Sixth Circuit Finds Employee Was Denied Reasonable Accommodation, but Not Constructively Discharged

Last month, the Sixth Circuit reversed summary judgment for an employer on an ADA claim, but affirmed summary judgment on sex discrimination and constructive discharge claims.   Gleed v. AT&T Mobility Services, No. 14-2088 (6^th Cir. 6-4-15).   After the employer denied the plaintiff a reasonable accommodation that it provided for a pregnant employee and denied him a schedule adjustment for necessary medical care, the employee quit and sued.   The Court found that permitting the employee to sit when necessary was a reasonable accommodation, particularly when the employer permitted other employees to do so and it would allow him to work without pain.  Also, the employer could not insist on the employee utilizing its particular ADA process without proof that the employee was informed about it.   The employee’s request for a schedule change was likely reasonable as well, but the employee was at fault for the failure of the interactive process when he quit after his schedule request was denied instead of informing the employer that its suggestion – that he take unpaid leave and then apply for backpay – was unacceptable.   The Court also held that the denial of reasonable accommodations did not render his working conditions intolerable so as to render his resignation a constructive discharge.  Finally, the Court affirmed dismissal of the sex discrimination claim on the basis that he suffered no adverse employment action since his working conditions never changed.

According to the Court’s opinion, the employee suffered from a chronic skin infection which became worse when he stood for prolonged periods.   After he was transferred to a new store without desks, he was required to stand for long periods during his shift.  He brought a medical note to his manager requesting him to sit as needed, as a pregnant co-worker was permitted.  His request was refused because he was not pregnant. Seven months later, he developed a life-threatening infection which required daily IV antibiotic treatments.  He requested to change his work schedule so that he would not miss work for his medical treatment, but his manager denied his request.  He then called Human Resources to ask about his options, but was told that his only option was to take unpaid leave and then seek back pay.  He never specifically suggested adjusting his schedule.  When his doctor told him that he could die without the medical treatments, he resigned the next day and brought suit.

On appeal, the Court found that letting the plaintiff sit on a stool during his shift seemed reasonable since it would alleviate his pain and decrease his risk of another skin infection. The only argument which the employer raised was that the accommodation was not necessary because the plaintiff was physically capable of performing his job, even if he was in pain and risked his health.  In short, it argued that if the plaintiff “was physically capable of doing his job—no matter the pain or risk to his health—then it had no obligation to provide him with any accommodation, reasonable or not.”   The Court concluded that the ADA requires employers to provide disabled employees with similar benefits as non-disabled employees – i.e., the ability to work without pain.  “29 C.F.R. § 1630.2(o)(1)(iii). Here, taking the evidence in the light most favorable to [the plaintiff], he needed a chair to work—as other employees do—without great pain and a heightened risk of infection.” 

The employer then argued that the plaintiff never properly requested an accommodation.  Under it policy, employees are first to submit requests to their supervisors and then to call the HR Service Center.   However, the plaintiff only asked his supervisor about the stool and not HR or the  Service Center.  The Court rejected this argument because the plaintiff testified that he never saw this policy and the employer could not prove otherwise.  

The Court rejected the plaintiff’s claim concerning the denial of his schedule adjustment to receive necessary medical care because he quit the ADA interactive process too soon.  The ADA requires both parties to participate in good faith to resolve the ADA issues. “If the process “fails to lead to [a] reasonable accommodation,” then “responsibility will lie with the party that caused the breakdown.”  In this case, the plaintiff never informed the employer that its proposal – to take unpaid leave and apply for backpay – was unacceptable.  Instead, he resigned the next day.  Because the plaintiff caused the ADA process to break down over this request, his claim was denied.  

The Court next denied his sex discrimination claim, which challenged the denial of his stool request when it was provided to a pregnant employee.  The Court found that only materially adverse employment actions were actionable and the plaintiff had failed to identify any material adverse changes in his employment.   The employer’s denial of his request to sit on a stool did not change his working conditions and, therefore, was not actionable.   (I have to wonder how this argument works when an employee is denied a promotion or a raise or a transfer . . . . . ).  

