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Deep Impact – 7th Circuit Holds that Disparate Impact Claims for Job Applicants Not Covered by ADEAYou might have seen all the buzz about the Seventh Circuit’s recent decision in Kleber v. CareFusion Corporation holding that job applicants were not covered by the Age Discrimination in Employment Act (ADEA). Does that mean you can refuse to hire someone because of their age? Not surprisingly, no, it does not mean that. Let’s take a minute to look at what happened.

What’s the Difference between Impact and Treatment Claims?

The difference between disparate treatment and disparate impact claims can be very important. Disparate treatment requires evidence of intentional acts taken to discriminate against an individual. Disparate impact claims cover facially neutral employment practices that have the effect of adversely impacting a protected class of individuals. For example, a plaintiff may prove a disparate treatment age claim with evidence that an employer made overt statements such as “We want to hire a younger person.” On the other hand, a plaintiff might prove a disparate impact claim by showing statistically that the application process tends to exclude females.

The Impact on Applicants

The difference between the two types of claims played out in the Seventh Circuit last week in an opinion looking at age discrimination claims under the ADEA. Dale Kleber, an attorney, applied for an in-house position at CareFusion seeking applicants with no more than seven years of experience. Kleber was 58 years old and had experience that exceeded that requirement. CareFusion did not hire Kleber, and instead went with a 29-year-old applicant who had fewer than seven years of experience. Kleber filed a claim against CareFusion under both disparate impact and disparate treatment claims. The district court dismissed his claim for disparate impact, and Kleber voluntarily dismissed his disparate treatment claim. Kleber then appealed.

The Seventh Circuit, like the court below, looked to the specific text in the ADEA statute discussing disparate impact claims. That part of the statute, unlike protections against disparate treatment, does not provide protections for applicants for employment. Instead, the only individuals who can file claims for disparate impact based on age are those already with the status of “employee.” The statute specifically protects applicants from intentional disparate treatment age discrimination, just not from disparate impact. In this case, Kleber apparently didn’t have direct evidence that he was refused employment due to his age. Since he instead was claiming that the seven-year experience limitation had the discriminatory impact of excluding older applicants, his claim failed under the ADEA.

Does This Mean We No Longer Have to Hire Old People?

Absolutely not. Intentionally discriminating against older (over 40) applicants is still illegal. However, if your company has a facially neutral requirement that may statistically exclude older applicants, such as CareFusion’s experience cap, the Seventh Circuit says that is not subject to a challenge using an adverse impact theory. However, employers should be wary of intentionally trying to fashion employment requirements that would exclude older applicants — that might push you into the disparate treatment realm.

When considering a position’s requirements and responsibilities, most people would assume that attendance is a given. Before any other job duties can be fulfilled, an employee must actually come to work. However, since individuals increasingly perform their job duties away from their employer (think technology, work-at-home policies, virtual positions, etc.), attendance has slowly but surely become a regularly contested issue in disability discrimination cases. In Lipp v. Cargill Meat Solutions Corporation, the Eighth Circuit reiterates how critical attendance is in evaluating whether an individual with a disability is a qualified individual under the Americans with Disabilities Act.

Background

Be There or Be Square – Eighth Circuit Affirms Summary Judgment in Favor of Employer Based on Attendance PolicySheena Lipp worked in Cargill’s meat and processing facility for almost twenty years. During that time, Lipp was diagnosed with an incurable lung disease, which made it difficult for her to walk, run, or otherwise exert herself physically. To ensure Lipp could maintain her position, Cargill accommodated all of her needs, including allowing time off for out-of-town appointments and during “flare ups” multiple times per year; ensuring Lipp only worked eight hours per day, five days per week, in an environment without dust or dirt; and providing Lipp with lifting assistance when she was required to move pallets.

In January 2014, Lipp began a nine-month, unplanned leave of absence to take care of her mother, who had her own significant health issues. This leave of absence violated Cargill’s attendance policy, which explicitly provided for progressive disciplinary action for unplanned absences. Unless they were on approved extended leave, employees were required to report their absences daily using Cargill’s automated call-in system. An employee would be charged one “occurrence” point for each unplanned absence and could accrue up to six occurrence points in a calendar year without disciplinary action. An employee’s seventh and eighth points would result in written warnings, and the ninth point would result in termination. Additionally, employees could be required to verify any absences from work. All verification had to be presented upon the first day the employee returned to work.

Rather than immediately terminating Lipp when she returned to work in October 2014, Cargill informed her that she had accumulated 194 occurrence points and placed her on “Last Chance” for attendance. Consequently, any call-ins, tardies, or early dismissals without authorization would result in termination. Two weeks after returning to work, Lipp called in to report she would be absent. When she returned to work without providing medical verification for her absence, Cargill terminated Lipp under the attendance policy.

