June 30, 2015
1. Kroll v. White Lake Ambulance Auth. (6th Cir. Aug. 19, 2014): Summary judgment for the employer, who had mandated psychological counseling of an employee based on her “erratic behavior,” was not appropriate in
this case:
a. It is the employer’s burden to prove that a medical examination is job-related and consistent with business necessity. A medical
examination cannot be imposed merely because it is expedient or convenient; rather, the employer “must have a reasonable belief
based on objective evidence that the employee’s behavior threatens a vital function of the business.”
b. The decision to require a medical examination is only justified if it was reasonably based on objective evidence known to the supervisor who ordered the examination. While it is permissible to impose a medical examination when there is a “genuine reason to doubt whether that employee can perform job-related functions,” and while a genuine reason may occur due to an employee’s “aberrant behavior,” in this case, the supervisor ordered the medical examination after only one report of work-related “aberrant behavior.”
c. The court held that evidence of the employee’s emotional outbursts off work were not sufficient to justify the medical examination, because a reasonable jury could find that those off-work outbursts did not interfere with the employee’s ability to perform her essential job functions.
2. Ward v. McDonald (D.C. Cir. Aug. 12, 2014): Dismissing employee’s failure-to-accommodate claim based on the finding that the employee caused the breakdown in the interactive process:
a. Management met with the employee to discuss her request to work at home full time as a reasonable accommodation for her lymphedema and management requested additional information from employee’s physicians;
b. After receiving the additional information, management stated that it was not yet persuaded that employee could do her work, even if allowed to work from home, and asked for further information from her doctors;
c. Rather than respond, employee gave notice of resigning based on non-accommodation.
3. Solomon v. Vilsack (D.C. Cir. Aug. 15, 2014): Summary judgment for the employer was not appropriate on employee’s failure-to-accommodate
claim; a “maxiflex scheduled” was not unreasonable as a matter of law where: employee had allowed a flexible schedule in the past and the
employee had successfully performed her job and met all deadlines; and “[t]echnological advances and the evolving nature of the workplace” mean that attendance at work no longer automatically translates to physical presence during pre-set hours.”
4. Hwang v. Kansas State Univ. (10th Cir. May 29, 2014): Employer allowed six months of leave for employee who needed cancer treatment, but
refused to grant additional leave, citing its six-month leave policy. Under the Rehabilitation Act (which is substantially similar to the ADA), the
court held that the employee could not show she was a qualified individual with a disability because of her inability to do the job at all: “[It is] difficult to conceive how an employee’s absence for six months – an absence in which she could not work from home, parttime, or in any way in any place – could be consistent with discharging the essential functions of most any job in the national economy today.”
Although a leave of absence may be required as a form of reasonable accommodation, the difference between a reasonable and unreasonable
amount of leave depends on factors such as the following:
• The duties that are essential to the job in question;
• The nature and length of the leave sought; and
• The impact on fellow employees.
The court rejected the EEOC’s position that inflexible leave policies are inherently discriminatory. According to this court, inflexible leave
policies are subject to attack if they provide “unreasonably short” leave periods that may result in termination of employees who could perform
their jobs’ essential functions “with just a little more forgiven absence,” or if they are applied inconsistently. For an inflexible leave policy to be
stricken, the plaintiff must show that reasonable accommodation was possible and was prevented by the employer’s policy given the facts of the
employee’s specific situation.
1. Religious Discrimination
a. EEOC’s Publications on Religious Garb and Grooming in the Workplace (issued Mar. 6, 2014): The EEOC’s position is that
“[i]n most instances, [covered] employers are required … to make exceptions to their usual rules or practices to permit applicants and
employees to observe religious dress and grooming practices.” The exception is that accommodations that would pose an “undue
hardship” are not required. Among other principles notes in the guidance are the following:
• Requiring an employee's religious garb, marking, or article of faith to be covered is not a reasonable accommodation if that would violate the employee's religious beliefs.
• An employer may bar an employee's religious dress or grooming practice based on workplace safety, security, or health concerns only if the circumstances actually pose an undue hardship on the operation of the business, and not because the employer simply assumes that the accommodation would pose an undue hardship.
• When an exception is made as a religious accommodation, the employer may still refuse to allow exceptions sought by other employees for secular reasons.
• Neither co-worker disgruntlement nor customer preference constitutes undue hardship.
• It is advisable in all instances for employers to make a case-bycase determination of any requested religious exceptions, and to train managers accordingly.
b. Nobach v. Woodland Village Nursing Ctr., Inc. (5th Cir. Aug. 7, 2014): Employee, a nursing home activities aide, was terminated for refusing to pray the Rosary with a patient at the patient’s request. Employee alleged she was terminated for exercising her religious beliefs, and jury agreed. The Fifth Circuit reversed, however, because there was no evidence that the employee had informed the employer of her religious objection to praying the Rosary until after her termination. Employer could not have violated Title VII if it was unaware of employee’s religious-based objection.
2. Retaliation
a. Montell v. Diversified Clinical Servs. (6th Cir. June 27, 2014): Summary judgment for employer on former employee’s retaliation claim not warranted. The employee, who was on a performance improvement plan, had filed a sexual harassment complaint against her supervisor. Rather than continue through the performance improvement plan period, the next day, her supervisor told her she should resign or be fired. The temporal proximity and deviation from the performance improvement plan were sufficient evidence of retaliation to deny summary judgment to the employer.
3. Race Discrimination
a. Muhammed v. Caterpillar, Inc. (7th Cir. Sept. 9, 2014): Dismissal of race harassment claim was appropriate based on the employer’s
sufficient investigation of and response to the employee’s complaints:
• On each of three occasions when employee reported racial graffiti on bathroom wall, the employer quickly hired a painting company to paint over the graffiti;
• After the third incident, each worker on the shift was warned that the employer would immediately fire anyone caught defacing the walls;
• Because the employer’s prompt response stopped the conduct, the employer could not be liable under Title VII for not doing more to determine who was responsible for the graffiti (as the employee argued).
b. Adams v. Austal, U.S.A., L.L.C. (11th Cir. June 17, 2014): 24 current and former African-American employees brought racial harassment claims based on racial graffiti, nooses, displays of Confederate flags and racial slurs. The key issue on appeal was whether a plaintiff’s claim could be based on evidence of which the plaintiff was not personally aware. In a deviation from at least one other federal court of appeals, the Eleventh Circuit held that a plaintiff cannot support his claim with evidence of which he was personally unaware.