Understanding the ADA

The Blog of William D. Goren, J.D. LL.M. - Of Counsel, Kitchens New Cleghorn, LLC

disparate treatment

Does a Failure to Accommodate Claim Require an Adverse Action?

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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.

 

Remember that Law School Exam? Defenses Run Amok

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For those who remember law school, the typical law school exam was a completely crazy hypothetical with thousands of issues in it. The idea was to spot all the issues and somehow mention that you knew how to deal with them within the allotted timeframe. I was reminded of that experience when I read National Association of the Deaf v. Harvard University.  In particular, the magistrate recommended that the motion to dismiss be denied. Harvard threw every possible defense they could think of at the National Association of the Deaf with none of them sticking. As is my usual practice, I have divided the blog entry into categories: facts; defenses; and takeaways. With respect to defenses, I have divided the defenses into subcategories: general thoughts; title III of the ADA; § 504 of the Rehabilitation Act; and the primary jurisdiction doctrine.

I

Facts

Harvard controls, maintain, and administers webpages, website, and other Internet locations on which it makes available to the general public, free of charge, a vast array of content, consisting of courses and other educational and general interest materials. It creates and produces some but not all of the content. Included within that content are thousands of audio and audiovisual files. Millions of people around the world have access to online video content that Harvard makes freely available. While some of the online video content is captioned, much of it has no captioning or has captioning that is inaccurate. As a result, the aural component is inaccessible to the plaintiffs and to those who are deaf or hard of hearing. Beginning in December 2013, plaintiffs repeatedly requested that Harvard ensure that its online video content contain timely and accurate captioning. The complaint alleged that Harvard’s failure to provide the captioning necessary to ensure effective communication and equal opportunity for the deaf and hard of hearing to benefit from the online video content violated § 504 of the Rehabilitation Act as well as title III of the ADA.

II

Defenses

Failure to State a Claim

A. General Thoughts

1. In order to state a claim for violation of § 504 in title III of the ADA, a plaintiff must allege: 1) that he or she is disabled and otherwise qualified; 2) that the defendant receives federal funding (for § 504 purposes), and is a place of public accommodation (for ADA purposes); and 3) that the defendants discriminated against the plaintiff based on disability.

2.  There are three possibilities with respect to a plaintiff alleging disability discrimination. First, a plaintiff can assert that a disability actually motivated the defendant’s challenged adverse conduct (disparate treatment). Second, the plaintiff can assert that a defendant’s challenged conduct, even if not motivated by discriminatory animus, disparately affected the disabled (disparate impact). Third, the plaintiff can complain that the defendant refused to affirmatively accommodate his or her disability where such accommodation was needed to provide meaningful access.

B. Title III of the ADA

1. Harvard argued that title III of the ADA does not apply to websites. The court was having none of it because the allegations are that Harvard itself is a place of public accommodation as an educational institution and the websites are benefits, services, or privileges offered by it to the general public. Accordingly, it isn’t necessary to decide whether title III of the ADA applies to websites. The court did note that in the First Circuit non-physical places are subject to title III of the ADA per Carparts.

2. Harvard’s argument that the Department of Justice regulations governing building and accessibility and barrier removal under the ADA control the title III claims of the plaintiff’s because such guidelines contain no website accessibility requirements simply doesn’t fly.

3. Those specific guidelines specifically do not apply to non-physical structures, but that doesn’t mean that the ADA doesn’t apply to non-physical structures. Also, even if the architectural guidelines did apply, the ADA goes beyond requiring access to facilities since it guarantees persons with disabilities full and equal enjoyment of those facilities.

The argument that Harvard is being denied the flexibility to choose an appropriate auxiliary aid doesn’t work because the flexibility to provide reasonable accommodation is an affirmative defense and not an appropriate basis to base a motion to dismiss upon.

4. It is absolutely true that a place of public accommodation is not required to alter its inventory to include accessible or special goods that are designed for, or facilitate use by, individuals with disabilities. However, that particular regulation only relates to goods and not to services and it is services that are involved here.

§ 504

1. The essence of § 504 is a prohibition against discriminating against an otherwise qualified handicapped individual solely by reason of the handicap. That has been interpreted by the Supreme Court as demanding that persons with disabilities be provided with meaningful access to the benefit offered by the recipient of federal funds.

2. Meaningful access is a fact specific inquiry. That said, where the plaintiff identifies an obstacle impeding their access to a program or benefit, they likely have established a lack of meaningful access to the program or benefit.

