Tag Archives: ADA

April 19, 2017

Retroactive Leniency Is Not A Reasonable Accommodation

By Brad Cave

Is an employer required to excuse misconduct that was the result of the employee’s disability? The Tenth Circuit Court of Appeals recently looked at this issue and came to an interesting conclusion.

Janna DeWitt has Type I diabetes and is insulin dependent. Beginning in 1997, DeWitt worked for Southwestern Bell Telephone Company (SW Bell) as a customer service representative in its Wichita, Kansas call center. Recognizing that DeWitt had a disability covered by the Americans with Disabilities Act (ADA), SW Bell permitted her to take breaks as needed to eat or drink in order to raise her blood sugar level. SW Bell also granted DeWitt FMLA leave which she took intermittently for health issues related to her diabetes.

Last Chance Agreement

In 2010, DeWitt made an error by failing to shut down service on a customer’s account after the customer cancelled service. Failure to remove a service plan after cancellation was known as a cramming violation under SW Bell’s Code of Business Conduct and was a terminable offense. DeWitt was suspended following her cramming incident until she could address the issue with her supervisors in what the company called a “Day in Court.” Her Second and Third Line Supervisors decided to place DeWitt on a Last Chance Agreement under which any additional failure to perform satisfactorily could lead to further discipline, up to and including termination.

Terminated For Hanging Up On Customers

Two months after the cramming incident, DeWitt suffered a severe drop in blood sugar at work which she stated caused her to experience disorientation, confusion, and lethargy, making her unable to communicate with anyone. After DeWitt found that she was locked out of her computer, she contacted her First Line Supervisor, Tom Heumann, for assistance. Heumann did not address her locked computer but instead told the Center Support Manager, Beth Kloxin, that  he had been monitoring De Witt’s calls and found that she had hung up on at least two customers. Kloxin responded by saying “I finally got that bitch” and did a little dance.

Later that day, Heumann and Kloxin met with DeWitt for a suspension meeting because of her two customer hang-ups. A union steward also attended the meeting. DeWitt explained that she did not remember taking the dropped calls and that she had been experiencing very low blood sugar levels at the time. Although they reviewed recordings of the dropped calls, DeWitt still did not remember them and asked if they were sure that the calls were hers. Heumann then told DeWitt that she was suspended and that a “Day in Court” would be held at a later date. In response to a request from Kloxin and the union steward, DeWitt provided her blood sugar levels for that afternoon.

About a week later, SW Bell held DeWitt’s “Day in Court.” DeWitt again explained that she did not remember taking the calls due to a severe drop in her blood sugar. Five days later, SW Bell terminated DeWitt for hanging up on two customers in violation of the company’s Code of Business Conduct and her Last Chance Agreement.

ADA and FMLA Claims

DeWitt filed discrimination charges with the Equal Employment Opportunity Commission (EEOC) and after receiving her notice of right to sue, filed a lawsuit against SW Bell in federal court. She alleged that the company failed to accommodate her disability and terminated her because of her disability in violation of the ADA, and retaliated against her for taking FMLA leave. After the district court ruled in favor of SW Bell on all of her claims on summary judgment, DeWitt appealed to the Tenth Circuit Court of Appeals (whose decisions apply to Colorado, Utah, Wyoming, Oklahoma, Kansas, and New Mexico).

Employer Need Not Excuse Or Overlook Misconduct 

DeWitt asserted that SW Bell failed to accommodate her disability by not excusing her dropped calls which she says were caused by her disability. The Court disagreed, stating that the ADA does not require employers to reasonably accommodate an employee’s disability by overlooking past misconduct, even when the misconduct is caused by the disability. Instead, the Court cited the EEOC’s ADA Enforcement Guidance which states that reasonable accommodations are “always prospective.”

The Court found that DeWitt had not requested a reasonable accommodation to address concerns that her diabetes could cause her to drop calls. Using a disability as an “after-the-fact excuse” for workplace misconduct is unreasonable and employers need not ignore or overlook past misconduct. Therefore, because asking for retroactive leniency is not a reasonable ADA accommodation, DeWitt’s accommodation claim failed.

Decision-Maker’s Honest Belief In Termination Reasons

On DeWitt’s ADA termination claim, the Court assumed (without deciding) that DeWitt had established that she was a disabled person under the ADA, and was qualified to perform the essential functions of her job. The Court also accepted that SW Bell had provided a legitimate, non-discriminatory reason for terminating DeWitt, namely that she had hung up on at least two customers while on a Last Chance Agreement. To prevail, DeWitt needed to show that SW Bell’s stated reasons for her termination were pretext for discriminating against her.

DeWitt argued that dropping the calls was not intentional but instead, was a result of her disability – her severely low blood sugar at the time. The Court said that didn’t matter. Instead what mattered was whether the decision-maker, Kimberly Baskett-McEnany, who was DeWitt’s Third Line Supervisor, honestly believed that the hang-ups were intentional and acted on that belief in good faith. Finding no evidence to undercut Baskett-McEnany’s belief, the Court ruled that DeWitt’s ADA discrimination claim failed.

FMLA Retaliation Claim Also Fails

DeWitt also argued that SW Bell terminated her in retaliation for her use of FMLA leave. She offered evidence from a former manager at the call center who stated that employees who used FMLA leave were targeted as employees that should be terminated and that the company would look for other reasons to terminate such employees. DeWitt also pointed to Kloxin’s response to Heumann’s revelation that DeWitt had hung up on customers, saying “I finally got that bitch,” as evidence that SW Bell terminated her for using FMLA leave.

Again, the Court rejected DeWitt’s arguments and her FMLA retaliation claim. The Court stated that the former manager’s comments about the company targeting employees who used FMLA leave was no more than speculation, as that person had no knowledge of and was not involved in the company’s decision to terminate DeWitt. In addition, the Court determined that Kloxin’s subjective beliefs were irrelevant as she was not the person who decided to terminate DeWitt. Finding no evidence to send DeWitt’s claims to a jury, the Court upheld the grant of summary judgment in favor of SW Bell on all claims.

Key Lessons

This case highlights some significant management practices that can help defeat discrimination and retaliation claims. First, hold all employees accountable to your standards of conduct. SW Bell terminated DeWitt for violating its code of conduct, providing the necessary legitimate, non-discriminatory reason for actions. In addition, because DeWitt could not provide evidence that other employees who similarly violated the conduct rules were treated more favorably than she was treated, she was unable to show pretext. Second, if a supervisor has a potentially unlawful animus or bias against an employee, take that person out of the decision-making process. Although Kloxin appeared to express animosity against DeWitt (although it is not clear that her animosity was driven by an unlawful motive), she was not involved in the decision to terminate DeWitt and that distinction drove the Court to reject DeWitt’s claims. Finally, remember that a reasonable accommodation applies prospectively. You need not excuse poor performance or misconduct for which no accommodation was requested. That said, when dealing with an employee with a known disability, weigh all employment decisions very carefully and make sure your actions are well supported by your policies and past practices.

