Duty to reasonably accommodate obvious disabilities

Brady v. Wal-Mart Stores (2nd Cir. 7/2/08) asks whether an employer can ignore an employee's obvious disability when making employment decisions about that employee.

Patrick Brady has cerebral palsy, which very obviously manifested itself in his mannerisms. One trial witness testified: "Just by looking at him, you could tell he had a disability."

He applied for a part-time job at his local Walmart in its pharmacy department. He very quickly observed that his boss, Yem Hung Chin, was unhappy with his performance. He testified that "she was kind of short with me. At trial, Chin testified that she thought that Brady was too slow and that he appeared to have difficulty matching customers' names with their prescriptions. She thought Brady's performance was "absolutely awful,"and she "wanted [him] away from [her] prescriptions." Brady testified that he never handed out the wrong prescription, was never unable to find a prescription in the bin, and never required assistance from Chin or any other co-worker to perform his job.

After his first week of work, Walmart transferred Brady to collect shopping carts in the parking lot. After learning that Brady was unhappy with his new position, the store manager transferred him again, this time to stock grocery shelves. Frustrated, Brady quit and sued Walmart for disability discrimination. The jury returned a substantial verdict in his favor.

One of the issues on appeal is whether an employer is obligated to provide a reasonable accommodation when it perceives the employee to be disabled, whether or not the employee has asked for an accommodation. The court held that "an employer has a duty reasonably to accommodate an employee’s disability if the disability is obvious—which is to say, if the employer knew or reasonably should have known that the employee was disabled:

Indeed, a situation in which an employer perceives an employee to be disabled but the employee does not so perceive himself presents an even stronger case for mitigating the requirement that the employee seek accommodation. In such situations, the disability is obviously known to the employer, while the employee, because he does not consider himself to be disabled, is in no position to ask for an accommodation. A requirement that such an employee ask for accommodation would be tantamount to nullifying the statutory mandate of accommodation for one entire class of disabled (as that term is used in the ADA) employees.

Thus, if an employer knows of should know that an employee is disabled, the employer has a duty to engage in an interactive process with that employee to assess whether the disability can be reasonably accommodated.

For employers, the lesson is that one cannot turn a blind eye to an employee's obvious disability. Next week, we'll take a deeper look at the interactive process: what it means, how it is supposed to be carried out, and the risks inherent in ignoring it.

Dads get FMLA leave too

Even though new dads have the same FMLA rights as new moms, technically I'm not on FMLA leave. I'll be in and out of the office over the next several weeks as we get acclimated to our new family member. New parents don't qualify for intermittent leave:

(a) Intermittent leave is FMLA leave taken in separate blocks of time due to a single qualifying reason. A reduced leave schedule is a leave schedule that reduces an employee's usual number of working hours per workweek, or hours per workday. A reduced leave schedule is a change in the employee's schedule for a period of time, normally from full-time to part-time.

(b) When leave is taken after the birth or placement of a child for adoption or foster care, an employee may take leave intermittently or on a reduced leave schedule only if the employer agrees. Such a schedule reduction might occur, for example, where an employee, with the employer's agreement, works part-time after the birth of a child, or takes leave in several segments. The employer's agreement is not required, however, for leave during which the mother has a serious health condition in connection with the birth of her child or if the newborn child has a serious health condition.

Donovan Joseph Hyman was born at 12:42 yesterday, 7 pounds, 6 ounces, and 18.25 inches. And, not that I'm biased, but he's the best looking baby in the nursery.

WIRTW #39

Starting Monday, my posting may become more sporadic than I'd like, as my wife is going into the hospital to have our second child. I'll be taking care of my family responsibilities for a couple of weeks before I return to the office full time. I hope to do my best to keep posting, but it's all dependent on sleep patterns and how cooperative my normally very cooperative two-year-old wants to be. So bear with me, and I'll be back to regular postings later this month.

In the meantime, enjoy this week's best posts from other blogs.

The Delaware Employment Law Blog is taking everyone to HR Summer School by posting a series of "Back-to-Basics" articles on the 3 toughest employment laws - the ADA, the FMLA, and the FLSA. This week's lesson - What Does the ADA Require?

The Connecticut Employment Law Blog touches on a topic that I've covered before, that the presence of absence of fair treatment has a lot to do with whether an employee will sue you. For my thoughts on this issue, take a look at The Golden Rule of Employment Relations.

The Workplace Privacy Counsel lets us know about Sidell v. Structured Settlement Investments, recently filed in Connecticut, which will decide the limits on an employer's access, using its own computer equipment, to an employee's e-mail stored in an employee's personal e-mail account.

Case in point, the ABA Journal brings us the story of Philadelphia television news anchor Larry Mendte, fired for installing key stroke monitoring software on a station computer, which enabled him to access the private email account of his co-anchor, Alycia Lane. Philly.com has tons more on this bizarre story, including Lane's e-mailing of bikini photos of herself to NFL Network anchor Rich Eisen, who is married, her subsequent termination for allegedly assaulting a New York City cop, and the wrongful discharge lawsuit she has filed.

