By: Ogletree Deakins

The ADA Amendments Act of 2008 (ADAAA) clarified the ADA in a number of ways. In one significant clarification, the ADAAA provides that “an impairment that is episodic or in remission is a disability if it would substantially limit a major life activity when active.” Based upon that wording, a federal district court in the Northern District of Indiana has held that an employee with cancer is considered to be disabled under the Act, even if his condition is in remission at the time of he alleged adverse action taken against help by his employer. Hoffman v. Carefirst of Fort Wayne Inc., N.D.Ind., No. 1:09-cv-00251, 8/31/10.

Stephen Hoffman worked as a service technician in 2007 when he was diagnosed with Stage III Renal Carcinoma, and underwent surgery to remove his left kidney. Hoffman took time off work for surgery and recovery, and returned to his job on January 2, 2008, without restrictions or limitations. As a service technician, Hoffman delivered home medical devices, such as wheelchairs and oxygen tanks to patients. Although his job description with Carefirst required him to be “available after hours and on call,” his typical schedule was 9 a.m. to 5 p.m. on weekdays. Hoffman worked his regular schedule from January 2008 through January 2009, and did not miss significant time from work, other than for regular doctor visits.

On January 26, 2009, Hoffman met with his supervisor, David Long, who told Hoffman that the company had acquired a contract with a hospital system that would require service technicians, including Hoffman, to work substantial amounts of overtime each week, to do a night shift once and week, and to be on call on weekends. Hoffman expressed concern that the required schedule would “put me in the grave.” Hoffman then obtained a note from his doctor that limited him to “8 hours/day, 5 days/week.”

Although Long initially told Hoffman that Hoffman would be fired, he then retracted that statement and said that he company would allow Hoffman to work a 40 hour a week schedule out of its Fort Wayne office. Hoffman objected to that, based on the two hours of additional commuting time that the new location would add to his workday. He told Long that “you have already fired me,” and asked Long to communicate directly with his (Hoffman’s) attorney.

Hoffman then sued Carefirst under the ADAAA, alleging that his renal cancer – which admittedly was in remission at the time of his firing – was a disability. Not surprisingly, Carefirst argues that Hoffman was not disabled, based on the facts that Hoffman had returned to work without restrictions, had worked a full schedule for a year, and did not miss significant time from work during that period. Because the ADAAA went into effect on January 1, 2009, there is little case law under those amendments. However, based upon the clear wording of the Act (that disability includes impairments “in remission” if the impairment would be a substantial limitation when active), the court held that Hoffman did not need to show that he was substantially limited in a major life activity at the actual time of his termination, because his cancer would have substantially limited him, had it been active. It therefore found him to be “disabled” for purposes of the ADAAA, and denied Carefirst’s motion for summary judgment.

One other aspect of this case should be noted by employers: there was no evidence that Carefirst carefully reviewed and discussed possible accommodations with Hoffman before telling him that his only option was working out of another office. Had Carefirst provided evidence that any other accommodation would have created an “undue hardship” for the company, the lower court may have decided that although Hoffman was disabled, Carefirst had offered an appropriate accommodation that was refused by Hoffman.

While it remains to be seen whether this decision is upheld on appeal, the case provides to employers an insight that courts are likely to interpret this particular provision of the new amendments very literally. An impairment from which an individual has recovered, but which may reoccur is likely to be viewed as a disability under the ADAAA.
 

The 7th U.S. Circuit Court of Appeals has held that it is up to a jury to determine whether, in fact, a single instance of uninvited intimate physical contact may be sufficient to support a claim of hostile work environment. Berry v. Chicago Transit Authority, 7th Cir., No. 07-2288, August 23, 2010.

Cynthia Berry was hired by the Chicago Transit Authority (CTA) in 2002 as a carpenter. In January 2006, Berry was one of only two female employees among about 50 individuals working in Area 315, and was the only female of the 15 carpenters working there. During breaks, employees in Area 315 often played cards at a picnic-style table in a break area. During a morning break on January 17 or 18, Berry sat down at the table with three male employees. A fourth male employee, Carmichael, sat down straddling the bench, with his back toward Berry. According to Berry, Carmichael began rubbing his back against Berry’s shoulder. She jumped up, told him to stop, and moved to the other end of the table. Although another employee told Berry to get up, Berry remained seated. Berry alleges that Carmichael then lifted her from behind, grabbing her by the breasts, and rubbed her body against his before throwing her to the ground “with force.” She further alleges that Carmichael then pushed her into a fence.

