Friday, June 19, 2020

Sixth Circuit: Employers May Require Medical Evidence that Requested Accommodation is Medically Necessary

As the pandemic was hitting Ohio, the Sixth Circuit affirmed an employer’s summary judgment on ADA failure-to-accommodate and constructive discharge claims where the employee sought to work from home three days each week, but never produced any medical documentation showing that this request was required by his shoulder disability.  Tchankpa v. Ascensia Retail Group, Inc., No. 19-1391 (6th Cir. 3-6-20). “The ADA is not a weapon that employees can wield to pressure employers into granting unnecessary accommodations or reconfiguring their business operations.  Instead, it protects disabled employees from disability-related mistreatment—no more, no less.”  The Court found that requested accommodations are reasonable only if they “address a key obstacle preventing [the employee] from performing a necessary function of [his job.]”  Further, “[a]n employee might not always need to show his accommodation is medically necessary to win a failure to accommodate claim.  But he must do so when asked by his employer.” Finally, the constructive discharge claim failed because he failed to show an objectively intolerable workplace or nexus from any intolerable working conditions and his disability.

According to the Court’s opinion, the plaintiff transported laptops to and from his office as part of his job.  He began seeking treatment for shoulder pain in October 2012 and claimed to have injured it at work in December 2012, but did not report a workers’ compensation injury until May 2013.  He claimed that it impeded daily activities, like bathing, cooking and driving, etc.  He sought treatment from many providers and had many different diagnosis.  He obtained treatment for pain until at least 2017.   Despite several requests from his employer (which had permitted him to arrive late and leave early for medical appointments), he did not seek a medical opinion about his opinion to work until October 2013.

The employer made clear that he could not regularly work from without supporting medical documentation from a medical provider.  Although the plaintiff requested to work from home three days each week, the only documentation the plaintiff provided stated that he could work as long as he had intermittent breaks and did not lift over 10 pounds.   The plaintiff pointed out that other employees were permitted to work from home, but was told this had nothing to do with his should injury.  (After all, employers may not reveal the medical conditions of other employees, etc.).   When the conversation became tense, security was called. The next day, the employer reiterated that the plaintiff could not work from home or transfer, but he could resign if he was unhappy.  The plaintiff then lodged an internal complaint of workplace harassment and discrimination, but then also emailed a new proposal for taking time off from work.   However, instead of filing a request for a leave of absence, the plaintiff ultimately resigned on the grounds that he was not provided sufficient training or appreciation.   He filed suit three years later.

Because this was a failure-to-accommodate case, the Court utilized a multi-partdirect evidence framework:

(1)   The plaintiff bears the burden of establishing that he or she is disabled.  (2) The plaintiff bears the burden of establishing that he or she is “otherwise qualified” for the position despite his or her disability: (a) without accommodation from the employer; (b) with an alleged “essential” job requirement eliminated; or (c) with a proposed reasonable accommodation. (3) The employer will bear the burden of proving that a challenged job criterion is essential, and therefore a business necessity, or that a proposed accommodation will impose an undue hardship upon the employer.
The plaintiff’s claim failed in this case because
 he omits a key requirement: proposing a reasonable accommodation.  And requested accommodations are reasonable only if they “address a key obstacle preventing [the employee] from performing a necessary function of [his job . . . . .  So a disabled employee cannot ask to work from home for convenience and then sue under the ADA if that request is denied.

Employers also bear responsibilities when receiving a requested accommodation.  They must consider: “(1) the particular job involved, its purpose, and its essential functions; (2) the employee’s limitations and how those limitations can be overcome; (3) the effectiveness an accommodation would have in enabling the individual to perform the job; and (4) the preference of the employee . . . .  Along with these factors, an accommodation is likely unreasonable if it frustrates attendance or creates “an unlimited ability to leave work[.]”   . . . .Finally, the employee and employer must engage in “an informal, interactive process” to negotiate an accommodation that allows the disabled employee to work despite his limitations.   . .

During this process, the disabled employee’s requested accommodation does not bind his employer.  For instance, employers may require documentation supporting an employee’s requested accommodation. . . . .  In Kennedy, the employer made “numerous attempts to acquire medical documentation [describing its employee’s condition] and [the employee] persistently refused to cooperate.”  Id.  And the court ruled that the employer had a right to assess its employee’s medical condition before greenlighting a proposed break schedule.  Id.  It follows that an employee’s failure to provide requested medical documentation supporting an accommodation precludes a failure to accommodate claim.  Even more, employers need not immediately implement or accept accommodations proposed by an employee.   . . .  So a delay in providing a reasonable accommodation is not always actionable.  . . .

 . . .  Accommodations must be “necessary” considering the employee’s “physical limitations.”   . . .  And it’s hard to imagine a physically necessary accommodation that isn’t medically necessary.  Thankfully we need not attempt that exercise.  That’s because Ascena requested medical documentation tying Tchankpa’s work-from-home request to his injured shoulder.  As a result, Tchankpa needed to provide that documentation.  An employee might not always need to show his accommodation is medically necessary to win a failure to accommodate claim.  But he must do so when asked by his employer. . . .

In short, Tchankpa bore two burdens:  He needed to (1) show his work-from-home request was reasonable and (2) provide Ascena with medical documentation supporting the accommodation’s necessity.  He did neither.  Although Tchankpa provided Ascena proof of his injury, that document didn’t touch upon Tchankpa’s inability to perform the job.  If anything, Dr. Stacy’s report confirmed that Tchankpa could do his job without working from home.   . . . .

What’s more, Tchankpa did not give a satisfactory response to Ascena’s request for medical documentation.  Under Kennedy, employers are entitled to medical documentation confirming the employee’s disability and need for accommodation.   . . .  And Ascena invoked that right in early 2013.  Yet Ascena did not receive documents discussing Tchankpa’s medical restrictions until October 2013.  Far from showing a necessary accommodation, Dr. Stacy’s report stated that Tchankpa could work eight hours per day, five days per week.  Without medical documentation showing that Tchankpa’s disability required work from home, Ascena had no duty to grant Tchankpa’s request.  After all, we presume on-site attendance is an essential job requirement. . . .

