6th Circuit places burden on a disabled employee to propose a reasonable accommodation

Despite the breadth of the 2009 amendments to Americans with Disabilities Act, not all disabled employees receive the benefit of the Act’s protection. Instead, the Act only protects those employees who are “qualified,” that is, able to perform all of the essential functions of the job with or without reasonable accommodation. If necessary to determine the appropriate reasonable accommodation, the ADA’s regulations require an employer to “initiate an informal, interactive process with the qualified individual with a disability in need of the accommodation. This process should identify the precise limitations resulting from the disability and potential reasonable accommodations that could overcome those limitations.”

Whose burden is it, however, to propose a reasonable accommodation to account for an employee’s disability? According to Jakubowski v. The Christ Hosp., Inc. (12/8/10) [pdf], the burden falls squarely on the employee.

Dr. Martin Jakubowski suffers from Asperger’s syndrome, a severe and sustained impairment in social, occupational, or other important areas of functioning, with a marked impairment in the ability to regulate social interaction and communication. Following his diagnosis, the hospital terminated his employment. Before the termination, the hospital met with Dr. Jakubowski to discuss various accommodations for his poor communications skills, all of which he rejected. Because he did not propose another accommodation, the hospital met its burden to engage in the interactive process, and he could not proceed on his discrimination claim:

Jakubowski contends that Christ Hospital did not act in good faith because it did not offer him a remediation program similar to the one offered to the previous, unnamed resident who exhibited similar deficiencies. Importantly, Jakubowski did not request a remediation program at the accommodation meeting with Christ Hospital….

Christ Hospital … met with Jakubowski to discuss his proposed accommodations, and told him that the hospital lacked sufficient resources to comply. [It] also offered to help him find a pathology residency because it would involve less patient contact…. Because Christ Hospital met with Jakubowski, considered his proposed accommodations, informed him why they were unreasonable, offered assistance in finding a new pathology residency, and never hindered the process along the way, we agree that there is no dispute that Christ Hospital participated in the interactive accommodation process in good faith.

The ADA does not require an employer to offer a disabled employee the most reasonable accommodation, or the employee’s preferred accommodation. Instead, it only requires the employer to offer a reasonable accommodation, one which enables the employee to perform all of the essential functions of the job. If an employer meets this burden, the employee cannot complain that the employer rejected a proposed accommodation that did not address all essential functions, or failed to implement an accommodation that the employee did not propose.

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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.

Does Justice Alito read my blog? Dissecting the oral argument in Thompson v. North Am. Stainless

Thompson v. North Am. Stainless is near and dear to my heart. This post marks the 8th I’ve written covering this important 6th Circuit retaliation case. Yesterday, the Supreme Court heard oral argument on the issue of whether Title VII prohibits an employer from retaliating by inflicting reprisals on a third party (such as a spouse, family member, or fiancé) closely associated with the employee who engaged in such protected activity but who engaged in no protected activity of his or her own. The oral argument transcript is available for download [pdf] from the Supreme Court’s website.

When the 6th Circuit originally recognized a cause of action for associational retaliation (before the en banc reversal that led to the Supreme Court appeal), I worried, “How close is close enough?”

In Thompson, the relationship was a fiancée. It is safe to assume liability will also extend to action taken against spouses. What about boyfriends and girlfriends? How long do you have to date to be protected from retaliation? The same protection also will probably extend to parents and children. What about siblings? Grandparents? Cousins? 3rd cousins twice removed? In-laws? Friends? Carpoolers? The people you share your lunch table with? The person you sat next to in 3rd grade? How close is close enough for an employer to intend for its actions to punish the exercise of protected activity? Do employers now have to ask for family trees and class pictures as part of the orientation process?

While I’m not so vain as to think that Justice Alito reads my blog (just in case, hello, Your Honor), the theme of the slippery slope resonated heavily in his questioning of Mr. Thompson’s attorney:

That’s what's troubling to me about – about the theory. Where it’s a fiancée, it’s – that’s a relatively strong case, but I can imagine a whole spectrum of cases in which there is a lesser relationship between those two persons, and if – if –­ if – unless there’s a clear line there someplace, this theory is rather troubling. …

Can you help – can you help provide where the clear line is? Does it go – does it include simply a good friend? Does it include somebody who just has lunch in the cafeteria every day with the person who engaged in the protected conduct? Somebody who once dated the person who engaged in the protected conduct? Are these all questions that have to go to a jury?

Justice Alito continued to hammer this theme when questioning the attorney arguing for the Justice Department:

Put yourself in the – in the shoes of an employer, and you – you think – you want to take an adverse employment action against employee A. You think you have good grounds for doing that, but you want – before you do it, you want to know whether you’re potentially opening yourself up to a retaliation claim.

Now, what is the employer supposed to do then? They say, … now we need to see whether this person who we’re thinking of taking the adverse employment action against has a … “close relationship” with any of those people. So what do you do? Do you call everybody in from the company and you say, now, is – you know, was – are these people dating? Did they once date? Are they good friends? What are you supposed to do?

