Employment Law Matters : Employment Lawyer & Attorney : Ogletree Deakins Law Firm : Labor Law, Human Resources

Earlier this year, and in a case of first impression, the 3d U.S. Circuit Court of Appeals upheld an employee’s claim that her employer violated the ADA by refusing to change her work shift after she reported commuting difficulties based upon a visual impairment that made it difficult for her to drive at night. Now, in an unpublished opinion, the 9th U.S. Circuit Court of Appeals has issued a similar decision. In that case, the Court reversed a decision in favor of an employer, allowing an individual’s claim to go to trial on the issue of whether the company failed to accommodate the employee’s visual impairment when it refused to modify her work schedule to daylight only hours. Livingston v. Fred Meyer Stores, Inc., 9th Circ., 08-35597, July 21, 2010.

Michelle Livingston began working for Fred Meyer Stores (Meyer) as a wine steward in April 2005. Livingston has been diagnosed with “depth perception difficulties under low light conditions,” which makes it difficult for her to safely drive or walk outside after dark. In the Fall of 2005, Livingston asked for, and was granted, a modified schedule to allow her to leave work during daylight hours. During that time, Livingston helped increase the store’s wine sales and improve its sales ranking. However, when she again asked for the modified schedule in the Fall of 2006, Meyer refused the request, and ultimately fired Livingston when she refused to work her scheduled shift.

Livingston sued the company, alleging that it failed to accommodate her and then retaliated against her, both in violation of the Americans with Disabilities Act. The district court granted summary judgment in favor of the employer, holding that Livingston did not have a disability because her vision impairment did not substantially limit a major life activity, and that even if Livingston was disabled, a company’s duty to accommodate did not extend to “commute-related limitations.” The Ninth Circuit disagreed, reversing and remanding the case for trial.

A person is substantially limited in a major life activity if she is “significantly restricted” as to the condition, manner or duration under which she can perform that activity, when compared to the average person. Livingston’s impairment prevents her from safely driving or walking at night, when the average person is able to see well enough to do both. The Court held that on that basis, Livingston raised a triable issue of fact regarding whether she is disabled under the ADA in the major life activity of “seeing.”

The Court then specifically addressed the lower court’s finding that the duty to accommodate does not extend to commute-related limitations. It pointed out that the ADA contemplates that employers may need to make reasonable shift changes in order to accommodate an employee’s disability-related difficulties in commuting to work and that, therefore, Meyer had a duty to accommodate Livingston’s inability to finish her scheduled shift, so long as such accommodation did not create an undue hardship for the company. Because Meyer had not suffered a hardship when it modified Livingston’s schedule in 2005 – indeed, wine sales increased with Livingston’s help during that period – Livingston is entitled to allow a jury to decide whether Meyer’s failure to accommodate her request in 2006 was a violation of the ADA.

The Court further determined that Livingston’s failure to work her scheduled shift stemmed from her disability, and that conduct “resulting from a disability” is considered to be part of the disability, rather than a separate basis for termination. Therefore, the Court held, Livingston’s claim that she was terminated “because of her disability” should be decided by a jury.

In this case, there was no evidence that Meyer asked for any additional information or engaged in any dialogue with Livingston before refusing her request in 2006, and then terminating her employment. The absence of such evidence created the basis for the Ninth Circuit’s reversal of the district court’s decision in Meyer’s favor. Employers are required to engage in an interactive process in good faith when an employee asks for an accommodation of a disability. That failure can result in liability under the ADA if such reasonable accommodation is possible and appropriate.
 

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The 7th U.S. Circuit Court of Appeals has ruled that a nursing home’s policy of complying with patients’ wishes to be treated only by white health care workers can form the basis of a racially hostile work environment for non-white employees. Chaney v. Plainfield, 7th Cir., No. 09-3661, 7/20/10.

Brenda Chaney was employed as certified nursing assistant (CAN) by Plainfield Healthcare Center, a nursing home that housed a resident who did not want assistance from black CNAs. Plainfield complied with the resident’s wishes by distributing, on a daily basis, a written schedule for all employees that included a reference that “no black” assistants should enter the resident’s room or provide any care to her. Plainfield admits that the directive “banned” Chaney from providing care to that resident.

In addition to working under this ban, Chaney was subject to racially insensitive and unprofessional remarks from her co-workers, including one comment questioning why Plainfield “keep[s] on hiring” blacks, and adding a particularly unpleasant racial epithet. After Chaney complained about these comments, the epithets stopped, but the racial preference policy remained in place. Instead of epithets, Chaney began to get constant reminders about the policy from her co-workers, mentioning that certain patients were off limits because of her race.

