Disability Discrimination

“Sooo… We Need to Talk” – The Consequences of Failing to Engage in the Interactive ProcessThe ADA requires employers to engage in an interactive process with disabled employees, and courts often set a high bar for what that looks like. Expensive litigation continues to be the consequence when employers terminate an employee during or at the end of the interactive process. The need for managers and supervisors to understand how to communicate and clearly document that communication with employees is never more critical than when they are facing an employee who needs an accommodation to perform his job. McClain v. Tenax Corporation is a sobering reminder of how much emphasis federal courts place on employers engaging in the interactive process and working with employees with disabilities.

Background

Terry McClain, who worked for Tenax Corporation, was born with hand and foot deformities—two fingers on each hand, half a foot on each side, and no toes. As a result, McClain had difficulty grasping with his hands, walking, and climbing up or down steps. Nevertheless, he worked 40 hours per week supervising temporary janitorial employees. After a year or so, Tenax cut McClain’s hours in half because of a production slowdown. To make up for his loss of hours, Tenax offered McClain additional work wrapping pallets and moving them to a warehouse. McClain accepted the work and began working part time in his janitorial position and part time in his pallet-wrapping position.

Unlike his janitorial position, the pallet-wrapping work required McClain to constantly climb in and out of a forklift. Within two days, McClain was experiencing pain and receiving complaints from Tenax managers about his inability to complete his work efficiently. Because of the issues that he was having, McClain told the plant manager that he could not perform the pallet-wrapping work and requested that Tenax accommodate his disability by allowing him to return to his original position on a full-time basis. According to McClain, Tenax managers gave McClain an ultimatum—do both jobs or quit. Ultimately, McClain quit and sued Tenax for violating the ADA by failing to accommodate him and retaliating against him for requesting accommodations.

District Court Denies Employer’s Summary Judgment Motion

Tenax moved for summary judgment, asserting that it could not have failed to reasonably accommodate McClain because his requested accommodation—a full-time janitorial position—did not exist. The U.S. District Court for the Southern District of Alabama disagreed.

First, the court explained that an employer must make a reasonable accommodation for the known physical or mental limitations of an otherwise qualified employee unless the accommodation would impose undue hardship on the operation of the business. The court noted that McClain frequently informed his managers of his inability to perform the essential functions of his job because of his disability and requested a specific accommodation—a return to his previous full-time position. The court determined that Tenax had not proven that accommodation would have posed an undue hardship.

Returning to Tenax’s argument that it had no full-time janitorial positions, the court ruled that Tenax failed to present any evidence that this statement was true during the two-month period that McClain worked part time wrapping and moving pallets. However, the court’s most significant holding was that the facts presented by McClain gave rise to a reasonable inference that Tenax discriminated against McClain because of his disability and precluded summary judgment in Tenax’s favor on McClain’s failure-to-accommodate claim. The court stated that McClain presented sufficient evidence that Tenax had summarily rejected all of his requests by informing him that his only options were to keep doing both jobs or resign. If Tenax gave such an “all-or-nothing ultimatum,” it would have “slammed the door on any possibility of a reasonable accommodation, foreclosed the option of McClain working just as a part-time [janitor, and] obliterated any possibility that the ADA interactive process could ever take place.”

Have the Tough Conversation

So what should employers do to avoid (or be in the best position to defend) failure to accommodate claims?

  1. Have the tough conversations! It is true that these discussions may be awkward and seem personal and invasive, but they are necessary to protect your business. Engaging in an open dialogue with your employee about his disability and what he needs to successfully perform his job—even if you can’t provide the accommodation—places you in the best position to defeat potential claims of ADA discrimination in the future.
  2. Don’t look for magic words. Remember that while an employee must affirmatively request a reasonable accommodation, there is no specific language that must be used to prompt an employer to begin the interactive process. As soon as the employee expresses that he cannot perform the essential functions of his job because of a disability, whether formally or informally, it is time to begin asking questions. If you need information from his doctor, get it (keeping in mind that you are interested in his ability to do the job and not a lot more).
  3. Talk to your core decision makers. After you are fully aware of the employee’s limitations, communicate with HR and other necessary management personnel in the employee’s department to determine what options are available and how you will be impacted by implementing such options. Once you have decided on an accommodation—and especially if you have decided that you can’t provide an accommodation—talk with legal counsel to review what your obligations are under the ADA and ensure that you have considered all sides and have properly documented the interactive process.
  4. Accommodate if you can, and clearly document if you cannot. Make sure your employee fully understands that you want to work with him. If you cannot accommodate him in his job, look at vacancies and explain those options.

Employers can’t always reasonably accommodate an employee’s disability. Hopefully, by consistently using these strategies on a case-by-case basis, you can avoid this growing area of litigation.

Ever wonder why the severance agreement that I (or your other favorite employment lawyer) send you says “nothing in this Agreement prevents Employee from filing a charge with the EEOC” (or words to that effect)? I mean, isn’t that the point of the agreement? You pay the employee money, and he or she can’t file a charge or lawsuit against you? Well, a recently announced settlement from the EEOC provides some insight.

