Employers often struggle, and rightly so, with deciding how best to treat employees who have some physical or mental impairment, especially if the impairment seems to be affecting their work performance.  It is often very hard to balance the demands of expected workplace performance with an employee’s rights under the Americans with Disabilities Act (ADA) and Family and Medical Leave Act (FMLA).  A Court of Appeals decision last week provides a good review of some of the most important principals.

Factual Background

Charlene K. Wisbey worked as an Emergency Dispatcher for the City of Lincoln, Nebraska.   The position required her to receive calls for emergency service and dispatch emergency service units on a regular basis.  Prior to 2007, Wisbey’s performance evaluations were positive.

From January through February 2007, Wisbey used a significant amount of sick leave due to an upper respiratory infection. Because she had previously exhausted her allotted sick leave, the City issued her a written warning for taking excessive leave and recommended that she apply for intermittent leave under the FMLA.  On February 27, 2007, Wisbey applied for intermittent FMLA leave on the basis of depression and anxiety, claiming on the application that she had a serious health condition that rendered her “unable to perform the essential functions of her job.” Attached to the FMLA application was a medical certification from her physician, Dr. Pothuloori, stating that Wisbey suffered from recurring depression and anxiety which interfered with her sleep, energy level, motivation, and concentration.  Dr. Pothuloori’s certification also indicated that, although Wisbey was able to perform any one or more of the essential functions of her job,  she would need to take time off work intermittently over the next six months or longer.  

Because the medical certification from Dr. Pothuloori indicated that Wisbey’s concentration and motivation could be affected, the City scheduled an appointment for Wisbey with Dr. Eli Chesen, a psychiatrist, requesting that he perform a fitness-for-duty exam to determine whether Wisbey was qualified to continue her work as an emergency dispatcher.  After the examination, Dr. Chesen submitted a three-page report on his findings. The report stated that Wisbey suffered from chronic relapsing depression which intermittently interfered with her ability to function at full capacity at work, and that she was not “fit for duty as described in her job description, especially as related to tiredness, her ability to concentrate and her ongoing propensity to likely miss work.”

After receiving this report on March 28, 2007, the City expressed to Wisbey its concern that she could not perform her job, and placed Wisbey on administrative leave with pay. On April 3, 2007, the City met with Wisbey and provided her with a letter explaining that she was being terminated based on Dr. Chesen’s determination that she was unfit for duty. The letter also encouraged Wisbey to apply for long term disability benefits.  Wisbey filed suit instead. 

Legal Analysis

Wisbey first argued that she should not have been required to submit to a fitness-for-duty exam.  The ADA prohibits an employer from requiring a medical examination or inquiring into the disability status of an employee “unless such examination or inquiry is shown to be job-related and consistent with business necessity.”  The employer bears the burden to show the asserted business necessity is actually vital to the business and the request for a medical examination or inquiry is no broader or more intrusive than necessary.  At the same time, employers are permitted to use reasonable means to ascertain the cause of troubling behavior without exposing themselves to ADA claims, and fitness-for-duty exams are a reasonable means of making this determination.  Courts will readily find a business necessity if an employer can demonstrate a medical examination or inquiry is necessary to determine whether the employee can perform job-related duties when the employer can identify legitimate, non-discriminatory reasons to doubt the employee’s capacity to perform his or her duties (such as frequent absences), or whether an employee’s absence or request for an absence is due to legitimate medical reasons, especially where the employer has reason to suspect the employee is abusing its attendance policy.  The Court concluded that in light of Wisbey’s position as a dispatcher making life and death decisions supports, the City’s request for a fitness-for-duty exam was proper.