3. Under the meaningful access standard, the focus is on whether the person with a disability is afforded evenhanded treatment in the opportunity to participate in and benefit from program receiving federal financial assistance.

4. The theory of the complaint that the deaf and hard of hearing lack meaningful access to the aural component of the audiovisual content offered by Harvard to the public online fits squarely within the parameters of § 504 and such a theory has been recognized as a classic example of § 504 liability.

5. Whether a particular accommodation is a reasonable accommodation or extends into “affirmative action,” (think undue burden or fundamental alteration), is a question of fact not suitable for resolution on a motion to dismiss. In other words, striking the appropriate balance between accommodating the rights of plaintiff and not unduly burdening Harvard requires a fact intensive inquiry not suitable for resolution on a motion to dismiss.

6. Harvard’s characterization of the complaint in terms of disparate impact and disparate treatment isn’t on point because both of those claims can often be seen in the context of failure to accommodate claims. As mentioned above, failure to reasonably accommodate a person with a disability is a distinct and viable theory of discrimination under § 504 and the plaintiffs claims squarely fit within that.

7. Harvard’s argument that the plaintiff cannot base their claim on the general prohibitions of discrimination contained in 34 C.F.R. § 104.4 of the Department of Education’s regulations doesn’t fly because those regulations are consistent with the requirement of meaningful access. Since meaningful access incorporates rather than supersedes applicable interpretive regulations, the plaintiff is not precluded from litigating their claims under those regulations.

8. Harvard admits that to the extent the Department of Education regulation is applicable, it is obligated to provide meaningful access.

9. While online content is not specifically mentioned in the regulation, neither is it specifically excluded, and the legislative history of the ADA makes clear that Congress intended the ADA to adapt to changes in technology.

10. The Department of Education’s interpretation of its regulations support the requirement of meaningful access with respect to aids, benefit, and services offered online. The Department of Education has stated in guidance that equal opportunity, equal treatment, and the obligation to make modification to avoid disability-based discrimination are part of the nondiscrimination requirements of § 504 and the ADA. Therefore, they have said that all school programs or activities-whether in a brick-and-mortar online or other virtual contexts-have to be operated in a manner complying with federal disability discrimination laws.

11. The argument that the regulation is not entitled to deference doesn’t hold up because the court has to give controlling weight to an agency’s interpretation of its own ambiguous regulation unless it is plainly erroneous or inconsistent with the regulation or there is reason to suspect that the agency’s interpretation does not reflect the agencies bearing considered judgment on the matter in question. In this situation, the Department of Education’s interpretation of its existing regulations so as to apply it to emerging technology, including online content, is neither plainly erroneous nor inconsistent with the regulation. There is also no reason to suspect that the interpretation reflects anything less than fair and considered judgment on the part of the Department of Education.

12. The fact that the plaintiffs are alleging a class action does not torpedo the § 504 claims because each of the plaintiffs have pleaded a lack of meaningful access and have identified captioning as the reasonable accommodation required to gain that access.

Primary Jurisdiction Doctrine

1. The doctrine of primary jurisdiction is a doctrine that provides where there are cases raising issues of fact not within the conventional experience of judges and are cases requiring the exercise of administrative discretion, the agency created by Congress for regulating the subject matter should not be passed over. It is a doctrine that should not be invoked unless a factual question requiring both expert consideration and uniformity of resolution is present. When both are the case, the judicial process is suspended pending referral to the administrative body for review. Such a referral to the administrative agency does not deprive the court of jurisdiction, rather the court has discretion to retain jurisdiction or dismiss the case without prejudice in the event the parties would not be unfairly disadvantaged.

2. The elements of primary jurisdiction are: 1) whether the agency determination lay at the heart of the task assigned by the agency by Congress; 2) whether agency expertise was required to unravel intricate, technical facts; and 3) whether, though not determinative, the agency determination would materially aid the court.

3. On July 26 of 2010 the Department of Justice published an event notice of proposed rulemaking regarding accessibility of web information and services of state and local governmental entities and public accommodations. However, those regulations, with respect to title III of the ADA, have now been postponed until sometime in fiscal year 2018 (I might add that considering we have an election coming up, even that would be in doubt).