Finally, the Court rejected the constructive discharge claim because the denial of his accommodation requests did not render his working conditions objectively intolerable.  

But the denial of an accommodation, by itself, is not sufficient to prove that an employer constructively discharged an employee. . . . . And [the plaintiff] points to nothing else in the record that suggests [his supervisor’s] real purpose in denying [the plaintiff’s] requests was to force [him] to resign  . . . Thus, no reasonable jury could find that [the employer] intended to force him to quit, and summary judgment was therefore proper on this claim too.

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.

Sixth Circuit Faults Employer’s Failure to Transfer Disabled Plaintiff Under the ADA

Last month, a unanimous Sixth Circuit Court of Appeals partially reversed an employer’s summary judgment on an ADA claim on the grounds that the employer may have failed to offer an effective accommodation or engage in the interactive process.  Mobley v. Miami Valley Hosp., No. 14-3665 (6^th Cir. 2-25-15).  In that case, the plaintiff custodial employee suffered from a number of cognitive and physical impairments, but had successfully performed his position cleaning operating rooms for approximately five years.  Following some interpersonal conflicts with surgical staff and despite another excellent performance evaluation, he was transferred to cleaning patient rooms.  He never mastered his new routine, only completed a quarter of his assigned tasks each day and was placed on a performance improvement plan.  Although he and his doctors requested his reassignment back to his operating room duties, the employer refused and ultimately terminated him.  The Court concluded that the transfer itself was not discriminatory because it was not objectively adverse.  However, a jury could legitimately question the employer’s refusal to return him to his operating room assignment and failure to engage in the interactive process beyond removing a small amount of his new workload.

The Court rejected the argument that the plaintiff’s transfer to cleaning patient rooms was materially adverse because it did not involve a change in his shift, title, pay or benefits.   There also was not a material change in his workload or prestige since his co-workers with the same job title and job description had no difficulty performing these duties.  

. . . his personal difficulty with the job does not in and of itself raise a genuine dispute that the position is objectively intolerable.  . . .We have held only that the physical demands of a new position rose to the level of objective intolerability where the record evinced a consensus among employees that the job was more taxing,  . . . or where the job exposed the plaintiff to patently dangerous conditions, . . .

For the same reason, the Court rejected the plaintiff’s constructive discharge argument that he was set up to fail because the transfer was not objectively adverse and the working conditions were not intolerable to a reasonable person.

However, the Court was receptive to the plaintiff’s arguments that he was denied an effective accommodation of his disability.  Surprisingly, despite the plaintiff’s many years of favorable performance evaluations (demonstrating his competence), the employer argued that he was not qualified for his custodial position (even with a reasonable accommodation).  It asserted that his job description provided that incumbents must be able to rotate to different areas of the hospital.  However, the Court found that a jury could question that because some employees rarely, if ever, rotated.  It also rejected the employer’s argument that the plaintiff could not satisfy the interpersonal requirements of the positions (because of recent conflicts with surgical staff) since the plaintiff had received an excellent performance evaluation after those conflicts and the employer admitted that such conflicts typically lead to coaching instead of transfers.  The Court seemed particularly concerned with the employer’s inability to explain why the plaintiff had been transferred in the first place, citing only a vague concern with “operational needs.”  The Court also noted that the employer has a legal obligation to transfer employees into vacant positions as an accommodation and the employer sought other employees to transfer into the plaintiff’s former operating room position after his involuntary transfer.  

The Court also rejected the employer’s argument (which the trial court had adopted) that the plaintiff’s accommodation request was not necessitated by his disability, but was a mere personal preference.  The Court noted that the plaintiff’s request was supported by two different physicians and his wife, who explained that his cognitive impairments affected his ability to learn new things, adapt to new situations or comprehend new and complicated rules.  In contrast, the employer relied only upon the opinions of the plaintiff’s former supervisor.

The Court also rejected the argument that the plaintiff failed to apprise the employer that his request was necessitated by his disability: “our case law considers letters from physicians sufficient to notify an employer of the need to accommodate a disability.”  Moreover, there was evidence that the supervisor knew about the plaintiff’s prior stroke, brain surgeries and other symptoms.

