Tag Archives: disability discrimination

Favorite Firing: Do Not Terminate a Disabled Employee Without a Reasonable Accommodation Dialogue


EEOC sealBack in May 2016, Lowe’s, the home improvement store giant, agreed to pay $8.6 million to settle a lawsuit brought by the EEOC over Lowe’s firing of many individuals with disabilities when they exceeded the maximum amount of disability leave Lowe’s provided. The problem, as the EEOC saw it, was that Lowe’s failed to engage in reasonable accommodations beyond the standard disability leave policy. See U.S. Equal Employment Opportunity Commission v Lowe’s Companies, Inc., et al., C.D. Ca., Case No. 2:16-CV-03041-AB-FFM.

The Facts: This lawsuit began with three charges of disability discrimination filed by three employees of Lowe’s back in 2007 and 2009. These three plaintiffs alleged that Lowe’s violated the Americans with Disabilities Act (ADA) by terminating their employment when their medical leave of absence exceeded Lowe’s 180-day (later extended to 240-day) maximum leave policy. The plaintiffs claimed that failure to engage in any discussion about further accommodations beyond the maximum leave violated the ADA. They wanted extended leaves of absence as a reasonable accommodation.

The EEOC agreed with the plaintiffs and also claimed that thousands of other Lowe’s employees were in the same situation. The EEOC ultimately filed a lawsuit in the Central District of California, the terminated Lowe’s employees were found to be a suitable class, and the case proceeded as a class action.

It was settled in May 2016, and the Court approved the settlement on May 12, 2016. (A copy of the Consent Decree can be found here.) Lowe’s admitted no wrongdoing, and the Consent Decree is not an admission. However, the company did agree to settle the lawsuit for $8.6 million and also consented to comply with a variety of non-monetary provisions. Lowe’s agreed to contact the terminated employees in the class and pay their damages out of the $8.6 million fund, as calculated by the EEOC, and to donate the remainder (if any) to non-profit organizations benefiting the disabled.

Lowe’s also agreed to amend its policies so that it would “engage in the interactive process with any employee with a disability who requests leave as a reasonable accommodation.” And the company agreed to retain Equal Employment Opportunity consultants approved by the EEOC for four years. These consultants will advise on policies, track all requests for accommodation, and educate managers on their duties under the ADA.

The Moral: There are few bright lines when it comes to working through disability situations. If an employee requests an accommodation, the employer ignores that request at its peril. A firm policy regarding leaves of absence is no longer a firm policy—exceptions must be at least considered if the employee claims to be disabled and to need more time away from work.

When the ADA was first enacted in 1990, I worked with managers to parse through how to simultaneously comply with disability leaves, worker’s compensation laws, absence policies, and the like. The situation grew even more complex with the passage of the Family and Medical Leave Act in 1993. I used to tell managers to stack up all the applicable laws and policies like slices of Swiss cheese. Only if an employee’s situation fit in gaps in every layer could the employee be discharged with minimal risk.

What the Lowe’s case shows is that some of the legal layers have no gaps—all employees requesting a reasonable accommodation should at least be given consideration, and an employer cannot have a blanket rule prohibiting certain accommodations. The EEOC will not accept any mandatory maximum leave policy.

The Lowe’s case is also interesting because of the broad relief granted pursuant to the Consent Decree. The provisions in the Lowe’s decree are the types of relief that the EEOC is likely to seek in every disability case it decides to take to court. Employers should consider whether and when accepting these types of interference in their business are worth disposing of a lawsuit, particularly a large class action case of the type that Lowe’s faced. It doesn’t take a loss in court to cause upheaval in the business; settlement can also be onerous.

It is best, therefore, to avoid as many lawsuits as possible. Therefore, engage in an interactive reasonable accommodation dialogue, document that engagement and all options considered, and be clear on why the employee’s requested accommodation is not reasonable and would constitute an undue hardship on the business.

When have you dealt with a difficult reasonable accommodation case?

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Favorite Firing: Not All Objections to an Employer’s Practices Are “Protected Activity”


 

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Photograph by Honza Soukup on Flickr

Today’s favorite firing case comes from California, which labor and employment attorneys know is a pro-plaintiff venue. But in Dinslage v. City and County of San Francisco, et al, the employer won a lawsuit because the plaintiff could not proof a prima facie case of retaliation. The case involved the distinction between retaliation for opposing discriminatory employment practices and for opposing other allegedly discriminatory practices of the employer (in this case, practices directed at the public).