4. While it is certainly within the Department of Justice’s ambit to issue implementing regulations addressing website accessibility requirements for places of public accommodations, the plaintiffs are not asking the court to issue such regulations. Instead, they are seeking declaratory relief that Harvard discriminated against the deaf and hard of hearing with respect to its provision of online video content and injunctive relief requiring Harvard to provide captioning. The Department of Justice has the power to provide neither remedy.

5. The court’s determination of the issues raised by the plaintiff’s complaint do not run the risk of undermining the consistency of Department of Justice regulatory interpretation because any findings on the issue of undue burden and fundamental alteration would be specific to Harvard and the service it is alleged to be providing. For that matter, any declaratory and injunctive relief would also only applied to Harvard.

6. While it is possible and inconvenient for Harvard to possibly be held to a higher standard of accessibility than what the Department of Justice might require if it ever issues its regulations, convenience of the parties is not a relevant consideration in primary jurisdiction analysis. That is, as long as the burden imposed upon Harvard does not rise to the level of undue burden, the ADA is not violated and primary jurisdiction is not offended.

7. Consideration of the defense of undue burden and fundamental alteration does not call for any specialized expertise of the Department of Justice. In particular the question to be faced by the court include such things as: whether the service varies depending upon whether Harvard created the content; the website in issue; how the content became publicly available; the financial and administrative burdens a captioning requirement imposes upon Harvard; the availability of different technologies for captioning online content; the availability of other auxiliary aids or services; and Harvard’s resources. All of those issues are things a court is well-equipped to address.

8. Harvard offers no basis for the assertion that the Department of Justice has the expertise to unravel intricate, technical facts governing website and online video accessibility. In fact, the notice of proposed rulemaking suggested completely the opposite. That is, if the Department of Justice had such specialized technical expertise, there would be no reason to solicit it from the outside. To the extent the court needs help unraveling intricate, technical facts governing website and online video accessibility, it has the ability to hear from experts.

9. Whether proposed rules pertaining to state and local government entities of public accommodations, which DOJ is expected to issue sometime this year, would be helpful to the court, is not determinative of whether primary jurisdiction applies in this case. Even so, there is no reason why this case and the administrative process cannot both proceed simultaneously on separate tracks. That is, if DOJ ever does issue the rules for website accessibility with respect to state and local governments, the parties have the ability to bring that to the attention of the court.

10. While the proposed rules may be of some help, assuming they are issued, the court still has to consider how the proposed rules shed light on the specific question presented i.e. whether Harvard has violated the ADA’s prohibition against disability-based discrimination and the extent to which Harvard is required to provide accommodations under the ADA, if any. Further, those rules would be just proposed rules and not final rules.

11. It is unnecessary to put everything off until regulations are issued since the Department of Justice is already involved in this case having made an appearance as an interested party. Accordingly, the court can get the Department of Justice views just from the case proceeding.

12. The prospect for timely resolution of the issue if referred to the Department of Justice are not good (that is an understatement considering they are proposing regulations in 2018 and an election is coming up). Further, there is a strong public interest in the prompt resolution of this case and therefore, it is inappropriate to defer to administrative action of uncertain aid and uncertain speed. It is impossible to know how helpful the department’s ultimate regulations might be, but it is certain that the decision will not be available soon.

13. Harvard’s claim that the plaintiff will not be injured by imposition of a stay simply doesn’t hold. That is, if Harvard is in violation of title III, then plaintiff will continue to be unlawfully harmed until the case is resolved. Extending the period of time plaintiff must wait for a possible remedy is simply prejudicial.

III

Takeaways

1.Harvard threw absolutely every defense they could think of and then some all to no avail.

2. I have said for years that while title III of the ADA does not include the qualified language, it in essence does have such a requirement because of the emphasis on undue burden and fundamental alteration. It is always nice to see when you are vindicatedJ, since in footnote 4 of this decision, the court says precisely that. That is, the court says there is little difference in the distinction that title III does not contain the word qualified individual because many of the issues arising in the qualified analysis also arise in the context of reasonable modifications or undue burden analysis.

3. The court’s reasoning in this case seems really solid to me all the way around. Considering the resources of Harvard and MIT (which was sued separately but the court denied the motion to dismiss on the same grounds), undue financial burden would seem impossible to win on as a defense. Summary judgment is going to turn upon logistical undue burden and fundamental alteration.

4. Meaningful access can be an abstract term. Here, the court comes up with a useful standard i.e. the plaintiff identifying an obstacle impeding their access to a program or benefit likely means the establishing the lack of meaningful access to the program or benefit. Similarly, it is helpful that the court also says that where a plaintiff seeks to expand the substantive scope of the program or benefit, they likely seek a fundamental alteration to the existing program or benefit and have not been denied meaningful access.

