Absence Management & Reasonable Accommodation

By Dawn Reddy Solowey

Seyfarth Synopsis: A recent decision by a federal district court in Minnesota held that a religious accommodation request is not “protected activity” under Title VII.  In defending retaliation litigation, employers should consider whether there is a viable argument that a request for religious accommodation is not sufficient to establish protected activity as a matter of law.  Employers considering requests  for religious accommodation should, despite this decision, proceed carefully when considering the request.

In a recent blog post, we wrote about a federal case pending in Minnesota, where an employer had challenged guidance from the Equal Employment Opportunity Commission (EEOC) and taken the position that a religious accommodation request does not meet the test for protected activity under Title VII as a matter of law.  On July 6, 2017, the Court ruled, and agreed with the employer.

Case Background

The case is EEOC v. North Memorial Health Care, Civ. No. 0:15-cv-3675, in the U.S. District for the District of Minnesota.  The EEOC sued the employer hospital, claiming that the employer had retaliated against an applicant by withdrawing a conditional job offer because she asked for a scheduling accommodation for her religious beliefs as a Seventh Day Adventist.  On March 15, 2017, the employer moved for summary judgment.  The employer argued that the retaliation claim failed on grounds including that a religious accommodation request did not amount to protected activity as a matter of law.

What Did the Court Rule?

The Court sided with the employer, holding that a religious accommodation request is not protected activity.

The Court noted that as far as the Court and parties were aware, no court in the 8th Circuit had decided whether requesting a religious accommodation is a protected activity under Title VII.  The Court reasoned that it must interpret Title VII according to its plain language.  Title VII provides for two categories of protected activity: (1) opposing any practice that violates Title VII; and (2) making a charge, testifying, assisting, or participating in any manner in an investigation, proceeding, or hearing under Title VII.  Applying that plain language, the Court concluded that “requesting a religious accommodation is not a protected activity.”

The Court noted that the plaintiff had not “opposed” any practice, since there was no evidence she communicated to the employer that its denial of her accommodation request was unlawful.  “In other words, merely requesting a religious accommodation is not the same as opposing the allegedly unlawful denial of a religious accommodation,” the Court stated.

Similarly, plaintiff had not made any charge, testified, or assisted in any investigation, proceeding or hearing prior to the revocation of her offer.  Thus, “the court is unable to fit [the employee’s] accommodation request within the plain language of the statute.”

The Court declined to extend to Title VII the reasoning of an 8th Circuit case that had held that requesting a disability accommodation was protected activity under the Americans with Disabilities Act (ADA).  In addition to noting that the 8th Circuit ADA case had itself been questioned, the Court noted key differences between the language of ADA and that of Title VII.

The Court also held that the EEOC’s guidelines, which advise that requesting accommodation is protected activity under Title VII, are “unpersuasive.”

What Does This Case Signal for Employers Defending Retaliation Litigation?

In defending retaliation litigation, an employer should consider whether, in the relevant jurisdiction, there is a viable argument that a request for religious accommodation is not sufficient to establish protected activity as a matter of law.  The Court’s decision in this case cites to federal cases that have held both ways around the country. As always, it is important to keep in mind that the law governing retaliation claims under Title VII may differ from that under state and local laws.

What Does This Case Signal for Employers Managing Accommodation Requests?

A more conservative approach should guide an employers’ response to religious accommodation requests.  Employers responding to a religious accommodation request would be wise to assume — until there is settled, binding law to the contrary in the relevant jurisdiction — that a request for religious accommodation may be construed as protected activity under Title VII.  As a practical matter, this means that an adverse action that an employer takes against an employee, and that post-dates a religious accommodation request from the employee, may be challenged as retaliatory by the employee and/or the EEOC.

Best Practices for Responding to Religious Accommodation Requests

Best practices for employers to respond to religious accommodation requests, and minimize the risk of retaliation liability, include:

  • Set up a policy and process for managing religious accommodation requests in a manner that is consistent and compliant with the jurisdiction’s law.  Ensure that managers and HR are trained in the policy and process, and that employees know how to request a religious accommodation.
  • Review each religious accommodation request individually on a case-by-case basis. You can read our Roadmap for Responding to a Request for Religious Accommodation here. Given the complexities of this area of the law, it is wise to enlist the help of counsel who specializes in this area.
  • Ensure that any adverse actions taken against an employee, including those subsequent to a religious accommodation request, are based on legitimate, non-discriminatory and non-retaliatory reasons, and that the business reasons for those adverse actions are well-documented.

For more information on this topic, please contact the author, your Seyfarth Attorney, or any member of the Firm’s Absence Management and Accommodations Team.

By Dawn Reddy Solowey

Seyfarth Synopsis: In EEOC v. Consol Energy, Inc., the Fourth Circuit Court of Appeals upheld a judgment against an employer for failing to accommodate an employee’s religious belief that a biometric hand scanner would tag him with the “Mark of the Beast,” contrary to his evangelical Christian religious beliefs.  

On June 12, 2017, in EEOC v. Consol Energy, Inc., the Fourth Circuit Court of Appeals upheld a damages award of almost $600,000 against an employer for failing to accommodate an employee’s religious belief that a biometric hand scanner would tag him with the “Mark of the Beast,” contrary to his evangelical Christian religious beliefs.

