Breaking News: U.S. Supreme Court Agrees to Hear Important Case on Reasonable Accomodation for Pregnant Employees

The U.S. Supreme Court just concluded its 2013-14 term and is already creating a buzz over the cases it will hear when it convenes again this October.  Today, the Court agreed to hear a case involving whether and to what extent pregnant employees are entitled to reasonable accommodations for conditions related to their pregnancy.  The case is Young v. UPS

Since the passage of the ADA Amendments Act in 2008, there have been an increasing number of pregnancy discrimination cases filed under the ADA.  However, Young's claim accrued prior to the passage of the ADAAA and therefore should only implicate the Pregnancy Discrimination Act.  

The Young case deals with the accommodations and light duty UPS makes available for employees suffering from on-the-job injuries, ADA disabilities or drivers who are no longer qualified under DOT regulations to operate a federal motor carrier because of an impairment (or otherwise required by a Collective Bargaining Agreement).  According to Young's allegations, UPS did not make reasonable accommodations for her lifting restrictions caused by her pregnancy that she claims were similar to the lifting restrictions imposed on non-pregnant employees who suffered on-the-job injuries thereby treating her differently than similarly situated non-pregnant employees.  The Solicitor General recommended that the Court pass on hearing this particular case.  Nonetheless, at least four justices voted to hear the case next session.

I expect that the outcome of this case will have substantial effect on a number of employer policies including, but not limited to, employer light duty policies that limit light duty availability to employees who have suffered a workplace injury.

The Supreme Court of the United States blog has a lot of useful information on this case here.

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Court Finds, in Pre-ADAA Case, that Employee with Diabetes Not Disabled

In a recent pre-ADAA case, the Fifth Circuit Court of Appeals held that a former UPS employee's limitations caused by Type II diabetes were not disabling and that UPS did not fail to provide reasonable accommodation to a known disability.  Despite the fact that this case was based on pre-ADAA law, there are still some useful takeaways that will apply notwithstanding the ADAA.

Rommel Griffin was a 28-year employee of UPS who suffered from Type II diabetes.  He worked in a supervisor/management capacity on the twilight shift from 2 to 10 p.m.  After Hurricane Katrina, Griffin experienced unusual numbness and pain that his doctor attributed to stress.  He took a paid leave of absence to complete an outpatient behavioral counseling program.  After completing this program, Griffin was better able to manage his stress and his symptoms improved.

Griffin was released to return to work and upon his return learned that his job had been filled.  Griffin sought out two other positions; neither of which he was awarded.  Ultimately, he was assigned the position he previously held; albeit on the midnight shift.  Upon being told he was assigned to the midnight shift, Griffin delivered a letter titled "Accommodation Request" where he said that that his doctors required that his schedule be adjusted to daytime hours to accommodate his diabetes.  UPS requested additional information from Griffin and his doctors to evaluate the request for accommodation. 

In response to UPS's request, and key to the court's decision, were Griffin and his doctor's response.  Griffin wrote a letter stating that "My diabetes is a condition that does not have to be a disability if I manage it properly, but to do so I will need UPS to make the accommodation to permit me to work days."  His healthcare provider indicated "No" in response to the question regarding whether Griffin's impairments substantially limited his ability to perform any major life activities other than working.  None of the information provided by the physicians said that Griffin needed daytime work hours.  As a result of this information, UPS denied Griffin's request for accommodation.  Shortly thereafter, Griffin tendered his notice of retirement.  Prior to this retirement, he made no complaints to human resources about the denial of accommodation nor did he participate in UPS's formal dispute resolution program.  Like UPS, the trial court also concluded that Griffin was not disabled and granted judgment in favor of the company.

On appeal, the court reviewed the decision that Griffin was not disabled.   The court noted that Griffin had been able to manage his diabetes for years, without complication, so long as he maintained his regimen of medication, meals and rest.  In this mitigated state, pre-ADAA law, Griffin's impairments could not be considered to be substantially limited.  Importantly, the court observed that neither it, not the Supreme Court, has recognized the concept of per se disabilities and that Griffin's limitations were on the moderate end of the diabetes spectrum thereby not amounting to significant limitations on any major life activity.  Consequently, the court of appeals also found that Griffin was not disabled. 

