This is a question about which Iowa employers are increasingly concerned. The probability your employees and applicants for employment have used marijuana in some form has substantially increased in recent years. Medical marijuana use is now legal in 34 states and the District of Columbia. Recreational use is legal in ten states. But, marijuana is still classified as a “Schedule I” drug under the Federal Controlled Substances Act, making it illegal to possess, use, or sell. The very fact that marijuana is classified as a Schedule I drug means the Food and Drug Administration has determined it has no currently accepted medical use, a lack of accepted safety for use under medical supervision, and a high potential for abuse.
Although many employers use progressive discipline policies, I am typically not a big fan. In theory progressive discipline seems like a good idea: it allows an employee to learn from their mistakes. It puts the employee on notice that further discipline is going to have more serious consequences. It is difficult for an employee who has gone through the steps to claim surprise when the termination arrives.
On the other hand, progressive discipline limits an employer’s flexibility. Sometimes it is clear an employee isn’t working out, but the company feels bound to go through the steps before terminating. In other cases, the circumstances may warrant giving an employee more chances that the policy allows. In those situations, an employee may be terminated simply because they are on the last step, even though the company would rather keep the employee.
As we have written here many times, summary judgment is an important tool for defendants in employment discrimination cases. Studies have shown that in federal court, summary judgment is granted to defendants in employment discrimination cases more than in any other type of case. These studies confirm the experience of most employment lawyers who try cases, whether they represent mostly plaintiffs or mostly defendants.
Most employers know they are obligated under the ADA to accommodate mental as well as physical disabilities. In theory that seems easy enough, but in practice mental health conditions are much more difficult to deal with than physical disabilities. For example, a common problem is that the employer often lacks specific information about the nature of the employee’s condition. Sometimes that is because the employee himself does not disclose the condition (or perhaps does not even recognize it himself), but co-workers or a supervisor observe behavior changes or a performance decline. While the employer may ask the employee general questions about how the employee is feeling, the law allows a more specific inquiry about a medical condition only under limited circumstances. A disability related inquiry or medical exam is permitted only if the employer has a reasonable belief, based upon objective evidence, that the employee’s ability to perform the essential job functions is impaired by a medical condition, or the medical condition poses a threat to the employee or others. Unfortunately, it is not always easy for an employer to judge whether there is sufficient reliable information to justify a disability inquiry.
Even in those cases where the employee discloses a mental health condition and requests accommodation, the employer often lacks sufficient information about the nature of the condition or proposed accommodations. This is particularly true in cases of stress or anxiety. Medical providers have been known to impose vague restrictions for stressed or anxious employees, including some of the following: the employee should “avoid working in an environment she finds stressful; “keep stress levels as low as possible;” the supervisor should stop having “hostile confrontations” and instead provide the employee with “calm, non-confrontational treatment.” By its nature work is often stressful, and employees sometimes have to deal with unpleasant tasks or people. To demand a stress free work environments in neither helpful for reasonable.
What is an employer to do when presented with these types of vague restrictions? Although I am not often a big fan of EEOC’s work, last month the agency published a resource document that is likely to be helpful. Entitled “The Mental Health Provider’s Role in a Client’s Request for a Reasonable Accommodation at Work”, the document is targeted at the mental health professional and not the employer. Presented in a question and answer format, the document provides useful information about the ADA and how the provider can help her patient obtain an accommodation from the employer. Most useful in question 9, which describes the type of documentation that would be helpful for the employer to assess nature of the employee’s condition, the functional limitations, and proposed accommodations that are specific to the functional limitations. Employers should consider giving this resource document to the employee and asking the employee to present it to the medical provider. An employer could also develop its own questionnaire for the provider based upon question No. 9 in the document.
A medical provider who responds to the information listed in question No. 9 would not only help her patient, but also assist the patient’s employer in evaluating appropriate reasonable accommodations for a mental disability.
Image Credit: from Google, Creative Commons license, Man Suffering Stress and Anxiety.
It’s an all too common situation: an employee’s medical condition results in permanent restrictions that prevent the employee from performing essential job functions that she used to be able to do. It is not reasonable to modify the job so the employee can keep the position. There is a vacancy in another department for which the employee is qualified, and she wants the job. But, the employer has another candidate who is more qualified for the vacant position, but does not have a disability. Does the ADA require the employer to reassign the employee with a disability in favor of hiring someone else more qualified?
