A GOOD EXAMPLE OF HOW “NOT” TO REASONABLY ACCOMMODATE UNDER THE ADA

 

           The settlement of a disability discrimination lawsuit filed by the Equal Employment Opportunity Commission (“EEOC”) aptly demonstrates the adage that sometimes the best example is a really bad example. 

 

          The EEOC filed the suit in 2017, alleging that Hester Foods, which operated a Kentucky Fried Chicken restaurant in Dublin, Georgia, had violated the Americans with Disabilities Act (“ADA”) by firing its restaurant manager when the company’s owner found out that the woman was taking medication prescribed by her doctor to treat her bipolar disorder.

 

          According to the EEOC lawsuit, when the owner discovered the woman was receiving the treatment, he referred to the manager’s medications in obscene terms, and made her destroy her medications by flushing them down a toilet at the restaurant. When the woman later told the owner that she planned to continue taking the medications per her doctor’s orders, the owner told her not to return to work and fired her.  The EEOC filed suit in the U.S. District Court for the Southern District of Georgia after first attempting to reach a pre-litigation settlement through its conciliation process.

          In addition to paying a $30,000.00 settlement, the consent decree settling the ADA lawsuit requires the restaurant operator to create and disseminate a handbook containing policies that prohibit discrimina­tion. The decree also requires that the company provide annual equal employment opportunity training to its managers, supervisors, and employees. The two-year decree further requires the company to post a notice to its employees about the lawsuit and to provide periodic reporting to EEOC about disability discrimination complaints.  In commenting on the settlement, Antonette Sewell, regional attorney for the EEOC’s Atlanta District Office stated “Employers are not allowed to force workers with disabilities to choose between their jobs and their health. Reasonable accommodation includes allowing workers to rely on their physicians, not on the opinions of the company managers.”
 

          The ADA prohibits private employers, state and local governments, employment agencies and labor unions from discriminating against qualified individuals with disabilities in job application procedures, hiring, firing, advancement, compensation, job training, and other terms, conditions, and privileges of employment. The ADA covers employers with 15 or more employees, including state and local governments. It also applies to employment agencies and to labor organizations. 

          An employer is required to make a reasonable accommodation to the known disability of a qualified applicant or employee if it would not impose an "undue hardship" on the operation of the employer's business. Reasonable accommodations are adjustments or modifications provided by an employer to enable people with disabilities to enjoy equal employment opportunities. Accommodations vary depending upon the needs of the individual applicant or employee, and must be judged on a case-by-case basis. 

 

 

         Making a reasonable accommodation can sometimes be difficult but more often, can be addressed through common sense and engaging in an interactive process with the employee.  As illustrated by this case, failure to do so can be costly.



 

Smells like a Lawsuit . . . Odor Sensitivity under the ADA

An Illinois federal judge has rejected an employee’s disability discrimination lawsuit, in which the employee claimed her employer failed to reasonably accommodate her odor sensitivity as required under the Americans with Disabilities Act (“ADA”).  While employers have a legal duty to reasonably accommodate such a disability, this case highlights that there is a limit.

As noted in the U.S. District Court’s opinion in Alanis v. Metra, Plaintiff Elda Alanis had worked for the company for approximately ten years, when she experienced difficulty breathing in the workplace, and claimed not to be able to speak, and would only communicate via text message or on handwritten notes. 

Alanis took FMLA leave and following a psychological evaluation, ultimately returned to the workplace with a diagnosis of fragrance sensitivity.  Among Alanis’s multiple accommodation requests was for “a fragrance-free workplace.” 

 In response, the company agreed to take actions to reduce workplace odors, which included changing the cleaning solutions in the restrooms, instructing staff to use only the approved cleaning solutions, instructing staff to refrain from wearing strong fragrances, and moving Alanis’s workspace to a cubicle farther away from the refrigerator and microwave (one source of the odors she was complaining about). Alanis also was instructed to promptly notify the company if any other fragrance issues arose.  The company also granted Alanis’s requests for a relaxed dress code, not having to talk while symptomatic, and rest breaks away from her work station, but did not agree to all the accommodations sought by Alanis. 