January 10, 2017

Tips For Accommodating Depression, PTSD, and Other Employee Mental Illnesses

6a013486823d73970c01b8d1dc5d4a970c-120wiBy Mark Wiletsky

An estimated 16.1 million adults in the United States had at least one major depressive episode in 2015, according to the National Institute of Mental Health. This number represents 6.7% of all adults age 18 or older in the U.S. About 7 or 8 out of every 100 people will have posttraumatic stress disorder (PTSD) at some point in their lives, says the U.S. Department of Veteran Affairs, National Center for PTSD. That number goes up to about 11 to 20 out of every 100 for veterans who served in Operations Iraqi Freedom and Enduring Freedom.

As these number show, depression, PTSD, and other mental illnesses are relatively prevalent in our society. At some point, you will be faced with an employee who suffers from a mental condition and you need to know your obligations related to potential accommodations for such employees. The Equal Employment Opportunity Commission (EEOC) recently released information to help explain workplace rights for employees with mental health conditions under the Americans With Disabilities Act (ADA). Incorporating the EEOC’s guidance, here are our top practical tips for accommodating individuals with mental impairments.

Tip #1 – Don’t Get Hung Up On Disability Definition

Following the 2008 enactment of the Americans With Disabilities Amendments Act (ADAAA), it is easier for an individual seeking protection under the ADA to establish that he or she has a disability within the meaning of the statute. In fact, the ADAAA states that the definition of disability should be interpreted in favor of broad coverage of individuals.

Mental conditions, such as depression, PTSD, bipolar disorder, schizophrenia, and obsessive compulsive disorder (OCD), need not be permanent or severe to be deemed a disability. Instead, as long as the condition substantially limits a major limit activity, such as the individual’s ability to concentrate, interact with others, communicate, sleep, eat, learn, think, or regulate emotions, it will be considered a disability. Even if the employee’s symptoms are sporadic or episodic, if they limit a major life activity when active, the condition will likely qualify. This means that in most cases, you should focus on whether you can accommodate the individual, rather than whether the individual meets the legal definition of having a “disability.”

Tip #2 – Accommodate “Known” Mental Impairments

You have an obligation to reasonably accommodate “known” impairments for otherwise qualified individuals. Generally, this means that an applicant or employee must ask for a reasonable accommodation. But remember that the disabled individual need not use any special words to trigger your accommodation obligation. In other words, the person does not need to specifically say he or she needs a reasonable accommodation or mention the ADA. The individual instead may simply say that they need a change at work, such as needing to arrive late on certain days in order to attend therapy sessions, and your accommodation responsibility begins.

Generally, however, you are not obligated to provide an accommodation when one has not been requested or no work-related change has been mentioned. But, if you have knowledge of an employee’s mental condition (perhaps from prior conversations or medical documentation) and that “known” disability impairs the employee’s ability to know of, or effectively communicate a need for, an accommodation that is obvious, you should engage in a discussion with the employee about potential accommodations.

Tip #3 – Ask For Documentation

When an employee requests a reasonable accommodation due to a disabling condition, ask the employee to put the request in writing, describing the condition and how it affects his or her work. You may also request a letter from the employee’s health care provider documenting the mental condition and that the employee needs a work accommodation because of it.  However, even if the employee declines to provide a request for accommodation in writing, you still have an obligation to engage in the interactive process and potentially accommodate that individual.

Be careful not to discriminate in your requests for documentation. It is best to have a uniform practice of requesting this written information for all accommodation requests, for both physical and mental disabilities, so that you cannot be charged with singling out a particular employee based on a mental illness.

Tip #4 – Keep An Open Mind About Accommodations

Don’t jump to the conclusion that an accommodation will necessarily be burdensome or costly. Some reasonable accommodations for mental disabilities may be relatively benign. Examples may include allowing the employee to wear headphones to drown out excessive noise, writing down work instructions rather than verbal instructions, changing shifts or start/end times to allow for doctor or therapy appointments, or working in a private room.

Of course, if an accommodation will result in significant expense or disruption to your business, you may be able to decline it due to undue hardship. But don’t assume that upon first request. Instead, engage in an interactive process with the employee, including input from his or her health care provider, to consider possible accommodations. A brainstorming session can often produce a variety of workable solutions, and you can choose the one that best suits your business, as long as it permits the employee to perform his or her job.  Be sure to confirm those discussions in writing with the employee to avoid disputes down the road about what was discussed and/or agreed upon. Read more >>

April 19, 2016

Employee Reveals Medical Condition At Disciplinary Meeting – Now What?

Collis_SBy Steve Collis

You’re all set to fire an underperforming employee. You sit down for the disciplinary meeting and just as you start discussing her performance problems, she reveals she has back and neck pain due to work-related stress. What do you do? Here are practical steps you can take to handle this all-to-often workplace scenario.

Setting the Stage

Let’s look at the facts from a Tenth Circuit Court of Appeals case that dealt with this situation. Susan Bennett had worked as a Fiber Optic Tech for Paetec Communications, Inc. (Paetec) for twelve years. She was responsible for locating, repairing, testing and maintaining fiber optic cable in a service area covering parts of Oklahoma and Arkansas.

After Paetec was acquired by another company, Windstream Communications, Inc. (Windstream), Todd Moore became Bennett’s supervisor. Moore instituted a new policy requiring all technicians to check in at an assigned office each morning at 8 a.m. to allow for cross-training and to pick up company vehicles stored on the secured company premises.

Bennett was assigned to report to the Tulsa office each morning which required her to commute a total of almost four hours each day. She often arrived at the Tulsa office more than two hours late, or left several hours early to commute home. On a number of occasions, she failed to report to the office at all. Her time and attendance issues resulted in her being unable to complete a cross-training program that other technicians received.

A month or so after instituting the check-in policy, Moore and the company’s human resources specialist provided Bennett with a “final coaching” session which was the first step in the company’s progressive discipline policy. That same day, Bennett called to report that she was experiencing chest and shoulder pain due to work-related stress and had a doctor’s appointment the next day. The company directed Bennett to complete a workers’ compensation claim. She did and after she failed to return from her leave of absence, the company deemed her to have abandoned her job. She sued her employer, alleging her termination was due to gender and age discrimination. Bennett v. Windstream Comm., Inc., 792 F.3d 1261 (10th Cir. 2015).

Practical Steps To Avoid Liability

Disciplinary meetings do not always go as planned. As in Windstream’s case, employees sometimes disclose new information that raises a legal concern. When faced with an employee’s previously unknown medical condition, a new complaint about workplace harassment, or some other new issue, you should consider the following practical steps to help reduce the risk of liability for your organization.