The Facts

Beverly Butcher is a life-long evangelical Christian who worked for 37 years for Consol Energy’s mine in West Virginia. In 2012, Consol installed a biometric hand-scanner system at the mine to improve monitoring of employees’ attendance and work hours.  The system required an employee checking in or out to scan his right hand.  The shape of the employee’s hand was linked to the employee’s personnel number.

Butcher notified the employer that using the scanner would violate his religious beliefs, because he feared that when his hand was scanned, he would be “marked” with the “Mark of the Beast.” Butcher believes, based on the Book of Revelation, that the “Mark of the Beast” brands followers of the Antichrist, and that someone so marked can be manipulated by the Anti-Christ and will be condemned to everlasting punishment.  Butcher believed that use of the hand-scanning system, even if it left no physical or visible mark, would result in being so “marked.”

Consol asked Butcher to submit a letter from his pastor supporting his request for accommodation, which Butcher did, along with his own letter explaining his religious beliefs. Butcher explained that he objected to scanning either his left or right hand.  He offered to punch a time clock, as he had historically, or to check in with a supervisor in lieu of the biometric system.

In response, the company provided assurances that the scanner could neither detect or place any mark — including the Mark of the Beast — on a person’s body. The company also offered its own Biblical interpretation, explaining that the Mark of the Beast is associated with the right hand, and thus that scanning the left hand should pose no religious conflict.

At the same time, the employer granted accommodations to two employees with hand injuries, allowing them to forego the biometric system and instead enter their personnel numbers on a keypad attached to the system.  In an email authorizing this medical accommodation, a company representative wrote, “Let’s make our religious objector use his left hand.”

Faced with the choice of submitting his left hand to the scanner or being disciplined, Butcher rendered his retirement.

The Verdict

The EEOC brought suit alleging that the employer unlawfully failed to accommodate the employee’s religious belief and constructively discharged him in violation of Title VII. A jury returned a verdict in favor of the EEOC, finding that the employee had a sincere religious belief in conflict with a work requirement, that he had informed the employer of the conflict, and that the employer had constructively discharged the employee for refusal to comply with the work rule.  The jury awarded $150,000 in emotional distress damages, to which the District Court added over $426,000 in front and back pay and lost benefits.  The District Court held that punitive damages were not available as a matter of law.

The Appellate Holding

The Fourth Circuit affirmed the judgment against the company. The Court rejected the company’s central argument that there was in fact no conflict between the employee’s religious beliefs and the hand scanner requirement, because the scanner in fact would leave no physical mark.

The Court emphasized that there was ample evidence from which the jury could conclude that the employee sincerely believed that any participation in the scanner system, with or without a physical mark, was a show of allegiance to the Antichrist and therefore violated his religious convictions.  “That is all that is required to establish the requisite conflict between Butcher’s religious beliefs and Consol’s insistence that he use its scanner system,” the Court held.

In the Court’s view, the problem with the employer’s approach to the request for accommodation was its belief that the employee was mistaken in his religious beliefs.  The employer had concluded that there was no religious conflict because the Mark of the Beast would require a physical mark, and only on the right hand.  The employer also noted that the pastor, while affirming that Butcher was religiously devout, did not share the concern about the biometric scanner.  “But all of this, of course, is beside the point,” the Court held, “It is not Consol’s place as an employer, nor ours as a court, to question the correctness or even the plausibility of Butcher’s religious understandings.”

Finally, the Court noted that this was not a case where the employer could show that an accommodation was not feasible or would impose undue hardship. To the contrary, the employer had made an accommodation to two other employees for non-religious reasons, and had conceded that that accommodation posed no additional burdens or costs on the company.

The Court also upheld the constructive discharge judgment, holding that there was sufficient evidence that the employer made conditions intolerable by refusing to accommodate the religious objection, such that a reasonable person in Butcher’s position would have retired.

The Court did uphold the lower court’s ruling that this was not a punitive damages case, reasoning that the EEOC had not proven that the employer “subjectively appreciated” that its accommodation efforts were inadequate.

Takeaways for Employers

This opinion suggests several important takeaways for employers.

First, in considering an employee’s stated religious belief, the employer should generally assume the sincerity of the belief. Faced with a request based on an unfamiliar religion or religious practice, some employers may be tempted to take to Google, or to conduct its own inquiries, to try to figure out if a religion is a “real” religion, or whether a particular practice is “really” required by a given religion.  But the law protects all religious practices, not just those of mainstream religions.  Religious beliefs are protected even if they are newly practiced by the employee, or uncommon, or not part of any formal religious church or sect, or practiced by a small number of people.  The fact that an employee’s personal religious practice may differ from that of others in the same religion, or even his own clergy leader, does not mean the employee’s personal religious belief is not sincere.  Questioning the sincerity of the employee’s belief may also backfire by alienating the employee, or subjecting the employer to a claim that the employer had animus toward the employee based on religion.  In the rare case where the employer has specific evidence of insincerity, the employer should enlist assistance of counsel.

Second, while the opinion did not directly address the appropriateness of the employer’s request for a pastor letter, an employer should generally avoid asking for such documentation from a third party. As the Court explained, whether or not the pastor agreed with the employee’s religious practice or objection was not dispositive of the sincerity of the employee’s belief.  Further, the employee need not belong to a formal religion and thus may not even have a clergy member from whom to request a letter.  Absent extenuating circumstances, the fact that the employee himself states a sincere religious belief is sufficient and third-party corroboration is not required.