 In dismissing Alanis’s ADA failure to accommodate claim, the District Court noted that the ADA only requires an employer to make reasonable accommodations to a disabled employee’s limitations, and employer are not required to provide the particular accommodation that an employee requests. Instead, the employer may choose what accommodation to provide, so long as it effectively accommodates the employee’s limitations.  The District Court held the company’s accommodations in regard to Alanis were reasonable:

 

Once Metra learned that the changes it made to accommodate Alanis did not eliminate her symptoms, Metra invited Alanis to notify it of any odor issues contemporaneously so that the source could be investigated. When Alanis did report an issue, Thomas intervened on Alanis’s behalf and reminded the relevant staff member of the fragrance-free workplace requirement. The record shows that Metra made reasonable efforts to provide (and police where necessary) the accommodations it agreed to provide Alanis. That Metra could not guarantee a fragrance-free environment for Alanis does not constitute an adverse action

The District Court’s ruling is line with similar cases around the county in which ADA claims were dismissed because a an employee’s request for a fragrance-free or odorless workplace was held to be unreasonable and not feasible.

Fragrance or odor sensitivity clearly qualifies as disability.  The Equal Employment Opportunity Commission takes the position that under the ADA, an employee may be disabled if a workplace odor causes asthma or causes an otherwise normal reaction or allergy to become severe.  Finding a reasonable and realistic accommodation is best accomplished through engaging in an interactive discussion with the employee. 

·         Depending on the position and job responsibilities, allowing the employee to telecommute or work from home might be a reasonable accommodation.

·         For employees who are sensitive to certain workplace odors, changing their workplace/office locations to an area of less exposure could be a reasonable accommodation. Workplace odors triggering a medical condition also may be more generalized, such as the odors from copy machines or printers or from cleaning products.

·         A perfume/cologne free policy can be a reasonable accommodation. While other employees may find it unreasonable, wearing perfume or cologne in the workplace is not a protected right.





U.S. SUPREME COURT PASSES ON WEIGHTY ISSUE OF OBESITY AS A DISABILITY UNDER THE ADA

The United States Supreme Court has declined to hear an appeal of a decision by the Court of Appeals for the Eighth Circuit, which held that that an obese job applicant was not disabled for purposes of a lawsuit under the Americans with Disabilities Act ("ADA"). By declining to hear the case, the Supreme Court left unresolved an issue splitting federal courts, and leaving employers without guidance as to reasonable accommodations and other requirements under the ADA.

 

Obesity is a subject most employers are likely to face. According to the Centers for Disease Control and Prevention ("CDCP"), more than one-third (36.5%) of U.S. adults qualify as obese (my home state has unfortunately once again tied for the silver medal in this competition). This has a significant impact on employee health-related costs. Obesity-related conditions include heart disease, stroke, type 2 diabetes and certain types of cancer, some of the leading causes of preventable death. The CDCP estimates that the annual medical cost of obesity in the U.S. is $147 billion, and the medical costs for people who are obese are $1,429 higher than those of normal weight.

The story of Morriss v. BNSF Railway Company began in 2011. Melvin Morriss applied for a machinist position with BNSF Railway Company ("BNSF"), and was extended a conditional offer of employment. Because the position was safety sensitive, however, the offer of employment was contingent on a satisfactory medical review.

BNSF doctors conducted two physical examinations of Morriss, who was 5’10" tall. In the first, Morriss weighed 285 pounds and had a body mass index ("BMI") of 40.9. In the second, he weighed 281 pounds and had a BMI of 40.4. BNSF’s policy was not to hire a new applicant for a safety-sensitive position if his BMI equaled or exceeded 40. The company notified Morriss by e-mail that he was "[n]ot currently qualified for the safety sensitive Machinist position due to significant health and safety risks associated with Class 3 obesity ([BMI] of 40 or greater)", and revoked its conditional offer of employment. Other than being overweight, Morriss had no other health problems, was not diabetic, and experienced no difficulties or limitations in his daily activities.