Step #1 – Weigh Severity of Misconduct Versus Risk of Potential Liability

If an employee has engaged in severe misconduct, such as workplace violence, it may still be in your organization’s best interests to go forward with imposing the planned discipline or termination. As long as you are treating this person the same as any other employee who has engaged in this sort of severe misconduct, the risk of liability for a discrimination or failure to accommodate claim is likely low. In such cases, ensure that you have confirmed the facts supporting your discipline/termination decision and that they are properly documented before taking action against the employee.

For less severe infractions, such as attendance issues or failing to meet performance goals, however, moving forward with the planned discipline may be risky in light of the new issue(s) raised by the employee. You likely need more information about the person’s medical condition or newly asserted complaint before you can make an informed decision about your next steps.

In addition, you need to know whether the employee’s supervisor or anyone else in a decision-making capability had prior knowledge of the employee’s asserted medical condition or complaint. In these circumstances, your best practice is to inform the employee of his or her performance problems or misconduct at the meeting and explain the consequences of such conduct, but postpone imposing the discipline until you have had an opportunity to confirm the facts related to new information. If appropriate, you can place the employee on a paid administrative leave while you investigate the new issue.

Step #2: Have Written Policies and Follow Them

Good employment policies will provide you with a road map for how to handle most employee concerns. For example, if the employee asserts that she has been sexually harassed by her supervisor, follow your harassment policy and initiate an internal workplace investigation to determine whether harassment is indeed occurring at your facility. If so, take appropriate steps to remedy it. In the case of a newly revealed medical condition, determine whether it may qualify as a serious health condition under the Family and Medical Leave Act (FMLA) and then follow your FMLA policy, providing necessary notices and forms. As in Bennett’s case, if the employee alleges that the medical condition is work-related, handle it as a workers’ compensation claim and follow your workers’ comp procedures.

Step #3 – Provide Leave and Benefits to Which The Employee is Entitled

Once the employee has informed you of a medical condition, disability or other concern, your best bet is to provide them with the leave, reasonable accommodation or other benefits to which the employee is entitled. As frustrating as it may be that the employee waited until a disciplinary meeting to inform you of his or her condition, you now have knowledge of that information and you can’t put the genie back in the bottle. Sure, you can try to defend any potential claims by proving that you didn’t have knowledge of the condition when the actual discipline decision was made, but that sort of defense is fact specific and will be difficult to get resolved early in the case. If you want to avoid potential liability, it is best to offer any leave and benefits for which the employee is eligible.

Step #4 – Be Patient

It’s tough to back off on your planned discipline and “be nice” to a poor performing employee while he or she is out on leave or is getting medical treatment. It’s especially difficult in cases where you suspect that the employee may be manipulating the laws in order to avoid getting fired or being placed on a performance improvement plan. But be patient.

Let the workers’ compensation claim or FMLA leave run its course. At that point, the employee either comes back to work and is expected to perform up to your standards, or is unable to return to work. If the employee’s condition does not allow for a return to work, consider whether the employee’s condition is a disability covered by the Americans with Disabilities Act (ADA). If so, engage in an interactive process to determine if a reasonable accommodation would permit the individual to perform the essential functions of his or her job. A reasonable accommodation may include providing additional time off to complete medical treatments or recover, but you are not required to provide an indefinite period of leave. If you are patient and provide all required benefits until they are exhausted, you often are presented with clear, low-risk options for resolving the employment situation.

Step #5 – With Proper Documentation, Proceed With Discipline/Termination

An employee who engages in misconduct or performs poorly does not become “untouchable” simply by asserting a medical condition or harassment complaint. You may still hold them to your performance and conduct standards. First, be sure you have communicated your standards to the employee through an employee handbook, training and/or performance reviews. Second, ensure that the employee’s infractions or poor performance issues are properly documented in an objective, fact-based manner. And third, be certain to treat this employee the same as any other employee who has engaged in similar misconduct or poor performance. If you’ve met these criteria, you will minimize the risk that the discipline or termination you impose will result in liability.

Conclusion

Taking action to discipline or fire an employee is rarely risk-free. Taking such action after an employee reveals a medical condition, disability or other concern raises the stakes even higher. But you can minimize the risk of a lawsuit if you stay calm, follow your policies, and provide any rights and benefits to which the employee is entitled. Take each new development step-by-step and you will reduce the chance that you will need to defend your decisions in court.

Click here to print/email/pdf this article.

May 28, 2015

ADA Defense: Disabled Individual Poses Direct Threat to Health or Safety

Collis_SBy Steven T. Collis 

You know you can’t discriminate against qualified individuals with a disability. But what if you are convinced that the person’s disability would create a significant risk of harm to that person or others if allowed to perform the intended job? The “direct threat” defense may help you avoid liability for a disability discrimination claim under the Americans with Disabilities Act (ADA).  

Direct Threat Defense Defined 

An employer may reject a disabled candidate or otherwise deny a job or benefits to an individual with a disability on grounds that the individual poses a direct threat to the health or safety of either that individual or others in the workplace. A direct threat is defined to mean “a significant risk of substantial harm to the health or safety of the individual or others that cannot be eliminated or reduced by reasonable accommodation.” 

Making that determination is not easy. It must be made based on an individualized assessment of the employee’s ability to safely perform the essential functions of the job. You need to obtain information from a physician or other medical judgment that relies on the most current medical knowledge or the best available objective evidence. Factors used to determine whether an individual would pose a direct threat in the workplace include: 

  • the duration of the risk;
  • the nature and severity of the potential harm;
  • the likelihood that the potential harm will occur; and
  • the imminence of the potential harm. 

Employer’s Reasonable Belief 

Some of the direct threat factors are not easily quantified. For example, it may be difficult to determine the likelihood that a potential harm will occur in certain circumstances or work settings. Or showing that the potential harm is imminent could prove challenging. 

The good news is that this analysis, while difficult, need only be based on the employer’s reasonable determination.  As explained recently by the Tenth Circuit Court of Appeals (whose decisions apply to Colorado employers), an employer making the direct threat defense need not prove that the person actually posed a significant risk of substantial harm to the health or safety of that person or others. Instead, the standard is that the employer reasonably believed that the job would entail a direct threat.  EEOC v. Beverage Distributors Co., LLC, No. 14-1012 (10th Cir. March 16, 2015). 

In this recently decided case, Michael Sungaila, an employee who was legally blind, was selected for a job in his company’s warehouse after his previous position was eliminated. His warehouse job was conditioned, however, on passing a physical. The doctor who performed Sungaila’s physical found that he would require workplace accommodations in order to lessen the risks from his impaired vision. The company concluded that it could not reasonably accommodate his condition and rescinded his job offer. Sungaila filed a discrimination claim with the EEOC, which then sued the employer on his behalf under the ADA. 

At trial, the company asserted a direct threat defense. The jury decided that Sungaila was not a direct threat and found the company liable for disability discrimination. On appeal, the Tenth Circuit overturned the verdict because the jury instructions had overstated the company’s burden of proof on the direct threat defense. Because the instructions and jury form had incorrectly stated that the company had to prove that Sungaila posed a direct threat, rather than having to prove only that it reasonably believed that Sungaila posed a direct threat, the Court reversed. 

