Failure to Accommodate, Direct Evidence, and Adverse Action

Originally published by William Goren.

Today’s blog entry is going to be my last substantive blog entry of the year. My daughter is on break the last two weeks of December, and just about everybody takes the Christmas season off anyway. The very last blog entry of the calendar year is when I traditionally do my top 10 Understanding the ADA blog entries of the year. I have not been following what is the top 10 from month to month. So, I am really curious to see how that is going to work out.

 

Today’s blog entry is actually on a case that my fellow bloggers have blogged on before. This particular case involves blogging on a case that my colleague Jon Hyman blogged on previously here. The case is Morrissey v. Laurel Healthcare Company, a published decision from the Sixth Circuit decided on December 3, 2019. Jon did an excellent summary of the facts and his takeaways are excellent as well.  I thought I could bring a different spin to his blog entry and so here goes. As usual, the blog entry is divided into categories and they are: court’s reasoning; and thought/takeaways. I am going to dispense with the facts except as far as they are part of the court’s reasoning because Jon already covered them in brief in his blog entry.

 

I

Court’s Reasoning

 

1. The McDonnell Douglas test is not necessary where there is direct evidence because defendant has already admitted the wrongdoing. Where direct evidence exists, the factfinder is not required to draw any inferences to conclude that disability was at least a motivating factor.
2. Since not making reasonable accommodations is listed in the ADA’s definition of disability discrimination, claims premised upon an employer’s failure to offer reasonable accommodation necessarily (emphasis mine), involve direct evidence.
3. Under the direct evidence framework, a plaintiff has the burden of establishing: 1) he or she is a person with a disability; and 2) that he or she is qualified/otherwise qualified for the position despite his or her disability: A) without accommodation from the employer; B) with an alleged essential job requirement eliminated; or C) with a proposed reasonable accommodation.
4. With respect to this case, plaintiff alleged a failure to accommodate and a constructive discharge claim under the direct method and a retaliation claim under the indirect method.
5. The District Court erred in requiring plaintiff to prove she suffered an adverse employment action to pursue a claim for failure to accommodate. Under the direct evidence test, a plaintiff need not prove he or she suffered an adverse employment action separate from the failure of the employer to reasonably accommodate the employee. In other words, failing to make a reasonable accommodation falls within the ADA’s definition of discrimination and that necessarily means an employer’s failure to offer a reasonable accommodation involves an adverse action.
6. Of course, to establish a claim for failure to accommodate, a plaintiff has to show that he or she has a disability first.
7. A disability under the ADA is a physical or mental impairment that substantially limits one or more major life activities; a record of such an impairment; or is regarded as having such an impairment. 42 U.S.C. §12102(1)(A)-(C).
8. The amendments to the ADA defined major life activities in very broad terms. 42 U.S.C. §12102(2).
9. The amendments to the ADA also makes clear that the definition of a person with a disability in the definition of substantially limited are to be construed broadly in favor of expansive coverage. 29 U.S.C. §12102(4)(A),(B); 29 C.F.R. §1630.2(j)(1)(i).
10. Under 29 C.F.R. §1630.2(j)(1)(ii), determining substantial limitation mean comparing the person with a disability to most people in the general population. That is not a demanding standard and in general, a plaintiff does not need to submit scientific, medical, or statistical proof to establish such a limitation.
11. The amendments to the ADA overruled the Toyota Motor standard that an impairment had to prevent or significantly or severely restrict a major life activity to be substantially limiting.
12. The EEOC removed from the text of its regulations a discussion of the major life activity of working because Congress intended for courts to analyze whether plaintiff can perform certain jobs only when a plaintiff claims she is substantially limited from working but not for other major life activities. Also, no other major life activity received special attention in the EEOC regulations and with the expanded definition of major life activity in the ADA, the major life activity of working would only be used in very targeted situations.
13. Pre-2008 cases are not good law when it comes to determining whether a plaintiff is a person with a disability.
14. Numerous facts exists that plaintiff has a disability as defined by the ADA as amended, including: 1) plaintiff asserted she was substantially limited in her ability to walk, stand, bend, and lift repetitively due to scoliosis, bulging disc, Ehlers- Danlos syndrome, Buschkes-Ollendorf syndrome; 2) plaintiff never argued that she had a disability because of an inability to work and such an allegation is not necessary to her claim; 3) plaintiff did not have to tell her employer about her specific diagnosis; 4) plaintiff did tell her employer that she could not work more than 12 hours per shift because she suffered a disability as defined by the ADA as amended.
15. For an employer’s obligation to activate the duty to accommodate, the employee does not need to use the word “disabled,” rather the employer must know enough information about the employee’s condition to conclude that he or she is a person with a disability. Information that could help figure out whether a person has a disability under the ADA could include such things as a diagnosis, treatment plan, (severe symptoms,) and physician imposed work restrictions.
16. Medical records establish that the plaintiff suffered from disc disease.
17. Plaintiff submitted plenty of evidence to show that she was substantially limited in her ability to walk, stand, lift, or bend. In particular, after an 8 to 12 hour shift: 1) plaintiff had difficulty walking, standing, lifting, and bending; 2) plaintiff was in pain constantly and her nursing shifts made the pain worse; 3) plaintiff had severe pain in her buttocks and right leg and numbness and tingling in her feet; 4) plaintiff had so much trouble bending over that it was difficult for her to put on her underwear; 5) plaintiff’s daughter submitted an affidavit stating that plaintiff did not walk at all or walked with a slight hunch and a pained expression after completing a day of work; 6) plaintiff’s daughter also stated that plaintiff could not complete household chores requiring lifting, bending, or stooping after working.
18. Factual issues exist as to whether defendant regarded plaintiff as having a disability.
19. Defendant had a policy where it would not accommodate an individual with a disability unless the injury was job-related.
20. Plaintiff alleged that she requested moving to a unit that required nurses to work only eight hour shifts and that she requested to be moved to a casual status. If granted, she would not have had to work in excess of 12 hours. Plaintiff alleged that the defendant denied both requests.
21. Plaintiff’s personnel file had medical notes supporting her restrictions. She also repeatedly told her employer that she was under restrictions. For a time, the employer even honored the restrictions. So, plaintiff brought forth enough evidence to claim that she has a record of a disability under the ADA.
22. In short, plaintiff brought forth enough evidence to show that: 1) her employer had a blanket policy of denying accommodation for all non-work-related disabilities; 2) her employer knew that the plaintiff was under a 12 hour work restriction; 3) (employer knew that plaintiff had requested an accommodation); 4) her employer forced plaintiff to work beyond the restrictions on January 31, 2016, and attempted again to have her do so five days later.
23. Plaintiff asked her employer for an accommodation due to a disability, and her employer did not accommodate her. So, plaintiff was not required to establish anything more for her claim to be viable.
24. Defendant makes no argument that plaintiff’s proposed accommodation would impose an undue hardship.
25. The de minimis employment action defense does not apply to a failure to accommodate situation. Application of such a rule would not only be cruel, but it would contravene previous precedent from the Sixth Circuit as well as the ADA.
26. The constructive discharge claim moves forward because a disputed question of material fact exists over whether the plaintiff had a disability (see above paragraph). The constructive discharge claim also moves forward because a complete failure to accommodate in the face of repeated requests can suffice as evidence to show constructive discharge.
27. The employer cannot escape liability by arguing a blanket policy of denying accommodation for all non-work-related disabilities is ostensibly neutral. The court uses an interesting example of a school lacking an elevator for a teacher with mobility impairments to explain what it means. It then concludes that a defendant cannot refuse to provide a plaintiff with a reasonable accommodation and then argue the plaintiff did not qualify for her position because she cannot meet her job’s requirements without an accommodation.
28. The retaliation claim gets analyzed under the indirect evidence test. To establish retaliation the plaintiff has to show: 1) plaintiff engaged in activity protected under the ADA; 2) the employer knew of that activity; 3) the employer took an adverse action against plaintiff; and 4) a causal connection existed between the protected activity and the adverse action.
29. Constructive discharge qualifies as an adverse employment action and the record supports a finding that plaintiff was constructively discharged.

