“I Got the Juice” – Sixth Circuit Affirms Verdict in Favor of Diabetic Employee Alleging ADA DiscriminationEngaging in the ADA interactive process is likely the most significant aspect of managing employees with disabilities. Failing to do so can truly make or break an employer’s ability to protect itself from disability discrimination claims. Employers must remember that one policy or practice does not fit all employees, especially ones with known disabilities. The Sixth Circuit’s opinion in Equal Employment Opportunity Commission v. Dolgencorp, LLC illustrates the dangers of applying neutral employment policies to employees who request reasonable accommodations that may conflict with such policies.

Background

Linda Atkins was a lead sales associate at Dollar General who suffered from type II diabetes and occasionally experienced low blood sugar. If and when she had a diabetic episode, Atkins had to quickly consume glucose to avoid fainting or having a seizure. Because of her condition, Atkins asked her store manager if she could keep orange juice at her register in case of an emergency. The manager told Atkins that Dollar General’s policy prohibited having food at a register. In fact, the “Personal Appearance” policy stated that employees “should not chew gum or eat/drink, except during breaks (which should not be taken on the sales floor, at registers, etc.).”

In late 2011 and early 2012, Atkins suffered two hypoglycemic episodes while she was working alone. Because there were multiple customers in the store both times, Atkins could not go to the break room where she kept orange juice in a cooler. Instead, she took a bottle of orange juice from the store cooler and drank it. After each episode ended, Atkins paid for the orange juice and told the store manager what happened. Nevertheless, when Dollar General’s district manager and regional loss prevention manager conducted an audit and learned about what Atkins had done, they terminated her for violating the company’s grazing policy, which forbids employees from consuming merchandise in the store before paying for it.

Atkins filed a disability discrimination charge with the EEOC, and the EEOC filed a lawsuit against Dollar General alleging failure to provide a reasonable accommodation and discriminatory discharge under the ADA. After Atkins intervened in the lawsuit as a plaintiff, litigation proceeded to trial where a jury found in favor of Atkins on both claims, awarding her over $27,500 in back pay and $250,000 in compensatory damages. The district court awarded Atkins’ lawyers over $445,000 in attorney’s fees and almost $1,700 in expenses. Dollar General appealed.

Sixth Circuit Upholds Jury Verdict Regarding ADA Claims

On appeal, Dollar General first argued that it did not have a duty to accommodate Atkins because she could treat hypoglycemia in other ways, e.g., glucose tablets, honey, candy, or peanut butter crackers. Siding with the jury, the Sixth Circuit stated that the jury could have found that Dollar General’s “Personal Appearance” policy also prohibited employees from consuming Dollar General’s suggested treatment alternatives. More importantly, the Sixth Circuit highlighted that the policy included a disclaimer that permitted disability-related exceptions depending on the circumstances. Despite this disclaimer and Atkins’ request for an exception because of her diabetic condition, her store manager “categorically denied Atkins’ request, failed to explore any alternatives, and never relayed the matter to a superior.” Such a response was not consistent with Dollar General’s duty to explore the nature of Atkins’ limitations, if and how those limitations affected her work, and what type of accommodations could be made. Consequently, the jury had a legally sufficient basis to conclude that Dollar General failed to provide Atkins reasonable alternatives to keeping orange juice at her register.

Regarding Atkins’ discriminatory discharge claim, Dollar General argued that it had a legitimate, non-discriminatory reason for firing Atkins, its anti-grazing policy. The Sixth Circuit swiftly discounted this argument, stating that “a company may not illegitimately deny an employee a reasonable accommodation to a general policy and use that same policy as a neutral basis for firing [her].” Furthermore, the Sixth Circuit emphasized that a neutral policy was irrelevant because Atkins had presented direct evidence of discrimination, i.e., failing to provide a reasonable accommodation.

The Sixth Circuit concluded its analysis by refuting Dollar General’s final argument that Atkins did not present evidence of animus toward the disabled. The Court held that proving animus was not necessary and an employer violated the ADA whenever it terminated an employee on the basis of disability. Ultimately, the Sixth Circuit upheld the jury verdict regarding both of the ADA claims, and Atkins prevailed.