Third, in evaluating whether a requested accommodation is reasonable or would impose an undue hardship, the employer must be mindful of consistency. As the Fourth Circuit held, the fact that the employer was able to make a relatively simple accommodation for other employees for non-religious reasons without hardship in turn showed that allowing that same accommodation to Butcher would impose no hardship.  Thus, the employer faced with an accommodation request should carefully evaluate its exceptions to the work rule more generally.  What other exceptions are being made to the work rule for non-religious reasons?  What exceptions are being made for other employees’ religious observance?

The case demonstrates the sensitivity required in handling religious accommodation requests and the legal exposure that such requests can present.  When in doubt, employers should seek assistance of counsel with expertise in this specialized area of employment law, and knowledge of the applicable federal, state and local laws that may apply.

For more information on this topic, please contact the author, your Seyfarth Attorney, or any member of the Firm’s Absence Management and Accommodations Team.

 

 

By Erin Dougherty FoleyAdam R. Young, and Craig B. Simonsen

Seyfarth Synopsis: The Minnesota Supreme Court found that a job applicant need only prove that the employee’s interest in a 12-week maternity leave was the “substantial causative factor” that “actually motivated” the employer’s decision to rescind her job offer and did not need to show anger or hostility about pregnancy under the Minnesota Human Rights Act.

In a recent Minnesota Supreme Court case, LaPoint v Family Orthodontics, P.A., A15-0396 (Apr. 5, 2017), a plaintiff challenged an orthodontist’s decision to rescind her job offer after learning she was pregnant and would take maternity leave.  The plaintiff argued that she had been discriminated against on the basis of her pregnancy because her pregnancy played a role in the employer’s  decision to rescind her job offer.  The district court ruled for the employer at a bench trial!

In setting the standard of proof, the Court relied on Goins v. West Grp., 635 N.W.2d 717 (Minn. 2001) and Anderson v. Hunter, Keith, Marshall & Co., 417 N.W.2d 619 (Minn. 1988). Goins required that a plaintiff prove that the pregnancy “actually motivated” the employer’s decision not to hire. Anderson required that plaintiff demonstrate that the pregnancy was “a substantial causative factor” in the employment decision.

The Court rejected the notion that the pregnancy must be a “but-for” cause of the employer’s conduct. As such, the plaintiff need not prove that the employer would have hired her absent unlawful discrimination in order to establish liability, and “proof by the employer that it would have made the same decision absent a discriminatory motive is no defense.”

According to the Court, the employer stated, on three separate occasions, that the plaintiff’s failure to disclose her pregnancy (1) was one of the “two things [that] really kept [her] from sleeping well”; (2) was one of her “concerns”; and (3) left her “confused,” one of “two concerns” that together constituted “[t]he reason why [she] withdrew the job offer.” Further, the plaintiff argued that “rescinding a job offer because a person fails to disclose a pregnancy is illegitimate discrimination on the basis of sex.” More so, the district court found that the defendant “questioned why plaintiff did not bring [her pregnancy] up initially so they could discuss leave of absence issues at that time,” but that “[h]er concern was the [effect of the] length of the leave sought by plaintiff on the practice.”

The Court recited that the defendant “did not demonstrate any animus toward plaintiff because of her pregnancy. Her overriding concern was the disruption a twelve week maternity leave would have on her practice and the impact upon her employees should she deviate from the Clinic’s longstanding policy of six weeks.”

Finally, the Court concluded that it was unable to determine whether the district court, if it had applied the correct law regarding animus, would have made the same findings of fact. Accordingly, the Supreme Court remanded the case.

For more information on this or any related topic please contact the authors, your Seyfarth attorney, or any member of the Absence Management & Accommodations Team or the Workplace Policies and Handbooks Team.

By John P. Phillips

Seyfarth Synopsis: For several years now, employers and the EEOC have been at odds over whether employers must automatically reassign a disabled employee to an open position as a reasonable accommodation, or whether employers can maintain a policy of hiring the most-qualified individual for the position, by requiring a disabled employee to compete for open positions against other interested employees. Fortunately, in two recent decisions, the Eleventh Circuit and a Texas district court have helped clarify that an employer’s policy of hiring the most-qualified individual for a job does not violate the ADA.

Many employers post all open positions at their facilities and allow all qualified employees to bid on any job they desire. This allows the company to hire the right employee into the right position, and allows everyone to know that promotions and job opportunities are decided by merit.  These bidding policies help the employer promote open and fair policies, and they promote efficiency, performance, and trust in the workforce.

However, in recent years, the EEOC has challenged these policies, alleging that they discriminate against disabled employees. Accordingly to the EEOC, employers must automatically place even a minimally-qualified disabled employee into an open position as a reasonable accommodation, even if the employer would otherwise open the position to bidding by all employees and even if there are other better-qualified candidates who are interested in the job.

The EEOC’s position has naturally caused significant concern for many employers with open bidding policies. Fortunately, two recent decisions reinforce the right of employers to hire the best candidate for the job.

In December, the Eleventh Circuit Court of Appeals held that “the ADA only requires an employer to allow a disabled person to compete equally with the rest of the world for a vacant position” and does not require the employer to automatically reassign an employee without competition.

In that case, EEOC v. St. Joseph’s Hospital, Inc., the plaintiff was employed as a clinical nurse in the hospital’s psychiatric ward.  The plaintiff developed spinal stenosis, for which she required the use of a cane.  St. Joseph’s had significant safety concerns related to the presence of a cane in the psychiatric ward, and eventually determined that it was too dangerous to allow a cane in the ward.  The hospital gave the plaintiff 30 days to bid on another position at the hospital.  Although there were over 700 positions available, the plaintiff waited three weeks to apply for any jobs at all, and ultimately only applied for three jobs within the 30-day time period.  She was not hired for any of the positions and eventually was terminated.

