What isn’t a reasonable accommodation?

Employers spend a lot time with employees figuring out reasonable accommodations they can make for disabled employees. There are many accommodations that employers must consider if necessary to enable a disabled employee to perform the essential functions of the job. One type of accommodation that typically beguiles employers is job restructuring, including reassignments to other positions.

Wardia v. Justice & Public Safety Cabinet Dept. of Juvenile Justice (6th Cir. 1/3/13) provides an example of how these principles can play out.

John Wardia was a Youth Worker at the Campbell County Regional Juvenile Detention Center. Following neck surgery, he became unable to perform physical restraints on juveniles, an essential function of his job. Wardia initially requested, and the employer granted, a temporary accommodation working a light-duty position in the control room. After Wardia’s doctor made clear the disability was permanent, he asked for one of two accommodations—being relieved by coworkers whenever the need to restrain arises, or a permanent reassignment to the control room. The employer denied both requests and terminated Wardia’s employment.

The court upheld the dismissal of Wardia’s disability discrimination lawsuit.

• Rejecting Wardia’s request that a co-worker relieve him when the need arose to restrain someone, the court concluded, “The ADA does not require employers to accommodate individuals by shifting an essential job function onto others.”
• Rejecting Wardia’s request for a permanent assignment to the control room, the court concluded, “Employers cannot be required to convert either rotating or temporary positions into permanent positions … [and] temporary light-duty positions for recuperating employees need not be converted into permanent positions.”

Just because a disabled employee asks for an accommodation does not mean that you have to grant the request. Engage in the employee in the interactive process, and make a reasoned decision that the accommodation will enable the employee to perform the essential functions of the job while protecting your business from undue hardship.

Firing of “irresistible” employee does not equal sex discrimination?

She’s unavoidable, I’m backed against the wall
She gives me feelings like I never felt before
I’m breaking promises, she’s breaking every law
She used to look good to me, but now I find her
Simply irresistible

Robert Palmer. “Simply Irresistible.” Heavy Nova. EMI Records, 1988.

Every now and again an employer wins a case that offends my sensibilities as an advocate for employers’ rights. This is one of those stories.

By now, you’ve likely read about the employee fired because her boss found her too attractive. You’ve also probably read how the Iowa Supreme Court concluded that an employee fired under these circumstances cannot pursue a claim for sex discrimination under that state’s civil rights laws.

Melissa Nelson worked as a dental hygienist for Dr. James Knight for ten-and-a-half years. Dr. Knight terminated Nelson at his wife’s request. Nelson never flirted with Dr. Knight or sought an intimate or sexual relationship with him. Dr. Knight, however, was attracted to her, and made several comments to her about the tightness of her clothes, and their effect on the tightness of a certain area of his clothes.

Following Nelson’s termination, Dr. Knight replaced her with another female. In fact, every hygienist who ever worked for Dr. Knight was female.

In Nelson v. Knight (12/21/12), the Iowa Supreme Court concluded that Nelson had not presented a sex discrimination claim.

So the question we must answer is … whether an employee who has not engaged in flirtatious conduct may be lawfully terminated simply because the boss views the employee as an irresistible attraction….

The civil rights laws seek to insure that employees are treated the same regardless of their sex or other protected status. Yet … Dr. Knight's unfair decision to terminate Nelson … does not jeopardize that goal. This is illustrated by the fact that Dr. Knight hired a female replacement for Nelson….

Nelson raises a legitimate concern about a slippery slope. What if Dr. Knight had fired several female employees because he was concerned about being attracted to them? Or what if Ms. Knight demanded out of jealousy that her spouse terminate the employment of several women? The short answer is that those would be different cases. If an employer repeatedly took adverse employment actions against persons of a particular gender because of alleged personal relationship issues, it might well be possible to infer that gender and not the relationship was a motivating factor.

It is likewise true that a decision based on a gender stereotype can amount to unlawful sex discrimination…. If Nelson could show that she had been terminated because she did not conform to a particular stereotype, this might be a different case. But the record here does not support that conclusion. It is undisputed, rather, that Nelson was fired because Ms. Knight, unfairly or not, viewed her as a threat to her marriage.

The media has heavily criticized this decision. That criticism is warranted. Yes, Dr. Knight only employs female hygienists, and replaced Nelson with another female. One could also argue that the doctor only fired Nelson because of her looks, not because of her gender. Those arguments, though, ignore the fact that if  she was a he, her looks would not have been an issue in her employment at all. The sex discrimination laws are supposed to insulate employees from employment decisions based on sex-based stereotypes, not protect the employers who make those decisions.

Nelson, a ten-plus-year employee, should not have to look for a new job merely because her boss might not be able to control himself around her. If the sex discrimination laws do not protect an employee like Nelson, then I fear we are taking a huge civil rights step backwards. 

