differently by the court. That is, instead of focusing on adverse action, the court could have found that the plaintiff was responsible for the breakdown in the interactive process by resigning and therefore, the defendant prevails.
For a case involving a failure to accommodate where adverse action is never mentioned and certainly seem to not be part of the equation, we have already talked about one, Silva v. Baptist Health South Florida Inc., which we discussed in this blog entry.

What Not to do With Respect to Pre-employment Disability Related Inquiries and Retaliation

October 15, 2018 by William Goren Leave a Comment

Here in Atlanta, we have finally moved into fall weather. That means temperatures in the afternoons in the upper 60s and low 70s and temperatures in the evenings and mornings in the 50s. The 20 to 30° range of temperature that Atlanta gets in the winter and in the fall took some getting used to.

Today’s case is Ward v. United States Xpress. It deals with preemployment medical inquiries and retaliation. As usual, the blog entry is divided into categories and they are: facts; court’s reasoning; and takeaways. The reader is free to focus on any or all of the categories.

Facts

Plaintiff was diagnosed with thyroid cancer around 2012 and 2013. She was recruited by the defendant for employment as an over the road truck driver, and she attended the training orientation at Tunnel Hill, Georgia, during which she filled out a medical history form in which she disclosed she previously had thyroid cancer. A manager allegedly pulled plaintiff aside several times during the training to inquire about her health and ability to work in light of her prior cancer diagnosis. Each time, plaintiff insisted that she was in good health, willing and able to work, and that she was healthy and had been in remission since 2013. After the manager told her she could become sick while driving and become a liability, plaintiff researched the law and returned to the training to inform the manager that it was discriminatory for the company to deny her employment because of her history of cancer. Later that same day, the manager pulled the plaintiff from training to meet with him and the company’s human resources representative, during which they informed her of her removal from the training purportedly due to her driving record. However, plaintiff contended that defendant approved her driving record prior to the training and that her record only contained minor incidents similar to other similarly experienced drivers. Defendant filed a motion to dismiss.

Court’s Reasoning

In denying defendant’s motion to dismiss, the Northern District of Alabama reasoned as follows:

42 U.S.C. § 12203(a) prohibits retaliation against an individual because the individual opposed any act or practice made unlawful by the ADA.
To make a prima facie case of retaliation, a plaintiff has to show that she: 1) engaged in statutorily protected conduct; 2) suffered an adverse employment action; and 3) there was a causal connection between the protected conduct and the adverse employment action.
When it comes to retaliation, it isn’t necessary for a plaintiff to prove that the underlying discriminatory conduct she opposed was actually unlawful, but rather the plaintiff must show a good faith reasonable subjective belief that the employer was engaged in an unlawful employment practice so long as that belief is objectively reasonable in light of the facts and record presented.
Plaintiff sufficiently pled engagement in a protected activity and a causal connection to the adverse employment action. In particular: 1) plaintiff alleged that after being pulled out of training, she performed an online search related to employment discrimination and shared the results with the manager by telling him it was discriminatory for her to be denied employment because of her previous history of cancer.
Plaintiff’s allegations rise above mere speculation because existing substantive law establishes the reasonableness of her belief the defendant engaged in an unlawful employment practice.
With respect to the causal connection, plaintiff has to demonstrate that the decision-makers were aware of the protected conduct and that the protected activity and the adverse actions were not wholly unrelated. One of the ways plaintiffs do that is showing a close temporal proximity between the protected activity and the adverse action.
Plaintiff sufficiently alleged facts suggesting a temporal proximity between the protected activity and the adverse action. In particular, after plaintiff informed the manager about her research on discrimination and disability, that same day the manager pulled her aside for a meeting with the human resource representative who informed her that she was no longer a candidate for the truck driving position.
While it is possible that plaintiff’s driving record prevented her from being further considered, at the stage of a motion to dismiss, plaintiff’s pleading must be taken as true. Here, plaintiff contended that defendant had approved her driving record before training began, and her record became an issue only after she raised her discrimination concerns.
The ADA provides that an employer cannot require a medical examination and cannot make inquiries of an employee as to whether such employee is an individual with a disability or as to the nature or severity of the disability, unless the examination or inquiry is job-related and consistent with business necessity. An employer does have the right to make inquiries into the ability of an employee to perform essential functions of the job. The key here is that the manager purportedly pulled the plaintiff aside several times during the training to follow up on her medical questionnaire and inquire about her health. During those conversations, the plaintiff alleged that the manager called her a liability even though she insisted she had no significant chance of relapse and was in good health, willing, and able to do the job.
In the 11^th Circuit, a private right of action exists under the ADA for a prohibited medical inquiry in the pre-offer phase of the job application process, irrespective of disability status.
A company does not have an unfettered right to make disability inquiries and conduct medical examinations. For example, the withdrawal of a conditional offer after a job applicant revealed a prior back surgery is not acceptable under the ADA because there was no individualized assessment as to applicant’ ability to perform essential functions.
Plaintiff alleged: the manager removed her from training multiple times; repeatedly ignored her representation that her cancer was in remission; and that she posed no threat. Further, the manager in the company purportedly ended her training solely based on their own assessment about her abilities without consulting her medical providers to show the job-related and business necessity of the inquiry. Accordingly, plaintiff sufficiently alleged that the defendant made inquiries likely to elicit information about a disability in violation of the ADA’s prohibition against pre-employment medical inquiries.