Following a jury trial, the EEOC argued on appeal that the ADA requires reassignment without competing against non-disabled employees. The Eleventh Circuit ruled against the EEOC.  The Court outlined a multi-part test to determine whether the requested accommodation—automatic reassignment to an open position without competing against non-disabled employees—was reasonable:

  1. The plaintiff must show that his or her requested accommodation is reasonable on its face, i.e., “ordinarily or in the run of cases.”
  2. If the plaintiff does so, the burden shifts to the employer to show that granting the accommodation would impose an undue hardship under the facts of the particular case.
  3. If the plaintiff does not carry his or her burden at step one, the plaintiff can still prevail, provided he or she can show that there are special circumstances in that particular case making the accommodation reasonable.

The Eleventh Circuit affirmatively found that “[r]equiring reassignment in violation of an employer’s best-qualified hiring or transfer policy is not reasonable ‘in the run of cases.’” Consequently, the Court found that where the employer has a merits-based selection policy, the ADA only requires the employer to allow a disabled person to compete equally for a vacant position.  And in that case, given that the plaintiff had not attempted to show any special circumstances that warranted requiring the hospital to ignore its best-qualified hiring policy, the Court found that the hospital had not violated the ADA by requiring the plaintiff to bid for an open position.

In March, in EEOC v. Methodist Hospitals of Dallas, the Northern District of Texas was faced with an almost identical fact pattern.  There, the Court noted that the Fifth Circuit had not directly addressed the issue, but found that “the weight of Fifth Circuit authority holds that the ADA does not entitle a disabled employee to preferential treatment.”  In making its holding, the Court adopted the reasoning in the Eleventh Circuit’s St. Joseph’s Hospital decision in full, and held that Methodist’s policy of requiring disabled employees to compete with non-disabled applicants in order to hire the best candidate does not violate the ADA.

Taken together, these two recent decisions should provide comfort to employers with open bidding policies. However, employers should be aware that despite these set-backs, the EEOC is not likely to agree that open bidding policies comport with the ADA.  The federal courts have not yet agreed uniformly on this issue, and the EEOC consistently cites to cases out of the Seventh Circuit, the Tenth Circuit, and the D.C. Circuit to support its position.  Although these cases have been distinguished by the Eleventh Circuit and the Northern District of Texas, employers in those districts should be especially alert when dealing with reassignment requests from disabled employees.

In addition, whenever presented with a request for accommodation, employers should not jump to any conclusions or make any rash decisions. It is always a best practice to refer all disability claims to HR, go through the interactive process, stay in communication with the disabled employee, and, above all, document, document, document.

Fortunately, these decisions strengthen employers’ ability to maintain merits-based selection policies, and will help companies continue to hire the right employee into the right position.

For more information on this or any related topic, please contact the authors, your Seyfarth attorney, or any member of the Absence Management and Accommodations Team, the ADA Title III Team, or the Workplace Counseling & Solutions Team.

 

By Dawn Reddy Solowey

Seyfarth Synopsis: In a recent federal case the employer has challenged the EEOC Enforcement Guidance on Retaliation taking the position that a religious accommodation request does not meet the test for protected activity under Title VII. In defending retaliation litigation, employers should consider whether there is a viable argument that a request for religious accommodation is not sufficient to establish protected activity as a matter of law –and, in any event — to proceed carefully when considering the request.

The Equal Employment Opportunity Commission (EEOC) has maintained in its Enforcement Guidance on Retaliation that “persons requesting religious accommodation under Title VII are protected against retaliation for making such requests.” In its Questions and Answers: Religious Discrimination in the Workplace, the EEOC “has taken the position that requesting religious accommodation is protected activity.”

In a federal case pending in Minnesota, one employer has challenged this guidance by the EEOC, and taken the position that a religious accommodation request does not meet the test for protected activity under Title VII.

Case Background

The case is EEOC v. North Memorial Health Care, Civ. No. 0:15-cv-3675, in the U.S. District for the District of Minnesota.  In that case, the EEOC sued the employer hospital claiming that the employer had retaliated against an applicant by withdrawing a conditional job offer because she asked for a scheduling accommodation for her religious beliefs.  On March 15, 2017, the employer moved for summary judgment.  The employer argued that the retaliation claim fails on grounds including that a religious accommodation request did not amount to protected activity as a matter of law.

The Employer’s Argument

The employer argued that the EEOC’s informal guidance is inconsistent with Title VII’s plain language, and therefore was not entitled to any deference.

Title VII provides for two categories of protected activity: (1) opposing any practice that violates Title VII; and (2) making a charge, testifying, assisting, or participating in any manner in an investigation, proceeding, or hearing under Title VII.  In its motion for summary judgment, the employer argued that a religious accommodation request falls in neither category.

The employer argued that requesting a religious accommodation is not opposing an unlawful practice, and neither is it making a charge or otherwise assisting in a Title VII investigation. The employer maintained that the EEOC has conceded as much in its retaliation guidance, by stating that a person requesting accommodation “might not literally ‘oppose’ discrimination or ‘participate’ in a complaint process.”