Wisbey next argued that she was not actually disabled, but that the City terminated her because it illegally “regarded: her as disabled.   As the Court noted, however, the prohibition against making decisions because an employer inappropriately “regards” an employee as disabled was established to combat “archaic attitudes, erroneous perceptions, and myths” working to the disadvantage of the disabled or perceived disabled  By contrast, if a restriction is based upon the recommendations of a physician, then it is not based upon myths or stereotypes about the disabled and does not establish a perception of disability.  Wisbey was terminated because she was not “fit for duty,” as reported by Dr. Chesen, and because she herself admitted in her FMLA application that she was suffering a serious health condition that rendered her unable to perform the essential functions of her job.  Accordingly,  there was no evidence of “regarded as” discrimination. 

In regard to her FMLA claim, Wisbey argued that  the fitness-for-duty exam was unwarranted because the City had previously accepted Dr. Pothuloori’s certification that she could perform any one of more of the essential functions of her job, although she would need to take time off work intermittently.  The Court found, however, that the FMLA does not provide an employee with a right to unscheduled and unpredictable, but cumulatively substantial, absences, or a right to take unscheduled leave at a moment’s notice for the rest of her career. On the contrary, such a situation implies that she is not qualified for a position where reliable attendance is a bona fide requirement.  Therefore, because Wisbey requested “intermittent leave” for “six months or longer” she did not have a right to FMLA leave.

Finally, the Court also rejected Wisbey’s argument that the City retaliated against her for taking FMLA leave because she could not establish a causal connection between her application for FMLA leave and her termination.  Rather, the City relied on the fitness-for-duty exam, and not Wisbey’s FMLA application, in its determination to terminate Wisbey’s employment. Generally, more than a temporal connection is required to present a genuine factual issue on retaliation,  and mere coincidence of timing can rarely be sufficient. 

Conclusion

In sum, then, employers struggling with these issues should keep the following points in mind:

• Employers are permitted to use reasonable means to ascertain the cause of troubling behavior as long as they have a business reason to do so.  Courts will readily find a business necessity if an employer can demonstrate a medical examination or inquiry is necessary to determine whether the employee can perform job-related duties when the employer can identify legitimate, non-discriminatory reasons to doubt the employee’s capacity to perform his or her duties (such as frequent absences).
• Courts will give great deference to recommendations made by outside professionals such as physicians.
• Neither the FMLA nor the ADA provides an employee with a right to unscheduled and unpredictable, but cumulatively substantial, absences, or a right to take unscheduled leave at a moment’s notice for the rest of her career. On the contrary, such a situation implies that she is not qualified for a position where reliable attendance is a bona fide requirement.  And employers should make sure that their job descriptions specifically reference regular and reliable attendance as an essential requirement of the job.

I’ve written previously, here and here, about Schwan’s efforts to quash a subpoena served by the EEOC as part of its investigation into claims of gender discrimination against female management trainees.  Magistrate Judge Mayeron rejected Schwan’s arguments back in March, and now Judge Tunheim has affirmed the Magistrate’s order, requiring Schwan’s to produce the sought-after documents.  I’ll try to post a copy of his very comprehensive Order once it is available.

A new twist on the old theme “You can’t fight city hall”?

A decision earlier this week by a Federal District Court Judge here in Minneapolis offers some very useful guidance on accommodating requests for religious accommodations by employees. 

Celestica Corporation operates a manufacturing plant in Arden Hills.  Adecco USA provides temporary employees to Celestica.  The plaintiffs are practicing Muslims who allege that Celestica discriminated against them by failing to accommodate their religious duty to pray five times each day.  In particular, Celestica permitted employees to take unscheduled breaks for personal reasons (such as to use the bathroom), but did not permit plaintiffs to take unscheduled breaks to pray.  Celestica instead argued that it offered the employees a reasonable accommodation by giving them the opportunity to transfer to a different shift which would be more amenable to pray breaks. 

