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Understanding the ADA

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McDonnell Douglas

Lewis v. Union City Yet Again

August 26, 2019 by William Goren 1 Comment

Today’s blog entry is a case that I have blogged on before twice, here and here. On August 15, 2019, the 11th Circuit came down with its second decision on this case, here. Since I have blogged on it before twice, there isn’t any need to cover the facts except through the court’s reasoning. The prior appeal to the 11th Circuit just discussed the civil rights aspect of the case and not the ADA. This appeal to the 11th Circuit discussed the ADA and revisited the civil rights claims. It also looked at municipal liability under §1983, which the court threw out. I don’t see a need to discuss the municipal liability section under §1983. Finally, there was a concurring and dissenting opinion. The concurrence agrees with dismissing the municipal liability claim and would have thrown out the ADA and civil rights claims as well. As usual, the blog entry it divided into categories and they are: court’s reasoning actual disability and regarded as; court’s reasoning qualified individual; court’s reasoning direct threat; court’s reasoning racial and gender discrimination claims; and takeaways. The reader is free to focus on any or all of the categories.

 

I

Court’s Reasoning Actual Disability and Regarded As

 

  1. While plaintiff certainly had a physical or mental impairment with respect to her heart condition, she simply didn’t bring forth enough evidence to permit a conclusion that the physical impairment substantially limited a major life activity. For example, she testified that she had periodic shortness of breath, and her doctor testified that it could limit her ability to sleep. However, no evidence existed as to the severity, frequency, and duration of the episodes with respect to shortness of breath. Further, there wasn’t any evidence discussing the extent of plaintiff’s ability to sleep that could lead a reasonable jury to conclude she was substantially limited in a major life activity.
  2. The ADA allows for a cause of action where the an employer regards an employee as having a disability.
  3. Plenty of evidence existed to raise a genuine issue of fact as to whether plaintiff’s employer regarded her as having a disability. In particular: 1) Assistant Chief Brown in his June 17 letter referred to her chronic conditions and instructed her to complete FMLA paperwork thereby suggesting that he believed plaintiff had a medical condition warranting medical leave; 2) on July 1, Assistant Chief Brown prohibited plaintiff from returning to work until everything was cleared up with her doctor. He also said that her Dr.’s letter essentially made it impossible for her to work or be at work and concluded that she could not return until her doctor released her for duty. That email again referred to the possibility of plaintiff taking leave under FMLA; 3) the department’s own stated reason for putting plaintiff on leave, i.e. a fear for her safety in view of her heart condition, demonstrate the department’s belief that plaintiff’s medical condition set her apart from other police officers.
  4. Looking to an EEOC guidance, an employer engages in prohibited conduct regarding a person as having a disability where it takes adverse action because it fears the consequences of an employee’s medical condition.

II

Court’s Reasoning Qualified Individual

 

  1. A qualified individual under title I of the ADA is a person who with or without reasonable accommodation, can perform the essential functions of the employment position that he or she holds or desires.
  2. Essential functions of the job are evaluated on a case-by-case basis after examining a number of factors. Courts do consider the employer’s judgment of whether a particular function is essential and may even cut the employer more slack when the employer is a Police Department. Courts also consider the EEOC seven factors as well.
  3. The employer’s judgment as to what are the essential functions of the job is not by itself conclusive.
  4. The city’s written job description for the position of detective nowhere mentions it is necessary for a detective either to carry or to be exposed to OC spray or a Taser shock. In fact, there is no such mention of any of that in an entire paragraph listing various physical demands of the job.
  5. The work environment section states that a detective has to be willing to carry a firearm on and off the job and be mentally and physically capable of using deadly force if justified. However, it contains no reference to OC spray or Taser.
  6. Plaintiff offered evidence that detectives previously were permitted the choice of what nonlethal weapon or weapons to carry. Further, neither party disputed that Taser International does not require trainee to receive a shock in order to become certified in Taser use.
  7. Plaintiff clearly presented enough evidence to show that a jury would be justified in concluding that receiving a Taser shock or direct exposure to OC spray was not an essential function of her job. As a result, that means plaintiff was a qualified individual.
  8. In a footnote, the court said that ample evidence existed that plaintiff could withstand indirect exposure to OC spray that would allow her to work inside the Police Department building if that option have been made available to her.

