The big news in the country continues to be the twin quests to repeat as champions.
Will the Pittsburgh Penguins advance to the Stanley Cup Finals and once again hoist Lord Stanley’s Cup?
Will the Cleveland Cavaliers return to the NBA Finals and defend the City of Cleveland’s first major sports title in five decades?
The Bullard Edge is guessing that “no” will be the answers to both of these questions (you’re welcome Nashville and Oakland).
While we assume you have been serving your sports jones, The Bullard Edge has been tracking a number of ADA developments. In fact, this afternoon we have two “ripped from the headlines” puzzlers for you. After we present the factual scenario, we ask you to be the judge and decide the case. The answer key is at the end. Good luck.
Scenario #1 – Widget Worker Denied Accommodation:
Mid-Town Widget Restoration takes old, broken and/or corroded widgets and restores them to working condition. For this surprisingly high volume business, the company employs 20 widget prep workers; half are on the chemical cleaning side and the other half use soap, water and sandpaper. While workers can be assigned to one side or the other depending on need, they typically do not move from side to side.
Bernie, a worker on the chemical side, developed a non-work-related skin condition and, as a result, could not wear the gloves chemical workers must wear to comply with applicable regulations. He requested that the company accommodate him by permanently assigning him to the non-chemical side. However, the company denied the request after a robust interactive process that included a discussion of the request with Bernie, review of relevant medical information, and analysis of the duties of the position. The company explained to Bernie that while employees in the widget prep position often work on one side or the other (chemical or non-chemical), they could be called upon to work on either. The company reasoned that it was not reasonable to create a non-chemical side only position. There was not another open position for which Bernie was qualified and the company separated him from employment as a result.
Bernie filed a charge of disability discrimination, alleging an unlawful refusal to reasonably accommodate him. The company denied the allegations, explaining that no reasonable accommodation had been identified.
You are the judge: Who wins?
Scenario #2 – Awning Tech Denied Promotion:
Mid-Town Awnings offers design, installation and repair services throughout the metro area. Ironically supporting the notion that there is nothing new under the sun, most of the company’s business consists of installation and repair projects. There is little call for new awning design. The company operates on the lean side. Shane, the owner, serves as its marketing and HR director. Cliff, the only other executive, serves as the CFO and, occasionally, awning designer. Other than 1 supply clerk (basically a gopher), the rest of the workforce is devoted to installation and repair (24 service techs).
Tippy started as the company’s supply clerk with no knowledge of the awning business. However, in a short time on the job she earned a promotion to an open service tech position. While in this position, life threw Tippy a curveball in the form of debilitating bouts of vertigo. While she hid the condition initially (calling in sick during episodes), the company learned of the situation when she experienced a severe episode on the job. While not hurt, Tippy was unable to stand and paramedics were called.
Over the course of a five-month leave of absence, there was an open dialogue between Tippy and the company about her availability for work in the service tech position. Eventually her physician concluded that she would be indefinitely restricted from working at heights (most service tech work is performed on a ladder). Additionally, Tippy recently lost her driver’s license (service techs drive from job to job).
The interactive process led to the mutually agreed conclusion that Mid-Town Awnings cannot accommodate Tippy in the service tech position; she is not currently able to perform the duties of the service tech position (with or without accommodation) and there is no medically foreseeable time by which she would be able to perform those duties. The supply clerk position, which Tippy does not want, is not open. Just before Mid-Town Awnings separated her from employment, Cliff suddenly resigned and without missing a beat Tippy applied for the now-open CFO position. After the company rejected her application for lack of qualifications, Tippy filed a claim for discrimination, alleging that the company’s refusal to transfer her to the CFO position is an unlawful failure to reasonably accommodate. The company denied the allegation, explaining that reasonable accommodation does not include a duty to promote to a position for which an employee is not qualified.
You are the judge: Who wins?
After hearing the evidence, Judge Wapner prepares to rule.
Answer to Scenario #1:
If you said that Mid-Town Widget Restoration wins, you likely are wrong.
This is a reasonable accommodation case that turns on the correct identification of the essential functions of the widget prep worker position. In particular, the key question is whether the position involves being available to work on both sides (chemical and non-chemical) or whether there are in fact two types of positions ~ a chemical side widget prep worker position and a non-chemical side widget prep worker position.
In evaluating Bernie’s accommodation request, Mid-Town Widget Restoration did many things correctly. For example, it met with Bernie to understand his request, obtained relevant medical information (presumably confirming that due to a medical condition he may not work with the chemicals on the chemical side), and analyzed the marginal and essential functions of the widget prep position.