Fringe “religions” (veganism?) raise interesting problems for accommodation requests

Like most medical facilities, Cincinnati Children’s Hospital appears to require that all of its employees receive an annual flu shot. It fired Sakile Chenzira, a customer service representative, for refusing to comply. Chenzira sued, claiming that because the flu vaccine contains eggs the requirement violated her religion—veganism—which prohibits the ingestion of any animals or animal by-products.

In Chenzira v. Cincinnati Children’s Hosp. Med. Ctr. (S.D. Ohio 12/27/12) [pdf], the federal court denied the hospital’s motion to dismiss the religious discrimination claim. The core issue the court decided is whether veganism is a sincerely held religious belief, or merely a moral or secular philosophy or lifestyle (as the hospital argued). In support of her argument, Chenzira cited an essay, The Biblical Basis of Veganism. She also cited bible verse to her employer when she made her request for a religious accommodation.

In denying the motion to dismiss, the court stated:

The Court finds that in the context of a motion to dismiss, it merely needs to determine whether Plaintiff has alleged a plausible claim. The Court finds it plausible that Plaintiff could subscribe to veganism with a sincerity equating that of traditional religious views.

In other words, the court punted. It allowed the parties to test in discovery whether Chenzira’s veganism rises to the level of a sincerely held religious belief. For what it’s worth, the lone other case I could find that discussed whether veganism is a religion worthy of protection under employment discrimination laws—Friedman v. Southern Cal. Permanente Med. Group (Cal. Ct. App. 9/24/02)—concluded that veganism is not a religion, but a personal philosophy and way of life.

This case raises an interesting question—how far should businesses go to accommodate employees’ requests for special treatment. I cover this issue in depth in The Employer Bill of Rights: A Manager’s Guide to Workplace Law, concluding, “Sometimes, the path of least resistance makes sense.”

For a hospital, there may not be a path of least resistance when comes to public health issues such as flu vaccinations. Other businesses, however, have to balance the burden of granting the accommodation versus the risk of a lawsuit (and the costs that go with it). In many cases, the accommodation should win out, because it is easier and less costly than denying the request and eating a lawsuit, even if it’s a defensible lawsuit.

For example, if you face this same vaccination issue at your widget company, is there a harm in letting employees opt out on religious ground, even if it’s a borderline (at best) religion, like veganism. You can defend your decision to deny the request based on the bona fides of the claimed religion. But, where does that get you? Are you on right side of the law? Probably. Have you irreparably damaged your relationship with your employee, while at the same time demonstrating to your entire workforce that you practice policies of exclusion instead of inclusion? Possibly.

In other words, there are more factors to consider other than answering the question, “What does the law say about this?” How your incorporate those other factors into your accommodation decision-making is often more important than simply answering the legal question.

[Hat tips: The Employer Handbook Blog, Employment & Labor Insider, and Jottings by an Employer’s Lawyer]

WIRTW #255 (the “back to the future” edition)

This week’s “WIRTW” is all about looking ahead. On Wednesday, I shared the one New Year’s resolution all employers should make for 2013. This week, some of my blogging brethren also shared their thoughts on resolutions employers should make for the coming year.

• 2013 New Years’ Resolutions for Employers — from Tim Eavenson’s Current Employment
• Countdown to 2013: Five Key Predictions for the Future Workforce — from EmployerBrief
• Evil Skippy’s Workplace Resolutions for 2013 — from Evil Skippy at Work
• The Top 4 Employment Law Concerns for Small Businesses in 2013 — from CPEhr
• HR Predictions for 2013 — from Mike Haberman’s Omega HR Solutions
• Top Five New Year’s Resolutions for Wage/Hour in 2013! — from Wage & Hour Defense Institute
• HR’s 2013 “To Do” List — from China Gorman
• 6 HR tech resolutions for 2013 — from Technology for HR

Here’s the rest of what I read this week (and last week):

Discrimination

• With employers like THIS, it's gonna be a busy 2013 for the lawyers — from Eric Meyer’s The Employer Handbook Blog
• Who Says I’m a Girly Man? Doth Sayeth the EEOC — from Molly DiBianca’s Delaware Employment Law Blog
• Company Fires “An Old Penny That Keeps Coming Back?” — from Employment Discrimination Report
• Bad “Business Judgment” is not Discrimination – Veronese v. Lucasfilm — from California Labor and Employment Defense Blog
• Policy for Requesting Medical Info Runs Afoul of ADA, Says EEOC — from The Proactive Employer Blog
• Critics are Unfairly Attacking the Iowa Supreme Court's Sex Discrimination Ruling in Nelson v. Knight — from Iowa Employment Law Blog
• The EEOC’s Strategic Enforcement Plan for 2013 — from Warren & Associates Blog