Reasonable Accommodation Analysis Still Applies 

Even after evaluating the direct threat factors listed above, you still must determine whether the potential risk of harm may be eliminated or reduced by making a reasonable workplace accommodation. This means you need to go through the required interactive process where you discuss with the applicant/employee what accommodations may allow the individual to safely perform the job. You may need to seek input from medical advisors, as necessary. Only if you cannot identify a reasonable accommodation that (1) does not impose an undue hardship on your company and (2) negates or reduces the risks, should you reject the candidate. 

Good Documentation is Necessary 

With so many factors to be analyzed and medical opinions to be obtained, it is essential that you have good documentation to support your determinations at each step of the process. Proper evidence will be the key in helping you avoid liability based on a direct threat defense by showing that you had a reasonable belief in the direct threat that led to your employment decision.

Click here to print/email/pdf this article.

April 14, 2015

EEOC Fails to Show Telecommuting Would Be A Reasonable Accommodation

Wiletsky_MBy Mark Wiletsky 

The Americans With Disabilities Act (ADA) “does not endow all disabled persons with a job—or job schedule—of their choosing,” according to the majority of judges on the full Sixth Circuit Court of Appeals. In an 8 to 5 decision, the Sixth Circuit Court ruled en banc that Ford Motor Company did not violate the ADA when it denied an employee’s request to telecommute up to four days per week in order to accommodate her irritable bowel syndrome. EEOC v. Ford Motor Co., No. 12-2484 (6th Cir. Apr. 10, 2015). 

“Good, Old-Fashioned Interpersonal Skills” Made In-Person Attendance Essential 

The Equal Employment Opportunity Commission (EEOC) argued that a resale buyer for Ford, Jane Harris, who had irritable bowel syndrome that made it difficult for her to be far from a restroom, should be allowed to work from home up to four days per week. The agency cited Ford’s telecommuting policy that allowed other workers, including some resale buyers, to telecommute as evidence that Harris’ telecommuting request was a reasonable accommodation under the ADA. 

The Court disagreed. It ruled that regular and predictable on-site attendance was an essential function of the resale-buyer position at Ford. Resale buyers needed to purchase raw steel from steel suppliers and then resell it to parts manufacturers to make parts used in Ford vehicles. Although some interactions could be done by email and telephone, the Court found that many required “good, old-fashioned interpersonal skills,” and resale buyers needed to be able to meet face to face with suppliers, parts manufacturers and Ford employees during core business hours. 

Importantly, the Court reiterated the general rule is that regular attendance at work is essential to most jobs, especially interactive ones. It pointed to past court opinions as well as to EEOC regulations that support the premise that regular and predictable on-site attendance is an essential job function. The Court even relied on that “sometimes-forgotten guide” – common sense, stating that non-lawyers (as well as judges in other appellate circuits) recognize that regular in-person attendance is an essential function, and a prerequisite to other essential functions, of most jobs. 

Other Buyers Telecommuted on a Predictable, Limited Basis 

But what about the fact that Ford had a telecommuting policy that allowed other employees, including resale buyers like Harris, to work from home? Wouldn’t that make telecommuting a reasonable accommodation for Harris? 

The Court said no, because she proposed to telecommute four days per week on a schedule of her choosing. The other resale buyers who telecommuted did so only one established day per week and they agreed in advance that they would come into work that day, if needed. They were also able to perform well and maintain productivity. Harris, on the other hand, wanted to be able to pick and choose which days she would telecommute, up to four days per week, without agreeing to come in those days, if necessary. The Court found that none of these other employees’ more predictable and more limited telecommuting schedules removed regular on-site attendance from the resale buyer’s job. 

As a result, the Court ruled that Harris’ proposed telecommuting accommodation unreasonable.

In addition, Ford had allowed Harris to telecommute on an as-needed basis on three separate occasions and her performance suffered. Other attempts to improve Harris’ attendance also failed. The Court found that Harris could not perform the essential functions of her job and was unable to establish regular and consistent work hours. Therefore, it ruled that she was not a “qualified individual” under the ADA. 

Technology Did Not Carry the Day 

The EEOC argued that advances in technology make on-site attendance less essential. The Court disagreed in this case, stating that there was no evidence presented that specific technology made personal interactions unnecessary for resale buyers. 

No Blind Deference to Employer’s Judgment 

The Court made a point of stating that its opinion did not open the door for courts to blindly accept as essential whatever an employer says is essential for a particular job. It emphasized that an employer’s words, policies and practices were all important in deciding whether a particular task or requirement is an essential job function. 

In Ford’s case, the evidence supported Ford’s judgment that regular and predictable in-person attendance was essential for resale buyers. The Court affirmed the district court’s grant of summary judgment in favor of Ford. 

No Retaliation For Termination 

The Court also ruled that Ford did not retaliate against Harris when it fired her for poor performance just four months after she had filed a charge of discrimination with the EEOC. Key was Ford’s good documentation of Harris’ performance and interpersonal issues. She had been ranked in the bottom 10% of her peer group before she filed her charge. Documentation showed that she failed to update spreadsheets, complete her paperwork, schedule training sessions, price items correctly and finish her work on time. Despite the closeness in time of the firing to her charge filing, the Court ruled that the EEOC failed to present evidence from which a reasonable jury could find that the real reason that Ford terminated Harris was unlawful retaliation instead of poor performance. 

Dissent: Either Physical Presence is Not Essential or Telecommuting is A Reasonable Accommodation 

Five judges on the Sixth Circuit dissented, believing that the EEOC had presented enough evidence to send the EEOC’s claims to a jury. Specifically, the dissent stated that the evidence was sufficient to show that there remained genuine disputes over whether Harris was a qualified individual, either because in-person attendance was not an essential function of her job, or because telecommuting would be a reasonable accommodation for her. It pointed to Ford’s telecommuting policy which allowed for “one to four days” of telework each week. It noted that Harris proposed that she be able to work from home up to four days each week, as was arguably allowed under the policy, not that she be permitted to telecommute four days each and every week. 

The dissent also asserted that Harris’ past attendance issues that were a result of her disability should not be used against her in deciding whether a telecommuting arrangement during core business hours would be a reasonable accommodation under the ADA. Moreover, the dissent found that Ford should have engaged in a more interactive process to clarify Harris’ telecommuting accommodation request. Finally, the dissent believed that there was a genuine dispute over whether Ford retaliated against Harris for filing her discrimination charge. 

Lessons for Employers Facing ADA Telecommuting Accommodation Requests 

The majority’s decision finding that regular and predictable in-person attendance is an essential function of most jobs, especially interactive ones, is favorable for employers. But it does not mean that telecommuting can never be a reasonable accommodation. In fact, the dissent in this case demonstrates that telecommuting requests for disabled employees is likely to continue to be an issue with which employers will grapple in coming years.  