Despite this Court’s perception as pro-business, it has proven itself to be a favorable venue for retaliation claims. This Court's pro-employee, anti-retaliation bent should hold form in this case. Notwithstanding Justice Alito’s (and my) concerns, reading the tea leaves I predict Thompson will be a victory for the employee. I cannot see this Court permitting an employer to fire an employee whose fiancée claims discrimination. There should be at least five Justices who will craft a standard workable enough to avoid Justice Alito’s slippery slope.

I don’t expect any bright lines to be drawn. Since Burlington Northern, it is clear that actionable retaliation includes any adverse action that is “harmful to the point that they could well dissuade a reasonable worker from making or supporting a charge of discrimination.” I expect the Court to conclude that this test encompasses associational retaliation; we will be litigating the degree of closeness and its impact on the “reasonable employee” in future retaliation cases.

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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? Wrongful terminations for attorney consultations

Because Ohio employees working without a contract are at-will, an employer does not need a reason—good, bad, or otherwise—for termination. Yet, do you know that an at-will employee who consults with an attorney may find himself or herself protected from termination? Ohio, like most states, prohibits employers from terminating employees in circumstances that jeopardize a clear and well-defined public policy. Ohio courts conclude that an employee’s consultation with an attorney is worthy of such protection.

Chapman v. Adia Servs., Inc., is the most oft cited case in support of this rule:

[W]e hold that it is repugnant to the public policy of this state for employers to terminate employees for exercising their right to consult a lawyer. The courthouse door must be open to the people of Ohio, and it is not ajar when citizens may be fired for entering.

Other cases have extended this protection to employees who threaten to consult with an attorney and to employees who inquire about an employer’s policy regarding employees who sue the employer.

Employers should treat employees who consult with an attorney or threaten to consult with an attorney the same as they would any employee who engages in any other legally protected activity—with care, diligence, and fairness.

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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.

BREAKING NEWS: Supreme Court agrees to hear appeal in Dukes v. Wal-Mart

This morning, the Supreme Court agreed to hear the appeal of the class certification of the largest employment discrimination lawsuit ever filed in this country, Dukes v. Wal-Mart. Greg Stohr at Bloomberg News provides details. You can also read my previous thoughts on this historic appeal.

This appeal will not only impact the more than 1.5 million potential class members who seek billions of dollars in damages, but it also has the potential to shape the future of employment class action litigation for years to come. Keep watching this blog for future updates on the landmark Dukes case as it continues to wind its way through the Supreme Court.

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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.

Ohio democrats look to go down swinging

In boxing its called a puncher’s chance. As long as you’re on your feet, you always have a chance to knock out the other guy. You might get knocked around for 11 rounds, but as long as you can throw a solid punch in the 12th, you can always win the fight.

This is what the democrats in the Ohio House are trying to do. In last month’s election, the republican tide swept away their control of Ohio’s House. Next month, their half of Ohio’s legislature, along with the Governor’s mansion, will join Ohio’s Senate as republican-controlled. On their way out, the current House majority is going down swinging.

Tomorrow, the Ohio House will hear testimony, and possibly vote, on three long-standing pieces of legislation:

• HB 470 – which would create a new protected class for people who smoke tobacco. For my prior thoughts on this bill, see Bill seeks to snuff out discrimination against smokers.

• HB 488 – which would create a new protected class for women who are lactating, in addition to requiring that employers provide lactating employees reasonable, unpaid time each day to permit the expression of breast milk. I’ve also previously written about this legislation. Because of the recent federal mandate for workplace lactation breaks, this legislation is irrelevant.

• HB 523 – which would create a uniform definition of “employee” in Ohio’s minimum wage, wage payment, and workers’ compensation laws. This statute would broadly define an “employee” as “an individual who performs services for compensation for an employer.” Critically, it presumes anyone who falls under this broad definition is an “employee” and would require the employer to prove otherwise. It also creates a stringent enforcement scheme, which includes a private cause of action, civil penalties, and criminal penalties for misclassifications. Of these three pieces of legislation up for consideration, this is the most significant and has the widest implications for Ohio businesses.

Unlike the weary, late-round boxer, the Ohio democrats have no chance of winning any of these battles. They could win the round by passing one or more these bills, but each would certainly die in the republican-controlled Senate.

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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 #155 (the two-drink-maximum edition)

I was not the only one this week commenting on the legal risks of office holiday parties:

• The Office Holiday Party - Alcohol-Induced Stupidity Can Lead to Serious Sexual Harassment Claims – from Daniel Schwartz’s Connecticut Employment Law Blog

• How To Avoid Holiday Party Pitfalls (and Liability) – from World of Work

• Your Career: Surviving the office holiday party – from msnbc.com

• Time to Get Your “Drink On” at the Office Holiday Party! – from Fistful of Talent

• Behave at Office Holiday Parties – from Lawyerist

If you’re planning on voting for me at the ABA’s Blawg 100, please do so before you indulge too much at your office party and forget to vote at all.