On the following day, Berry reported the incident to one of her supervisors (Gorman), who – according to Berry – told her that she was a “pain in the butt” and that she could lose her job if she filed charges against Carmichael. Berry alleges that Gorman also said that he was “going to do whatever it takes to protect CTA.” However, Gorman reported the incident to a CTA EEO investigator, and collected statements from Berry and the others who witnessed the incident for review by the investigator. In the meantime, Berry called the police, reporting that she had “been attacked” at work. The police spoke to Berry, Carmichael and Gorman, and determined, based on that investigation, that Berry actually had been the aggressor. The CTA investigation ultimately resulted in the same finding. Berry contends that Gorman sabotaged the investigation to prevent the alleged harassers from being punished; she then filed a lawsuit alleging gender discrimination, hostile work environment, and retaliation. The lower court granted summary judgment in CTA’s favor, dismissing all of Berry’s claims. It dismissed the gender discrimination claim based on the absence of an adverse employment action, and the retaliation claim because Berry raised the issue only during the summary judgment process. The lower court also found that the hostile environment claim could not go forward because CTA took prompt and reasonable steps to discover and rectify the actions complained of by Berry.

On appeal, the Seventh Circuit upheld the dismissal of the gender discrimination and retaliation claims, but reversed the dismissal of the hostile environment claim. In order for that claim to survive summary judgment, Berry had to show that she was subjected to unwelcome conduct because of her sex, that the conduct was so severe or pervasive that it created a hostile environment, and that there was a basis for CTA’s liability. Berry argues that she experienced a hostile environment when Carmichael allegedly rubbed his body with hers; she also argues that Gorman’s dismissive comments to her about her complaints form the basis for CTA’s liability. The lower court had discounted Berry’s uncorroborated testimony on those issues when it found in CTA’s favor.

The Seventh Circuit spelled out the principles upon which it based its decision, specifically finding that personal knowledge or first-hand experience of a plaintiff can create a “disputed fact” that can only be resolved by a jury. According to the Seventh Circuit, the lower court improperly discounted Berry’s testimony, which was based on her own personal encounters with both Carmichael and Gorman and therefore, according to the Seventh Circuit, could create issues of material fact sufficient to preclude summary judgment. The Court further held that a single act can create a hostile environment if it is severe enough. Carmichael’s actions, as alleged by Berry, qualify as such an act. Notably, the Seventh Circuit also determined – based solely on Berry’s uncorroborated testimony of Gorman’s remarks – that a “reasonable factfinder” could come to the conclusion that CTA, through its manager, had “maliciously thwarted any legitimate investigation, and that CTA was therefore negligent or worse in responding to [Berry’s] report of harassment.”

The primary method for employers to avoid this situation is to be able to show thorough and detailed investigation training, and to ensure that managers’ responses to complainant/employees are consistent, objective, and by-the-book, in order to establish some defense to the uncorroborated testimony of such employees.
 

The 5th U.S. Circuit Court of Appeal has held that an impaired individual may not be required to comply directly with her employer’s heightened reporting requirements associated with FMLA leave. Saenz v. Harlingen Medical Center, LP, 5th Circ., No. 09-40887, August 2, 2010.

In order to take a leave under the Family and Medical Leave Act, an employee must comply with reporting requirements codified in the Act and its regulations. Those regulations include a notice provision that requires the employee to provide information, as soon as practicable, that would allow the employer to recognize that the employee is suffering from a condition that may fit the FMLA’s definition of “serious medical condition.” In addition to the basic reporting requirement, an employer may also require employees to provide information during the leave, in order to allow the company to determine whether each such absence is associated with a serious medial condition.

Shauna Saenz was an employee of Harlingen Medical Center (HMC). In 2006, Saenz applied for – and was granted – intermittent FMLA leave for a seizure condition from which she suffered. During each of her absences, she complied with an additional requirement instituted by the company through its insurer (Hartford), that she report the reason for her absence within two days of that specific absence. Saenz was warned that her failure to report within two days could cause the loss of her FMLA status. Between July 24 and December 26, 2006, Saenz was absent on nine different occasions, seeking and receiving approval within two days of each absence, consistent with HMC’s heightened reporting requirement.

On December 25 and 26, Saenz missed work due to seizures, and reported appropriately. However, on December 29-31 and January 3-4, 2007, Saenz again missed work. This time, her absence was due to a psychological condition that ultimately required her to be hospitalized. Saenz’ mother, Rhonda Galloway, contacted Saenz’ supervisor and HMC’s “house” supervisor about the situation, letting them know that Saenz would not be reporting to work. Notably, the house supervisor visited Saenz in the emergency room. Saenz subsequently was admitted to a behavioral clinic until January 2, after which she went to Galloway’s home to recover. Galloway then called Saenz’ supervisor to report Saenz’ status and to make HMC aware that Saenz would not be reporting to work. In total, Saenz missed work on December 29-31, and January 3 and 4 due to her illness.