Takeaways

This decision does not mean that you cannot apply neutral policies such as personal appearance or anti-grazing to disabled employees. However, employers who apply policies without regard to an employee’s disclosed disability do so at their own risk. Remember that you and your employee are a team that can only succeed when everyone can perform their jobs in a supportive and efficient environment. When faced with an employee who requests a reasonable accommodation, think about the following:

  • Would the requested accommodation violate a policy? Don’t ignore your policies that may prevent you from granting an employee’s request, but think about whether you need to make an exception to enable the employee to keep doing his or her job. If the employee’s request violates a policy, think about alternatives that would not violate the policy.
  • Solicit the employee’s doctor’s input when necessary. If you need a second opinion, get it.
  • Don’t forget that if you cannot provide a reasonable accommodation in an employee’s current position, you should determine if there are vacant positions for which the employee is qualified in which you could provide the accommodation.
  • If you simply cannot grant a requested accommodation, consult with senior management, human resources, and your attorney to assess whether not providing the accommodation would be an undue hardship or whether you can otherwise defend this decision.
  • Finally, document your discussion with the employee, and be sure it is clear that you did all you could to make it work.

Courts and juries like employers who try to figure out ways for disabled employees to keep working. Make sure you fit that mold before you end up in court.

Cue the Organ Music: Court Administers the Ministerial Exception to Music MinisterCan an organist really be considered a church minister? In a detailed and unique opinion, an Illinois federal court applied the First Amendment’s religious clauses to a church employee who claimed he had been discriminated against due to his age and national origin. While it is unlikely that many of us will confront such a factual situation, the case does provide some lessons about the importance of job descriptions and case-by-case factual inquiries.

The Demoted Organist

Since 1992, the Plaintiff, Stanislaw Sterlinski, was the Director of Music at St. Stanislaus Bishop and Martyr Parish in Illinois. In 2014, Sterlinski was demoted, and instead of running the music program (with all that entailed) he only played the organ at church functions. He was no longer full-time and lost his benefits. Sometime after the demotion, Sterlinski was fired. He subsequently filed suit against the Catholic Bishop of Chicago claiming he was demoted and then terminated because of age discrimination, national origin discrimination and retaliation.

The church moved to dismiss the claims based on the First Amendment ministerial exception. The court granted the motion as to the demotion from Director of Music, but permitted limited discovery on the question of whether Sterlinski’s organist job qualified as ministerial. The church filed for summary judgment claiming that as an organist Sterlinski was a minister and that the First Amendment protected the church’s employment decision because of the protection of freedom of religion. As such, the court’s main focus was on whether Sterlinski’s job counted as a minister and whether the functions he performed as an organist were ministerial in nature.

Does Music Matter?

The most interesting part of the court’s opinion is its detailed analysis of the role that music plays in church functions. Why did the court look at this? The court first noted that case law shows that the First Amendment grants a ministerial exception to employment discrimination laws; “ministers” cannot sue  a religious-institution employer for race, sex or other discrimination. The purpose of the exception is to ensure that “the authority to select and control who will minister to the faithful—a matter strictly ecclesiastical—is the church’s alone.” However, in this case, the applicability of that exception depended on whether Sterlinski’s job as an organist, and solely an organist, rose to the level of minister. In order to make this determination, the court had to figure out if music was such an essential part of worship that Sterlinski’s playing of it counted as ministering to the faithful.

In support of their claim that playing the organ at church functions was a ministerial function, the church presented an affidavit from the Office of Divine Worship that stated that music played and sung at Mass is never “simply music,” but is instead sung prayer. The church also submitted a church document specifically emphasizing the organ in worship, stating that the instrument is “accorded pride of place” due to its size and ability to generate emotion during worship. These pieces of evidence, coupled with the court’s deference to a religion’s own designation of what constitutes religious activity, were enough to sway the court that music plays a significant role in the church’s services.

