Supreme Court Refuses to Lower Burden of Proof in Section 1981 Claims

Last month, a relatively united  Supreme Court confirmed that the evidentiary standard for §1981 race discrimination claims is subject to the but-for or because-of standard which applies to most tort claims.  Comcast v. National Ass’n of African American-Owned Media, Inc., No. 18-1171 (U.S. March 23, 2020).   In doing so, the Court affirmed the trial court dismissal of a claim brought by an African-American-owned television network which had alleged that the refusal of COMCAST to carry its station was illegal race discrimination, instead of lack of programming demand, bandwidth constraints and preference for sports and news programming.  This is of interest to employers because §1981 claims can be brought by independent contractors, including physicians and other professionals who commonly provide services to a wide-variety of businesses and who otherwise are not covered by Title VII.


According to the Court’s decision, §1981 – which was enacted shortly after the Civil War --  guarantees ““[a]ll persons . . . the same right . . . to make and enforce contracts . . . as is enjoyed by white citizens.”   The Plaintiff filed suit after negotiations failed and alleged that Comcast’s explanation for refusing to carry its network was pretextual for race discrimination.  Comcast moved to dismiss on the grounds that the allegations failed to satisfy the but-for standard and, after giving the plaintiffs two opportunities to amend their complaint to address this deficiency, the trial court eventually dismissed the complaint for failing to state a claim upon which legal relief could be granted.   The Ninth Circuit reversed on the grounds that §1981 only required the plaintiff to allege that race played “some role” in the defendant’s decision.


The Supreme Court reversed.  The Court rejected arguments that §1981 only required that race be a motivating factor and that a complaint’s allegations need not be as strong as the evidentiary burden at trial.   “[W]hile the materials the plaintiff can rely on to show causation may change as a lawsuit progresses from filing to judgment, the burden itself remains constant.”

It is “textbook tort law” that a plaintiff seeking redress for a defendant’s legal wrong typically must prove but-for causation. University of Tex. Southwestern Medical Center v. Nassar, 570 U. S. 338, 347 (2013) (citing W. Keeton, D. Dobbs, R. Keeton, & D. Owen, Prosser and Keeton on Law of Torts 265 (5th ed. 1984)). Under this standard, a plaintiff must demonstrate that, but for the defendant’s unlawful conduct, its alleged injury would not have occurred.  This ancient and simple “but for” common law causation test, we have held, supplies the “default” or “background” rule against which Congress is normally presumed to have legislated when creating its own new causes of action.=

               . . . .

The guarantee that each person is entitled to the “same right . . . as is enjoyed by white citizens” directs our attention to the counterfactual—what would have happened if the plaintiff had been white?  This focus fits naturally with the ordinary rule that a plaintiff must prove but-for causation.  If the defendant would have responded the same way to the plaintiff even if he had been white, an ordinary speaker of English would say that the plaintiff received the “same” legally protected right as a white person. Conversely, if the defendant would have responded differently but for the plaintiff ’s race, it follows that the plaintiff has not received the same right as a white person. Nor does anything in the statute signal that this test should change its stripes (only) in the face of a motion to dismiss.

The Court also noted that the “motivating factor” test in Title VII was not created by Congress until 1991 and only applied to injunctive and declaratory relief; employers could still avoid damages and reinstatement by invoking a but-for affirmative defense (which had been created in 1989 by a plurality of the Court in Price Waterhouse).   Further, although Congress also amended §1981 in 1991, it did not change its long-standing burden of proof as it did with Title VII.


Earlier this week, the Court also held that the standard for federal employees to prove discrimination is less than the standard which applies in the private sector.  Federal employees alleging violation of the Age Discrimination in Employment Act need only to prove that age was a factor in the decision or process when seeking injunctive relief instead of but-for causation, which is still necessary for federal employees to recover compensatory damages.  Babb v. Wilkie, No. 18-882 (U.S. April 6, 2020).

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 Finalizes Its Anti-Retaliation Enforcement Guidelines

At the end of August, the EEOC issued its final enforcement guidelines on retaliation claims just a few months after publishing its draft guidelines previously discussed here in February.  The final guidelines contain some additional discussion not previously included, including on the burdens of proof and causal connections required to show retaliation.  As most people know by now, the anti-retaliation provisions of the federal employment discrimination statutes encompass a broader range of employment actions than arise under regular discrimination statutes.   The final guidelines also contain a new section about claims alleging interference with ADA rights, which the EEOC interprets to provide broader protection than even the anti-retaliation clauses.

Protected Activities.  As previously mentioned, the EEOC contends that the “participation” clause in the anti-retaliation provision of Title VII (and other employment discrimination statutes) protects employees from any form of disciplinary action or adverse employment action regardless of the honesty or reasonable belief of the employee during the process.  Further, the EEOC contends that protected “participation” includes not only participation in agency or government proceedings, investigations and lawsuits, but also to internal employer complaint policies and investigations.  The EEOC defends its position because the Supreme Court left the issue open in Crawford v. Metropolitan Government of Nashville whether an employee’s participation as a witness in an internal workplace investigation was “participation” or merely “opposition.”  In contrast to “participation,” an employee’s “opposition” to potentially unlawful conduct must both reasonable and be based on a reasonable belief in order to be protected.   