 The Court first found that Celestica’s proposed accommodation — allowing the Muslim employees to transfer to the first shift — would not necessarily have resolved the conflict because different employees had different believes about when they were required to pray.  “Given the variance in the religious beliefs at issue in this case, the Court cannot conclude that, because the first-shift employees may be satisfied with their schedule, an offer to transfer to the first shift would have fully resolved the religious conflict for each of the plaintiffs in this lawsuit.”  While also recognizing that a company is not required to offer an accommodation that completely eliminates the conflict, the Court decided that the reasonableness of Celestica’s proposed solution was a factual issue that it could not decide at this stage of the case.    (In fact, as the Court recognized, an accommodation may be reasonable even if it does not completely eliminate the employee’s religious conflict.) At trial, Celestica could still argue that the proposed accommodation would result in an unreasonable hardship.

 The Court also offered guidance on how a jury might decide whether a proposed accommodation was reasonable:

“It turns on fact-intensive issues such as work demands, the strength and nature of the employee’s religious conviction, the terms of an applicable CBA, and the contractual rights and workplace attitudes of co-workers. Bilateral cooperation under Title VII requires employers to make serious efforts to accommodate a conflict between work demands and an employee’s sincere religious beliefs. But it also requires accommodation by the employee, and a reasonable jury may find in many circumstances that the employee must either compromise a religious observance or practice, or accept a less desirable job or less favorable working conditions.”

 The Court did offer some rules for determining whether a given accommodation is reasonable. For example:

• An employer is not required to deprive other employees of their contractual rights in order to accommodate an employee’s religious needs.
• An employer is required to offer a reasonable accommodation, not the accommodation preferred by the employee. Thus, if the employer has offered one reasonable accommodation, the employee cannot insist on a different reasonable accommodation, even if the preferred accommodation would not inflict undue hardship on the employer.
• An accommodation may be reasonable even though it imposes some costs on the employee.  At the same time, the extent of and justification for the costs imposed on the employee are relevant to the reasonableness of the employer’s efforts to accommodate.  
• An accommodation might be unreasonable if it imposes a significant work-related burden on the employee without justification.  However, if  there are two possible accommodations, neither of which would impose any cost whatsoever on the employer, but one of which would inflict such drastic personal hardship on the employee that the employee could not possibly accept it. In such a case, the employer’s decision to offer the accommodation that inflicts drastic personal hardship — with no corresponding benefit to the employer — would not seem “reasonable.”
• The reasonableness of any accommodation also depends on the nature of the employee’s religious beliefs and how they conflict with the employee’s work duties.

In summary the Court indicated that what is “reasonable” is difficult to boil down to a set formula. Instead, the determination of reasonableness is quintessentially a fact-bound inquiry that depends on the unique circumstances of each case.  Of course, this makes it more difficult for defendants to obtain summary judgment on this type of case, and easier for plaintiffs to get their case in front of a jury.

A new study by the American Bar Foundation shows that plaintiff’s chances of winning in federal court are actually quite slim.    The article, “Individual Justice or Collective Legal Mobilization? Employment Discrimination Litigation in the Post Civil Rights United States,” published in the June 2010 issue of the  Journal of Empirical Legal Studies, studies employment discrimination cases filed in federal courts between 1987 and 2003. The study found that the overwhelming majority of employment cases are brought by a single plaintiff; while cases involving multiple plaintiffs, class actions and representation by the EEOC or a public interest law firm are rare. More than 40 percent of plaintiffs either have their cases dismissed or lose at summary judgment. The other half are likely to settle very early in the process. Only six ercent of those filing employment discrimination lawsuits in federal court go to trial, where their chances of winning are one in three.  What is not clear is how many of the plaintiffs in the cases were represented by lawyers.

Debrahlee Lorenzana is suing Citibank, alleging that she was fired not because her work was inadequate, as the bank claims, but because she is “too hot”.  Really.  She says that her bosses told her they couldn’t concentrate on their work because her appearance was too distracting. They ordered her to stop wearing turtlenecks. She was also forbidden to wear pencil skirts, three-inch heels, or fitted business suits. When Lorenzana pointed out female colleagues whose clothing was far more revealing than hers, “They said their body shapes were different from mine, and I drew too much attention.”

