Employment Law Alert : Gibbons P.C.: Labor Relations, Employment Contracts, Employee Benefits, & Wrongful Discharge Lawyers & Attorneys

The EEOC’s focus on the protection of LGBT employees follows its April 2012 decision in Macy v. Holder, Appeal No. 0120120821 (April 20, 2012), about which we previously blogged, in which the EEOC determined that Title VII affords protection to these employees. The EEOC also takes the position that discrimination based on sex includes discrimination based on a failure "to conform to socially-constructed gender expectations."

Director Gigante cited the rise in pregnancy-related charges filed by older women and discussed the interplay between the Americans with Disabilities Act, the Americans with Disabilities Act Amendments Act, the Pregnancy Discrimination Act, and the Family Medical Leave Act in pregnancy-related discrimination claims. The EEOC is particularly interested in cases alleging failure to accommodate pregnant employees.

The panel also discussed disability discrimination and failure to accommodate claims, with a particular focus on no-fault attendance and fixed leave policies, both of which have been the subject of litigation by the EEOC. Employers should carefully review their attendance and leave policies to ensure that they do not run afoul of the anti-discrimination laws. Director Gigante emphasized that employers should determine the individual needs of the disabled employee in order to identify reasonable accommodation. While it is important to initiate the accommodation process to ensure compliance, Director Gigante noted that the employer need not accept the specific accommodation requested by the employee and that undue hardship to the employer remains a valid consideration.

With respect to recruitment and hiring, Director Gigante reiterated the EEOC’s continuing concern with facially-neutral pre-employment tests and requirements that have a disparate impact on employees belonging to a protected class. Moreover, employers can expect close scrutiny if they elect to use background checks and criminal history reports to screen applicants. It is critical that employers be familiar with the EEOC’s April 2012 guidance on the use of criminal background checks, including the need to perform individualized assessments, and with any state or local laws that may impose further limitations. In addition, the EEOC’s Plan specifies that it will specifically target a number of additional discriminatory recruitment and hiring practices, including exclusionary practices and policies, channeling/steering individuals into jobs due to their status in a particular group, and restrictive application processes.

For information on how employers can protect their businesses and comply with the law, or for an audit of workplace policies and practices, please feel free to contact an attorney in the Gibbons Employment & Labor Law Department.

Susan L. Nardone is a Director in the Gibbons Employment & Labor Law Department. Daniel A. Schleifstein, an Associate in the Gibbons Employment & Labor Law Department, co-authored this post.

The Appellate Division’s Opinion

The New Jersey courts have long recognized alcoholism (established by sufficient medical evidence) as a disability for purposes of the LAD. The Appellate Division noted that the evidence indicated that plaintiff was terminated solely because she failed the breathalyzer test, and the Court assumed for purposes of the summary judgment motion that plaintiff’s job performance was at all times satisfactory. Also, there was apparently no contention by the employer that plaintiff had consumed alcohol while on company premises. For the Appellate Division, the issue before it was whether the employer’s abstinence and testing policies discriminated against alcoholics because of their disability. In this regard, the Court held that these policies constituted direct evidence of discrimination because they expressly targeted self-declared alcoholics and were not applied to non-alcoholics. This direct evidence of discrimination imposed on the employer the burden of establishing one of the LAD’s affirmative defenses to handicap discrimination, that is, that plaintiff was unable to perform the functions of her job or that she posed a “safety risk” to herself or to others because of her disability. As to plaintiff’s job performance, the Court ruled that ExxonMobil had not come forward with evidence concerning plaintiff’s job performance that would warrant summary judgment. As to the issue of whether plaintiff posed a safety risk, the Court ruled that ExxonMobil had not made the required individualized assessment to determine whether plaintiff had caused or would likely cause injury to herself or to others, but had simply applied a policy that made no distinction between alcohol use and alcohol abuse that would “with a reasonable degree of certainty” result in injury. Absent such an individualized assessment, there was simply no evidence that plaintiff posed a safety risk. The Court also rejected the employer’s argument that its policies constituted “a reasonable accommodation” for plaintiff’s disability. The Court reasoned that plaintiff had not asserted a failure to accommodate claim and that the employer was not contending that plaintiff could not do her job in the absence of an accommodation. The Appellate Division remanded the case to the Trial Court to give the employer an opportunity to establish any performance-based reasons for plaintiff’s termination.