 

III

Court’s Reasoning Direct Threat

 

  1. Plaintiff produced sufficient evidence that she is not a direct threat.
  2. Direct threat means a significant risk of substantial harm to the health or safety of the individual or others that cannot be eliminated or reduced by reasonable accommodations. See 29 C.F.R. §1630.2(r).
  3. Direct threat, as we have discussed previously here, has to be based on a reasonable medical judgment relying on the most current medical knowledge and/or the best available objective evidence. It also must be based upon an expressly individualized assessment of the individual’s present ability to safely perform the essential functions of the job after considering, among other things, the imminence of the risk and severity of the harm. For this, the court specifically cited to Chevron USA Inc. v. Echazabal, which we discussed here and in numerous other blog entries as well.
  4. The definition of direct threat requires an analysis of the individual’s ability to perform safely the essential functions of the job.

 

 

 

IV

Court’s Reasoning Racial and Gender Discrimination Claims

 

  1. Previously, the 11th Circuit sitting en banc concluded that plaintiff failed to establish a prima facie case of intentional discrimination under McDonnell Douglas because her comparators were not similarly situated in all material respects. Thus, that particular aspect of the ruling is binding on this panel.
  2. Even without similarly situated comparators, plaintiff can still get by summary judgment if he or she presents circumstantial evidence creating a triable issue concerning the employer’s discriminatory intent. After all, not every employee can produce a similarly situated comparator. Further, a proper comparator may not exist in every workplace. Therefore, a plaintiff always gets by summary judgment if he or she can present a convincing mosaic of circumstantial evidence that allows a jury to infer intentional discrimination.
  3. A convincing mosaic can be demonstrated in a variety of ways, including: 1) suspicious timing, ambiguous statements and other bits and pieces from which an inference of discriminatory intent might be drawn; 2) systematically better treatment of similarly situated employees; and 3) the employer’s justification is pretextual.
  4. Plaintiff presented a mosaic of circumstantial evidence raising a genuine issue of material fact as set forth in the paragraphs that follow below.
  5. Union City initiated plaintiff’s indefinite administrative leave on June 17 and informed her on July 1 that she would not be permitted to return to work until she was medically cleared. Yet a week later, and despite plaintiff’s request to return to work and the police chief’s explicit denial of that request, Union City terminated her for being absent without leave.
  6. Union City gave plaintiff no warning that if she exercised the option to use her accrued leave instead of being on non-pay status, she would be terminated upon taking that option.
  7. Union City gave her no notice she had to file FMLA paperwork by any specific date nor did the department’s written FMLA policy provide any such deadline.
  8. At no time was plaintiff told she would be terminated if her doctor failed to contact the department on the very first day the doctor returned from vacation.
  9. There is also plenty of evidence that Union City’s stated reason for firing plaintiff were pretextual as discussed in the following paragraphs.
  10. Plaintiff can show pretext in any of the following ways: 1) casting sufficient doubt on the defendant’s proffered discriminatory reason so as to permit a reasonable factfinder to conclude the employer’s reasons were not what actually motivated its conduct; 2) showing that the employer’s articulated reason is false and that the false reason led to the discrimination; or 3) establishing that the employer failed to clearly articulate and follow its formal policies.
  11. One of the reasons offered by Union City was that her medical condition was permanent. However, evidence exists suggesting the department believed either that plaintiff was faking her medical condition or that her condition was not sufficiently serious to prevent her from working as a detective. In fact, the initial letter placing plaintiff on leave stressed that she had been cleared for full duty without restrictions after a heart attack and emphasized that the letter disclosing her chronic condition came as a surprise.
  12. Plaintiff’s doctor testified that the Assistant Chief made clear to plaintiff’s doctor in a telephone conversation that he thought her letter was more a product of plaintiff’s influence than her unbiased medical judgment. In fact, the Assistant Chief at his deposition testified that he doubted plaintiff’s doctor truthfulness more generally.
  13. Two of Union City’s police chief’s letters could reasonably be construed as indicating that plaintiff’s doctor would ultimately clear plaintiff for duty and that the medical condition, in the department’s view would not permanently prevent plaintiff from doing her job as a detective.
  14. Plenty of evidence exists that the argument that plaintiff did not timely submit her paperwork was just a pretext.
  15. Evidence existed permitting the conclusion that two Caucasian officers in a similar situation to plaintiff were treated differently. However, the white officers were treated more favorably than the plaintiff because they were given extended periods of time to attempt to demonstrate their physical ability they needed, but plaintiff was fired without warning.
  16. A reasonable jury could find that Union City did not consistently exercise its authority in placing physically unfit officers on administrative leave and that Union City did not comply with its own policies.
  17. One Caucasian officer was offered a transfer to a position not requiring him to continue taking the fitness test that he failed while plaintiff was fired without notice after 21 days of administrative leave and was offered no such alternative assignment before termination.
  18. Union City had a history of working with others with a heart condition to allow them to receive a milder version of Taser training with respect to officers with heart conditions but that option was never offered to the plaintiff.
  19. A Union City Lieutenant testified that the department treated women differently than men with regards to the cases assigned to them.
  20. Plaintiff by her termination undoubtedly suffered an adverse action i.e. a change in the terms of her employment.