Opposition can include the following:

·        participating in an internal workplace investigation,

·        refusing to obey an illegal order to discriminate against a subordinate or co-worker,

·        complaining to a union, lawyer, or customer,

·        picketing,

·        stating an intention to file a charge of discrimination

·        complaining after one incident of harassing conduct even though the conduct has not yet risen (i.e., become severe or pervasive enough) to the level of illegal (or actionable) workplace harassment,

·        requesting a reasonable accommodation for a religious belief or disability, and

·        discussing information about co-workers’ compensation to support or determine whether the rates are discriminatory,

The opposition clause applies if an individual explicitly or implicitly communicates his or her belief that the matter complained of is, or could become, harassment or other discrimination. The communication itself may be informal and need not include the words "harassment," "discrimination," or any other legal terminology, as long as circumstances show that the individual is conveying opposition or resistance to a perceived potential EEO violation. Individuals may make broad or ambiguous complaints of unfair treatment, in some instances because they may not know the specific requirements of the anti-discrimination laws. Such communication is protected opposition if the complaint would reasonably have been interpreted as opposition to employment discrimination.

The opposition clause also protects all employees, regardless of their position or responsibility for enforcing EEO laws, so that HR managers are protected to the same extent as any other employee for opposing unlawful conduct. 

The opposition clause does not permit an employee to neglect job duties, make numerous specious complaints, badger co-workers to become witnesses, or coerce a co-worker to change his or her story, etc.

Retaliatory Actions.  While the retaliatory act must constitute a materially adverse job action, this encompasses any action that might deter a reasonable person from engaging in protected activity.   This is also a broader range of activities than can constitute actionable discrimination and can include actions that did not, in fact, deter the victim.  It can, for instance, include warnings, transfers, performance evaluations, reprimands, activities outside of work, disparaging the person to the media, more closely scrutinizing work, and retaliating against a family member, etc.  Trivial actions that would not deter a reasonable person from engaging in protected activity will not be considered as materially adverse.  Harassing acts that might not be severe or pervasive enough to constitute actionable harassment could constitute actionable retaliation.

Causal Connection.  Evidence must show that the employee would not have suffered the retaliatory action but for his or her protected conduct.   This is not a “sole cause” standard because there can be multiple “but for” causes.   Sometimes, an employer denies knowledge of the protected conduct and other times offers a legitimate and non-retaliatory reason for its actions.    A causal connection can be established, for instance, by suspicious timing, comments, comparative treatment, selective enforcement, and inconsistent or shifting explanations for the employer’s action, etc.

ADA Interference.  The ADA’s prohibition against interfering with ADA rights is interpreted by the EEOC as being broader than the anti-retaliation provisions.

Because the "interference" provision is broader, however, it will reach even those instances when conduct does not meet the "materially adverse" standard required for retaliation. Examples of conduct by an employer prohibited under the ADA as interference would include:

·        coercing an individual to relinquish or forgo an accommodation to which he or she is otherwise entitled;

·        intimidating an applicant from requesting accommodation for the application process by indicating that such a request will result in the applicant not being hired;

·        threatening an employee with loss of employment or other adverse treatment if he does not "voluntarily" submit to a medical examination or inquiry that is otherwise prohibited under the statute;

·        issuing a policy or requirement that purports to limit an employee's rights to invoke ADA protections (e.g., a fixed leave policy that states "no exceptions will be made for any reason");

·        interfering with a former employee's right to file an ADA lawsuit against the former employer by stating that a negative job reference will be given to prospective employers if the suit is filed; and

·        subjecting an employee to unwarranted discipline, demotion, or other adverse treatment because he assisted a coworker in requesting reasonable accommodation.

The interference provision does not apply to any and all conduct or statements that an individual finds intimidating. In the Commission's view, it only prohibits conduct that is reasonably likely to interfere with the exercise or enjoyment of ADA rights. . . .

 . . .A threat does not have to be carried out in order to violate the interference provision, and an individual does not actually have to be deterred from exercising or enjoying ADA rights in order for the interference to be actionable.

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 be changed or 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.

Sixth Circuit: EAP Referral for Fitness for Duty is Not Evidence of Perceived Disability

Last week, the Sixth Circuit in Cincinnati affirmed the dismissal of a perceived disability and retaliation claim brought against an Ohio employer under the ADA and Ohio law.   Johnson v. University Hospitals Physician Services, No. 14-4026 (6^th Cir. 7-7-15).  In that case, the plaintiff was referred to EAP for a fitness evaluation after she was repeatedly found sleeping at her desk and admitted that her new medication made her drowsy.   After she requested and was recommended for medical leave, she failed to return to work when released by her medical provider and refused to provide a fitness for duty statement.  After being fired for refusing to perform a job duty, she sued that her fitness evaluation had violated the ADA.  However, the Court rejected the argument that perceiving an employee as impaired is “tantamount” to perceiving the employee as disabled since the impairment may not be substantially limiting even though it interferes with job performance.

