Once an Accommodation, Always an Accommodation?

A parts clerk suffers a stroke. Following the stroke, the clerk returns to work without restrictions but still has difficulty moving his left side. The clerk, however, continues to receive rehab and all parties expect that his condition will improve. Based on that expectation, the clerk’s supervisors tell him that they will accommodate him as best they can as long as he can reasonably perform most of his job, which happens to include being able to lift 50 pounds. Over the next 15 months, the clerk has difficulty completing all of his tasks in a safe and timely manner, but his employer elects not to reprimand him in light of his full release and the expectation that he will continue to improve. The employee does not improve, though, and so the employer offers the clerk a job transfer. The employee accepts but fails to adjust to the new position, and the employer terminates his employment. The clerk then sues claiming that, because the employer accommodated him for 15 months without complaint, it was obligated to continue doing so.

The question is: Is he correct?

A federal district court in North Carolina recently tackled this question and—based on the specific facts of the case—answered it with a “no.”

In Moore v. Wal-Mart Stores East, LP, the court noted that, even after 15 months, the clerk was unable to perform the essential functions of his job with or without a reasonable accommodation. He could not, for example, lift more than 20 pounds or safely climb ladders on his own and could only do so with assistance from others, which the court noted was unreasonable because it effectively reallocated the job’s essential functions to others.

As for the clerk’s claim that the employer was obligated to continue providing the accommodation it had given him for 15 months, the court found that the employer was not required to maintain a diminished level of exertion indefinitely. Although the employer had accommodated the clerk by allowing him to resume working while only performing certain functions, there was no legal duty to create a “permanent light-duty position that does not otherwise exist.”

According to the court, it could not punish the employer by deeming it to have “conceded the reasonableness of so far-reaching an accommodation.” Otherwise, it would discourage employers “from doing precisely what was done here, which was to temporarily lessen the physical requirements of a job in hopes that the employee’s functional capacity would be restored.” That result, said the court, would clearly be at odds with the purpose of the Americans with Disabilities Act (ADA).

Maine Law Court charts Different Course for Age Discrimination

It is not often that the Law Court interprets the Maine Human Rights Act (MHRA) differently from its federal counterparts.  In a recent decision, though, the Law Court did exactly that – it held that the standard for evaluating claims of disparate impact age discrimination under the MHRA is different from the standard under the federal Age Discrimination in Employment Act.

Scamman v. Shaw's Supermarkets, Inc.

Unlike disparate treatment claims, which are based on an employer’s alleged intentional discrimination against an individual based on a protected status, disparate impact claims arise where an employee alleges that he or she is a member of a protected class that is disproportionately affected by a practice of the employer.  In  Scamman v. Shaw’s Supermarkets, Inc., several employees filed a charge of discrimination with the Maine Human Rights Commission alleging that they were terminated by Shaw’s as part of a reduction in force that disproportionately affected older employees.  

Shaw’s explained the reduction in force was necessitated by cost-cutting business imperatives.  The investigator analyzed the employees’ claim using a burden-shifting framework that federal courts apply to disparate impact claims under Title VII and which requires an employer to produce evidence that its practice is justified by “business necessity.”  Ultimately, the Commission determined that there were reasonable grounds to believe that Shaw’s discriminated against the employees based on a disparate impact theory, and the Commission voted unanimously to adopt the investigator’s analysis and recommendation. The employees then sued in Superior Court, but Shaw’s removed the case to the U.S. District Court.  

Once there, Shaw’s raised a threshold issue: is the “business necessity” framework the correct standard to apply to disparate impact age discrimination claims under the MHRA, or does the “reasonable factor other than age” (RFOA) standard from the ADEA apply instead?  This was a threshold issue because the parties agreed that if the RFOA standard applied, Shaw’s would be entitled to judgment as a matter of law.  Unlike the “business necessity” framework, the RFOA standard does not inquire into whether an employer’s practice constitutes a business necessity; rather, once an employee shows evidence of a policy or practice with a disparate impact, an employer simply must show that the challenged practice is based on a reasonable factor other than age.  The result is that the scope of disparate impact liability is narrower under the ADEA than it is under Title VII. 

Because there was no controlling precedent, the District Court certified to the Law Court the question of which standard applies to disparate impact age discrimination claims under the MHRA.  After reviewing the text of the MHRA and finding it unclear, the Law Court deferred to the Commission’s interpretation of the statute and its conclusion that the “business necessity” standard is the applicable standard.  The Law Court found that this was a reasonable interpretation based on the legislative history of the MHRA and the fact that, despite being amended multiple times, the statute has never contained an RFOA provision like the ADEA.  And, while the Law Court acknowledged that it often looks to federal law to interpret the MHRA, it observed that it has done so only when the “federal and state laws are substantially identical,” which the Law Court found was not the case here given the absence of any RFOA provision in the MHRA.

Take home for Employers

Where policies are challenged under the MHRA on the grounds that they disproportionately affect older workers, it is now clear that employers seeking to justify those policies will not be able to do so simply by showing that the impact is based a reasonable factor other than age.  What remains to be seen is the effect that this decision may have on other potential differences between the MHRA and the ADEA, such as the applicable standard for causation – “mixed-motive” or “but-for” – in cases of intentional age discrimination.  The take-home for employers is that claims for disparate impact age discrimination under the MHRA will now be evaluated using a burden-shifting “business necessity” framework, not the more generous “reasonable factor other than age” standard under the ADEA. Stay tuned.    

Recent Decision Explores Issues of Mental Disability and Violence in the Workplace

A federal district court recently grappled with whether an employer’s termination of an employee for engaging in violent behavior was lawful, where the employee’s behavior was related to an underlying mental impairment.  Joining other courts, the district court found that the employer was justified in letting the employee go for unacceptable workplace behavior, even though the conduct may have resulted from her underlying conditions with anxiety and depression.

In Felix v. Wisconsin Department of Transportation, Felix was employed as a customer service agent and driving test proctor.  Her job involved both working behind a counter to process driver’s license applications, and administering road tests.  During her employment, Felix experienced anxiety at work that resulted in panic attacks.  Her employer accommodated these incidents by letting Felix take breaks to do breathing exercises and calm down.

The incident leading to Felix’s termination occurred after she suffered a particularly acute panic attack, when a supervisor found her lying on the floor and crying loudly while trying to speak.  She had visible cuts on her wrist and could be heard saying things like “everybody hates you” and “they want to get rid of you.”  After an ambulance arrived and Felix calmed down, she was moved to a break room.  The next day, Felix was informed that she would need to undergo an independent medical exam to determine whether she was fit to return to duty, as the DOT was concerned both for her own safety and the safety of applicants with whom she drove.  Ultimately, the medical examination concluded that Felix remained at increased risk for potentially violent behavior toward herself and others.  Based on those results, the DOT terminated her employment on the grounds that she was unfit for duty.

Affirming the DOT’s decision, the court determined that it was undisputed that Felix’s termination was due to her behavior, which led the DOT to determine she was unfit for duty.  The court noted that, absent a disability, the DOT would have been justified in terminating any employee who engaged in similar behavior.  Although Felix argued that the DOT was wrong in its assessment of her fitness for duty, the court explained that was beside the point:  the issue was not whether the DOT’s reliance on the medical report was wrong, but whether the DOT’s explanation for her termination was dishonest and pretext for terminating her because of a disability.  In short, the court found that the DOT was not required to tolerate Felix’s conduct, and that her termination was due entirely to unacceptable workplace conduct, not because of a disability.