Similarly, the court also affirmed judgment against Griffin on his failure to provide reasonable accommodation claim.  The court affirmed judgment on this claim because there was no evidence that UPS was unwilling to engage in a good faith, interactive process regarding his request for accommodation.  None of the information submitted by Griffin's doctors requested that he be assigned only daytime hours.  Moreover, Griffin admitted that his diabetes does not have to be a disability if managed properly. 

It should be clear that the Court's analysis of whether Griffin was disabled or diabetes qualifies as a disability has been superseded by the ADAA.  However, there are still some good analysis that survives the changes made in the ADAA.  First, where the information provided by the employee's doctor fails to demonstrate that the employee is disabled or that the particular accommodation requested is necessary because of the employee's disability, the employer does not fail to provide reasonable accommodation to a known disability.  Second, where the employee terminates the interactive process through voluntary resignation or retirement, a failure to provide reasonable accommodation claim is difficult to maintain because it is difficult for the court to determine what measures would have been taken had the accommodation discussions continued.

You can download a full copy of Griffin v. UPS, Inc. here.

Follow me on Twitter @RussellCawyer.

Does Title VII Protect Followers of the Church of the Flying Spaghetti Monster?

Imagine this, its Friday and you are sitting in your office as Director of Verizon’s newly created Office of Reasonable Accommodation.  An employee, I’ll call him Joe, walks into your office.  Joe tells you he's recently converted to the Church of the Flying Spaghetti Monster (i.e., he is now a Pastafarian); that Friday’s are his religion’s holiday; and that his religion requires him to wear a spaghetti strainer on his head at all times. He requests, as a reasonable accommodation of his religious beliefs, all Friday’s off from work and to have the photograph on his employee identification badge retaken so that he be shown wearing a colander on his head. What do you do?

Most employment civil rights laws require that employers treat all employees equally without regard to age, sex, color, race, national origin etc.  The ADA and Title VII's protection of employee's religious beliefs, however, may require employers to treat employees differently (i.e., reasonable accommodation).  Here, Joe's request to accommodate his beliefs (which appear sincerely held) can only be denied if accommodating the belief would cause undue hardship to the employer.  Undue hardship under Title VII is different than under the ADA.  Under Title VII, a proposed religious accommodation is often an undue hardship where it requires the employer to incur more than de minimus expense; violates a CBA, law or valid seniority system; ignores safety risks or requires other employees to work longer or harder. 

Applying these rules to Joe's request, unless you can establish that for security reasons employee photographs on access badges must be taken without headwear, you should probably tell Joe to get his colander while you get out the Kodak.  With respect to the request for all Fridays off, unless Joe's request would violate a CBA provision regarding bidding for schedules or would otherwise make Joe's co-workers work longer or harder, Joe should probably be allowed to take his Fridays off.

Follow me on Twitter @RussellCawyer.

Church of Flying Spaghetti Monster Resources Facebook and Wikipedia.

EEOC Takes Hog-Like Approach on Attendance as Essential Job Function

There's an old saying in rural America that "pigs get fat and hogs get slaughtered."  We used the phrase to describe someone who, instead of being satisfied with what he has, gets greedy.  In the litigation context it can be used to describe a party that takes overly aggressive, unreasonable and untenable positions.  My fellow bloggers, Work Blawg and Employment and Labor Insider posts last week about the EEOC's apparent position that attendance is not an essential job function (or not working as Work Blawg refers to it) makes me think the EEOC might be getting a little Hog-like in its attack on employer leave of absence and attendance policies.  The issues comes up in discussions of Verizon's record-setting $20 million settlement with the EEOC over its no-fault attendance policy.  As Robin Shea points describes the dispute that was settled:

The case was about charging absences under a no-fault attendance policy to employees who missed work because of medial conditions that were 'disabilities' within the meaning of the ADA.  It does not appear that medical leaves were at issue.  Exempting ADA conditions from no-fault attendance policies is a huge deal.