It is important to note that the Court was careful to emphasize that the case did not involve, and its decision was not intended to impact, “last chance agreements.” These agreements are used by employers after an employee has demonstrated a performance problem or committed an infraction that would justify termination. Under a last chance agreement, the employee agrees to abide by a certain set of conditions, e.g., drug or alcohol treatment followed by testing, in order to keep his or her job. The Court made clear that employers are free to terminate employees who violate their last chance agreements.

Conclusion

The Appellate Division’s decision does not interfere with an employer’s ability to terminate employees with disabilities who cannot perform the essential functions their jobs even with accommodations or who violate prohibitions against alcohol or drug use while on the job. The decision, however, does put employers on notice that before action can be taken against employees with alcohol-related or drug-related disabilities, employers must make an individualize assessment of the employee’s performance and/or any safety-related issues that may be involved. Employers should make any necessary modifications to their drug testing policies accordingly.

For answers to questions regarding drug and alcohol polices or testing in the workplace, please feel free to contact an attorney in the Gibbons Employment & Labor Law Department.

Richard S. Zackin is a Director in the Gibbons Employment & Labor Law Department.

Ms. Bird, and other panelists, will help layout a road map for employers who are navigating the complex New Jersey laws governing employee leave. The panel will provide in-depth guidance on how to comply with the numerous overlapping, and sometimes conflicting, federal and state laws.  Relevant cases as well as practical examples to ensure a sound understanding of the current leave laws and laws that may be on the horizon will also be discussed. For more information or to register for this program, please click here.

In US Airways, Inc. v. Barnett, the Supreme Court held that “in the run of cases” it would be an “undue hardship” under the ADA to require an employer to forego its well established seniority system in filling a vacant position in favor of a disabled employee. The Court reasoned that seniority systems provide “important employee benefits by creating, and fulfilling, employee expectations of fair, uniform treatment. These benefits include ‘job security and an opportunity for steady and predictable advancement based on objective standards.’" But seniority systems aside, the Supreme Court ruled that an accommodation request to fill a vacant position should not be considered unreasonable merely because it provides a “preference” in the sense that it permits a disabled worker “to violate a rule that others must follow” or merely because the employer’s policy for filling vacancies is disability-neutral.

In light of Barnett, the Seventh Circuit concluded that requiring an employer to forego a policy of filling a vacant position with the best qualified candidate would not automatically constitute an undue hardship for ADA purposes. The court reasoned that such policies do not present the issues of property rights and administrative concerns presented by seniority polices. Although the court did not hold that policies such as United’s could never constitute an undue hardship, and ruled that the district courts should evaluate such policies on a case-by-case basis, the clear import of the court’s decision is that in “the run of cases” requests by disabled employees to fill vacant positions will be deemed a reasonable accommodation and employers will have a heavy burden to demonstrate undue hardship if required to forego a policy of filling vacancies with the most qualified candidates.

Conclusion

The Seventh Circuit is now the third circuit court to have concluded that an employer’s policy of filling vacant positions with the best qualified person at the expense of a disabled employee is suspect under the ADA. Only one court has held to the contrary, and in that case the Supreme Court granted certiorari only to have the case settle before the Court could decide the issue. Although in most jurisdictions there is currently no definitive ruling on the issue, a “reading of the tea leaves” strongly suggests that an employer who cannot demonstrate a significant hardship if it were to grant a disabled employee’s request to fill a vacant position runs a considerable risk that it will not fare well in any ensuing litigation. If you have any questions regarding the accommodation of disabled employees, please feel free to contact any of the attorneys in the Gibbons Employment & Labor Law Department with any questions that you may have.

Richard S. Zackin is a Director in the Gibbons Employment & Labor Law Department.

