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In the Fifth Circuit, Attendance May be an Essential Function of Most Jobs and Telecommuting is Not Necessarily a Reasonable Accommodation

With the advent of an increasingly interconnected economy and advancement in technology permitting employees to, in many cases, work seamlessly from home, employers are increasingly facing requests from allegedly disabled employees to permit long-term and/or permanent telecommuting as a reasonable accommodation for their alleged disabilities. Under the ADA, of course, employers must generally engage in an interactive or collaborative process with the employee claiming to be disabled to accommodate the known limitations of an employee’s disability, if possible; assuming the employee can perform the essential functions of the job.

But in light of existing technology, is open-ended telecommuting a reasonable accommodation?

Probably not, at least in the Fifth Circuit.

In Credeur v. State of Louisiana, the Fifth Circuit recently concluded that in most cases employers are not obligated to permit telecommuting as a reasonable accommodation. And, importantly, the Court reaffirmed the proposition that it is, in the first instance, within employers’ sound discretion to identify the “essential functions” of their jobs, which may include attendance. Those “essential functions” are critical to the analysis because to be “qualified” under the ADA, the employee must be able to perform the essential functions of the job with or without reasonable accommodation.

The Court’s determination arose in the context of a lawsuit brought by a litigation attorney in the State of Louisiana’s Office of the Attorney General who sued when her request for indefinite telecommuting was rejected. She argued that working in the office was not an essential function of the job and, following complications from a kidney transplant, working from home was necessary. The Fifth Circuit, however, noted that “regular work-site attendance is an essential function of most jobs” and particularly where the job is interactive and involves a significant degree of collaboration or teamwork. Further, the Court noted that it must give the greatest weight to the employer’s judgment as to the job’s essential functions. The employee’s subjective judgment does not create a genuine dispute of material fact sufficient to withstand the employer’s motion for summary judgment.

That is, it is not enough for the employee to merely proffer her opinion that it isn’t necessary to be in the office or that a particular employer requirement is unnecessary. Instead, the Court does not allow employees to define their jobs’ essential functions based solely on their own personal opinions, viewpoints, and experience.

“Construing the ADA to require employers to offer the option of unlimited telecommuting to a disabled employee would have a chilling effect. Rather than offer such benefits, companies would tighten their telecommuting policies to avoid liability. The ADA does not require an employer to ‘reallocate essential functions’ to accommodate an employee with a disability.”

Notwithstanding the favorable Fifth Circuit assessment of the issue, employers should approach such situations cautiously. In all likelihood, a court’s assessment will be a case-by-case determination predicated upon the specific job at issue, the tasks involved, and prior analysis of the issue by the employer. To that end, employers would be well advised to revisit their job descriptions and their policies with respect to telecommuting employees.

Credeur v. State of Louisiana, No. 16-30658 (5th Cir., June 23, 2017)

Sixth Circuit Determines Employer Cannot Be Held Liable Under Title VII for Sexual Harassment By Manager Who Lacked Actual Authority to Take Tangible Employment Action

In a sexual harassment lawsuit brought by the EEOC, the Sixth Circuit last week affirmed the lower court’s summary judgment for the employer, concluding that “[b]ecause [the manager] did not take any tangible employment action against his co-workers and indeed had no authority to do so, the manager was not a supervisor under Title VII and thus [the employer] cannot be liable for the conduct alleged.” EEOC v. AutoZone, Inc., No. 16-6387 (6th Cir. June 9, 2017).

The EEOC filed suit against AutoZone based on allegations that a store manager had sexually harassed several store employees. Importantly, neither the district court nor the court of appeals relied on the accused harasser’s job title – store manager – to impose vicarious liability on the company. Instead, the courts were persuaded by the store manager’s actual job duties and responsibilities, which did not include the authority to fire, demote, promote, transfer or otherwise impose adverse employment action against employees.

Whether the store manager was a supervisor is critical to an employer’s vicarious liability under Title VII. As the Sixth Circuit explained, employers are vicariously liable for a supervisor’s sexual harassment without any showing of employer negligence if the agency relationship (e.g., status as supervisor) aided the harassment. If the alleged harasser is not a supervisor, however, the employer may be held liable if it was negligent in controlling working conditions (i.e., knew or should have known of the harassment but failed to take prompt and appropriate corrective action). And the Court noted that an employee is a “supervisor” for purposes of vicarious liability under Title VII if he or she is empowered by the employer to take tangible employment actions against the victim.