Morriss filed a lawsuit under the ADA, which was dismissed by a Nebraska federal District Court, which held that Morriss had failed to provide any evidence that his obesity was an actual disability under the ADA. The court first noted that to succeed on this claim, Morriss was required to show that his obesity was a physical impairment, defined under the ADA as a physiological disorder or condition that affects a major body system. Morriss appealed the decision to the United States Court of Appeals for the Eighth Circuit.

 

Prior to the ADA Amendments Act of 2008 ("ADAAA"), the Equal Employment Opportunity Commission ("EEOC") took the position that "except in rare circumstances, obesity is not considered a disabling impairment." However, after enactment of the ADAAA, the EEOC broadened the definitions of what constituted a disability, and concluded that weight outside the normal range, that was the result of a physiological disorder, constituted a disability.

 

However, despite the ADAAA’s more expansive definitions, on appeal, the Eighth Circuit’s opinion rejected Morriss’s arguments, and affirmed the District Court’s holding:  

"Morriss contends that his obesity, in and of itself, is a physical impairment because it has been labeled ‘severe,’ ‘morbid,’ or ‘Class III’ obesity. This contention garners no support from the EEOC regulations, which state that weight is merely a physical characteristic—not a physical impairment—unless it is both outside the normal range and the result of an underlying physiological disorder.

As previously noted, Morriss has provided no evidence to prove that his obesity is the result of a physiological disorder, and so he instead cites the EEOC Compliance Manual, which states that, while ‘normal deviations’ in weight ‘that are not the result of a physiological disorder are not impairments[,] . . . [a]t extremes, . . . such deviations may constitute impairments.’ The Compliance Manual also states that ‘severe obesity,’ namely, ‘body weight more than 100% over the norm,’ is an impairment. We first note that this Compliance Manual pronouncement directly contradicts the plain language of the Act, as well as the EEOC’s own regulations and interpretive guidance, which, as previously explained, all define ‘physical impairment’ to require an underlying physiological disorder or condition.

In sum, we conclude that for obesity, even morbid obesity, to be considered a physical impairment, it must result from an underlying physiological disorder or condition. This remains the standard even after enactment of the ADAAA, which did not affect the definition of physical impairment. Because Morriss failed to produce evidence that his obesity was the result of an underlying physiological disorder or condition, the district court properly concluded that Morriss did not have a physical impairment under the ADA."

The Eighth Circuit is not the first U.S. appellate court, post ADAAA, to require that obesity or morbid obesity must be caused by a physiological condition to be considered a disability. See EEOC v. Watkins Motor Lines, Inc., 463 F.3d 436 (6^th Cir. 2006).

However, federal courts have ruled otherwise, and held that severe obesity, in of itself, is enough to constitute a disability under the ADA, as amended by the ADAAA.   The case of   EEOC v. Res. For Human Dev., Inc., 827 F.Supp. 2d 688 (E.D. La. 2011) involved a woman named Lisa Harrison, who worked as a prevention / intervention specialist at a non-profit Louisiana addiction treatment facility. In its suit, the EEOC charged the facility violated the ADA when it fired Harrison because of her severe obesity, even though she was able to perform the essential functions of her job.  Before the EEOC filed suit, Harrison died.  In denying the employer’s summary judgment motion to dismiss the case, and sending it to trial, the District Court’s opinion held that:

"A careful reading of the EEOC guidelines and the ADA reveals that the requirement for a physiological cause is only required when a charging party's weight is within the normal range. 29 C.F.R. § 1630.2(h). However, if a charging party's weight is outside the normal range that is, if the charging party is severely obese there is no explicit requirement that obesity be based on a physiological impairment. At all relevant points, Harrison was severely obese; when she was hired, she weighed in excess of 400 pounds, and when she was terminated, she weighed in excess of 500 pounds."

However the case never went to trial. Following the District Court’s ruling against the employer, the addiction treatment facility settled with the EEOC for $125,000.