Finally, the Court found there was sufficient evidence to show that the employer failed to engage in a good faith interactive process.   Although an employer is not required to grant the accommodation requested or preferred by the employee, a counter-proposal can be evidence of good faith.  Although the employer in this case offered to decrease a small amount of the plaintiff’s new workload and provided coaching from a co-workers, this was not a good faith counterproposal because the problem was his ability to adjust to new situations, not the workload:

it is not unreasonable to think that Mobley’s particular impairments might have necessitated something more than a few days with a coworker unversed in helping the disabled. Similarly, the developmental plan reduced some of Mobley’s workload in the patient trash position and tried to clarify his responsibilities, but even under the revised plan Mobley was unable to complete more than a quarter of his assigned work. Though we by no means conclude that MVH is certainly to blame for the failure to reach a mutually acceptable accommodation, a reasonable jury could conclude that MVH did not in good faith consider Mobley’s proposed transfer and that further dialogue would  have been necessary to reach an agreeable outcome.

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.

Sixth Circuit: Possible ADA Liability When Employer Revoked Job Offer to Deaf Lifeguard For Relying on Experts and Failing to Engage in Interactive Process on Possible Reasonable Accommodation

Earlier this month, the Sixth Circuit Court of Appeals reversed summary judgment in favor of an employer who had revoked a job offer to a deaf lifeguard because of his inability to “effectively communicate with other lifeguards, patrons, emergency personnel, and injured persons.”  Keith v. County of Oakland, No. 11-2276 (6^th Cir. 1-10-13).  While the Court agreed that communicating was an essential job function, it found that the plaintiff produced enough evidence for a jury to find that he could safely perform the job duties with a reasonable accommodation and that the employer’s subjective, “valid concerns” did not constitute an undue hardship.  Of note to employers, however, were two other conclusions of the Court.  First, the Court found that the employer could be liable for revoking the plaintiff’s job offer even though it conducted an individualized assessment of the plaintiff’s ability to perform the job because in revoking the job offer it relied on the opinions of a physician and aquatic safety consulting firm which had not conducted an individualized assessment.  Second, the Court implied that it could be an independent violation of the ADA for the employer to have failed to engage in the interactive process with the plaintiff before revoking his job offer.  Finally, like other decisions before it, the Court reiterated that the employer may not hold a disabled individual to an impossibly higher – 100% certainty – performance standard than it holds nondisabled individuals.

According to the Court’s opinion, the plaintiff had been deaf since birth. Although he could hear many sounds – including his name – with a cochlear implant, he could speak and communicated through American Sign Language.   During his lifeguard training courses, he required an interpreter to be present to relay verbal instructions, but performed his own lifesaving tasks and successfully completed the course.   He then applied for a lifeguard position, which required only that he pass the course, be above a certain age and pass a medical examination.   The only accommodation he requested to perform the job was that an interpreter be present for staff meetings and continuing education.   He was offered a lifeguard position, contingent on him passing the medical examination.

The evidence showed that the doctor hired to evaluate the plaintiff refused to unconditionally pass him solely because he was deaf and because the doctor might be sued if someone was harmed by the plaintiff’s hearing impairment.  The medical report indicated that the plaintiff could only safely perform the lifeguard duty if he was constantly accommodated (and not just at staff meetings).  The defendant employer then contacted the aquatic safety and risk management consulting firm it utilized to suggest accommodations.  The consulting firm – which had an extensive background in aquatic safety, but no experience or education in hearing impairments – suggested that a task analysis be performed, that research be conducted about the implant and that the implant be assessed for utility in actual conditions (i.e., with  lots of noisy and screaming kids in the background).  It explained that it could not provide a definitive answer without better familiarity with the plaintiff or the particular swimming facility.  The employer created a list of possible accommodations (which noted that hearing distressed swimmers was not an essential function because they typically do not make noise and which permitted the plaintiff to communicate with swimmers with his whistle, nods and laminated note cards).   Nonetheless, the consulting firm did not think that the accommodations could guarantee with 100% certainty that the plaintiff would always be effective as a lifeguard.  Thereafter, the defendant employer revoked the job offer.