On January 9, Saenz called Hartford to report her diagnosis (bipolar disorder and depression) and to ask for intermittent leave associated with that condition. Saenz then received a letter dated January 18, 2007 from HMC informing her that her employment was terminated due to non-FMLA approved absences. The letter explained that Saenze should have reported with two days after her release from the hospital on January 2, and that her failure to do so created unexcused absences.

Saenz sued HMC, claiming violation of her rights under the FMLA. The district court granted summary judgment in favor of HMC, but that decision was reversed by the Fifth Circuit. The Court reviewed two issues on appeal: first, whether Saenz was required to comply with HMC’s internally created heightened FMLA notice requirements, and whether Saenz provided adequate notice of her situation under the basic reporting requirements of the FMLA.

First, the Court found that Saenz provided sufficient information for HMC to realize that she was requesting FMLA leave, and did so within two days of her illness. Saenz’ mother contacted HMC to inform them of the new illness, and an HMC supervisor visited Saenz in the emergency room and saw her condition first-hand. HMC was not left to wonder whether Saenz was suffering from a serious health condition, or whether FMLA might apply. The Court found that because a jury could determine that Saenz – through Galloway – had complied with HMC’s heightened reporting requirement, dismissal of Saenz’ claim on summary judgment was inappropriate. The Court then went further, and said that even if Saenz complied with HMC’s heightened standard, HMC would be entitled to summary judgment if Saenz failed to comply with the actual FMLA reporting requirement. However, because the FMLA requires only that an employee contact the employer to state that leave is needed “as soon as practicable” under the facts of the particular case, the Court held that Saenz did, in fact, meet this low threshold through Galloway’s calls to HMC in which she described both Saenz’ symptoms and the significant treatment that Saenz was receiving.

Employers should recognize that while a company is allowed to establish heightened reporting requirements related to FMLA leaves, compliance with those requirements should be determined in light of the specific facts and circumstances of the employee’s situation.
 

The 6th U.S. Circuit Court of Appeals has held that a company that transferred a pregnant employee out of a welding job and into a light duty tool room job without first undertaking an objective evaluation of the employee’s ability to do the welding job may be liable for violation of the Pregnancy Discrimination Act (PDA) or the Americans with Disabilities Act. Spees v. JamesBuilt, LLC, 6th Circ., No. 09-5839, August 10, 2010.

Heather Spees filed claims against her employer, James Marine, Inc. (JMI) alleging that the company violated Title VII’s Pregnancy Discrimination Act and the Americans with Disabilities Act when it moved her from a welding job into a light duty tool room job, and when it ultimately terminated her employment.

Spees became pregnant shortly after being her job as a welder with JMI in 2007. This was her third pregnancy; her daughter was born in 1999, but Spees suffered a miscarriage in 2005. Spees informed her brother (Gunder), who also worked at JMI as a foreman, and her direct supervisor (Milam), of her pregnancy. Gunder believed that the welder duties – especially the lifting and pulling – should not be performed by Spees while she was pregnant. Milam was concerned that, because of Spees’ “complications with other pregnancies,” Spees should not be around “the chemicals, the welding smoke, [and] climbing around on some of the jobs.” Although Spees’ doctor opined that the welding job would be “no problem” and released her to work without restrictions, Milam asked Spees to obtain a second note from the doctor limiting her to “light duty,” which Spees did. Milam then transferred Spees to the company’s tool room, at the same pay and benefits.

Spees worked the daytime shift in the tool room for a week, but then was transferred to the night shift, which conflicted with Spees child-care schedule. A month later, Spees transferred her medical care to another obstetrician, who discovered that Spees had a pregnancy-related medical condition that required total bed-rest. When Spees provided documentation to the company of that fact, Gunder told her that she “was being fired for being pregnant,” and because she had not worked at JMI long enough to have earned FMLA or other additional medical leave.

The district court granted summary judgment for JMI on all of Spees’ claims, holding that the transfer did not constitute the required “adverse employment action” under the PDA, and that JMI’s reason for firing Spees – the fact that her doctor placed her on full bed-rest, and she had no additional available medical leave – was not a pretext for discrimination. The Sixth Circuit reversed the decision regarding the transfer, but upheld the dismissal of the termination claims.