District Court Decision

The District Court concluded that Macfarlan was precluded from arguing that, at the time he sought restoration, he was able “to perform the essential functions” of his job, as required by the FMLA, despite his physician’s restrictions. The District Court concluded as much based upon the doctrine of judicial estoppel, which prevents a litigant from asserting a position inconsistent with one that he has previously asserted in the same or in a previous proceeding. The inconsistent position referenced by the District Court pertained to Macfarlan’s representations to Unum in connection with his application for short-term disability benefits. There, Macfarlan submitted documentation from his physicians that stated “he was unable to perform the material duties of his regular occupation.” The issue on appeal was whether (a) Macfarlan in fact made inconsistent representations, and (b) if he did so, whether he could nonetheless provide an adequate explanation for the inconsistency.

Third Circuit Decision

The Third Circuit determined based on the documentation Macfarlan submitted to Unum and Unum policy that disability benefits are provided “while you are unable to perform the material duties of your regular occupation” that there was no question that Macfarlan did in fact take the position vis-à-vis his insurer that he was medically unable to perform his occupation’s material duties. The Appellate Panel quickly dismissed Macfarlan’s attempts to explain this inconsistency, stating that his two claims “crash face first against one another, and the first estops the second.” As a result, the Court affirmed the District Court’s denial of Macfarlan’s FMLA claim.

Conclusion

Although largely fact-sensitive, the Macfarlan opinion is a noteworthy victory for employers as it reaffirms an employer’s right to refuse reinstatement under the FMLA to an employee who cannot otherwise perform the essential functions of the job. The Court’s decision reflects the fact that employers are not legally obligated by the FMLA to provide reasonable accommodations to employees to facilitate their return to work at the conclusion of their FMLA leave. It is also worth noting that Macfarlan apparently did not request an accommodation for his weight-lifting restriction. Employers remain obligated by the Americans with Disabilities Act and the laws of a number of states to assess whether requests for accommodation by disabled employees returning from leave are reasonable and should thus be granted.

In light of the Macfarlan case, employers should review their internal leave policies to ensure that they comply with the requirements of the FMLA and other applicable laws. Employers are also reminded to regularly update their job descriptions and requirements, so as to place themselves in the best possible position to withstand lawsuits such as the instant case. As always, before taking employment action against an employee on or returning from job-protected leave, employers should consult with legal counsel to ensure they have complied with legal obligations under the FMLA, ADA and other applicable laws. The attorneys in the Gibbons Employment & Labor Law Department regularly assist employers in these reviews and other employment and labor matters.

Michael J. Riccobono is an Associate in the Gibbons Employment & Labor Law Department.

In United Airlines, the panel hearing the appeal concluded that it did not have the authority to reverse the Court’s earlier decision in Humiston-Keeling. Finding the logic of the EEOC’s position persuasive, however, the panel “strongly” recommended en banc consideration of the issue. The other circuits that have considered the precise issue are divided. The Eighth Circuit has adopted the Seventh Circuit’s position, but the Ninth and Tenth Circuits have concluded that employers must demonstrate “undue hardship” for ADA purposes when rejecting an accommodation request for a vacant position and cannot merely rely on the availability of more qualified candidates.

Conclusion

It is likely that the Supreme Court will take up this issue at some point. Indeed, the Supreme Court granted certiorari in the above-noted Eighth Circuit case, but the case settled before the Court could render a decision.

Employers should review requests to fill vacant positions as an accommodation on a case-by-case-basis. Although in most jurisdictions there is currently no definitive ruling on the issue, an employer who cannot demonstrate undue hardship when denying such a request in favor of a more qualified employee runs a not insignificant risk that it will not fare well in any ensuing litigation.

If you have any questions regarding the accommodation of disabled employees, please feel free to contact any of the attorneys in the Gibbons Employment & Labor Law Department with any questions that you may have.

Richard S. Zackin is a Director in the Gibbons Employment & Labor Law Department.

Second Circuit Opinion

On appeal, the Second Circuit, held that the district court erred in concluding that an employer had no obligation to assist in an employee’s commute, stating that “there is nothing inherently unreasonable . . . in requiring an employer to furnish an otherwise qualified disabled employee with assistance related to her ability to get to work.” As a result, the Second Circuit remanded the case to the district court to consider “whether it would have been reasonable for defendants to provide assistance related to Tinkelman’s ability to get to work.” The Court specifically focused on the fact that Plaintiff had worked for many years in a more suitable location and, as a result, the district court “should have considered whether defendants could have reasonably accommodated her needs simply by transferring her back to Queens or another closer location, allowing her to work from home, or providing a car or parking permit.”