So after the Supreme Court’s decision to not review the Eighth Circuit ruling in Morriss, where does this leave employers? First of all, employers should not consider the Morriss ruling to mean that obesity can never be a disability under the ADA. As in all such cases, a determination of whether an employee has a covered disability requires an individualized assessment of the particular facts and circumstances. However, the ruling by the District Court in Louisiana also should be troubling to employers, because under that interpretation, more than a third of the adults in this country could conceivably be considered disabled, based on the CDCP’s statistics. Expect to see the Supreme Court forced to weigh-in on this issue in the future. 

“♫ Sign, Sign, Everywhere a Sign ♪”: The EEOC and DOL Sing a New Tune on Required Postings

 Those old enough  may remember the 1970 one-hit-wonder “Signs” by the rock group Five Man Electric Band, with its chorus of:

Sign, sign, everywhere a sign

Blockin’ out the scenery, breakin’ my mind

Do this, don’t do that, can’t you read the sign?

 In some recent announcements, the Equal Employment Opportunity Commission (“EEOC”) and the U.S. Department of Labor (“DOL”) are calling the tune on employer requirements for posting employee notices of their rights under Title VII of the Civil Rights Act of 1964 (“Title VII”), the Americans with Disabilities Act (“ADA”), the Genetic Information Nondiscrimination Act (“GINA”), and the Family and Medical Leave Act (“FMLA”)  Unlike the 1970 song, the requirements do not address a protected class of “long haired freaky people”, but do impose financial penalties for noncompliance.

Effective July 5, 2016, the EEOC’s new rule more than doubles the maximum fine against employers for not complying with the posting requirements under Title VII, the ADA and GINA.  Employers will now face a maximum penalty of $525 per violation, up from $210.  The penalty last changed in 2014, when the EEOC increased it from $110 to $220.

Under the law, employers with 15 or more employees are required to post a notice describing their rights under federal laws prohibiting job discrimination based on race, color, sex, national origin, religion, age, equal pay, disability, or genetic information.  These Equal Employment Opportunity (“EEO”) posters are required to be placed in a conspicuous location in the workplace where notices to applicants and employees are customarily posted.  In addition to physically posting the notices, the EEOC encourages employers also to post similar electronic notices on their internal websites in a conspicuous location.  However, such an electronic posting does not fulfill the requirement of an actual physical posting in the workplace.  If employees do not understand or read English, the employer must provide notice in the appropriate language.

Employers frequently get themselves in trouble for perfunctorily putting these posters where they cannot be readily seen by employees, or not posting them at all.  When an EEOC investigator stops by, often the first thing they inquire about is the EEO poster, and being out of compliance is not an auspicious way to begin an EEOC investigation.  Printable posters in English and other languages are available from the EEOC website, although commercially purchased posters also will meet the requirement.

In other posting news, the DOL recently issued a new FMLA poster to replace the previous one required to be displayed by employers.  For the time being, the DOL is not requiring employers to replace their existing posters until further notice.  However, it is important that employers review their existing FMLA policies to make sure the written policies contain all of the information and requirements contained in the new poster, and if not, update them accordingly.  As with the posting requirements for the EEO posters, employers are required to post the FMLA posters in a conspicuous place in the workplace, and can face monetary fines for noncompliance.  For more detailed information, the DOL’s Wage and Hour Division has put out a publication entitled The Employer’s Guide to the Family Medical Leave Act.

 



Settlement in HIV Termination Lawsuit Highlights Continuing Employer Confusion over ADA

A nationwide manufacturer and distributor of fruit juice will pay $125,000 to settle a lawsuit brought by the EEOC on behalf of an employee who was terminated after the company learned he was HIV-positive. [EEOC v. Gregory Packaging, Inc. (N.D. Ga.]  The fact that the employer specifically told the man he was being terminated because of his HIV status highlights continuing employer confusion over the Americans with Disabilities Act (“ADA”), even twenty-five years after its passage, and especially as it relates to employees with HIV/AIDS.