The plaintiff filed suit under the ADA and Rehabilitation Act on the grounds that he was not hired because of unfounded fear and speculation.  He also objected to the defendant’s failure to conduct an individualized assessment of his ability to safely perform the job or to engage in the interactive process to determine the best reasonable accommodation.   The employer asserted that he was not hired because “he could not effectively communicate with other lifeguards, patrons, emergency personnel, and injured persons” and that “hiring an additional lifeguard as an interpreter is an unreasonable accommodation.”

The case boiled down to the type of experts which each party utilized.  The plaintiff submitted a deaf lifeguard certified by the American Red Cross.  He also used experts with hearing disabilities and aquatic safety.  For instance:

Anita Marchitelli has worked with deaf people in the area of lifeguarding and aquatics for more than thirty years. She is a certified lifeguard training instructor with the American Red Cross in the areas of lifeguarding, water safety, and CPR. She is also an associate professor in the physical education and recreation department at Gallaudet University, the only liberal arts university in the world dedicated to serving the needs of deaf individuals. She has certified more than 1,000 deaf lifeguards through the American Red Cross programs. According to Marchitelli, there have been no reported incidents of drowning or near drowning of any individuals over whom a deaf lifeguard was responsible. It is her professional opinion that the ability to hear is unnecessary to enable a person to perform the essential functions of a   lifeguard. In her affidavit, Marchitelli notes that the world record for most lives saved is held by a deaf man, Leroy Colombo, who saved over 900 lives in his lifeguarding career.

The district court excused the employer’s failure to engage in the interactive process because such a failure does not constitute an independent violation of the ADA and because the plaintiff failed to show that he could safety perform the essential job functions with or without a reasonable accommodation.  While the district court concluded that the physician failed to conduct an individualized assessment of the plaintiff’s abilities, the court concluded that the employer had made its own individualized assessment.  

On appeal, the Sixth Circuit first addressed the issue of whether the employer conducted the mandatory individualized assessment.  While it ultimately agreed with the district court that the employer had done so, it remanded the case back to the trial court to consider whether the employer’s individualized assessment was sufficient when it revoked the job offer in reliance on the opinions of a physician and aquatic safety experts who had not conducted the required individualized assessment.

As a threshold matter, “[t]he ADA mandates an individualized inquiry in determining whether an [applicant’s] disability or other condition disqualifies him from a particular position.” Holiday, 206 F.3d at 643. A proper evaluation involves consideration of the applicant’s personal characteristics, his actual medical condition, and the effect, if any, the condition may have on his ability to perform the job in question.  . . .  The ADA requires employers to act, not based on stereotypes and generalizations about a disability, but based on the actual disability and the effect that disability has on the particular individual’s ability to perform the job.

The Court agreed that the physician failed to conduct an individualized assessment. He made no attempt to evaluate whether the plaintiff could perform the job duties with his disability.  He also had no training or experience in assessing the ability of deaf individuals to work as lifeguards.  His “cursory medical examination is precisely the type that the ADA was designed to prohibit.”

The Sixth Circuit also expressed concern with the assessment of the consulting firm.  While it had acknowledged that it could not provide an opinion without an individualized assessment, its “suggestions” that the employer needed 100% certainty about the plaintiff’s ability to safely perform the job was “an impossible standard to expect of any lifeguard. Individuals with disabilities cannot be held to a higher standard of performance than non-disabled individuals.”

 Nonetheless, the Sixth Circuit agreed that the employer had made an appropriate individualized assessment of the plaintiff’s abilities.  The employer had observed the plaintiff’s abilities “during lifeguard training, accommodations were proposed to integrate [the plaintiff] into the lifeguard team, and both staff and management were on board with the plan to hire” the plaintiff.  The problem was, however, that the employer disregarded its own individualized assessment and deferred instead to the two outside “experts” which had failed to conduct an individualized assessment.