In this case, the Sixth Circuit reviewed the evidence of the store manager’s authority and found that he was not a supervisor for purposes of Title VII liability. He did not have authority to take tangible employment action against the victims. AutoZone did not, for example, empower the store manager to fire, demote, promote, or transfer any employees. Although the store manager could initiate the disciplinary process and recommend demotion or promotion, his recommendations were not binding, and his ability to influence the district manager did not suffice to turn him into his victims’ supervisor. Nor did his ability to direct the victims’ work at the store or his title as “store manager” make him the victims’ supervisor for purposes of Title VII.

An important takeaway from this opinion for employers is the prospect of focusing courts on the actual authority of management-level personnel, or, more precisely, the lack of such authority, as a legal defense to vicarious liability under Title VII. Whether, regardless of job title, the accused harasser has actual authority to take tangible employment action against his victims may be critical to the employer’s legal defense.

Precepts for Workplace Investigations

Harassment and discrimination complaints in the workplace have become increasingly common in recent years. As such, most employers will face such a complaint by one of their employee at some point during the operation of their business. How the employer responds may be critical to the potential imposition of liability (and to the employer’s legal defense).

Almost invariably, the employer will be best served by taking the complaint seriously and conducting an objective, thorough investigation into the allegations. Although the specific allegations at issue will dictate the precise nature of the ensuing investigation, employers would be well served following some general guidance for workplace investigations:

  • Respond promptly. Rather than allowing the complaint to languish or delaying the response, employers should initiate an investigation promptly after receiving the complaint, and inform the complainant that it is doing so. A timely response suggests the employer takes the complaint seriously and keeping the complainant informed of the process may build better good will or minimize animosity toward the company itself.
  • Confidentiality. To the extent possible, the employer should keep the allegations and the investigation confidential. Undoubtedly, word will spread that something is going on, but the employer should do its best to keep a lid on the investigation, its subject matter, and material learned.
  • Objectivity. The employer should conduct an objective, unbiased investigation. To that end, consideration should be given to retaining a neutral third-party like a lawyer or HR consultant to conduct the investigation rather than another employee. Otherwise, the employer may face criticism that the investigation was a sham with a desired outcome already in mind or that it was necessarily unfair because of the investigator’s connection to the company and/or employees involved.
  • No-Conflicts Authority. The investigator should have the authority to fully investigate the complaint and report accordingly on his/her findings and be free from conflicts of interest with respect to the complainant and/or others involved in the complaint. The employer should not, for example, have an investigator investigating claims against his/her supervisor or someone in his/her direct line of supervision.
  • Competence. The employer should ensure that the investigation is conducted by a competent investigator. Whether the person has been formally trained in workplace investigations or HR practices, the investigator should be experienced in the field and have the skills and ability to conduct a meaningful, informed investigation.
  • Thorough. The investigation should be thorough in exploring the validity (or lack thereof) of the complaint. This means, at a minimum, interviewing key people (complainant, alleged harasser, witnesses) and reviewing relevant documentation. In many instances, for example, it is not enough to simply interview the complainant and alleged harasser, and leave it at that. The employer must ensure that a real investigation is conducted that actually attempts to determine the merit, if any, to the complaint.
  • Follow Policy. Oftentimes, employers have written policies with respect to discrimination, harassment, complaints, and appropriate responses. In conducting the investigation, the employer should ensure that the investigator follows and applies company policy.

Although a diligent, prompt investigation may not absolutely prevent the filing of a formal charge of discrimination or lawsuit, it may ultimately provide an affirmative defense curtailing liability.

Employment Applications: Some Considerations for Employers

Oftentimes, it is to employers’ benefit to implement a robust documentation policy with respect to their employees. Whether an employee requests FMLA time, mentions a disability that makes her job more difficult or raises the specter of discrimination or harassment after adverse employment action, documentation may be the key to limiting or avoiding legal liability.

