By David J. Rowland and Megan P. Toth

Seyfarth SynopsisThe Eleventh Circuit is the next to find a long-term leave of absence is not a reasonable accommodation under the ADA.

Just a few months after a recent and definitive decision by the Seventh Circuit that multi-month leaves of absence, even those that are definite in term and sought in advance, are not required by the Americans with Disabilities Act (ADA), the Eleventh Circuit has issued a similar opinion. This decision may signal a growing trend that courts are attempting to curb the abuse of long-term leaves of absence under the ADA that has been rampant and debilitating to employers for many years.

In the recent Eleventh Circuit case, Billups v. Emerald Coast Utilities Authority, the plaintiff injured his shoulder at work and took Family and Medical Leave Act (FMLA) leave.  He was not able to have corrective surgery during this time, so under the employers medical leave policy, he was granted another three-month medical leave.  However, at the end of this period — a total of six months of leave — the employee was still not medically able to return to work. He told the employer that he had a doctors appoint in a month and would likely be released to work in six weeks, but it was unclear whether he would have any restrictions at that time. Thus, the employer terminated the plaintiff’s employment and he sued, alleging failure by the employer to provide additional leave as an ADA reasonable accommodation.

The Eleventh Circuit affirmed dismissal of the plaintiff’s claim on summary judgment. The plaintiff acknowledged that case precedent says that employers are not required to provide indefinite leaves. However, he argued that these prior decisions involved situations where employees suffered from chronic medical conditions that could continue indefinitely. In this case, the plaintiff contended that an unspecified leave was reasonable because there was a projected end date and once concluded, his medical condition would be resolved without the potential need for additional leave.

The Eleventh Circuit rejected this argument finding that even though the plaintiff would eventually recover, his request was essentially an “open-ended request” for leave of a sufficient time to recover, which is not reasonable under the ADA.  The Court also noted that the employer did not violate the ADA because it already provided six months of leave and the plaintiff inarguably could not perform the essential functions of his job at the time of his termination, with or without a reasonable accommodation and therefore he was not a qualified individual.  Thus, the court found that regardless of the nature of his underlying medical condition and his projected but uncertain recovery, the employer was not required to provide continued long-term leave.

It appears that the Seventh Circuit is not the lone-ranger in its attempt to invalidate the EEOC’s historic and strongly advocated position that long-term leaves are required “reasonable accommodations” under the ADA.  If other circuits continue to follow suit, employers may no longer have a legal obligation to provide lengthy post-FMLA leaves of absence, without the need to justify the denial based on specific business needs.  This case also demonstrates the importance of requesting updated medical information from employees nearing the end of FMLA or other medical leave periods.

If an employee cannot medically substantiate that they can return to work close to the expiration of their FMLA leave, employers may have greater legal flexibility in determining whether or not to accommodate the request. While employers should be aware of this apparently growing trend and may choose to adjust their leave and accommodation approaches accordingly, they still must approach long-term and indefinite leave requests very carefully as there are conflicting decisions from other circuits and the EEOC’s position will remain unchanged unless the U.S. Supreme Court ultimately sides with the Seventh and Eleventh Circuits.

If you have any questions regarding this area or need assistance evaluating whether to grant or deny long-term or indefinite leave requests, please contact the authors, your Seyfarth Attorney or a member of the Firm’s Absence Management and Accommodations Team.

By Erin Dougherty Foley, Ashley K. Laken, and Craig B. Simonsen

Seyfarth Synopsis: According to the EEOC in this just filed lawsuit, a home care services provider in North Carolina violated federal disability rights law when it rejected telecommuting requests from an employee whose asthma and COPD “made her sensitive to workplace smells.” 

Earlier this month, the Equal Employment Opportunity Commission filed suit against a home healthcare company to “correct unlawful employment practices on the basis of disability.”  In the complaint, filed in EEOC v. Advanced Home Care, Inc., No. 1:17-cv-00646 (M.D.N.C. July 12, 2017), the EEOC alleges that Advanced Home Care, Inc. refused to provide Elizabeth Pennell, a “qualified individual with a disability,” with a reasonable accommodation, and discharged her in violation of the Americans with Disabilities Act.

According to the EEOC, Pennell was a case manager for patients requiring home services. As a case manager, Pennell was required to spend part of her day on telephone calls. In 2015, Pennell began to experience frequent asthma attacks and flare-ups of bronchitis.  After collapsing at work after a heavy bout of coughing, she was hospitalized where she was diagnosed with chronic bronchitis and COPD.