The employer’s motion cited two Circuit Court of Appeals opinions that have assumed, without deciding, that a religious accommodation request can amount to protected activity. However, the employer maintained that no federal appellate authority has directly and specifically analyzed the issue.  The employer cited two federal district courts, the District of Maryland and District of Columbia, that have held that a request for religious accommodation, without more, does not amount to protected activity.

Anticipating a likely argument by the EEOC, the employer sought to distinguish a request for religious accommodation from a request for an ADA disability accommodation, which has been held by some courts to amount to protected activity. The employer pointed to differences in the language of Title VII and the ADA.

Employment lawyers will be watching for the EEOC’s Opposition to the Motion for Summary Judgment, and ultimately the decision of the District Court to see how the employer’s theory fares.

What Does This Case Signal for Employers Defending Retaliation Litigation?

In defending retaliation litigation, an employer should consider whether, in the relevant jurisdiction, there is a viable argument that a request for religious accommodation is not sufficient to establish protected activity as a matter of law.   As always, it is important to keep in mind that the law governing retaliation claims under Title VII may differ from that under state and local laws.

What Does This Case Signal for Employers Managing Accommodation Requests?

A more conservative approach should guide an employers’ response to religious accommodation requests. Employers responding to a religious accommodation request would be wise to assume — until there is settled, binding law to the contrary — that a request for religious accommodation may be construed as protected activity under Title VII.  As a practical matter, this means that an adverse action that an employer takes against an employee, and that post-dates a religious accommodation request from the employee, may be challenged as retaliatory by the employee and/or the EEOC.

Best Practices for Responding to Religious Accommodation Requests

Best practices for employers to respond to religious accommodation requests, and minimize the risk of retaliation liability, include:

  • Set up a policy and process for managing religious accommodation requests in a manner that is consistent and compliant with the jurisdiction’s law. Ensure that managers and HR are trained in the policy and process, and that employees know how to request a religious accommodation.
  • Review each religious accommodation request individually on a case-by-case basis. You can read our Roadmap for Responding to a Request for Religious Accommodation here. Given the complexities of this area of the law, it is wise to enlist the help of counsel who specializes in this area.
  • Ensure that any adverse actions taken against an employee, including those subsequent to a religious accommodation request, are based on legitimate, non-discriminatory and non-retaliatory reasons, and that the business reasons for those adverse actions are well-documented .

For more information on this or any related topic please contact the authors, your Seyfarth attorney, or any member of the Absence Management and Accommodations Team.

By Paul Galligan and Samuel Sverdlov

iStock_000042612884_MediumSeyfarth Synopsis: The District Court of the Southern District of New York granted an employer’s motion for summary judgment on an employee’s failure to accommodate claims, holding that the plaintiff did not hold a bona fide religious belief, and failed to provide notice to the employer regarding his need for religious accommodation.

Requests for religious accommodations are challenging for employers because employers have limited means to determine the veracity of an employee’s religious obligations, yet risk liability for discrimination and retaliation under federal, state, and local laws if they outright refuse to accommodate an employee’s request for religious accommodation. In fact, more often than not, employers take an employee’s purported religious obligations at face value rather than asking the employee to justify their obligations.  In Bob v. Madison Security Group, Inc., the District Court for the Southern District of New York granted an employer’s motion for summary judgment on a pro se Plaintiff’s claims of failure to accommodate, retaliation, and unlawful termination under Title VII of the Civil Rights Act of 1964 (Title VII), New York State Human Rights Law (NYSHRL), and the New York City Human Rights Law (NYCHRL).

In Bob, the plaintiff was a Muslim security guard employed by Madison Security Group (Madison).  The plaintiff alleged that Madison refused to accommodate his religious beliefs – that he could not work on Fridays to observe the Sabbath.  The plaintiff alleged that despite his religious needs, the employer continued to schedule the plaintiff for Friday shifts.  When the plaintiff failed to report to any shifts that included hours on a Friday, his schedule was reduced and ultimately eliminated (though the employer contended that they have never formally terminated the plaintiff’s employment).

Madison denied any wrongful conduct, and moved for summary judgment on all of the plaintiff’s claims. With regard to the plaintiff’s failure to accommodate claim, Madison challenged whether the plaintiff actually held a bona fide religious belief preventing him from working on Fridays, and averred that in any case, they did not have notice of the plaintiff’s need for religious accommodation.

The court granted the employer’s motion. The court was convinced that the plaintiff did not hold a bona fide religious belief, given that Madison produced records from the plaintiff’s prior employer showing that the plaintiff regularly worked 8-hour days on Fridays, and the plaintiff himself testified during deposition that he could work on Fridays, but prefers not to.

The court was also persuaded that the plaintiff never put Madison on notice that he required a religious accommodation. The plaintiff alleged that he told his interviewer that he could not work on Fridays when he applied for the job, but Madison put forth evidence that they never employed the interviewer identified by the plaintiff.  Further, although the plaintiff often wrote to Madison to complain about working conditions, he never complained about being scheduled to work on Fridays.

Outlook

Although the employer prevailed in this case, employers generally should be cautious and risk- averse when dealing with employee requests for religious accommodation. Employers must remember that they have an obligation to reasonably accommodate religious requests absent an undue hardship, which can be difficult to establish.  Accordingly, we advise that employers engage in, and carefully document, the interactive process with employees requesting such an accommodation.

For more information on this topic, please contact the authors, your Seyfarth Attorney, or any member of the Firm’s Absence Management and Accommodations Team.

