Do you know? What triggers the duty of reasonable accommodation?

Suppose an employee suffers from sleep apnea, which keeps the employee awake for periods of time at night. In fact, the employee’s nighttime sleep patterns are interrupted to the point that the employee is excessively tired during the work day.

Two weeks after being hired as a manager, the employee falls asleep during a meeting. When questioned, he mentions that he has sleep apnea, but blames the nap on the warmness of his room coupled with his jacket and tie. The employee would repeat his workplace naps numerous times over the next year, and when questioned he would merely state that he had a rough night. He never asked for an accommodation of his sleep apnea, nor indicated that sleep apnea was
interfering with his job. This pattern continued for 18 months.

Finally, the employee’s supervisor catches him sleeping at his desk in the middle of the work day. When it took her more than five minutes to roust him, she told him that he could resign his employment or be terminated. The employee claims that he said that he had sleep apnea which causes him to involuntarily fall asleep, although he never requested any type of accommodation. In his resignation letter, he stated that he was disappointed that his employer was unable to accommodate his medical condition.

These are the facts of Medlin v. Springfield Metro. Hous. Auth. (Ohio App. 8/6/10) [pdf], a case in which Medlin sued for constructive discharge for a failure to reasonably accommodate his sleep apnea. The court of appeals upheld the dismissal of his claim because he failed to request an accommodation for his disability:

Federal courts have recognized that the duty of an employer to make a reasonable accommodation also mandates that the employer interact with an employee in a good faith effort to seek a reasonable accommodation…. To show that an employer failed to participate in the interactive process, a disabled employee must demonstrate: 1) the employer knew about the employee’s disability; 2) the employee requested accommodations or assistance for his or her disability; 3) the employer did not make a good faith effort to assist the employee in seeking accommodations; and 4) the employee could have been reasonably accommodated but for the employer’s lack of good faith.

As noted, Medlin never asked for reasonable accommodations to accommodate sleeping on the job before being given the option to resign or be terminated. At that time, Medlin did not even suggest what a reasonable accommodation might be; he simply stated in his resignation letter that he was disappointed that SMHA was unable to accommodate his medical condition. SMHA was entitled, however, to terminate Medlin’s employment the day before, when he was found asleep in violation of company rules. There is no showing that SMHA failed to act in good faith by giving Medlin the option the following day to resign or be fired for sleeping on the job, particularly when Medlin had never asked for an accommodation. This is not a situation in which an employee was ignorant of his condition. Medlin was aware for many years that he had sleep apnea, and had ample opportunity to bring the issue of accommodation to his employer’s attention. Medlin was twice questioned about sleeping on the job, and was specifically informed that he had been observed sleeping by other employees and by board commissioners. Nonetheless, Medlin failed to ask for a reasonable accommodation for his condition.

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Presented by Kohrman Jackson & Krantz, with offices in Cleveland and Columbus. For more information, contact Jon Hyman, a partner in our Labor & Employment group, at (216) 736-7226 or jth@kjk.com.

California court declares open season on stray workplace remarks

Traditionally, an employee cannot use stray remarks in the workplace to prove discrimination. Under the stray remarks doctrine, courts deem irrelevant any remarks made by non-decisionmaking coworkers or remarks made by decisionmaking supervisors outside of the decisional process. For more than 20 years employers have successfully avoided liability for crude and even discriminatory remarks made employees not involved in a decision to fire or demote, and for comments that are remote in time from the adverse employment action.

Reid v. Google [pdf]—decided last week by the California Supreme Court—has tossed this long-standing doctrine on its head. The Reid court flatly rejected the stray remarks doctrine in an age discrimination case. Briefly, Brian Reid, a former Google senior executive, claimed that the company discriminated against him because of his age when it terminated his employment. In support of this claim, he pointed to three key pieces of evidence:

1. Statements by one supervisor that Reid was slow, fuzzy, sluggish, lethargic, did not display a sense of urgency, lacked energy, and that his ideas were obsolete and too old to matter.
2. Statements by another supervisor near the time of the termination that Reid was not a good “cultural fit.”
3. Coworkers’ comments calling Reid an old man and an old fuddy-duddy, and a joke that his office placard should be an LP instead of a CD.

The court rejected a strict application of the stray remarks doctrine, concluding that it “would result in a court’s categorical exclusion of evidence even if the evidence was relevant…. An age-based remark not made directly in the context of an employment decision or uttered by a non-decision-maker may be relevant, circumstantial evidence of discrimination.”

One case does not make a trend. Plus, if there’s one thing I learned in law school it’s that California is legal la-la land, where white is often black and black is often white. For the sake of employers, I hope this is the case with the stray remarks doctrine. Certainly, plaintiffs all over the country will use the Reid decision to argue against summary judgment in cases in which there are stray remarks. It will bear watching to see how federal courts and states other than California react to Reid. Reid can either be an anomaly in a sea of stray remarks, or a sea change in how courts rule on summary judgment in employment cases. The latter will have a catastrophic effect on employers’ ability to defend themselves against discrimination claims. It’s hard to find a workplace in which stray remarks don’t exist. If Reid becomes doctrine, it will be hard to find a discrimination case in which an employer will be able to withstand summary judgment.