 

There is more attention being paid to discrimination on the basis of appearance, like this article by a Stanford Law professor, but being “too hot”.  C’mon!

 

If you’d like to judge for yourself, Ms. Lorenzana’s photo gallery is at the Village Voice.

On May 24, the Supreme Court decided Lewis v. City of Chicago, which makes it easier for an employee to challenge an allegedly discriminatory employment practice.  In particular, the court held that a plaintiff met the 300 day statute of limitations for challenging an employer’s application of an allegedly discriminatory employment practice, even if the practice was adopted earlier.

 In 1995, the City of Chicago gave a written examination to over 26,000 applicants to the Chicago Fire Department. Using the results of the examination, the City divided applicants into three categories. Those who scored 89 or above were designated “well qualified.” Those who scored between 65 and 88 were “qualified” and were notified that they had passed the examination but that, based on the City’s projected hiring needs, they were unlikely to be called for further processing. Finally, those who scored below 65 were told they would no longer be considered for a firefighter position because they had failed the test. Applicants in the first two categories were placed on an “eligible list.” For approximately six years, the City used the eligible list on 11 different occasions to randomly select applicants for the next stage of the application process.  Each time, the city started with the “well qualified” applicants. Not until the eleventh occasions did the City exhaust the “well qualified” pool and randomly selected any applicants from the “qualified” category.

 On March 31, 1997, an African-American applicant who scored in the “qualified” range and who had not been hired filed a charge of discrimination with the EEOC. Five others followed suit, and the EEOC issued right-to-sue letters to all six individuals. They subsequently filed a class-action lawsuit against the City, alleging that its practice of selecting only those applicants who scored 89 or above resulted in a disparate impact on African-Americans, in violation of Title VII. The district court certified a class, denied the City’s motion for summary judgment challenging the timeliness of the claims, and ultimately entered judgment in favor of the plaintiff class.  The United States Court of Appeals for the Seventh Circuit reversed, holding that the claims were untimely because the earliest EEOC charge was filed more than 300 days after the city had adopted its system of classification.

The Supreme Court reinstated the district court’s decision.  Because the first charge of discrimination was filed within 300 days of the City’s use of the test scores, it was timely filed.   Each time that the City relied on the same list, it constituted a separate discriminatory act and re-started the 300 day clock.  In other words, even if a plaintiff does not challege the adoption of a practice within 300 days, he may challenge the later application of that practice.

This decision is noteworthy for two reasons.  First, both of my grandfathers were firefighters for the City of Chicago.  (My namesake, Thomas J. Conley, died in the line of duty.)  Second, my friend and University of St. Thomas Law Professor Rob Vischer was the law clerk for the District Court judge who ruled for the plaintiffs and was ultimately upheld by the Supreme Court.

A class action filed in New York yesterday alleges that the management consulting firm Accenture discriminates against African Americans and Latinos in the way it conducts its background checks.   In particular, it alleges that Accenture has rejected or fired otherwise  qualified individuals who have criminal records even where the criminal history has no bearing on the individual’s fitness or ability to perform the job.

According to the Complaint, “Such policies and practices are illegal because they adopt and perpetuate the racial disparities in the American criminal justice system … For decades, the Supreme Court and the EEOC have recognized that overly broad restrictions on hiring individuals with criminal records are discriminatory and illegal.”

The teaching here is clear: employers should avoid blanket criminal record policies.  Where a background check reveals a prior conviction, consider whether it would affect the applicant’s ability to perform the job.  For instance, a conviction for embezzlement would be a concern for a bank teller position; a conviction for jay walking would not. You should also consider how old the conviction is, and evidence of rehabilitation.  In the end, you need to be able justify the rejection of an applicant by pointing to legitimate business reasons for doing so.

