Daily headlines trumpet multimillion-dollar awards for employers’ violations of a variety of state and federal employment laws. Cases like these get lots of media attention—and they should. But equally deserving of attention are cases where employers won. Analyzing what an employer did right in a situation can have as much—and sometimes more—educational value as the losses.
The latest statistics from the U.S. Equal Employment Opportunity Commission (EEOC) prove what most HR professionals already knew: Retaliation claims are employers’ greatest workplace litigation risk. According to the EEOC, more than 56 percent of all charges filed allege retaliation. These claims are generally preferred by plaintiffs’ counsel as the standard of proof is easier to meet than for harassment and discrimination claims, and they appeal to juries.
But that doesn’t mean these cases can’t be won, with proper documentation. That’s the lesson from a Nov. 15 ruling issued by the 5th U.S. Circuit Court of Appeals in Johnson v. Iberia Medical Center Foundation.
In this case, a Black woman employed as a charge nurse alleged that the hospital where she worked retaliated against her by terminating her employment shortly after she complained that she was passed over for a promotion because of her race. The 5th Circuit dismissed her case, finding that the hospital’s documentation proved that she was fired because numerous complaints had been brought against the nurse for her “performance and negative interpersonal interactions with other employees, dating back years before she complained about the [decision not to promote].”
The court reached this conclusion even though the nurse had received positive performance reviews in the past. According to the three-judge panel, the reviews didn’t prove that the reason for her firing was retaliation.
The key to this case—and many employment lawsuits—is that the employer properly documented the employee’s performance concerns and the complaints brought against her, including the hospital’s investigation into the allegations. HR professionals know the importance of documentation, but cases like this help convey that message to the supervisors and managers on the front line.
The EEOC numbers also reveal that the top discrimination claim included in charges is now disability. Given that the definition of “disability” has expanded in the years since the passage of the Americans with Disabilities Act (ADA), the defense of these lawsuits usually focuses on whether a reasonable accommodation exists. That was the situation in Diaz v. Xerox Corp., a case out of California that was dismissed by a federal court judge on Sept. 13.
The worker had diabetes, and the company accommodated his disability by granting him a leave of absence of almost two years. When he was cleared to return to work, it was determined through the interactive process for identifying an accommodation that his doctor’s restrictions precluded him from performing the essential job functions, even with a reasonable accommodation. So the worker asked that he be placed in an open position in the mailroom; however, his work restrictions also precluded him from lifting more than 20 pounds. An essential function of the mailroom job is the ability to lift 50 pounds. The company refused to place him in that job and shortly thereafter terminated his employment, leading to the disability discrimination and failure to accommodate lawsuit.
The court found that the company was not obligated to offer the worker the mailroom job. First, accommodating his lifting limitation would impact the efficiency of the mailroom. And second, the court concluded that the company wasn’t obligated to make adjustments to a job that is an accommodation for another job. Effectively, the court concluded that the worker wasn’t qualified for that other job because he couldn’t meet the essential job duties of that role.
This decision demonstrates the importance of engaging in the interactive process with workers with disabilities and offering them a leave of absence to accommodate their conditions—even one that lasts almost two years. Then, when the employee is ready to return to work, thoroughly explore the potential accommodation options, noting that according to this ruling, you are entitled to require that the employee can perform the essential functions of any job to which they might be transferred.
The Pregnant Workers Fairness Act (PWFA) obligates all employers to provide accommodations to their pregnant workers. While this statute is too new to have any developed case law, a recent ruling by the 10th U.S. Circuit Court of Appeals may help clarify this new obligation.
The lawsuit in Ortiz v. Bank of Labor was brought by an employee who worked at a bank that was attached to a convenience store. Bank employees used restrooms in the store. While pregnant—and needing to use the restroom more frequently—the worker requested that she be allowed to use the restroom in a fast-food restaurant across the street because she found it to be cleaner.
While the bank allowed the worker to take more time off from work to use the bathroom, the request to use the restaurant’s restroom was denied because of bank policy requiring that two employees be in the building, where the convenience store restroom was located, at all times for security purposes. When the worker was later fired for making accounting errors, she challenged the termination and the denial of her reasonable accommodation request, construing both as pregnancy discrimination.
In a May 23 decision, the 10th Circuit found that the employee’s inability to use her restroom of choice was a “mere inconvenience” and did not create a cause of action. Therefore, her case was dismissed. The analysis will be somewhat different under the PWFA, but a pregnancy accommodation request presumably will be analyzed similarly as under the ADA, such that an employee is entitled only to a reasonable accommodation—not necessarily their preferred accommodation. But HR professionals should keep an eye on developments in this area, including any regulatory information from the EEOC.
Joe Beachboard is chief concierge employment attorney at Beachboard Consulting Group in Los Angeles.