Refusal To Re-take Physical Abilities Test Dooms Plaintiff’s Ability To Allege Adverse Employment Action

The absence of an adverse employment action by an employer routinely is fatal to a claim of discrimination (absent proof of constructive discharge). This bedrock principle was reiterated recently in a case where an applicant alleged that she was forced to resign after failing a physical abilities test. Jane D. Dicocco v. William P. Barr (E.D. Va.)  All new hires were required to pass the test because the job itself involved “hazardous duty law enforcement positions.” After this female applicant failed the test, she was permitted to retake it within 24 hours, but declined to do so. While the applicant claimed she was too tired to retake test, the Court found that “her decision to resign rather than retake the exam and potentially fail a second time” was too speculative to support her claims.

The take-aways are significant. First, a test must be job-related and adverse impact on the basis of gender or other characteristic should be explored and addressed. Second, after failing, offering a second chance helps to avoid charges of unfair administration. Third, if an applicant cannot perform essential job functions for non-medical reasons, he or she is not qualified.

Second Circuit: Migraines Insufficient to Support a Disability Under the ADA

The Second Circuit recently held that an employer did not violate the Americans with Disabilities Act when it refused to transfer, and then terminated, an employee because of his inability to perform his job due to migraines caused by the stress of his job.  Woolf v. Strada. In this case, Plaintiff began to suffer migraines that left him temporarily incapacitated and which negatively impaired his work. Plaintiff alleged that his migraines were related to stress at work, which worsened when he received negative performance reviews. Plaintiff provided medical documentation and requested a transfer. The Company denied the transfer because of his poor performance reviews. However, it granted his request for intermittent medical leave with full pay. After he received another poor performance review, Plaintiff was discharged.

The Second Circuit found for the employer, holding that “where a plaintiff’s condition leaves him unable to perform only a single, specific job, ‘he has failed to establish a substantial impairment to his major life activity of working.’” Because Plaintiff did not attempt to show that his work-causing migraines limited his ability to work in a range of jobs, the Court concluded that there was no ADA violation. While it might have been a safer course of action to have transferred him and continued progressive discipline, the discharge was found to be lawful.

It should be noted that this result would not be the same under many state and local laws that provide broader coverage than the ADA (including not requiring a showing of substantial limitation on a major life activity).

“No Backsies?” — Not Rehiring a Recently Retired Employee Can Lead to Liability

Based on a set of somewhat unusual facts, a federal district court in Ohio ruled that an employer that refused to rehire a recently retired individual to his former position will need to argue at a jury trial that its decision was not based on age.  In Rose v. City of Toledo, a 62-year-old employee retired from the City Water Department, and shortly thereafter, applied for two positions within the Water Department (one of which was to be rehired into his former position).  The employer interviewed eight candidates (including the plaintiff). Despite being the third highest scorer on the exam, plaintiff was not hired for any position.  Rather, his former position was filled by the fourth-highest scorer, and the remaining positions were filled by the lowest ranked applicants (all of whom were more than 10 years younger).  At deposition, the employer’s administrator testified that despite his experience doing the identical job, the plaintiff was not selected because he was not viewed as a “long-term” candidate due to his recent retirement.   This statement, combined with the large difference in ages amongst the candidates, created an inference of discrimination.  Thus, the Court denied the employer’s motion for summary judgment.

This ruling is a reminder that business decisions are subject to scrutiny even though they may seem sensible to the one making the decision. Perhaps a better course of action is to adopt a rule barring rehire within a specified period of time after resignation, discharge, or retirement.

Severe and Pervasive: Pay Attention to Your State’s Sexual Harassment Standard

A Georgia EMT sued her former employer, alleging sexual harassment and retaliation in violation of Title VII. Plaintiff alleged that sexual comments during the four months created a hostile environment. The comments included an owner calling Plaintiff attractive, saying he loved chocolate milk in apparent reference to her in a text that also included images of “tongue” emojis, and asking about her sex life with her boyfriend. Despite these comments, the lawsuit was dismissed and affirmed by the Eleventh Circuit.  D’Marius Allen v. Ambu-Stat LLC.  The Circuit Court concluded that the alleged comments, even if true, did not rise to the level of “severe or pervasive.” Moreover, the Court held that isolated comments, spread over four months, could not be described as frequent.

