The Elements Make All the Difference—Sixth Circuit Affirms Summary Judgment in Favor of Coal Brokerage Company in Age and Disability CaseWhen evaluating a discrimination case, one can never forget to go back to the basics and start with the elements of the cause of action. For example, if you are facing an age discrimination claim, is the employee in the protected class, i.e., over 40 years old? Were they replaced by someone outside of that class? A lawsuit cannot move forward if a plaintiff fails to provide evidence to support each element required by law. For that reason, the first line of defense for an employer accused of discrimination should be to attack the foundation of an employee’s claims. In Stearman v. Ferro Coals, Inc., the Sixth Circuit reminds us that an employee’s misguided theories about an adverse employment decision are insufficient to survive summary judgment in an age and disability case.

Background

Joseph Stearman was the vice president of sales at Ferro Coals, Inc. for five years. Because Stearman’s job required travel, he used a company credit card to cover costs. However, Ferro required all of its employees to seek approval for business travel, and in 2012, suspended all business travel “due to declining market conditions in the coal industry.” Although employees still traveled, they only did so when they received specific permission.

In 2013, Stearman followed the policy when he requested and received approval to attend a seminar in Myrtle Beach. When Stearman asked to attend the conference again in 2014, he did not receive a response, but went anyway, using the corporate credit card to cover his expenses. When Ferro discovered what Stearman had done, it terminated him for improper use of a company credit card in the broader context of the declining coal industry and a need to downsize. Stearman was 67 years old. After Stearman’s termination, Ferro did not hire a new vice president of sales, instead allowing another employee to absorb his duties in addition to the employee’s existing duties.

Stearman filed a complaint alleging age and disability discrimination under the Kentucky Civil Rights Act, among other claims. Because the Kentucky statute mirrors its federal counterparts, the ADEA and ADA, the district court analyzed Stearman’s claims in the same manner as it would federal claims. Ultimately, the district court granted summary judgment to Ferro on all claims, and he appealed.

Sixth Circuit Affirms Summary Judgment Ruling

On appeal, the Sixth Circuit explained that to prove age discrimination, Stearman had to show that he was replaced by someone outside of the protected class. Given that Ferro had a current employee absorb Stearman’s duties, Stearman had no such evidence. The Sixth Circuit held that Stearman had not been replaced because a replacement only occurred when a company hired a new person or reassigned an employee to take over the plaintiff’s job: “Spreading the former duties of a terminated employee among the remaining employees [did] not constitute a replacement.”

In an attempt to save his age claim, Stearman contended that the replacement test only applied in reduction-in-force cases. While the Sixth Circuit dismissed that argument, it concluded that Ferro was engaged in a reduction in force because it had cut its workforce from 18 to 12 by the time Stearman left. The Court added: “Workforce reduction is a prerequisite to wrapping up business, and it can occur even when some of the employees let go engage in unwise conduct—like taking business trips without authorization.”

Because Stearman could not show that he was replaced, his claim of age discrimination failed. With regard to his disability claim, the court held that because Stearman failed to demonstrate that he was disabled or suffered any restriction in his ability to perform his job, his disability discrimination claim also failed.

Stick to the Basics

This decision highlights what employers should initially consider when terminating an employee, particularly one in a protected class, and/or preparing to litigate a discrimination claim.

  1. When providing a reason for an employee’s termination, make sure that it is the actual reason for termination. It is especially helpful to be able to refer to a policy that has been violated. Also, tell the whole truth—if it is part of a reduction in force, document that reason even if the decision is also disciplinary.
  2. If an employee that is being considered for termination is in a protected class, discuss the circumstances with human resources. If there are red flags and you need to discuss potential risks and the elements of a potential discrimination claim, make sure counsel is involved and your conversation is privileged.
  3. Think about next steps after the employee is terminated. Will the employee be replaced? If so, by who? If not, will other employees assume their duties? Will the person assuming duties get a raise or a change in job title? Is the position being eliminated?

 

By keeping these fundamental concerns in mind, you will hopefully avoid battling an aggrieved former employee or at least be in a better position to defend the decision in court.

I Need My Squirrel at My Desk:  A Reminder about Service Animals vs. Emotional Support AnimalsMany people chuckled when they read the news story about the woman who attempted to bring her “emotional support squirrel” on a Frontier Airlines Flight early in October. However, it is hard not to notice the proliferation of “emotional support animals” — usually dogs or cats, but sometimes turkeys or even spiders. As an employer, what are your obligations when an employee tells you they need to bring an animal to work? Well, as is the case in most employment law questions, it depends.

