Wednesday, August 8, 2018

A Cautionary Tale About Discharging a Disabled Employee for a Policy Violation

In its Enforcement Guidance: Reasonable Accommodation and Undue Hardship under the Americans with Disabilities Act issued in 2002, which hasn't yet been withdrawn or updated as a result of the passage of the Americans with Disabilities Act Amendment Act, the Equal Employment Opportunity Commission (EEOC) opines that an employer is generally not required to provide a reasonable accommodation to an employee who violates a conduct rule where the consequence of the violation is the termination of employment.

But what happens when an employer denies an employee the reasonable accommodation of a policy modification and then uses that same, underlying policy as a basis to terminate the employee's employment?

Yesterday, the Sixth Circuit answered that question by affirming a jury verdict in favor of an employee who was terminated for violating Dollar General's "anti-grazing" policy, a policy to which the employee sought (but was refused) a modification due to her diabetic condition.  See EEOC v. Dolgencorp, LLC, No. 17-628 (6th Cir. Aug. 7, 2018). 

The facts of the case are straightforward.  The employee was a diabetic who asked her manager for permission to keep orange juice at her cash register.  The manager refused the request citing the company's anti-grazing policy, and apparently failed to engage in any further dialogue about the possibility of an alternative accommodation.

During a store audit to address employee theft and shrinkage issues, the employee admitted that on two separate occasions when she was working alone in the store, she'd suffered a hypoglycemic episode, taken a bottle of orange juice from the store cooler, consumed it, and then paid for it.  In response, she was fired.

The employer appealed a jury award of over $700,000 and in a We are not amused decision, the Sixth Circuit affirmed the award.

First, the Court rejected the employer's "accommodate thyself" defense because the employer failed to provide the employee with any reasonable alternative to keeping orange juice at her register.  Second, the Court made clear that "a company may not illegitimately deny an employee a reasonable accommodation to a general policy and use that same policy as a neutral basis for firing him."  Third, the Court found that "failing to provide a protected employee a reasonable accommodation constitutes direct evidence of discrimination." (Emphasis added).

The decision underscores the need for employers to carefully evaluate accommodation requests to determine whether they can, among other things, make policy modifications absent an undue hardship. 

Sunday, July 29, 2018

Yelp to Post Restaurant Health Inspection Scores

Starting this coming Tuesday, August 31, 2018, Yelp will post restaurant health inspection scores directly on a restaurant's Yelp page.

Yelp initially launched this program in San Francisco in 2013 and to expand it nationwide, hired a third-party company to trawl  through government websites to find the health inspection reports to post.

Texas is among the states with a health inspection score roll-out date in August.  Restaurateurs should review the scores posted by Yelp to ensure they are accurate. 

Tuesday, May 1, 2018

Restaurant Clients Be Advised---There's a New Health Inspection Grade Website in Town

Restaurant health inspection grades have been available to the public for some time, but in Dallas and Fort Worth, they were difficult to locate in the public health data.

In case you missed it, the Dallas Morning News (DMN) has just rolled out a new website located at that includes health inspection grades for restaurants in Dallas, Carrollton, Plano, Richardson, and Fort Worth.  The site includes three main ways to search: (1) by restaurant name; (2) by issue (such as mold or rodents); and (3) by letter grade (A, B, C, D or F).   The DMN reports it hopes to add new cities to the database and has provided an e-mail address for readers to submit suggestions.
Counsel for restaurants should advise their clients of the existence of this site to avoid negative publicity and ensure that inspection grades are accurately reflected.

Monday, April 16, 2018

Texas District Court "Assumes" Title VII Protects Transgender Status

The Fifth Circuit has not yet ruled on the issue of whether transgender status is a protected category under Title VII, but earlier this month, a federal district judge in the Southern District of Texas, Houston Division, assumed that it was.
In Wittmer v. Phillips 66 Company, No. H-17-2188 (S.D. Tex. April 4, 2018), the plaintiff sued Phillips 66 claiming it rescinded her job offer based on her identity as a transgender woman and her failure to conform to female sex stereotypes. 
Noting the prohibition against gender stereotyping in Price Waterhouse v. Hopkins, 490 U.S. 228, 250-51 (1989) and the Fifth Circuit's absence of guidance on the issue, as well as conflicting opinions from other courts, the Court found recent decisions from the Sixth, Second, and Seventh Circuits "persuasive" and applied them to "assume" a protected status.
Despite the assumption, the Court nevertheless granted summary judgment for the employer because the plaintiff could not prove a prima facie case or pretext. 
What is interesting about this case is the Court's decision to forego a substantive analysis of the issue as many other courts have done, and instead, rely on case law from outside the Fifth Circuit.  Practitioners may be left wondering whether the Court's assumption creates enough of a toehold to use the decision as support for similar cases.

Monday, February 12, 2018

Is an Employee on FMLA Leave Entitled to Unemployment Benefits in Texas?