What Does the Law Require?
In its published Enforcement Guidance, EEOC takes the position that the ADA requires the employer to do just that. But, in a recent opinion, the U.S. Court of Appeals for the Eleventh Circuit rejected the EEOC’s position. (EEOC v. St. Joseph’s Hospital, Inc., 11th Cir. 12/7/2016). The Court ruled the ADA does not require non-competitive reassignment as a reasonable accommodation for a disability. In other words, it is legal to choose a more qualified, non-disabled employee over a less qualified employee with a disability. The Eleventh Circuit (which covers Alabama, Florida, and Georgia) cited previous opinions from courts in the Fifth and Eighth Circuits (which includes Iowa) that already followed this rule.
In theory the rule is simple, but like many decisions involving the employment discrimination laws, it is more complicated in practice. The EEOC v. St. Joseph’s Hospital case shows why. The plaintiff was a nurse who had worked various jobs in the psychiatric unit for more than 20 years. She developed back pain from spinal stenosis, which ultimately made it difficult for her to walk more than short distances without stopping. The Plaintiff obtained a doctor’s note recommending she use a cane, which would provide support and allow her to walk longer distances. But, the hospital was concerned the cane presented a safety risk in the psychiatric unit because patients could use it as a weapon.
Despite the doctor’s recommendation, the hospital told the Plaintiff she could no longer use the cane because of the safety risk. Rather than immediately terminate her employment, the hospital offered Plaintiff 30 days to apply for other, open positions. Technically, Plaintiff was not eligible for a transfer because she had been in her existing position for less than six months and was working under a final written warning. But, the hospital waived those requirements as an accommodation.
The Plaintiff applied for three other jobs. The hospital hired other, non-disabled candidates for two of them. The third job was not actually available and was posted in error. In the end, because plaintiff was not able to find another position, she was terminated.
Here is where it got complicated. Even though the court ruled the hospital was not required by law to favor Plaintiff over other more qualified candidates, the question of who was the more qualified candidate was left for the jury to resolve. The jury found the hospital failed to provide a reasonable accommodation for the Plaintiff by not reassigning her to one of the jobs for which she applied. The hospital still won the case because the jury also concluded the hospital made good faith efforts to find a reasonable accommodation. But, it is important to note the good faith defense eliminated the liability in this case because of some technical issues relating to the form of the jury instructions. An employer’s good faith defense in most cases will protect only from damages, but not equitable relief or attorney’s fees.
What Should Employers Do?
The good news is, the the St. Joseph’s case reaffirms principle that an employer may hire the best candidate for the position, with or without a disability. On the other hand, it remains a significant litigation risk to fill a vacant position with someone other than an employee with a disability, when the disabled employee will be terminated if not selected. This is especially true for long term employees. There is a very good chance a jury will be second guess the employer’s decision about which candidate is really the most qualified.
There are a number of policies or practices employers should consider that will make these types of claims more defensible: 1) employers should have a stated policy or demonstrated practice of hiring the best candidate for the job; 2) the stated qualifications for a position should match as much as possible the actual job duties; 3) the stated qualifications should emphasize criteria that are more objective (e.g., education, years of experience); 4) subjective factors, such as the “right fit,” positive attitude, etc. are relevant but should be subordinate to objective criteria 4) identify and document the specific reasons the chosen candidate is more qualified than other candidates, especially if it is not obvious based upon the objective criteria.
Image Credit: from Google, Creative Commons license, Handicapped sign.
A federal district court in Michigan recently granted summary judgment for the plaintiff, (you read that correctly), ruling that the employer was liable for disability discrimination as a matter of law. (Lafata v. Dearborn Heights Sch. Dist. No.7 (E.D. Mich. 12/11/2013)). A plaintiff hardly ever files for summary judgment in an employment case, let alone wins the motion. So what happened here?
The Plaintiff applied for a position as a Plant Engineer with the Defendant School District. For ten years prior to applying for the job, Plaintiff worked as a building supervisor at a community center. In that job, he was responsible for complete maintenance, inside and outside the building, minor plumbing and electrical work, roof repairs, and all tasks associated with set up and care of the community pool and ice skating rink. He regularly used ladders and carried objected weighing more than forty pounds.