If face-to-face interactions and in-person attendance at meetings or other work-related functions is essential for certain jobs at your workplace, be certain to include those tasks in your job descriptions. If you generally allow telecommuting, be sure to have a written policy and apply it consistently. If presented with a request to telecommute in order to accommodate a disability, engage in an interactive process to discuss whether telecommuting would be appropriate for that particular position and employee, whether it would constitute an undue hardship for your organization and if alternative accommodations would allow the employee to perform his or her essential functions. And by all means, make sure you have concrete documentation of an employee’s poor performance or policy infractions before taking adverse action against anyone who has filed a discrimination charge.

Click here to print/email/pdf this article.

March 26, 2015

Supreme Court: Pregnant Worker With Lifting Restrictions May Continue Lawsuit

Biggs_JBy Jude Biggs 

In a divided decision, on March 25, 2015, the U.S. Supreme Court released a long-awaited ruling involving a pregnant worker’s claim under the Pregnancy Discrimination Act (PDA). In its ruling, the Court held that the worker could proceed with her lawsuit, because disputes remain as to whether her employer treated more favorably at least some non-pregnant employees whose situation could not reasonably be distinguished from hers.

The majority of the Court forcefully rejected the 2014 guidance of the Equal Employment Opportunity Commission (EEOC) concerning the application of Title VII and the Americans with Disabilities Act (ADA) to the PDA, as it fell short on a number of fronts needed to “give it power to persuade.” Without ruling for either party, the Court adopted a new standard for courts to use when deciding PDA cases brought under a disparate treatment theory. Young v. UPS, 575 U.S. ___ (2015).  

Despite the Court’s guidance, employers still will face many questions on what accommodations will be required in the future. The standards for “disparate treatment” and “disparate impact” cases may be more confusing in the future for employers who need to make decisions regarding whether and how to accommodate pregnant employees. As a result, employers are wise to respond carefully to accommodation requests by pregnant workers. Employers should review any policies that might have a disproportionate effect on pregnant workers, such as rules limiting job accommodations. In addition, employers should be careful to review restrictions on use of sick pay/sick time, leave eligibility outside of FMLA, lifting restrictions, and light duty assignments to determine: (1) if they disparately affect pregnant employees while accommodating others; and (2) what “strong” business rationale you can offer to defend the distinction.

For additional analysis of the Court's opinion and what it means for employers, please see our full article here.

Click here to print/email/pdf this article.

September 23, 2014

Cheyenne Jury Awards $1,481,000+ On FMLA Retaliation Claim

Cave_BBy Brad Cave

The series of large verdicts for Wyoming employees seems to be marching forward.  The most recent example occurred recently when a Cheyenne jury awarded over $740,000 to a trona miner after deciding that he was fired because he took FMLA leave.  With liquidated damages available in an FMLA case, the Wyoming court entered judgment in an amount in excess of $1.48 million in favor of the employee. This case stands as yet another example about the importance of supervisor training and careful, well-documented and consistent decision making. 

Long Term Employee With A Pain in the Neck.  We first told you about this case in March of this year, when the Tenth Circuit Court of Appeals sent the case back to Wyoming for trial after reversing the trial court’s dismissal of the case.  (Safety Violation or Too Much Intermittent FMLA Leave?). Here is a short recap of the facts. 

Steven Smothers had been employed by Solvay Chemical for 18 years when his employment was terminated.  Smothers had experienced back problems since 1994 resulting in three surgeries on his neck and other medical procedures, and an extended course of medical treatment by specialists.  Over the years, Smothers took intermittent FMLA leave for his medical appointments and when he was unable to work due to the pain.  The amount of FMLA leave he took did not go unnoticed.  He was pressured by the production superintendent to change shifts to lessen the additional overtime cost caused by his absences, but such a change would have cost him about $7,000 per year in shift differential pay.   Solvay also gave Smothers a negative rating on his performance evaluation because of his absences, and he was told that he was rejected for a promotion because of the leave. 

Smothers’ Safety Rule Violation.    In August 2008, Smothers and his coworkers were performing an acid wash, which Solvay did every six months to clean residual trona out of the equipment.   When Smothers noticed that a damaged spool piece had caused a leak, he began to fix it without obtaining a line break permit which was required by Solvay safety rules.  Smothers and a co-worker, Mahaffey, argued about whether the permit was necessary, and after Smothers removed the spool piece without first getting the permit, Mahaffey immediately reported Smothers’ actions to a supervisor. 

Solvay terminated Smothers’ employment on August 28, 2008, based on a joint decision of six Solvay managers.   Five of the six decision makers testified that the argument between Smothers and Mahaffey weighed heavily in the group’s decision to fire Smothers. Although the trial court originally dismissed the case, the Tenth Circuit believed that Smothers had presented enough evidence to create doubt about the real reasons for Smothers’ termination.   So, the case was sent back to the trial court for trial. 

What’s the Real Reason for Smothers’ termination? Like all retaliation cases, the jury in this trial was asked to decide whether Smothers was fired for a safety rule violation, as the employer contended, or because his employer retaliated against him for using intermittent FMLA leave or discriminated against him because of his disability.   We don’t have a transcript of the trial, so we cannot tell you what evidence the jury heard or what facts persuaded the jury.  We do know that the Tenth Circuit reasoned that the jury could disbelieve Solvay’s reasons because: 

  • Supervisors criticized Smothers informally and in his performance evaluation for taking FMLA-protected leave, and rejected him for a promotion because of his time off;
  • Solvay did not give Smothers an opportunity to describe or explain his side of the argument with Mahaffey, even though the argument was a central reason for the decision to terminate Smothers’ employment;
  • Other Solvay employees who committed safety rule violations were not terminated. 

And the Jury Returns.The jury found in favor of Smothers on his FMLA claim, and awarded Smothers the amount of $740,535 for his lost wages and benefits from the date of his termination, August 27, 2008, through the date of trial.  But the potential damages don’t stop with the lost wages.  Under the FMLA, the successful employee may be entitled to an additional amount equivalent to the jury’s award for liquidated damages – in other words, a penalty against the employer for the violation.  As a result, the court has entered judgment against Solvay in the total amount of $1,481,070, twice the amount of the jury’s verdict, plus interest since the date of termination.  The trial court declined to award Smothers any future lost wages.  However, Smothers is entitled to an additional judgment for his reasonable attorneys’ fees and costs, which could add hundreds of thousands of dollars to the total. 

