Supreme Court Increases Burden for Employers to Accommodate Religious Practices and Raises Questions About Affirmative Action

This morning, as the Court nears the end of its term, a unanimous Supreme Court “clarified” the 1977 Hardison “de minimis” standard in religious accommodation cases and, instead, imposed a more onerous standard on employers to accommodate the religious beliefs and practices of their employees unless it imposes a substantial burden on the business.  Groff v. DeJoy, No. 22-174 (6-29-23).   In this case, a postal worker requested to not work on Sundays due to his sabbath beliefs.  His request was accommodated until Amazon began offering Sunday delivery and the employer determined that it was an undue hardship to require his co-workers to work overtime to cover Sundays.   The Court held that “’undue hardship’ is shown when a burden is substantial in the overall context of an employer’s business.”  It also discussed the extent to which the impact of the accommodation on co-workers may be considered: “Impacts on coworkers are relevant only to the extent those impacts go on to affect the conduct of the business.” Finally, the Court concluded that other options – such as permitting shift swapping --   must be considered in evaluating the employer’s burden. 

According to the Court, the plaintiff was a rural mail carrier subject to a collective bargaining agreement.  When he was hired, he was not required to work on Sundays.  However, because of Amazon deliveries, the employer and union agreed to start Sunday mail delivery, first using employees hired specifically for weekend deliveries, then by using volunteers and then by a mandatory rotation among regular employees, like the plaintiff.  When the plaintiff refused to work on Sundays, he received progressive discipline and his shifts were covered by other employees, including the postmaster (who otherwise never delivers mail).  He eventually resigned, believing that he was about to be fired.  The lowers courts ruled in favor of the employer, noting the burden and disruption to his coworkers and the employer.

Title VII initially only prohibited discrimination "because of" religion.  In 1972, Title VII was amended to require employers to accommodate employees’ religious practices unless doing so would constitute an undue hardship on the employer’s business (after courts had rejected accommodation of Sabbath observances as unconstitutional):

“[t]he term ‘religion’ includes all aspects of religious observance and practice, as well as belief, unless an employer demonstrates that he is unable to reasonably accommodate to an employee’s or prospective employee’s religious observance or practice without undue hardship on the conduct of the employer’s business.”

   In Hardison, the Court focused whether the employer’s collectively bargained seniority system required a junior employee to be granted preferential shifts as a religious accommodation.  After concluding that Title VII did not affect collectively bargained seniority systems, the Court noted that Title VII – even as amended -  did not require accommodations that were substantial or more than de minimis. 

In this case, the Court adopted a commonsense understanding of an employer’s obligations.

In common parlance, a “hardship” is, at a minimum, “something hard to bear.” . . . . But under any definition, a hardship is more severe than a mere burden. So even if Title VII said only that an employer need not be made to suffer a “hardship,” an employer could not escape liability simply by showing that an accommodation would impose some sort of additional costs. Those costs would have to rise to the level of hardship, and adding the modifier “undue” means that the requisite burden, privation, or adversity must rise to an “excessive” or “unjustifiable” level.

Refusing to adopt the ADA test, the Court observed: “it is enough to say that an employer must show that the burden of granting an accommodation would result in substantial increased costs in relation to the conduct of its particular business.”

What matters more than a favored synonym for “undue hardship” (which is the actual text) is that courts must apply the test in a manner that takes into account all relevant factors in the case at hand, including the particular accommodations at issue and their practical impact in light of the nature, “size and operating cost of [an] employer.”

With respect to the impact accommodations may have on co-workers, the Court agreed that this could be a consideration, except to the extent that the co-workers harbor a religious (or anti-religious) bias:

both parties agree that the language of Title VII requires an assessment of a possible accommodation’s effect on “the conduct of the employer’s business. . . . As the Solicitor General put it, not all “impacts on coworkers . . . are relevant,” but only “coworker impacts” that go on to “affec[t] the conduct of the business.” . . .  So an accommodation’s effect on co-workers may have ramifications for the conduct of the employer’s business, but a court cannot stop its analysis without examining whether that further logical step is shown in a particular case.