The question of whether an employee on FMLA leave is entitled to apply for and receive unemployment benefits from the Texas Workforce Commission (TWC) is the issue that pits the TWC against Wichita County, Texas in a case currently pending before the Texas Supreme Court.
In TWC v. Wichita County, Texas, No. 17-0130, the TWC contends that an employee on FMLA leave was entitled to unemployment benefits because the employee left work, and was therefore unemployed, due to a medically verifiable illness. Wichita County, on the other hand, contends that the Texas Unemployment Compensation Act (TUCA) does not apply to employed individuals on FMLA whose employment is protected by federal law.
Key to the Court's ruling will be a clarification of what it means to be "unemployed" under the TUCA.  Section 207.045 of the TUCA permits a person who has voluntarily left her job due to a medically verifiable illness to receive benefits.  Does an employee who exercises her right to FMLA leave become "unemployed" under the TUCA?
Wichita County argues that the TWC's position effectively creates a paid leave law in Texas, which the Texas Legislature has expressly and recently declined to do. 
Oral arguments are scheduled for February 28th. 

Thursday, November 2, 2017

Is an Employee's Inability to Read or Understand English a Defense to a Motion to Compel Arbitration?

According to the Dallas Court of Appeals, the short answer is that absent fraud or trickery, an employee's inability to read or comprehend English is not a defense to a motion to compel arbitration where the employee executed an English version of an acknowledgment which referenced the arbitration agreement.  MiCocina, Ltd D/B/A Taco Diner v. Jose Balderas-Villanueva, No. 05-16-01507-CV (Oct. 27, 2017).
In this case, the employee, who did not read or speak English, signed a one-page document titled, "Acknowledgment of Receipt of Employee Handbook," written in English, which memorialized receipt of the Mutual Agreement to Arbitrate, a summary description of the work-related injury plan, a department of insurance non-subscriber form, and a company handbook.  Neither the employer nor the employee signed the Mutual Agreement to Arbitrate referenced in the Acknowledgment. Thereafter, the employee was injured at work when an oven exploded, and sued the employer for damages.
The trial court denied the employer's motion to compel arbitration, finding that no contract formation existed and that the employee was misled into signing the document, but the Fifth Court of Appeals reversed and remanded with instructions to grant the motion. 
Key to the appellate court's ruling were the following points:
  • An employer may enforce an arbitration agreement with an at-will employee if the employee received notice of the employer's arbitration policy and accepted it.
  • An at-will employee who receives notice of an employer's arbitration policy and continues working with knowledge of the policy accepts the terms as a matter of law.
  • It was undisputed that the employee's claims fell within the scope of the Mutual Agreement to Arbitrate.
  • The  Mutual Agreement to Arbitrate did not need to be signed by both parties because it was incorporated by reference in the paper signed by the person sought to be charged.
  • The signed Acknowledgment that specifically identified the Mutual Agreement to Arbitrate was evidence of notice.
  • Absent fraud, misrepresentation, or deceit, a party is bound by the terms of the contract he signed, regardless of whether he read it or thought it had different terms.
  • Illiteracy will not relieve a party of the consequences of his contract.
  • If a person is unable to read a contract, it is his duty to find some reliable person to read and explain it to him before he signs it.
  • The fact that a person may not be fluent in English does not of itself create the type of confidential relationship that would relieve the person from his duty to read a contract.
  • A party does not have a general duty to explain, discuss, or translate an arbitration agreement merely because the subject matter concerns arbitration.
Here, despite conflicting testimony regarding whether the employee was provided with copies of various documents translated into Spanish, and despite the fact that the employer told the employee to sign the Acknowledgment because it was related to restaurant policies, the appellate court concluded that the employee failed to provide evidence of a fraudulent misrepresentation or trickery.

Thursday, October 5, 2017

Seventh Circuit Panel Affirms that the ADA is Not a Medical-Leave Statute

    In a decision that took more than one year from the date of oral argument to issue, a panel of the Seventh Circuit recently affirmed summary judgment for a company that was sued for violations of the ADA, including a failure to accommodate, after it terminated an employee who had exhausted his Family and Medical Leave Act (FMLA) leave and was unable to return to work for at least another two months due to a planned surgery.  Severson v. Heartland Woodcraft, Inc., No. 115-3754 (7th Cir. Sept. 20 2017). 

    With assistance from the EEOC, the employee argued that a long-term medical leave of absence should qualify as a reasonable accommodation under the ADA when the leave is for a definite duration, requested in advance, and likely to enable the employee to perform the essential job functions upon return to work. The Court rejected this argument, noting that the term “reasonable accommodation” is expressly limited to those measures that will enable the employee to work.  An employee who needs long-term medical leave cannot work, and thus is not a “qualified individual” under the ADA.
    The Court noted that a leave of absence “may” be a reasonable accommodation, provided that the duration of the leave is short (such as a few days), but squarely rejected the idea that the ADA is a medical leave statute, or an “open-ended extension of the FMLA.”  Simply put, an extended leave of absence does not give a disabled employee the means to work; rather, it excuses his work.  An inability to do the job’s essential functions means that one is not “qualified”; it does not mean that the employer must excuse the inability.  This decision follows several others, including the 2014 Hwang v. Kansas State University decision by a panel of the Tenth Circuit, which are providing employers with much-needed guidance on the issue of leave as a reasonable accommodation.