V

Takeaways

 

  1. A regarded as cause of action does not require a substantial limitation on a major life activity. Thanks to the amendments to the ADA, it only requires the employer regard the person as having a physical or mental impairment.
  2. The employer’s judgment as to what the essential functions of the job is not the be-all and end-all of things.
  3. Keep your written job descriptions current.
  4. Antidiscrimination policies for dealing with people with disabilities are always a good idea. Also, make sure those policies are implemented without favoritism and in a consistent manner. Keep in mind, when it come to the ADA, consistently doing an individualized analysis is where you need to go.
  5. I’ve seen many folks get hung up on direct threat because they don’t read Chevron v. Echazabal. Remember, direct threat has to be based on a reasonable medical judgment relying on the most current medical knowledge and or the best available objective evidence. It also needs to be based upon an individualized assessment as well. I have also seen lots of entities make a mistake by not doing the individualized assessment.
  6. This isn’t the first time we have seen convincing mosaic. We saw it here. What is interesting in this case, is that the 11th Circuit says that convincing mosaic is a fallback were no comparators exist. In the Seventh Circuit, as we discussed previously, convincing mosaic is another way to deal with McDonnell-Douglas regardless of whether the proof is indirect or direct.
  7. Insisting on a full return to work is always a bad idea. We discussed that issue here.
  8. Remember, otherwise qualified/qualified is a question of whether the individual can do the essential functions of the job with or without reasonable accommodations.
  9. Convincing mosaic is a fairly new idea. It will be interesting to follow what happens from here on out. Expect the United States Supreme Court to deal with it eventually.
  10. The 11th Circuit nicely lays out what is needed to show it convincing mosaic and what is necessary to show pretext.

Filed Under: General Tagged With: §1983, 29 C.F.R. §1630.2, Actual disability, ADA, chevron U.S.A. Inc. v. Echazabal, convincing mosaic, direct threat, EEOC seven factor test, employer judgment, essential functions, essential functions of the job, fitness for duty, FMLA, genuine issue of fact, genuine issue of material fact, indirect exposure, Job descriptions, Lewis v. city of Union City Georgia, McDonnell Douglas, McDonnell Douglas Corporation v. green, OC spray, Ortiz v. Werner Enterprises Inc., otherwise qualified, powers v. USF Holland Inc., pretext, pretextual, qualified, reasonable accommodations, Regarded as, school board of Nassau County Florida v. Arline, Taser, title I, title VII, will return to work, With or without reasonable accommodations

Direct Evidence is a Smoking Gun

May 6, 2019 by William Goren Leave a Comment

Smoking Gun

Today’s blog entry discusses two cases, both dealing with smoking guns (hence, the cannon above).

One is from the Sixth Circuit, Baum v. Metro Restoration Services, Inc., Decided on April 11, 2019. The other is EEOC v. Crain Automotive Holdings LLC from the Eastern District of Arkansas, also decided on April 11, 2019. As usual, the blog entry is divided into categories, and they are: Crain’s facts; Crain’s reasoning; Crain’s takeaways; Baum’s facts; Baum’s reasoning; and Baum takeaways. Of course, the reader is free to focus on any or all of the categories.