On this point, the Solicitor General took pains to clarify that some evidence that occasionally is used to show “impacts” on coworkers is “off the table” for consideration.  . . . . Specifically, a coworker’s dislike of “religious practice and expression in the workplace” or “the mere fact [of] an accommodation” is not “cognizable to factor into the undue hardship inquiry.”  . . .  To the extent that this was not previously clear, we agree.  An employer who fails to provide an accommodation has a defense only if the hardship is “undue,” and a hardship that is attributable to employee animosity to a particular religion, to religion in general, or to the very notion of accommodating religious practice cannot be considered “undue.”

Finally, the Court found that it is the practice of religion that must be accommodated, not merely the particular request.  In that respect, the parties may have to consider other options.  In this case, that would include not merely requiring other employees to work overtime, but to also permit shift-swapping.

Title VII requires that an employer reasonably accommodate an employee’s practice of religion, not merely that it assess the reasonableness of a particular possible accommodation or accommodations. . . . This distinction matters. Faced with an accommodation request like Groff’s, it would not be enough for an employer to conclude that forcing other employees to work overtime would constitute an undue hardship. Consideration of other options, such as voluntary shift swapping, would also be necessary.

The case was remanded for the trial court to reconsider its opinion in light of the Court’s new guidance.

In other cases, a divided (6-3) Supreme Court struck down the student affirmative action practices of Harvard and North Carolina under Title VI of the Civil Rights Act as violations of the Equal Protection Clause under a strict scrutiny analysis.   Students for Fair Admissions, Inc. v. Harvard, No. 20-1199 (6/29/23).   “Many universities have for too long wrongly concluded that the touchstone of an individual’s identity is not challenges bested, skills built, or lessons learned, but the color of their skin. This Nation’s constitutional history does not tolerate that choice.”  The Court reached this conclusion after reviewing the long history of affirmative action decisions and after finding that the categories the universities considered to be too broad (not distinguishing between East and South Asians, or Hispanics, or even categorizing students of Middle Eastern descent), their goals too vague and that they disadvantaged Asian students.  Finally, it found the programs engaged in negative stereotyping:

Respondents admissions programs are infirm for a second reason as well: They require stereotyping—the very thing Grutter foreswore. When a university admits students “on the basis of race, it engages in the offensive and demeaning assumption that [students] of a particular race, because of their race, think alike.”

Earlier, a divided (5-4) Court also held litigation must be stayed pending appeals of denials of motions to compel arbitration.  Coinbase, Inc. v. Bielski, No. 22-105 (6/23/23). 

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 Rejects ADA Claim Where Deposition Testimony of Plaintiff’s Physician Showed He Was Unqualified and Employer Could Reasonably Conclude that Plaintiff Would Continue to Seek Additional Extensions of Medical Leave.

Last week, the Sixth Circuit affirmed summary judgment on a disability discrimination claim asserted against an employer which took the high risk action --  of terminating a disabled employee who had been released to return to work with some lifting restrictions and who requested a reasonable accommodation -- without any evidence that the lifting restriction prohibited him from performing any of the essential functions of his job or consulting their own medical expert.  Aston v. Tapco Int’l Corp., No. 14-2476 (6^th Cir. 11-23-15).  The employer discharged the plaintiff after conducting its own internet research about the employee’s upcoming surgery and drawing its own medical conclusions about his actual ability to safely perform his job duties.  Even so, 18 months later, the employer reconsidered its position and offered the employee unconditional reinstatement to his position and agreed to honor his lifting restrictions.  Luckily for the employer, the employee’s own physician later contradicted the medical release he had provided to the employer before the plaintiff’s termination and testified in his deposition that he had not been physically able to perform his essential job functions at the time he was terminated or for some months thereafter. Accordingly, the plaintiff was not “otherwise qualified” for his job at the time of his termination.  In addition, after “an employer has already provided a substantial leave,” the request for “an additional leave period of a significant duration, with no clear prospects of recovery, is an objectively unreasonable accommodation.”  Finally, the court held that even if the plaintiff’s claim had proceeded to trial, he would have been precluded from recovering any back pay after he rejected the employer’s offer of unconditional reinstatement because he had a duty to mitigate his damages.

