Can you hear me now? Employer cannot reject disabled employee without individualized inquiry of the ability to do the job

Nicholas Keith has been deaf since birth. He is also, apparently, a pretty good swimmer. He successfully completed the Oakland County, Michigan, lifeguard training course with the assistance of sign language interpreter to communicate instructions. The county rescinded its conditional job offer for a lifeguard position after Keith’s pre-employment physical. The examining doctor approved Keith’s employment as a lifeguard if his deafness was “constantly accommodated.” Without any consultation with Keith, the county unsuccessfully brainstormed possible accommodations, and, ultimately, rescinded the job offer.

In Keith v. Oakland County (1/10/13) [pdf], the 6th Circuit reversed the district court’s order dismissing Keith’s disability discrimination lawsuit. The court relied upon the ADA’s requirement for an “individualized inquiry in determining whether an [employee’s or applicant’s] disability or other condition disqualifies him from a particular position.”

In this case, the county made no individualized inquiry.

After Dr. Work entered the examination room and briefly reviewed Keith’s file, he declared, “He’s deaf; he can’t be a lifeguard.” Dr. Work made no effort to determine whether, despite his deafness, Keith could nonetheless perform the essential functions of the position, either with or without reasonable accommodation. Indeed, Dr. Work has no education, training, or experience in assessing the ability of deaf individuals to work as lifeguards. Dr. Work’s cursory medical examination is precisely the type that the ADA was designed to prohibit.

What is the takeaway for employers? If you are dealing with disabled applicants or employees, you cannot make the employment decision in a vacuum. You must act based on the actual disability and its effect on the particular individual’s ability to perform the job. You should consider:

• the individual’s personal characteristics;
• the actual medical condition; and  
• the effect, if any, the condition may have on the ability to perform the specific  job in question.

Most importantly, you should include the individual in the assessment. No one is a better judge of one’s real-world abilities and limitations than the individual himself or herself.

If you failing to engage in this individualized inquiry, it will look like you are making the employment decision based on stereotypes and generalizations, which the ADA is supposed to rid from the workplace. That perception will not bode well for your defense of an ADA lawsuit.

Be careful what you bring upon yourself when suing an ex-employee

Last week—in Quicken Loans,Inc. (1/8/13) [pdf]—an NLRB administrative law judge invalidated the confidentiality and non-disparagement provisions in an employment agreement between Quicken Loans an an ex-mortgage banker, Lydia Garza. This decision continues the NLRB’s march towards the overly broad expansion of the definition of protected concerted activity. Molly DiBianca, at her Delaware Employment Law Blog, sums up the decision thusly:

Admittedly, the ALJ's conclusion that an employer is not free to contract with its highly compensated professional employees that those individuals will not disparage their employer or steal its confidential and proprietary information is a bit depressing. But keep in mind the remedy, friends. Having found that the provisions violated the NLRA, the remedy ordered by the ALJ was that the provisions be revised. Or, if the employer didn't want to go to the trouble of reprinting new agreements for all of its highly compensated brokers, it could simply provide a single-page addendum, notifying those highly paid employees that the two provisions were rescinded.

I want to focus on another business lesson from the decision—why the employee filed the case in the first place. Here’s the ALJ’s summary of the charging party’s motivation for filing the charge with the NLRB.

Garza testified that shortly after she left the Respondent’s employ, she and five other former employees of the Respondent were sued by the Respondent for an alleged violation of the no contact/no raiding and the non-compete provisions of the Agreement.

I’m fairly certain that Garza never even thought filing a challenge to her employment agreement with the NLRB until she got sued and had to hire a lawyer, who, in turn, reviewed the agreement and saw an opening.

If you are going to sue an employee, current or former, make sure you do your diligence of your own potential liabilities. If you uncover something that can come back and bite you, make sure it is a claim with which you can live. Depending on what you unearth, leaving well enough alone with your employee may be the most prudent course of action.

WIRTW #256 (the “crystal ball” edition)

Last week, I shared the 2013 resolutions of some of my favorite blogs. This week, I’m sharing some employment law predictions for the coming year from two of the best employment law blogs out there.

