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Employment Law Briefing

With mobile technology exploding and
work/life balance a valid concern of
many employers, telecommuting is more
popular than ever. In Equal Employment Opportunity
Commission v. Ford Motor Company, the U.S.
Court of Appeals for the Sixth Circuit weighed in on
whether a telecommuting arrangement of four days
per week could be a reasonable accommodation
under the Americans with Disabilities Act (ADA).
Not reasonable

The Family and Medical Leave Act
Refusal to rehire protected
employee proves costly

The plaintiff suffered from irritable bowel syndrome.
After she was terminated for poor performance,
the Equal Employment Opportunity
Commission (EEOC) filed suit on her behalf alleging
that the employer had:
n Discriminated against the plaintiff based on her
disability by not providing the accommodation
of telecommuting, and
n Retaliated against her for filing an EEOC charge.

The employer moved for summary judgment, alleging
that regular in-office attendance was a requirement for
the employee’s position, so telecommuting wasn’t a reasonable
accommodation. The employer further alleged
that it had terminated the employee because of her poor
work performance.

Employment Law Briefing

The district court granted summary judgment in favor
of the employer. It held that regular in-office attendance
was a basic requirement for most jobs and, thus, the
plaintiff wasn’t a qualified individual under the ADA.
Furthermore, the district court agreed with the employer’s
business judgment in finding that regular attendance was
an essential function of this particular employee’s position.
As a buyer, the plaintiff was required to frequently interact
with co-workers and outside suppliers to solve problems.

The employer believed that in-person contact was
more effective in solving these problems than teleconferencing
or e-mailing. It also believed that the work needed
to be done during normal work hours, when the suppliers
were available.

The employer asserted that the employee had missed
deadlines and made mistakes because she lacked access to
the suppliers during normal work hours while telecommuting
on a trial basis. She was also unable to establish
regular and consistent work hours while working away
from the office.

Thus, as mentioned, the district court found that telecommuting
wasn’t a reasonable accommodation. The court
further found that other accommodations offered by the
employer — and rejected by the employee — were reasonable.
One example was moving the employee’s desk closer
to the restroom.
In addition, the district court held that the employer’s
actions of terminating the employee weren’t retaliatory
or pretextual because the employee couldn’t overcome
the employer’s legitimate, nonretaliatory reasons for its
action. The plaintiff appealed.
Can telecommuting
be an accommodation?
Sixth Circuit weighs in on growing ADA issue
Physical presence
The Sixth Circuit reversed the district court’s decision.
The appellate court found that, because of technological
advancements, an employee’s workplace can be anywhere
that an employee can perform his or her job duties.
Therefore, the court stated that the question asked should
be whether a physical presence at the employer’s facilities,
not attendance, was an essential job function.

As such, the Sixth Circuit found that there was a genuine
issue of fact as to whether the plaintiff’s physical presence
at the employer’s facility was essential. The court stated
that there are other factors to consider in deciding which
job functions are essential, in addition to the employer’s
business judgment, such as the employee’s own testimony
about her job.

The Sixth Circuit went on to note that the employer
allowed other employees to telecommute on a limited
basis of one day per week. This, it said, was evidence
that physical presence in the workplace wasn’t an essential
job function.

Regarding the plaintiff’s retaliation claim, the court also
reversed summary judgment. It found that there was evidence
of pretext because the employee’s negative reviews
started only after her EEOC charge was filed, casting
doubt that her poor performance was the actual reason
for termination.
Increasingly common

As telecommuting becomes increasingly common,
requests for it as both an employment arrangement and
an ADA accommodation are sure to increase as well. If
you have a telecommuting policy in place, you may have
to allow more employees access to it — even under distinguishable
circumstances, such as in this case. ¦