After three months of employment, Chaney was fired after a nurse complained that Chaney used profanity in front of a patient. The complaint was that as Chaney was lifting the patient onto a bedside commode, she (Chaney) supposedly said “she’s shitting.” The complaint was investigated by the unit supervisor, who was skeptical of the allegation, having never before heard Chaney use any profanity. Further, the supervisor found that neither the resident’s roommate nor Chaney’s co-worker heard the alleged profanity. Although the supervisor relayed her findings and her skepticism to the Director of Nursing, Chaney was fired on the same day that the complaint was made.

Chaney ultimately filed suit, alleging racially hostile environment and discriminatory discharge. The lower court granted summary judgment in favor of Plainfield on Chaney’s claims, finding that Plainfield had responded promptly to Chaney’s complaints of her co-workers remarks. The lower court treated the racial preference policy as a separate hostile environment claim, concluding that Plainfield had a good faith belief that ignoring the patient’s wishes would have violated the state’s patient-rights laws. Finally, that court found that Chaney failed to prove that her termination was motivated by race.

The Seventh Circuit reversed the lower court’s decision on all issues. It pointed out that in order to impose liability for a racially hostile work environment, a minority plaintiff must show that the work environment was both objectively and subjectively hostile, and that the conduct was severe and pervasive. The Court stated that it had “no trouble in finding that a reasonable person would find Plainfield’s work environment hostile or abusive.” It pointed out that no single act can more quickly alter the conditions of employment than the use of an unambiguously racial epithet. The Court added that even after the most vulgar of the epithets stopped, Plainfield’s assignment sheet to all workers clearly – and on a daily basis – reminded Chaney and her co-workers that Chaney was restricted in the performance of her job because of her race. Further, the Court found that the circumstances of Chaney’s termination created factual issues that should be decided by a jury.

Courts have widely held that a company’s desire to cater to the perceived racial preferences of its customers is not a defense to a claim of racial discrimination under Title VII. However, Plainfield argued that as a health-care provider, it should be exempted from that prohibition. As support, Plainfield pointed to cases permitting sex discrimination in the health-care setting. In response, the Court pointed out that while gender may be a bona fide occupational qualification for accommodating a patient’s privacy interest, there is no such privacy interest associated with race. Of note to health-care providers is the fact that the Court specifically held that Title VII pre-empts the state regulations pointed to by Plainfield in its defense.

The Court’s summary of its decision provides a directive to health-care provider/employers: “Just as the law tolerates same-sex restrooms or same-sex dressing rooms, but not white-only rooms, to accommodate privacy needs, Title VII allows an employer to respect a preference for same-sex health providers, but not same-race providers.” According to the Court, Plainfield’s exclusion of Chaney from certain residents and work areas solely on account of her race created a racially-charged situation that “poisoned the work environment” and created “fodder” for co-workers’ racially derogatory remarks.
 

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For the second time in as many weeks, a federal appeals court decision rests on the determination that an alleged harasser who makes gender-specific slurs and comments can create a hostile work environment for a female employee, even though the harasser is an “Equal Opportunity Harasser” who makes crass and offensive remarks to “everyone, regardless of gender.” Sharon Kaytor v. Electric Boat Corp., 2d Circ., No. 09-1859-cv, June 29, 2010.

Sharon Kaytor worked for Electric Boat Corporation for nearly 20 years as an administrative assistant, beginning in 1998. During most of that time, Kaytor worked for Daniel McCarthy, one of the managers in the engineering department. Kaytor alleges that in 2004, McCarthy seemed to “undergo a change of character.” Although he didn’t touch Kaytor in a sexual or violent way, McCarthy allegedly began to make inappropriate remarks to Kaytor including references to her body and how she smelled. Further, according to Kaytor, on nearly a dozen occasions, McCarthy threatened to hurt, choke, or kill her. At first, Kaytor ignored the remarks, knowing that McCarthy was going through a divorce. However, in April 2005, Kaytor informed McCarthy that she was going to report certain offensive remarks that he had made regarding Kaytor’s visit to her gynecologist. In response, McCarthy is alleged to have stated “I’ll kill you” if a report was made. Subsequently, for Administrative Assistants’ Day, McCarthy gave to Kaytor a potted plant – a pussy willow – with an arguably sexual message attached to it.

After that incident, Kaytor complained about McCarthy to HR. Immediately following the report, Kaytor was transferred to work for an engineer who reported directly to McCarthy, and who – according to Kaytor – treated her “poorly,” changing her work hours, and screaming at her for the “whole department” to hear.

Although Kaytor continued to work for Electric Boat, she filed administrative charges and, ultimately, in December 2006, a lawsuit alleging retaliation at her job. The lower court granted summary judgment for the company, saying that the incidents complained of by Kaytor were not sufficiently severe and pervasive to constitute a sexually hostile work environment. The court specifically held that “a reasonable jury” could not infer that the multiple threats to kill Kaytor were made “because of Plaintiff’s sex,” and concluded that, absent those threats, the other incidents complained of were not pervasive enough to adversely affect Kaytor’s work environment. The lower court also pointed out that because McCarthy was crass with everyone, regardless of their gender, he was not targeting Kaytor because of her sex.