The complaint alleges that as a “consequence of asthma, bronchitis, and COPD, Pennell experiences wheezing, severe bouts of coughing, and asthma attacks,” and that Pennell’s physical impairments “substantially limit her in the major life activity of breathing. . . and constitute a disability under the ADA.” The EEOC alleges that scents and odors aggravate Pennell’s COPD and asthma, that she worked in a cubicle in close proximity to hundreds of other employees, and that she was therefore subjected to these types of irritants, including the smell of smoke on other employees’ clothes.

The EEOC claims that Pennell’s supervisor “ignored Pennell’s repeated requests to telework” and that teleworking would have allowed Pennell to be away from actual and potential respiratory irritants. The EEOC also claims that Pennell’s supervisor told her she would terminated if she could not return to work without restrictions.  The complaint alleges that Pennell could have performed the essential functions of her position with the reasonable accommodation of telework.  The EEOC also claims that as a consequence of Pennell’s disability, she had difficulty talking continuously for extended periods of time, and if she had been allowed to telework, she would not have been required to take inbound calls and therefore would have spent less time on the phone.

Employers should note that this scenario is somewhat unusual but that telecommuting has been an issue on the EEOC’s radar for the last several months (i.e., is working from home a reasonable accommodation?). Right how we only have the EEOC’s allegations and no response from the employer.  (We’ll be keeping an eye on this litigation to see how it plays out.)  However, the critical take away (regardless of how the employer responded) is the proper handling and response to employee accommodation requests.  Company policies and procedures as well as internal manager training systems for these sorts of requests and responses should be well set out and diligently followed.

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 Rachel Hoffer, John P. Phillips and Mahek Bhojani

Seyfarth Synopsis: In a recent win for employers, the Fifth Circuit clarified that opened-ended or unlimited requests to work from home are unreasonable under the Americans with Disabilities Act (“ADA”) and may be rejected during the interactive process. In addition, the Court instructed lower courts to give preference over other factors to the employer’s judgment about what constitutes the “essential functions” of a particular job.

In today’s hyper-connected world, with more and more workers seeking to telecommute, the EEOC and plaintiffs’ attorneys often take the position that working from home should always be a viable and obligatory accommodation under the ADA. Employers, especially those who allow limited telecommuting, often find themselves defending failure-to-accommodate claims after rejecting requests for unlimited telecommuting.  Fortunately for employers, the Fifth Circuit recently ruled that in most cases employers do not have an obligation to allow telecommuting as a reasonable accommodation.  In addition, the Court reaffirmed that, in determining what job functions are truly “essential,” an employer’s judgment takes precedence over all other factors.

This case makes clear that open-ended telecommuting is rarely required under the ADA, and it also reassures employers that it is their call which functions their jobs require. Because it’s up to employers to determine the essential functions of employees’ jobs, employers should take the time to reexamine their job descriptions, make sure they are up to date, and ensure that they accurately reflect the requirements of the job.  This exercise will help employers navigate the interactive process when employees seek reasonable accommodations, and will assist employers in arriving at fair, reasonable, and defensible resolutions of disability-related issues.

Case Background

In Credeur v. State of Louisiana, Renee Credeur, a former litigation attorney for the Office of Attorney General for the State of Louisiana (aka the Louisiana DOJ), brought suit against her employer for allegedly failing to accommodate her inability to work in the office following a kidney transplant, and for harassment and retaliation, under the ADA and the Louisiana Employment Discrimination Law.

In May 2010, Ms. Credeur underwent a kidney transplant and was granted an accommodation to work from home for approximately six months. She then returned to work in the office full time but three years later began experiencing complications.  Starting in October 2013 and continuing through March 2014, because of ongoing medical complications, she was granted permission to work from home.  In March 2014, the Louisiana DOJ told her that she would not be allowed to work from home indefinitely and that she was required to work in the office at least 3-4 hours a day.  She did not return to work, however, but instead applied for and was granted FMLA and additional unpaid leave from April through August 2014.  When her leave ran out in early August 2014, the Louisiana DOJ again asked Ms. Credeur to return to the office and notified her that litigation attorneys could not work from home indefinitely.

Ms. Credeur subsequently brought suit against the State of Louisiana, claiming that she should have been allowed to work from home indefinitely and as long as her doctors recommended it because working in the office was not an essential function of her job. The district court granted summary judgment for the State of Louisiana.  On appeal, the Fifth Circuit affirmed the district court’s decision, holding that the ADA did not require the employer to allow Ms. Credeur to work from home indefinitely.