Electronic Discovery Navigator predicts that the added mobile technology made necessary by telecommuting will present an electronic discovery nightmare.

The Workplace Prof Blog lists 5 lifestyle choices that could cost an employee his or her job.

A lesson in union avoidance

No company does more to avoid unions than Walmart. Case in point - Wal-Mart Stores Inc. (NLRB 6/20/08). In the summer of 2000, Walmart's Kingman, Arizona, Tire and Lube Express (TLE) employees contacted United Food and Commercial Workers. The Union filed a representation petition on August 28. Two days later, a labor relations team from Walmart's corporate headquarters arrived at the store. During the organizing campaign, members of that labor relations team did such things as: threaten to postpone any merit pay increases for the TLE employees during any contract negotiations; engage in surveillance of employees' union activities; grant benefits and improved working conditions to discourage employees from supporting the Union; discriminatorily and disparately apply and enforce its no-harassment policies to the detriment of employees who supported the Union; and discharge and deny COBRA coverage to employees for supporting the Union.

It is not much of a surprise that the NLRB found that Walmart engaged in unfair labor practices. The point, however, is not whether Walmart violated the NLRA, but in how Walmart handled the litigation. The organizing campaign started in August 2000. The NLRB issued its final decision and remedial order nearly 8 years later. And that timeline does not include any appeals to federal court, which will add at least another 12 - 18 months. Does anyone doubt for a second that Walmart's strategy is to drag this process out as long as possible, making it as costly, difficult, and time consuming for the union and its members? Does anyone want to wage a bet on how long it will take Walmart to actually sit down and bargain with this union? By the time Walmart has exhausted all of its appeals on every claim the Union could possibly bring, will any of the original LTE employees be left at the store? If not, how can the Union say a majority of the bargaining unit even wants a union? The de-certification petition will surely follow.

The lesson from this case is that a successful organizing campaign is not necessarily the end game for a unionized workforce. The laws might be tilted towards the unions, but for companies that have the resources and the patience, the process can be used to their advantage to ultimately break the union.

Ohio Supreme Court takes a stand against liability for bullying (sort of)

Fontella Harper and Beverly Kaisk were neighbors in a public housing project. Apparently, Kaisk had problems living next door to an African American family, and let them know about it, frequently and offensively. Harper complained to building management, who took no corrective action. Kaisk's lease included a provision requiring tenants to conduct themselves in a manner that "will not disturb the neighbors' peaceful enjoyment of their accommodations," and the landlord could have terminated the lease "for serious or repeated violations of material terms of the lease."

Harper sued the landlord for housing discrimination based its failure to take corrective action of the racial harassment. Yesterday, in Ohio Civil Rights Commission v. Akron Metropolitan Housing Auth., the Ohio Supreme Court held that a landlord is not liable for failing to take corrective action against a tenant whose racial harassment of another tenant created a hostile housing environment.

You might be asking, what does a housing discrimination case have to do with employment law? The plaintiff argued that a landlord should be liable for a hostile environment on the same basis that an employer can be held liable. The Court disagreed:

[I]mposing liability on an employer who knew or should have known about coworker harassment was an application of negligence liability....This liability of an employer for an employee's negligence derives from the established principles of agency law.... None of those factors apply to the liability of a landlord for the actions of a tenant. The agency principles that govern employer-employee liability have no parallel in the context of landlord-tenant disputes....

The amount of control that a landlord exercises over his tenant is not comparable to that which an employer exercises over his employee. As the appellants observe, a landlord does enjoy a measure of control through his ability to evict tenants. In the present case, the lease signed by Kaisk gives the AMHA authority to evict a tenant who disturbs other tenants' "peaceful enjoyment of their accommodations." The power of eviction alone, however, is insufficient to hold a landlord liable for his tenant's tortious actions against another tenant.... We therefore reject the argument that our precedent in the employment context applies to the cause of action at issue here.

It's not earth-shattering news that agency principles hold employers liable for discriminatory (e.g., sexual, racial, etc.) harassment of one co-worker by another. This case, however, also speaks to the Court's unwillingness to extend harassment liability beyond the current parameters of the law. The Court could have reasoned a duty to correct from the power to evict, and from that duty fashioned a remedy for the harassed tenant. The Court, though, expressly rejected that argument.

For those who hold out hope that Ohio courts might recognize a general cause of action for workplace bullying, this opinion is a strong signal that our state's highest court would reject such an attempt.

Medical questions during job interview doom employer in discrimination case

Doe v. Salvation Army, decided last week by the 6th Circuit, provides employers with a valuable lesson on the dangers of asking the wrong question during a job interview.

Doe (whose proceeded pseudonymously to protect his confidentiality) had a history of paranoid schizophrenia. During a job interview with the Salvation Army, Doe was told of the requirements for the job, including the expected work days. Doe advised that he could not work on Fridays because, "[he] had to see [his] doctor, and . . . pick up [his] medicine." Doe claims that the interviewer asked him in response, "what kind of medication," to which Doe responded "psychotropic medicine." Doe claims the interviewer then ended the meeting and Doe was ultimately rejected for the job.