With the Verizon settlement, the EEOC is apparently signaling that it believes an employer commits a violation of the ADA when it charges an employee absence against a no-fault attendance policy when the absence results from a medical condition that qualifies as a disability.  Because the ADAAA now renders everyone disabled, the EEOC's position is troubling.  It suggests that the EEOC believes that attendance is not an essential function of most jobs. 

The problem with the EEOC's position (and where it crosses the line from being piggish to hoggish) is that the ADAAA made no changes to what is considered an essential job function or the well-settled standard that an employer need not eliminate essential job functions in providing reasonable accommodation.   Certainly, the ADAAA has given the EEOC ample reason to be aggressive in litigating issues on what constitutes a disability or is a substantial limitation on a major life activity.  However, the ADAAA made no changes to the statute regarding what constitutes reasonable accommodation or essential job functions.  Most courts have held that attendance is an implicit, essential job function of most employment.  Consequently, the EEOC's position that attendance is not an essential job function and employees cannot consider absences caused by "disabilities" under no fault attendance policies is puzzling.  If accepted by the Courts, the EEOC's position would require employer's to investigate each and every absence to determine whether the employee is disabled and whether absence was caused by a disability. 

Follow me on Twitter @RussellCawyer.

EEOC Holds Hearing on Leave of Absence as Reasonable Accommodation

This week the EEOC held a hearing on whether new or updated regulations and enforcement guidance was needed with respect to providing leave of absence as a reasonable accommodation for disabled employees.  The EEOC has recently been very aggressive in bringing suit against employers that use maximum leave policies or "inflexible" policies that provide no exception for reasonable accommodation.  For example:

  • EEOC v United Road Towing Inc., No. 10-cv-06259 (N.D. Ill.) (failure to provide reasonable accommodations by terminating disabled employees after exhausting 12 weeks of FMLA leave and refusing to re-hire employees after they were released to return to work);
  • EEOC v. IPC Print Services, No. 10-886 (W.D. Mich.) (failure to provide reasonable accommodations by terminating an employee rather than granting him a part-time schedule because he had exceeded the maximum hours of leave under company policy);
  • EEOC v. Princeton HealthCare System, No. 10-4216 (D.N.J.) (failure to provide reasonable accommodations by terminating employees after either seven days or 12 weeks, depending on eligibility for FMLA);
  • EEOC v. UPS, Case No. 09-5291 (N.D. Ill) (failure to provide reasonable accommodations by terminating employee for exceeding 12-month leave policy);
  • EEOC v. Denny’s, Inc., No. 06-2527 (D. Md.) (failure to provide reasonable accommodations by terminating a nationwide class of disabled employees at the end of the company’s pre-determined maximum leave limit).

And of course, the EEOC reached a $6.2M settlement with Sears over its use of a maximum leave policy. (See here).  I predicted the demise of "neutral absence control" or "maximum duration leave policies" over a year ago.  (Post here).  Moreover, I discussed how an employer's inability to rely on such policies will adversely affect an employer's ability to handle leaves of absence for employees needing leave for non-work-related injuries, workers' compensation leaves of absence and leaves caused by pregnancy.  

Hopefully the EEOC's proposed regulations on the use of leave of absence as a reasonable accommodation, optimistically (but probably unrealistically) slated for Fall 2011 publication, will provide employers with needed guidance that will preserve the ability for employer's to continue to use neutral or maximum duration leave of absence policies.   