I

Crain Facts Taken Directly From The Opinion

Judith Vaughn began working for Crain Automotive Holdings, LLC in the fall of 2016. Vaughn suffers from anxiety, depression, and panic attacks. Late in the day on Monday, January 30, 2017, Vaughn began experiencing chest pains and went to the emergency room, fearing she was having a heart attack. After two days of treatment Vaughn learned her chest pain had been the result of a panic attack. She ultimately reported back to work on Friday, but she began experiencing a panic attack and left work, after emailing her supervisor. When Vaughn returned to work the following Tuesday, she met with two supervisors, Kim Lynch and Debbie Pumphrey, and was terminated. According to Vaughn, she was told at this meeting that “it was not working out” due to her health problems and that she needed to take care of herself.

II

Crain’s Reasoning

  1. McDonnell-Douglas only applies where a plaintiff does not have direct evidence of discrimination.
  2. Direct evidence is evidence showing a specific link between the discriminatory intent and the adverse employment action sufficient for a reasonable jury to find an illegitimate criterion actually motivated the adverse employment action.
  3. Where direct evidence of discrimination exists, a plaintiff gets to the jury based on that evidence alone.
  4. No dispute that Vaughn has anxiety, depression, and panic attacks. With respect to her panic attacks, those attacks make her feel paralyzed, cause chest pain, and cause difficulty with breathing, thinking, communicating with others, and reasoning. Her anxiety causes her to have difficulty breathing and communicating and an inability to think coherently. Finally, when her depression is active, she is unable to care for herself, communicate with others, or think coherently.
  5. It doesn’t matter that Vaughn can perform some demanding activities and that she does not have panic attacks constantly because an impairment substantially limiting one major life activity does not need to substantially limit other major life activities in order to be considered a substantially limiting impairment. Also, episodic impairments are a disability when they substantially limit a major life activity when active. Finally, Toyota Motor’s definition of substantial limitation was overruled by the amendments to the ADA [my words, but what the court essentially said].
  6. The evidence presented by the EEOC makes clear that Vaughn’s employer was on notice that she had anxiety, depression, and had suffered a panic attack. She also had put the employer on notice that she had had a heart catheterization. Accordingly, a reasonable jury could find that when Vaughn was fired the following Tuesday, the employer certainly knew about her anxiety, depression, and panic attacks. Further, the jury could find that the employer had some knowledge of the extent of Vaughn’s impairments as they had caused her chest pain resulting in a heart catheterization as well as missing several days of work.
  7. Actions or remarks by employers reflecting a discriminatory attitude or comments that demonstrate a discriminatory intent (the legal jargon is animus), in the decisional process, or comments made by individuals closely involved in employment decisions may all constitute direct evidence of discrimination.
  8. At the meeting between Vaughn and her two supervisors to talk about why she had left work early, Vaughn was specifically told that “due to her health, it wasn’t going to work out and she should take time for herself.” If believed by the jury, and it is the jury’s call, the comment is direct evidence of discrimination that would enable a jury to find the employer motivated by Vaughn’s disability when it fired her.
  9. The supervisor’s comment is a far cry from stray remarks in the workplace for several reasons: 1) it was made during the meeting in which Vaughn was fired; 2) it was made by Vaughn’s supervisor; 3) it relates directly to the decision to fire the plaintiff; and 4) no reason exists to suspect that the suggestion that the Vaughn should take care of her health or take time for herself was made with the intent of attempting to preserve and promote her as she was fired in the same conversation.
  10. Magic words are simply not required when it comes to requesting a reasonable accommodation. Instead, all a plaintiff has to do is make clear to the employer that he or she wants assistance for his or her disability. That is, an employee only needs to provide the employer with enough information that, under the circumstances, the employer can be fairly said to know about the disability and the desire for an accommodation. A question of material fact exists here because plaintiff produced an email in which she stated that a letter from her doctor was attached.