Nonetheless, because “determining whether a particular commuting accommodation is reasonable normally involves a fact-specific inquiry,” the Second Circuit offered a non-exclusive list of factors to assist the district court’s determination of reasonableness on remand:

• The number of employees employed;
• The number and location of its offices;
• Whether other available positions existed for which the Plaintiff was qualified;
• Whether Plaintiff could have been transferred to a more convenient office without unduly burdening Defendants’ operations; and
• The reasonableness of allowing her to work without on-site supervision.

Implications for Employers

The Nixon-Tinkelman decision provides guidance to employers on how to evaluate and handle reasonable accommodation requests related to an employee’s commute. As noted above, the decision is also in line with a number of decisions from other jurisdictions determining whether an employer is required to accommodate commute-related requests. For example, in Colwell v. Rite Aid Corp, the Third Circuit Court of Appeals, covering the states of New Jersey, Pennsylvania, and Delaware, held that changing an employee’s work schedule “in order to alleviate her disability-related difficulties in getting to work is a type of accommodation that the ADA contemplates.” The plaintiff in Colwell requested she only be scheduled to work day shifts due to a vision-impairment that affected her ability to operate a vehicle at night. Similarly, the Ninth Circuit Court of Appeals, in Livingston v. Fred Meyer Stores, Inc., found that the plaintiff’s difficulties in commuting to work due to a vision-impairment required accommodation by the employer, because “seeing” was a major life activity.

The opinions discussed above create a number of issues to which employers must be sensitive. First, the cases make clear that reasonable accommodations are not simply limited to an employee’s on-site work performance, but may, under the appropriate circumstances, also include a duty to accommodate an employee’s limitations in commuting to and from their places of employment. Second, employers should remember that while it is “generally the responsibility of the individual with a disability to inform the employer that an accommodation is needed,” employers are obligated to engage in good faith in the interactive process with respect to all disability-related accommodation requests. Thus, although employers are not obligated to provide accommodations that would cause them “undue hardship,” requests for reasonable accommodations relating to commuting issues must be considered on a case-by-case basis and should not be rejected out of hand.

To discuss any of your company’s employment-related needs, contact any attorney in the Gibbons Employment & Labor Law Department.

Michael J. Riccobono is an Associate in the Gibbons Employment & Labor Law Department.

The Court’s Decision

In denying the employer’s motion for summary judgment, the court rejected the employer’s arguments that Hoffman was not disabled because his cancer was in remission and because he had worked full time for a year without restrictions. Relying on the expanded definition of disability in the ADAAA, the court held that Hoffman did not need to show that he was substantially limited in a major life activity at the time he requested an accommodation because his cancer, although in remission, would have substantially limited a major life activity if it were active.

Also of importance is the court’s treatment of the reasonable accommodation issue. The court noted that Carefirst failed to provide any evidence that the requested accommodation (allowing Hoffman to work from home) would have created an undue burden on the company. How much would it cost? How would it affect other service technicians’ workload? Were there enough customers in Hoffman’s home area to justify Hoffman having a continuous home office there? The court’s discussion on this point suggests that had Carefirst provided such evidence, the court may have found that Carefirst had satisfied its duty under the ADA to offer a reasonable accommodation.

Conclusion

It is important for employers to be cogniznant of the ADAAA’s expanded definition of “disability.” “Disabled” employees now include those whose impairment is episodic or in remission at the time an adverse employment action is taken or a request for an accommodation is made. Moreover, the Hoffman case highlights the importance of engaging in the interactive process with employees who have requested accommodations - even when the employee’s impairment may not be immediately noticeable by the employer. Of course, should this issue arise, the employer should consult with legal counsel before taking any adverse action against the employee.

Michael J. Riccobono is an Associate in the Gibbons Employment Law Department.