The Court’s Analysis of the Failure-to-Accommodate Claim

The Fifth Circuit analyzed whether regular office attendance was an essential function of the litigation attorney’s job. Ms. Credeur argued it was not because she had successfully worked from home in the past, and that by crediting the DOJ’s statements and rejecting her testimony, the district court had engaged in impermissible credibility determinations at the summary-judgment stage. In reaching a contrary conclusion, the Court first reaffirmed that “regular work-site attendance is an essential function of most jobs.”  This is especially true, the Court continued, when the position is interactive and involves a significant degree of teamwork.

To determine what constitutes an essential function, the Court noted that the ADA itself mentions only the “employer’s judgment”—and any written job descriptions—on that issue.  The Court also referred to the EEOC’s ADA regulations, which identify several other factors, including the amount of time spent performing the particular function, the consequences of not performing it, and the work experience of past incumbents, among others.  Importantly for employers, the Court explained that “we must give greatest weight to the ‘employer’s judgment.’”  The Court further concluded that “[a]n employee’s unsupported testimony that she could perform her job functions from home” is insufficient to avoid summary judgment.

With respect to the specific position at issue, the Court reviewed contemporary emails from DOJ personnel and consistent testimony of Ms. Credeur’s supervisors to conclude that regular attendance in the office was an essential function of the litigation attorney job, that Ms. Credeur’s continued absence from the workplace created significant problems for her department and prevented her from executing her work effectively and efficiently, and that her request to work from home on an open-ended basis was not reasonable.

Takeaways for Employers

The Fifth Circuit’s decision joins an increasing number of courts holding that regular workplace attendance is an essential function. This decision also establishes that requests for unlimited or open-ended telecommuting in most cases is not a reasonable accommodation under the ADA.  In addition, the decision emphasizes that courts must give weight to the employer’s own judgment about what constitutes an essential job function.  While helpful, employers will not be able to take full advantage of the ruling unless they have accurate, up-to-date job descriptions that identify the essential functions of the job—including factors requiring regular attendance at the workplace.  Take this opportunity to examine and update your job descriptions.

 

By Louisa Johnson and Salomon Laguerre

Synopsis:  The Fourth Circuit Court of Appeals recently ruled that an employer had done nothing wrong when it (i) filled the plaintiff’s position during his leave, (ii) restored the plaintiff to a different, but equivalent, position upon his return, and (iii) separated the plaintiff six weeks later as part of a reduction in force.

A recurring issue for employers is whether to fill an employee’s position while that employee is absent on a leave covered by the Family and Medical Leave Act (“FMLA”) and, if so, what position can be offered to the employee upon return to work that will satisfy the “equivalent position” alternative requirement under the FMLA. In a recently published opinion, the Fourth Circuit Court of Appeals has provided some helpful guidance.

In Gary Waag v. Sotera Defense Solutions, Inc., No. 15-2521 (4th Cir. May 16, 2017),  the employer, a defense contractor, was selected by the U.S. Army as one of several non-exclusive prime contractors that could bid on task orders for a software solutions program.  When it was selected but before it won any task orders, the employer made the plaintiff the program manager.  Because there were no immediate task orders to bid on, the plaintiff’s first job was not program management but instead business development—building relationships with the government to best position the company to win work when there were tasks orders to bid on.

A few weeks after the plaintiff began his new role, he injured his hand and notified his employer that he would need to be absent from work for two to three months. The employer notified the plaintiff that it needed to make another employee the program manager in the plaintiff’s absence.  When the plaintiff asked what that would mean for his role upon return to work, the employer was careful to say that it was important to have someone in the program manager role in the interim to get the team up and running, and that it would “figure out what roles work best for all involved” once the plaintiff returned from leave.

The program never left the business development stage during the plaintiff’s leave because there were no task orders to bid upon at the time. Upon the plaintiff’s return, the employer placed the plaintiff in a new role to help grow a different government contract program where there were actually task orders to be bid upon.  Unfortunately, the employer did not win those bids.  Six weeks after the plaintiff’s return to work, the plaintiff’s was fired as part of a reduction in force caused by a federal budget sequestration that drastically decreased the employer’s government work and its revenue.  The program manager who had filled the plaintiff’s role during his leave was not part of the reduction in force not because he held the plaintiff’s former program manager role but because he was a critical member of other programs that were generating revenue.

The plaintiff sued for purported interference with his FMLA rights because he was not restored to his original position after his leave, he did not believe his post-leave job was an equivalent position, and he believed his new job had been a sham role that was pre-selected for the lay-offs. He also argued that his termination was in retaliation for taking leave.  The trial court ruled in the employer’s favor on all counts, and the plaintiff appealed.