Bottom Line.  Regardless of the final number after adding prejudgment interest and attorneys’ fees, this is one of the largest judgments ever entered against a Wyoming employer.  We cannot speculate about what evidence led the jury to its verdict, but we can share some lessons, with the benefit of twenty-twenty hindsight, that will help any employer avoid this kind of result: 

  • Managers and supervisors must be trained and committed to the fact that taking FMLA leave is protected by federal law, and must not be the reason for formal criticism, denied opportunities, or informal complaining.  FMLA-protected leave cannot be held against an employee for any reason whatsoever.  Any comment or suggestion to the contrary can be used as evidence of pretext.
  • Investigations must be thorough and even-handed.  While we don’t know all the evidence in this case, the jury may have heard that Solvay spent much more time asking Mahaffey about the argument with Smothers, while never asking Smothers for his side of the argument.  Everybody should get the same opportunity to tell their side of the story.   An inadequate investigation can be used as evidence of pretext.
  • Employees must be treated consistently.  Smothers had evidence that other Solvay employees intentionally violated safety rules without being terminated.  Employers need to mete out comparable discipline for comparable violations, or have a compelling reason why an employee gets tougher punishment.
  • Employers must respect long years of service.  Of course, keeping a job for eighteen years does nothing to technically change the legal relationship or create any new rights or protection for the employee.  But, after that length of time with a good performance record, it becomes difficult for a jury to believe that termination is an appropriate response for one incident. 

Wyoming juries have delivered substantial employee verdicts over the last few years.  Employers should pay attention. 

Click here to print/email/pdf this article.

June 2, 2014

Disabled Employee Not Entitled to Additional Leave as Reasonable Accommodation

Biggs_JBy Jude Biggs 

After Kansas State University denied her request to extend a leave of absence for longer than six months, assistant professor Grace Hwang, who suffers from cancer, filed suit against the University alleging disability discrimination and retaliation under the Rehabilitation Act.  The Tenth Circuit Court of Appeals ruled that the University had not violated the Rehabilitation Act because Ms. Hwang could not show that she was able to perform the essential functions of her job.   In addition, the Tenth Circuit held that requiring the University to extend the six-month’s leave was not a reasonable accommodation.  Hwang v. Kansas State Univ., No. 13-2070 (10th Cir. May 29, 2014). 

Policy Provided Six-Month’s Paid Leave of Absence 

Ms. Hwang was set to teach classes at Kansas State University under a one-year contract that covered all three academic terms — fall, spring and summer.  Before the fall term, Ms. Hwang was diagnosed with cancer. She asked for a leave of absence to seek medical treatment.  The University granted her a paid six-month leave under its regular policy which capped the length of a leave at six months.  

As the six-month leave was coming to an end, Ms. Hwang’s doctor advised her to seek more time off of work.  She asked the University to extend her leave through the end of the spring semester, intending to return before the summer term.  The University refused to extend her leave but instead arranged for Ms. Hwang to receive long-term disability benefits, effectively ending her employment with the University. 

Ms. Hwang sued the University in federal court alleging that the University’s denial of her request for extended leave constituted disability discrimination under the Rehabilitation Act.  The Rehabilitation Act prohibits disability discrimination by entities that receive federal funds, such as Kansas State.  29 U.S.C. § 794(a).  The federal district court dismissed her lawsuit on a motion to dismiss (before any discovery was done), and Ms. Hwang appealed to the Tenth Circuit Court of Appeals, which covers the states of Colorado, Utah, Wyoming, Kansas, Oklahoma and New Mexico. 

Extended Leave Not A Reasonable Accommodation Under Rehabilitation Act  

The University did not dispute that Ms. Hwang was a capable teacher and that her cancer rendered her disabled as defined by the Rehabilitation Act.  The central issue in the appeal was whether the University was required to ignore the six-month time limit in its leave policy to extend Ms. Hwang’s leave of absence beyond six months. The Court said no.  Because Ms. Hwang wasn’t able to work for an extended period of time, she was not capable of performing the essential functions of her job.  In addition, requiring the University to keep her job open for that extended period of time did not qualify as a reasonable accommodation.  The Court wrote: “[a]fter all, reasonable accommodations – typically things like adding ramps or allowing more flexible working hours – are all about enabling employees to work, not to not work.” 

The Court noted that a “brief absence from work” for medical care may be required as a reasonable accommodation, as it likely allows the employee to continue to perform the essential functions of the job.  Determining how long employers must provide for leave as a reasonable accommodation depends on factors such as the duties essential to the job in question, the nature and length of the leave sought and the impact of the leave on co-workers.  That said, the Court stated that it would be difficult to find a six-month leave of absence in which the employee performs no work (e.g., no part-time hours or work from home) reasonable in any job in the national economy today.  Ms. Hwang’s terrible problem, in the Court’s view, was one other forms of social security aim to address.  In addition, the Court noted that the aim of the Rehabilitation Act is to prevent employers from denying reasonable accommodations that would allow disabled employees to work, not to turn employers into a “safety net” for those who cannot work. 

“Inflexible” Six-Month Leave Policy Not Inherently Discriminatory 

Ms. Hwang asserted that the University’s “inflexible” sick leave policy that capped the maximum length of sick leave at six months violated the Act.  She cited the EEOC’s guidance manual which states that if a disabled employee needs additional unpaid leave as a reasonable accommodation, the employer must modify its “no-fault” leave policy to provide the additional leave, unless the employer can show that there is another effective accommodation that would allow the individual to perform the essential functions of her job, or that granting additional leave would cause the employer an undue hardship.  The Court, however, pointed to another section of the EEOC’s guidance manual to counter Ms. Hwang’s argument, as the EEOC manual states “ . . . six months is beyond a reasonable amount of time.”  In fact, the Court stated that an “inflexible” leave policy can actually help protect the rights of disabled employees rather than discriminate against them because such a policy does not permit individual requests for leave to be singled out for discriminatory treatment. 

Not all leave policies will past muster, however.  The Court stated that policies that provide an unreasonably short sick leave period may not provide enough accommodation for a disabled employee who would be capable of performing his or her job with just a bit more time off.  Alternatively, policies that are applied inconsistently, such as where some employees are allowed more time off and others are held to a strict time limit, could be discriminatory.  In this case, however, the Court found that Ms. Hwang did not allege any facts to support a claim that she was treated differently than other similarly situated employees. 

Retaliation Claim Fails As Well 

Ms. Hwang also asserted that she was unlawfully retaliated against for reporting disability discrimination.  In particular, she based her claims on two theories : (1) the University failed to explain her COBRA health benefits before or immediately after her termination; and (2) she wasn’t hired for two other positions at the University that she applied for after losing her teaching job.  The Court easily dispensed with both theories. 

First, COBRA allows thirty days for an employer to provide separating employees with a COBRA notice.  Consequently, the University was not required to provide Ms. Hwang with notice of her COBRA benefits before or immediately after her termination of employment.  Second, although Ms. Hwang alleged that she was not hired for two other University positions for which she applied, she failed to allege any facts suggesting that the University’s decision not to hire her was because she had engaged in legally protected opposition to discrimination.  She not only failed to provide facts showing that she was qualified for the two jobs, but she also failed to offer facts suggesting that the University officials who decided not to hire her knew about her disability and her complaint about disability discrimination.  Without such allegations, the Court ruled that Ms. Hwang’s retaliation claim failed. 