 

The Facts: David Dinslage worked for the Recreation and Parks Department in San Francisco for over thirty years until he was laid off during a reduction in force. His duties included overseeing programs for adults and children with disabilities. His group in the Department organized special events for people with disabilities.

During the last few years that Dinslage worked at the Department, his managers made changes to the programs he handled. The primary change was to shift the focus from providing separate, segregated programs to people with disabilities to ensuring all programs were accessible, so that the programs were more inclusive, which the Department believed was the current “best practice” in providing services to the disabled. Therefore, many of the segregated special events Dinslage had organized were eliminated.

In 2009-2010, the Department was reorganized to focus more on inclusion, and also to meet budget reductions and eliminate some staff. Dinslage disagreed with the program changes and ultimately refused to accept and implement the changes his superiors envisioned, resulting in him receiving a lower performance rating.

When his position was eliminated, Dinslage applied for a new position in the Department, but he was not selected. After his forced retirement, he and other employees sued San Francisco.

Dinslage claimed age discrimination, retaliation, and harassment in violation of the FEHA (Cal. Gov. Code §12940, subds. (a), (h), and (j)). He alleged his termination and other adverse actions were based on his age. He also claimed retaliation and harassment based on his age and in retaliation for his objections to the Department’s changes in programs for people with disabilities.

The Moral: The Department and the City won their motion for summary judgment in the Superior Court, and Dinslage appealed. The California Court of Appeals upheld the summary judgment for defendants on both the age discrimination and the retaliation claims. On the retaliation claim, the Court of Appeals held that plaintiff failed to make out a prima facie case, because his opposition to the changes in how the Department offered programs for the disabled was not directed at an unlawful employment practice, and therefore could not support a claim of retaliation.

As quoted in the Court of Appeals opinion, the Superior Court found:

“Defendants have met their burden to show that Plaintiff did not engage in protected activity under the FEHA,” because the “evidence shows that Plaintiff did not speak out against the Defendants for engaging in discriminatory conduct directed at Defendants’ employees.” The court found Dinslage’s evidence “only shows that [he] spoke in public forums regarding his concern that the . . . Department’s reorganization would cause layoffs and the potential negative effects the reorganization would have on members of the public who have disabilities.”

Thus, the trial court found Dinslage had failed to establish the first element of his retaliation claim, because he had not shown he had engaged in protected activity under the FEHA.

The Court of Appeals agreed with the lower court that Dinslage had not stated a prima facie case of retaliation. The appellate court stated:

“For protection under the ‘opposition clause,’ an employee must have opposed an employment practice made unlawful by the statute.”

The employee can state a claim for retaliation

“not only when the employee opposes conduct that ultimately is determined to be unlawfully discriminatory under the FEHA, but also when the employee opposes conduct that the employee reasonably and in good faith believes to be discriminatory, whether or not the challenged conduct is ultimately found to violate the FEHA.”

The employee’s belief must be both subjectively and objectively reasonable.

But the Court of Appeals found that Dinslage’s objections to what he considered to be unwise and/or improper actions by the Department were insufficient to allege that he had opposed activity protected under FEHA. The Court of Appeals cited cases involving plaintiffs who had complained about police conduct against the general public and about their employer’s environmental practices. Because these were not employment practices, objections to such practices could not state a claim under FEHA.

Thus, the Court of Appeals said,

“Neither the ‘unlawful practice’ nor the ‘good faith belief’ requirement is satisfied where the practice complained of was not directed at employees but, instead, was directed to individuals who are not in an employment relationship with the defendant.” (citing Taneus v. Brookhaven Memorial Hosp. Medical Center (E.D.N.Y. 2000)).

The Court held that Dinslage could not

“reasonably have believed his actions constituted protected activity, because there is no dispute his opposition was not directed at the Department’s employment practices.”

This case is good news for employers. It clarifies both that the only activities that can support a claim for retaliation under FEHA are objections to employment-related practices, that the plaintiff must reasonably believe that he or she is opposing a discriminatory practice under FEHA, and that the plaintiff’s belief must be both subjectively and objectively reasonable.

Have you ever dealt with a retaliation claim where the Dinslage holding might be helpful?

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