The Court also rejected the plaintiff’s constructive discharge claim on the grounds that he failed to show an objective intolerable workplace.

But intolerability is a demanding standard.  For instance, we have said that demotion, reduction in salary, badgering, harassment, humiliation, and sexual assault suggest an objectively intolerable workplace.   . . . 

Yet criticism and negative feedback do not suffice, especially when contained to a few isolated incidents.   . . .  And an employee’s subjective discontent does not create an ADA claim.   . . . .

               . . .

First, receiving negative feedback without consequence does not implicate the ADA.  After all, Tchankpa resigned without receiving formal punishment from Ascena.  So nothing serious came from Ascena criticizing Tchankpa.   . . What’s more, Ascena gave Tchankpa flexible hours to seek treatment for his shoulder.  Even Tchankpa’s resignation letter airs no grievances relating to his physical limitations—he mostly complains that Ascena didn’t appreciate him or invest in him enough.   . . .

That leaves us with the alleged termination threat.  Ascena allegedly told Tchankpa that it might fire him if he violated its time off policy by seeking treatments during work hours.  And when Tchankpa insisted on working from home three days per week, Ascena reminded him that he could quit if he didn’t like his job’s requirements.  So he argues that these facts show Ascena pressured him to leave.  But Ascena only insisted that Tchankpa accept its denial of his work-from-home request.  As shown above, Ascena permissibly denied Tchankpa’s proposed accommodation.  So even forcefully reiterating this lawful denial is not a threatened termination.  Facing repeated prodding from its employee, Ascena eventually put its foot down to enforce its decision.  Thus we cannot conclude that, as for Tchankpa’s termination, “the handwriting was on the wall and the axe was about to fall.”   . . .  Without the immediate or credible threat of adverse action, Ascena’s comments about Tchankpa leaving his job did not create an objectively intolerable workplace.

As for proving an employer’s subjective intent to constructively discharge the plaintiff, the Court agreed that this requirement may no longer be required.  Nonetheless,

This is not to say that Tchankpa would win under Green simply by showing an objectively intolerable workplace.  Even under Green, it cannot be the case that objectively intolerable conditions faced by all workers would give rise to an ADA claim.  In other words, disabled employees could not recover under Green because they quit over conditions equally offensive to both disabled and able-bodied employees.  We know that because Green focuses on “circumstances of discrimination” and whether “the discrimination [was] bad,” and not on general circumstances of the workplace.  Id. at 1780.  So Green, even if it eliminates our current subjective intent requirement, does not permit a constructive discharge ADA claim just because a disabled employee suffers an objectively intolerable workplace.  Employees invoking Green would still need to show a nexus between their disability and the intolerable workplace, even if they need not show that the employer created the substandard workplace with the intent to oust that employee. 

NOTICE: This summary is designed merely to inform and alert you of recent legal developments. It does not constitute legal advice and does not apply to any particular situation because different facts could lead to different results. Information here can change or be amended without notice. Readers should not act upon this information without legal advice. If you have any questions about anything you have read, you should consult with or retain an employment attorney.

Thursday, June 18, 2020

Supreme Court Revives DACA at Least Temporariliy Under the APA

This morning, a divided Supreme Court issued a decision affecting the current status of DACA.   DHS v. Regents of the Univ. of Calif.,  No. 18-587 (6-18-20).  There is much to like and much to concern both opponents and supporters of DACA.   In short, the Court found that, although the DHS could clearly do what it wanted to do and probably for the reasons it gave – eliminate all aspects of the DACA program --  the DHS was arbitrary and capricious in how it did so by seemingly not understanding or considering any of its options or discussing how it would affect the affected recipients. The Court did not reject or give much consideration to the underlying rationale – that certain aspects of the DACA program were unlawful.    A slightly different majority of the Court also rejected equal protection objections to the DHS’s elimination of DACA.

According to the Court’s decision, DACA began in 2012, provided benefits in two-year periods, and was expanded two years later when DHS also announced a similar program for parents – called DAPA.  Several states filed suit in Texas and were successful in preliminarily enjoining the DAPA program and the DACA expansion.   Both DACA and DAPA programs involved two salient aspects:  1) an enforcement deferral of removal from the country and 2) eligibility for various benefits, such as social security, Medicare, work authorizations, etc.   The “core” of DAPA suit attacked the eligibility aspect as violating applicable immigration statutes by making the recipients eligible for benefits and not the enforcement deferral aspect.  Following the 2016 election, DHS rescinded the DAPA program due to legal uncertainty, enforcement priorities and the fact it had never commenced.  While that litigation was still pending, in 2017, the Attorney General then advised the DHS that DACA suffered from the same legal defects as DAPA and likely would be found unlawful as well.  Accordingly, the DHS announced that the entire DACA program would be terminated as being unlawful and no new applications would be accepted, although DHS did permit certain aspects to continue, including some renewals.  When litigation commenced, the trial court asked the DHS to elaborate on its decision or to issue a new and more extensive decision.  DHS offered new rationale (preference for legislation and public confidence in a program of legal uncertainty), but declined to issue a new decision.

The dispute before the Court is not whether DHS may rescind DACA. All parties agree that it may.  The dispute is instead primarily about the procedure the agency followed in doing so.

               . . . .

           We do not decide whether DACA or its rescission are sound policies.  “The wisdom” of those decisions “is none of our concern.”  . . .  We address only whether the agency complied with the procedural requirement that it provide a reasoned explanation for its action. Here the agency failed to consider the conspicuous issues of whether to retain forbearance and what if anything to do about the hardship to DACA recipients.  That dual failure raises doubts about whether the agency appreciated the scope of its discretion or exercised that discretion in a reasonable manner.  The appropriate recourse is therefore to remand to DHS so that it may consider the problem anew.

