“Don’t Tase Me, Boss!” Eleventh Circuit Reinstates Claims of Police Officer Who Refused Taser TrainingIf an employee gets a doctor’s note saying she can’t participate in training because of a physical limitation, does that make her disabled? It might if you treat her like she is—at least that is what the Eleventh Circuit ruled last month in Lewis v. Union City, Georgia when it reversed summary judgment in favor of the Union City Police Department (UCPD)  on claims of race, gender and disability discrimination.

The Facts

Detective Jacqueline Lewis, an African-American female, was scheduled for taser training. She brought a doctor’s note stating that due to a past mild heart attack, she should not participate in training that included officers receiving a five-second shock. Her employer, UCPD, put Lewis on indefinite unpaid leave until her doctor released her for duty. During the ensuing 21 days, Lewis said she attempted to get an accommodation and also tried to get information from her doctor to the department. However, on the 21st day, the UCPD terminated Lewis claiming that she had exhausted her accrued leave and had failed to turn in any FMLA paperwork.

Lewis filed suit alleging disability, race and gender discrimination. In support of her race and gender claims, she pointed to two white male officers who were put on administrative leave after failing physical fitness tests, but then were given 90-day and 449-day leave periods before being terminated.

The district court dismissed Lewis’s disability claim on the basis that she had not shown she was a “qualified individual” under the ADA and dismissed her Title VII claim on the basis that the white male comparators were not similarly situated. The court also noted that the detective position would put her in proximity to Tasers and therefore she could not be accommodated. Ms. Lewis appealed.

Eleventh Circuit Opinion

The Eleventh Circuit first looked at the basic case required under the ADA. They agreed with the lower court that Lewis’s mild heart condition did not substantially limit a major life activity, so she wasn’t disabled. However, the court did find that the UCPD’s putting her on administrative leave until she got a letter from her doctor showed that she was “regarded as” having a disability, which also meets the ADA standard. With regard to the qualified individual prong of her ADA case, the Eleventh Circuit did not agree with UCPD’s claim that she could not perform the essential function of the detective job solely because she might be exposed to a Taser shock. The court pointed out that the written job description did not mention anywhere that it was necessary for a detective to be exposed to a Taser shock. As such, the issue of whether it was an essential function of the job should be left to a jury.

The Eleventh Circuit also addressed UCPD’s claim that under Title VII, the two white male officers were not proper comparators because they failed physical tests while Lewis failed weapons training. On this issue, the court found that it was a much closer call but noted that both the weapons training and physical tests were essential functions of the job. At best, this created an issue of fact about whether the men were proper comparators and therefore summary judgment was not proper. Regardless, the court went on to state that there was enough circumstantial evidence of discrimination surrounding Lewis’s termination (placed on involuntary leave after notifying them of a medical condition, using exhaustion of that involuntary and indefinite leave as the reason for termination, etc.) that summary judgment should not have been granted.

What Did We Learn?

This opinion touches on numerous issues:

  • First, it re-emphasizes that an employer can get itself into trouble simply by treating someone as if they are disabled, even if the facts later show that the alleged disability was not enough to impact a major life function.
  • Second, it shows (again) how important accurate and extensive job descriptions are in ADA cases. Job descriptions should constantly be reviewed and revised, if necessary.
  • Finally, it points out that it may look bad to put someone on unpaid indefinite administrative leave over their objection and then later use their failure to show back up to work as a reason to fire them.

ac-com-mo-date

verb

to make suitable or consistent; adapt

This simple word, or the lack thereof, is costing a California non-profit, the Asian American Drug Abuse Program, Inc. (AADAP), a lot more than a broken New Year’s resolution. In a recently returned special verdict, California jurors awarded Della Hill a staggering $4.5 million against her former employer AADAP. Hill, a counselor at AADAP, was fired from her position while out on a medical leave that was extended due to an onslaught of depression. Following her dismissal, Hill sued AADAP, mainly alleging violations of the California Family Rights Act (FRA) and the Fair Employment Housing Act (FEHA). She also threw in claims alleging failure to pay minimum wage and fairly compensate for overtime work.

The Fine Print

New Year, Same Accommodations…Employer Forced to Shell Out Millions for Failure to Accommodate Employee on Disability LeaveHill began at AADAP in 2011.During the New Year holiday of 2015, Hill broke her humerus—that’s a bone in her arm—and immediately began medical leave. Not long after, Hill was diagnosed with major depression and needed more than the 12 weeks protected by the FRA (all certified by her doctor to AADAP). When Hill’s 12 weeks of leave was up, AADAP terminated her for “failing to return from her medical leave.”

Hill’s complaint alleged that AADAP’s actions violated the California FRA and FEHA. Hill argued, and the jury concurred, that she was fired because of her physical and/or mental disabilities, and in retaliation for her taking protected leave for medical treatment.