III

Takeaways

We have discussed the pre-employment medical inquiries scheme and what it means to be job-related and consistent with business necessity here.
I have read many articles in numerous places saying that there is a tremendous shortage of over the road truck drivers, and especially women drivers. It would seem to me that it would be in the best interest of a truck driving company to adhere closely to the ADA medical inquiries scheme in order to maximize the possibility of bringing on over the road truck drivers in light of the incredible shortage.
It is mind-boggling to me why the case didn’t settle prior to the motion to dismiss. I would expect it to settle now. The court’s opinion pretty clearly lets readers know that the defendant is probably in deep trouble here, which wouldn’t surprise readers of this blog.
When it comes to retaliation, the key is whether a plaintiff has a good faith reasonable subjective belief that his or her employer is engaged in an unlawful employment practice. Whether that is actually the case as a matter of law doesn’t matter.
You don’t have to have a disability to allege a violation of the ADA prohibited medical inquiries scheme.
In the 11^th Circuit, a private right of action exists with respect to violations of the prohibited medical inquiries scheme.
Always a mistake to terminate a person with a disability without engaging in an individualized analysis of the situation.
Always a mistake to not engage in the interactive process with a person with a disability.
For the disability related inquiry violation to occur under the ADA, the plaintiff has to show that the inquiry is likely to elicit information about a disability. My position has long been that when it comes to the analysis of whether an inquiry is likely to elicit information about a disability, an employer is well served to have persons with disabilities involved in that determination.
Despite what it looks like, this case is not a fear of future disability case, which we discussed here, at all. Rather, it is a record of a disability case.
In this blog entry, I discussed the situation where the human resources department did the right thing. I can’t say that here. The principles involved here are well-known to readers of this blog. Human resources should have stepped up to stop this process rather than go along with it. Also, if human resources did not feel comfortable stepping up, human resources should have at least suggested bringing in an ADA knowledgeable attorney. If either would have occurred, chances are very high, assuming the facts are indeed what the plaintiff has alleged, that this situation would have been stopped in its tracks, and the company would have had a competent sorely needed over the road truck driver. The company would have also saved considerable litigation costs.
The Internet can be a boon for a person establishing a good faith belief of employer conduct violating the law. For example, it is certainly possible with respect to these facts that the plaintiff could have found her answers allowing her to reach the conclusion she did in Robin Shea’s, Eric Meyer’s, Jon Hyman’s, or even this blog (Robin’s-labor and employment law insider blog- , Eric’s -the employer handbook blog-, and Jon’s- Ohio employer’s law blog- are all in my blog roll. Further, there are other labor and employment law blogs where she could have found her answers in as well).
I just don’t understand how these mistakes keep happening. Who is doing the training and how often? Where is ADA knowledgeable legal counsel? Well… y’all know where to find me;-)

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