Based on the evidence presented, though, it sounds as if the company erred in its assessment of essential functions. The fact pattern said that while workers can be assigned to one side or the other depending on need, they typically do not move from side to side. In other words, it is merely a marginal function for an employee to periodically work on the side to which he or she is not regularly assigned. (Granted, this is a hypothetical and it would be possible that more facts emerge that impact the assessment of essential and marginal functions.)
We based the facts in this hypothetical (very) loosely on the May 9, 2017 decision of the Eighth Circuit Court of Appeals in Entergy Operations v. United Govt. Security Officers, et al. The case involved security guards at a nuclear power plant. The claimant worked as an armed responder, a position for which employees must be able to wear a full-face gas mask; applicable regulations prohibit facial hair. Due to chronic folliculitis, the employee could not shave and requested transfer to an armed security officer position since the duties of that position did not require the wearing of a gas mask. The employer denied the request. Among other things, it argued that the responder and officer positions were simply different posts of the “nuclear security officer” position delineated in the collective bargaining agreement and that all employees who work in these posts must be available to respond to an attack on the facility. Since the employee’s medical condition prevented him from wearing a gas mask, he could not be available to respond.
The appellate court upheld the arbitrator’s conclusion that being available to work both posts was not an essential function of the position. It cited the following testimony:
“So in general armed responders are responsible to stay on site, which is in the protected area, and are required to have a gas mask. Armed security officers are another portion of our strategy that can be outside of the protected area and don’t have to always have a gas mask. They need to have one readily available. We have people working, like I’m sure you know, in the sally port that don’t have to have a gas mask.”
The bottom line is that it is extremely important for employers to carefully evaluate the duties associated with each position and to be able to distinguish between essential and marginal functions. While written position descriptions and collective bargaining agreements are evidence of essential functions, what employees actually do on the job is evidence of at least equal value.
Answer to Question #2:
Take a bow if you said that Mid-Town Awnings wins.
This is a reasonable accommodation case with two aspects: accommodation in the job held and accommodation into an open position. The first aspect appears not be controversial. The parties have engaged in a thorough interactive process. During that process they have evaluated Tippy’s availability to perform the essential functions of the job in light of the known medical information. While episodes of vertigo are very difficult to predict, the medical information from Tippy’s treating physician is that she will be subject to a restriction on working at heights for an indefinite period of time; working at heights is what service techs do. Moreover, to add insult to injury, Tippy lost her driver’s license for medical reasons making it impossible for now for her to drive to jobs. Thus, there does not appear to be any way to reasonably accommodate her within the service tech position.
The trickier issue here is accommodation in an open position. The fact pattern describes the various types of positions at Mid-Town Awnings. Aside from the service tech positions, the only positions include supply clerk, marketing/HR director and designer/CFO. We are told that the supply clerk position is not open and that Tippy does not want it. Clearly, if it were open and did not involve duties inconsistent with Tippy’s restrictions, it likely would be a reasonable accommodation to offer to transfer her into this position.
Transfer into one of the other positions likely would not be a reasonable accommodation. We can assume that the marketing/HR director position is not open; even if it were, there is nothing in the fact pattern to suggest that Tippy is qualified for the position. Similarly, while the designer/CFO position has become open, there is nothing in the fact pattern to suggest that Tippy is qualified for that position either.
On this last point, we direct you to the May 4, 2017 decision of the Seventh Circuit Court of Appeals in Brown v. Milwaukee Board of School Directors. In that case, an assistant public school principal injured her knee and was indefinitely restricted from working in any position that would require her to work near “potentially unruly students” who might need to be restrained. Most positions fell into this category. After not identifying an open transfer position consistent with the assistant principal’s job-related medical restrictions, the school district terminated her. She sued claiming, among other things, that she should have been put into an open Title I coordinator position since it did not involve proximity to students. The school district contended that the ADA did not require it to promote an employee into a position for which she was not the most qualified. The appellate court agreed and affirmed the trial court’s entry of summary judgment. It stated that it was “forced to conclude that the Coordinator position would have been a promotion that the Americans with Disabilities Act did not require be offered to Brown.”
The appellate court took pains to limit its decision. It said that the result might have been different if the parties had not engaged in a comprehensive interactive process or if the medical evidence had not so clearly shown that the assistant principal was not available to perform the duties of most open positions.
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