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Presented by Kohrman Jackson & Krantz, with offices in Cleveland and Columbus. For more information, contact Jon Hyman, a partner in our Labor & Employment group, at (216) 736-7226 or jth@kjk.com.

WIRTW #138

Boy has it been quiet this week. Sure, the Senate confirmed Elena Kagan to a seat on the Supreme Court, but otherwise it seems like everyone (but me) are away on their summer vacations. Whether you are away or not, consider this as my tip of the week: your office desk is not a great place to stash your collection of kidding porn (c/o Above the Law)

Here's what I read during what felt like an unusually sedate week:

Discrimination

• Muslim Head Gear Ban Allowed by 3rd Circuit – from Philip Miles’s Lawffice Space

• More Men Filing Sex Discrimination Suits – from Law.com

• Fired for Cubicle Exorcism: Is That Religious Bias? – from Mindy Chapman’s Case in Point

• Customer Preference Not Justification for Discrimination – from GT LE Blog

• A Labor Market Punishment to Mothers – from Howard Bashman’s How Appealing

• ADA’s 20th Anniversary: A Contrary View – from The Word on Employment Law with John Phillips

• Getting to Work – from Charles Sullivan at the Workplace Prof Blog

Wage and Hour

• Court Rules Employee Does Not Necessarily Need to Comply with Employer’s Heightened FMLA Notice Procedure – from Texas Employment Law Update

• Disciplining FMLA Leave-Takers – from The HR Cafe

• FMLA Inclusion Act Introduced in Congress ... Again – from FMLA Insights

• Overtime Compliance Must Be Taken Seriously—Damages are Severe and Potentially Crippling for a Business – from Overtime Advisor

Technology

• Employees: If You’re Too Stupid to Set Your Facebook Privacy, You Deserve It If HR Looks – from Know HR

• Wife Says She Learned From Facebook That Her Hubby Had Another Wedding – from the ABA Journal

• I Shouldn’t Have to Tell Employees This, But I Do – from Popehat

• No Need for Panic: 10 Tips to Prevent Employee Issues with Social Media – from TLNT, the Business of HR

• Tips for creative success from Pixar – from Presentation Zen

• Blog Comments as Trial Evidence – from the Delaware Employment Law Blog

• Adobe’s Advice on Purging PDF Documents of Metadata – from Ride the Lightning

• I Tweet, Therefore I am – from Peggy Orenstein in the New York Times Magazine

• Juvenile corrections officer fired over Facebook slurs – from Chris Tye at wkyc.com

HR

• Bereavement Leave for the 21st Century – from Mike Maslanka’s Work Matters

• Leading a Good Fight: Stories and Rules – from Bob Sutton’s Work Matters

Trade Secrets and Non-Compete Litigation

• Trade Secrets of Ultimate Fighting—Stolen? – from Trade Secrets Blog

• From Trade Secrets to Newsletters, What Do Confidentiality Agreements Really Cover? – from Trade Secret/Noncompete

• Emergency! What Can an Employer Do When An Employee is Violating A Non-Compete Agreement – from Dan Schwartz's Connecticut Employment Law Blog

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Presented by Kohrman Jackson & Krantz, with offices in Cleveland and Columbus. For more information, contact Jon Hyman, a partner in our Labor & Employment group, at (216) 736-7226 or jth@kjk.com.

The best way to settle an employment case

Yesterday at Jottings By An Employer’s Lawyer, Michael Fox praised the Employment Law Group for announcing a jury trial loss in a blog post. You may be asking yourself why would a defense lawyer announce a loss. It’s what I call smart marketing. There are two things employment plaintiff’s count on to extort a high settlement: 1) a denied summary judgment motion with a firm trial date, and 2) cold feet by a business or its lawyer to take the case to a jury. If you want to obtain a fair settlement in your next employment case, hire an attorney with a proven track record of trying cases. Before you hire the lawyer to defend your next claim, ask him or her how many cases he or she has tried to a jury, and how long ago the last jury trial was.

There are very few things in the law that take more guts than taking an employment case to trial as an employer. No one wants a jury to resolve a dispute. Knowing that your lawyer has the confidence to try your case will give you the confidence to draw a reasonable settlement line in the sand. That line might be at or near zero. You should never pay more than you think a case is worth merely to avoid a trial. Knowing your lawyer can and will try your case for you will enable you to hold that line.

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Presented by Kohrman Jackson & Krantz, with offices in Cleveland and Columbus. For more information, contact Jon Hyman, a partner in our Labor & Employment group, at (216) 736-7226 or jth@kjk.com.