By Bridget M. Maricich

Seyfarth Synopsis: Though only an informal guidance, this resource document reminds employers of the EEOC’s expansive interpretation of what constitutes a reasonable workplace accommodation. Employers should continue to meaningfully engage in the interactive process with any employees seeking workplace accommodations for a physical or mental disability and assiduously document those efforts.

Citing an increase in charges of discrimination based on mental health conditions during fiscal year 2016, the EEOC released a “resource document” on December 12, 2016, explaining “workplace rights” for individuals with mental health conditions under the Americans with Disabilities Act (ADA).  The resource document – Depression, PTSD, & Other Mental Health Conditions in the Workplace: Your Legal Rights – is presented in a question and answer format intended for applicants and employees.  The informal guidance is a useful primer for understanding the EEOC’s expanding stance on employer obligations to provide reasonable workplace accommodations.

At first blush, the resource document is nothing new. In question 1, the EEOC reiterates that employers are prohibited from discriminating against applicants and employees because of a mental health condition.  The document also notes that employers do not have to hire or retain individuals who are unable to perform the essential functions of a job or who pose a direct threat. However, the Agency strongly caveats that employers must “rely on objective evidence,” “not myths or stereotypes,” that would indicate that an individual is unable to perform a job or poses a significant safety risk, even with a reasonable accommodation, before taking an adverse action against the individual.

Question 2 addresses the right of an applicant or employee to keep a mental health condition private. The EEOC notes that under the ADA, employers are only permitted to ask questions about the medical or health information of an applicant or employee when (1) an individual requests a hiring process or workplace accommodation; (2) when the employer requests medical information or testing post-offer, but pre-employment, provided everyone entering the same job category is subject to the same requirement; (3) when the employer is engaging in affirmative action for persons with disabilities; and (4) when there is “objective evidence” that the employee may not be able to do his or her job or poses a safety risk in the workplace because of his or her condition.

Questions 3 through 6 respond to hypothetical questions about when a reasonable accommodation may be required, how to request one, and the employer’s obligation to respond, even when no accommodation exists that permits an employee to fulfill the essential functions of a position. The EEOC’s responses here reveal the breadth of the Agency’s interpretation of the ever-vexing question of what constitutes a reasonable accommodation.  In the first instance, in response to Question 3, the EEOC, without using the word “disability,” states that an individual is entitled to a reasonable accommodation for “any mental health condition that would, if left untreated, ‘substantially limit’ your ability to concentrate, interact with others, communicate, eat, sleep, care for yourself, regulate your thoughts or emotions, or do any other ‘major life activity.’”   The EEOC notes that the mental health condition need not be either permanent or severe to constitute “substantially limiting” and that conditions like major depression, post-traumatic stress disorder (PTSD), bipolar disorder, schizophrenia, and obsessive compulsive disorder (OCD) should “easily qualify.”

The answer to Question 3 also provides broad, if imprecise, definition of reasonable accommodation, defining it as simply “some type of change in way things are normally done at work” and providing standard examples such as altered break and work schedules, quiet office space, changes in supervisory methods, along with some more controversial recommendations, such as choice of specific shift assignments and permission to work from home. And in Question 6, the Agency re-states the EEOC’s vague standard that an employee who is unable to perform the essential functions of his or her position, even with an accommodation, may be entitled to an indeterminate amount leave – independent of FMLA leave – that “will help you get to a point whether you can perform those functions.” The document also notes that failing leave, if an employee is “permanently” unable to perform his or her job, he or she may be entitled to job reassignment.  Importantly, the Agency does not caveat here that any request for reasonable accommodation must be fundamentally intended to facilitate the employee’s performance the essential functions of the job. Rather, the document implies that by virtue of having a mental health condition an individual or employee may be entitled to ask for some “change in the way things are normally done at work.”

Questions 4 and 5 fortunately return to well-worn ADA principles. The EEOC directs employees who need a reasonable accommodation to ask for one and encourages employees to do so before workplace difficulties arise because “an employer does not have to excuse poor job performance, even if it was caused by a medical condition or the side effects of medication.” The EEOC also notes that  employers are entitled to ask for health care provider documentation verifying the employee has a mental health condition and requires a workplace accommodation because of it.  The document provides the link to what it terms the “companion document” –The Mental Health Provider’s Role in a Client’s Request for a Reasonable Accommodation at Work .  The EEOC suggests that individuals provide the document to their health care providers when seeking medical documentation in relation to a request for a reasonable accommodation.  The document also reminds that if a reasonable accommodation, justified by relevant medical provider documentation, would help an employee do his or her job, the employer must implement it barring “significant difficulty or expense.”

Though only informal guidance, this resource document reminds employers of the EEOC’s expansive interpretation of what constitutes a reasonable workplace accommodation.   What does that mean for employers? Employers should continue to meaningfully engage in the interactive process with any employees seeking workplace accommodations for a physical or mental disability and assiduously document those efforts.  In light of this guidance, however, employers should strongly consider seeking trusted legal counsel before denying a requested accommodation or taking adverse action against an employee who has or is seeking an accommodation.

For more information on this topic, please contact the authors, your Seyfarth Attorney, or any member of the Firm’s Absence Management and Accommodations Team.

By David J. Rowland

Seyfarth Synopsis: A divided panel of the Eighth Circuit recently decided that an employer may be required to assume or infer from the circumstances that an employee is seeking a reasonable accommodation – even when no affirmative request is made.