Service Animals

Under the Americans with Disabilities Act (ADA), a service animal is one that is individually trained to do work or perform a task for a person with a disability. The most obvious example is a “seeing eye” dog for a blind person, but other examples may include a dog that assists someone in a wheelchair or a dog that is trained to notice when someone is about to have a seizure. The ADA limits service animals to dogs and, under certain circumstances, miniature horses. Importantly, for an animal to qualify, the work or task the animal performs must be directly related to the person’s disability. Animals whose sole function is to provide comfort or emotional support do not automatically qualify as service animals under the ADA. An employee can seek to have a service animal in the workplace as a reasonable accommodation. If an employee asks to bring a service animal to work, the employer should follow the regular interactive process. Usually, if the employee has a disability serious enough to require a service animal, the request for one is reasonable, absent any safety or public health concerns.

Emotional Support Animals

The ADA provides no definition of an “emotional support animal.” In many circumstances, these animals are not trained in any specific task, but instead provide “comfort” or emotional support to someone who may have a mental health issue. In some cases, a doctor may state that the animal is necessary for an individual’s mental stability. Emotional support animals are not limited to dogs or miniature horses — primarily because (unlike service animals) the federal law does not provide a definition. Does this mean you can ban emotional support animals from your workplace? Not necessarily. For example, what if an employee brings documentation that he or she suffers from PTSD and a physician states that an emotional support animal will help provide mental stability. If that employee requests an accommodation, you need to treat it like any other similar ADA request. However, unlike a service animal, there may be more room for an employer to suggest other, less burdensome accommodations. For example, instead of the emotional support animal, an employer could offer additional breaks, work from home, etc. It is important to note that unlike a service animal, emotional support animals do not enjoy the same type of endorsement under the ADA.

3 Steps to Figuring Out ADA Reasonable Accommodations for Mental IllnessWhat do you do when an employee discloses that he or she is stressed out and needs a reasonable accommodation under the Americans with Disabilities Act, but the requested accommodation strikes you as unreasonable? If you are reading this and thinking “that won’t happen to me—all of my employees are well-adjusted,” think again. The experts tell us that one in five adults is living with a mental illness, and 18 percent of adults in the U.S. suffer from an anxiety disorder. This means that if you haven’t yet had an employee disclose a mental disability, it is probably just a matter of time. In my practice I am seeing more and more requests for reasonable accommodations for stress and anxiety and, unfortunately, this is not always an easy process to manage.

We have talked before about your general obligations under the ADA. So, as a brief refresher, here are some steps to follow once your employee says he or she is suffering from a mental disability and needs a reasonable accommodation:

STEP ONE: Engage in the interactive process.

The ADA requires that you engage in an interactive process, so talk with the employee.

  • With which essential functions does the employee struggle?
  • What reasonable accommodations does the employee think would enable him or her to perform those functions?
  • What, if any, restrictions has the doctor provided?

Your first discussion is for you to collect information, so let the employee do the talking. Don’t assume that this employee’s depression/anxiety disorder/PTSD is the same as another employee’s or anyone else’s. You can and should get the employee’s doctor’s input on this. I have found that what employees want and what their doctors say they need are not always the same thing. Keep your questions about the disability job-related and consistent with business necessity. This is a process, so it could take several conversations. Be sure to document it thoroughly.

STEP TWO: Determine if the requested accommodation is reasonable.

A reasonable accommodation enables the employee to perform the essential functions of a job. A request is not reasonable if it eliminates an essential job function, poses a direct threat of imminent harm, or imposes an undue hardship.

Keep an eye on the essential functions of the job. You do not have to remove essential functions and create a new job for the employee. You may, however, have to reassign or eliminate non-essential functions. In assessing whether the employee’s performance of the job poses a direct threat, be objective. Get expert input on whether any proposed changes would work or if they would increase danger. Whether the proposed accommodation poses an undue hardship, such as by dramatically increasing costs or affecting productivity, is also a consideration, but in practice, that can be tough to prove.

Look carefully at the employee’s requested accommodation and if you don’t think it is reasonable, offer an alternative. Again, this is an interactive process. Feel free to get the doctor’s input.

STEP THREE: If you can’t accommodate, is transfer or leave an option?

If you cannot come up with a way for the employee to safely perform the current job, do you have a vacancy in which you can accommodate the disability? You do not have to displace someone or create a new position, but you should consider all vacant positions. If the employee is qualified for the vacant job, offer it as a reasonable accommodation. The employee does not have to compete for the position but does have to take the position as it is—even if it pays less, is on a different schedule, etc. Unlike an FMLA-related transfer, this is not a temporary move.

If you can’t accommodate and have no vacancies, your last resort is to determine if leave is a reasonable accommodation. Ask the employee if taking some leave would enable him or her to return to work and do the job’s essential functions. With mental disabilities, this could be a period of inpatient or outpatient treatment or medication adjustment. You should consider this option even if there is no FMLA available and you don’t have a company leave policy. It should be well-defined (i.e., one week, one month), and you do not have to grant open-ended leave.

If you can’t accommodate, and transfer or leave is not an option, you may have to terminate an employee. Before taking that final step, make sure you have properly documented your process and can prove how reasonable you have been. Of course, I think you should have your employment lawyer on speed dial but at the very least, talk to your lawyer before you terminate.