Social Media & Workplace Technology

• Should C-suites and Boards of Directors be Exempt from Social Media Training? — from Social Media Today
• BYOD: It’s Way Ahead of the Law, But You Need a Policy — from HR Daily Advisor
• Someone sent a dirty email from my work account — but it wasn’t me! — from Ask a Manager
• Defining who speaks for a company and when important in age of social media — from The Shreveport Times
• Six states outlaw employer snooping on Facebook — from CNET

HR & Employee Relations

• Is There Room for Humanity in HR? — from We Know Next
• President Obama Signs Trade Secrets Clarification Act and House of Representatives Considers Enhancing Economic Espionage Act Penalties — from Trading Secrets
• Restrictive Covenants in Employment Agreements: Guarding the Family Jewels, Part I and Part II — from The Emplawyerologist
• 6 Action Steps When Confronting Employee Theft — from i-Sight Investigation Software Blog

Wage & Hour

• My coworker is working off the clock — from Evil HR Lady, Suzanne Lucas
• 2 Recent Cases Draw Distinction Between Volunteers and Employees — from Overtime Law Blog

Labor Relations

• NLRB Continues to Assert Its Influence Over Non-Union Employees — from Labor Relations Counsel
• National Labor Relations Board Rules Employers Must Bargain With Union Representatives Over Discretionary Discipline — from Labor Relations Today

Lactation rights case teaches valuable lesson on responding to employee complaints

Believing that her employer, Roche Surety & Casualty Co., had deprived her of her right under the Fair Labor Standards Act for a time and place to express breast milk, Danielle Miller put her request in writing via an email to her supervisor. She claimed that the company retaliated against her after she emailed her supervisor with her request. That email stated:

Shannon, I’m scheduled tomorrow all day at the bail office, so therefore, I need to know where I can use my breast pump at and who will cover the office while I’m doing it. I’ll need to be able to do it at least twice while there. Please let me know. Thanks.

In Miller v. Roche Surety & Casualty Co. (11th Cir. 12/26/12) [pdf], the appellate court concluded that Miller had not filed a complaint sufficient to raise the protections of the FLSA’s anti-retaliation provision:

Although the filing of a complaint … need not be in the form of an official complaint, … or even be in writing, some degree of formality is required in order that the employer has fair notice that an employee is lodging a grievance….

Neither the context nor content of Miller’s email put Roche on notice that she was lodging a grievance. Indeed, the circumstances surrounding the email would not have informed a reasonable employer that Miller was filing a complaint. Before sending the email, Miller had never asked for, or been denied, a time or place to express breast milk. She was given breaks at her leisure without question or criticism. Miller decided to express breast milk in her office without notifying any Roche supervisors. She did not complain or ask for a different location….

This case appears to have been an easy call for the 11th Circuit, since no one could possible interpret Miller’s email as a complaint. Nevertheless, this case teaches employers an important lesson: respond when an employee raises an issue, no matter how silly or trivial it may seem. Although the opinion is vague, it is safe to assume that the genesis of Miller’s lawsuit was a lack of any response to her email. Could this company have staved off a lawsuit by a simple reply to the email? Next time an employee communicates an issue with you, think about whether it is worth the risk to let the concern go un-addressed.

[Hat tip: Wage & Hour Law Update and Joe’s HR & Benefits Blog]

Your New Year’s resolution: draft a social media policy

Recently, Proskauer Rose published the results of its second survey covering social media in the workplace. Social Media in the Workplace Around the World 2.0 [pdf] questioned 250 multinational businesses on their social media policies and practices.

The results?

• 75 percent of businesses reported using social media for business purposes
• 77 percent permit at least some employee to access social media sites at work for non-business purposes,
• 69 percent have a social media policy,
• 46 percent have a social media policy that covers on-duty and off-duty activities.
• 33 percent their employees on the appropriate use of social media.

Employers, here is your New Year’s Resolution for 2013—draft a social media policy and train your employees on what it means.

Social media is still novel. Most of your employees do not understand how their off-duty online activities can impact their jobs. If you want to hold your employees accountable for what they say and do online both at work and outside of work, establish expectations. Put it in writing and explain to your employees what the policy means. That way, if you have to take action against an employee for something he or she says online, no one has any excuses.

According to a recent study, 88 percent of New Year’s resolutions fail. Strive to be among the minority that succeed in keeping their resolutions. Your employees will thank you.

Happy New Year!

Best of 2012: Numbers 2 and 1

The last day of 2012 brings my year-end countdown to a close. Here are my two favorite posts of the past year.

2. How to avoid your organization’s muppet manifesto

1. A letter to the NLRB on its latest position against confidential workplace investigations