 

II

Thoughts/Takeaways

 

1. It doesn’t matter how a person becomes a person with a disability. I have seen employers think that it does. The very nature of the ADA makes it obvious that how a person becomes a person with the disability is absolutely irrelevant. It is great to see a court saying as much. Interesting that the court looked at it from the view of essential functions. It just as easily could have flat out said it doesn’t matter how a person becomes a person with a disability. Regardless, you get to the same place either way.
2. Under the court’s reasoning, failure to accommodate claims are analyzed under the direct evidence test, which means that it could be very difficult for defendants to prevail on summary judgment with respect to failure to accommodate claims.
3. Under the court’s reasoning, failure to accommodate claims do not require an independent adverse action. That is, the failure to accommodate is the adverse action.
4. This whole direct indirect evidence thing is very confusing, even for me. As we discussed here, the Seventh Circuit is more than ready to blow that whole analysis up completely.
5. This case is now the second time where I have seen a prima facie for a failure to accommodate claim talk about how a plaintiff can show that they could have performed a job with an essential job requirement eliminated. I’ve said before with respect to this element that I just don’t get it. The ADA does not require the elimination of an essential function of the job.
6. I’ve also said before that working is not a major life activity that should be used by plaintiffs except under extraordinary situations. The court here says precisely that. In fact, unless extraordinary situation exists, my view for years has been for a plaintiff to allege working as the major life activity is legal malpractice.
7. Magic words are not required as we have discussed here. All that is required is for the employer to have enough information about the employee’s condition to conclude that the employee has a disability. That is not a high standard.
8. When it comes to determining substantial limitation, the question is how does that person compare to most people in the general population.
9. If you have a policy setting up a distinction as to when you will accommodate based upon the origin of the disability, get rid of it.
10. De minimis employment action defense not available in the Sixth Circuit with respect to a failure to accommodate claim. Check your jurisdiction to see how it handles this question.
11. The reasoning of the court is such that it open the door to many more constructive discharge claim when a failure to accommodate is involved. The court uses the language “complete failure,” but the decision itself doesn’t seem to be talking about a “complete failure,” being necessary for a constructive discharge claim. Jurisdictions may vary on this.
12. Court says that retaliation claim can analyze under an indirect evidence test, though I don’t know why that would necessarily need to always be the case.
13. What Jon said in his blog entry on the case.
14. The decision is published.
15. The Sixth Circuit presumes in this case that motivating factor is the causation standard.
16. Not every court agrees that a failure to accommodate constitutes an adverse action. We discussed one such case here. So, check your jurisdiction on this. This also means a split now exist among the Circuits. Will that split result in Supreme Court review? If it does, I will have to do some serious thinking as to which way the court would go. Offhand, not clear to me at all.
17. Pre-2008 law discussing how to determine a disability is no longer good law.

 

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