While this decision could be considered a “win” for employers, it is important to note that under certain recently adopted state laws, the result may be different. For example, the “severe and pervasive” standard has been eliminated (and replaced with a far lower, easier to satisfy standard) in New York. Consequently, had this plaintiff been working in New York, the Court may have reached a different conclusion.

In light of the #MeToo movement, employers should continue to stay informed of changes in the law and train supervisors accordingly.


Ohio Court Reverses Enforcement of Employment Arbitration Agreement

An Ohio appellate court reversed enforcement of an employment arbitration agreement, holding that the agreement was both substantively and procedurally unconscionable because it required the parties to submit to arbitration all claims arising among them, even those unrelated to the employment relationship.  Please click here for a complete analysis by our colleagues.

Employee’s Electronic Acknowledgement of Arbitration Agreement Sufficient

Although the Federal Arbitration Act (“FAA”) places arbitration agreements on the same footing as any other contract and generally precludes state laws banning mandatory arbitration, employers must ensure that their arbitration agreement are enforceable contracts – an issue governed by state law.

In Taylor v. Dolgencorp, LLC, an employer sought to compel arbitration of claims alleging disability and race discrimination. Plaintiff opposed the motion on the grounds that neither she nor the employer had signed the agreement. Instead, in the modern world of electronic communication, the employer utilized a website and unique login credentials as part of its hiring process, during which this worker clicked an electronic acceptance and typed her initials to acknowledge acceptance of the arbitration agreement.

The federal district court evaluated the plaintiff’s arguments under Missouri law, which has adopted the Uniform Electronic Transactions Act. That Act defines an electronic signature as “an electronic sound, symbol or process attached to or logically associated with a record and executed or adopted by a person with the intent to sign the record.” Following that definition, the Court held that the plaintiff’s actions — logging into a website with unique credentials, clicking an acceptance box and typing her initials — were sufficient to bind her to the arbitration agreement. The Court rejected the argument that the employer was required to sign or otherwise execute the agreement because the employer’s conduct was sufficient to show its intention to be bound.

Employers that use arbitration agreements should ensure that the process they use to communicate agreements to employees, and secure the employee’s acceptance of the agreement, results in a valid and provable contract under the laws of each state where the employer operates. Agreements also should define clearly whether the arbitrator or the court will evaluate unconscionability and other defenses to contractual enforcement.

The ADA Does Not Cover the Possibility of Future Disabilities

The Seventh Circuit Court of Appeals recently ruled that the American with Disabilities Act (“ADA”) does not protect an applicant who later may become impaired. In this instance, a worker applied for a position that would have required him to perform “safety-sensitive” tasks. After he was extended a conditional offer of employment, Plaintiff was required to pass a medical evaluation. Defendant, as a matter of course, does not hire applicants for safety-sensitive position if their body mass index (“BMI”) is over 40. Defendant reasoned that applicants who exceed BMI levels are at a substantially higher risk of developing certain conditions that can result in incapacitation on the job. Plaintiff’s BMI was 47.5.

Plaintiff filed suit asserting that the failure to hire him amounted to discrimination under the ADA on the basis of a perceived disability. The employer denied the allegations, arguing that the worker did not have a disability because “obesity” was not a qualifying impairment and, moreover, there is no evidence to suggest that he was regarded as being presently impaired. The District Court found Plaintiff’s allegations of “perceived disability” to be worthy of a trial, but the Seventh Circuit reversed, concluding that the employer did not perceive there was a current perception had an obesity-related impairment at the time of withdrawal of the offer.

This decision adds to the growing body of ADA related case-law and may add to the confusion as to when a perceived disability is protected. Interesting, the Genetic Information Nondiscrimination Act (“GINA”) is not discussed in the Court’s decision as BMI likely does not qualify as genetic information. However, employers should be aware of GINA in all employment decisions.

