Court vindicates employer who turned a blind eye to a request for a reasonable accommodation

Buboltz v. Residential Advantages, Inc., decided last week by the 8th Circuit, illustrates the important point that merely because an employee has a disability does not mean that an employer must make a reasonable accommodation. This case also highlights, however, the risks that employers assume when ignoring a potential request.

Buboltz is legally blind. Residential Advantage, Inc. ("RAI") provides residential services to disabled individuals who cannot live independently. It hired Buboltz as a direct service provider ("DSP"), meaning she was responsible for providing services to the residents. Part of a DSP's job is to provide transportation to the residents. As an accommodation for Buboltz's blindness, however, at the time of hire RAI exempted her from that job function. When her supervisor became concerned about some performance issues (such as dispensing a resident's medications 3 hours late, and touching a resident's crotch to determine if he had wet himself), she modified Buboltz's job duties further. Thus, Buboltz was no longer allowed to dispense meds or be alone with patients. It was explained to Buboltz that her job was being modified out of a concern that licensing agencies might take issue with her blindness. In response, Buboltz said, "I have, like, numerous devices that I can use."

Buboltz claimed that her statement was a request for a reasonable accommodation, which RAI failed to subsequently provide. The Court disagreed. It found that Buboltz's statement was not a request for an accommodation, but a statement that she did not need any accommodation. Because Buboltz's statement was not a request for a reasonable accommodation, RAI was not under any obligation to engage in any interactive discussion with her about whether an accommodation was possible.

This case is not as clear cut as the Court makes it out to be. RAI had already accommodated Buboltz when it hired her by waiving the driving requirement. An employer's duty to reasonable accommodate a disabled employee is a continuing one and is not exhausted by merely one effort. A good argument can be made that when RAI concluded Buboltz should not dispense medication or work alone with residents, it should have discussed possible accommodations that could have allowed her to maintain those job responsibilities. By failing to do so, RAI took a calculated risk that ended up paying off.

Despite RAI's success, the take-away for employers from this case is not to ignore employees' requests for reasonable accommodation. If an employee's statement can be construed as a request for help to perform a job because of a disability, the employer has an obligation to engage in the interactive process to determine if there is a reasonable accommodation that can be made. Employers who ignore this obligation do so at their peril.

Ledbetter Fair Pay Act dies in Senate

Paul Secunda at the Workplace Prof Blog and CNN each have the details.

White House comes out against Ledbetter Fair Pay Act

It's been nearly a year since the Supreme Court decided Ledbetter v. Goodyear Tire & Rubber Co., which held that the statute of limitations for a pay discrimination claim under Title VII begins to run when the pay-setting decision is made, and not when the employee learns of the discrimination. The Ledbetter decision set of a reactionary wave in Congress. Less than 2 months after Ledbetter, the House passed the Lilly Ledbetter Fair Pay Act of 2007, which would amend Title VII, the ADEA, the ADA, and the Rehabilitation Act such that a discriminatory compensation decision occurs each time compensation is paid per that decision. In other words, each receipt of a paycheck would start a new statute of limitations running, regardless of when the actual discriminatory decision was made or implemented.

While the Senate mulls the Lilly Ledbetter Fair Pay Act, the White House has publicly come out against it. From CNN:

The White House said it supports anti-discrimination laws, but that statutes of limitations are crucial in fact-intensive cases. A prompt assertion of discrimination is critical for both employers and employees, the White House said.

"This legislation does not appear to be based on evidence that the current statute of limitations principles have caused any systemic prejudice to the interests of employees, but it is reasonable to expect the bill's vastly expanded statute of limitations would exacerbate the existing heavy burden on the courts by encouraging the filing of stale claims."

I've been on record opposing the Ledbetter Fair Pay Act. It would create a floating statute of limitations for pay discrimination claims, potentially granting all employees the right to sue in perpetuity. Statutes of limitations serve several important purposes, including promoting certainty. Businesses need to know that they will reach a point in time when decisions cannot be challenged in court. Moreover, the more time that elapses between a decision and a lawsuit, memories fade and evidence becomes stale, making it more difficult for a company to rebut the claim. Lilly Ledbetter, for example, sued for a decision nearly 20 years hence. Who at Goodyear still has any knowledge about that decision?