Two other points:  make sure that background checks are being used and interpreted consistently across the company.  And focus on convictions, not on arrests.

For more guidance, check the EEOC’s website.

In Texas, plaintiff Balkrishna Shagrithaya claimed his partner/fellow entrepreneur, who was also the majority shareholder of the company, squeezed him out of the multi-million-dollar software company they both founded. Shagrithaya brought the action as an oppressed minority shareholder, a claim similar to those available under Minnesota law.  In particular, Shagrithaya alleged that his partner slashed his salary and attempted to push him out of the company. Shagrithaya sued to force a dividend payout, arguing he was an oppressed minority shareholder.

As in Minnesota, the Texas statute provides for “equitable” relief, meaning that the judge has a large amount of discretion to craft a remedy.   The judge took this to heart, adding $20 million to the advisory jury’s $65 million award to the plaintiff.

Under Minnesota law, shareholders in a closely held corporation owe each a duty of fair dealing.   Accordingly, these “oppressed shareholder” cases most commonly arise in two contexts:  when the majority owner tries to take unfair advantage of the minority owner, and when minority owners who are also employees claim that they are more than “at-will” employees.   Because the standards are hard to define, a majority owner dealing with a minority owner/employee must take extra care when terminating or taking other adverse action.

As reported on Work Place Prof Blog, the Eighth Circuit Court of Appeals (which covers Minnesota) issued an interesting opinion in a sex stereotyping/appearance case this week. In Lewis v. Heartland Inns, the court found that the plaintiff had presented enough evidence to suggest that she was fired for not conforming to stereotypes about how women should dress and look.

The plaintiff, Brenna Lewis, worked as a desk clerk position at the Heartland Inns in Waterloo, Iowa.  She performed well and received raises, customer compliments, and good feedback from her immediate supervisors. The problem arose when Lewis was moved to a day shift position, and the Director of Operations (who is also female) saw her for the first time.  Lewis prefers to wear loose fitting clothing, including men’s button down shirts and slacks. She avoids makeup and wore her hair short at the time. Lewis has been mistaken for a male and referred to as “tomboyish.” The DO told Lewis’ supervisor that she was not sure Lewis was a “good fit” for the front desk.  The DO followed up a few days later and again raised the subject of Lewis’ appearance, characterizing it as “an Ellen DeGeneres kind of look.”

The DO expressed the belief that Heartland “took two steps back” when Lewis replaced an employee who dressed in a more stereotypical feminine manner. The DO had previously boasted about the appearance of women staff members, and had indicated that Heartland staff should be “pretty,” a quality she considered especially important for women working at the front desk. She also had advised a hotel manager not to hire a particular applicant because she was not pretty enough.

The DO ordered Lewis’ supervisor to put her back on the night shift, but the supervisor refused because Lewis had been doing such a good job. The DO forced that Supervisor to resign, and then told Lewis that she would have to undergo a second interview for the position she held, using new video equipment which had been installed to ensure that clerks had the appropriate appearance. 

At the second interview, Lewis complained the appearance-related comments, and the DO forced Lewis to critique some recent company policies. When she was fired, the company stated that it was because of her behavior during this interview and “hostility” to recent policies.  Lewis sued for sex discrimination and retaliation.

The court found that there was evidence that sex stereotyping was the real reason for Lewis’ termination, as well as retaliation for her complaining about the discrimination.  “An employer who discriminates against women because they do not wear dresses or makeup, is engaging in sex discrimination because the discrimination would not occur but for the victim’s sex.”  According to the Court, companies may not base employment decisions on sex stereotypes, just as an airline cannot lawfully hire as flight attendants only young, attractive, “charming” women “dressed in high boots and hot-pants.” 

The lesson to employers: beware of making employment decisions based on stereotypes, especially those that are linked to an employee’s gender.  Don’t compare your employees to Ellen  DeGeneres.  And don’t try to hide your less attractive employees on the night shift!