Despite the lack of a clear causal connection between an employer’s failure to grant an employee’s request for additional training and its decision to terminate her employment, an Arkansas federal district court recently denied the employer’s summary judgment motion on the plaintiff’s failure to accommodate claim under the Americans with Disabilities Act. In denying summary judgment, the Court held that, “a failure to accommodate is, in and of itself, a form of discrimination under the ADA.” Orr v. City of Rogers (W.D. Ark. Feb. 3, 2017).

In Orr, Plaintiff requested additional training after initially undergoing certain medical procedures. According to the plaintiff, the employer offered her only “generic trainings,” as opposed to training on software and protocol changes that occurred while she was out on leave. The employer subsequently terminated the plaintiff’s employment following seven work infractions during a two-month period. After finding the employer had legitimate, non-discriminatory reasons for terminating Plaintiff’s employment, the Court examined whether the failure to accommodate claim survives the dismissal motion. The District Court recognized that courts disagree on whether a plaintiff must show an adverse employment action to have an actionable failure to accommodate claim, and observed that the Eight Circuit has held a failure to accommodate can be an adverse employment action. The district court ultimately held that the plaintiff need not show her employer’s failure to accommodate her training request resulted in her termination. Thus, the plaintiff could “seek damages for the failure to accommodate itself,” even if only nominal damages. Because the employer did not explain why it failed to accommodate the plaintiff’s request and questions of material fact existed regarding whether the employer engaged in the interactive process, the plaintiff’s failure to accommodate claim survived summary judgment.

This decision serves as a reminder to employers of the importance of engaging in the interactive process with employees seeking an accommodation. Documenting the steps the company takes to engage in the process can go a long way to defending a failure to accommodate claim.

In Baez v. Anne Fontaine USA, Inc., the United States District Court for the Southern District of New York denied an employer’s motion for summary judgment to dismiss a terminated employee’s retaliation claims under Title VII, New York State Human Rights Law and the New York City Human Rights Law, and hostile work environment claim under NYCHRL.

 

On December 27, 2013, Plaintiff, a female regional sales manager for employer, a clothing retailer, learned that three female colleagues were spreading a rumor that, at a recent meeting with the CEO, Plaintiff wore a revealing shirt without undergarments. Plaintiff reported this rumor to the corporate controller, who issued a written warning to one of the employees without specifically addressing the rumor. On February 7, 2014, the employer terminated Plaintiff citing, among other reasons, that Plaintiff was associated with “too much drama.”

 

While the Court recognized that Plaintiff’s retaliation and hostile work environment claims were “not strong,” the Court nevertheless found that the employer listing “drama” as one of the reasons for termination coupled with the “temporal proximity” between Plaintiff’s complaint about the rumor and her termination was sufficient to create a “genuine dispute of material fact” as to whether the Plaintiff’s complaint was the “but-for cause” of termination. In addition, the Court denied the employer’s motion to dismiss Plaintiff’s hostile work environment claim because the gender-related rumor and the employer’s apparent reference to the incident as “drama” could lead a jury to find that Plaintiff was subjected to a hostile work environment under the low standard of the NYCHRL.

This case serves as a reminder to employers that an employee cannot be terminated or disciplined for communicating concern about what is perceived to be a discriminatory practice. Further, an employer must be cautious to not list anything as a basis for an employee’s termination that may be construed as “protected activity.”

In Bethscheider v. Westar Energy, the United States District Court for the District of Kansas denied Defendant’s motion to dismiss claims under the Americans with Disabilities Act (“ADA”).  Alleged by Plaintiff was that her migraine headaches constituted a disability entitling her to a reasonable accommodation.  The Company terminated Plaintiff for “excessive absenteeism” despite the fact that only four of her eleven absences between January and May were attributable to her medical condition.  Since Plaintiff’s headaches usually lasted less than one day, and she made up missed work time the following day, Westar Energy believed that Plaintiff did not require a reasonable accommodation.  The Court disagreed, in effect finding that a violation of the ADA might exist.