Moreover, under the FEHA, Hill alleged that AADAP failed to reasonably accommodate her disability. The jury determined that Hill would have been able to perform the essential duties of her job (or a similar vacant position) with reasonable accommodations. The jury also found that AADAP, despite its knowledge of Hill’s circumstances, did not take reasonable steps to communicate with Hill about her disability, her leave, or potential accommodations to facilitate her return. Further, according to the jury, Hill’s proposed accommodations would not have created undue hardships for her employer.

The Big Picture

Although Hill’s case is brought under California laws, the implications of the verdict extend well beyond the borders of the Golden State.

First, AADAP is a non-profit. Given the sheer size of Hill’s award, it follows that juries (at least in California) won’t hesitate to penalize employers, non-profit or otherwise, in an employment case. Keep in mind only $546,000 of the verdict was attributable to back and front pay. The jury gave Hill over $1.9 million in compensatory damages and, because the jury found AADAP acted with malice, it tacked on an additional $2.6 million in punitive damages. The best sense is bought sense, but it’s safe to say that AADAP has bought more than enough for other employers to share. Learn from this scenario: Be very careful with employees taking medical leave or needing reasonable accommodations, and work with the people who work for you.

Also, the jury was apparently peeved (to the tune of millions) by its belief that AADAP failed to engage in the interactive process. For those of you not in California, the ADA requires an interactive process and it is a remarkably easy procedure to shortchange. Under the interactive process, employers are required to determine what reasonable accommodations are necessary so an employee can perform essential job functions. In this case, as in any other, there are always two sides to the coin, and we don’t know what evidence that AADAP presented that the jury may have ignored. However, an ounce of prevention would have been worth a pound of cure, and AADAP may have fared better if they could have produced a comprehensive paper trail of their interactions with Hill.

So What Does This Mean for Employers?

In a phrase, “CYA” — cover your accommodations.  In the Hill case, there was apparently enough evidence for the jury to conclude that AADAP did not engage in the interactive process. Learn from its mistake, and save your company the $4.5 million payout by taking these steps:

Create a paper trail. As soon as an employee requests leave or accommodation, document it. Then, send some type of correspondence acknowledging its receipt to the employee who submitted the request.

Follow-up. It’s not enough to say that you received the request. Investigate. Ask questions. Request additional information about the impairment—within reason—to find out what the employee’s doctor says she can (or cannot) do.

Talk it out. This is not a one-sided conversation. Speak with the employee, and get his feedback and suggestions on how you can accommodate his needs while also ensuring that your business productivity and continuity is preserved. Involve the employee’s doctor or your company doctor as appropriate. Keep an open mind about what accommodations may work (and don’t forget that the EEOC thinks–and some courts agree–that leave is a reasonable accommodation).

Create (another) paper trail. After you confer with the employee, send another correspondence outlining what you discussed, whether you reached a viable solution, and what action steps you both have to take going forward. Don’t reach the end of the process until you are sure there is no reasonable accommodation.

The duty of accommodation is continuing; it doesn’t stop after the first request or the first meeting. Each employee and her circumstances will present unique sets of problems that require constant vigilance, attention, and awareness on the employer’s behalf.

“I’m Just an Intern!” DOL Changes Course and Adopts Primary Beneficiary Standard for Intern Compensation CasesDetermining when an unpaid intern is really an employee has been a moving target for the last several years. However, on January 5, 2018, the Department of Labor announced that its Wage and Hour Division will now use the “primary beneficiary” test to determine employee status.

What is the primary beneficiary test? This is the standard numerous appellate courts have adopted over the last several years. The DOL’s announcement is a change in policy from the agency’s six-factor test adopted in 2010, which was widely challenged and several times rejected by courts. Most recently, the Ninth Circuit adopted the “primary beneficiary” test instead of the DOL’s position.

This issue has been percolating for several years (we have written about it here and here). Now that the DOL is getting in line with the seven-factor primary beneficiary test, it is worth a refresher on what factors to consider in whether an intern can be unpaid:

  1. Do the intern and employer clearly understand that there is no expectation of compensation for the job?
  2. Does the internship provide training that would be similar to that given in an educational environment?
  3. Is the internship tied to a formal education program with coursework and/or academic credit?
  4. Does the internship fit into the intern’s academic calendar?
  5. Is the length of the internship limited to a period where they are provided with beneficial learning?
  6. Does the intern’s work assist or complement the work of paid employees instead of displacing them?
  7. Does the intern understand that the intern is not automatically entitled to a paid job at the conclusion of the internship?

This change does not make it open season to set up unlimited unpaid internships. Those free interns can still sue you and maybe win, depending on the facts of the case. If you want to use unpaid interns, the best bet is still to set it up through the intern’s school and see about academic credit. If that is not a viable option, the safest course is still to pay interns at least minimum wage and overtime as appropriate.