The Court’s majority (Roberts, Kagan, Ginsburg, Breyer, and Sotomayor) concluded that the DHS decision to rescind DACA was reviewable under the Administrative Procedures Act.  DACA is not simply a non-enforcement policy; it established procedures and made recipients eligible for benefits:

DACA is not simply a non-enforcement policy.  For starters, the DACA Memorandum did not merely “refus[e] to institute proceedings” against a particular entity or even a particular class. Ibid.  Instead, it directed USCIS to “establish a clear and efficient process” for identifying individuals who met the enumerated criteria.  App. to Pet. for Cert. 100a. Based on this directive, USCIS solicited applications from eligible aliens, instituted a standardized review process, and sent formal notices indicating whether the alien would receive the two-year forbearance.  These proceedings are effectively “adjudicat[ions].”  Id., at 117a.  And the result of these adjudications—DHS’s decision to “grant deferred action,”  . . .—is an “affirmative act of approval,” the very opposite of a “refus[al] to act,”  . . .  In short, the DACA Memorandum does not announce a passive non-enforcement policy; it created a program for conferring affirmative immigration relief. The creation of that program—and its rescission—is an “action [that] provides a focus for judicial review.”  . . . .. The benefits attendant to deferred action provide further confirmation that DACA is more than simply a non-enforcement policy. As described above, by virtue of receiving deferred action, the 700,000 DACA recipients may request work authorization and are eligible for Social Security and Medicare.   . . . .  Unlike an agency’s refusal to take requested enforcement action, access to these types of benefits is an interest “courts often are called upon to protect.”

Surprisingly, the majority refused to address the merits of the DHS decision:  that DACA was unlawful.   This was because the DHS enabling statute refers all questions of law to the Attorney General:

The same statutory provision that establishes the Secretary of Homeland Security’s authority to administer and enforce immigration laws limits that authority, specifying that, with respect to “all questions of law,” the determinations of the Attorney General “shall be controlling.”

None of the plaintiffs addressed this issue.  “Nor did they discuss whether the current suits challenging Duke’s rescission decision, which everyone agrees was within her legal authority under the INA, are proper vehicles for attacking the Attorney General’s legal conclusion.”  Accordingly, the Court refused to address whether DACA was unlawful or not.

Instead, the majority concluded that it was unclear from the DHS’s decision if it understood that the Attorney General’s binding legal advice about the unlawfulness of the DACA program was focused on the eligibility issues addressed in the DAPA litigation or realized that DHS had more discretion about the enforcement deferral aspects of the DACA program.  In other words, DHS could have decided to eliminate the eligibility of DACA recipients to work and receive benefits, but still deferred removal proceedings.  

Whether DACA is illegal is, of course, a legal determination, and therefore a question for the Attorney General.  But deciding how best to address a finding of illegality moving forward can involve important policy choices, especially when the finding concerns a program with the breadth of DACA. Those policy choices are for DHS.

Acting Secretary Duke plainly exercised such discretionary authority in winding down the program.  . . . Among other things, she specified that those DACA recipients whose benefits were set to expire within six months were eligible for two-year renewals. Ibid. But Duke did not appear to appreciate the full scope of her discretion, which picked up where the Attorney General’s legal reasoning left off.

But Duke did not appear to appreciate the full scope of her discretion, which picked up where the Attorney General’s legal reasoning left off. . . . .

               . . . .

In short, the Attorney General neither addressed the forbearance policy at the heart of DACA nor compelled DHS to abandon that policy.  Thus, removing benefits eligibility while continuing forbearance remained squarely within the discretion of Acting Secretary Duke, who was responsible for “[e]stablishing national immigration enforcement policies and priorities.” . . . . . But Duke’s memo offers no reason for terminating forbearance. She instead treated the Attorney General’s conclusion regarding the illegality of benefits as sufficient to rescind both benefits and forbearance, without explanation.

The Court analogized this situation to an earlier case involving airbags and seatbelts, when the NHTSA previously allowed either seatbelts or airbags, and then rescinded the entire regulation (after realizing that the manufacturers’ preference for seatbelts alone was insufficient) without considering whether airbags alone would be sufficient.

While the factual setting is different here, the error is the same. Even if it is illegal for DHS to extend work authorization and other benefits to DACA recipients, that conclusion supported only “disallow[ing]” benefits.  Id., at 47. It did “not cast doubt” on the legality of forbearance or upon DHS’s original reasons for extending forbearance to childhood arrivals. Ibid.  Thus, given DHS’s earlier judgment that forbearance is “especially justified” for “productive young people” who were brought here as children and “know only this country as home,” App. to Pet. for Cert. 98a–99a, the DACA Memorandum could not be rescinded in full “without any consideration whatsoever” of a forbearance-only policy,  (emphasis added).

Considering the great effect that the decision would have on the economy and lives of the people involved, as well as their citizen children, etc., the Court found the decision to be arbitrary and capricious, notwithstanding the fact that the DHS could immediately make the same decision and was not obligated to consider every issue to result from the decision.

The Government acknowledges that “[d]eferred action coupled with the associated benefits are the two legs upon which the DACA policy stands.” Reply Brief 21. It insists, however, that “DHS was not required to consider whether DACA’s illegality could be addressed by separating” the two. Ibid. According to the Government, “It was not arbitrary and capricious for DHS to view deferred action and its collateral benefits as importantly linked.”  Ibid. Perhaps. But that response misses the point. The fact that there may be a valid reason not to separate deferred action from benefits does not establish that DHS considered that option or that such consideration was unnecessary.  (emphasis added).

            . . . .
But the rescission memorandum contains no discussion of forbearance or the option of retaining forbearance without benefits.  Duke “entirely failed to consider [that] important aspect of the problem.” (emphasis added)

That omission alone renders Acting Secretary Duke’s decision arbitrary and capricious. But it is not the only defect. Duke also failed to address whether there was “legitimate reliance” on the DACA Memorandum. . . . When an agency changes course, as DHS did here, it must “be cognizant that longstanding policies may have ‘engendered serious reliance interests that must be taken into account.’” . . . “It would be arbitrary and capricious to ignore such matters.” Id., at 515. Yet that is what the Duke Memorandum did. (emphasis added).