According to the Sixth Circuit, the record in this case included evidence to suggest that Spees’ transfer was a materially adverse change in her employment status, in spite of the fact that her salary and benefits remained the same. The work required fewer qualifications (and therefore, may be viewed as lower status), was “more boring” for Spees than welding had been, and was night-shift work that interfered with her ability to raise her child. Further, Spees was able to present sufficient evidence to allow a jury to find that her pregnancy was a “motivating factor” in her transfer to the tool room job: Milam expressed concerns (which he believed were based on “common sense”) that the fumes would create an unsafe condition for her; and Gunder stated that he did not want to her weld because “she was carrying my niece.” Neither of these managers requested an analysis of the welder position for review by Spees’ doctor, nor did Spees seek the transfer before it was made. In sum, a reasonable jury could find that JMI’s decision that Spees was unable to weld was due to her pregnancy, thereby supporting her PDA claim.

The Sixth Circuit agreed, however, that Spees’ inability to work at all during her period of bed-rest was a legitimate business reason for her termination. That restriction came through no action on the part of JMI and was a decision made solely by Spees’ doctor. That order for bed-rest, coupled with the fact that Spees had no available leave time, was a legitimate basis for the termination.

The Court’s opinion emphasizes the point that an employer cannot make a decision based on suspicion, assumption, or subjective information – even if that decision seems to be in the employee’s best interest. Here, the managers’ view that Spees would be unable to perform her job as a welder because of her prior miscarriage led to the Court’s holding that Spees’ transfer may have been motivated by her pregnancy. That holding in turn resulted in a decision to allow a jury to determine the company’s level of liability for that act.
 

The Americans with Disabilities Act allows an employer to require an employee to undergo a Fitness For Duty Examination (FFDE) when health problems have had a substantial or injurious impact on an employee’s job performance. Such examination must be job-related and consistent with business necessity. The 9th U.S. Circuit Court of Appeals has held – as an issue of first impression for that Court – that an employer also can require an employee to undergo such exam as a “preemptive” measure against potential dangerous or harmful conduct, especially when the employee is engaged in dangerous work. Brownfield v. City of Yakima, 9th Circ., No. 09-35628, July 27, 2010.

Oscar Brownfield began working as a police officer for the Yakima Police Department (YPD) in Yakima, Washington, in 1999. In 2000, he suffered a closed head injury in an off-duty car accident, which caused symptoms that included reduced self-awareness. He returned to work and, over the following three years, received positive performance reviews and several commendations.

In 2004, Brownfield began to complain to his supervisor about another officer, Officer Dejournette, alleging various “shortcomings” on Dejournette’s part, and began to document those perceived failings. In May 2005, after he was reprimanded for a performance issue, Brownfield forwarded his notes to the Chief, Sam Granato. During a subsequent meeting among Brownfield and two of his supervisors, Brownfield used profane language, and left the meeting after being asked to stay. Brownfield was temporarily suspended for insubordination after that incident.

In September 2005, four additional incidents occurred involving Brownfield. First, he engaged in a “disruptive argument” with another officer; second, Brownfield himself reported that he felt himself “losing control” during a traffic stop when a young child was “taunting him” during the stop; third, YPD received a domestic violence call from Brownfield’s estranged wife after Brownfield allegedly stuck her by closing a door on her; and fourth, a YPD officer reported several statements made by Brownfield including a statement that “It doesn’t matter how this all ends.” Those incidents, taken together with the May incident, led the YPD to send Brownfield for an FFDE.

The diagnosis offered by Dr. Decker, who conducted the FFDE in October 2005, was Mood Disorder which manifested itself in “poor judgment, emotional volatility, and irritability,” and was related to Brownfield’s 2000 head injury. Dr. Decker determined that Brownfield was unfit for police duty and was permanently disabled by the condition.

Brownfield subsequently got a second opinion from Dr. Mar, who agreed with Decker that Brownfield was unfit for duty, but believed that Brownfield’s condition might improve with treatment. In December 2006, Mar reported that Brownfield was improving and could return to duty, but at an unspecified date. YPD scheduled another FFDE, this time with Dr. Ekemo (Brownfield refused to return to Decker). Although Brownfield attended an initial session with Ekemo, he refused to return to complete the evaluation, and his employment ultimately was terminated.

Brownfield sued in federal court alleging, among other claims, that the YPD had violated the ADA by requiring him to submit to the FFDE. The district court granted summary judgment in favor of the City, and Brownfield appealed. The lower court’s dismissal was upheld by the Ninth Circuit.