According to the Court’s opinion, the plaintiff had worked for the defendant employer for almost 20 years.  In 2006, he suffered his first heart attack and was off work for more than 26 weeks.  He suffered a second heart attack in May 2010 and in early November was released to return to work on January 1 with a 30-pound lifting restriction following impending surgery to implant an ICD.  HR surfed the internet to investigate the ICD surgery and found information that it was intended to prevent sudden death.   Even with a set return-to-work date, the employer notified the plaintiff that it did not believe that he would be able to perform his job duties, recommended that he should apply for LTD and indicated that he would be terminated by the end of the month.  The plaintiff returned to his physician with news of his impending termination and obtained an immediate return to work release with a 30-pound lifting restriction.  Nonetheless, the employer terminated his employment on the grounds that they did not believe that he could really perform his job duties and would not reinstate him unless he was released to full duty.  The plaintiff submitted a reasonable accommodation request the following month, which was ignored for 18 months.  At that point, the employer unconditionally offered to reinstate the plaintiff to his former job and to honor his lifting restriction.  Finding this to be too little, too late, the plaintiff instead pursued an EEOC Charge and filed suit later that same year.

There was no dispute that the plaintiff was discharged because of his disability.  His termination notice said as much and had stated that he would not be reinstated without a release to return to full duty.  However, the plaintiff was still required to show that he was “otherwise qualified’ for his position with or without a reasonable accommodation.  If he had been able to do so, the employer would have needed evidence beyond its own evaluation of his physical abilities and likely would have had to defend its requirement of 100% fitness.

Luckily for the employer, the testimony of the plaintiff’s own physician did not help his claims.  He testified that he had reviewed the plaintiff’s job description and had notified the employer that he could perform all of those tasks, with the exception of certain lifting.  However, he had not asked the plaintiff how much time he spent performing each task.  More importantly, the physician conceded that the plaintiff likely would not have been able to perform the essential functions of his job when he was released to return to work in November and would not have been able to do so until sometime after January.   Therefore, even if the employer had reinstated the employee in November or early January as requested, the plaintiff still would not have been able to perform about half of his job duties.  Accordingly, at the time of his discharge in November, he was not qualified to perform his job with or without a reasonable accommodation.

As for the plaintiff’s reasonable accommodation claim, the court still found that the plaintiff could not show that he was otherwise qualified because he would not have been able to perform his essential job functions in January.  It also would have constituted an undue hardship for the employer to continually extend his medical leave of absence: “when an employee’s return date is not so certain, an employer is not required to keep open a job for an employee indefinitely.”  

This situation goes beyond what constitutes a reasonable accommodation. At the time of [the plaintiff’s] termination, [the employer] reasonably questioned whether [he] would be able to return to work, not only in November, or in January, but if ever. Just a few weeks before terminating [him], [his physician] informed [the employer] of another impending major medical procedure that [he] needed to undergo. This would doubtlessly require additional time for recuperation. [The plaintiff] had already been on an extended 26- week leave once before, in 2006, and, at the time of his termination, [he] was on his second leave of unknown duration, despite the request for return on January 1, 2011. With no certain or credibly proven end in sight, we therefore maintain as we did in Walsh that when, as here, “an employer has already provided a substantial leave, an additional leave period of a significant duration, with no clear prospects of recovery, is an objectively unreasonable accommodation.”

Moreover, the court affirmed that the employee’s duty to mitigate meant that, even if he had prevailed on his ADA claims, he would not have been able to recover any back pay for the period after he rejected the employer’s reinstatement offer.  The Court rejected the plaintiff’s argument that the employer’s offer was not made in good faith (in that he had already been replaced, etc. and had been made merely to call the plaintiff’s “bluff” that he was physically capable of working).  “As the district court noted, the Sixth Circuit has not adopted the good faith exception as a special circumstance warranting the continued tolling of a plaintiff’s backpay, even after an employee rejects an employer’s unconditional offer for reinstatement.” 

