Doctor, Doctor: Fourth Circuit Allows Case to Proceed on Employee Medical ExamWhen can you send an employee for a medical exam? In EEOC v. McLeod Health, Inc., the Fourth Circuit recently provided some guidance and allowed a plaintiff’s claim for an illegal medical exam to proceed to the jury despite evidence of safety and job performance issues.

The Facts

Cecilia Whitten was the editor of McLeod Health’s internal employee newsletter for 28 years. Whitten developed content for the newsletter by interviewing other employees and writing about company events.  To do so she often traveled among McLeod’s various campuses spread across 100 miles. Although Whitten had a disability that made walking difficult, for many years she satisfactorily performed her job duties.

Over time, Whitten began falling more frequently. She fell three times in a four-month span, but only one fall was during work and she wasn’t significantly hurt. Additionally, during this time her manager expressed concerns about her work performance. After her third fall, based on the job description, the manager’s report, and the company’s records of Whitten’s medical issues, the company required Whitten to undergo a fitness-for-duty medical exam. Of note, McLeod was not “particularly concerned with Whitten’s performance on the job.” Instead, it ordered the exam to ensure she could “safely get to different locations to do her stories.”

After the exam, the occupational therapist recommended a number of things, including that Whitten be restricted to traveling no more than 10 miles from her main office. In turn, Whitten requested accommodations in line with the therapist’s recommendations. McLeod eventually terminated Whitten “because her proposed accommodations would prevent her from traveling to the company’s various campuses to collect stories and take photographs, thereby nullifying the purpose of her position.” After Whitten filed an EEOC charge, the EEOC filed a lawsuit on Whitten’s behalf, alleging that McLeod terminated Whitten because of her disability and violated the ADA by requiring Whitten to undergo a medical exam. The district court granted summary judgment on both claims and the EEOC appealed.

Sending an Employee for a Medical Exam

The ADA does not require an employer to collect medical information on an employee but it provides that an employer can collect it under certain circumstances. For example, an employer can require a candidate to submit to a medical exam after an offer of employment is extended but before the employee starts work. With a current employee, an employer can require a medical examination only if it is job-related and consistent with business necessity. According to the EEOC’s enforcement guidelines, to require a current employee to undergo a medical exam, an employer must reasonably believe, based on objective evidence, that

  • the employee’s ability to perform an essential job function is impaired by a medical condition, or
  • the employee can perform all the essential functions of the job but doing so will pose a direct threat to his safety or the safety of others due to the medical condition.

Back to the McLeod Health Case

According to the Fourth Circuit, the threshold question was whether navigating to and within McLeod’s campuses was an essential function of Whitten’s job. The court found that the EEOC provided enough evidence that navigating to and within the campuses was not an essential job function so that it is a question for the jury. In particular, Whitten’s written job description did not require navigating the campuses, and Whitten was able to conduct interviews and collect content over the phone. Given the court’s finding that whether navigating was an essential function of Whitten’s job, the court reversed the granting of summary judgment on both claims.

Takeaways

This decision raises several issues that employers in the Fourth Circuit and elsewhere should keep in mind before requiring a medical exam.

  1. Be cautious when requesting a medical exam. Do not request one unless the employee cannot perform an essential job function. If the employee is just doing a poor job, you don’t need a medical exam.
  2. Make sure you have objective evidence that an employee’s medical condition is what is preventing him or her from performing an essential job function. Although testimony is evidence, well-documented examples are better.
  3. Double check your essential job functions. A tangential job function or a job function that is an added bonus will not suffice. Employers should begin by looking at the written job description to determine if the function is even mentioned. In determining whether a function is essential, it is important to examine the amount of time the employee spends on performing that function and the consequences if that function is not performed.
  4. If the employee can perform the essential functions, are you worried that he or she is posing a direct threat to his or her own safety or the safety of others? If not, don’t get the medical exam. A direct threat needs to be a real concern—not speculative. If it could but is unlikely to happen, how much of a threat is it? If it could maybe happen and someone could be seriously hurt, that might qualify.

Employers are still able to require employees to undergo medical examinations, but this case serves as a cautionary tale. Due to the strict requirements the Fourth Circuit placed on McLeod, employers may be more inclined to wait to address issues until an accident actually happens at work (i.e., Whitten falls repeatedly at work) before requesting a medical exam.

Who Judges the Judges? Federal Judiciary Adopts New Workplace Conduct RulesIn light of some recent allegations of harassment of court employees in certain circuits, it may come as no surprise that the federal Judicial Conference recently strengthened their rules prohibiting misconduct and obligating employees to report any misconduct behind the bench. The conference amended the Code of Conduct and Judicial Conduct and Disability Act rules to make clear that misconduct includes:

  1. Sexual harassment or assault.
  2. Creating a hostile work environment for judicial employees.
  3. The broad category of treating judicial employees in a “demonstrably egregious and hostile manner.”
  4. Intentionally discriminating on the basis of race, color, sex, gender, religion, pregnancy, national origin, age or disability. Interestingly, judges are also prohibited from discriminating on the basis of gender identity or sexual orientation – two categories that are the basis of a current split among the courts.
  5. Retaliating against complainants, witnesses or others for participating in the complaint process or for reporting misconduct or disability.
  6. Failing to notify the chief district or circuit judge of reliable information reasonably likely to constitute judicial misconduct or disability.