The plaintiff in the case was employed as a machine operator at the Newnan, Georgia facility of Gregory Packaging, Inc., a company that sells juice products to school districts and medical institutions. When the employee developed a skin rash unrelated to his HIV, rumors began to circulate among other employees that the employee’s rash was the result of AIDS.  In an effort to quash the rumors, the employee informed his supervisor that while he did have HIV, the skin condition was unrelated, and there was no danger of him transmitting HIV to food products or co-workers.  Despite his good job performance, and no evidence of a health risk, the employee was terminated approximately a month later.  He was informed the reason he was being fired was because he had HIV.

The employee declined a separation agreement offered by the company, which included a release of claims. The Equal Employment Opportunity Commission (“EEOC”) subsequently brought a lawsuit on the employee’s behalf, alleging violations of the ADA and similar claims brought under Georgia state law.  Despite the company’s early efforts to fight the lawsuit, the case was settled pursuant to a court-approved consent order, which provided for the $125,000 payment by the New Jersey based company, and required equal employment opportunity training and reporting to the EEOC.

What is most surprising about this case, is that even before the ADA’s expansion under the Americans with Disabilities Amendment Act (“ADAAA”), it was generally established that a person with HIV/AIDS met the Act’s definition of an individual with a disability.  Furthermore, as noted in EEOC guidelines, even those who are regarded as having HIV/AIDS are protected under the Act, even if they do not have the disease.  The example given by the EEOC is a person being fired on the basis of a rumor that he had AIDS, even though he was not infected.

Employers involved in the food and restaurant industry are often at the focus of these types of lawsuits. As was the case at Gregory’s Georgia facility, the situation is often fueled and exacerbated  by rumors spread by co-workers or customers, and fears of HIV/AIDS being transmitted through an employee’s contact with food products.   

According to the Department of Health and Human Services, HIV/AIDS is not a disease that can be transmitted through food handling. Diseases that can be transmitted by an infected person handling food include (1) noroviruses, (2) the Hepatitis A virus, (3) Salmonella, (4) Shigella, (5) Staphylococcus, and Streptococcus.  For more detailed information, employers in the food service/restaurant industry can find guidance through the EEOC publication “How to Comply with the Americans withDisabilities Act: A Guide for Restaurants and Other Food Service Employers.”

Employer’s also need to be aware that in the context of HIV/AIDS, the ADA also protects employees who do not have the disease, but have an association or relationship with someone who does.  In the EEOC guidelines, examples of employment discrimination against persons with HIV or AIDS include:

•         An automobile manufacturing company that had a blanket policy of refusing to hire anyone with HIV or AIDS.

•         An airline that extended an offer to a job applicant and then rescinded the offer after the employer discovered (during the post-offer physical) that the applicant had HIV.

•         A restaurant that fired a waitress after learning that the waitress had HIV.

•         A university that fired a physical education instructor after learning that the instructor’s boyfriend had AIDS.

•         A County tax assessment office that cancelled training opportunities for an accountant following her disclosure that she had HIV.

•         A retail store that generally rotated all sales associates between the sales floor (where they could earn commissions) and the stock room (where they processed merchandise) except for the sales associate who was rumored to have HIV, who was never rotated to the floor.

•         A call center employee who was denied a promotion to shift manager because his employer believed the employee would be unreliable since he had AIDS.

•         A company that contracted with an insurance company that had a cap on health insurance benefits provided to employees for HIV-related complications, but not on other health insurance benefits.

While the ADA does include a “direct threat” defense in regard to employees who pose a significant risk of substantial harm to the health and safety of the employee or others, the defense  requires medical or other objective evidence, as opposed to subjective beliefs or assumptions based on stereotypes.  However, the take-away from this case is that proper training of supervisors in addressing ADA issues is a much better and less expensive option than having to establish defenses after a suit has been filed.

Mark Fijman is a labor and employment attorney with Phelps Dunbar, LLP, which has offices in Louisiana, Mississippi, Florida, Texas, Alabama, North Carolina and London. To view his firm bio, click here. He can be reached at (601) 360-9716 and by e-mail at fijmanm@phelps.com