ADA Application 

Although this case alleged a violation of the Rehabilitation Act, courts typically analyze such claims similarly to those alleging a violation of the Americans With Disabilities Act (ADA).  Consequently, this case may prove helpful to employers defending ADA claims where the employer denies an employee’s request for an extended leave of absence.  Employers should heed the Court’s warning about leave policies that may be discriminatory if they provide an unreasonably short leave or are inconsistently applied.  However, lengthy leaves of six months or more, or leaves of an unlimited duration in which the disabled employee provides no work, will likely not be considered a reasonable accommodation.

Click here to print/email/pdf this article.

March 10, 2014

Safety Violation Or Too Much Intermittent FMLA Leave? Tenth Circuit Says Jury Must Decide Wyoming Employee’s FMLA and ADA Case

By Brad Cave 

Did Solvay Chemicals fire long-time employee Steven Smothers because of a first-time safety violation or because the company was tired of his frequent absences due to an ongoing medical disability?  The Tenth Circuit Court of Appeals recently ruled that Smothers provided sufficient evidence to suggest that Solvay’s stated reason for his termination was pretextual, allowing his claims for unlawful retaliation under the Family and Medical Leave Act (FMLA) and discrimination under the Americans with Disabilities Act (ADA) to proceed.  Smothers v. Solvay Chem., Inc., No. 12-8013 (Jan. 21, 2014).  The Court affirmed the grant of summary judgment on his state law claim for breach of an implied employment contract. 

Medical Treatments and Severe Pain Lead to Frequent FMLA-Protected Absences 

For eighteen years, Smothers worked as a surface maintenance mechanic in Solvay’s trona mine in Sweetwater County, Wyoming. The company considered him to be an excellent mechanic who did great work and got along with everyone.  In 1994, Smothers injured his neck and developed degenerative disc disease in his spine.  Over the next five years, Smothers had three surgeries to his neck as well as numerous other medical procedures.  Despite treatment by a specialist, Smothers continued to have severe ongoing neck pain, severe migraine headaches and lower back problems.  At times, Smothers was unable to work without pain treatments and he often was able to sleep only a few hours each night due to the pain. 

Smothers asked for and was granted FMLA leave for intermittent absences caused by his condition.  Managers and co-workers began to complain about his absenteeism, especially because he worked on the graveyard shift where there were fewer workers to absorb his absences resulting in increased overtime costs.  Solvay’s production superintendent Melvin Wallendorf pressured Smothers to change to the day shift, but Smothers refused as the shift change would have cost him about $7,000 a year.  Solvay’s human resources department advised Wallendorf that urging Smothers to switch shifts would violate the FMLA so Wallendorf stopped pressuring Smothers but did not stop complaining about his absences. 

At one point, Wallendorf and Rick Wehrle, Smothers’ direct supervisor, gave Smothers a poor performance rating on his evaluation due to his absenteeism.  In 2005 or 2006, Smothers applied for a promotion but was told that he was rejected because of his absences. 

Safety Issue Explodes into Argument 

In 2008, the graveyard crew conducted a routine maintenance acid wash to remove build up in its equipment.  After a line ruptured, Smothers saw that a damaged “spool piece” had caused the problem and prepared to remove it.  Another mechanic, Dan Mahaffey, suggested that Smothers wait for a line break permit, which is a form that certifies that employees have completed a checklist of precautions before a line can be safely disconnected.  Smothers said that a permit wasn’t required because the line was already broken.  Mahaffey and Smothers then argued.  Mahaffey offered help on the repair which Smothers refused.  Mahaffey took offense and accused Smothers of hypocrisy since Smothers had previously reported others for safety violations.  Smothers made an offensive comment to Mahaffey and told him he did not want his kind of help.  Smothers removed the broken piece and began the repair.  

Mahaffey immediately reported the argument and Smothers’ removal of the spool piece without a line break permit to the area supervisor.  Later that same day, three managers called Smothers in to discuss the safety violation.  Although completing the line break permit may not have been absolutely necessary, Smothers later conceded that he should have locked out the pump valve before removing the part according to Solvay’s safety policies. Smothers apologized for not locking the pump valve before removing the piece and promised it wouldn’t happen again.  Smothers was sent home pending an investigation.  

Six managers were involved in deciding what to do about the argument and the safety violation.  Three of the managers personally talked with Mahaffey about the argument but no one spoke to Smothers about it.  About eight days later, Solvay fired Smothers.  Smothers sued in Wyoming federal court, alleging, among other claims, unlawful FMLA retaliation, ADA discrimination and breach of an implied employment contract based on Solvay’s employee handbook. 

FMLA Claim Bolstered By Disparate Treatment and Previous Retaliatory Acts 

The trial court granted summary judgment to Solvay on Smothers’ FMLA and ADA claims.  On appeal, the Tenth Circuit decided that Smothers presented enough evidence for a trial about whether Solvay’s real reason for his termination was his use of FMLA leave or his disability.  Smothers provided evidence that other employees who committed similar safety violations were not fired.  Five of the six decision-makers who fired Smothers were also involved in at least one decision in which a similarly situated employee was treated more favorably after violating the same or comparable safety rules.  Smothers also pointed to the negative comments, negative performance rating, failure to promote and pressure to change shifts because of his FMLA-protected absences as evidence that the safety violation was a pretext for firing him for his FMLA leave.  Moreover, Smothers showed that the decision-makers had failed to sufficiently investigate the argument he had with Mahaffey, basing their decision almost entirely on Mahaffey’s version of events.  The Court decided that a reasonable jury could find that Solvay’s investigation into the quarrel was not fair or adequate.  Based on this evidence, the Court found that there were issues of fact on whether Solvay’s termination reasons were pretextual and reversed the dismissal of Smothers’ FMLA retaliation claim. 

Smothers Was Disabled Under ADA 

Smothers also asserted that his firing was in violation of the ADA.  He presented evidence that his medical condition was an impairment that substantially limited a major life activity, specifically his ability to sleep.  Because the facts would allow a reasonable jury to conclude that Smothers’ sleep was substantially limited, Smothers satisfied his burden of establishing a prima facie case of disability discrimination.  As with the FMLA claim, the Court found sufficient evidence that Solvay’s stated termination reasons may have been a pretext for disability discrimination. Therefore, the Court reversed the dismissal of Smothers’ ADA claim as well. 

No Breach of Implied Contract Based on Employee Handbook 

Smothers also alleged that Solvay violated the terms of its employee handbook, giving rise to a claim for breach of implied contract under Wyoming law.  The Court disagreed.  Wyoming recognizes a claim for breach of implied contract if an employer fails to follow its own required procedures, such as the procedures laid out in an employee handbook.  Solvay’s handbook contained a four-step progressive disciplinary process, with termination as the last step.  But it also contained a provision that allowed Solvay to terminate an employee immediately for a serious offense, including a safety violation.  Because the discipline policy unambiguously gave Solvay the discretion to fire employees who violate safety rules, the Court found that Solvay’s decision to terminate Smothers for violating a safety rule did not violate the terms of the employee handbook.  Therefore, the appeals court upheld the trial court’s dismissal of Smothers’ breach of implied contract claim. 