The courts and the Equal Employment Opportunity Commission (EEOC) have made clear for decades that an employer’s obligation to engage in the interactive process under the Americans with Disabilities Act of 1990 (ADA) is not triggered until the employee seeking reasonable accommodation actually requests assistance.

To quote a recent case decided by the EEOC: “generally an individual with a disability must request a reasonable accommodation by letting the [employer] know the individual needs an adjustment or change at work for a reason related to a medical condition” Adina P. v. Brennan, 2016 EEOPUB LEXIS 336 (EEOC 2016).  To be sure, no “magic words” have been required and no court would expect each employee to ask for a “reasonable accommodation” by those words, but, until now, courts have uniformly required that an employee at least indicate that she wants help or assistance because of a disability.

Earlier this month, though, a divided panel of the Eight Circuit Court of Appeals, lowered the bar substantially and held that a jury should determine whether an employee requested a reasonable accommodation by simply notifying her supervisor that she could not obtain a required CPR certification until after she completed physical therapy. See Kowitz v. Trinity Health, et al., Case No. 15-1584 (8th Cir. October 17, 2016). The employee never asked to be given extra time to complete the certification, nor to be transferred to another position that did not require CPR certification.  Still, the majority held that a reasonable jury could find that the employer “understood” the employee’s communications to be a request for accommodation. Id. at p. 9, n. 1.

The dissenting judge reiterated the point that virtually every employer would assume to be true: “an employee who wants additional assistance cannot ‘expect the employer to read her mind and know she secretly wanted a particular accommodation and then sue the employer for not providing it” Id. at p.12 (citation omitted).

Blurring a Bright Line

Thus, what was a bright line rule has been blurred, but, as usual, the particular facts of the case may have driven the majority to this hand-scratcher of a result.

The plaintiff was a respiratory therapist with cervical spinal stenosis, She had undergone surgery, and had returned to work on October 19, 2010 with the restriction of a reduced schedule until November 29, 2010 (yes, the dates may be important).   In the meantime, on November 19, 2010, her supervisor posted a memo directing all of the respiratory therapy department’s employees to provide updated copies of their basic life support (BSR) certifications by November 26 and added :”If you are not up to date you will need to submit a letter indicating why you are not up to date and the date you are scheduled to take the BSR class”.

On November 30, having already passed the written component of the BSR test, the employee wrote a letter to her supervisor indicating that she “will not to be able to do the physical part of the BSR” until cleared by her doctor, with whom she had an appointment on December 2 and also thanked the supervisor “for understanding [her] condition”. On December 2, the employee’s doctor opined that she could not take the physical portion of the BSR test until she had completed at least four additional months of therapy.  The employee left a voicemail with the supervisor that evening.  The very next day, December 3, she was terminated for failing to provide the certification.

This sequence of events (and perhaps the seemingly harsh and abrupt decision to terminate) lead the majority to conclude that the employee’s written notification of the need for clearance and her follow-up communication about needing four months of therapy “could readily have been understood to constitute a request for reasonable accommodation”. Id. at 9.

Bad facts often make for bad law, and many employers in the same circumstances would have taken the logical step of engaging the employee in an interactive dialogue. But, as the dissent rightly noted,  the idea that there can be such a thing as an implied or understood  request for accommodation generates “regrettable uncertainty” by “eliminating the requirement of a clear request for accommodation”.  Id. at 13.

Employers take heed: a request for reasonable accommodation may be implied by the circumstances in some instances.  As a result, it is more dangerous than ever to ignore the warning signs that an employee is seeking help.

For more information on this topic, please contact the author, your Seyfarth Attorney or a member of the Firm’s Absence Management and Accommodations Team.

 

By Johanna T. Wise and Ryan L. Behndleman

Seyfarth Synopsis: Do employers have to let employees sleep on the job as a reasonable accommodation for a disability? While far from being decided, a recent federal case in the Southern District of New York addresses the issue.

Let’s face it, we all get tired from time to time. While on the clock, however, sleeping at work is a practice that employers invariably frown upon. Earl Beaton learned this the hard way when he was fired from his job with New York City’s Metro Transit Authority (MTA) after briefly nodding off during his shift. But Mr. Beaton’s situation is not as clear as it seems because he fell asleep due to a side effect caused by his necessary prescription medication. Mr. Beaton did not intend to take his termination lying down, so he filed suit against his former employer for discriminating against his disability.

Background

Mr. Earl Beaton was diagnosed with schizophrenia and depressive disorders in 1985. Without medication, Beaton is prone to psychotic episodes and delusions. To counteract these symptoms, Beaton was prescribed an anti-psychotic medication called Fluphenazine, which can cause drowsiness.

Beaton disclosed his illness to his employer in 1995, and was able to work for many years without incident while taking the medication as prescribed. In 2000, Beaton was even promoted to a position as a station agent. Then, during the overnight shift on December 23, 2013, Beaton encountered a problem. Around 1 a.m. Beaton experienced severe schizophrenic symptoms and took a pill to counteract those symptoms. Three hours later, the symptoms had not subsided, so he took another pill. The high dosage made Beaton extremely drowsy, and it appeared that he briefly nodded off. It was at this moment that Beaton’s supervisor approached and caught him sleeping on the job.

After disciplinary hearings, although Beaton denied that he was actually sleeping, MTA terminated his employment. He then filed a charge with the EEOC and soon thereafter filed suit in the Southern District of New York.