In upholding the trial court’s ruling, the Fourth Circuit noted that, under the FMLA, the employer can restore an employee either to his original position or to an equivalent position. The FMLA does not indicate a preference for one option over the other, “and it does not require an employer to hold open an employee’s original position while that employee is on leave.”

The Fourth Circuit also agreed with the trial court that the plaintiff’s new position was “equivalent” to his pre-leave position because the plaintiff continued to receive his same salary of $189,000.00 and was still eligible for bonuses; continued to enjoy the same health benefits; had the same worksite; held the same job title (Senior Director); still reported to a Vice President; and had the same primary duty of business development in both roles.

The plaintiff pointed to differences in job duties of the two positions that would have existed had the employer won a task order. The Fourth Circuit did not find such differences to be material because no task orders were won before or after plaintiff’s leave that would have necessitated the plaintiff performing these additional, conditional duties. In addition, while the plaintiff contended that he was no longer part of the “core management group” as he had been before leave, the Court found that a “loss of prestige” was a “de minimis” difference that did not prevent the pre- and post-leave jobs from being equivalent.

Finally, the Fourth Circuit agreed that a mere six weeks between the plaintiff’s return from leave and employment termination may be sufficient temporal proximity to show causation for a retaliation claim. Nonetheless, the plaintiff had failed to present any evidence that the employer’s reason for the plaintiff’s separation—the disastrous effect of the federal budget sequestration on the programs on which the plaintiff had worked—was a pretext for retaliation.  In so ruling, the Fourth Circuit noted that the plaintiff had the burden of proving pretext, rather than the employer having the burden of proving that the plaintiff would have been fired even if he had not taken leave, because the employer did not fire the plaintiff while on leave.  Instead, the employer returned the plaintiff to an equivalent position after leave that the employer had shown was not slated for lay-offs at the time of the plaintiff’s return from leave.

The key takeaways from this case are as follows: (1) while employers should, when possible, keep an employee’s position open during his or her leave, employers do not have an obligation to do so under the FMLA, although the analysis may be different when the Americans with Disabilities Act (“ADA”) applies as well; (2) if an employer reinstates an employee to an equivalent position, the FMLA requires the post-leave position to be “virtually identical” to the prior position in terms of pay, benefits, status, privileges, and working conditions and substantially equivalent in terms of skill, effort, responsibility, and authority; (3) even if communications with an employee during leave do not have the intended effect of managing the employee’s expectations about post-leave employment, such communications can help in the defense of litigation; and (4) restoring an employee post-leave to an equivalent position when his or her job has been filled in the interim will usually be a more defensible approach than firing the employee while on leave.

By Minh Vu

Seyfarth Synopsis:  An executive order from President Trump will likely halt the Justice Department’s public accommodations website rulemaking.

President Obama’s Department of Justice (DOJ) had stated that proposed regulations for public accommodations websites would be issued in 2018—eight years after the agency began its rulemaking process.  The likelihood of such a proposed regulation being issued now is virtually non-existent.

Among the flurry of executive orders President Trump signed this week was one entitled “Reducing Regulation and Controlling Regulatory Costs”.  This EO virtually obliterates any chance that the DOJ will issue any website regulations for public accommodations websites during Trump’s Administration.

The EO directs all federal agencies to:

  • Identify at least two existing regulations to be repealed for each new regulation;
  • Ensure that the total incremental cost of all new regulations, including repealed regulations, to be finalized in 2017 be “no greater than zero;”
  • Offset any new incremental costs associated with new regulations by eliminating existing costs associated with at least two prior regulations.

The EO exempts regulations relating to: (1) military, national security, or foreign affairs functions of the United States; and (2) agency organization, management, or personnel.  It also vests the Director of the Office of Management and Budget with the authority to grant additional exemptions.  The stated purpose of this EO is to “manage the costs associated with the governmental imposition of private expenditures required to comply with Federal regulations”.  We therefore assume that the EO would not apply to regulations applicable to state and local governments that the DOJ has been working on and could issue under Title II of the ADA.  It is unclear what, if any, impact this EO may have on the Title II regulatory effort.

While our prediction may seem dire, we cannot fathom what two regulations the DOJ would repeal to make way for new public accommodations website regulations and offset their associated cost.  Though some may think that businesses are better off with no regulations on this subject, we disagree.  The current tsunami of lawsuits and demand letters about allegedly inaccessible websites is the result of uncertainly and absence of regulations that impose reasonable rules that provide adequate time for businesses to comply.  This is one issue upon which virtually all who practice in this space – on the legal, technological, or advocacy side – agree.