 . . . . . In the Government’s view, shared by the lead dissent, DACA recipients have no “legally cognizable reliance interests” because the DACA Memorandum stated that the program “conferred no substantive rights” and provided benefits only in two-year increments.  . . . .But neither the Government nor the lead dissent cites any legal authority establishing that such features automatically preclude reliance interests, and we are not aware of any. These disclaimers are surely pertinent in considering the strength of any reliance interests, but that consideration must be undertaken by the agency in the first instance, subject to normal APA review.  There was no such consideration in the Duke Memorandum.

The Court observed all of the reliance interests and disruption that would be caused to the recipients, their families, their employers and the economy.  Nonetheless, it conceded that DHS need not consider or satisfy all of those issues.

These are certainly noteworthy concerns, but they are not necessarily dispositive. To the Government and lead dissent’s point, DHS could respond that reliance on forbearance and benefits was unjustified in light of the express limitations in the DACA Memorandum.  Or it might conclude that reliance interests in benefits that it views as unlawful are entitled to no or diminished weight.  And, even if DHS ultimately concludes that the reliance interests rank as serious, they are but one factor to consider.  DHS may determine, in the particular context before it, that other interests and policy concerns outweigh any reliance interests.  Making that difficult decision was the agency’s job, but the agency failed to do it. DHS has considerable flexibility in carrying out its responsibility.  The wind-down here is a good example of the kind of options available. Acting Secretary Duke authorized DHS to process two-year renewals for those DACA recipients whose benefits were set to expire within six months. But Duke’s consideration was solely for the purpose of assisting the agency in dealing with “administrative complexities.” (emphasis added)

               . . .

           To be clear, DHS was not required to do any of this or to “consider all policy alternatives in reaching [its] decision.” State Farm, 463 U. S., at 51.  Agencies are not compelled to explore “every alternative device and thought conceivable by the mind of man.”  . . .   But, because DHS was “not writing on a blank slate,” post, at 22, n. 14 (opinion of THOMAS, J.), it was required to assess whether there were reliance interests, determine whether they were significant, and weigh any such interests against competing policy concerns.

               . . .

           The dissent is correct that DACA was rescinded because of the Attorney General’s illegality determination.  See ante, at 20.  But nothing about that determination foreclosed or even addressed the options of retaining forbearance or accommodating particular reliance interests.  Acting Secretary Duke should have considered those matters but did not. That failure was arbitrary and capricious in violation of the APA.

A different majority (Ginsburg, Breyer, Alito, Thomas, Kagan and Kavanaugh) rejected the equal protection challenge to the DHS decision.   The Court refused to address how to frame the issue because the allegations were completely insufficient.

           [R]espondents allege that animus is evidenced by (1) the disparate impact of the rescission on Latinos from Mexico, who represent 78% of DACA recipients; (2) the unusual history behind the rescission; and (3) pre- and post-election statements by President Trump.  . . . .

None of these points, either singly or in concert, establishes a plausible equal protection claim.  First, because Latinos make up a large share of the unauthorized alien population, one would expect them to make up an outsized share of recipients of any cross-cutting immigration relief program.  . . . .Were this fact sufficient to state a claim, virtually any generally applicable immigration policy could be challenged on equal protection grounds.

Second, there is nothing irregular about the history leading up to the September 2017 rescission.   . . .The DAPA memo did not address the merits of the DACA policy or its legality. Thus, when the Attorney General later determined that DACA shared DAPA’s legal defects, DHS’s decision to reevaluate DACA was not a “strange about-face.”  908 F. 3d, at 519. It was a natural response to a newly identified problem.

Finally, the cited statements [by the President] are unilluminating.  The relevant actors were most directly Acting Secretary Duke and the Attorney General.  As the Batalla Vidal court acknowledged, respondents did not “identif[y] statements by [either] that would give rise to an inference of discriminatory motive.” 291 F. Supp. 3d, at 278. Instead, respondents contend that President Trump made critical statements about Latinos that evince discriminatory intent. But, even as interpreted by respondents, these statements—remote in time and made in unrelated contexts— do not qualify as “contemporary statements” probative of the decision at issue.  Arlington Heights, 429 U. S., at 268. Thus, like respondents’ other points, the statements fail to raise a plausible inference that the rescission was motivated by animus.

NOTICE: This summary is designed merely to inform and alert you of recent legal developments. It does not constitute legal advice and does not apply to any particular situation because different facts could lead to different results. Information here can change or be amended without notice. Readers should not act upon this information without legal advice. If you have any questions about anything you have read, you should consult with or retain an employment attorney.

EEOC Bans COVID Antibody Test Under ADA

Yesterday,  the EEOC updated its guidance on complying with the ADA and other employment laws during the pandemic and has even included FAQ about issues employers will encounter.  In short, it is prohibiting employers from requiring a COVID antibody test as a condition of returning or remaining at work as inconsistent with business necessity, etc.   Here is the new FAQ added yesterday:

A.7.  CDC said in its Interim Guidelines that antibody test results “should not be used to make decisions about returning persons to the workplace.” In light of this CDC guidance, under the ADA may an employer require antibody testing before permitting employees to re-enter the workplace? (6/17/20)

No. An antibody test constitutes a medical examination under the ADA. In light of CDC’s Interim Guidelines that antibody test results “should not be used to make decisions about returning persons to the workplace,” an antibody test at this time does not meet the ADA’s “job related and consistent with business necessity” standard for medical examinations or inquiries for current employees. Therefore, requiring antibody testing before allowing employees to re-enter the workplace is not allowed under the ADA.  Please note that an antibody test is different from a test to determine if someone has an active case of COVID-19 (i.e., a viral test).  The EEOC has already stated that COVID-19 viral tests are permissible under the ADA.

The EEOC will continue to closely monitor CDC’s recommendations, and could update this discussion in response to changes in CDC’s recommendations.

NOTICE: This summary is designed merely to inform and alert you of recent legal developments. It does not constitute legal advice and does not apply to any particular situation because different facts could lead to different results. Information here can change or be amended without notice. Readers should not act upon this information without legal advice. If you have any questions about anything you have read, you should consult with or retain an employment attorney.