Background

An employee with the Coleman Company filed an EEOC charge alleging that the company discriminated against the employee based on a disability. After investigating, the EEOC found that it was probable that the company violated Section 503 of Americans with Disabilities Act and Section 704 and 706 of Title VII—the retaliation provisions. How, you may ask? According to the EEOC’s announcement,

the company conditioned “employees’ receipt of severance pay on an overly broad severance agreement that interfered with employees’ rights to file charges and communicate with the EEOC, and which precluded employees from accepting any relief obtained by the EEOC, should the agency take further action.”

Coleman has agreed to hire a consultant to review its severance agreements and make changes if necessary. The company will also notify employees who signed agreements in the last few years about their rights.

Now What?

Keep in mind that the EEOC’s announcement does not indicate that Coleman discriminated against the former employee based on a disability. This conciliation was all about a provision in the severance agreement. So, it appears that the company did what it was supposed to do under the ADA but is being chastised only for its form agreement.

The EEOC has made clear that it is concerned about the breadth of severance agreements. In fact, preserving access to the legal system, including addressing overbroad separation agreements, is part of its Strategic Enforcement Plan.

Note that the EEOC’s agreement with Coleman goes well beyond the current charging party. Not only must Coleman review and perhaps revise its current agreement, it must notify any employees who signed similar agreements in recent years. Once the EEOC is looking at an issue in your workplace, it can expand beyond the current employee.

So what’s the moral of the story? When your labor lawyer includes language that carves out someone’s ability to talk to the EEOC (or any other government agency), listen.

Urine testing—not one of the more popular work activities. However, drug tests are part of safety programs throughout the country. Two recent events—one a court decision and one a potential legislative event—give me the opportunity to review this issue.

Alabama Case: Can You Require Employees to Tell You What Medicines They Take?

The Facts: On January 18, in Upton v. Day & Zimmerman NPS, an Alabama federal district judge reminded employers about how drug tests may connect hiring decisions and the ADA. Mr. Upton, a pipefitter who had lower back pain after a 1989 car accident, took prescription morphine, an opiate. Due to a union contract, Upton was required to pass a five-panel drug test before working at a power plant. When Upton would take the test, it came back positive for opiates, but the medical review process would note that he had a legitimate prescription and he was permitted to work. The review process included a letter from his physician showing that he could work safely while taking the pain medication.

In January 2015 (so Mr. Upton had been taking the medication for many, many years), he was sent to another plant where he took another drug screen. He presented another letter from his doctor that described his prescription, but this one also opined that requiring employees to disclose their medications may be a violation of the ADA. Mr. Upton was not hired for that job, and he sued.

The Litigation: Both Mr. Upton and the company moved for summary judgment on various issues: whether the company regarded Mr. Upton as disabled; whether Mr. Upton was, in fact, a qualified individual with a disability; and whether the company discriminated against him because of a disability. The court found insufficient evidence to support a “regarded as” claim and spent a good bit of time discussing whether Mr. Upton should be considered a qualified individual with a disability. But the lesson from this opinion deals with whether the drug testing itself was improper.

Are Drug Tests Improper Medical Inquiries? As the court notes, a pre-employment drug test does not count as a “medical inquiry” under the ADA. (The court does not say whether a decision maker’s access to medical information collected as part of an employment entrance exam under another section of the ADA is problematic as Mr. Upton failed to plead that section.) Even the letter from Mr. Upton’s doctor can be considered proper. Mr. Upton complained that he was required to disclose the actual medication he was taking—opioids—instead of just stating that he had a valid prescription and could safely do the job. The court noted that practically, an employee would have to disclose the actual medication so as to explain the positive drug test. In addition, since the inquiry was in the pre-offer stage, an applicant who tests positive for illegal drugs may be required to give possible explanations for the test.

Overall, this case again shows that pre-employment drug testing can be a valid part of the application process. Employees can also provide medical documentation to explain a positive test—that’s not improper under the ADA. Keep in mind that Mr. Upton’s disability discrimination claim survived, so the company is going to trial to defend its decision not to hire him.

Mississippi Seeks to Ban Synthetic Urine

On another, stranger drug testing note, a member of the Mississippi state legislature has introduced a bill to combat synthetic human urine products. The bill is titled “Urine Trouble” and would prohibit retailers from selling the product that mimics human urine chemistry and is packaged with instructions on how to keep it at body temperature. Apparently, it is being used to create false negative drug screens. If this proposal passes, Mississippi will join the growing ranks of states (including Florida and Illinois) that make synthetic urine illegal. We doubt that the other states have named their statutes as uniquely.

Lessons from the Drug Testing World?

  • Pre-employment drug tests are okay under the ADA but you should still consider limiting decision makers’ access to the information. If the decision maker doesn’t know anything other than that the drug test was fine, he cannot be accused of discriminating against someone based on an alleged disability related to the drug test.
  • As long as there are drug tests there will be people who help employees beat them. Luckily we have legislatures who are trying to help us on the front.