Celebrating the ADA, but bemoaning its breadth

As I noted last Friday, the ADA recently enjoyed its 20th anniversary. Last Monday, in The New Republic, Jonathan Cohn celebrated the ADA and its accomplishments for disabled Americans. And, I agree with him—in part. It’s hard to disagree with a law that has opened access to businesses and employers to those with legitimate disabilities. But (and it’s a big but), the ADA has also opened employers to abuses by many who have marginal medical issues, or medical issues that do not impact their day-to-day ability to perform their jobs. Under the current iteration of the ADA and its broad definition of disability, nearly everyone with a medical condition will be considered “disabled,” triggering an employer’s reasonable accommodation obligation. The ADA is rife with abuse. Even more problematic for employers is that the ADA is not only a prophylactic statute, but also in most instances a proactive statute, requiring employers to expend man-hours and money attempting to bend to the needs of employees via the reasonable accommodation interactive process.

So, as the ADA enters its third decade, I applaud all it has done for the truly disabled. I also feel the pain of every employer that has been compelled to hire someone like me to defend a specious claim of someone with a marginal medical issue.

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Presented by Kohrman Jackson & Krantz, with offices in Cleveland and Columbus. For more information, contact Jon Hyman, a partner in our Labor & Employment group, at (216) 736-7226 or jth@kjk.com.

Do you know? 10 tips for preparing for your deposition

I’ve been taking and defending more depositions than usual lately, and, naturally, I’ve been thinking a lot about the art of the deposition. Because very few cases get to trial, the deposition is the event during which the key players have their opportunity to tell their stories. It is also often the key event in employment cases that decides whether a summary judgment motion is granted or whether a case results in a fair settlement.

A deposition may feel like a conversation, but it isn’t. It is a tool used by a highly skilled practitioner to lock-in your side of the story, build his or her case through your admissions, and evaluate you a trial witness. As there is a skill in taking a deposition, there is also a skill in testifying at a deposition. The following are my top 10 things to think about as you prepare to give testimony in a deposition.

1. Tell the truth. Enough said.
   
2. Answer the specific question asked. Do not volunteer other information. Do not explain your thought process. You are only required to answer the question that is asked. The lawyer on the other side is being paid to ask specific questions to elicit the specific information being sought. Do not do his job for him by unnecessarily offering other information.
   
3. If you do not understand a question, do not answer. Simply say that you do not understand. It is the lawyer’s job to formulate understandable questions, and not your job to guess at what is trying to be asked of you.
   
4. Do not guess. If you cannot remember something, your answer should simply be: “I do not remember.” If you have a vague memory, give that vague memory with a qualification.
   
5. A deposition isn’t a memory test. If you are asked for a time or date, and you cannot recall specifics, it is okay to give an approximation. Just qualify the answer by saying that it is an approximation or an estimate.
   
6. Beware leading questions. An examiner is usually allowed to try to put words in your mouth with leading questions. Do not agree to inaccurate statements contained within the question. To same end, do not automatically accept the questioner’s summary of your prior testimony, unless it is 100% accurate.
   
7. Give complete answers, and then stop. Always finish your answer. If you are interrupted, let the lawyer finish the next question, and then go back and finish your prior answer. If you are finished with an answer and it is complete, accurate, and truthful, stop talking and stay silent. Do not add to your answer because you feel a need to fill the silence.
   
8. Documents. If you think you need a document to help you truthfully and accurately answer a question, ask for it. But, do not agree to supply any documents requested by the questioner. All such requests should go through your lawyer.
   
9. Objections. Even if your lawyer objects, you usually still have to answer the question. You will only not answer if your lawyer expressly instruct you accordingly (usually because the other lawyer is asking about attorney-client communications).
   
10. Humor doesn’t work. Sarcasm and humor do not translate well on the written page. Also, never express anger or argue with the questioner, or use even the mildest of off-color language. A deposition is a professional event, and you should act professionally.
    

I’ve never seen a perfect witness. A good witness will get more than half of these right in answering more than half of the questions asked. See if you can beat that batting average at your next deposition.

I don't like Mondays (tell me why)

There is no worse feeling than coming into your office bright and early on a Monday morning, hitting the power button on your computer, and... nothing. That's what happened to me this morning. 7 am - no computer, no help desk, and nothing I can do about it. So here I am on my smart phone with my Monday morning tip of the day. Don't be so dependent on technology. Otherwise, you'll be stuck at your desk wondering how to kill time until your 9 am deposition starts (with no access to your witness outline because it's on your computer. Technology drives nearly every aspect of our society, including our businesses and our workforces. Think about disaster planning for your business, and how your business would function if it had to do so without technology for even a day. Scary exercise, but maybe one that we should all do so we don't get caught with our servers down one day. As for me, I'm off to dig into my file cabinets and see what I can get done in the next two hours.

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Presented by Kohrman Jackson & Krantz, with offices in Cleveland and Columbus. For more information, contact Jon Hyman, a partner in our Labor & Employment group, at (216) 736-7226 or jth@kjk.com.