Lipp filed an action alleging intentional discrimination and failure to accommodate under the Iowa Civil Rights Act and the ADA. Analyzing both statutes in the same manner, the district court ultimately granted summary to Cargill on all claims. Lipp appealed.

Eighth Circuit Affirms Summary Judgment Ruling

On appeal, the Eighth Circuit held that Lipp had no direct evidence of disability discrimination and could not establish a prima facie case of disability discrimination because she was not a qualified individual with a disability. Specifically, “Lipp ha[d] not demonstrated that at the time of her termination she could regularly and reliably attend work, an essential function of her employment.” In explaining that attendance was an essential function of Lipp’s job, the Eighth Circuit emphasized the language of Cargill’s written attendance policy, which stated that “punctuality and regular attendance [was] crucial for efficient plant operations, safety, and morale.” The Eighth Circuit also noted that all of Lipp’s listed activities in Cargill’s written job description required being present on Cargill’s premises.

When Lipp surprisingly argued that her 194 absences were not excessive, the Eighth Circuit ruled that her 194 unauthorized absences “far exceeded” what qualified for termination under Cargill’s policy. Even more importantly, the Court added that “persistent absences from work can be excessive even when the absences are with the employer’s permission.”

Regarding Lipp’s failure to accommodate claim, the Eighth Circuit held that the ADA did not require Cargill to provide an unlimited absentee policy or eliminate the essential functions of Lipp’s job to accommodate her. Lipp’s desired accommodation—additional absences without timely medical verification and almost immediately following 194 days of unplanned absences—was not one that would enable her to perform the essential function of regular and reliable attendance. On the contrary, it would relieve her of that function. The Eighth Circuit highlighted how generous Cargill had been despite Lipp’s excessive absenteeism and explained that a denial of summary judgment would punish Cargill for giving Lipp another chance instead of promptly terminating her before she returned to work in October.

Learning from Cargill

This case demonstrates the necessity of engaging in the interactive process, working diligently with disabled employees to maintain their employment, and communicating job requirements clearly and continuously. When confronting issues regarding absenteeism, keep these points in mind:

  • Make sure employees understand both your attendance policy and progressive discipline policy. Explain them verbally and give them a written copy. When absenteeism is adversely impacting the work environment, reiterate the policies (and maybe give the employee another copy).
  • Review the employee’s essential job functions, and be able to explain why attendance is essential for his or her position. Discuss the impact on other employees, customers and/or the organization as a whole. It is helpful if written job descriptions make clear that attendance is necessary.
  • Carefully assess when absences should be deemed authorized or unauthorized. Require medical verification as soon as possible after the employee returns to work from an absence.
  • Be flexible when you can be. Consider the employee’s disability and specific circumstances when determining what reasonable accommodations are feasible.

Moving Up the Naughty List: Level of Progressive Discipline Can Be Non-Discriminatory Reason, Says Eighth CircuitMany employers have progressive discipline policies. Are they always followed? Probably not. Should they be? Absolutely, and Lindeman v. St. Luke’s Hospital of Kansas City, a recent case in the Eighth Circuit, demonstrates that being able to point to the use of a progressive discipline policy can help dispose of an ADEA/ADA case.

The Facts

Todd Lindeman worked in St. Luke’s Hospital of Kansas City where the progressive discipline policy had varying penalties for each infraction: verbal warning for the first; written warning for the second; suspension or second written warning for the third; and termination for any subsequent infraction. After a change in his supervisors, Mr. Lindeman quickly moved through the discipline system, incurring three infractions in a four-month period. Finally, Mr. Lindeman violated the patient confidentiality policy and was terminated as a result of this fourth infraction.

Mr. Lindeman, who was over age 40 and suffers from obsessive compulsive disorder, attention deficit disorder, and bipolar disorder, filed suit under the ADA and the ADEA. St. Luke’s moved for summary judgment stating that the reason for his termination—disclosure of confidential information in violation of hospital policies—was a legitimate, nondiscriminatory reason. The burden then shifted back to Mr. Lindeman to show that the reason was pretextual. Mr. Lindeman claimed that two other employees also revealed the confidential information but were not terminated. The district court granted summary judgment, noting that Mr. Lindeman had not shown that the other two employees were at the last stage of the progressive disciplinary policy, as he was. Mr. Lindeman appealed, and the Eighth Circuit affirmed.

Moral of the Story: Follow Your Policy

This may seem like a minor case on a minor issue, but it again points to the gospel that we preach over and over: If you have a policy—enforce it and enforce it consistently. You may find a disciplinary system beneficial, as the hospital did here, to show a non-discriminatory reason for treating employees differently. But it only works if you use it properly.