 

Telecommuting as a reasonable accommodation: EEOC v. Ford Motor Company en banc Decision

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In a comment to this blog entry, I discussed the panel decision of the Sixth Circuit in EEOC v. Ford Motor Company where the panel held that telecommuting was a reasonable accommodation. Before proceeding further, I want to thank Jon Hyman for alerting me through his blog that the en banc decision came down April 10, 2015. I also want to encourage everyone to read what John has to say in his blog entry this week (he also has a link to the en banc decision in his blog entry), as his Friday entry promised some fireworks; I would say he came through on that promise. Also, Eric Meyer in this blog entry of his , has thoughts worth reading as well. I fully expect Robin Shea to weigh in as well. All three of these people have blogs in my blog roll.

In my blog entry mentioned above, I thought the defendant would seek an en banc hearing because under the facts of the case there were some serious weaknesses in the majority opinion of the panel decision. The en banc decision was an 8 to 5 decision, and I thought I would highlight the arguments of the majority and minority opinion. My approach to this blog entry is: the introduction section above, the majority opinion, the dissenting opinion, and takeaways. In the analysis of both the majority opinion and the dissenting opinion, I offer my thoughts immediately underneath the particular reason for the majority opinion or the dissent. As is usual, the reader is free to focus on any or all of the sections of this blog entry.

I
Majority opinion

1. Basically, the majority says that attendance is presumed to be an essential function of the job unless you can satisfy Samper, which was the subject of this main blog entry , of which I added EEOC v. Ford Motor Company in the comments section.

2. An employer is not required to modify an essential function of the job.

This is true. However, an employer does need to evaluate whether the person can do the essential function of the job with or without reasonable accommodations. If accommodations would modify or eliminate the essential functions of the job, then the ADA does not require the employer to grant that accommodation. The employer does need to work with the employee to get the employee to the same starting line as a person without a disability so long as the essential functions of the job are not compromised by the accommodations.

3. Ford engaged in an interactive process and only quit when it came down to modifying essential functions of the job.

4. An essential function of the job reflects an employer’s judgment and also what the employer does. To the majority, Ford had plenty of evidence to suggest that on-site attendance was an essential function of the plaintiff’s job.

As I alluded to in my comment on the Samper case, it is certainly possible that Ford had plenty of evidence to suggest that on-site attendance was an essential function of the job. However, that doesn’t answer the question. Is essential functions of the job a question of fact or a question of law. There are certainly cases holding that essential functions of the job is a question of fact. On the other hand, it is not unusual for a court to find that the facts are so overwhelming that in essence, a question of fact never presents itself.

5. Where an employer’s judgment as to essential job functions as evidenced by the employer’s words, policies, and practices and taking into account all relevant factors is job-related, uniformly enforced and consistent with business necessity, summary judgment in favor of the employer is required.

Whether a job’s function is essential has to do with the fundamental aspects of carrying out that job. I am not following how essential functions of the job has anything to do with whether it is job-related or consistent with business necessity, concepts we discussed here. Also, the uniformly enforced piece is a bit problematic because the ADA is not dealing with disparate treatment here, but rather with the affirmative duty to accommodate a person with a disability. Finally, if this becomes the standard, then litigation over essential functions just got incredibly complicated because not only would you have to show that the function is fundamental to carrying out the purpose of the job, but you would also have to show that it is job-related (which I suppose we could presume if the function was essential), and consistent with business necessity (to my mind, it is certainly possible that a job could have an essential function that is not vital to the operation of the business). I get how uniformly enforced might go to essential functions, but also this is not a situation where you are dealing with disparate treatment.

6. With respect to the retaliation claim, temporal proximity cannot be the sole basis for finding pretext. Also, considering the performance issues, plaintiff could not show per Nassar that the filing of the EEOC claim was a but for reason for the termination.

The dissent is quite right to point out that this is harsh for persons with disabilities, especially if their performance problems is connected to the lack of accommodations. That said, this defense strategy seems to be sound in light of University of Texas Southwestern Medical Center v. Nassar, which we discussed here.

II
Dissent:

1. Essential functions of the job is a question of fact and not appropriate for summary judgment.

As a matter of case interpretation, the cases generally find essential functions of the job to be a question of fact where to the court’s mind it is a close call.

