Lingering Lateness Later Litigated: 11th Circuit Rules on ADAWhat happens if you give an employee an accommodation that goes above and beyond what the ADA requires? Can you change your mind down the road and stop providing that accommodation? Or are you stuck providing that accommodation forever – even though it’s unreasonable or no longer feasible? In Hartwell v. Secretary of the Navy, the 11th Circuit says you can change your mind.

Employee Allowed to Be Late for Years

Darrell Hartwell was a firefighter/EMT for the Navy since 1998. During his tenure, Hartwell had trouble getting to work on time. Until 2011, though, he rarely received more than verbal reprimands for his persistent lateness.

Under a 2008 agreement with the local union, Navy firefighters, including Hartwell, were allowed to informally exchange up to 59 minutes at the beginning or end of their shifts and without management’s prior approval. This meant that a firefighter who was running late could call and ask a coworker on the outgoing shift to cover for him. Hartwell frequently took advantage of this agreement and on most days, he was able to find someone to cover for him until he got to work.

Department Changes Led to Increased Write-Ups and Termination

Two changes happened in 2011 that led to Hartwell’s eventual termination. First, management said it would no longer allow these informal time swaps. Second, the new supervisor disciplined Hartwell more frequently and with increasing severity for his tardiness, including a 14-day suspension.

After his suspension, Hartwell told his supervisor that he had several mental health conditions for which he took medications that caused drowsiness that led to his tardiness. Hartwell requested an accommodation of being allowed to use up to an hour of sick leave on the mornings that he was late and to reinstate his ability to informally exchange time with others. Management denied Hartwell’s request and ultimately terminated him for tardiness.

Hartwell sued the Secretary of the Navy under the ADA claiming that his chronic lateness was the result of diagnosed medical conditions and that the fire department refused to implement a reasonable accommodation for his conditions by reinstating the 2008 agreement.

Punctuality Was Essential Function of Job – Request Was Not Reasonable

The court had to decide whether punctuality was an essential function of his job. If it was, then to be reasonable an accommodation needed to enable Hartwell to get to work on time. If he could not come on time, he was not a “qualified individual” under the ADA (because he would not be performing an essential function of the job). On the other hand, if punctuality was not an essential function, then an accommodation of allowing him to show up late might be reasonable.

The court found that punctuality was in fact an essential function of Hartwell’s job. If the required number of firefighters were not present, it was possible that the department could not appropriately respond in an emergency. Hartwell himself testified that “A firefighter can’t do his job if he’s not at work.” All in all, Hartwell’s requested accommodation – to continue to allow him to show up late – would not have allowed him to perform the essential function of punctuality and was therefore not reasonable.

Prior Accommodation Exceeding ADA Requirements Can Be Changed

The court also found that just because the department had provided the accommodation to Hartwell for many years did not mean it was reasonable or that it had to continue. Hartwell argued that his requested accommodation was reasonable given that the department had allowed him to arrive up to an hour late for several years without any issues. The court disagreed saying “prior accommodations do not make an accommodation reasonable.” In Hartwell’s case, it was not reasonable because punctuality was an essential job function.

So, What Does This All Mean?

Sometimes you may decide to give an employee an accommodation that goes above and beyond what the ADA requires. Perhaps you have a long-time, loyal employee who just needs a little more help to get back to work full-time so you provide an accommodation that is not required by the ADA. You can do that without worrying that you are stuck providing that unreasonable accommodation for the employee’s entire time at your company. You can change your mind later and stop providing an unreasonable accommodation. After all, the ADA doesn’t require you to provide unreasonable accommodations, it only requires that you provide reasonable ones.

EEOC Has Lowest Level of Pending Charges in 13 YearsThe sometimes agonizingly slow Equal Employment Opportunity Commission is trying to be more efficient. According to the latest Agency Financial Report, in fiscal year 2019 the EEOC reduced the level of pending private sector charges to its lowest number in 13 years. Specifically, the number of pending private sector charges in fiscal year 2019 decreased by 12.1 percent, to 43,580.