The School District offered the Plant Engineer position to Plaintiff, conditioned upon a physical exam showing he could perform the essential functions of the job. The job description for the position was very general, and did not identify specific tasks or physical demands. The physician who did the pre-employment physical diagnosed the Plaintiff with Charcot Marie Tooth syndrome, a genetic disorder that causes muscle deterioration and gradual loss of strength. But, the doctor did not ask any questions about the Plaintiff’s physical symptoms or his work history. The doctor expressed concerns about Plaintiff using a ladder because he could not “purposely dorsi-flex his foot up or down as he might to have to maneuver while climbing on a ladder." He also said a forty pound lifting restrictions was a “fair number” based upon his estimation of Plaintiff’s strength, which he assessed by watching Plaintiff climb onto the examination table.
The doctor had a telephone conversation with the Assistant to the Assistant Superintendent, during which he verbally told her about his findings and restrictions. The Assistant shared her notes of the telephone conversation with her boss (the Assistant Superintendent) and the Director of Operations. They decided, without any further information or documentation, to revoke Plaintiff’s conditional job offer. The reason: Plaintiff could not perform the essential functions of the job. They testified decision was “somewhat automatic”, based upon the restriction against ladders and lifting more than forty pounds. They likened the Plaintiff’s physical restrictions to a an applicant who has a felony history—it disqualified him in and of itself.
The School District lost this case at the summary judgment stage for two reasons. First, the information it relied upon about the Plaintiff’s restrictions was woefully inadequate. District personnel took everything the doctor told them at face value, without having any information about the nature and extent of the doctor’s exam or other information the doctor relied upon. Second, after learning about the restrictions, the District made no effort to dialogue with the Plaintiff about potential reasonable accommodations. If they had simply talked to the Plaintiff, they may have learned more about the limitations of the doctor’s opinion and perhaps could have developed a solution that would have allowed Plaintiff to do the job while also dealing with any of the medical concerns.
Takeaway: employers cannot farm out to medical professionals their obligation to make an individual assessment of an applicant’s ability to perform the essential functions of a job. While a physician’s opinion is often essential, in and of itself it does not answer the questions about qualifications or reasonable accommodation. Nor does it relieve the employer of its obligation to engage in the interactive process.
The best outcome to a discrimination lawsuit from the employer’s perspective is to win outright—for the judge or jury to find that the employer did not unlawfully discriminate. But, even if you lose, there is a “Plan B” defense—the failure to mitigate damages. An employee who is terminated (or not hired in the first place) can have his back-pay award reduced or eliminated altogether if he did not make reasonable efforts to get another job.
But, asserting a failure to mitigate defense and actually proving it are two very different things, as shown in the recent Colorado case, EEOC v. Beverage Distributors, LLC (12/9/13 D. Colo.). The jury awarded the plaintiff over $132,000 in back pay after finding the employer discriminated on the basis of the plaintiff’s disability. But, the jury then reduced the award by $102,000 because it found the plaintiff failed to mitigate his damages. Plan B was a success, or so it seemed.
After the judgment entry, EEOC filed a motion asking the court to award the back pay the jury gave without the reduction for failure to mitigation. EEOC argued the employer did not present evidence as a matter of law to prove failure to mitigate. In an unusual move, the trial judge agreed, vacated the jury’s award, and entered a judgment for the full $132,000 in back pay.
The evidence showed Beverage Distributors rescinded a job offer for a night warehouse loader when it learned the plaintiff was legally blind. The plaintiff found another job within a week at a landscaping company, but the pay was less than he would have earned at Beverage Distributors. The employer argued the plaintiff should have made more effort to secure a job with pay comparable to the one he would have had. As evidence, the employer presented expert testimony about various employment statistics in the geographic area. For example, the evidence showed there were 10,000 drivers’ helper or storage-labor jobs; that the unemployment rate in the area was lower than the national average; and that unskilled laborers with plaintiff’s experience typically find a job paying the median wage within a certain number of weeks.
The court held this evidence was not enough to allow the jury to find the plaintiff failed to mitigate. That a certain number of positions existed in the labor market does not allow one to conclude the positions were available to the plaintiff. The court was looking for evidence there were actual openings for jobs paying comparable wages, for which the plaintiff was qualified, within a reasonable commuting distance. General statistical evidence about the labor market was simply too vague to allow an inference that this particular person could have found a higher paying job.