An important precursor to Equal Employment Opportunity Commission v. Ford Motor Company (see main article) was the
2003 case of Rauen v. U.S. Tobacco Mfg. Ltd. Partnership. Here, the U.S. Court of Appeals for the Seventh Circuit also considered whether allowing an employee to work from home would be a reasonable accommodation under the Americans
with Disabilities Act (ADA). The plaintiff was a software engineer dealing with the side effects of cancer treatment, such
as frequent bathroom usage and fatigue. The employer had offered to provide her with private bathroom facilities and a
place to rest during the day, which the plaintiff rejected.
At trial, the district court granted summary judgment in the employer’s favor, holding that the plaintiff wasn’t entitled
to an accommodation because she could perform her essential job functions without any accommodation. The Seventh

Circuit affirmed and dismissed the plaintiff’s lawsuit, finding that the employee’s request to telecommute was unreasonable
because, based on her own admission, she couldn’t perform her essential job functions at home. For example, she
couldn’t monitor outside contractors’ work or be immediately available to answer their questions.

The court stated that, “generally, an employer is not required to accommodate a disability by allowing the disabled
worker to work, by himself, without supervision, at home.” The employee’s situation didn’t present an exceptional case,
according to the Seventh Circuit. The ruling didn’t, however, clarify what those exceptional circumstances would be.
In addition, now that telecommuting is more common because of technological advances, courts may view it as a less
atypical accommodation.

Looking back at an important precursor
Was a physical presence at the
employer’s facilities, not attendance,
an essential job function?
All employees presumably know that their supervisors
have the power to terminate them. But can
the co-worker sitting at the next desk or in the
office down the hall prompt a termination as well? This
question was broached in Velazquez-Perez v. Developers
Diversified Realty Corp., a case heard by the U.S. Court
of Appeals for the First Circuit.

Hotel incident
The plaintiff asserted claims against his employer for
sex discrimination and retaliation pursuant to Title
VII. His co-worker was an HR representative for the
employer in the region where the plaintiff worked. She
provided advice to management on human resource
issues, including employee discipline. But she wasn’t the
plaintiff’s supervisor.

The plaintiff admitted that, for ten months, their relationship
was flirtatious but never harassing. When
his co-worker expressed romantic interest, he always
politely rebuffed her. But, in April 2008, while traveling
for a company meeting and staying at the same hotel,
the co-worker followed the plaintiff to his room and
tried to force her way in. He refused to let her in and
even threatened to call security. The co-worker waited
outside his room and then finally left.

Thereafter, the co-worker sent many e-mails to the plaintiff
and called his hotel room multiple times. Later, she
sent him e-mails threatening to have him fired for rejecting
her. The plaintiff complained verbally to his supervisor
about the incident. But he never filed a written complaint,
and the company had no investigative procedures
in place.

The co-worker then began discussing the plaintiff’s
job performance with his supervisors and recommended
that he be terminated. By August 2008, the co-worker
had convinced the supervisors, and the plaintiff was
terminated — allegedly for absenteeism and unsatisfactory

Employment Law Briefing

The district court granted summary judgment in favor
of the employer on both causes of action. The plaintiff
3 circumstances
The First Circuit vacated and remanded the district
court’s grant of summary judgment on the sex discrimination
claim, but it affirmed summary judgment in favor of
the employer on the retaliation claim.
Just because the co-worker wasn’t the plaintiff’s supervisor
didn’t necessarily absolve the employer of potential liability
for the discharge, the court began. An employer can,
according to the First Circuit, face liability for sex discrimination
by a co-worker if three circumstances are met:

1. The co-worker acted for discriminatory reasons with
the intent to cause the plaintiff’s firing,

2. The co-worker’s actions were, in fact, the proximate
cause of the termination, and

3. The employer allowed the co-worker’s acts to achieve
their desired effect even though it knew, or reasonably
should have known, of the discriminatory motive.
According to the court, a reasonable jury could find that
the co-worker’s persistent lobbying for the plaintiff’s termination
could be the proximate cause of his discharge.