Finally, the court rejected the employer’s request for sanctions on the grounds that the employee’s claims were not frivolous.  

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 Vacates and Sets for En Banc Rehearing April Decision Making Physical Presence at Job Site Optional Under ADA

On Friday, a majority of the active Judges sitting on the Sixth Circuit Court of Appeals voted to vacate the divided decision by a panel of three judges from April which held that regular physical attendance at a job may not generally be considered to be an essential function of a job.  In that case, the EEOC convinced two judges that physical presence at a job may not be an essential job function and that working from home could be a reasonable accommodation.   EEOC v. Ford Motor Company, No. 12-2484 (6^th Cir. 4-22-14).   The case has now been set for an en banc rehearing before all of the judges of the Sixth Circuit, which could affirm, modify, or reverse the prior decision.  

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: Physical Attendance at Work No Longer Generally an Essential Job Function

[Editor's Note:   On August 29, 2014, a majority of the active judges of the Sixth Circuit Court of Appeals voted to vacate this decision by two of a panel of three judges and set it for an en banc re-hearing before all of the Sixth Circuit Court of Appeals judges.]

Yesterday, a divided federal Sixth Circuit Court of Appeals issued a decision of importance to most employers concerning the ADA and an employer’s ability to require an employee to report to a particular work location as an essential function of the job.   EEOC v. Ford Motor Company, No. 12-2484 (6^th Cir. 4-22-14).    In this case, the employer rejected an employee’s request to work from home several days each week during normal business hours as an accommodation of her IBS disability because the employer considered it to be an essential job duty to interact face-to-face with colleagues when engaging in problem solving and because her earlier attempts to work from home after normal business hours had been unsuccessful.  The Court rejected the employer’s evidence that telecommuting (i.e., working from home) was an unreasonable accommodation because the employer’s evidence consisted of problems created by the employee’s working during non-business hours (i.e., flex time).  Instead, the Court concluded that the EEOC produced sufficient evidence to create a factual dispute about whether reporting to the office was an essential job function and whether telecommuting was a reasonable accommodation.  The Court still acknowledges that flex time arrangements may still be presumptively unreasonable, that predictable attendance is still an essential function of most jobs and that “many jobs continue to require physical presence because the employee must interact directly with people or objects at the worksite.”    The Court also rejected the employer’s proposed accommodation of transferring the employee to a different position from which she could reasonably telecommute because “reassignment of an employee is only considered when accommodation within the individual’s current position would pose an undue hardship.”  Finally, the Court found sufficient evidence of retaliation for the employee to survive the employer’s summary judgment motion because she was placed on a performance enhancement plan and ultimately terminated for long-standing performance issues which were not escalated until shortly after she filed her EEOC Charge.

According to the Court’s opinion, the employee at issue held a position as a resale buyer.  The role of resale buyers was to:  

respond to emergency supply issues to ensure that there is no gap in steel supply to the parts manufacturers.  . .  The position involved some individual tasks, such as updating spreadsheets and periodic site visits to observe the production process.  . . .  However, “the essence of the job was group problem-solving, which required that a buyer be available to interact with members of the resale team, suppliers and others in the Ford system when problems arose.”  . .  Ford managers made the business judgment that such meetings were most effectively handled face-to-face, and that email or teleconferencing was an insufficient substitute for in-person team problem-solving. Another resale buyer on [the] team believed that she “could not work from home more than one day a week and be able to effectively perform the duties of the resale buyer position.”

The plaintiff had received positive performance evaluations, but was viewed as in the bottom quartile of her peers based on her job performance. “She also received low rankings on most of her job related skills assessment areas in 2007 and 2008.” 