MTA’s Motion To Dismiss

Upon service of the complaint, MTA filed a motion to dismiss for failure to state a claim upon which relief can be granted. In this stage of a case, the court generally relies on the allegations made by the plaintiff to decide whether there are enough facts to sustain plausible claims. Using this standard, the court dismissed Beaton’s failure to accommodate claim but allowed the discrimination and retaliation claims to survive.

Many employers may learn of this decision and think, “What?! I can’t terminate an employee for sleeping on the job?” But rest assured, this case is far from decided. When a court decides a motion to dismiss, it looks for one key issue: Does the plaintiff have plausible claims based on what the plaintiff alleged in his complaint? Further, the court must view these allegations in the light most favorable to the plaintiff.

In his judicial opinion, Judge Edgardo Ramos assessed Beaton’s discrimination claim by using a well-established four-part test: 1) Was the plaintiff a member of a protected class? 2) Was the plaintiff qualified for the position? 3) Did the plaintiff suffer adverse employment action? and 4) Is there some minimal evidence to support an inference of discrimination? As you can see, the bar is extremely low for what will pass muster under this test. While MTA argued that Beaton’s need to sleep made him unqualified for his position, the court noted that his 13 years of satisfactory performance established that he was qualified to perform the essential functions of his job.

As for the retaliation claim, to survive a motion to dismiss the plaintiff only needs to show that he engaged in protected activity (i.e. filing a grievance with a labor union or filing an EEOC claim) that the employer was aware of, and that it caused the employer to take adverse employment action against him. Judge Ramos noted that this claim survived because there is the possibility that the termination decision occurred after Beaton engaged in protected activity, and that was enough to raise a plausible claim.

So What Happens Next?

This case is far from over. The surviving claims will enter the discovery phase to allow each side to collect evidence to support their claims or defenses. The case could be decided on summary judgment or settled at any stage of the litigation process.

It is important to note that in his opinion regarding the motion to dismiss, Judge Ramos did not decide whether employers need to allow their employees to sleep on the job as a reasonable accommodation. So what should employers do? Just as before, employers should engage in an interactive process if an employee or applicant with a disability requests an accommodation to determine if the employee can be reasonably accommodated without causing an undue hardship. Employers should also carefully review and consider consulting with an attorney before taking adverse employment action where the underlying behavior at issue is tied to a disability. But at this point, there is no need to lose any sleep over this case.

For more information on this topic, please contact the authors, your Seyfarth Attorney or a member of the Firm’s Absence Management and Accommodations Team.

 

By Sam Schwartz-Fenwick and Kylie Byron

Seyfarth Synopsis: In State of Texas v. United States, a District Court issued a nationwide injunction to enjoin the Department of Education and Department of Justice from enforcing their guidelines on accommodations for transgender students.  The injunction does not prevent states from permitting accommodations.

In a setback for the Obama Administration, and supporters of transgender inclusion, a U.S. District Court for the Northern District of Texas issued a preliminary injunction as to enforcement of the federal government’s Title IX guidance on transgender bathroom policies in schools. Under the departmental guidance, schools to comply with Title IX’s prohibition on sex-discrimination were required to permit transgender students to use bathrooms consistent with their gender identity, regardless of their sex assigned at birth.

The Court found the departments prematurely issued the guidance, as before issuance they did not comply with the notice and comment period required by the APA for “final agency action.” The Court found these steps necessary as it determined the guidance necessitates added regulatory compliance such as reconstruction of existing restrooms. The Court further disagreed with the administration’s position that “sex” in Title IX extends to gender identity, finding that “sex” under Title IX is not “fungible” and does not encompass the claims of transgender persons.  The Court declined to follow the Fourth Circuit’s affirmation of the departmental guidance in G.G. v. Gloucester County School Board, holding the Fourth Circuit wrongly found the definition of “sex” capable of encompassing transgender claims, and further noting the Supreme Court indicated its intent to overturn G.G. by issuing a stay.

The Court rejected the notion that non-inclusive bathroom policies gravely endanger transgender students. It instead found that in light of the Supreme Court stay in G.G., no irreparable harm would arise to students if federal guidance were enjoined.

The injunction is nationwide in scope, though it does not apply to states or cities that have already passed laws that require transgender-inclusive restrooms outside of the context of Title IX. In addition, no portion of the injunction holds that transgender-inclusive restrooms violate Title IX or are themselves illegal. In short, even if the district court decision is upheld, a school may still lawfully choose to implement an inclusive restroom policy; however, the federal government may not require a school to do so.

That said there is an active question as to whether the district court’s ruling will apply in the Fourth Circuit, given that the Court of Appeals ruled in in G.G. that Auer deference, and federal guidance on transgender inclusion, are appropriate.  It is also of course uncertain whether the injunction itself will be upheld on appeal.  If the Fifth Circuit affirms the injunction, there will be a circuit split with the Fourth Circuit thus making review by Supreme Court likely.  The Supreme Court has not yet decided whether it will review the Fourth Circuit’s injunction in G.G., and if the Supreme Court does not do so, or does not overturn G.G, the Fourth Circuit will be required to follow federal guidance on Title IX.

The injunction in State of Texas predicts a period of significant uncertainty in the law regarding gender identity protection under Titles VII and IX , beginning with contradictory rulings in various district courts, potential circuit splits, and culminating with the need for legislative or Supreme Court action.  Schools and employers should consult with counsel to evaluate their internal policies, practices and procedures with an eye towards potential discrimination claims.

If you have questions regarding this topic, please contact the authors or your Seyfarth attorney.