The amendments also streamline how employees can report misconduct and implement training in identifying judicial misconduct. These requirements will primarily be accomplished through the new Office of Judicial Integrity, which will collect the confidential complaints.

Now what?

No one thinks that the judges didn’t know their legal obligations or that they were allowed to harass employees prior to these amendments. However, it is a sign of the times that the courts decided to explicitly state their commitment to prohibiting harassment, to make it easier to report, and to reiterate non-retaliation protections. It may be interesting to see how judges in the circuits who have ruled specifically against protecting against discrimination based on gender identity and sexual orientation will react to the fact that their own Judicial Code of Conduct recognizes those as protected classes.

Why does this matter to regular folks?

Although the courts knew what the law said, judges will now have a written guideline for how a policy should look. In the future, when a judge needs to assess the sufficiency of a company’s harassment policy and complaint-reporting procedure, that judge may look to these new judicial requirements as a minimum. Companies would be well served to make sure their policies at least hit the high points.

Once Is Enough: Tennessee Federal Court Rules Single Use of ‘N-Word’ By Co-Worker Sufficient to Get Hostile Work Environment Claim to JuryUsually, once is not enough, at least in the hostile work environment context. Unless, as the court found in Ronnie L. Outlaw v. SBH Services, Inc., it is.

Typically, a single incident of harassment – especially by a co-worker – is not sufficient for a hostile work environment claim to survive summary judgment and be heard by a jury. Most of the time, a viable hostile environment claim involves a series of harassing incidents based on membership in a protected class that were severe or pervasive enough to alter the conditions of the employee’s employment. A single, isolated incident usually does not meet this “severe or pervasive” standard.

In its February 19, 2019, opinion, however, the U.S. District Court for the Middle District of Tennessee did not apply this general rule and instead held that Outlaw’s single incident of harassment was sufficient to proceed to a jury.

Facts of the Case

Outlaw, an African-American, and Alex Cruz, a Hispanic, worked together on a construction site. According to the opinion, Outlaw witnessed Cruz performing work in an unsafe manner, and he attempted to correct it. In response, Outlaw claimed that Cruz “grabbed him, pushed him, and said ‘[y]ou punk ass ni—er’.” Outlaw’s employer, SBH Services, admitted Cruz used the “n-word,” but claims that Outlaw was confrontational and called Cruz a “motherf—er.” SBH Services argued “[i]n the Hispanic culture it is extremely offensive to call someone a ‘Motherf—er’ or ‘Son of a B—h’ because mothers are revered and the terms are often taken literally.”

After the incident, a construction company that was partnering with SBH Services on the project launched an investigation. During the investigation, Cruz admitted to using the slur and assaulting Outlaw. Cruz claimed Outlaw initiated the dispute by criticizing his work performance and calling him a “stubborn motherf—er.” Cruz was initially suspended for admitting he assaulted Outlaw.

Following the investigation, the investigators asked Outlaw numerous times whether he could ever work with Cruz again. According to two of the investigators, they believed Cruz and Outlaw were equally at fault and deserved the same punishment. As a result, the investigators allowed Outlaw the choice to either work with Cruz or “suffer his same fate.” Outlaw refused to work with Cruz again. He claims it was made clear to him that he could either work with Cruz or be terminated, so he quit. For his part, Cruz was terminated (apparently, although the opinion did not make it 100 percent clear, because Outlaw was not returning to work).

Outlaw sued SBH Services for race discrimination, retaliation, and hostile work environment. Although the court granted SBH Services summary judgment on Outlaw’s race discrimination and retaliation claims, not so his hostile work environment claim. In denying summary judgment, the court held that although this was only one incident of harassment, a “reasonable jury could consider [it] severe enough to constitute a racially-hostile work environment:”

“It is undisputed that Plaintiff, while on the job, was assaulted and called a vile racial slur by a fellow SBH employee. This event distally precipitated Plaintiff being fired for refusing to agree to work with the man who attacked him . . . .The record thus contains evidence of a single event, created by an SBH employee, that a reasonable jury could consider severe enough to constitute a racially-hostile work environment.”

Now What?

If the parties do not settle the case, it will now proceed to a jury. This case presents some takeaways for employers:

  • A single incident of alleged harassment – especially involving the use of the “n-word” – may be sufficient for a hostile work environment claim to survive summary judgment in the Sixth Circuit (which includes Tennessee, Kentucky, Ohio, and Michigan).
  • The court apparently felt the investigators made a mistake in equating the use of a vile racial slur combined with an assault to calling another employee a “motherf—-r.” The decision set up a situation in which Outlaw and Cruz had to either return to work together or both be fired. In the circumstances outlined by the court (which are viewed in the light most favorable to the plaintiff), the company may have been better served by administering different discipline to the two employees – termination for Cruz (who assaulted Outlaw and used the racial epithet) and lesser discipline for Outlaw (who apparently only used the confrontational language). That may have prevented a lawsuit.
  • Employers should be wary of terminating an employee because of an incident in which the employee was called a racial slur.

Although hostile work environment claims involving a single incident are oftentimes not sufficient to survive summary judgment, the combination of the admitted use of a racial slur plus the loss of a job directly related to the same incident made Outlaw’s case good enough to get to a jury. Now the employer will be left with a Hobbesian choice of its own – pay a settlement or leave its fate in the hands of the strangers in the jury box.