ADA Failure to Accommodate Claim Requires Adverse Action 2018-10-12T12:00:30-06:00

Posted on October 12, 2018

The Tenth Circuit Court of Appeals has faced one of the least litigated issues under the ADA. Is a failure to accommodate the restrictions of a disabled employee, itself, an adverse employment action? Answer: no.

Almost all ADA failure to accommodate cases arise when the employee is let go because he or she is unable to do the essential functions of the job, but the employee contends a reasonable accommodation would have been possible. In all those cases, the employee has been discharged—a clear adverse employment action. But what happens if the employer and employee engage in the interactive process, run out of ideas for accommodations, and just don’t address the issue again? The employee continues in the job, without discipline and without discharge. Is there an actionable failure to accommodate claim?

In Exby-Stolley v. Bd. Of Cnty Comm’rs, No. 16-1412 (10^th Cir. Oct. 11, 2018), the circuit court analyzed the text of the ADA and ruled that substituting “failure to accommodate” into the anti-discrimination provision still leaves the requirement to show the failure was “in regard to” application procedures, hiring, advancement, discharge, compensation, training, or other terms and conditions of employment.

Of course, we can’t take this too far. If the employee is unable to enjoy the benefits of employment or is materially and adversely affected in performing the job, those might supply the necessary adverse employment action. The key here is that the employer does not run out of time to continue the interactive process so long as the employee has not suffered an adverse employment action.

Pregnancy Accommodation Headed to Governor 2016-05-10T10:12:37-06:00

Posted on May 10, 2016

By Brooke Colaizzi

A bill requiring Colorado employers to provide reasonable accommodations to pregnant employees has passed both the Colorado House and the Senate and is headed to Governor John Hickenlooper’s desk.

Employers already must provide reasonable accommodations for conditions and complications related to pregnancy that meet the definition of “disability” under federal or state law. The new bill would require employers to reasonably accommodate restrictions or limitations related to pregnancy that do not rise to the level of disabilities.

Examples of restrictions or needs that might fall under the new bill include extra water breaks, seating during work time, and lifting restrictions. The bill requires employers and pregnant employees to engage in an interactive process similar to the process followed in cases of disability accommodation.

If Governor Hickenlooper signs the bill, it likely would take effect in August 2016. Stay tuned for updates on the status of the legislation.

Unreasonably Sporadic Telecommuting 2015-04-13T13:05:26-06:00

Posted on April 13, 2015

By Bryan Stillwagon

One year ago, we reported on the Sixth Circuit’s ruling that telecommuting could be a reasonable accommodation for a resale steel buyer at Ford suffering from irritable bowel syndrome. There, the employee requested to telecommute as many as four days a week. Ford denied the request because the position, at least according to Ford, required an employee’s physical presence and was unsuitable for telecommuting.

After a rehearing by the full Sixth Circuit, a majority (8-5) has changed course and ruled in Ford’s favor. EEOC v. Ford Motor Co., No. 12-2484 (6th Cir. Apr. 10, 2015). First, there was evidence that a resale buyer could not work unpredictable at-home schedules without lowering production standards. Second, other employees’ telecommuting arrangements were scheduled and predictable, but plaintiff’s proposed arrangement (up to 4 days per week at home, unscheduled in advance, refusal to come in if needed) was not. Third, though technology (e-mail, teleconferencing, etc.) had undoubtedly advanced, technology was not a complete substitute for a resale buyer’s physical presence.

Might telecommuting still be an accommodation that is reasonable for some positions? Absolutely, but not if the job can be best performed only by the employee actually being there, as opposed to a disembodied voice over the phone, or an e-mail or text message.

Hairdresser Pushes on to ADA Trial 2014-10-20T15:42:23-06:00

Posted on October 20, 2014

By Bryan Stillwagon

A hairdresser in a nursing home had restrictions on pushing and lifting after a hysterectomy. Previously, plaintiff pushed wheelchair-bound residents to and from the beauty shop two days a week. When plaintiff notified the nursing home Administrator of her restriction and requested someone else transport the residents to the beauty shop, he refused, claiming that she had to have no restrictions to work there and hiring someone else to transport the clients would be a hardship.

When the plaintiff quit, however, other staff did help the sole remaining hairdresser by pushing residents to and from the beauty shop. The Seventh Circuit determined that the nursing home had not done enough to determine essential functions or reasonable accommodations. Is a task was “essential” to a plaintiff’s job if other employees could do it at a negligible cost to the employer? Kauffman v. Petersen Health Care VII, LLC, No. 13-3661 (Oct. 16, 2014, 7th Cir.).

Employers have to interact with employees to determine whether reasonable accommodations exist for medical restrictions, and whether such accommodations are reasonable. Saying, as the Administrator was alleged to have said, that “we just don’t allow people to work with restrictions” is a sure way to end up in front of a jury. And likely lose.

Guideline on Too Much Leave 2014-06-04T11:02:30-06:00

Posted on June 4, 2014

By Elizabeth Chilcoat

Is 6 months’ leave a reasonable accommodation? “Unsurprisingly, the answer is almost always no,” says the Tenth Circuit. Hwang v. Kansas State University, No. 13-3070 (10th Cir. May 29, 2014). Applying the Rehabilitation Act (which mirrors the ADA but applies to federal government employment and organizations receiving federal financial assistance), the court considered the case of an employee on a one-year contract who had taken six months’ leave for cancer treatment. After exhausting all leave available under the employer’s policies, the employee asked for more. The employer denied the request and discharged her because she could not yet return to work. The employee sued, claiming the employer failed to provide a reasonable accommodation.