Monday, June 15, 2020

Supreme Court: Sex Discrimination Under Title VII Includes Discrimination Against Sexual Orientation and Transgender Because You Cannot Have One without the Other.

This morning, with a 6-3 decision, the Supreme Court issued a long-awaited and lengthy decision (with even lengthier dissents) on the coverage of Title VII’s prohibition on sex discrimination and held “[a]n employer who fires an individual for being homosexual or transgender fires that person for traits or actions it would not have questioned in members of a different sex.” Bostock v. Clayton County, No. 17-1618 (6-15-20).  This decision covered three different appellate court appeals, including affirming an earlier decision from the Sixth Circuit (involving the termination of a funeral home employee who announced an intention to transition) previously discussed here.  In short, “if changing the employee’s sex would have yielded a different choice by the employer—a statutory violation has occurred.” That being said, Justice Gorsuch highlighted that it is still legal to discriminate on the basis of sports affiliations (sorry Xichigan fans) unless the sports affiliation is tolerated for one sex and not the other.  The decision also left open issues relating to other terms and conditions of employment and the validity of religious objections under the Religious Freedom Restoration Act (which had been rejected but not appealed in the Sixth Circuit opinion).   

The Court did not elaborate much on the differing facts of the three cases: “An employer fired a long-time employee shortly after the employee revealed that he or she is homosexual or transgender—and allegedly for no reason other than the employee’s homosexuality or transgender status.” Two of the original plaintiffs had died while the cases were pending.  Two of them won on appeal and one had lost.

The Court rejected arguments that the original legislation did not anticipate that sex would be construed to include sexual orientation, etc.:
Those who adopted the Civil Rights Act might not have anticipated their work would lead to this particular result. Likely, they weren’t thinking about many of the Act’s consequences that have become apparent over the years, including its prohibition against discrimination on the basis of motherhood or its ban on the sexual harassment of male employees. But the limits of the drafters’ imagination supply no reason to ignore the law’s demands.  When the express terms of a statute give us one answer and extratextual considerations suggest another, it’s no contest.  Only the written word is the law, and all persons are entitled to its benefit.

Even if sex were construed to only mean biological distinctions from male and female, this did not resolve the dispute.
The question isn’t just what “sex” meant, but what Title VII says about it.  Most notably, the statute prohibits employers from taking certain actions “because of ” sex.  And, as this Court has previously explained, “the ordinary meaning of ‘because of ’ is ‘by reason of’ or ‘on account of.’ . . . . In the language of law, this means that Title VII’s “because of ” test incorporates the “‘simple’” and “traditional” standard of but-for causation. . . .

 . . .When it comes to Title VII, the adoption of the traditional but-for causation standard means a defendant cannot avoid liability just by citing some other factor that contributed to its challenged employment decision.  So long as the plaintiff ’s sex was one but-for cause of that decision, that is enough to trigger the law.

No doubt, Congress could have taken a more parsimonious approach. As it has in other statutes, it could have added “solely” to indicate that actions taken “because of ” the confluence of multiple factors do not violate the law.  Cf. 11 U. S. C. §525; 16 U. S. C. §511.  Or it could have written “primarily because of ” to indicate that the prohibited factor had to be the main cause of the defendant’s challenged employment decision. Cf. 22 U. S. C. §2688.  But none of this is the law we have. If anything, Congress has moved in the opposite direction, supplementing Title VII in 1991 to allow a plaintiff to prevail merely by showing that a protected trait like sex was a “motivating factor” in a defendant’s challenged employment practice.  Civil Rights Act of 1991, §107, 105 Stat. 1075, codified at 42 U. S. C. §2000e–2(m). Under this more forgiving standard, liability can sometimes follow even if sex wasn’t a but-for cause of the employer’s challenged decision.

The Court refused to consider how groups of people are treated in general.  Some have argued that because discrimination on the basis of sexual orientation, etc. affects both men and women equally that it cannot be illegal under Title VII.   However, Title VII prevents discrimination against individuals, so the  Court would only consider how one person was treated based on sex, not the population as a whole:

The statute answers that question directly. It tells us three times—including immediately after the words “discriminate against”—that our focus should be on individuals, not groups: Employers may not “fail or refuse to hire or . . . discharge any individual, or otherwise . . . discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual’s . . . sex.” §2000e–2(a)(1) (emphasis added). . . . .

The consequences of the law’s focus on individuals rather than groups are anything but academic. Suppose an employer fires a woman for refusing his sexual advances.  It’s no defense for the employer to note that, while he treated that individual woman worse than he would have treated a man, he gives preferential treatment to female employees overall. The employer is liable for treating this woman worse in part because of her sex. Nor is it a defense for an employer to say it discriminates against both men and women because of sex.  This statute works to protect individuals of both sexes from discrimination, and does so equally. So an employer who fires a woman, Hannah, because she is insufficiently feminine and also fires a man, Bob, for being insufficiently masculine may treat men and women as groups more or less equally.  But in both cases the employer fires an individual in part because of sex.  Instead of avoiding Title VII exposure, this employer doubles it.

An employer violates Title VII when it intentionally fires an individual employee based in part on sex. It doesn’t matter if other factors besides the plaintiff ’s sex contributed to the decision. And it doesn’t matter if the employer treated women as a group the same when compared to men as a group.  If the employer intentionally relies in part on an individual employee’s sex when deciding to discharge the employee—put differently, if changing the employee’s sex would have yielded a different choice by the employer—a statutory violation has occurred. Title VII’s message is “simple but momentous”:  An individual employee’s sex is “not relevant to the selection, evaluation, or compensation of employees.”  (bolding added for emphasis).