But employers need not wait until employees are actually on the payroll. Indeed, employers can take several steps at the preliminary stage of employment – the employment application – to try to head off problems down the road. Some things employers should consider:

  • At-will Disclaimer. Employers should consider including a statement in the application advising applicants that the application is not intended to and does not create a contract or offer of employment, and that any ensuing employment will be on and at-will basis that may be terminate at the will of either party. Such language may be useful in defending a claim of breach of contract or assertions that there was an offer of guaranteed employment.
  • Non-Discrimination Statement. Employers should include language informing applicants that the employer is an equal opportunity employer that does not discriminate in hiring based on federally-protected (and state-protected) classifications.
  • Exclude background check acknowledgement. Because the Fair Credit Reporting Act requires the disclosure of an employer’s intent to obtain a background check be in a stand-alone document, employers should exclude any such acknowledgement or notification from the application itself and prepare a separate, stand-alone document.
  • Exclude disability and medical questions. In the application, employers would be wise to avoid questions asking about applicants’ disabilities and/or medical conditions. Not only would such inquiries run afoul of EEOC guidance, and potentially the ADA and similar state laws, including such questions in the application may later be offered as evidence that the information was used as a factor in hiring.
  • Caution regarding criminal history. Exploring prior arrests and convictions is a thorny area fraught with peril for employers. A number of states and localities have passed so-called “ban the box” laws prohibiting employers from asking about applicants’ criminal history on employment applications. Likewise, the EEOC suggests not asking about convictions on job applications, but, if employers do, to limit the inquiry to convictions for which exclusion would be “job related for the position in question and consistent with business necessity.” And asking about arrests becomes even more problematic because an arrest alone does not demonstrate the applicant actually engaged in criminal conduct. Employers should carefully consider how to navigate existing federal, state, and local law with respect to seeking criminal history information, if at all, from job applicants.
  • Avoid age-related inquiries. Although an applicant’s experience may be relevant to a job qualification, employers should be careful about asking for graduation dates or other information that reveals the applicant’s age. Problematically, such inquiries that enable the hiring manager to guess or estimate the applicant’s age, when unrelated to job qualifications for the position, may lead to assertions of discriminatory intent on the basis of age under the ADEA.
  • Avoid marital and familial status inquiries. Asking questions about an applicant’s marital status, number/age of kids, or provisions for childcare may give rise to assertions of discrimination on the basis of sex. Also, marital or familial status may be a protected class under state law.
  • Avoid citizenship inquiries. Federal law prohibits discrimination against an applicant because he or she is not a US citizen. Rather than asking about citizenship and giving rise to the possibility of a discrimination claim, in the employment application, employers should consider limiting their inquiries to asking whether the applicant is legally qualified to work in the US.

Employment applications are, typically, of critical importance in the hiring process and constitute employers’ first – and maybe only – contact with applicants. For the many applicants who are not hired, employers should best position themselves proactively for the prospect of potential legal liability arising from the decision not to hire. Carefully constructing the employment application may go a long way in preventing claims or, at a minimum, better positioning the employer to defend any such claims that arise.

Expansion of Employment Discrimination Coverage: Title VII May Prohibit Sexual Orientation Discrimination

Title VII of the Civil Rights Act of 1964 provides the foundation for the federal prohibition of discrimination and harassment on the basis of race, color, religion, sex, or national origin in employment. See 42 U.S.C. 2000e-2(a). But notwithstanding the many developments in the area of LGBT rights over the last several years, it remains an open question under federal law whether employers can discriminate against employees on the basis of sexual orientation. That is, it has been unclear whether Title VII prohibits sexual orientation discrimination.

Last month, however, the United States Court of Appeals for the Seventh Circuit, sitting en banc, rendered a landmark decision in which it concluded “that discrimination on the basis of sexual orientation is a form of sex discrimination” covered by Title VII. Hively v. Ivy Tech Community College of Indiana, No. 15-1720 (7th Cir. April 4, 2017). The Seventh Circuit is the first federal appeals court to rule in this manner and in doing so expressly contradicted recent decisions from the Second and Eleventh Circuits, setting up a potential showdown in the Supreme Court to finally resolve the issue.