The First Circuit further held that the employer could
be found liable for negligently allowing the co-worker’s
Considering a co-worker’s
power to prompt a termination
discriminatory acts to cause the plaintiff’s firing — even
though the co-worker wasn’t his supervisor.
Regarding the retaliation claim, the court held that the
plaintiff must show that he wouldn’t have been fired had
he not complained. But the First Circuit determined that
the plaintiff had waived his claim because he didn’t pursue
it on appeal, so the claim was unsupported by argument
or fact.
Fair warning
This case provides fair warning to employers: Your
employees could have a cause of action against you for
a co-worker’s discriminatory and vengeful acts. Make
sure all of your termination decisions are based on logical,
business determinations — not on a supervisor’s or
co-worker’s intent of ill will or revenge. ¦
There’s no bright line test for establishing a hostile
work environment. But two factors that courts
commonly look at are the frequency and severity
of the discriminatory conduct. In Boyer-Liberto v.
Fontainebleau Corp., the U.S. Court of Appeals for the
Fourth Circuit considered whether the use of a racially
derogatory term over the course of two days could support
a racial discrimination claim based on a hostile
work environment under Title VII.
Filing suit
The plaintiff, an African-American woman, sued for race
discrimination and retaliation, claiming that:
1. A white co-worker called her a racial epithet twice
over two days, and

2. She was fired for complaining about the comments to
her employer.

The plaintiff did complain to HR about the co-worker’s
comments. In response, the employer issued a written
warning to the co-worker — even though she denied
making the comments. The plaintiff testified that she
knew the co-worker wasn’t a supervisor or manager.

Her employer argued that she was terminated because,
after review of her job performance, it found that she’d
“failed at four jobs” in one month. The employee was
originally a hostess at a restaurant, but, because she
couldn’t keep up with the fast pace of the position, she
requested other jobs in the hotel. She was permitted to
work as a server, bartender and banquet worker. But
none of these positions worked out because of her low
skill level (at bartending) and other problems, such as
her unprofessional manner, inability to get along with
co-workers and poor response to criticism.

The district court granted summary judgment in favor of
the employer, finding that the co-worker’s offensive conduct
was too isolated to support the employee’s discrimination
and retaliation claims. The plaintiff appealed.
Affirming dismissal
On appeal, the plaintiff argued that the racial epithet
used was particularly severe and humiliating. She also
argued that, because of the short duration of her employment
(one month), the use of the term twice was relatively
frequent. In addition, she felt threatened because
her co-worker was physically close to her during the first
conversation, when the comment was initially made.
Unswayed, the Fourth Circuit affirmed the district court’s
dismissal. The appellate court agreed that the comments
made were highly offensive and derogatory. But

Two days: A Title VII case
it found that a reasonable juror couldn’t conclude that
the co-worker’s two statements — which were really one
incident over two days — created a workplace that was
permeated with discriminatory intimidation.
The Fourth Circuit went on to point out that the plaintiff
hadn’t provided any other cases that found there was a
hostile work environment based on one such incident.
The court further held that, because the plaintiff knew
that the co-worker wasn’t a supervisor, there was less of a
risk of the plaintiff thinking that the offensive statements
discriminatorily altered the terms of her employment.
Regarding the retaliation claim, the Fourth Circuit stated
that the plaintiff didn’t engage in a protected activity for
purposes of proving retaliation. The plaintiff couldn’t have
held an objectively reasonable belief that she was complaining
about a hostile work environment, because the
incident with the co-worker was isolated and her supervisors
never made any racially derogatory comments. In
fact, they issued a written warning to the co-worker. Thus,
the court also affirmed the district court’s dismissal of the
retaliation claim.
Being clear

As this case shows, as an employer, you may respond
appropriately to an incident of racial harassment and still
find yourself in court. But in no way does this undermine
the importance of implementing and enforcing clear antidiscrimination
policies and complaint procedures.
Moreover, this decision reinforces that you can terminate
an underperforming employee even if he or she has complained
of discrimination. The key is creating a comprehensive
record of the worker’s poor performance. ¦
Even under the best of circumstances, granting
an employee leave under the Family and Medical
Leave Act (FMLA) can be fraught with risk.