For a condition to be defined as a disability under the ADA, it must “substantially limit” a “major life activity.” The Court relied upon Equal Employment Opportunity Commission regulations defining “substantially limit” to mean that a person is “significantly restricted in the ability to perform either a class of jobs or a broad range of jobs in various classes as compared to the average person having comparable training, skills and abilities.”  Plaintiff argued that her migraine headaches, though only affecting her occasionally, “substantially limit” her ability to work.  The Court noted that, depending on the facts, migraines may be considered a disability and, thus, Plaintiff set forth sufficient facts to establish a plausible claim at the initial stage of the pleadings.

An employer should be wary of making decisions regarding an employee’s medical condition without review of medical documentation and advice of counsel. As further source of concern arises from state laws that are broader than the ADA, requiring employers to provide reasonable accommodation for “lesser” medical conditions.

Under a new government administration, Puerto Rico employment laws will undergo the most significant transformation in decades with the expected enactment of the “Labor Transformation and Flexibility Act.”    Read more here.  To learn more at a Webinar, click here to register.

 

The New York State Department of Financial Services (NYSDFS) has promulgated a regulation that requires insurance companies to provide Commercial Crime Coverage to employers who have prior knowledge of an employee’s prior criminal conviction.   Read more here.

Working at home may constitute a reasonable accommodation according to a recent decision in Rezvan v Phillips Electronics North America Corp., Case No. 15-cv-04767-HSG (N.D. Calif.)  In Rezvan, a former employee with rheumatoid arthritis who worked as a Contract Manager, sued Phillips under the California Fair Employment and Housing Act (“FEHA”) for disability discrimination. Phillips moved for summary judgment on the grounds that Plaintiff could not perform the essential functions of her job because regular onsite attendance was an essential duty of a Contract Manager and Plaintiff was frequently absent due to her illness.

Under the FEHA, a plaintiff must demonstrate that she is qualified for the position she held by showing she was able to perform the essential duties of the position with or without reasonable accommodation. The Court held that a disputed material fact existed regarding whether Plaintiff could have performed the essential functions of her position with increased flexibility to work at home and whether that increased flexibility would have been a reasonable accommodation. In reaching this decision, the Court relied on Plaintiff’s supervisor who testified that the key responsibilities of contract managers could be executed remotely. Additionally, Phillips had allowed another contract manager to work at home on a fulltime basis for ten months without reporting to the office, during which time she had no issues completing her work. Plaintiff also established that she frequently requested to work at home on days where her condition worsened. Her supervisor denied these requests, referring to the company’s sick time policy, and insisted that Plaintiff stay at home and not work.

The decision highlights the personalized nature of the interactive process and reminds employers that a “one size fits all” approach is not viable. With the advent of the digital age, many jobs can be performed remotely, and working at home may constitute a reasonable accommodation. To the extent a job requires presence in the office, the job description should be modified to reflect that requirement.

In Knight v. Barry Callebaut USA Service Company, Inc., the United States District Court of the Eastern District of Pennsylvania denied an employer’s motion for summary judgment on claims brought by a terminated employee under the Americans with Disabilities Act (“ADA”) and the Family and Medical Leave Act (“FMLA”).  During the work day, the employee sought “brief periodic breaks” of ten to sixty minutes each, up to three times per day, due to his medical condition.  As the result of a condition flare up, the employee went to the hospital after spending hours unsuccessfully trying to locate a supervisor to notify the company that he had to leave.  (Brief rest breaks generally are compensable work time so time not working would be paid time until it reached about 30 minutes; five to twenty minutes off clearly being described as compensable in the regulations under the Fair Labor Standards Act.)

After the employee left for the hospital, the employer terminated the employee days later when he returned to work after his release from the hospital.  The employer’s stated reason for termination was that another worker who was injured while the employee was hospitalized had complained that the employee was frequently gone for long periods during his shifts.  The employer also claimed that there was no justifiable reason for the plaintiff to take numerous breaks.