The case itself is fairly straightforward. Ms. Hively, who is openly gay, claimed that Ivy Tech Community College, her employer, denied her a full-time teaching position and refused to renew her employment contract based on her sexual orientation. The federal district court initially dismissed the case and a three-judge panel of the Seventh Circuit affirmed based on existing precedent that sexual orientation was not a protected class under Title VII. But the Seventh Circuit agreed to reconsider the issue en banc and reversed, finding that Title VII does, in fact, prohibit discrimination on the basis of sexual orientation.

Employers operating in the Seventh Circuit (e.g., Illinois, Indiana, and Wisconsin) should operate under the assumption that Title VII prohibits discrimination on the basis of sexual orientation. At least unless and until the Supreme Court determines otherwise. For the rest of the country, the law, at least in terms of the scope of Title VII, is not settled yet and employers would be wise to carefully consider the issue as they make employment decisions.

Despite State Law Permitting Medical Marijuana Use, Colorado Employers May Still Terminate Employees for Off-Duty Medical Marijuana Use

In Colorado, the state’s Lawful Activities Statute (C.R.S. 24-34-402.5) generally prohibits employers from firing an employee who engages in lawful outside-of-work activity. But what happens when state and federal law differ as to the lawfulness of the subject activity?

In Coats v. Dish Network, plaintiff was fired under the company’s zero-tolerance drug policy after failing a random drug test. A quadriplegic with a state-issued license to use medical marijuana to treat muscle spasms keeping him wheelchair-bound, failing the drug test was no surprise. This being Colorado with its liberal state marijuana laws, however, Coats argued the termination violated the Lawful Activities Statute.

The Colorado Supreme Court ruled that the termination did not violate the Lawful Activities Statute because the activities at issue must be “lawful” under both state and federal law, which is not the case with marijuana use (21 U.S.C. 844(a)). “Therefore, employees who engage in an activity such as medical marijuana use that is permitted by state law but unlawful under federal law are not protected by the statute.”

Although this decision is obviously specific to Colorado state law, it further emphasizes the importance to employers and employees alike of closely scrutinizing termination decisions.

Coats v. Dish Network, LLC, Case No. 13SC394 (June 15, 2015)

Despite State Law Permitting Medical Marijuana Use, Colorado Employers May Still Terminate Employees for Off-Duty Medical Marijuana Use

In Colorado, the state’s Lawful Activities Statute (C.R.S. 24-34-402.5) generally prohibits employers from firing an employee who engages in lawful outside-of-work activity. But what happens when state and federal law differ as to the lawfulness of the subject activity?

In Coats v. Dish Network, plaintiff was fired under the company’s zero-tolerance drug policy after failing a random drug test. A quadriplegic with a state-issued license to use medical marijuana to treat muscle spasms keeping him wheelchair-bound, failing the drug test was no surprise. This being Colorado with its liberal state marijuana laws, however, Coats argued the termination violated the Lawful Activities Statute.

The Colorado Supreme Court ruled that the termination did not violate the Lawful Activities Statute because the activities at issue must be “lawful” under both state and federal law, which is not the case with marijuana use (21 U.S.C. 844(a)). “Therefore, employees who engage in an activity such as medical marijuana use that is permitted by state law but unlawful under federal law are not protected by the statute.”

Although this decision is obviously specific to Colorado state law, it further emphasizes the importance to employers and employees alike of closely scrutinizing termination decisions.

Coats v. Dish Network, LLC, Case No. 13SC394 (June 15, 2015)

Just Say No, It Might Be Enough to Support a Title VII Retaliation Claim

Employers and employees alike understand that Title VII prohibits discrimination and harassment based on things like sex, race, and national origin. Likewise, employers by and large recognize that they cannot retaliate against employees who “oppose” unlawful discrimination or harassment. If an employee, for example, files a complaint alleging she has been discriminated against or harassed, the employer cannot retaliate against her for submitting the complaint and opposing the discrimination or harassment.

What if, however, the employee never gets to the point of actually submitting a complaint? What if, instead, the employee just says no to her sexually harassing supervisor? Is that enough to trigger protection under Title VII’s opposition clause?

Addressing this issue, the Sixth Circuit recently determined that an employee who made verbal demands to her supervisor to stop offensive conduct, but who never filed an actual complaint, was protected from retaliation under Title VII. That is, it may be enough for an employee to just say no or otherwise voice verbal opposition to the alleged harasser to stop the harassment.