The employee’s IBS disability required her to frequently utilize FMLA leave.  In the first seven months of 2009, she “was absent more often than she was present during core business hours.”  She was permitted to flex her working hours on a trial basis, but the experiment was deemed to be a failure. She “was unable to establish regular and consistent work hours” and could not “engage in team problem-solving or access suppliers to obtain information during off-hours.” When she “worked nights and weekends, she made mistakes and missed deadlines because she lacked access to suppliers.” 

The employee formally requested in February 2009 that she be permitted to telecommute on an as-needed basis as an accommodation for her disability.  Ford permitted some employees to telecommute, but no one in her resale buyer position.  After discussing some issues surrounding her accommodation request, Ford proposed instead moving her cubicle to be closer to a restroom or transferring her into another position that could accommodate her request to telecommute.   She then filed an EEOC Charge in April.  Thereafter, her supervisor held a group meeting to discuss how her workload should be reallocated among the team when she was absent and held one-on-one meetings with her where she felt he yelled at her.  She was then placed on a 30 performance enhancement plan with concrete objectives. When she failed to meet the objectives, she was terminated in September 2009.    

The EEOC ultimately filed suit against Ford, alleging discrimination and retaliation in violation of the ADA.  The District Court granted summary judgment to the employer, but the Sixth Circuit reversed on both claims. 

The Court found that the EEOC presented sufficient evidence to avoid summary judgment on the grounds that that the employee was qualified for her position both if the requirement was eliminated that she be physically present at Ford facilities and if she was provided with the telecommuting accommodation.   The EEOC argued that if Ford’s objections to her attendance were removed, she was qualified for her position.   The Court placed on Ford the burden of proving that the employee’s physical presence was an essential function of the resale buyer position. “For many positions, regular attendance at the work place is undoubtedly essential.” 

When we first developed the principle that attendance is an essential requirement of most jobs, technology was such that the workplace and an employer’s brick-and-mortar location were synonymous. However, as technology has advanced in the intervening decades, and an ever-greater number of employers and employees utilize remote work arrangements, attendance at the workplace can no longer be assumed to mean attendance at the employer’s physical location. Instead, the law must respond to the advance of technology in the employment context, as it has in other areas of modern life, and recognize that the “workplace” is anywhere that an employee can perform her job duties. Thus, the vital question in this case is not whether “attendance” was an essential job function for a resale buyer, but whether physical presence at the Ford facilities was truly essential. Determining whether physical presence is essential to a particular job is a “highly fact specific” question. . . .

Ford argues that physical attendance at the Ford workplace was critical to the group dynamic of the resale-buyer team. Our sister circuits have recognized that physical presence at an employer’s facility may be an essential function for some positions specifically because they require extensive teamwork.  . . . However, as we have discussed, advancing technology has diminished the necessity of in-person contact to facilitate group conversations. The world has changed since the foundational opinions regarding physical presence in the workplace were issued: teleconferencing technologies that most people could not have conceived of in the 1990s are now commonplace. . . . Therefore, we are not persuaded that positions that require a great deal of teamwork are inherently unsuitable to telecommuting arrangements.

Moreover, our inquiry does not end simply because Ford has expressed the business judgment that face-to-face interaction is desirable. Courts routinely defer to the business judgment of employers because courts are not equipped with the institutional knowledge to sit as “super personnel department[s].”,. . . However, we should not abdicate our responsibility as a court to company personnel boards: While we do not allow plaintiffs to redefine the essential functions of their jobs based on their personal beliefs about job requirements, id., neither should we allow employers to redefine the essential functions of an employee’s position to serve their own interests. Rather, we should carefully consider all of the relevant factors, of which the employer’s business judgment is only one.

The Court ultimately rejected the employer’s evidence that physical presence was an essential function as an undisputed fact because the EEOC presented evidence to the contrary which could be credited by a jury.  For instance, the employee testified that even when she was physically present at Ford, she still communicated mostly by telephone and email (both of which she could do from home).   More importantly, her position was not one that required face-to-face interaction with clients.  Although she occasionally needed to meet with clients, “Ford has offered no evidence to prove that Harris would be less able to perform these site visits if she worked partially, or even primarily, from her home rather than Ford’s facilities. . . . . A site visit requires the resale buyer to leave the location where she ordinarily works, whether it be a Ford facility or the employee’s home.”  