The Court found a triable issue as to whether the employee suffered from a disability or was regarded as having a disability under the ADA.  The employee’s FMLA interference and retaliation claims survived as well.  The Court found the close temporal proximity between the employee’s e-mail stating that he was going to the hospital and his termination created a question of fact.  Further, the Court held the employee provided sufficient evidence that the employer did not advise him of his FMLA rights.

This case serves as a reminder to employers that termination of an employee who is known to have a medical condition can suggest discriminatory intent. The employer’s substituting its judgment for that of medical providers is a dangerous practice.

In Bob v. Madison Security Group, Inc., the United States District Court for the Southern District of New York dismissed a failure to accommodate claim brought by a former employee under Title VII and New York State and City employment statutes.  Plaintiff alleged that his former employer scheduled him to work on Fridays, despite Plaintiff’s request that he be permitted to take Fridays off to observe the Muslim Sabbath.  When Plaintiff failed to report for any scheduled Friday shifts, his employer reduced his schedule and eventually eliminated the position.  Defendant argued on its summary judgment motion that Plaintiff failed to demonstrate bona fide religious belief and also denied that the former employee provided notice to his employer of the need for an accommodation.

Title VII requires an employer to engage in an interactive process and to make reasonable accommodations, short of undue hardship, for the religious practices of its employees.  But to avail oneself of a religious accommodation, an employee’s religious belief must be bona fide and the employee must properly notify his/her employer of his/her need for an accommodation (or the need must be open and obvious).  The Court, citing Plaintiff’s inconsistent deposition testimony, held that Plaintiff failed to demonstrate a bona fide religious belief because he equivocated during his testimony, first testifying that his beliefs permitted him to work on Fridays so long as the work didn’t interfere with Friday prayers, then testifying that he preferred not to work on Fridays but nevertheless could, then stating that he needed Friday off but would be able to accommodate working if it did not conflict with his prayer time.  The Court further held that Plaintiff failed to notify his employer of his need for an accommodation.  The evidence established that Plaintiff failed to indicate on his employment application and during his job interview any limitations upon his availability to work stating he could work “any days.”

This case serves as a reminder that employers are required to provide a reasonable accommodation to permit employees to practice their religious beliefs.  As in disability accommodation cases, employers should maintain clear job descriptions and uniformly enforced policies in order to be in a position to confirm essential job functions and better support claims of undue hardship.

The Equal Employment Opportunity Commission recently issued updated guidance regarding national origin discrimination for the first time since 2002.  The new guidance defines national origin discrimination as “discrimination because an individual (or his or her ancestors) is from a certain place or has the physical, cultural, or linguistic characteristics of a particular national origin group.”  Employers should take heed of several important points emphasized by the new guidance, including (but not limited to):

  • All foreign nationals who legally are working within the United States are protected by Title VII and have standing to bring a Title VII discrimination claim, regardless of their citizenship status;
  • National origin discrimination may exist in the form of an “association” claim, for example where an employer treats an employee less favorably because the employee associates with someone of a particular national origin.
  • National origin discrimination may exist in the form of a “perceived as” claim, for example where the employer treats an employee differently because of what it believes the employee’s national origin to be, even if that belief is ultimately incorrect.
  • An employer may not discriminate on the basis of national origin even if the employment decisions are made due to the discriminatory preferences of a client, customer, or another employee.
  • Employers should be careful making employment-related decisions based on language and/or accent.  An employer making a decision based upon language or accent will be required to show that the ability to communicate in English with a specific accent is required to perform the job duties “effectively” and the employee’s accent “materially interferes” with that performance.
  • Employers are not required to accommodate national origin traditions. However, religious beliefs – which are often related to national origin – must be accommodated unless doing so imposes an undue hardship.

The EEOC has also issued two short, user-friendly resource documents to accompany the guidance: a question-and-answer publication on the guidance document and a small business fact sheet that highlights the major points in the guidance in plain language.