The statute’s message for our cases is equally simple and momentous:  An individual’s homosexuality or transgender status is not relevant to employment decisions. That’s because it is impossible to discriminate against a person for being homosexual or transgender without discriminating against that individual based on sex.  Consider, for example, an employer with two employees, both of whom are attracted to men.  The two individuals are, to the employer’s mind, materially identical in all respects, except that one is a man and the other a woman. If the employer fires the male employee for no reason other than the fact he is attracted to men, the employer discriminates against him for traits or actions it tolerates in his female colleague.  Put differently, the employer intentionally singles out an employee to fire based in part on the employee’s sex, and the affected employee’s sex is a but-for cause of his discharge. Or take an employer who fires a transgender person who was identified as a male at birth but who now identifies as a female. If the employer retains an otherwise identical employee who was identified as female at birth, the employer intentionally penalizes a person identified as male at birth for traits or actions that it tolerates in an employee identified as female at birth. Again, the individual employee’s sex plays an unmistakable and impermissible role in the discharge decision.

The Court also rejected a defense based on other factors that contributed to the discharge decisions if the employees still would not have been fired but for consideration of their sex.

Nor does it matter that, when an employer treats one employee worse because of that individual’s sex, other factors may contribute to the decision.   . . . When an employer fires an employee because she is homosexual or transgender, two causal factors may be in play— both the individual’s sex and something else (the sex to which the individual is attracted or with which the individual identifies).  But Title VII doesn’t care. If an employer would not have discharged an employee but for that individual’s sex, the statute’s causation standard is met, and liability may attach.

 . . . .intentional discrimination based on sex violates Title VII, even if it is intended only as a means to achieving the employer’s ultimate goal of discriminating against homosexual or transgender employees.  There is simply no escaping the role intent plays here: Just as sex is necessarily a but-for cause when an employer discriminates against homosexual or transgender employees, an employer who discriminates on these grounds inescapably intends to rely on sex in its decisionmaking.  Imagine an employer who has a policy of firing any employee known to be homosexual. The employer hosts an office holiday party and invites employees to bring their spouses. A model employee arrives and introduces a manager to Susan, the employee’s wife. Will that employee be fired? If the policy works as the employer intends, the answer depends entirely on whether the model employee is a man or a woman.  To be sure, that employer’s ultimate goal might be to discriminate on the basis of sexual orientation.  But to achieve that purpose the employer must, along the way, intentionally treat an employee worse based in part on that individual’s sex.

The Court also rejected the equal opportunity offender approach:

An employer musters no better a defense by responding that it is equally happy to fire male and female employees who are homosexual or transgender. Title VII liability is not limited to employers who, through the sum of all of their employment actions, treat the class of men differently than the class of women. Instead, the law makes each instance of discriminating against an individual employee because of that individual’s sex an independent violation of Title VII. So just as an employer who fires both Hannah and Bob for failing to fulfill traditional sex stereotypes doubles rather than eliminates Title VII liability, an employer who fires both Hannah and Bob for being gay or transgender does the same.

 . . . For an employer to discriminate against employees for being homosexual or transgender, the employer must intentionally discriminate against individual men and women in part because of sex. That has always been prohibited by Title VII’s plain terms—and that “should be the end of the analysis.

The Court then reviewed some of its prior cases where it has construed “sex” broadly to include pregnancy, motherhood, and same-sex harassment. It provided some lessons from these cases:

First, it’s irrelevant what an employer might call its discriminatory practice, how others might label it, or what else might motivate it. . . . .

Second, the plaintiff ’s sex need not be the sole or primary cause of the employer’s adverse action. . . . .

Finally, an employer cannot escape liability by demonstrating that it treats males and females comparably as groups.

The Court also rejected the dissent’s argument that Congress could have included sexual orientation, etc. if it had wanted to do so.

We agree that homosexuality and transgender status are distinct concepts from sex. But, as we’ve seen, discrimination based on homosexuality or transgender status necessarily entails discrimination based on sex; the first cannot happen without the second. Nor is there any such thing as a “canon of donut holes,” in which Congress’s failure to speak directly to a specific case that falls within a more general statutory rule creates a tacit exception.  Instead, when Congress chooses not to include any exceptions to a broad rule, courts apply the broad rule. And that is exactly how this Court has always approached Title VII. “Sexual harassment” is conceptually distinct from sex discrimination, but it can fall within Title VII’s sweep.

The Court refused to address the ramifications of its decision in other contexts, such as gender-specific restrooms and religious objections:

The employers worry that our decision will sweep beyond Title VII to other federal or state laws that prohibit sex discrimination. And, under Title VII itself, they say sex-segregated bathrooms, locker rooms, and dress codes will prove unsustainable after our decision today.  But none of these other laws are before us; we have not had the benefit of adversarial testing about the meaning of their terms, and we do not prejudge any such question today.  Under Title VII, too, we do not purport to address bathrooms, locker rooms, or anything else of the kind. The only question before us is whether an employer who fires someone simply for being homosexual or transgender has discharged or otherwise discriminated against that individual “because of such individual’s sex.” As used in Title VII, the term “‘discriminate against’” refers to “distinctions or differences in treatment that injure protected individuals.”  Burlington N. & S. F. R., 548 U. S., at 59. Firing employees because of a statutorily protected trait surely counts. Whether other policies and practices might or might not qualify as unlawful discrimination or find justifications under other provisions of Title VII are questions for future cases, not these.

Separately, the employers fear that complying with Title VII’s requirement in cases like ours may require some employers to violate their religious convictions.  We are also deeply concerned with preserving the promise of the free exercise of religion enshrined in our Constitution; that guarantee lies at the heart of our pluralistic society. But worries about how Title VII may intersect with religious liberties are nothing new; they even predate the statute’s passage. As a result of its deliberations in adopting the law, Congress included an express statutory exception for religious organizations. §2000e–1(a).  This Court has also recognized that the First Amendment can bar the application of employment discrimination laws “to claims concerning the employment relationship between a religious institution and its ministers.” Hosanna-Tabor Evangelical Lutheran Church and School v. EEOC, 565 U. S. 171, 188 (2012). And Congress has gone a step further yet in the Religious Freedom Restoration Act of 1993 (RFRA), 107 Stat. 1488, codified at 42 U. S. C. §2000bb et seq. That statute prohibits the federal government from substantially burdening a person’s exercise of religion unless it demonstrates that doing so both furthers a compelling governmental interest and represents the least restrictive means of furthering that interest. §2000bb–1.  Because RFRA operates as a kind of super statute, displacing the normal operation of other federal laws, it might supersede Title VII’s commands in appropriate cases.  See §2000bb–3.