The Court also concluded that the EEOC produced sufficient evidence to show that telecommuting could be a reasonable accommodation in this case. “We have previously concluded that telecommuting is not a reasonable accommodation for most jobs, but that there may be “unusual case[s]” when telecommuting is reasonable because the “employee can effectively perform all work related duties at home.”  The Court rejected the employer’s counter-arguments because they focused on problems created by flex time (i.e., working a different schedule) than in reporting to the same office location.  

Requests for flex-time schedules may be unreasonable because businesses cannot “operate effectively when [their] employees are essentially permitted to set their own work hours . . . . Indeed, leave on a sporadic or unplanned basis may be an unreasonable accommodation. . . .  However, telecommuting does not raise the same concerns as flex-time scheduling because an employer can still rely on an employee to be working during scheduled hours. Harris did not request to “simply miss work whenever she felt she needed to and apparently so long as she felt she needed to.”  . . . Instead she requested that she be able to work from home when she felt she needed to during normal business hours.

The Court rejected the argument that the telecommuting created additional work for the employee’s co-workers because the identified issues arose from her flex-time arrangement and not her telecommuting:

A proposed accommodation that burdens other employees may be unreasonable,  . . .but the resale- buyer position is not one that requires most of an absent employee’s work to be transferred to a coworker. For many jobs, an employee must be physically present at work to perform specific tasks; when the employee is not present, those duties must necessarily shift to the absent employee’s coworkers.

The Court also surprisingly rejected the employer’s objection to the telecommuting arrangement based on her prior poor attendance and disregarded its proposed alternative accommodations:

If Ford objected to Harris’s request to telecommute for “up to four days per week,” it was Ford’s responsibility to engage in an interactive process to explore reasonable alternatives.  . . . Harris was willing to discuss alternative accommodations, including a telecommuting arrangement for as few as one to two days per week. Ford’s failure to engage in that discussion is not evidence that a telecommuting arrangement in any form was unreasonable . . .

The Court also rejected the employer’s concern with the employee’s attendance record as a reason for rejecting telecommuting because her absences were related to her disability.  One Ninth Circuit opinion concluded that  “[i]t would be inconsistent with the purposes of the ADA to permit an employer to deny an otherwise reasonable accommodation because of past disciplinary action taken due to the disability sought to be accommodated.” While the Court acknowledged that “[w]hen an employer “offers a reasonable counter accommodation, the employee cannot demand a different accommodation,” it did not find the employer’s proposed alternatives to be reasonable: 

The EEOC has provided evidence that casts doubt on whether these alternatives address the problems Harris experienced with her IBS. . . . Clearly, moving Harris to a cubicle closer to the restroom does not address her needs if she has no control over her bowels for the time it would take to reach the restroom. Nor do we consider it reasonable, as the dissent suggests, to expect an employee to suffer the humiliation of soiling herself on a regular basis in front of her coworkers, merely because she could use Depends to contain the mess or bring a change of clothes to clean herself up after the fact. Likewise, Ford’s offer to assist Harris in finding an alternative position within Ford,  . . . was not a reasonable accommodation because there was no guarantee that such a position would be forthcoming. Furthermore, “reassignment of an employee is only considered when accommodation within the individual’s current position would pose an undue hardship.”

The Court then required the employer to prove that telecommuting would pose an undue hardship. “[U]ndue hardship is something greater than hardship, and an employer does not sustain his burden of proof merely by showing that an accommodation would be bothersome to administer or disruptive of the operating routine.” The Court concluded that the employer could not prove undue hardship in this case. “Although setting up a home workstation for Harris might entail some cost, considering Ford’s financial resources and the size of its workforce, this cost is likely to be de minimis. Indeed, Ford has created a written policy in which it pledges to absorb these costs for all employees approved to telecommute.” 