Edited by Kristina Launey.

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 Matthew J. Gagnon, Christopher J. DeGroff, and Gerald L. Maatman, Jr.

Seyfarth Synopsis: With the end of another EEOC fiscal year employers look with anticipation to what the year-end trends can tell us about the sometimes elusive EEOC litigation agenda. In years past, the EEOC has engaged in a “filing frenzy,” with dozens of lawsuits filed in the waning days of the fiscal year. Although there was an uptick in filings this year, the EEOC’s FY 2016 went out with a whimper and not a roar.

We have prepared the following chart, which shows the total monthly filings for FY 2013-2016, which highlights the EEOC’s historical year-end filings compared to the somewhat tepid activity that we saw this year.


 

 

 

 

 

 

As with prior years, we anticipate that the EEOC may continue to file cases well into the night in the courthouses of the Western states, so the final tally may not be known for another 48 hours. But at the time of publication, the raw numbers show that the EEOC filed 136 lawsuits in FY 2016 (99 merits lawsuits and 37 subpoena enforcement actions). This is significantly less than prior years. (See here, here, here, and here.) The reason for this significant drop in lawsuits most likely can be attributed to the EEOC’s limited budget coupled to an already bloated litigation inventory. The fact that this is an election year with all of the possible changes that may represent could also be impacting the EEOC’s willingness to commit to additional litigation so close to November.

FY 2016 was originally planned to be the final year of the EEOC’s 2013-2016 Strategic Enforcement Plan (“SEP”). The EEOC developed the SEP in 2012 in order to set its priorities and goals for enforcement activity through 2016. Last year, the EEOC received permission from the Office of Management and Budget to delay the release of a new SEP until 2018 so that the Commission could align its strategic planning with other agencies. Although the SEP has now been extended through 2018, this year still marks the final planned year, and provides a useful moment in time to look back and take stock of where the agency has driven its enforcement program over the past four years.

Cases Filed By EEOC District Offices

Location is always a key factor for defending against EEOC litigation. Year after year, certain EEOC district offices distinguish themselves by the number of cases that they file. The map below shows the number of filings by each district office in FY 2016.


 

 

 

 

 

 

 

 

 

Filings by district office in FY 2016 were pretty much on par with prior years with one glaring exception. Year over year, Chicago has been the consistent leader in terms of total cases filed. Last year alone, the Chicago office filed 27 lawsuits. This year, the Chicago office filed only 7, a shockingly low number for that office. The other traditional filing leaders stayed consistent with prior years, and some even ticked up a bit in FY 2016. The Philadelphia office filed 22 lawsuits in FY 2016, up from 19 last year. The Charlotte office filed 16 lawsuits this year, compared with 13 last year. The Phoenix office filed 17 lawsuits in FY 2016, the same as last year. The bar chart below compares the number of filings from each office for FY 2013 – FY 2016.


What Do The FY 2016 Filings Say About The EEOC’s Priorities?

Each fiscal year we analyze the EEOC’s filings to determine substantive trends. The following chart shows the number of claims categorized by statute, along with a further division of the largest category – Title VII – by discrimination theory.

As with prior years, Title VII cases were the majority of cases filed, making up 41% of all filings (as compared with 55% in FY 2015 and 57% in FY 2014). This is not particularly surprising given the number of protected groups covered by the statute. ADA cases also made up a significant percentage of the EEOC’s filings, totaling 41% this year. Together, complaints alleging discrimination under those two statues made up 82% of all cases filed in FY 2016. Age cases represented a relatively small 5% of the overall cases.

 

 

 

 

 

 

 

 

 

 

 

 

In late August, the EEOC issued its final revision to the Enforcement Guidance on Retaliation and Related Issues (which we discuss here), replacing the 18 year old Section 8, “Retaliation” portion of the Compliance Manual last updated in 1998. This revision touches upon all of the statutes which the Commission enforces, and covers the legal analysis used to define evidence that supports retaliation claims as well as retaliation remedies, legal access for persons with disabilities under the ADA, and even a play-by-play of employer/employee interactions that might prompt retaliation.