Back To Court They Go 

We don’t know whether Smothers or Solvay will prevail if this case goes to trial but we do know that the appellate court thought that some of the evidence about the actions of Solvay managers could demonstrate that Solvay acted with a discriminatory motive:   

  • Supervisors and co-workers gave Smothers a hard time about taking FMLA-protected leave.
  • Solvay failed to properly investigate all sides in the quarrel, accepting one employee’s version of events as fact.
  • The decision-makers treated Smothers more harshly than other similarly-situated employees who had violated similar safety rules.
  • Managers and supervisors considered Smothers’ FMLA absences when providing his performance evaluation and rejecting him for a promotion.  

Evidence of these actions prevented Solvay from obtaining a grant of summary judgment on appeal. While Solvay may dispute Smothers’ evidence when the case actually goes to trial,  this case stands as a lesson about the kinds of supervisory comments and actions that can feed into a discrimination claim, and a good reminder of how carefully employers must manage employees with injuries or disabilities.

Click here to print/email/pdf this article.

September 11, 2013

Family Medical History Request Results in First EEOC GINA Lawsuit

By Dora Lane

Employers may not request a family medical history from employees or applicants, even as part of a post-offer medical examination.  In its first lawsuit alleging a violation of the Genetic Information Nondiscrimination Act (GINA), the Equal Employment Opportunity Commission (EEOC) sued an employer whose contracted medical examiner required applicants to complete a family medical history questionnaire.  EEOC v. Fabricut, Inc., No. 13-cv-248 (N.D. Okla. filed May 7, 2013).  Review of this case offers a timely opportunity for employers to review their employment practices for compliance with GINA. 

Investigation of ADA Claim Finds Illegal Family Medical History 

Temporary employee, Rhonda Jones, worked for Fabricut, a distributor of decorative fabrics, as a memo clerk for 90 days.  She then applied to work in the same position as a regular employee.  Fabricut made her an offer of employment, contingent on the results of a pre-employment drug test and physical.  Fabricut sent Jones to Knox Laboratory, a medical examining facility that provided examination services to Fabricut on a contract basis.  As part of the process, Knox Laboratory instructed Jones to complete a questionnaire that asked about the existence of heart disease, hypertension, cancer, tuberculosis, diabetes, arthritis and mental disorders in her family. 

The examiner conducting Jones’ pre-employment physical concluded that Jones may be predisposed to or already suffer from carpal tunnel syndrome and recommended further evaluation.  Although Jones’ personal physician conducted a battery of tests and concluded that she did not have carpal tunnel syndrome, Fabricut withdrew its offer of employment.  Jones filed a discrimination charge with the EEOC alleging a violation of the Americans with Disabilities Act (ADA) on grounds that she was denied employment because Fabricut regarded her as having a disability, carpal tunnel syndrome. 

As part of its investigation of Jones’ ADA claim, the EEOC obtained from Fabricut copies of Jones’ post-offer, pre-employment medical examination.  The records revealed the family medical history questionnaire that Jones had been instructed to complete at the start of her pre-employment physical.  Finding that the questionnaire included unlawful inquiries into genetic information, the EEOC notified Fabricut that its investigation would look into its compliance with GINA regarding its solicitation of family medical histories of applicants. 

EEOC Pursues GINA Lawsuit 

The EEOC filed suit against Fabricut in federal court alleging violations of both the ADA and GINA.  GINA, which took effect in 2009, makes it illegal for employers to discriminate against employees or applicants because of genetic information, which includes family medical history, and restricts employers from requesting, requiring or purchasing such information, among other things.  The lawsuit alleges that Fabricut violated GINA by requesting and requiring Jones and other applicants to indicate whether or not they had a family medical history for a variety of diseases and disorders as part of its post-offer, pre-employment medical examination as conducted for Fabricut by its agent, Knox Laboratory, who then provided the information to Fabricut for its use in hiring and employment decisions. 

Lawsuit Settled for $50,000 and Additional Relief 

Without admitting any violation of law, Fabricut agreed to settle the case for payment of $50,000 to Jones as compensatory damages.  The settlement also requires Fabricut to post notices in its workplace stating that Fabricut will comply with all federal employment laws, including the ADA and GINA, conduct two hours of live training for all management and human resources personnel, create or revise personnel policies prohibiting discrimination and be subject to monitoring and reporting requirements for two years. 

Review Practices for GINA Compliance 

Although GINA has been in effect since 2009, many employers may not be familiar with its requirements and prohibitions.  What may have been routine employment practices in past years, such as collecting a family medical history from employees or applicants, may now be unlawful under GINA.  Employers should review their job applications, interview questions and any employment medical testing practices to ensure that no family medical history is requested.  The regulations implementing GINA specifically state that a covered entity must tell health care providers not to collect genetic information, including family medical history, as part of a medical examination used to determine an individual’s ability to perform a job.  29 C.F.R. § 1635.8(d).  In addition, if an employer finds out that family medical histories are being collected, it must take reasonable measures, including not using the health care provider, to prevent the information from being collected in the future. 

Under certain circumstances, employers may receive genetic information that it did not request.  Such inadvertent acquisition of genetic information is not a violation of GINA.  To help establish that genetic information was acquired inadvertently, employers should take advantage of a safe harbor provision in the GINA regulations.  When an employer needs to request health-related information, such as to support a request for sick leave or a reasonable accommodation under the ADA, the employer should warn the employee and the health care provider not to provide genetic information.  The regulations suggest the following language to accompany the request for health-related information: 

The Genetic Information Nondiscrimination Act of 2008 (GINA) prohibits employers and other entities covered by GINA Title II from requesting or requiring genetic information of an individual or family member of the individual, except as specifically allowed by this law. To comply with this law, we are asking that you not provide any genetic information when responding to this request for medical information. "Genetic information," as defined by GINA, includes an individual's family medical history, the results of an individual's or family member's genetic tests, the fact that an individual or an individual's family member sought or received genetic services, and genetic information of a fetus carried by an individual or an individual's family member or an embryo lawfully held by an individual or family member receiving assistive reproductive services.

When employers provide this warning, any resulting acquisition of genetic information will generally be considered inadvertent and therefore, not in violation of GINA.


Disclaimer: This article is designed to provide general information on pertinent legal topics. The statements made are provided for educational purposes only. They do not constitute legal advice and are not intended to create an attorney-client relationship between you and Holland & Hart LLP. If you have specific questions as to the application of the law to your activities, you should seek the advice of your legal counsel.


Print Friendly and PDF