It is important, at this juncture, to clarify that we are not rejecting the long line of precedent recognizing predictable attendance as an essential function of most jobs. Nor are we claiming that, because technology has advanced, most modern jobs are amenable to remote work arrangements. As we discussed above, many jobs continue to require physical presence because the employee must interact directly with people or objects at the worksite. . . . We are merely recognizing that, given the state of modern technology, it is no longer the case that jobs suitable for telecommuting are “extraordinary” or “unusual.”

The Court also found that the EEOC produced sufficient evidence of unlawful retaliation by the employer after the employee filed her EEOC Charge.  While there was a documented history of performance issues, she was not placed on a PEP until shortly after she filed her EEOC Charge.   Her supervisor also began holding “intimidating” weekly meetings with her after she filed her Charge and she was ultimately fired four months after filing her Charge.   The Court concluded that the EEOC produced sufficient evidence of pretext because:

When viewed in a light favorable to Harris, the evidence suggests that Harris’s performance failings did not actually motivate Ford’s decisions to discipline her and terminate her employment. Although many of Harris’s performance deficiencies were ongoing problems, they prompted a negative review only after Harris filed her EEOC charge. . . . In addition, a reasonable jury could infer that the PEP was designed to set Harris up to fail: One of Harris’s PEP goals was to eliminate a backlog of paperwork,  . . . but Harris testified that the paperwork was pending only because she needed to wait on responses from suppliers and coworkers.

Granted, “the paperwork tasks designated in the PEP “were important duties of the resale buyer position.” “[B]ut the question is not whether the duties identified in the PEP were integral to the position; rather, the question is whether the duties were achievable within the 30-day window provided for in the PEP.”

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: Driving an Emergency Vehicle May Not Be an Essential Job Function for a Firefighter or Fire Inspector

Last month, the Sixth Circuit reversed judgment for a city which had fired a firefighter after he lost vision in one eye – limiting his ability to drive -- without adequately considering reasonable accommodations. Rorrer v. City of Stow,  No. 13-3272 (6^th Cir. 2-26-14).  The Court found there to be a disputed issue of fact as to whether driving emergency vehicles was an essential function for a firefighter.  It also found the plaintiff’s proposed accommodations – including a transfer to a possible vacancy in the fire prevention bureau --  could be reasonable.   It also ordered that the case be reassigned to a different trial judge on remand because of the appearance of partiality.   Nonetheless, the Court affirmed dismissal of the §1983 First Amendment retaliation claim based on the plaintiff’s testimony in a union arbitration challenging disciplinary action taken against a co-worker in an unrelated dispute.   The Court concluded that “sworn testimony in a private proceeding is not sufficient to elevate speech of purely private content to a matter of public concern” which would be necessary in a First Amendment retaliation claim.

 According to the Court’s opinion, the plaintiff’s physician released him to return to work without restrictions following his eye surgery.  When he arrived at his fitness for duty examination, the visiting physician also cleared him to return to work, but noted that he should be extra careful when wearing a self-contained breathing apparatus and when driving emergency vehicles at high rates of speed.  However, when he attempted to return to work, the Fire Chief balked and insisted that the regular examining physician reconsider returning a monocular vision firefighter.  The regular physician agreed that a mistake had been made and, without personally examining him, declared the plaintiff “unfit” for duty.    He was ultimately fired.  The regular physician cited “fire regs” but could not identify any such regulations during his deposition or when questioned by the plaintiff. 
 

The City contended that NFPA 1582-9.1.3(10) required the plaintiff to operate emergency vehicles. “NFPA guideline 1582-9.12.3.1 states that monocular vision “compromises the [firefighter’s] ability to safely perform essential [J]ob [T]ask 10.”  The firefighter’s union, however, disputed that the NFPA guidelines had ever been adopted or implemented by the city or civil service commission.  The informal job description indicated that a firefighter may operate an emergency vehicle, as assigned.  In addition, the Fire Chief insisted, and the plaintiff admitted, that no firefighter could refuse to drive an emergency vehicle.  In contrast, the union asserted that driving was not an essential function because there would always be at least two other firefighters on duty who could drive instead of the plaintiff.  In any event, the plaintiff requested that he be accommodated by being relievedd of the duty to drive or to be transferred to the fire prevention bureau (where there was arguably a vacancy and is where firefighters were assigned for transitional duty).  His request was denied on the grounds his injury was not work related, there were no vacancies and that inspectors still had to be able to perform all essential firefighter duties.