III

Crain Takeaways

  1. This whole direct evidence/indirect evidence gets really confusing. Previously, I talked about that confusion and how Seventh Circuit may or may not have have done away with the whole thing.
  2. Whether you are going with direct evidence or indirect evidence, it is clear that mixed motive is involved as both tests use motivating factor.
  3. The amendments to the ADA change what substantial limitation means and it also changed dealing with episodic impairments.
  4. Labor and employment lawyers are quite fond of saying that magic words are not required. The problem is what does that exactly mean? This case does a real nice job of presenting a standard for when a reasonable accommodation request has been made where magic words are not used. In particular, all the employee has to do is make clear to the employer that he or she wants assistance for his or her disability. That, is also vague, but the court goes further when it says, citing to an Eighth Circuit case, “an employee need only provide the employer with enough information that, under the circumstances, the employer can be fairly said to know about the disability and desire for an accommodation.”

IV

Baum Facts Taken from the Opinion

A few months after Plaintiff Jonathan Baum began having heart problems, his employer, Defendant Metro Restoration Services, fired him. Not only that, Metro’s owner told him he was losing his job because of his health issues. So, Baum sued for disability discrimination, and the district court granted summary judgment in Metro’s favor after concluding that Baum couldn’t establish he was disabled.

Metro repairs property damage after catastrophic events such as storms and fires. In 2013, the company hired Baum as a scheduler. As the job title suggests, Baum determined which of Metro’s work crews would go to which job sites and when they would go. In late 2014, Baum began having heart problems. Over the course of several months, he went to the emergency room fearing he had had a heart attack; had a CAT scan; had a heart catheter implanted; had an echocardiogram (which outlines the heart’s movement using high-frequency sound waves); and wore a heart monitor for more than a month. During this time, he occasionally missed work for medical tests and treatments. He also worked remotely sometimes. He kept his boss and owner of Metro, Patrick Cahill, informed of his medical issues. One weekend in the spring of 2015, severe weather hit. Baum worked remotely to coordinate Metro’s crews. The next week, Cahill went to Baum’s home and fired him. During their conversation, Cahill said he was firing Baum “due to [Baum’s] health issues and doctors’ appointments.” Baum then sued Metro in state court for disability discrimination under both the Americans with Disabilities Act and Kentucky law. Metro removed the case to federal court.

V

Baum Court’s Reasoning

  1. Cahill’s statement that he was firing the plaintiff because of his health issues is direct evidence of discrimination.
  2. Since direct evidence of discrimination exists, plaintiff has to show that: 1) he has a disability; and 2) he is otherwise qualified for the job despite the disability either without accommodation, with an alleged essential job requirement eliminated, or with a proposed reasonable accommodation. (For the labor and employment lawyer really familiar with the ADA, I know what you are thinking. This is not a misprint).
  3. Metro never contested plaintiff’s qualifications for the job without accommodations, and therefore, forfeited the argument by failing to raise the argument earlier than at oral argument.
  4. Expert testimony is needed to show whether the plaintiff is substantially limited in the major life activities of cardiovascular and circulatory functions because cardiovascular and circulatory functions require medical knowledge to understand.
  5. Absent medical expert testimony, the plaintiff can’t create a factual issue of whether he has a disability. Accordingly, summary judgment was correctly granted on that score.
  6. With respect to the perceived disability claim, a plaintiff does not need to prove a limitation on a major life activity.
  7. Cahill’s words v. the plaintiff’s word creates a classic credibility dispute that is a task for the jury.
  8. While it is true that Cahill’s knowledge of plaintiff’s medical issues is not sufficient to carry the day, plaintiff has more than that here. In particular, he has Cahill’s stated reason for firing him: his health issues and doctors appointments. That statement creates a factual dispute and makes it material. Accordingly, giving the plaintiff the benefit of the doubt, which a court has to do at the summary judgment stage, a jury could find that Cahill meant exactly what he said. If the jury found such, then it could also find that Cahill perceived the plaintiff to have a physical impairment and fired him because of that perception.

VI

Baum Takeaways

  1. I am completely mystified by the court saying that one of the ways to show a plaintiff is otherwise qualified is to show that he can do the job with an essential job requirement eliminated. That simply isn’t the way the ADA works. The ADA does not require an employer to eliminate essential job functions. An employer may be required to engage in job restructuring, which we discussed here. They also may want to move marginal functions to others. That said, job restructuring and putting marginal functions on others are not the same as eliminating essential job requirements.
  2. If you have an argument, raise it early. We just discussed that problem here.
  3. A person may lose an actual disability case, but may be able to go forward on a regarded as claim.
  4. Sometimes you need expert medical testimony to establish whether a substantial limitation on a major life activity exists even though what is a substantial limitation on a major life activity is a much easier standard to meet since the amendments to the ADA.
  5. Direct evidence must be material to the adverse action.