But how these doctrines protecting religious liberty interact with Title VII are questions for future cases too.  Harris Funeral Homes did unsuccessfully pursue a RFRA-based defense in the proceedings below. In its certiorari petition, however, the company declined to seek review of that adverse decision, and no other religious liberty claim is now before us. So while other employers in other cases may raise free exercise arguments that merit careful consideration, none of the employers before us today represent in this Court that compliance with Title VII will infringe their own religious liberties in any way.

NOTICE: This summary is designed merely to inform and alert you of recent legal developments. It does not constitute legal advice and does not apply to any particular situation because different facts could lead to different results. Information here can change or be amended without notice. Readers should not act upon this information without legal advice. If you have any questions about anything you have read, you should consult with or retain an employment attorney.

Thursday, June 11, 2020

EEOC Issues New Pandemic Guidance on ADA, Title VII and ADEA issues

This morning,  the EEOC updated its guidance on complying with the ADA and other employment laws during the pandemic and has even included FAQ about issues employers will encounter.   Here are the new FAQ added on this morning:

D.13.  Is an employee entitled to an accommodation under the ADA in order to avoid exposing a family member who is at higher risk of severe illness from COVID-19 due to an underlying medical condition? (6/11/20)

No.  Although the ADA prohibits discrimination based on association with an individual with a disability, that protection is limited to disparate treatment or harassment.  The ADA does not require that an employer accommodate an employee without a disability based on the disability-related needs of a family member or other person with whom she is associated. 

For example, an employee without a disability is not entitled under the ADA to telework as an accommodation in order to protect a family member with a disability from potential COVID-19 exposure. 

Of course, an employer is free to provide such flexibilities if it chooses to do so.  An employer choosing to offer additional flexibilities beyond what the law requires should be careful not to engage in disparate treatment on a protected EEO basis.

E.3.  How may employers respond to pandemic-related harassment, in particular against employees who are or are perceived to be Asian? (6/11/20)

Managers should be alert to demeaning, derogatory, or hostile remarks directed to employees who are or are perceived to be of Chinese or other Asian national origin, including about the coronavirus or its origins.

All employers covered by Title VII should ensure that management understands in advance how to recognize such harassment.  Harassment may occur using electronic communication tools – regardless of whether employees are in the workplace, teleworking, or on leave – and also in person between employees at the worksite.  Harassment of employees at the worksite may also originate with contractors, customers or clients, or, for example, with patients or their family members at health care facilities, assisted living facilities, and nursing homes.  Managers should know their legal obligations and be instructed to quickly identify and resolve potential problems, before they rise to the level of unlawful discrimination.

Employers may choose to send a reminder to the entire workforce noting Title VII’s prohibitions on harassment, reminding employees that harassment will not be tolerated, and inviting anyone who experiences or witnesses workplace harassment to report it to management.  Employers may remind employees that harassment can result in disciplinary action up to and including termination.

E.4.  An employer learns that an employee who is teleworking due to the pandemic is sending harassing emails to another worker.  What actions should the employer take? (6/11/20)

The employer should take the same actions it would take if the employee was in the workplace.  Employees may not harass other employees through, for example, emails, calls, or platforms for video or chat communication and collaboration. 

G.6.  As a best practice, and in advance of having some or all employees return to the workplace, are there ways for an employer to invite employees to request flexibility in work arrangements? (6/11/20)

Yes.  The ADA and the Rehabilitation Act permit employers to make information available in advance to all employees about who to contact – if they wish – to request accommodation for a disability that they may need upon return to the workplace, even if no date has been announced for their return.  If requests are received in advance, the employer may begin the interactive process. An employer may choose to include in such a notice all the CDC-listed medical conditions that may place people at higher risk of serious illness if they contract COVID-19, provide instructions about who to contact, and explain that the employer is willing to consider on a case-by-case basis any requests from employees who have these or other medical conditions. 

An employer also may send a general notice to all employees who are designated for returning to the workplace, noting that the employer is willing to consider requests for accommodation or flexibilities on an individualized basis. The employer should specify if the contacts differ depending on the reason for the request – for example, if the office or person to contact is different for employees with disabilities or pregnant workers than for employees whose request is based on age or child-care responsibilities.

Either approach is consistent with the ADEA, the ADA, and the May 29, 2020 CDC guidance that emphasizes the importance of employers providing accommodations or flexibilities to employees who, due to age or certain medical conditions, are at higher risk for severe illness.

Regardless of the approach, however, employers should ensure that whoever receives inquiries knows how to handle them consistent with the different federal employment nondiscrimination laws that may apply, for instance, with respect to accommodations due to a medical condition, a religious belief, or pregnancy.

G.7.  What should an employer do if an employee entering the worksite requests an alternative method of screening due to a medical condition? (6/11/20)

This is a request for reasonable accommodation, and an employer should proceed as it would for any other request for accommodation under the ADA or the Rehabilitation Act.  If the requested change is easy to provide and inexpensive, the employer might voluntarily choose to make it available to anyone who asks, without going through an interactive process. Alternatively, if the disability is not obvious or already known, an employer may ask the employee for information to establish that the condition is a disability and what specific limitations require an accommodation. If necessary, an employer also may request medical documentation to support the employee’s request, and then determine if that accommodation or an alternative effective accommodation can be provided, absent undue hardship.

Similarly, if an employee requested an alternative method of screening as a religious accommodation, the employer should determine if accommodation is available under Title VII.

H.1.  The CDC has explained that individuals age 65 and over are at higher risk for a severe case of COVID-19 if they contract the virus and therefore has encouraged employers to offer maximum flexibilities to this group.  Do employees age 65 and over have protections under the federal employment discrimination laws? (6/11/20)

The Age Discrimination in Employment Act (ADEA) prohibits employment discrimination against individuals age 40 and older.  The ADEA would prohibit a covered employer from involuntarily excluding an individual from the workplace based on his or her being 65 or older, even if the employer acted for benevolent reasons such as protecting the employee due to higher risk of severe illness from COVID-19.