 The Court then turned to whether hearing was an essential job requirement of a lifeguard.   After reviewing evidence, including job descriptions, testimony and postings, the Court agreed that communicating was an essential function (for enforcing rules and teaching lessons).  Nonetheless, the Court found there to be sufficient evidence to present to a jury as to whether the plaintiff could adequately perform the essential job duties with a reasonable accommodation.   The duty to detect distressed swimmers is almost entirely visual.  Although the plaintiff admitted could not hear another lifeguard blow a whistle before saving a swimmer, “as a modest modification, he could briefly look at the other lifeguards when scanning his zone.”  Although the plaintiff could not speak (let alone yell) at swimmers, the Court found his ability to communicate was sufficient:  

Verbal enforcement is usually impractical in a noisy water park, and most lifeguards rely on their whistle and various physical gestures, including shaking their head “no” for patrons to stop engaging in horseplay, motioning their hand backward for a patron to get behind the red line, and signaling the number one with their finger for “one person per tube.” [The plaintiff] can use these same methods of enforcement.

             . . .

Further, [the plaintiff] has presented evidence that he can respond to patrons who approach him, at least at a level that may be considered essential for a lifeguard. He would carry a few laminated note cards in the pocket of his swim trunks with basic phrases such as, “I am deaf. I will get someone to assist you. Wait here.” He can also provide first aid in situations in which he can see the ailment requiring attention. Although there may be situations in which verbal communication is necessary, attendants are posted throughout the water park to assist patrons with basic needs and inquiries, suggesting that this is not an essential function of lifeguards, or at least reasonable minds could differ on this point.

The Court concluded that these could be reasonable accommodations because they were effective and cost proportionally little.  In evaluating whether an accommodation is (objectively) reasonable or poses a (subjective) undue hardship, courts conduct the following analysis:

When accommodation is necessary to enable a plaintiff to perform the essential functions of the position in question, it is the plaintiff’s burden to propose an accommodation that is “objectively reasonable.”  . . . . In defining what is reasonable, this court “has described the employee’s initial burden on this issue as showing ‘that the accommodation is reasonable in the sense both of efficacious and of proportional to costs.’”  . . .  The employer can then “escape liability if he can carry the burden of proving that a disability accommodation reasonable for a normal employer would break him.”  . . .  As stated by other circuits, the reasonable accommodation inquiry asks whether an accommodation “is reasonable in the run of cases, whereas the undue hardship inquiry focuses on the hardships imposed by the plaintiff’s preferred accommodation in the context of the particular [employer’s] operations.” (citations omitted).

While the Court acknowledged the employer’s “valid concern” with the reallocation of responsibilities to other lifeguards, this alone could not justify granting summary judgment on an undue hardship defense because the ADA requires job restructuring as a reasonable accommodation.  While the ADA does not require the reallocation of essential job duties, marginal job duties must be restructured when necessary.  In this case, the potential shifting of some duties was possibly minimal enough that a jury could determine that they were not essential job functions.  In addition, the plaintiff’s need for an interpreter during staff meetings and continuing education is a typical reasonable accommodation which the employer failed to show posed an undue hardship.

[T]he ADA provides that “reasonable accommodation” may include “the provision of qualified readers or interpreters.” 42 U.S.C. § 12111(9). The inclusion of interpreters among the list of enumerated reasonable accommodations suggests to us that the provision of an interpreter will often be reasonable, particularly when the interpreter is needed only on occasion, in this instance, just for staff meetings and training. In fact, there are numerous cases in which courts have found that the provision of an interpreter during staff meetings and training sessions presented a question of fact for the jury on the issue of reasonableness.

Finally, the Sixth Circuit remanded the case back to the trial court to consider the employer’s failure to engage in the interactive process with the plaintiff before revoking his job offer.   Had the employer engaged in the interactive process, it might had learned information about the plaintiff’s disability and implant (as summarized above) which would have alleviated the concerns of its “experts” (who had failed to conduct an individualized assessment and lacked education or training in hearing impairments).   In so remanding the case, the Sixth Circuit implicitly rejected the trial court’s conclusion that an employer cannot be held liable for failing to engage in the interactive process. 

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.