School's ban of tag underscores why the workplace bullying movement might catch on

Today's example of society's downward spiral to wussification, which plays right into the hands of the anti-bullying movement, comes from the Washington Post, which reports that a Virginia elementary school has banned tag at recess:

Robyn Hooker, principal of Kent Gardens Elementary School, has told students they may no longer play tag during recess after determining that the game of chasing, dodging and yelling "You're it!" had gotten out of hand. Hooker explained to parents in a letter this month that tag had become a game "of intense aggression." ...

Many schools nationwide have whittled down playground activities in response to concerns about injuries, bullying or litigation. Dodge ball is a thing of the past in many places, and contact sports are often limited at recess. ...

Since the prohibition began early this month, physical education teachers have begun a "chasing, fleeing and dodging" unit in first through fifth grades. Students essentially play variations of tag, and the teachers remind them about safety rules and point out the athletic skills they can transfer to other sports, said Sue Straits, a PE teacher.

Other parents said that slips and falls are part of growing up and that restricting games is not the right solution. Chris Delta, a Kent Gardens mother, said she knows "life's not going to breeze" for her children. She wants them to learn how to cope with difficulty. Her own daughter has been injured on the playground, she said. Once she was pushed off a jungle gym and had the wind knocked out of her, and another time she got a goose egg when a student threw a rock in the air and it landed on her head. "I didn't expect because of these two instances that the equipment would be banned or all the rocks or pebbles or stones would be taken away," Delta said.

Michael Haaren, a father, said that if some children are being too aggressive, they should be disciplined. Limiting the activity is a "draconian" measure, he said. He is concerned that schools are on a bad trajectory. "Where are we headed here? The elimination of recess altogether? It has happened in other schools. Will we eliminate 'duck duck goose' because kids are being touched?" he asked.

Don't think for a second that today's kids who can't handle playground games aren't going to be tomorrow's employees who will run to court every time their boss is mean. [Hat tip: John Phillips' The Word on Employment Law]

Firing of Food Network host illustrates resume fraud

Cleveland restaurateur and Iron Chef Michael Symon is set to take over as the new host of the Food Network's Dinner: Impossible series this fall. Great news for Chef Symon and Cleveland in general, but what does this have to do with employment law? According to the Cleveland Plain Dealer, the Food Network fired the show's prior host for resume fraud:

Symon is stepping in at "Dinner: Impossible" after the St. Petersburg Times revealed in early February that original host Robert Irvine exaggerated a wee bit on his resume. Like that bit about cooking for England's royal family. And being a White House chef, among other things.

Resume fraud is a big problem for employers that largely goes undetected. Some surveys show that perhaps as many as 30-40% of resumes contain intentional inaccuracies, such as lies and exaggeration about education, prior jobs, experience, and qualifications. The issues for businesses are two-fold:

1. How does one guard against hiring a candidate with exaggerated or flat-out false credentials?
2. What does one do upon finding out that an employee lied to get the job?