According to the Court’s opinion, the plaintiff had concerns about the proper completion of forms being submitted to the Centers for Medicare and Medicaid (CMS).   Concerned that she was participating in fraud, she contacted the employer’s compliance hotline.  A compliance officer investigated her concerns and assured her that she was properly completing the forms in compliance with CMS protocols.   The plaintiff conducted her own research and contacted the CMS subcontractor, an employee of which reinforced her concerns.  She forwarded these emails to her supervisors and was again contacted by the compliance officer who said that the subcontractor supervisors agreed that the employer’s practice was appropriate.  

Meanwhile, the plaintiff was occasionally napping at her desk and reported that she would be late one day because her new medication was making her drowsy.  After a number of sleeping incidents (none of which violated employer policy), she was referred to EAP for a fitness for duty evaluation based on her impaired functioning.  She requested FMLA and STD, was referred to a psychiatrist and time off work by EAP and released to return to work by her new psychiatrist.  In the meantime, the employer requested a new FMLA certification.  The employee did provide the new certification or return to work.

The employer ordered her to return to work by October 1 or be fired.  The plaintiff responded by filing a Charge of Discrimination and providing a list of conditions about her return to work, including how the CMS forms would be completed.  When she refused to complete the forms as instructed, she was terminated for refusing to perform her duties.  This litigation ensued focused only on the fitness for duty evaluation by EAP and the delay in reinstating her to work.  Surprisingly, she did not bring a whistleblower claim or wrongful termination claim.

The Court applied a “but-for” causation standard under the ADA and Ohio law.  It did not apply the ADAA definition of perceived disability.  Instead, it found that she had to prove that the employer regarded her “actual, nonlimiting impairment substantially limits one or more major life activities.”  In any event, it rejected her argument that her referral for an EAP evaluation was evidence of that the employer perceived her as disabled under the ADA: 

“[A] defendant employer’s perception that health problems are adversely affecting an employee’s job performance is not tantamount to regarding that employee as disabled.”  . . . An employer’s request that an employee undergo a medical exam “may signal that an employee’s job performance is suffering, but that cannot itself prove a perception of a disability because it [alone] does not prove that the employer perceives the employee to have an impairment that  substantially limits one or more of the employee’s major life activities.” . . . .. “Deteriorating [employee] performance may be linked to motivation or other reasons unrelated to disability.” . . . (citations omitted).

Defendant stated on the referral form that “impaired functioning” was the basis for [her] referral. The report of the doctor who examined [her] stated that she was referred for evaluation because she was “falling asleep at work,” and generally had a “difficult” relationship with her manager. These reasons for referral are directly related to [her] ability to do her job.

In addition, the plaintiff failed to show that the employer was at fault for her delay in returning to work.  The plaintiff refused to cooperate with providing either medical certifications or a fitness for duty from her own psychiatrist  and was still invited back to work.   While there may have been a miscommunication about her return to work, the delay was not attributable to any perception of a disability.  Moreover, her submission of a list of conditions to her return reflected the fact that she was in no hurry to return to work.  Finally, the employer’s alleged irritation with her concerns about the CMS form were not attributable to any perception of disability. 

The retaliation claim was easily dismissed because the plaintiff could not show that the employer’s reason for her termination – her refusal to complete the CMS forms as instructed – was merely a disguise for unlawful retaliation.  Indeed, she admitted that she would probably still be employed if she had completed the form as instructed. 

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 be changed or 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.

Sixth Circuit Affirms $1.5M Verdict for Sexual Harassment of and Retaliation Against Temporary Employees

Last week, a unanimous Sixth Circuit affirmed a $1.5M jury verdict against a logistics employer which fired three women and one male employee who protested sexual harassment by a supervisor who also played significant roles in having each of them fired.  EEOC v. New Breed Logistics, No. 13-6250 (6^th Cir. 4-22-15).  The Court rejected the employer’s argument that opposing and protesting a supervisor’s sexual harassment to his face is not protected “opposition” under Title VII and specifically noted that the statute does not require the employee to protest to anyone in particular.  The Court also found the employer could be held liable for punitive damages based solely on the harassing supervisor’s knowledge and conduct and because the employer did not distribute the anti-harassment policy to temporary employees, did not conduct a good faith workplace investigation of the anonymous harassment complaint about the supervisor, and terminated three of the four plaintiffs during the workplace investigation.

According to the Court’s opinion, the defendant employer operated with mostly temporary employees assigned from staffing companies.  It only provided employee handbooks to its regular employees.  One of its supervisors had the authority to terminate temporary employees and was regularly harassing female subordinates with lewd comments and physical contact.   Not only did the employees object to his conduct, a male co-worker also requested that he stop it.  Only one of the employees ever complained to management and only did so anonymously.  The subsequent investigation was initially limited to interviewing the harassing supervisor.  All of the plaintiffs were ultimately fired shortly after the anonymous complaint was made.  Two of them were fired for purported attendance issues and two for making a mistake.   The harassing manager was found to have been the decisionmaker or to have played a role in all of their terminations.  The employees denied having attendance issues and evidence was presented that other employees had made mistakes without being fired.