The lesson for employers: if a plaintiff actually gets another job, it will be difficult to prove failure to mitigate. General assertions that the plaintiff could or should have tried harder probably won’t cut it. You need evidence of specific job openings, for which the plaintiff is qualified, at particular employers that the plaintiff should have known about, but failed to pursue. Obtaining this type of evidence that is not speculative is likely to be a challenge.
Fixed or no-fault leave policies were once considered easy way to manage attendance and long term leave of absence issues. Once the employee reaches the maximum number of absences, or is gone the maximum number of weeks on medical leave, the employee is terminated; no questions asked, no exceptions. The benefit of these kinds of policies is that they remove discretion from the decision makers and therefore result in the same treatment for all employees. In more recent years, these types of policies have fallen out of favor. Employers have found that applying a no-fault policy blindly may conflict with its obligation to engage with an employee to find a reasonable accommodation for a disability. The EEOC is strongly opposed to no fault policies. Its Enforcement Guidance takes the position that application of a no fault leave policy to an employee with a disability is a per se violation of the law. However, as the recent case of Cash v. Siegel-Robert, Inc.(6th Cir. 12/3/2013) shows, there is no reason employers cannot maintain a no fault policy so long as it has some flexibility built in to account for employees with disabilities. Siegel-Robert, Inc. (SRI) had a policy that resulted in automatic termination if an employee was unable to work for six months within any 12 month period. SRI’s policy also allowed employees who used up the six months to request an extension. The policy said an extension would be considered so long as the request was received before the termination would take effect, and if it was supported by medical documentation showing a return to work on a date certain or within a reasonable period of time. Cash was scheduled for back surgery on March 18. Because Cash’s job was physically demanding, his doctor told him he may not be able to work for a full year following surgery. SRI granted Cash job protected leave from March 18 until September 17, pursuant to its policy. At the beginning of his leave period, Cash received a copy of SRI’s policy. Even though Cash knew he may be off work for one year, he did not ask the HR Manager how to obtain an extension of medical leave beyond six months; nor did the HR Manager tell him. By August 17 Cash thought he could return to work and asked the doctor to release him. The doctor wrote in the chart that he thought Cash would be able to return to work in a month. A follow-up visit was scheduled on September 14. For some reason Cash could not keep the September 14 appointment. He rescheduled the appointment for September 21, at which time the doctor gave him a work release with restrictions. Cash presented the work release to the HR Manager on September 21. “Thanks”, responded the HR Manager, “but unfortunately you were terminated three days ago because your medical leave expired.” SRI did not offer Cash another position or part time employment, nor did he ask whether those were available. He simply left the plant. Cash ultimately sued SRI claiming that it violated the ADA in failing to accommodate his restrictions and in terminating his employment. Notably, after Cash filed his lawsuit, the company adopted the practice of notifying employees on long term leave before their leave expired. The Court granted SRI summary judgment. The crucial fact was that Cash took no action before the expiration of the no-fault leave period to ask for an extension of his leave. Even though SRI later changed its practice, the Court did not impose on the company an obligation to notify the employee about the expiring leave as the date approached. The Court also ruled that SRI had no obligation to engage with Cash about potential accommodations for his work restrictions because the termination was effective before Cash presented the restrictions to HR. An important take-away from the Cash case is that a no-fault system can be used without legal liability, so long as there is a safety valve that permits employees to obtain additional leave time if necessary. While it was a good idea for SRI to change its practice and notify employees about expiring leave, this case also reinforces the fact that employees themselves have obligations to keep track of and follow the company’s policies with respect to leave. At least in this court, ignorance was not an excuse.
A divided panel of the Iowa Court of Appeals recently ruled that the rules of construction in the ADA as amended in 2008 apply to the Iowa Civil RIghts Act when determining what constitutes a disability (Knudsen v. Tiger Tots Community Child Care Center, No. 2-1011, 1/9/13). Although Knudsen is a public accommodation and not an employment case, the opinion is nonetheless very significant. It shows at least one appellate panel’s willingness to adopt the ADA Amendments by judicial fiat. The Iowa legislature has not amended the ICRA to adopt the changes Congress made to the ADA in 2008 (effective January 1, 2009).