Here’s the rest of what I read this week:

Discrimination

• The FMLA, the ADA and retaliation – from Michael Maslanka’s Work Matters

• 3d Circuit: Untimely Failure-to-Promote Claim Is Not Saved by Ledbetter Fair Pay Act – from Molly DiBianca’s Delaware Employment Law Blog

• Supreme Court May Clarify Use Of “Me Too” Evidence Of Employment Discrimination – from Hunton Employment & Labor Law Perspectives™

• A Room with a View – The Costly Consequences of Ignoring a Small Request for Accommodation – from Wyatt Employment Law Report

• Employers and the newly expanded ADA – from Overlawyered

• Record Gender Discrimination Class Action Settlement And Fee Award Given Final Approval – from Workplace Class Action Litigation

• I’m Harassed By Your Affairs With Others: A New Legal Threat Emerges (Gender Plus)... – from Kris Dunn, The HR Capitalist

• Lawsuit Alleges Hiring Discrimination Due to Credit Background Checks – from employeescreenIQ Blog

• 10 Tips For Avoiding GINA Violations – from Workplace Privacy Counsel

• Disparate Impact Suit - Credit Checks – from Michael Fox’s Jottings By An Employer’s Lawyer

• Documentation is Key to Surviving OFCCP Audit – from New York Labor and Employment Law Report

• BIG LIES: “The check's in the mail,” and “I can fire you for a good, bad, or no reason” – from Employment and Labor Insider

• Job Descriptions and the ADA: Are Those ‘Essential Functions’ Really Essential? – from Case In Point

• Combining Romance and Work, Can Lead to Demotion or Even Termination From Employment – from Minnesota Labor & Employment Law Blog

Wage & Hour

• Wal-Mart Stores v. Dukes: Will SCOTUS grant certiorari? – from LawMemo Employment Law Blog

• Workplace Flexibility and the Military – from Workplace Prof Blog

• Verizon FMLA settlement may exceed $6 million – from The FMLA Blog

• Steeped-Up Independent Contractor Enforcement Initiatives Coming Down The Pike Full Steam – from Wage & Hour - Development & Highlights

• ESPN Zone Closure Prompts Lawsuit by Laid Off Workers – from Maryland Employment Law Developments

• You Be The Judge: Did the boss or the worker close FMLA door? – from HR Cafe

• Leon Rodriguez to Be Nominated for the Top Job at the Wage and Hour Division – from Wage & Hour Counsel

DOL/ABA Partnership

• The DOL’s Holiday Gift for the Plaintiff’s Bar – from FMLA Insights

• DOL/ABA Lawyer-Referral Program Threatens More FLSA Litigation – from Wage and Hour Laws Blog

• USDOL + ABA = Trouble? – from HR Observations

• DOL-Private Bar Collaboration for Workers with Employment Complaints – from EFCA & Labor Law Reform Blog

• The DOL’s Lawyer Referral Arrangement with ABA Not Likely to Help Employers or Employees – from Iowa Employment Law Blog

• White House Task Force Announces DOL-ABA Partnership to Facilitate Wage and Hour Challenges – from Washington D.C. Employment Law Update

Social Networking & Technology

• When the iPad Is the Only Computer Your Employees Need—or Want – from BusinessWeek

• When It Comes To Smartphones, Employers Better Watch Out – from Workplace Diva

• Blackberries, iPhones and Androids: Do SmartPhones Belong in Meetings? – from Suzanne Lucas, “The Evil HR Lady,” writing at bNet

• “Cyber Monday”: Myth Or Must-Day For Online Shopping? – from NPR

• Managing the Workplace in the Age of Social Media – from CPEhr

• How Grinchy Should Employers Be About Online Shopping? – from Manpower Employment Blawg

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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.

A few thoughts on background checks

The New York Times’s You’re the Boss blog ran a piece yesterday discussing background checks of prospective employees. It focuses on a case study of one company that recently decided to run a background check on every new employee after accepting a conditional job offer. I thought I’d share a few thoughts I took away from the article.

1. It is not practical or cost-effective to run a background check on every applicant you are considering hiring. Because of information that could be revealed and the risk of a taint of discrimination, it is also not advisable to use a background check as part of the selection process. The best practice is to use background checks like medical exams and drug screens—as a final vetting after a conditional job offer is made. In a perfect world, no employee should be allowed to start working until after the background screen clears, although the needs of a particular business to have an employee start immediately may win out.

2. The need to screen employees will vary from company to company based on the nature of the business. Not every company will have to screen every employee. If you are not going to screen every employee, though, you should at least screen all employees in the same job. Consistency will eliminate any perception that you are selectively screening candidates based on a protected class.

3. Businesses should be very careful with the use of publically available information on the Internet (e.g., Google and Facebook) to conduct informal background searches. For one thing, the information is difficult to verify and may not be truthful. Also, an Internet search could reveal protected information—such as an employee’s membership in a cancer survivors’ group—that you, as an employer, do not and should not want to know. Internet searches of job candidates, however, do have value, but should only be used as one part of a background screening protocol, and with measures in place to limit the discovery of protected information.

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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.