The employer had argued that the plaintiffs could not prove retaliation because they could not show that they engaged in any protected conduct before their termination.  Only one of them had made an anonymous complaint to management prior to her termination.  The employer contended that the employees’ protest to the harassing supervisor himself and resistance to his harassment was not protected conduct.  Surprisingly, two other court decisions agreed with this argument, with one of them noting that resistance to harassment could not be protected conduct or every harassment claim would automatically constitute a retaliation claim as well.  The Sixth Circuit rejected this argument because Title VII’s opposition clause in the anti-retaliation provision prohibits retaliation against any employee because the employee opposed an unlawful employment practice.   The Supreme Court has previously noted that “oppose” means to resist.  Therefore, the Sixth Circuit has found protected opposition with informal complaints of discrimination:

[A] demand that a supervisor cease his/her harassing conduct constitutes protected activity covered by Title VII. Sexual harassment is without question an “unlawful employment practice.” If an employee demands that his/her supervisor stop engaging in this unlawful practice—i.e., resists or confronts the supervisor’s unlawful  harassment—the opposition clause’s broad language confers protection to this conduct. Importantly, the language of the opposition clause does not specify to whom protected activity must be directed.

Because the supervisor knew of their protests of his behavior and played a role in their terminations, the Court had no difficulty finding sufficient evidence of but-for causation in their retaliation claims.   Where he merely played a role in two plaintiffs’ termination, the decisionmaker relied upon his evaluation of their work and gave inconsistent explanations about why she held them to a higher standard than other employees.   There was also a strong temporal proximity between the time of the protected conduct and the retaliatory terminations.  In addition, the EEOC was able to provide evidence that the reasons given for the terminations were pretextual because the harassing supervisor had told one of the employees that he would disguise her tardiness (instead of discharging her), one of the employees had never been accused of attendance issues before he was fired shortly after being interviewed during the harassment investigation, and two of the employees could show that other employees had make similar mistakes and not been fired.

The Court also refused to consider the employer’s Ellerth affirmative defense because each of the plaintiffs suffered a tangible employment action when they were fired.

The Court found that the employer could be held liable for punitive damages.  The Court rejected the employer’s argument that it could not be liable since sexual harassment was outside the scope of the supervisor’s employment because the tangible employment action -- firing the employees -- was within the supervisor’s authority.  The Court also rejected the employer’s defense that management could not have acted with deliberate disregard of federal law since management did not previously know about the harassment because the supervisor clearly knew about the harassment. “The EEOC only had to show that the “individual[] perpetrating the discrimination [or, here, retaliation]” acted with malice or reckless disregard for federally protected rights.”   

Further, the Court rejected the employer’s good faith defense because it did not undertake efforts to prevent and remedy the harassment by, for instance, providing an employee handbook or harassment policy to the temporary employees.  It also had initially only interviewed the supervisor after the anonymous complaint was made and did not interview all of the potential witnesses identified. “In assessing whether an employer engaged in good-faith efforts to comply with Title VII, we focus “both on whether the defendant employer had a written sexual harassment policy and whether the employer effectively publicized and enforced its policy.’”  Finally, the jury was entitled to infer a lack of good faith from the fact that three of the plaintiffs were terminated during the employer’s investigation of the anonymous complaint.  

The jury instruction on punitive damages omitted language about the employer’s good faith defense.  The Court found that the employer had waived its objection to this omission by failing to argue about the missing language during the charge conference even though the employer had submitted a proposed jury instruction with the missing language.   The Court also rejected the employer’s argument that it constituted plain error for the jury instruction to omit the employer’s good faith defense because the employer did not make an argument about its good faith during its closing arguments to the jury. 

The Court also rejected challenges to the jury instruction use of “because of” instead of “but for” in the retaliation instruction.  

The EEOC press release about its victory mentions that the lawsuit was first filed in September 2010 and the jury reached its verdict in May 2013.

 

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 be changed or 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.

En Banc Sixth Circuit Upholds Regular Attendance and Physical Presence Requirement and Rejects EEOC’s Telecommuting Accommodation Under ADA

On Friday, a divided en banc Sixth Circuit affirmed an employer’s summary judgment in an ADA case where the employee sought permission to work from home on an as needed basis as a reasonable accommodation under the ADA.  EEOC v. Ford Motor Co., No. 12-2484 (6^th Cir. 4-10-15).  In doing so, the Court rejected an earlier 2014 decision by a divided Sixth Circuit panel (which was reported here) that had granted summary judgment to the EEOC and found that physical attendance at a job site was no longer generally an essential job function.  The Court found that while the ADA requires employers to provide reasonable accommodations, “it does not endow all disabled persons with a job—or job schedule—of their choosing.”  Relying on prior case law, ADA regulations, EEOC informal guidance, and common sense, the Court concluded that “[r]egular, in-person attendance is an essential function—and a prerequisite to essential functions—of most jobs, especially the interactive ones.”  Moreover, the Court found that an employer need not engage in the interactive ADA accommodation process when the employee is unqualified for the job.  The Court also rejected the Plaintiff’s retaliation claim in very strong language.  Five judges dissented. 