The federal appellate court broadly read Title VII such that “a complaint to a harassing supervisor constitutes protected activity” and “a demand that a supervisor cease his/her harassing conduct constitutes protected activity covered by Title VII.” Although this ruling diverges from a 2004 determination by the Fifth Circuit, the federal appeals court reviewing federal cases filed in Texas, employers in Texas should nonetheless take note of the decision and prepare accordingly.

In addition to anti-harassment and discrimination policies, employers should have policies in place relating to making complaints and non-retaliation. And in all events, employers should be careful; retaliation claims may arise unexpectedly based on little more than an employee telling her supervisor to stop.

EEOC v. New Breed Logistics, No. 13-6250 (6th Cir., April 22, 2015)

Does Reasonable Accommodation of an Employee’s Disability Require Allowing the Employee to Telecommute?

“The Americans with Disabilities Act (ADA) requires employers to reasonably accommodate their disabled employees; it does not endow all disabled persons with a job—or job schedule—of their choosing.” Whether an employer must allow a disabled employee to telecommute as a reasonable accommodation under the Americans with Disabilities Act (ADA) depends on the nature of the job position at issue and the employer’s demonstration of the essential functions of that job.

In EEOC v. Ford Motor Company, the EEOC sued Ford under the ADA for failing to reasonably accommodate an employee’s disability (irritable bowel syndrome) by rejecting her request to telecommute and for allegedly retaliating against her when she complained to the EEOC. The trial court initially granted Ford summary judgment, concluding that telecommuting was not a reasonable accommodation. On appeal, a panel of the 6th Circuit reversed.

Upon further appellate consideration, on April 10th the 6th Circuit sitting en banc affirmed (8-5 vote) the trial court’s summary judgment. Doing so, the divided en banc court concluded that regular and predictable on-site job attendance was an essential function of the employee’s job. The key for the court seemed to be the interactive nature of the employee’s job with Ford as a resale steel buyer and the general rule that regularly attending work on-site is essential to most jobs, especially interactive ones. Because the employee involved could not regularly and predictably work on-site, which was an essential function of her job, she was not qualified for the job and Ford was entitled to summary judgment.

“That general rule—that regularly attending work on-site is essential to most jobs, especially the interactive ones—aligns with the text of the ADA.” For employers, though, the 6th Circuit’s en banc decision offers guidance but no bright line rules. When confronted with a request to telecommute as a reasonable accommodation for a disability, it is important to carefully evaluate the tasks involved in the employees’ job and her ability to perform those jobs remotely. Advances in technology, too, should contribute to the analysis.

EEOC v. Ford Motor Co., No. 12-2484 (6th Cir., April 10, 2015)

Accommodating Pregnant Employees

Obviously employers cannot lawfully discriminate against an employee because of her pregnancy. But employers must also provide reasonable accommodation for a pregnant employee if/when the need arises. And therein lies an area ripe for dispute, disagreement, and litigation.

There are some things employers can do to minimize their liability and reduce the chance of facing litigation. Most importantly, employers should reasonably and actively engage the employee in the interactive process of discussing the need for accommodation and the type of accommodation required. Oftentimes, litigation follows when the employer does not reasonably engage in the discussion and/or is the cause of discussions breaking down. The employer’s response should not be to immediately place the employee on a leave of absence or, worse still, terminate the employee. Instead, discuss the issues requiring an accommodation and explore the type of accommodations that might be suitable. Engaging in interactive discussions with the employee in an effort to find a suitable accommodation goes a long way toward reducing exposure to liability.

And employers should be practical and reasonable in developing accommodations. If, for example, the employer has a policy or program in place for employees with a disability, with work restriction, and/or who are pregnant (e.g., light duty, telecommuting), it may make sense to modify or expand that program for an employee who requires accommodation beyond the strict terms of the existing program.

Employers should take heed. In its Strategic Plan, the EEOC identified enforcement action against employers who fail to reasonably accommodate pregnant employees as an emerging issue on which it will focus. And in July of 2014, the EEOC issued its Enforcement Guidance on Pregnancy Discrimination and Related Issues (http://www.eeoc.gov/laws/guidance/pregnancy_guidance.cfm), which reinforces the notion that enforcement action against employers who fail to properly treat pregnant employees is a high priority for the agency.