The court began with the obvious – a medical leave might enable an employee to perform his or her job following the leave, and most employees are allowed to miss some work for illness; so some leave may be a reasonable accommodation. However, finding the outer limit of “reasonable” leave is another question. Factors to consider include the employee’s duties, the nature and length of the leave requested, and the impact the leave will have on other employees. The court ruled that, in most cases, a leave of six months or more will not be reasonable; an absence of six months is (usually) inconsistent with performing a job’s essential functions.

Employer’s Accommodation Is Enough 2014-06-03T09:53:52-06:00

Posted on June 3, 2014

By Bryan Stillwagon

A Dairy Queen appropriately accommodated an employee’s legal blindness, even though it imposed the accommodation unilaterally. In Bunn v. Khoury Enterprises, Inc., No. 13-2292 (7th Cir. May 28, 2014), the employer determined that a legally blind employee could not perform the essential functions in all of the restaurant’s “duty stations.” Rather than place the employee into the typical duty-station rotation, the store manager worked with the employee to determine which functions he could perform, and then scheduled the employee exclusively to one department where he could perform the necessary duties with minimal additional accommodation. The employee sued alleging that he asked for additional, or different, accommodations, which the employer denied, but the court ruled the chosen accommodation was enough. The ADA’s interactive process “is not an end in itself,” and the concern lies “with the ends, not the means.” According to the court, the “job restructuring,” or the change in the way things were “customarily done,” “was exactly the kind of accommodation envisioned by the regulations applicable to the ADA” even without the interactive process.

Telecommuting Accommodation? It Depends! 2014-04-28T10:26:05-06:00

Posted on April 28, 2014

By Jon Watson

Does being available electronically count as attendance? Maybe.

In EEOC v. Ford Motor, Co., No. 12-2484 (6th Cir. April 22, 2014), the employee worked as a resale steel buyer — an intermediary between steel suppliers and companies that produce steel parts. She suffered from irritable bowel syndrome (IBS), and, some days, she would be unable to drive to work or stand up from her desk without soiling herself. She requested to telecommute as an accommodation for her disability. The employer denied the request, saying that her position required her to be physically present and was not suitable for telecommuting.

The Sixth Circuit rejected the employer’s argument that “attendance” means presence at the employer’s actual location; and stated that “‘workplace’ is anywhere that an employee can perform her job duties.” Although the court was careful to say telecommuting is not appropriate for all jobs in all circumstances, the court’s broad language opens the door for other employees to request telecommuting in a variety of new circumstances.

EEOC’s Attempt to Revisit Undue Hardship Defense Rejected 2014-01-28T23:10:05-07:00

Posted on January 28, 2014

By Heather Vickles

Last year, we reported on EEOC v. JBS USA, LLC No. 8:10CV318 (D. NE.). (Click here to read both blog posts.) The case includes the EEOC’s pattern or practice claim that JBS failed to accommodate its Muslim employees’ religious practices at its Grand Island, Nebraska beef processing plant. Last May, after a ten-day hearing, the court accepted JBS’s defense that the EEOC’s proposed accommodations would have been an “undue hardship,” as that phrase is used in Title VII. This week, the court ruled on the EEOC’s request to reopen the issue, turning the agency down flat. The court also certified the original ruling on undue hardship as a final judgment, opening the way for use of the ruling in other matters and for an early appeal. We expect to hear more from the EEOC on this issue – both in the trial court, where the individual claims associated with this case are pending, and in the court of appeals.

Broken Bones 2014-01-28T17:25:50-07:00

Posted on January 28, 2014

By Bill Wright

Cases under the ADA Amendment Act are finally reaching the courts of appeals. In what might be the first case to reach the appellate level on an issue other than whether the statute applied retroactively, the 4th Circuit has determined the following: A plaintiff can plead a sufficiently severe impairment and substantial limitation if he alleges that, after an injury in which he broke both legs and had to undergo multiple surgeries, he was unable to walk for at least seven months. In this case, the employee was a contracted employee assigned to work in a client’s office. He could work remotely, but only after hours to put additional time in on the project. After he fell and broke both legs, he asked for an accommodation – working from home. The employer fired him – we can assume it was because he could not satisfy the client’s demand that work during standard office hours be done at the client’s facility. The trial court dismissed the wrongful discharge and failure to accommodate claims on the ground that the plaintiff had not alleged a disability under the ADA. Applying the ADAAA and the EEOC’s regulations, the court of appeals saw the case differently and reinstated the claim. A severe injury might be a disability, even if it lasts only a few months. Summers v. Altarum Institute, No. 13-1645 (4th Cir. Jan. 23, 2014).

EEOC Loses 5-Year Battle to Require Muslim Prayer Accommodations PART 2 2013-10-17T22:18:02-06:00

Posted on October 17, 2013

By Heather Vickles

Click here to read Part I of this post.

In EEOC v. JBS USA, LLC, 8:10-CV-318 (D. Neb. Oct. 11, 2013), the EEOC claimed that JBS violated Title VII by engaging in a pattern or practice of failing to reasonably accommodate the religious practices of Muslim employees by failing to (1) allow them to take unscheduled breaks from the production line in order to pray, and/or (2) moving the meal break to coincide with the sunset prayer time. In dismissing the EEOC’s claims, Judge Camp found that JBS proved both of the proposed prayer accommodations imposed an undue hardship in two ways. One, both accommodations would result in more than a de minimis cost to JBS, including adverse effects on food safety, employee safety, and operational efficiency. Two, both accommodations would result in more than a de minimis imposition on non-Muslim coworkers who “would be required to work harder, under rigorous or potentially dangerous conditions, in part because they did not share their co-workers’ religious beliefs.” Id. at 37.

This decision provides a helpful guide for employers seeking to establish the undue hardship defense to a failure to accommodate claim under either Title VII or the ADA. Rather than speculating about possible harm, employers must be prepared to present concrete facts and figures to prove the real and potential negative impacts of a proposed accommodation.

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