Employers must handle the application for, and implementation
of, leave clearly and thoroughly. And they
need to smoothly reintegrate the employee in question
back into the workplace when the leave is concluded.
This already precarious process can rise
to even greater heights of risk when
an employee is terminated following
FMLA leave and then attempts to
regain employment. Case in point:
Jackson v. City of Hot Springs.
Here, the U.S. Court of Appeals
for the Eighth Circuit considered
whether a plaintiff had established
that he’d been retaliated against
for taking FMLA leave when his employer refused to
rehire him.

Reapplying for the job
The plaintiff was employed by the City of Hot Springs,
Arkansas. He underwent surgery and was granted leave
under the FMLA, which was then extended by the city
for a month. When the plaintiff was then unable to
return to work, he was terminated.
After receiving approval from his doctor
to return to work, he reapplied for his
position on two occasions. But the city
wouldn’t rehire the plaintiff, claiming
that he couldn’t perform the essential
functions of the position in question.
In response, the plaintiff filed claims
for, among other things, retaliation
based on the employer’s failure to
The Family and Medical Leave Act
Refusal to rehire protected
employee proves costly

Employment Law Briefing
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rehire him, pursuant to the FMLA and the Arkansas Civil
Rights Act (ACRA).

The district court denied the employer’s motion for
judgment as a matter of law. A jury returned a verdict
in favor of the plaintiff on both causes of action and
awarded him lost compensation and emotional distress
damages. But the district court vacated the award of emotionaldistress damages. Both parties appealed.

Performing job functions
The employer claimed on appeal that there was insufficient
evidence for a jury to conclude that:

1. The plaintiff could perform the essential functions of
his job at the times of the refusals to rehire him, and
2. The evidence didn’t show a causal link between its
failure to rehire him and the plaintiff’s FMLA leave.
Looking initially at the first point, the Eighth Circuit
found that there was indeed sufficient evidence to support
the jury’s finding that the plaintiff would have been
able to perform the essential functions of his job. The
employer claimed that medical records showed that the
plaintiff wouldn’t be able to do the lifting work required
for his position. But the court noted that the plaintiff had
sufficiently explained that he could perform the lifting
using forklifts and a small handheld lift.

The Eighth Circuit also rejected the employer’s claim
that the plaintiff’s use of painkillers established that he
couldn’t perform his job functions. The court cited the
plaintiff’s note from his doctor releasing him to work,
which stated that he could work even after disclosing and
remaining cognizant of his use of painkillers.
Inferring retaliation

The Eighth Circuit then turned to the second point above.
It found that there was a causal link and sufficient evidence
to support an inference of a retaliatory motive on
the part of the employer — primarily because the employer’s
reasons for not rehiring the plaintiff shifted from one
occasion to the next.

At first, the employer claimed that it didn’t rehire the
employee because, while he was recommended for hire,
his interview was tainted when proper procedures weren’t
followed. Then, the employer claimed that the department
needed someone with better computer skills than
the plaintiff had. This change in reasoning discredited the
employer’s motives for not rehiring the plaintiff.

The court further held that the jury was entitled to make
a credibility determination as to whether it believed the
employer’s reasons for not rehiring the plaintiff. The jury
chose not to believe the city. Moreover, the plaintiff was
entitled to liquidated damages, according to the Eighth
Circuit, because the employer hadn’t asserted that it had
acted in good faith in not rehiring him.
Accommodating and rehiring

This case illustrates a couple of separate, but related,
issues regarding FMLA leave. First, as an employer, you
always need to stay aware of your obligations to provide
reasonable accommodations to qualified applicants
to enable them to perform their essential job functions.
Don’t ignore available accommodations or minimize (or
ignore) a physician’s note supporting an employee’s ability
to work.
Second, if the hiring process comes back into play as it
did here, step even more carefully. Thoroughly review
and follow your stated policies for preventing discrimination.
And keep thorough written records of each employment
candidate, detailing valid reasons why he or she
wasn’t hired or rehired. ¦

The employer’s reasons for not
rehiring the plaintiff shifted from one
occasion to the next, supporting an
inference of a retaliatory motive.

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