The plaintiffs in Knudsen are parents of a child with a tree nut allergy. Their child was refused admission to a child care center because the center did not have sufficient staffing levels to deal with the extra care demands of a child with that kind of medical condition. The trial court granted summary judgment to the defendants because the nut allergy was not a “disability” under the ICRA.
The court reversed the summary judgment because the trial judge had not evaluated whether an episodic condition like a tree nut allergy would substantially limit a major life activity when active. Notably, coverage for episodic conditions has existed only since the ADAAA became effective January 1, 2009. But the ICRA has never been amended. In holding that the ADA amendments apply, the court relied upon several pre-2009 cases holding that a federal analytical framework applied to disability cases under the ICRA.
Judge Vogel dissented from the majority’s decision. She argued the only reason the pre-2009 cases relied upon the federal disability framework is because of similarities between the ADA and ICRA that then existed. After the 2009 ADA amendments, however, the federal law was no longer similar in many respects. Judge Vogel concluded that it is not the court’s role to change the definition of disability under the ICRA simply because federal law changed. That is up to the legislature.
Fortunately, this panel’s opinion is not the end of the story. A certified question is presently pending before the Iowa Supreme Court on this very issue. In Stotler v. Delavan, Inc., U.S. District Judge Gritzner asked the Iowa Supreme Court to answer the following question:
In the absence of any applicable amendment to the Iowa Civil Rights Act (ICRA) regarding claims of disability discrimination, will the Iowa courts adopt the structure of the revised federal law enacted by Congress in the 2008 Americans with Disabilities Act Amendment Act (ADAAA), specifically 42 U.S.C. §§ 12101 and 12102, and federal regulations promulgated thereunder, when reviewing disability discrimination claims under the ICRA?
It would be tempting for the Iowa Supreme Court t to simply adopt the ADA Amendments (as the Court of Appeals did in Knudsen). It would certainly make cases easier to litigate, particularly those that assert claims under both federal and state law. Hopefully, the court will resist that temptation. The ADA Amendment substantively changed the nature and extent of that law’s coverage. The Iowa legislature has expressed no intention to expand the scope of the ICRA in a similar manner.
Not following the federal ADA in this case would also open the door to re-evaluting whether federal precedent should be followed in other types of discrimination claims under the ICRA.. The courts have for years ignored the real substantive differences between federal and state discrimination laws, and it is time to revisit those decisions.
The EEOC has revised its "Equal Employment Opportunity is the Law" poster. The poster was revised to reflect new federal employment laws, including the ADA Amendments, and the Genetic Non Discrimination in Employment Act ("GINA"). Employers can either obtain a new poster, or a supplement their existing poster. The new posting is mandatory effective November 21, 2009. Up to ten posters can be obtained from the EEOC free of charge, or can be printed from the EEOC’s website.
The FMLA Blog reports on amendments to the FMLA the president signed this week. Among the changes: military care giver leave will now apply to for veterans of the Armed Forces under certain circumstances. In addition, Qualifying Exigency Leave is expanded to cover members of the regular military who are deployed to a foreign county. Under existing law, such leave applied only for covered military members in the Reserves or Guard.
The best way to avoid workplace problems–avoid bad hires in the first place. Two posts this week on HR Daily Advisor (here and here) identify five steps for gathering critical background information about prospective employees without breaking the bank, and while respecting the privacy rights of the applicant.
A woman in Missouri sued Wal-Mart and other establishments under the ADA for denying access to her Bonnet Macaque monkey. The Plaintiff claimed the monkey was trained to assist her with anxiety and agoraphobia, and she could not function in public unless the monkey was with her. The U.S. District Court in the Western District of Missouri granted summary judgment to the defendants, finding that Plaintiff was not disabled, nor was her monkey a "service animal" under the ADA for which the establishments were required to provide reasonable accommodation.
This Bud’s for you. A former Chief of Communications at Anheuser-Busch (now Anheuser Busch in Bev) filed a lawsuit against the company for gender discrimination. The former executive claims the company maintains gender bias in pay and promotions, excludes women from social networks, and promotes few women to top jobs and committee posts. Most shocking to any viewer of beer commercials is this allegation: that the company fostered a locker room and frat party atmosphere in the workplace.