Background.  According to the Court’s opinion, the plaintiff’s job required her to regularly meet face-to-face with other company employees, although she could communicate on some issues by telephone and email.  However, her position required her to work in the same building as certain other jobs so that they could meet “on a moment’s notice” when needed, which the employer found to be the most effective form of communication for that position.  Hired six years earlier, the plaintiff performed very well her first few years, but her performance evaluations steadily declined beginning in the fourth year until in 2009, she was not meeting the basic functions of her position.  She was informed that she” lacked interpersonal skills, delivered work late, didn’t show a concern for quality, and failed to properly communicate with the suppliers. She again ranked in the bottom 10% of her peers.”  In 2008, she missed 1.5 days/week and in 2009, she was absent more than she was present. “And when she didn’t miss work, she would often come in late and leave early.”  As is typical in these situations, everyone around her was frustrated: 

When she missed work, her teammates had to pick up the slack, including by taking on the functions that [the Plaintiff] could not perform at home. Her supervisors also had to assume her job responsibilities. Her absences caused the resale-buyer team “stress and frustration,”  . . .  further compounded [her] mistakes, and frustrated suppliers.

The Plaintiff’s chronic irritable bowel syndrome contributed to this situation since she could suffer an uncontrollable episode at work or while driving (an hour each way) to and from work.  The employer attempted to help her on several occasions.   Her first supervisor adjusted her work schedule to 4 ten-hour days and allowed her to telecommute on a trial basis as needed for two months.   However, the Plaintiff was unable to establish regular and predictable attendance and perform the core functions of her job.  A new supervisor also attempted another trial telecommuting experiment, which also failed.   Nonetheless, the Plaintiff sought to telecommute four days/week, which had been permitted for other positions at the Company.  However, the Company only permitted her co-workers to telecommute one day each week, not four as requested by the Plaintiff.  When reviewing her core job responsibilities with her while considering her telecommuting request, the Plaintiff

admitted that she could not perform four of the [ten tasks] from home, including meetings with suppliers, making price quotes to stampers, and attending some required internal meetings. [She] added, however, that she did not envision needing to stay home four days per week, only that she wanted the freedom of “up to 4 days.”

Her request was rejected on the grounds that four of the ten tasks could not be performed at all from home, four other tasks could not be performed effectively from home and the remaining two tasks were not significant enough to support telecommuting.  Although the employer rejected that specific accommodation request, it offered other accommodations, including placing her office closer to a restroom or transferring her into a job which would allow her to telecommute.   She rejected those offered accommodations, failed to identify any other potential solutions, and filed a Charge of Discrimination with the EEOC.

The Plaintiff’s job performance did not improve and she again ranked in the bottom 10% of her peers for the second year in a row. Although she claimed the evaluation was retaliatory, she did not elaborate and was placed on a performance improvement plan.  After she still failed to complete tasks completely or on time during the plan period, she was terminated.  She filed a retaliation Charge and this litigation ensued two years later.

ADA Reasonable Accommodation Claim.  In affirming the employer’s summary judgment, the Court reviewed some basic ADA requirements.  Although an employer is required to provide a reasonable accommodation (which can include job restructuring or modified work schedules), an employer is not required to remove essential job functions.  “[T]hat is per se unreasonable.”  In addition, “the essential-job-function inquiry does not require employers to lower their standards by altering a job’s essential functions.”  Moreover, “[t]he employee bears the burden of proposing an accommodation that will permit her to effectively perform the essential functions of her job.”  

In this case, the Court agreed that “regular and predictable on-site job attendance [is] an essential function.”  The Court observed that most courts have “establish[ed] a general rule that, with few exceptions, “an employee who does not come to work cannot perform any of his job functions, essential or otherwise. . . . And for good reason: ‘most jobs require the kind of teamwork, personal interaction, and supervision that simply cannot be had in a home office situation.’”  The Court also cited and analyzed the EEOC’s ADA regulations governing essential job functions and found that they supported this conclusion.  

To guide the essential-function inquiry, the regulations speak in factors—seven of them.  . . . In many jobs, especially the interactive ones, all seven point toward finding regular and predictable on-site attendance essential. Take the amount of time performing that function, for example, § 1630.2(n)(3)(iii): Most of one’s work time is spent at work, and many interactive functions simply cannot be performed off site. Or take the consequences of failing to show up for work, § 1630.2(n)(3)(iv): They can be severe.  . . . Ditto for the terms of the collective bargaining agreement, § 1630.2(n)(3)(v): They certainly won’t typically exempt regular attendance. Other employees’ work practices are no different, § 1630.2(n)(3)(vi)–(vii): Other employees usually attend work at the worksite. And  so on, such that most jobs would be fundamentally altered if regular and predictable on-site attendance is removed.