The Second Circuit disagreed, finding that a rational jury could infer from McCarthy’s sexual comments and inappropriate remarks that the gender neutral threats of violence that he directed toward Kaytor were, in fact, because of her gender. Further, in response to the “Equal Opportunity Harasser” argument, the appellate court pointed out a prior case in which it held that “the inquiry into whether ill treatment was actually sex-based discrimination cannot be short-circuited by the mere fact that both men and women are involved . . . . It would be exceedingly perverse if a male [supervisor] could buy . . . his company immunity from Title VII liability by taking care to harass sexually an occasional male worker, though his preferred targets were female.”

The important issue for employers is that a court’s analysis of whether harassment is “based on sex” will take into account the totality of the circumstances, and will consider both the complainant’s reaction to events and whether a reasonable person would find such events abusive. In addition, evidence that the alleged harasser may have had “designs” on the complainant (as Kaytor alleged that McCarthy had, in this case, based upon his comments about her body and her scent) will add context to other remarks that may not include sexual references or gender-based comment. Importantly, a company must recognize that the fact that an harasser also makes remarks to male employees will not, by itself, serve as a defense to claims for sexual harassment or hostile environment.
 

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The Americans with Disabilities Act defines a disabled individual as a person who suffers from a physical or mental impairment that substantially limits one or more major life activities, or has a record of such impairment, or is being regarded as having such impairment. The “regarded as” provision was established to combat erroneous perceptions that might work to the disadvantage of individuals with impairments that might not rise to the level of an actual disability. The 8th U.S. Circuit Court of Appeals recently upheld summary judgment in favor of an employer who discharged an individual after that person’s physician found that she was not “fit for duty” as an emergency dispatcher. Wisbey v. City of Lincoln, Nebraska, 8th Circ., No. 09-2100, July 6, 2010. There, the court held that if an action taken by an employer is based upon the recommendation of physicians, then it is not based on myths or stereotypes about impaired individuals, and cannot then establish a violation of the “regarded as” provision of the ADA.

Charlene Wisbey began working as an emergency dispatcher for the City of Lincoln, Nebraska in 1979, and successfully held that position until early in 2007. The position requires dispatchers to “think and act quickly and calmly in emergency situations,” and to “function accurately while working under considerable pressure.

On February 27, 2007, Wisbey applied for intermittent FMLA leave on the basis of depression and anxiety. Her FMLA application stated that she had a serious health condition that rendered her unable to perform the essential functions of her job, and was supported by a medical certification from her physician saying that Wisbey suffered from recurring cycle depression and anxiety that interfered with her sleep, energy, motivation, and concentration. The certification included the fact that Wisbey would need to take time off work on an intermittent basis for “6 months or longer.”

In response to the doctor’s evaluation of Wisbey, the City asked Wisbey to undergo a fitness-for-duty examination with a psychiatrist. During her examination, Wisbey described her battle with depression and stated that the emergency nature of her job worsened her condition. After the exam, the psychiatrist submitted a report that stated that Wisbey was not able to fulfill the duties set forth in her job description. The City ultimately terminated Wisbey’s employment, based upon the findings during the fitness-for-duty examination. Wisbey filed suit that included an allegation that her termination was a violation of the ADA. The lower court granted the City’s motion for summary judgment and dismissed the case. That decision was upheld on appeal by the Eighth Circuit.

Because Wisbey conceded that she was not have a disability or a substantially limiting impairment, she brought her claim under the “regarded as” provision of the ADA, arguing that the City perceived her as disabled and fired her because of that. However, in order for an employee to be regarded as disabled, an employer must mistakenly believe that an actual impairment substantially limits that person’s ability to work. Wisbey’s employment was terminated when she was found by a medical provider not to have been fit for duty as an emergency dispatcher. Therefore, the City did not “mistakenly” belive that Wisbey had an impairment that substantially limited her ability to work – she really was unable to do her job due to her condition. Further, while Wisbey argued that the fitness-for-duty exam itself was a violation of the ADA, that law allows employers to require a medical exam if such exam is “shown to be job-related and consistent with business necessity.” The dispatcher job required an ability to focus and concentrate at all times. Wisbey’s own statements regarding her inability to do that was sufficient business justification for the City to ask for an examination to determine whether she could safely continue in that job.

While this decision might seem like a semantic one, it is critical to employers. This case underscores the fact that employers are permitted to use reasonable means to determine whether an employee’s troubling behavior or behavior-related job difficulties limit that person’s ability to do his or her job, and that such reasonable means do not justify an ADA claim. Fitness-for-duty exams typically have been considered by courts to be a reasonable means of making that determination. The reasonableness of an exam will be underscored when the employer can articulate legitimate, non-discriminatory reasons to question the employee’s ability to perform his or her duties.
 

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