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Advocacy & Compliance News

Legal Watch - May 15, 2014
May 15, 2014

By Ira Michael Shepard, CUPA-HR general counsel and partner with Saul Ewing LLP

Court of Appeals Adopts EEOC Position That In-Person Job Attendance May Not Be Essential Job Function

The United States Court of Appeals for the Sixth Circuit recently adopted the novel position that regular in-person job attendance is not necessarily an essential job function, siding for the first time with the Equal Employment Opportunity Commission (EEOC) on this issue. The court held in reversing the trial court’s dismissal of the case in favor of the employer that the plaintiff is entitled to a jury trial over whether her request to telecommute constituted a reasonable request for a reasonable accommodation and that the employer’s decision to terminate her for inadequate job performance was in fact a pretext for an unlawful retaliation against her for raising the disability claim and requesting an accommodation (EEOC v. Ford Motor Co. (2014 BL 111020, 6th Cir., No. 1`2-2484, 4/22/14)).

The federal trial court dismissed the case on summary judgment, holding that the plaintiff, who was a manager and resale steel buyer at the company, could not prove that she was qualified for the job because she could not perform the essential job functions, which included collaboration with her team of coworkers for which physical presence in the office was a necessity. The court of appeals held that technological advances have now greatly expanded the class of jobs for which working from home may be reasonable. The court recognized that a lot of time has passed since the early cases holding that telecommuting was not a reasonable accommodation where the employer believed that physical workplace presence was necessary. The court found the issue to be a jury question.

The appeals court held that “the world has changed since the foundational opinions regarding physical presence in the workplace were issued; teleconferencing technologies that most people could not have conceived of in the 1990s are now commonplace … Therefore we are not persuaded that positions that require a great deal of teamwork are inherently unsuitable to telecommuting arrangements.”

HR Department E-Mails Create Evidence to Establish That Employer’s Proffered Reason for Termination Was Pretext for Disability Discrimination

A California state appellate court cited e-mails from an employer’s HR department as evidence that the employer’s proffered reason for termination of an employee — economic downturn and need for a reduction in force — was sufficient evidence upon which to conclude that the proffered reason for discharge could be a “pretext” for disability discrimination, and that the case should go to a jury to decide (Kelly v. Ports America Management Corp. (2014 BL 23015, Cal Ct App., No. B242004, 1/28/14)).

The plaintiff alleged that her termination, which came three months after a broad reduction in force and at the time the plaintiff was to return to work from a leave to recover from a disability, was a result of disability discrimination. The employer said it was a delayed action which was part of an earlier broad reduction in force necessitated by an economic downturn. The plaintiff as a result of a unique provision in the applicable collective bargaining agreement needed only give her union notice of her intent to take disability leave, and she did so in accordance with the collective bargaining agreement. The employer criticized her for not communicating with her supervisor directly about her need for disability leave. The plaintiff cited multiple e-mails from the HR department to management criticizing her for not directly notifying management of her disability or of her intention to take leave.

The court of appeals ruled that the timing of her discharge, some three months after the reduction in force and on the cusp of her scheduled return to work, coupled with the HR department’s e-mails which were critical of her taking leave without direct notice to management, could lead the jury to conclude that her termination was in retaliation for her taking disability leave and that the proffered reason for termination was nothing other than a pretext for disability discrimination, which is unlawful under the Americans with Disabilities Act (ADA). The court concluded that workforce reductions may not be used as a “convenient opportunity” to fire disabled workers or those availing themselves of disability leave, and sent the case back for a jury trial.

Employee Entitled to Jury Trial Over Allegations That Demotion to Part-Time to Avoid Medical Insurance Costs Is ADA Violation

A federal district court in Tennessee recently held that an employee is entitled to a jury trial over her claim that her employer violated the ADA by demoting her to part-time status in order to exclude her from medical coverage under the employer’s plan because of the cost involved in treating her rare Crohn’s disease (Quillen v. Touchstone Medical Imaging LLC (2014 BL 109002, M.D. Tenn., No. 3:12-cv-01194, 4/18/14)).

When the plaintiff joined the company, she was put on 90-day probation while her credentials and work performance were checked. She was approved for the full-time position after only 30 days of probation. Shortly after that, the plaintiff took a short leave of absence when her Crohn’s disease flared up (she had disclosed her condition at her job interview). When the plaintiff returned from leave, her employer took away her office and she was assigned to a small cubicle in the kitchen and told her position had been reduced to part-time with no medical benefits. The plaintiff produced testimony from the employee who performed her credentialing review during her probationary period and the chief financial officer, who both testified that they disagreed with the CEO and felt that the plaintiff’s position justified full-time employment at the company.

The plaintiff resigned her part-time position and sued for ADA discrimination regarding her demotion. The court denied the employer’s motion for summary judgment. The employer claimed that the job only necessitated a part-time position. The court concluded that “a jury could easily disbelieve the company’s explanation” given the conflicting testimony of two other company employees involved in the matter.

Paid Disability Leave Not Necessarily Reasonable Accommodation Where Employer Failed to Participate in Interactive Process Regarding Pregnant Employee’s Initial Accommodation Request

A federal district court in California recently held that a pregnant employee who was involuntarily placed on paid disability leave as a result of pregnancy-related lifting restrictions which conflicted with the essential job functions of her existing job is entitled to go forward with her ADA lawsuit, as the employer failed to engage in an interactive process with the employee regarding alternative accommodations (light duty) or even consider alternatives (Tapia v. Artistree Inc. (CD Cal., No. 14-1381, 4/10/14)).

The employer placed the plaintiff on paid disability leave for the remaining seven months of her pregnancy given her weight lifting restrictions. Under the employer’s program, the employee did not have a guaranteed position after the leave. The employee had requested to work on light duty for the remainder of her pregnancy, take off a minimal period to give birth, and then return to her initial job afterward. The employer refused to consider such an alternative or engage in the interactive process discussing a reasonable accommodation as required by the ADA.

The court concluded that “paid leave is not per se a reasonable accommodation,” especially when the result is the employee’s possible termination when the leave expires. The court concluded that the employer failed to participate in an interactive process and discuss alternative accommodations, and therefore the plaintiff’s ADA claim must go forward.

2,100 Grad Student Employees at University of Connecticut Choose UAW Representation

More than 2,100 graduate students at the University of Connecticut chose the United Auto Workers to represent them in collective bargaining negotiations over wages, hours and working conditions. The Connecticut State Labor Board certified the union to represent the graduate assistants pursuant to an authorization card check without a formal election under Connecticut State procedures. The Connecticut Department of Labor reported that it conducted an authorization card check in which it found that over 50 percent of the graduate student workers chose the union, and the university agreed to recognize the union without a formal election. It is reported that more than two-thirds of the 2,135 eligible graduate student workers signed authorization cards.

The university took a neutral position in this matter after the board of trustees decided that the decision about whether to be represented by the union should be made by the graduate students themselves.