The Court also rejected the EEOC’s argument that permitting any telecommuting by a co-worker meant that the employer had to grant unlimited and unpredictable telecommuting to the Plaintiff:

In addition to being legally and factually unsupported, the EEOC’s view here would cause practical harm to private employers. The ADA encourages—indeed, requires—employers to make reasonable accommodations for its employees, including allowing telecommuting under the proper circumstances. 42 U.S.C. § 12111(9)(B). But if the EEOC’s position carries the day, once an employer allows one person the ability to telecommute on a limited basis, it must allow all people with a disability the right to telecommute on an unpredictable basis up to 80% of the week (or else face trial). That’s 180-degrees backward. It encourages—indeed, requires—employers to shut down predictable and limited telecommuting  as an accommodation for any employee. A “good deed would effectively ratchet up liability,” which “would undermine Congress’ stated purpose of eradicating discrimination against disabled persons.”  . . . The practical effect? Companies would  tighten telecommuting policies to avoid liability, and countless employees who benefit from currently generous telecommuting policies would suffer. A protective tool becomes a weapon if used unwisely; and telecommuting should not become a weapon.

The Court also rejected the EEOC’s “charm[ing]” argument that it was “self-evident” that technological advances had removed the requirement of physical presence at the workplace.  While this may be true of some jobs, the evidence in this case did not show that.

But technology changing in the abstract is not technology changing on this record.  . . .And no record evidence—none—shows that a great technological shift has made this highly interactive job one that can be effectively performed at home.

The technologies used by the employer were the same technologies available when other courts still found physical presence to typically be an essential job function for most jobs.  “These technologies—email, computers, telephone, and limited video conferencing—were equally available when courts around the country uniformly held that on-site attendance is essential for interactive jobs.” 

ADA Interactive Process.  The Court made some surprising observations about the interactive process.   

Our conclusion that [the Plaintiff] was unqualified for her position makes it unnecessary to consider whether [the employer] showed bad faith in the discussions to work out a reasonable accommodation while [she] was still employed. Even if [the employer] did not put sufficient effort into the “interactive process” of finding an accommodation, 29 C.F.R. § 1630.2(o)(3), “that failure is actionable only if it prevents identification of an appropriate accommodation for a qualified individual.”  . . .Courts thus need not consider this form of nonindependent liability “if the employee fails to present evidence sufficient to reach the jury on the question of whether she was able to perform the essential functions of her job with an accommodation.”  . . . It suffices here to hold that any failure by [the employer] does not create liability because, as we just concluded, the EEOC did not produce such evidence.

In any event, the employer did engage in the interactive process by suggesting and experimenting with multiple possible accommodations.

Summary Judgment Issues.  The Court also made some notable conclusions about burdens of proof at the summary judgment stage.   For starters, the Court made the employee’s opinion testimony about her own essential job functions practically irrelevant.

An employee’s unsupported testimony that she could perform her job functions from home does not preclude summary judgment, for it does not create a genuine dispute of fact. Neither the statute nor regulations nor EEOC guidance instructs courts to credit the employee’s opinion about what functions are essential. That’s because we do not “allow employees to define the essential functions of their positions based solely on their personal viewpoint and experience.” Mason, 357 F.3d at 1122. And for good reason: If we did, every failure-to-accommodate claim involving essential functions would go to trial because all employees who request their employer to exempt an essential function think they can work without that essential function.

In any event, the Plaintiff’s testimony did not save her case because she still admitted that she could not perform four of her essential job functions from home, did not testify that she could “the vast majority of” job functions as effectively from home as from the work site.  Because the employer is not required to lower its production standards as an accommodation and the past telecommuting experiences with the Plaintiff had shown that this accommodation would not work, the Plaintiff’s testimony was rejected by the Court.  

The Court also rejected the Plaintiff’s testimony about her subjective impression of regular meetings with her supervisor about her poor attendance.  

We “look at the facts as they appear to the person making the decision to terminate [the employee],” not at “the employee’s subjective [beliefs].”  . . .Harris’s unexpressed “subjective skepticism regarding the truth of” whether [her supervisor] was actually trying to help her does not alone “raise a triable issue as to pretext.”  . . .Plus, these kinds of meetings do “not constitute harassment simply because they cause the employee distress.”

In contrast with the Plaintiff’s biased testimony, evidence about the telecommuting schedules of plaintiff’s co-workers was relevant under the ADA regulations and as evidence of the employer’s judgment.  However, it was not helpful to the Plaintiff because telecommuting had only been permitted by strong performers one set day each week with the understanding that those co-workers still had to come to work when needed.  