Considering the EEOC’s renewed focus on this area, we analyzed the FY 2016 retaliation cases to test which discrimination claims are most often paired with a retaliation claim. The following chart shows which types of discrimination were paired with retaliation allegations in FY 2016:

 

 

 

 

 

Sex + retaliation cases make up the largest percentage of these claims at 46%, followed by race discrimination at 27%, pay discrimination at 13%, age discrimination at 7%, and disability discrimination at 7%. Pregnancy discrimination, national origin discrimination, religious discrimination, and genetic discrimination all had zero claims of retaliation.

In addition to the revised retaliation guidelines, the EEOC also revised its Employer Information Report (EEO-1) yesterday to require employers to submit information regarding employee pay range and hours worked. The Commission asserts that the purpose of collecting this pay data along with race, ethnicity, sex, and job category would be to “assess complaints of discrimination, focus agency investigations, and identify existing pay disparities that may warrant further examination.” It is, by most accounts, an ominous development for the future of EEOC litigation.

The EEOC also issued its final rules on employer wellness programs as they relate to the ADA and GINA, which clarify the implications of those rules and their interactions with employer wellness programs. We reported on this development here. Harassment was also a hot button issue for the Commission in FY 2016, with a particular focus on Muslims and people of Middle Eastern origin. Among other things, the EEOC issued a call-to-action for employers to ‘reboot’ harassment prevention efforts (which we discuss here).

Insight & Implications For Employers: Conclusions

As with prior years, this year’s analysis reveals that the EEOC’s activities continue to be guided by the 2012 SEP. For the past four years, we have reported on the many ways that the SEP has guided and shaped the EEOC’s enforcement initiatives – and with that, the landscape of labor and employment law. FY 2016 was the last year that was planned to be covered by the 2012 SEP. As we enter FY 2017, it is unclear whether we will see more of the same, or if we will see the EEOC branching out to new priorities and initiatives that may line up with its vision for the 2018 SEP and the future of EEOC litigation.

We will continue to analyze the data and filings from FY 2016 to extract additional insight about the EEOC’s litigation priorities, and what employers should watch out for in FY 2017 and beyond. We look forward to distilling those observations into our annual analysis of trends and developments affecting EEOC litigation. We hope that you are looking forward to that publication as much as we are, and that you continue to find it a useful reference and guide to developments in EEOC litigation. Please stay tuned, loyal blog readers!

By Paul Galligan, Joanna S. Smith, and Meredith-Anne Berger

Seyfarth Synopsis: The EEOC has increased penalties for failure to post notice violations under Title VII, the ADA and GINA by 150%. The increase will go into effect on July 5, 2016.

While an array of well-publicized cases under federal discrimination laws have made employers well aware of the legal costs and ramifications of litigation under Title VII of the Civil Rights Act of 1964 (“Title VII”), the American with Disabilities Act (“ADA”), and/or the Genetic Information Nondiscrimination Act (“GINA”), the cost of failing to post proper notice of these laws may be less apparent, but is no less important.  Under Title VII, as well as the ADA and GINA, which incorporate Title VII’s posting requirements, an employer must post, in a conspicuous and accessible location where notices are customarily maintained, a notice excerpting or summarizing the pertinent provisions of the laws and the employees’ rights thereunder.  Should an employer fail to post such notices, it would be subject to a fine for its violation.

On Thursday, June 2, 2016, the U.S. Equal Employment Opportunity Commission (“EEOC”), published its final rule in accordance with the Federal Civil Penalties Inflation Adjustment Act Improvements Act of 2015 (the “Act”), which adjusted for inflation the civil monetary penalty for a violation of the notice-posting requirements of Title VII, ADA and GINA. 81 Fed. Reg. 35269.  Specifically, the final rule increased penalties for failure to post violations by more than double the previous amount, from $210 to $525 per violation (a 150% increase).  The new rule will go into effect on July 5, 2016 and the adjusted penalty will only apply to those penalties assessed after the adjustment’s effective date.

Further, under the Act, Federal agencies are now required to issue annual regulations “adjusting for inflation” the maximum civil penalty that may be imposed for a violation of a statute enforced by the agency in question. The periodic adjustments to the penalties will be calculated in accordance with the cost-of-living adjustment as detailed in Section 5(b) of the Act.  While in the last ten years only a small percentage of the charges filed under Title VII, GINA and ADA, contained a notice posting violation, with the current increase in penalties and the potential further annual increases under the Act’s cost-of-living adjustment, employers would be well advised to protect themselves against liability.

What next? Employers should review their existing posters, both for placement and content, and update and/or post notices where necessary, to ensure compliance with this rule and reduce the possibility of a posting violation. A proactive approach is recommended to avoid unnecessary penalties.

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