A comment that applies equally to Baum and to Crain is that smoking guns are rare, but they do happen.

Filed Under: General Tagged With: ADA, ADA compliance, ADA compliance attorney, ADA compliance consultant, ADA consultant, ADA defense attorney, adverse employment action, anxiety, Baum v. Metro restoration services Inc., depression, direct evidence, discriminatory intent, EEOC v. Crain automotive holdings LLC, Episodic, episodic impairments, essential functions of the job, expert testimony, forfeited, indirect evidence, job restructuring, magic words, Major life activity, McDonnell Douglas, McDonnell Douglas Corporation v. green, otherwise qualified, panic attacks, qualified, reasonable accommodation, smoking gun, stray remarks, substantial limitation, substantial limitation in a major life activity, substantially limited, title I, Toyota motor Manufacturing Kentucky v. Williams, waiver

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 10th 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.

I

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.

II

Majority Reasoning

  1. An adverse employment action is an element of a failure to accommodate claim.
  2. 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.
  3. 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.
  4. An adverse employment action is one that materially affects the compensation, terms, condition, or privileges of employment.
  5. 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.
  6. 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.
  7. 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.
  8. 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.
  9. 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.
  10. 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.
  11. 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.
  12. Several Circuits have explicitly required an adverse employment action in failure to accommodate cases (1st, 2d Cir., 7th Cir., 8th Cir., and 9th Cir.).
  13. 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

  1. 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.
  2. The cases the majority said are dicta are not dicta at all.
  3. The 10th 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.
  4. 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.
  5. 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.
  6. 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.
  7. 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.
  8. Congress has already determined that a failure to offer reasonable accommodation to a qualified employee with a disability is unlawful discrimination.
  9. 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.
  10. 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.

IV

Takeaways

  1. 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.
  2. 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.
  3. 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.
  4. 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.
  5. 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.
  6. 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.
  7. 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.
  8. 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.
  9. 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.

 

Filed Under: General Tagged With: 42 U.S.C. §12112, ADA, adverse action, adverse employment action, burden shifting, disparate treatment, Exby-Stolley v. Board of County commissioners Weld County Colorado, failure to accommodate, failure to accommodate claims, failure to engage in interactive process, failure to provide reasonable accommodations, in regards to, interactive process, McDonnell Douglas, prima facie, Silva v. Baptist health South Florida inc, terms and conditions, terms conditions or privileges of employment, title I

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  • The Americans with Disabilities Act and Employment
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  • Are public colleges and public universities immune from suit as a result of sovereign immunity in ADA matters
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In the Media

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  • February 2016 employment Law blog carnival
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  • June 2015 ABA Journal article on attorneys with disabilities and the preconceptions they face
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  • legal issues of buying inaccessible technologies article posted to the ABA green room
  • Legal pad radio show interview first run Wednesday, February 12 at 7:30am.; Re-airs at Saturday, February 15 at 3:30pm and Monday, February 17 at 9am
  • Legal pad radio show interview first run Wednesday, January 29 at 7:30am.; Re-airs at Saturday, February 1 at 3:30pm and Monday, February 3 at 9am
  • Legal pad radio show interview first run Wednesday, October 23rd at 7:30am.; Re-airs at Saturday, October 26th at 3:30pm and Monday, October 28th at 9am
  • Let's Talk About Arbitration blog entry and other entries featured on the Illinois business litigator blog
  • MH issues and the State Bar
  • Oral Argument in Sheehan v. City and County of San Francisco
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Presentations of interest

  • ADA “Accessible” Websites: What Attorneys Need to Know
  • ADA Hot Issues: Essential Function, Attendance, and Reassignment
  • ADA Hot Issues: Pregnancy, Reassignment, and Legal Issues of Buying Inaccessible Technology
  • Don’t Let The ADA Bite Your Law Firm – Complying With the ADA Instead of Becoming a Target
  • Hot issues in title I and in title II of the ADA
  • Let's Count the Ways the ADA Impacts Your Law Practice
  • Understanding the Americans with Disabilities Act, Fourth Edition – Hot Off the Press – A Brown Bag Series

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