None of this is to say that whatever the employer says is essential necessarily becomes essential.  . . . Suppose, for instance, that a fire department regularly allows certain firefighters to refrain from driving fire trucks. But then the department denies the same accommodation to a firefighter with a known disability that prevents her from driving the trucks. A genuine fact issue might exist as to whether driving a fire truck is actually essential—it is contradicted by materially similar job practices.  . . .Our ruling does not, in other words, require blind deference to the employer’s stated judgment. But it does require granting summary judgment where an employer’s judgment as to essential job functions—evidenced by the employer’s words,  policies, and practices and taking into account all relevant factors—is “job-related, uniformly-enforced, and consistent with business necessity.”

Retaliation Claim.  The Court also rejected the EEOC’s retaliation claim. "Discrimination here means retaliation—that “but for” an employee’s statutorily protected activity the employer would not have taken the “adverse employment action.”  In this case, the EEOC could not show that the employer’s explanation for terminating the Plaintiff’s employment – her back-to-back poor performance evaluations and failure to satisfy her performance improvement plan – was pretextual. 

No reasonable jury could find that Ford terminated Harris for a reason other than poor performance. Harris’s performance and interpersonal issues have been well documented. The EEOC indeed admits they existed. Suffice it here to say that, among other problems, Harris failed to update spreadsheets, complete her paperwork, schedule her training sessions, price items correctly, and finish her work on time. Her performance issues  are why she ranked in the bottom 10% of her peer group before she made her charge.

Granted, the Court agreed with the EEOC that the timing of the Plaintiff’s termination seemed suspicious – coming a mere four months after she filed her Charge.  “But while this ‘gives us pause,’ ‘temporal proximity cannot be the sole basis for finding pretext.’”    

The Court rejected the argument that the Plaintiff’s supervisor harassed her about her attendance because her subjective distress about the meetings was not reasonable and, more importantly, her supervisor played no role in the decision to terminate her employment.  He was on vacation when she was terminated and was never consulted on the matter.  

The Court also agreed that it seemed suspicious that the first time the Plaintiff received a “lower achiever” performance rating was only a few months  after she filed her Charge when, in the past, she had always received at least an “excellent plus” rating.   However, this was adequately explained as a mere change in terminology that took place in all performance evaluations in 2009 and that her percentile ranking – bottom 10% -- had not changed in two years.  

At first glance, this looks bad for Ford. Harris received her first “lower achiever” rating post-charge, and she received only “excellent plus” ratings before her charge. The EEOC stops there. But digging deeper—and looking at the whole record—reveals two reasons why no reasonable jury could find this low rating proof of pretext. For one, 2009 was the only year that Harris could have received the lower-achiever rating. Ford overhauled its ratings system that year for all employees, ditching the default “excellent plus” category (which 80% of workers received) in favor of a more accurate description of a worker’s performance. In Harris’s case, that meant “lower achiever”—the first and only time she could receive that rating. For two, the change in name did not change Harris’s low numerical ranking. In her only performance review after the charge, she ranked in the same percentile range as she did immediately before the charge: the bottom 10%. That’s not evidence of retaliation; that’s just poor performance—both before and after the charge.

Finally, the Court rejected the Plaintiff’s speculative testimony that she was set up to fail in her performance improvement plan.   

The record shows that Harris failed two prior plans to improve her performance and attendance, similar to this one—and both before she filed her charge. The record also shows that Harris failed to achieve any of the objectives identified in post-charge plan, . . .—not just the objective the EEOC says is evidence of retaliation (eliminating her backlog of paperwork, see Dissent Op. at 38–39.). And the record shows that Ford used similar performance-enhancing plans for other employees who, like Harris, performed poorly.  . . . Harris’s testimony thus fails to create a genuine dispute of fact because it is “so utterly discredited by the record that no reasonable jury” could believe it.

In any event, the Court also concluded that the EEOC failed to prove ‘but-for” causation as part of the prima facie burden of proof – i.e., that the Plaintiff would not have been fired but for filing her Charge of Discrimination.

In addition to Harris’s past failings, she admitted that she would not be able to attend work on-site in a regular and predictable manner in the future. And this attendance was an essential element of her job. No reasonable jury could find that Ford—a for-profit corporation— would continue to pay an employee who failed to do her job well in the past, and who, by her own admission, could not perform the essential elements of her job in the  future. The EEOC thus cannot demonstrate that Harris’s charge was the but-for cause of Ford’s decision to fire her, which means that Ford was entitled to summary judgment for that reason as well.

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 be changed or 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.

En Banc Sixth Circuit Rejects Prior Causation Standard for ADA and Now Requires Plaintiffs to Prove Employer Acted Because of Disability.