Fiscal year 2019 continued a recent trend of declining numbers of pending charges. As recently as 2014 and 2015, there were more than 75,000 charges pending in each of those years. 2016 saw a small decline, but that decline accelerated in the years to follow. The number of charges dropped to 61,621 in 2017, then to 49,607 in 2018, and now to 43,580 in 2019.

According to EEOC Chair Janet Dhillon, the decrease was the result of the EEOC’s focus on “inventory reduction strategies,” “priority charge handling procedures,” technological enhancements, and “hiring of front-line staff.” The good economy in recent years has also likely contributed to the decline in the charge numbers.

Some other fiscal year 2019 highlights from the report included:

  • The EEOC collected more than $486 million for “victims of discrimination.” Of the $486 million, the EEOC collected $346.6 million through mediation, conciliation, and settlements from employers in the private sector and state and local governments, $39.1 million through litigation, and $100.6 million for federal employees and applicants.
  • In the mediation program, the EEOC successfully mediated 6,394 charges. The private sector mediation program garnered a satisfaction rate of 96.8%, representing the percent of participants who would use the process again.
  • Interestingly, the rate employers chose to participate in the EEOC’s mediation program increased to 30.7% (from 27.6% in fiscal year 2018).
  • The EEOC filed 144 lawsuits. Of those 144 lawsuits, 100 suits were on behalf of individuals, 27 were non-systemic suits with multiple victims, and 17 were systemic suits involving multiple victims or discriminatory policies.

The NLRA, Protected Activity, and the F-BombWhen, if ever, is swearing at your supervisor or coworkers a federally protected activity? The National Labor Relations Board (Board) currently is reconsidering what constitutes protected activity under the National Labor Relations Act (NLRA). Specifically, the board is trying to clarify when workers can be protected from discipline for using profanity or engaging in harassing behavior toward supervisors or coworkers.

The Concept of Protected Activity

The NLRA is a somewhat unique employment law in the sense that it does not set forth easily recognizable employment standards – such as a minimum wage or a prohibition against racial discrimination – but rather is intended to allow and to encourage employees to join together to address issues in the workplace. When employees act together, or engage in “concerted activity,” then they engage in protected activity under the NLRA and cannot be disciplined for that activity. So, the question under the NLRA often becomes, what is protected concerted activity and what is just outright insubordination or harassment? In other words, to what extent does the NLRA protect the use of the f-bomb (or the n-word)?

The Existing Standard — Atlantic Steel

The current standard for evaluating whether otherwise inappropriate workplace behavior is protected under the NLRA is called the Atlantic Steel test. The four factors under Atlantic Steel are (1) location of the activity or discussion, (2) the subject matter of the discussion, (3) the nature of the employee’s conduct or outburst, and (4) whether the outburst was provoked as a result of the employer violating the NLRA. Under this test, many instances of vulgar or profane comments, including racially and sexually offensive language, have been found to be protected by the NLRA. Sometimes the justification provided is that the NLRA would be meaningless if it did not take into account “the realities of industrial life.”

The Board’s Invitation

The board is considering a case, General Motors, in which the employee said (paraphrasing), “I don’t give a f_____” and “shove it up your f____ a____.” The Administrative Law Judge found that the employee engaged in protected activity. Based upon this behavior and the desire to re-examine the standards applicable to this behavior, the board invited extensive briefing by not only the parties to the case but others as well. For example, the EEOC now has filed a brief. Interestingly the EEOC notes that Title VII’s prohibition on harassing conduct contains no “blue collar” exception or any exception for workplaces “rife … with vulgar conduct.” After this comprehensive briefing is concluded, the board likely will issue a new standard for when vulgar or offensive workplace conduct is protected and when it is not.

What to Expect

Many anticipate that the board will further limit when otherwise dischargeable conduct will be protected under the NLRA. There also may be completely different standards that apply to simply vulgar behavior as opposed to behavior that rises to the level of actionable harassment under discrimination laws (remember “severe or pervasive”). Many agree that union activists should have no greater right to engage in this vulgar workplace behavior than anyone else. So, stay tuned.