The Salvation Army argued, and the district court agreed, that Doe was rejected for safety concerns, not for reasons solely based on his disability. The 6th Circuit, however, found there to be a genuine issue of material fact as to whether the decision not to hire Doe was based solely on his disability:

It was immediately after Doe revealed his specific medications that Snider abruptly ended the interview. Snider testified that he ended the interview stating, "I did not say flat out no," but rather, "I'll have to check [the insurance] out." As we now know, he did not do so.

An employer may not base a hiring decision on a perceived notion that the applicant’s disability renders him incapable to perform the job. The district court stated that "[c]ourts have unanimously held that an individual with a disability 'cannot perform the essential functions of a job if his handicap poses a significant risk to those around him.'" But in May 2005, Snider ended Doe's interview not because he concluded that Doe's employment as a driver would pose a risk to others, but because Snider "wasn't going to take a chance" on Doe.

The Salvation Army got in trouble because it sought the wrong information in the wrong way. The employer provided legitimate information - the required work hours - an essential function of the job. Unprompted, Doe then voluntarily disclosed medical information. At that point, the interviewer should have simply confirmed that Doe could not meet that particular essential requirement and moved on to a different topic. At that point the company could have rejected Doe based on his inability to work the required hours, a decision that would not have been tainted by the inappropriate follow-up question, "What kind of medicine?"

6th Circuit decides standard of proof for mixed motive cases

Disparate treatment claims under Title VII are categorized as either single-motive claims (where only an illegitimate reason motivated the employment decision), or mixed-motive claims (where both legitimate and illegitimate reasons motivated the decision). Mixed-motive claims are specifically covered in 42 U.S.C. 2000e-2(m): "An unlawful employment practice is established when the complaining party demonstrates that race, color, religion, sex, or national origin was a motivating factor for any employment practice, even though other factors also motivated the practice."
In Desert Palace v. Costa, the U.S. Supreme Court found that a plaintiff may prove a Title VII mixed-motive case by either direct or circumstantial evidence, and held that to obtain a mixed-motive jury instruction, "a plaintiff need only present sufficient evidence for a reasonable jury to conclude, by a preponderance of the evidence, that ‘'race, color, religion, sex, or national origin was a motivating factor for any employment practice.'" The opinion left open the issue of whether the McDonnell Douglas burden-shifting framework should apply to a summary judgment analysis of mixed-motive discrimination claims based on circumstantial evidence as it applies to single-motive discrimination claims based on indirect evidence.
Since Desert Palace, the 6th Circuit has been silent on the issue of the proper evidentiary framework to apply to mixed-motive cases at the summary judgment stage. Some circuits have expressly applied the McDonnell Douglas analysis, some have applied a modified McDonnell Douglas approach, under with a plaintiff can rebut the employer's legitimate non-discriminatory reason either with evidence of pretext or evidence of the mixed motive.Yet another approach is to permit the plaintiff to rebut the employer's legitimate non-discriminatory reason with evidence that a discriminatory reason more likely than not motivated the decision.
In White v. Baxter Healthcare Corp., decided last week, the 6th Circuit finally weighed in on this issue:

The McDonnell Douglas / Burdine burden-shifting framework does not apply to the summary judgment analysis of Title VII mixed-motive claims. We likewise hold that to survive a defendant’s motion for summary judgment, a Title VII plaintiff asserting a mixed-motive claim need only produce evidence sufficient to convince a jury that: (1) the defendant took an adverse employment action against the plaintiff; and (2) "race, color, religion, sex, or national origin was a motivating factor" for the defendant’s adverse employment action.... This burden of producing some evidence in support of a mixed-motive claim is not onerous and should preclude sending the case to the jury only where the record is devoid of evidence that could reasonably be construed to support the plaintiff’s claim.

The Court, however, did not totally dismiss any applicability of McDonnell Douglas to mixed-motive cases:

Although the employee need not establish a McDonnell Douglas prima facie case to defeat a motion for summary judgment on a mixed-motive claim, setting forth a prima facie case of discrimination under McDonnell Douglas can aid the employee in showing that an illegitimate reason motivated the adverse employment decision. [Likewise, in] assessing whether an employee has demonstrated that an illegitimate reason was a motivating factor in the employer’s adverse decision, the court should also consider evidence presented by the employer that the protected characteristic was not a motivating factor for its employment decision. (quoting Wright v. Murray Guard, Inc., 455 F.3d 702, 720 (6th Cir. 2006) (Moore, J., concurring)).

Thus, to survive summary judgment in a mixed-motive case, the plaintiff need only show:

1. an adverse action, and
2. some evidence that the protected class was a motivating factor for that adverse action.

This burden is low, and will likely make it much easier for plaintiffs in the 6th Circuit (and most likely Ohio state courts, which follow 6th Circuit precedent) to defeat summary judgment in a mixed-motive case. It will also create an incentive for employees to frame their cases as mixed-motive cases, because these cases will be more likely to go to a jury under this standard than single-motive cases under the traditional McDonnell Douglas standard.