Disability Discrimination

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Another Severance Agreement Bites the Dust: EEOC Continues Its Campaign against Provisions that Preclude Talking to the Government

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.

“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.