The Ninth Circuit found that the ADA”s directive that a medical exam be “job-related and consistent with business necessity” was quite high, but that the ADA does not require an employer to wait until a perceived threat becomes real or to allow questionable behavior to result in injuries before sending an employee for an FFDE, particularly when the employee is engaged in dangerous work. In interpreting “business necessity,” the Court cautioned that it should not be confused with mere expediency, and that using medical exams to harass employees or to “fish” for non-work-related medical issues could, in fact, violate the ADA. The behavior that triggers such FFDEs cannot be merely annoying; rather, there must be some objective reason to doubt whether the employee can perform his or her job-related functions.

Because the employer bears the burden of demonstrating a job-related reason for an FFDE, employers should understand the relevance and the parameters of the concept of “business necessity,” especially when used as a basis for a preemptory FFDE. Clear, concise, and objective documentation of the incidents that form the basis of the reason for that exam can help to avoid, or to effectively defend against, an employee’s claims under the ADA.
 

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.
 

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.
 

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.
 

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.
 

The 4th U.S. Circuit Court of Appeals has determined 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 sexually offensive remarks to “anybody, any time.” EEOC v. Fairbrook Medical Clinic, P.A., 4th Circ., No. 09-1610, June 18, 2010.

Dr. Deborah Waechter was employed at Fairbrook Medical Clinic, which is owned and run by Dr. John Kessel. During her employment, Waechter was the target of a number of remarks by Kessel having to do with her body, her sexual relationship with her husband, and Kessler’s self-label as a “breast man.” In addition, Kessler made crude jokes to both the men and the women in the office, and reveled in being a “shock jock” who made outrageous remarks to both male and female employees. Waechter ultimately resigned her position and filed a lawsuit against Fairbrook. The lower court granted summary judgment for Fairbrook, dismissing Waechter’s claims with a finding that Kessler’s conduct was not based on Waechter’s gender and was not “severe,” and that it was not uncommon in a medical setting to use off-color jokes to “ease the tension.” The Fourth Circuit disagreed with and reversed that determination.

Title VII of the Civil Rights Act prohibits discrimination “because of sex.” The purpose of this prohibition, according to the U.S. Supreme Court, is to “strike at the entire spectrum of disparate treatment of men and women in employment.” In order to establish a violation of Title VII, an employee must show that the complained-of conduct was unwelcome, was based on her sex, was sufficiently “severe and pervasive” to alter the conditions of her employment and create an “abusive work environment” that was attributable to the employer.

In this case, Fairbrook argued that Kessel did not make the inappropriate remarks to Waechter because of her sex, and argued that Kessel was a generally crude person who made vulgar comments to men and women alike. The Fourth Circuit dismissed that contention, stating that although Kessel made offensive remarks to both men and women, his use of sex-specific and derogatory terms indicated that he intended to demean women. Further, the Court pointed out that Kessel’s proposals of sexual activity were not of the type that would have been made to someone of the same sex, as they involved breast pumping and “wild” sex after pregnancy. Based on these remarks, a jury could reasonably conclude that the purpose of Kessel’s comments was to embarrass and discomfit a woman in his employ.

The Court then addressed the issue of whether Kessler’s comments created an objectively hostile environment. In response to Fairbrook’s argument that employees in a medical clinic deal with human bodies every day and therefore have a more casual response to anatomical references and jokes, the Court responded that Kessel’s remarks went beyond merely crude behavior when they “ventured into highly personal territory,” including Waechter’s pregnancy, her body, and her personal life with her husband. The Court refused to accept the argument that because a medical setting deals with human anatomy on a regular basis, it is somehow “liberated from professional norms.” The Court determined that a jury could find that Kessel’s behavior was sufficiently severe and pervasive to establish an objectively hostile work environment.

While Fairbrook attempted to assert the affirmative defense available to employers since the Supreme Court’s decisions in Faragher and Ellerth in 2008, it was unable to show that it “exercised reasonable care to prevent and correct promptly any sexually harassing behavior.” The clinic never conducted an investigation or took any other corrective actions, in spite of the fact that Waechter complained to Kessel – the owner – on several occasions, and to at least one other manager.

This case raises a number of issues of which employers should be aware. First, the “Equal Opportunity Harasser” defense is not applicable if the remarks made by such a person are gender-based and could be interpreted to shock, intimidate, or alienate an individual of that gender. Second, the casual nature of a workplace is not sufficient to support an argument that harassing and humiliating behavior against one gender is okay. Third, with absolutely no attempt to investigate or otherwise exercise reasonable care to stop the harassment, an employer will be unable to provide the affirmative defense available under the prevailing Supreme Court cases. Antidiscrimination training and policies should be developed and implemented to assist employers in dealing with these issues and in avoiding legal liability for claims of hostile work environment.