The Supreme Court Asks DOJ for Input on the Scope of Title VII

Recently, the United States Supreme Court invited the U.S. Solicitor General of the Department of Justice to weigh in on a petition to revive the discrimination case of Peterson v. Linear Controls Inc. David Peterson, a former Linear Controls electrician, asked the Supreme Court to overturn the Fifth Circuit decision that held more difficult working conditions alone were not enough to be covered as an “adverse employment action” under Title VII of the Civil Rights Act of 1964.

In this case, the former employee alleged race discrimination in regard to working conditions, not a discharge or other clearly adverse action. The suit alleges that Black employees were assigned to outdoor tasks in the heat without adequate water breaks, while Caucasian employees were assigned to indoor tasks. In February, the Fifth Circuit determined that an “ultimate employment decision,” which includes “hiring, granting leave, discharging, promoting or compensating,” was required to support a race bias claim under Title VII. Since none had occurred, the Fifth Circuit dismissed the Title VII claim. In doing so, the Fifth Circuit amplified a split among the Circuit Courts over the scope of Title VII, with the Third Circuit applying a similar precedent, but seven other Circuits interpreting more broadly the scope of Title VII. Where such a split exists, uncertainty results and Supreme Court guidance is needed.

Cincinnati and Boston to Ban Discrimination Against Natural Hair

In February 2019, the New York City Commission on Human Rights amended the New York City Human Rights Law to ban discrimination against natural hairstyles as part of the Law’s prohibition against race or color discrimination. This past July, California created the CROWN Act (“Create a Respectful and Open Workplace for Natural Hair” (SB 188)) proposed by Sen. Holly J. Mitchell (D-Calif.). CROWN prohibits policies that discriminate against natural hair and natural hairstyles associated with race. New York State quickly followed when Gov. Andrew Cuomo signed Assembly Bill 7797A, which expanded the definition of “race” in the New York State Human Rights Law to include, “traits historically associated with race, including but not limited to, hair texture and protective hairstyles.”   The New York law also defines “protective hairstyles” to include, but not be limited to, “such hairstyles as braids, locks, and twists.”

Now, Cincinnati and Boston are slated to become the next cities to ban discrimination against natural hair. Cincinnati City Councilman Chris Seelbach is set to propose that natural hair be added to the City’s anti-discrimination policy, making it illegal to ask someone to change their hair style for work. The proposed law would allow the city of Cincinnati to investigate complaints of discrimination and impose a fine of up to $1,000 – $100 per day – until the discriminatory practice is corrected. Similarly, the Boston City Council announced its support for a bill that amends the definition of race to include hair texture and style, so that “targeting a person’s natural hair and hairstyle” will be considered racial discrimination.

Employers should be aware of these proposals across the country that mirror the CROWN Act and should review policies such as, “dress codes and grooming” and “work appropriate appearance” to avoid liability.   These new protections extend already existing bans against discrimination on the basis of national origin, race and color.

Job Descriptions Must Accurately Reflect True Job Duties

A recent case from a federal court highlights the importance of accurate job descriptions. In Wiggins v. City of Montgomery, Plaintiff applied for a promotion to the position of Revenue Examiner on three occasions over an eight-year period, most recently in 2015, and was denied each time. At issue was the job description’s requirement of walking over rough terrain, which Plaintiff could not do because she uses a walker and cannot walk in rough terrain.

Plaintiff filed suit asserting, among other things, disability discrimination for failure to accommodate. In response, the employer explained that Plaintiff was not a “qualified” individual under the Americans with Disabilities Act because she could not perform the essential functions of the position with a reasonable accommodation. The Court, however, found the evidence suggested otherwise. The Court determined that “actually conducting site visits as a Revenue Examiner is not as ‘essential’ as Defendant’s job posting and job description seem to suggest.” Two of the individuals promoted to the position had not, in over 11 months, left the office for and were essentially working as “inside” Revenue Examiners – the accommodation Plaintiff requested. Therefore, the Court concluded Plaintiff could perform the essential functions of the position with a reasonable accommodation and denied Defendant’s motion for summary judgment on Plaintiff’s failure to accommodate claim.

This decision, and the analysis by the Court, emphasizes the importance of maintaining accurate job descriptions and verifying periodically the accuracy of the job description.