Unlike the ADA, the ADEA does not include a right to reasonable accommodation for older workers due to age.  However, employers are free to provide flexibility to workers age 65 and older; the ADEA does not prohibit this, even if it results in younger workers ages 40-64 being treated less favorably based on age in comparison. 

Workers age 65 and older also may have medical conditions that bring them under the protection of the ADA as individuals with disabilities.  As such, they may request reasonable accommodation for their disability as opposed to their age.

I.1.  If an employer provides telework, modified schedules, or other benefits to employees with school-age children due to school closures or distance learning during the pandemic, are there sex discrimination considerations? (6/11/20)

Employers may provide any flexibilities as long as they are not treating employees differently based on sex or other EEO-protected characteristics.  For example, under Title VII, female employees cannot be given more favorable treatment than male employees because of a gender-based assumption about who may have caretaking responsibilities for children.

J.1.  Due to the pandemic, may an employer exclude an employee from the workplace involuntarily due to pregnancy? (6/11/20)

No.  Sex discrimination under Title VII of the Civil Rights Act includes discrimination based on pregnancy.  Even if motivated by benevolent concern, an employer is not permitted to single out workers on the basis of pregnancy for adverse employment actions, including involuntary leave, layoff, or furlough.

J.2.  Is there a right to accommodation based on pregnancy during the pandemic? (6/11/20)

There are two federal employment discrimination laws that may trigger accommodation for employees based on pregnancy.

First, pregnancy-related medical conditions may themselves be disabilities under the ADA, even though pregnancy itself is not an ADA disability.  If an employee makes a request for reasonable accommodation due to a pregnancy-related medical condition, the employer must consider it under the usual ADA rules.   

Second, Title VII as amended by the Pregnancy Discrimination Act specifically requires that women affected by pregnancy, childbirth, and related medical conditions be treated the same as others who are similar in their ability or inability to work.  This means that a pregnant employee may be entitled to job modifications, including telework, changes to work schedules or assignments, and leave to the extent provided for other employees who are similar in their ability or inability to work.  Employers should ensure that supervisors, managers, and human resources personnel know how to handle such requests to avoid disparate treatment in violation of Title VII.   

In case you missed it, the EEOC also added other questions in May:

G.4. The CDC identifies a number of medical conditions that might place individuals at “higher risk for severe illness” if they get COVID-19.  An employer knows that an employee has one of these conditions and is concerned that his health will be jeopardized upon returning to the workplace, but the employee has not requested accommodation.  How does the ADA apply to this situation? (5/7/20)

First, if the employee does not request a reasonable accommodation, the ADA does not mandate that the employer take action.

If the employer is concerned about the employee’s health being jeopardized upon returning to the workplace, the ADA does not allow the employer to exclude the employee – or take any other adverse action – solely because the employee has a disability that the CDC identifies as potentially placing him at “higher risk for severe illness” if he gets COVID-19.  Under the ADA, such action is not allowed unless the employee’s disability poses a “direct threat” to his health that cannot be eliminated or reduced by reasonable accommodation.

The ADA direct threat requirement is a high standard.  As an affirmative defense, direct threat requires an employer to show that the individual has a disability that poses a “significant risk of substantial harm” to his own health under 29 C.F.R. section 1630.2(r) (regulation addressing direct threat to health or safety of self or others). A direct threat assessment cannot be based solely on the condition being on the CDC’s list; the determination must be an individualized assessment based on a reasonable medical judgment about this employee’s disability – not the disability in general – using the most current medical knowledge and/or on the best available objective evidence. The ADA regulation requires an employer to consider the duration of the risk, the nature and severity of the potential harm, the likelihood that the potential harm will occur, and the imminence of the potential harm.  Analysis of these factors will likely include considerations based on the severity of the pandemic in a particular area and the employee’s own health (for example, is the employee’s disability well-controlled), and his particular job duties.  A determination of direct threat also would include the likelihood that an individual will be exposed to the virus at the worksite.  Measures that an employer may be taking in general to protect all workers, such as mandatory social distancing, also would be relevant.

Even if an employer determines that an employee’s disability poses a direct threat to his own health, the employer still cannot exclude the employee from the workplace – or take any other adverse action – unless there is no way to provide a reasonable accommodation (absent undue hardship).  The ADA regulations require an employer to consider whether there are reasonable accommodations that would eliminate or reduce the risk so that it would be safe for the employee to return to the workplace while still permitting performance of essential functions.  This can involve an interactive process with the employee.  If there are not accommodations that permit this, then an employer must consider accommodations such as telework, leave, or reassignment (perhaps to a different job in a place where it may be safer for the employee to work or that permits telework).  An employer may only bar an employee from the workplace if, after going through all these steps, the facts support the conclusion that the employee poses a significant risk of substantial harm to himself that cannot be reduced or eliminated by reasonable accommodation. 

G.5. What are examples of accommodation that, absent undue hardship, may eliminate (or reduce to an acceptable level) a direct threat to self? (5/5/20)

Accommodations may include additional or enhanced protective gowns, masks, gloves, or other gear beyond what the employer may generally provide to employees returning to its workplace.  Accommodations also may include additional or enhanced protective measures, for example, erecting a barrier that provides separation between an employee with a disability and coworkers/the public or increasing the space between an employee with a disability and others.  Another possible reasonable accommodation may be elimination or substitution of particular “marginal” functions (less critical or incidental job duties as distinguished from the “essential” functions of a particular position).  In addition, accommodations may include temporary modification of work schedules (if that decreases contact with coworkers and/or the public when on duty or commuting) or moving the location of where one performs work (for example, moving a person to the end of a production line rather than in the middle of it if that provides more social distancing).  

These are only a few ideas.  Identifying an effective accommodation depends, among other things, on an employee’s job duties and the design of the workspace.  An employer and employee should discuss possible ideas; the Job Accommodation Network ( also may be able to assist in helping identify possible accommodations.  As with all discussions of reasonable accommodation during this pandemic, employers and employees are encouraged to be creative and flexible.