2. The majority turned the summary judgment standard on its head by focusing on facts least favorable to the plaintiff rather than on facts most favorable to the plaintiff. Further, it is not right to make the employee testimony somehow inherently less credible than testimony from the employer.

The dissent may be onto something here. Having read thousands of cases over the years, it often seems that summary judgment turns into a bench trial based on discovery and then if it is a close call goes to the jury and if not the judge decides to grant the motion for summary judgment, usually for the defense but in rare situations for the plaintiff. In other words, the court seems to be acting as a screen out with the summary judgment practice. That is, it seems to me that cases go to the jury only where the plaintiff has a very real chance of winning or is very likely to win, otherwise the case gets decided on summary judgment for the defense. I have seen a couple of cases, such as this one, that say this view of summary judgment has taken things too far and it isn’t the province of the judge to act as the screen out where the critical facts are contested, but such cases are certainly not the majority.

3. Ford’s judgment that physical presence at the office is an essential function of the job is entitled to consideration, but that does not mean it is entitled to deference. The ADA states only that consideration shall be given to the employer’s judgment as to the essential functions of the job but that is not the same thing as saying deference is to be given to the employer.

This is an excellent point. However, the case law as a matter of practice has given different levels of deference, depending upon the jurisdiction, to the employer’s notion of what an essential function of the job is. If I had to categorize it, I would say that the cases range from deference to deference plus to strong deference, but it is rare that a case just give consideration to the employer’s view of essential function rather than some degree of deference.

4. The cases requiring physical presence are distinguishable from this case.

5. Technology has advanced in 1995 in facilitating teamwork through fast and effective electronic communication, and so it should no longer be assumed, per the majority opinion, that teamwork must be done in person.

The majority opinion does create this presumption that teamwork must be done in person. Such a presumption takes things even further than Samper. Also, as Jon points out in his blog entry of today, mentioned above, a strong argument can be made that the presumption should be reversed.

6. The slippery slope argument overstates the reach of this case and sets a poor precedent for other failure to accommodate cases since providing telework is not just a good deed but is sometimes legally required under the ADA.

In another life, I actually taught a logic class to college students. One of the things that the law is particularly bad about is how it emphasizes the logical fallacy of the, “slippery slope.” That is, you decide something one way and that necessarily means the ball just keeps rolling downhill. It is a logical fallacy because everything turns on its facts and the ball does not have to keep rolling at all. Therefore, to my mind, this is an excellent point made by the dissent. There are most certainly going to be situations where telework is going to be legally required under the ADA, especially where the Samper criteria are not satisfied.

7. It was not clear from the record whether the plaintiff was asking for flex time or time to be able to work beyond office hours. If there was a request to telework during core business hours only, that might be considered a reasonable request.

8. The majority opinion reads facts and ambiguity contained in the record in a way least favorable to the plaintiff when on summary judgment it should be the other way around.

See my discussion of summary judgment above.

9. The request of the plaintiff to telework up to four days a week was an opening bid and Ford should have made a counteroffer.

Depending upon the Circuit, failure to engage in the interactive process may or may not be an independent cause of action for violating the ADA. In this situation, the court’s majority opinion is in essence saying that the plaintiff causes the breakdown of the process where an accommodation request would modify or change the essential functions of the job.

10. Since the interactive process is not an end in and of itself, the employee must present evidence that a reasonable accommodation could have been identified if the employer had engaged sufficiently in the interactive process, which the EEOC did.

The problem with this argument is that Ford did engage in a substantial interactive process up until the point where the essential functions of the job, at least to Ford Motor’s eyes, were to be compromised. Also, this particular statement goes further than case law that I have seen, much of which says that all the plaintiff has to do is identify a reasonable accommodation and then the ball goes into the employer’s court.

11. In the Sixth Circuit, reassignment is reasonable only where the employer demonstrates that it would be an undue hardship to accommodate the employee in his or her current position.

With respect to reassignment, case law is all over the place on this one. Be sure to check your own jurisdiction.

12. With respect to retaliation, a reasonable jury could certainly infer from the timing and nature of the events that Ford fired the plaintiff in retaliation for the charge she filed with the EEOC.

This is most certainly true in this case as the time in between firing and the charge was not a great deal of time. However, the problem still is that retaliation claims require but for causation per University of Texas Southwestern Medical Center v. Nassar.

13. Citing to this case, which we discussed previously, the dissent believed that the key question was whether the EEOC charge that was filed was the poison that precipitated the firing to occur when it did. If so, that was wrongful conduct.