 During the litigation, the trial court imposed a numerical witness limit on the plaintiff, but not the employer.  The court also refused to consider testimony by two other monocular vision firefighters in other departments. The court ultimately granted summary judgment for the city and the fire chief.  Among other things, it found driving emergency vehicles to be an essential function of the firefighter job based on the NFPA guidelines and the Chief’s opinion.
 

On appeal, the Sixth Circuit concluded that there was a genuine issue of material fact about whether driving an emergency vehicle was an essential job function.  “Determining whether a function is essential ‘is a question of fact that is typically not suitable for resolution on a motion for summary judgment’” when there is conflicting deposition testimony.  The employer’s opinion on essential job functions is not dispositive, even if there is a written job description.   Instead, an employer’s opinion is given consideration and weight, but not deference.  There was also disputed evidence about whether the City had ever adopted the NFPA guidelines.   The city’s physician gave conflicting explanations as to the basis for his opinion and only cited the NFPA after the City’s attorney conferred with him off the record during the deposition.  In contrast, there was evidence that forbidding the plaintiff from driving would have been minimally inconvenient for the fire department.  The job description listing driving as a conditional job requirement that “may” be necessary, but unlike other job duties, is not always required.

 In light of its finding that driving emergency vehicles might not be an essential function, the Court concluded that it may have been a reasonable accommodation for the employer to relieve the plaintiff of that duty.  Moreover, there was a disputed issue of fact as to whether there was a vacancy in the fire prevention bureau.  Interestingly, the Court rejected the city’s argument that fire inspectors were similarly required to be able to drive emergency vehicles:

The City argues that, even if a permanent position existed in the FPB, Rorrer’s transfer request was unreasonable because “the position of ‘Fire Inspector’ does not exist; it is merely a firefighter assigned to a particular job duty.” See Kleiber, 485 F.3d at 870 (“[T]he plaintiff generally must identify the specific job he seeks and demonstrate that he is qualified for that position.”). This argument lacks merit. The position in the FPB was that of an inspector, designed to prevent fires, not fight them. The City does not dispute that Rorrer had the “expertise, training, and certification” to fulfill these job duties. Rather, the City argues that Rorrer was unqualified because the Department’s job description of someone functioning as a fire inspector is “firefighter,” which includes the task of driving an apparatus during an emergency. The City’s unwillingness to modify a job description to accommodate Rorrer, even though that modification would not have  required any change in job duties, falls short of the City’s obligation “to locate a suitable position” for Rorrer after he identified a vacancy and requested a transfer. See Kleiber, 485 F.3d at 870.

 . . . .

If placed in the FPB, Rorrer would “need” to perform the function of operating a fire apparatus under emergency lights only because the City’s policy said so. There is no indication on the record that a fire inspector ever actually performed this function. Had the City engaged in a good faith effort to accommodate Rorrer, the record suggests that Rorrer could have served in the FPB without any modification of the actual job duties that position entails.

The Court also rejected the city’s argument that eliminating the driving requirement for the plaintiff would have created an undue burden.  It also found that there was a disputed issue as to whether the city had engaged in a good faith interactive process to conduct an individualized inquiry to find a reasonable accommodation after the plaintiff proposed two accommodations.   In fact, there was evidence that the city “refused to discuss” even superficially a potential transfer of the plaintiff to the fire prevention bureau.

The Court found no abuse of discretion in precluding evidence about other monocular firefighters.   Nonetheless, the Court ordered the case to be reassigned to a different judge on remand because its discovery orders and remarks about the plaintiff “compromise the appearance of justice.”   The Court agreed with the plaintiff “that the district court’s handling of this case was questionable and that reassignment is advisable to preserve “the appearance of justice.”

 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.