1. Background checks
The best way to guard against resume fraud is to thoroughly screen all job candidates' credentials. Myriad companies offer services for checking the veracity of job applicants' background information. Do your homework, though, as some companies are much better than others. Also, check with your attorney, because the Fair Credit Reporting Act has certain mandatory notice and consent requirements that could subject you to unnecessary liability if they are not followed.
Reference checks should also be part of any screening process. Ohio business should not fear accurately responding to inquiries from other business about past employees. Ohio has a statute, R.C. 4113.71, that gives employers a qualified immunity to provide job reference information. An employer can give a prospective employer information about an employee's job performance without fear of liability, unless the former employer knows the information is false, or makes the disclosure with the intent to mislead, in bad faith, or with a malicious purpose. The statute also has an exception for violations of the employment discrimination laws, so, for example, you can't give good references to white employees and bad references to black employees and safely hide behind 4113.71.
2. Post-hiring detection
What happens, however, if you find out that an employee lied about his or her background after that employee has already started working? Viewing this situation as "no harm, no foul" (i.e, the employee is doing a good job, so I'll overlook the resume fraud) is short-sighted. Unless a company consistently terminates employees who have been found to have lied or embellished their credentials, it likely risks a discrimination claim if and when it chooses to fire an employee within a protected class for resume fraud.
Also, a failure to consistently enforce a policy against resume fraud will limit a business's ability to use an after-acquired evidence defense. Often times, resume fraud is not uncovered until after a terminated employee sues the company and the employee's background is dissected during the discovery process. The after-acquired evidence defense permits an employer to cut-off its liability for back pay to a terminated employee at the point in time it would have fired the employee based on something learned after the employee was terminated. Thus, if it is uncovered during litigation that an employee lied about his or her background, the after-acquired evidence defense allows for the termination of back pay liability as of the date of that discovery. Unless, however, a company has a consistent policy of terminating those who lie on their resumes, it will have an uphill battle convincing a court that it would have terminated this plaintiff upon the discovery.
As with most issues in employment relations, it is best to temper expectations. Employment applications should contain clear disclosures that the employee signs off on, which states the all of the information is true and accurate to the best of the employee's ability, and that false information will disqualify the candidate from employment and subject the employee to termination. Employee handbooks should contain similar language that resume fraud discovered during employment is grounds for immediate termination. Of course, policies are only as good as their consistent enforcement.

EEOC settles landmark "cat's paw" discrimination case

When an adverse employment decision is made by a person who lacks impermissible bias, but was influenced by another individual who was motivated by such bias, is the employer liable for this rubber-stamped decision? While courts have not conclusively answered this question, the majority answer is yes. The leading case recognizing this theory of liability is EEOC v. BCI Coca-Cola Bottling Co. It famously describes this type of discrimination as "cat's paw" liability. "Cat's paw" derives from a fable in which a monkey tricks a cat into scooping chestnuts out of a fire so that the monkey can eagerly gobble them up, leaving none left for the cat. It generally describes a situation where one is unwittingly manipulated to do another's bidding.

Last week, the EEOC reported that it settled with BCI on behalf of Stephen Peters, the African-American employee on whose behalf it sued, for $250,000. BCI fired Peters back in 2001. The district court had found that the managers who actually fired Peters did not even know that he was black. The appellate court, however, concluded that a jury could reasonably conclude that the termination was based on Peters' race: "In making the decision to terminate ... the human resources official relied exclusively on information provided by Mr. Peters' immediate supervisor, who not only knew Mr. Peter's race but allegedly had a history of treating black employees unfavorably and making disparaging racial remarks in the workplace."

The "cat’s paw" theory of liability highlights the importance of employers conducting independent and thorough investigations prior to making any employment decision. Most courts that have adopted this theory of liability will not protect a decision maker's paper review of the decision without an independent investigation. Thus, instead of relying upon the recommendation of another, the actual decision maker should take such steps as interviewing the affected employee, independently interviewing other key witnesses, and personally reviewing relevant documents.

What else I'm reading this week #27

I thought it only appropriate to start this week's review with a picture from the balcony where I did a lot of this week's reading.

Anyhow, back to reality.

Wayne Schiess's legal-writing blog reports that Congress has passed something called the Plain Language in Government Communications Act of 2008. If laws start being written in plain English, what am I going to do for a living?

The Labor and Employment Law Blog provides 13 factors to consider in conducting a proper workplace investigation.

SCOTUS Blog tells us that the Supreme Court is considering taking up the scope of Title VII's religious exemption.

Law.com discusses the intersection between family-friendly workplaces and family responsibility discrimination.

Finally, BLR's HR Daily Advisor enlightens employers as to the pitfalls that await those who misclassify non-exempt employees as exempt.