• Reading the Tea Leaves for Employment Law in 2013 (Harry Potter Edition) — from Dan Schwartz’s Connecticut Employment Law Blog
• And The Crystal Ball Says: My Predictions for 2013 Employment Law — from Donna Ballman’s Screw You Guys, I’m Going Home

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

Discrimination

• How to Avoid Employment Litigation — from Heather Bussing at HR Examiner
• Surprise! Pay Equity a Top Priority for EEOC — from Stephanie Thomas at Compensation Cafe
• Could Your Sexual Harassment Policy Land You in Court? — from i-Sight Investigation Software Blog
• Representing an Overweight Female Defendant? Male Jurors May Be Biased, Study Says — from ABA Journal Daily News
• Following the rules does pay off — from EmployerLINC
• You’re Damned if You Turn a Blind Eye to a Disabled Employee’s Ability to Perform the Essential Functions of the Job — from damnedif
• Three Take-Aways from the EEOC's Strategic Enforcement Plan by Commissioner Chai Feldblum — from Workplace Fairness

Social Media & Workplace Technology

• This is my new go-to social-media-discovery judicial opinion — from Eric Meyer’s The Employer Handbook Blog
• LinkedIn now has more than 200 million users in more than 200 countries — from The Verge

HR & Employee Relations

• When Work Sucks: How to Terminate Your Employee — from Jessica Miller-Merrells’ Blogging4Jobs
• Dealing With Workplace Bullies As A Temporary Worker — from Workplace Diva
• Should Employers “Ban the Box”? — from Mike Haberman’s Omega HR Solutions
• Here Comes the Test Of Your Sick Time Policy — from Workplace Diva
• Trying to reason during the flu season — from John Holmquist’s Michigan Employment Law Connection

Wage & Hour

• An Employee Requests and is Denied Vacation Leave but Later Takes FMLA Leave for the Same Time Period. What Recourse Does an Employer Have? — from Jeff Nowak’s FMLA Insights
• Internship Class Action Settles for $250,000 — from San Antonio Employment Law Blog
• Tough Questions For The Interviewer: Charlie Rose Settles Class Action Intern Lawsuit Alleging Employee Status — from Wage & Hour - Development & Highlights
• DOL Regulatory Agenda: More Aggressive Activity Expected — from Wage and Hour Law Update

Trade Secrets & Competition

• What Can the NHL Lockout Teach Us About Mediating Non-Compete and Trade Secret Disputes? — from Trade Secrets & Non-Compete Blog
• Call Me, Maybe. Discovery of Employee Identities — from Molly DiBianca’s Delaware Employment Law Blog
• Trade Secret and Noncompete Survey – National Case Graph 2013 — from Fair Competition Law
• Restrictive Covenants in Employment Agreements: Guarding the Family Jewels, Conclusion — from The Emplawyerologist

Labor Relations

• Obama NLRB Presents Employers With Several Lumps Of Coal — from Stoel Rives World of Employment
• Investigation alert: The NLRB takes aim again at confidentiality — from Warren & Associates Blog
• When Does an Employer Have to Hand Over Witness Statements to a Union? — from Labor & Employment Law Perspectives
• NLRB Finds Employees’ Facebook Posts Venting about Coworker Are Protected — from netWORKed Lawyers
• New Media and Old Precedent under the National Labor Relations Act — from Employer’s Law Blog

Internet-Use Disorder: The Newest Disability?

The DSM-5, the official psychiatrist’s diagnostic manual, has accepted Internet Use Disorder for inclusion, albeit in a section devoted to conditions that require further research.

This “disease” has its roots in a 1995 satirical hoax by Dr. Ivan Goldberg. Despite its dubious origins, over the past decade its acceptance as a legitimate clinical disorder has grown, culminating in its upcoming inclusion in the DSM-IV.

What does this mean for your workplace? If Internet addiction is a psychiatric disorder, then employees who suffer from it may be protected by the ADA. This development has potentially significant implications for your workplace.

• Do you have employees who seem to spend an inordinate amount of time online? Is it affecting their performance and inhibiting their ability to perform the essential functions of their jobs? If so, might you have to engage those employees in the interactive process to determine if there exists a reasonable accommodation that enables them to perform those essential functions? For example, could you deny computer access to employees who do not need to use a computer for their jobs, and require that such employees leave their cell phones outside the work area? 
• Do you have a policy that prohibits non-work-related Internet use? If so, such a policy might run afoul of the ADA, just like hard-capped leave absence of policies. It’s not that employers cannot place reasonable limits on workplace computer use. By instituting a ban, however, employers are avoiding their obligations to engage in the interactive process, thereby violating the ADA.

The inclusion of Internet-Use Disorder in the DSM-IV raises many more questions than answers for employers. Businesses need to be aware of the possibility that a cyber-surfing employee will raise this issue, and must prepare to address this problem a way that will not walk the employer into the trap of a costly ADA lawsuit.

This post originally appeared on The Legal Workplace Blog.

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]