What others are saying about this week's hearing:

EEOC and employers differ on the use of neutral maximum leave of absence policies

EEOC Meeting and Forthcoming Written Guidance Address Leave Policies and Reasonable Accommodations Under the ADA

Being Chronically Tired May Qualify as a Disability in Texas

A federal appellate court with jurisdiction over Texas held that chronic fatigue syndrome (CFS) may qualify as a disability under the Americans with Disabilities Act. According to the Centers for Disease Control, CFS is characterized by symptoms including weakness, muscle pain, impaired memory and/or mental concentration, insomnia, and post-exertional fatigue lasting more than 24 hours.  There is no known diagnostic test for CFS and physicians are left to rely on forensically unreliable self-reports of the patient to make this diagnosis.   Notwithstanding this inability to test for or confirm the existence of this "syndrome," the federal court of appeals covering Texas held that CFS might qualify as a disability that an employer must reasonably accommodate. 

In EEOC v. Chevron Phillips Chemical Co., L.P., the Fifth Circuit Court of Appeals reversed a summary judgment in favor of Chevron on an employee's claim that she was discriminated against and denied reasonable accommodation for her chronic fatigue syndrome.

The employee, Lorin Netterville, was first diagnosed with CFS in 1987 while attending school and caring for her children at home.  She received a six-week course of treatment and her symptoms disappeared.  In late-2000 Netterville applied for employment with Chevron and was eventually hired.  As part of the employment process Netterville completed a medical history questionnaire, where she failed to disclose a history of excessive fatigue with work or exercise.

Several years later Netterville was required to work long hours of overtime that included manually packing boxes and moving supplies as part of Chevron's office relocation. Netterville claims she begin to suffer sleep disruptions that included getting no more than 1-2 hours of sleep per night for 6-7 days at a time.  Once a month she claimed she would sleep 17 hours straight.  She also claims she "began to run low-grade fevers and to suffer from headaches, disorientation, pain in her temples, stiff joints, pain in her arms and legs, and numbness in her legs, as well as aphasia and problems with memory, concentration and decision-making at times she was unable to remember even her own son's name."  She became unable to sit or walk for more than thirty minutes at a time, was hypersensitive to light and sound, and experienced episodic crying spells and feelings of social isolation.  Approximately 1 year after her symptoms reoccurred Netterville was living with her sister who assisted her with daily living tasks like shopping, cooking, washing, showering, drying, dressing, and using the bathroom.  This assistance was primarily needed because of excruciating pain in Netterville's arms and morning nausea she experienced.

Netterville's physician suggested that she take a month off from work.  Because Netterville could not afford a month off without pay, she got her doctor to write a note advising for a two week break from work.  When Netterville presented her request to Chevron for the 2 weeks of time off, she inaccurately reported that her symptoms had reappeared 2 years earlier.  Because Netterville was hired by Chevron less than 2 years earlier, the company also began investigating whether Netterville had falsified her medical history questionnaire in addition to considering her leave request.  Ultimately Netterville was given her two weeks of leave.

Netterville's physician conditioned her release to return to work on additional accommodations.  He recommended that she be relocated to an office closer to her home.  Additionally, due to her alleged hand pain and concentration difficulties, the doctor also advised that Netterville needed to be in a job that allowed for alternate typing and reading rather than reading and typing for extended periods of time.  She also needed to be able to take a short nap during her lunch break.  When Netterville made these requests to her supervisor, he remained silent.  She was allowed, however, to return to work, and she was provided the accommodations she requested during her final 4 days at work.  Ultimately, Netterville was terminated for falsifying information on her medical questionnaire.

The EEOC filed a lawsuit on Netterville's behalf.  Relying heavily on EEOC-promulgated regulations and its compliance manual (the EEOC is one of the governmental agency litigants that gets to write the authority it then asks a court to rely on to find in its favor --something no private employer is allowed to do), the court of appeals held that Netterville was entitled to a jury trial on her claims because there were fact issues as to whether Netterville had a disability; whether she was terminated for a disability; and whether Chevron provided reasonable accommodation.

This case is an important reminder that any physical or mental impairment may qualify as a disability if it substantially limits a major life activity. Moreover, the major life activity substantially limited need have no bearing on an employee’s employment or performance of his or her job duties. With the passage of the ADA Amendments Act that substantially broadens the coverage of individuals with disabilities, expect more denials of and reversals of employer summary judgments in ADA cases.

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