On Friday, the Sixth Circuit issued a rare en banc decision reversing over a decade of precedent requiring ADA plaintiffs to prove that disability discrimination was the sole or only reason for the employer’s adverse action. Lewis v. Humboldt Acquisition Corp. No. 09-6381 (6th Cir. 5/25/12). Instead, the Sixth Circuit now requires ADA plaintiffs to prove that the employer acted because of the plaintiff’s disability. In other words, the employer would not have discriminated or taken adverse action but for the plaintiff’s disability and the plaintiff’s disability no longer need be the employer’s sole or only consideration in order for an ADA plaintiff to prevail. The Court’s majority reached this decision because the statutory language in the ADA, like the ADEA, prohibits employers from discriminating “because of” an employee’s disability. The prior causation standard had been borrowed from the Rehabilitation Act, which the Court found to be inapposite in light of the differences in the statutory texts. “Shared statutory purposes do not invariably lead to shared statutory texts, and in the end it is the text that matters.” The Court also determined that because the ADA statutory language mirrored that of the ADEA, it should follow the causation standard for that statute as recently explained by the Supreme Court in Gross v. FBL Financial Services instead of the more lenient “motivating factor” standard of Title VII as argued by the plaintiff. Although both Title VII and the ADA prohibit employment discrimination, the motivating factor language is never used in the ADA and the Court rejected the plaintiff’s attempts to incorporate it by cross-cross references to Title VII.

At issue was the termination of a registered nurse with a disability who the employer claimed had been fired because “an outburst at work, in which she allegedly yelled, used profanity and criticized her supervisors.” At trial, the plaintiff had requested a jury instruction with the motivating factor theory of causation, but the trial court utilized the “sole” reason jury instruction. The Sixth Circuit rejected both approaches in favor of the “but for” theory of causation based on a comparison of statutory texts and the Supreme Court’s prior Gross opinion. Notably, as of last week, the Sixth Circuit was the only Court of Appeals to still utilize the “sole factor” causation theory in ADA cases and the only other Circuit to have addressed this issue since Gross also concluded that the ADA should be constructed the same as the ADEA. See Serwatka v. Rockwell Automation, Inc., 591 F.3d 957, 961–62 (7th Cir. 2010).

Interestingly, all of the judges agreed that the sole factor test should be discarded, but there were three separate concurring opinions because they did not all agree on the “because of” standard.

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.

Supreme Court: ADEA Does Not Allow Mixed Motive Theory; Plaintiff Must Prove Age Was “But For” Reason for Adverse Action.

This morning, a 5-4 Supreme Court ruled that the Age Discrimination in Employment Act (ADEA) is different from Title VII in another important respect: While Title VII permits a plaintiff to prove that illegal discrimination was a motivating factor (albeit not the sole factor) in his or her adverse employment action, ADEA requires the plaintiff to prove that s/he would not have suffered the adverse action “but for” his or her age. Gross v. FBL Financial Services, Inc., No. 08-441 (6/18/09).

In Gross, the plaintiff alleged that he was demoted primarily because of his age, although he admitted that his age was not the only factor. This is often known as a mixed-motive case and is a theory that was established in the plurality opinion of the Price-Waterhouse v. Hopkins case. The trial court instructed the jury that it must rule for the employee if he proved that “his age was a motivating factor in the demotion decision,” and “that age was a motivating factor if it played a part in the demotion.” The trial court also instructed the jury to return a verdict for the employer “if it proved that it would have demoted Gross regardless of age.” In other words, the employer bore the burden of proving that age was not the primary motivating factor even if it was a small factor. The jury returned a verdict for Gross, awarding him$46,945 in lost compensation. The employer appealed and the Court of Appeals reversed.

Justice Thomas began his opinion by noting that ‘[t]he question presented by the [employee] in this case is whether a plaintiff must present direct evidence of age discrimination [as opposed to circumstantial evidence] in order to obtain a mixed-motives jury instruction in a suit brought under the” ADEA. However, the Court never needed to reach that question because it held that “such a jury instruction is never proper in an ADEA case.”

“

Unlike Title VII, the ADEA’s text does not provide that a plaintiff may establish discrimination by showing that age was simply a motivating factor. Moreover, Congress neglected to add such a provision to the ADEA when it amended Title VII to add §§2000e–2(m) and 2000e–5(g)(2)(B), even though it contemporaneously amended the ADEA in several ways, see Civil Rights Act of 1991 . . . We cannot ignore Congress’ decision to amend Title VII’s relevant provisions but not make similar changes to the ADEA. When Congress amends one statutory provision but not another, it is presumed to have acted intentionally.”

“The ADEA provides, in relevant part, that ‘[i]t shall be unlawful for an employer . . . to fail or refuse to hire or to 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 age.’ 29 U. S. C. §623(a)(1) (emphasis added). . . . To establish a disparate treatment claim under the plain language of the ADEA, therefore, a plaintiff must prove that age was the “but-for” cause of the employer’s adverse decision.”

“[Nothing in the statute’s text indicates that Congress has carved out an exception to that rule for a subset of ADEA cases. Where the statutory text is ‘silent on the allocation of the burden of persuasion,’ we “begin with the ordinary default rule that plaintiffs bear the risk of failing to prove their claims.”

Moreover, “the burden of persuasion necessary to establish employer liability is the same in alleged mixed-motives cases as in any other ADEA disparate-treatment action. A plaintiff must prove by a preponderance of the evidence (which may be direct or circumstantial), that age was the “but-for” cause of the challenged employer decision.”

Insomniacs can read the full decision at http://www.supremecourtus.gov/opinions/08pdf/08-441.pdf.

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.