Sterlinski countered these arguments by stating that he wasn’t allowed to pick the music played in the services and only “robotically played notes from sheet music.” He argued that these facts took him out of the role of ministerial function. On the first point, the court noted that his lack of choice in picking the music wasn’t that different from a priest being told what scripture to read based on a liturgical calendar. On the second point, the court cited several cases where accompanists were found to be performing ministerial functions even if they just played the notes on the page. The court noted again that official church doctrine establishes that music conveys a religious message and instrumentalists who play it are important ministers of the faith. Based on all these reasons, the court found that Sterlinski performed ministerial functions, even as only an organist, and therefore his suit could not proceed.

My Workplace Doesn’t Have an Organ, So Who Cares?

Understandably, this district court opinion will have a direct effect on a very small group of cases (if any). However, the court’s attention to detail and the evidence shows how important it is to have specific documents and testimony to back up an employment decision. Here, the church was able to provide specific evidence as to the importance of some of the job duties of the organist position.

As we preach (pun intended) from this blog all the time, be sure your employment decisions are consistent with your policies and your job descriptions. Nothing gives a lawyer more heartburn than to hear that an employer has no documentation to support an employment decision.

(Cue the sad organ music.)

Your Employee Is a Victim of Domestic Violence---What Should an Employer Do?New Zealand parliament recently passed a law granting employees 10 days of extra paid leave each year for victims of domestic violence to change their living situations and not lose their jobs. According to some U.S. statistics, one in four women and one in nine men are victims of intimate partner violence every year. This likely means that someone in your workforce has either suffered domestic violence or has a family member who has. It goes without saying that this type of crime can cause workplace production problems—but what is an employer required to do if an employee is a victim?

FMLA

Under the FMLA, if an employee suffers a physical injury as a result of intimate partner violence, he or she is entitled, as with any other medical condition, to unpaid leave. This would also include intermittent leave. The employee may still be required to provide the required medical certification and would have to meet the eligibility qualifications (i.e., 12 months of work, 1250 hours in the last 12 months, 50 employees at the worksite or within 75 miles).

State Laws

Several jurisdictions also have laws protecting victims of domestic violence:

  • In Florida, employees who work for an employer with 50 or more employees can request and take up to three days of leave per year if the employee or family member of the employee is a victim of domestic violence. The leave may be unpaid, and the employer is required to keep all information about the leave confidential.
  • In North Carolina, an employee is protected from retaliation if the employee takes “reasonable time off” to obtain a protective order or some other sort of relief from domestic violence.
  • In the District of Columbia, employees meeting certain criteria for domestic violence situations may even be entitled to paid leave.

Other states have specific crime victim job protection laws that may cover victims of domestic violence. Mississippi, Arkansas and Alabama have statutes protecting employees’ jobs if they need time off because they are a victim of a crime and have to respond to a subpoena or prepare for court proceedings. Tennessee has a statute protecting state agency employees against adverse employment actions if the employee is helping to prosecute a perpetrator of an offense against that employee.

Company Policies

Many employers have an array of policies that could help employees who disclose a domestic violence issue. You should always check to see what is available, and make sure your employees are aware of their options.

  • Leave – Be sure your employees know that they can take whatever leave applies. It could be characterized as personal, paid time off, vacation, sick, court, or something else.
  • Donated Leave – If you have a way for other employees to donate paid leave, an employee who is the victim of domestic violence may want to ask for consideration.
  • Employee Assistance Programs – Your EAP may provide legal assistance or counseling.
  • Security in the Workplace – Find out whether you should take steps to ensure that the alleged abuser does not cause an issue at work. This could include alerting security or the local police. Some victims may ask if they can bring a gun to work or leave one in their car. While you can follow your company’s policies (and state laws) regarding weapons in the workplace, be sure to fully consider the security of the victim and your other employees.

Common Sense

Since domestic violence is so prevalent in our society, employers should be prepared to deal with the fallout that comes with this unfortunate situation. Beyond physical injuries, there may be post-traumatic stress and mental health issues that arise due to a violent home life. Although you may not be required by law to provide paid or unpaid leave, employers should be mindful that empathy and patience may not only provide some peace to a troubled employee, but also boost the morale and loyalty of the workforce.