This is a very interesting argument and one that I have not seen before. It will be interesting to see how much currency this argument gets in the courts.

14. The majority opinion is bad policy because that opinion makes it impossible for employees with performance problems to bring a retaliation claim based on the theory that those performance problems did not truly motivate the employer to fire them. That cannot be in accordance with the purposes of the ADA because employees with disabilities often have performance problems precisely because of the struggles they encounter to manage those disabilities.

Absolutely true. However, the Supreme Court has spoken on the causation standard in retaliation cases. This leads to the question, which we have discussed in this blog before, as to what does “but for” really mean. Also, does equity, i.e. principles of fairness, demand some slack where it can be shown that the performance problems were related to the failure to accommodate the employee? Keep in mind, it is far from clear in this case whether the performance problems were related to the failure to accommodate or it was just a case of bad performance on the part of the employee.

III
Takeaways:

1. If you are faced with attendance as an essential function of the job, make sure you read the Samper case.

2. Essential functions of the job do not need to be modified or eliminated in order to comply with the ADA. That said, make sure you can back up what the essential functions of the job are. In many cases, the benefit of the doubt goes to the employer.

3. Requiring that a threshold of job-related, uniform enforcement, and consistent with business necessity be in place before summary judgment in favor the employer is required, does litigants on either side no favors as it most definitely increases the expense of litigation. It also imposes a set of requirements that in the long run may prove very problematic for employers, particularly with respect to the business necessity requirement. Finally, I am struggling to see how the ADA and its implementing regulations even suggest the necessity for this standard.

4. Saying that temporal proximity cannot be the sole basis for finding pretext makes retaliation claims very difficult for plaintiffs considering that the standard is but for causation and performance problems are typically involved. One wonders if a standard could not be crafted so that temporal proximity is not a sole basis for finding pretext, but merits strong consideration where the performance problems are traceable to the failure to receive reasonable accommodations (that is, an accommodation that gets the person without a disability to the same starting line as a person with a disability and does not jeopardize the essential functions of the job).

5. On the plaintiff’s side, look for every plaintiff attorney dealing with a reasonable accommodation case to take the section of the dissenting judges opinion that when it comes to essential functions of the job, an employer is entitled to consideration but not, as is the practice of cases, deference.

6. Given today’s technology, it simply doesn’t make sense that there should be a presumption that teamwork needs to be done in person. On the other hand, I don’t know if it makes sense to have a presumption saying that teamwork does not need to be done in person either. To my mind, a presumption is not needed, and the parties should be put to their proof.

7. The slippery slope argument is one that should be easily countered in the ADA. The fundamental purpose of the ADA is an individualized case analysis of each set of facts. Therefore, the slippery slope should not be an issue, and if there ever was a logical fallacy in the law, it would be the slippery slope in the context of ADA cases.

8. Defense attorneys filing a motion for summary judgment is standard practice. As a practical matter, it seems that once a defense file such a motion, the burden shifts to the plaintiff to prove the defense wrong. Look for plaintiff attorneys to use the section of the dissent saying that summary judgment practice has gone too far.

9. I don’t follow the point in the dissent saying that an employee must present evidence that a reasonable accommodation could have been identified if the employer had engaged officially in the interactive process. The way the cases have gone to date, is that the plaintiff must suggest a reasonable accommodation and once the plaintiff does, the employer must engage in the interactive process. After that, whoever breaks down the interactive process bears the liability. To say otherwise winds up in a situation where the defendant could be the breakdown in the interactive process but the plaintiff would still have the obligation to show that an accommodation was possible once the defense broke down the interactive process. That puts an added burden on the plaintiff, which to date has not been imposed.

10. When it comes to reassignment, check your jurisdiction for the applicable law.

11. Look for a lot of litigation in retaliation cases over what “but for,” really means.

12. Will this case go to the Supreme Court? First, I am not sure you could say there is a Circuit court split yet. Second, on the plaintiff’s side, you would have to be worried about whether the United States Supreme Court would unduly narrow the ADA, especially since the current nature of Congress is such that the law would not likely be amended regardless of the Supreme Court decision. Third, I am not sure where plaintiffs would find the fifth vote. Finally, plaintiffs with disabilities have not fared well at the Supreme Court when it comes to employment matters. Of course, you never know with these things as the Supreme Court decision in UPS v. Young illustrates.